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Income Tax - Case Laws
Showing 121 to 140 of 1116 Records
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2015 (10) TMI 2644 - ITAT MUMBAI
Penalty u/s 271(1)(c) - addition made on account of short term capital gain was under section 50C - Held that:- On a plain reading of the sec 50 provision, it is absolutely clear that in a case where the declared sale consideration by the assessee is lesser than the value adopted by the stamp valuation authority for stamp duty purpose such value shall be the sale consideration deemed to have been received by the assessee of course, subject to the provisions contained under sub–sections (2) and (3) of the Act.
Thus for applying the said provision, the Assessing Officer need not have to establish whether actual sale consideration received by assessee is the value adopted by the stamp valuing authority for stamp duty purpose. However, as far as imposition of penalty under section 271(1)(c) of the Act is concerned, the Assessing Officer has to prove the fact that the assessee actually received as sale consideration, the amount determined as the value for stamp duty purpose. There is not even a single evidence brought on record by the Assessing Officer which could even remotely establish that the assessee has received anything over and above the declared sale consideration. Merely because the addition was made by applying the provisions of section 50C of the Act on the basis of value determined by the stamp valuation authority, the assessee cannot be saddled with penalty under section 271(1)(c) of the Act either for furnishing of inaccurate particulars of income or for concealment of income. - Decided in favour of assessee.
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2015 (10) TMI 2642 - DELHI HIGH COURT
Validity of assessment u/s 153A in the case of Assessee stood dissolved on amalgamation - non existent company - Held that:- In the present case, a search took place on 20th October, 2008 in the cases of Mr B. K. Dhingra, Smt. Poonam Dhingra and M/s Madhusudan Buildcon Pvt. Ltd. On the basis that in the course of search certain documents belonging to the Assessee company were found, notice was issued to the Assessee under Section 153C (1) on 10th September, 2010. Therefore, not only on the date on which notice was issued but even on the date of the search, the Assessee had ceased to exist in the eyes of law.
In Pr. Commissioner of Income Tax (Central-II) v. Images Credit And Portfolio Pvt. Ltd.[2015 (9) TMI 234 - DELHI HIGH COURT] invalidated the assessment proceedings against the Assessee in those cases which, on account of having merged with another entity with effect from a date anterior to the search, also no longer existed on the date of search, on the date of the issue of notice and consequent assessment order passed under Section 153 C of the Act. - Decided against revenue
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2015 (10) TMI 2641 - ITAT CHANDIGARH
Penalty under section 271(1)(c) - capital gain addition - Held that:- The issue is covered in favour of the assessee by order of ITAT Chandigarh Bench in the case of Shri Balwinder Singh Dhillon [2015 (8) TMI 1384 - ITAT CHANDIGARH] on identical facts penalty has been cancelled and the departmental appeal has been dismissed. Further, when Hon'ble High Court has deleted the addition in the cases of assessees by following decision in the case of Shri C.S. Atwal V CIT [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] therefore, nothing survives in favour of the revenue to levy the penalty under section 271 (1) (c) of the Act. In the result, there are no merits in the departmental appeals, the same are accordingly, dismissed. - Decided in favour of assessee
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2015 (10) TMI 2640 - ITAT MUMBAI
Addition u/s 14A - as per assessee investments made in the companies are strategic investments which have been made for business purposes and therefore should not be considered when computing the average value of investments for the purpose of Rule 8D(2)(ii) and 8D(2)(iii) - Held that:- The claim of strategic investments made by the assessee need verification. We, therefore, restore the entire issue to the file of the AO. The AO is directed to verify the claim of the assessee that the investments are made for strategic purposes and decide this issue afresh in the light of the findings given by the Tribunal in assessee’s own case in earlier assessment years and also keeping in mind that if investments are found to be of strategic in nature then to decide the issue as per the decision of the Tribunal given in the case of J.M. Financial Ltd.[2014 (4) TMI 752 - ITAT MUMBAI] read with M/s. Garware Wall Ropes Ltd. [2015 (2) TMI 628 - ITAT MUMBAI]. With the above directions, ground are treated as allowed for statistical purpose.
Disallowance of amortization of premium paid for leasehold land - Held that:- Tribunal has followed the decision of the Co-ordinate Bench in assessee’s own case for A.Y. 2005-06 [2010 (10) TMI 214 - ITAT MUMBAI ] and dismissed the appeal of the assessee.
Addition on account of unutilized cenvat credit - Held that:- This issue has been decided in favour of the assessee and against the Revenue by the Tribunal [2014 (9) TMI 1099 - ITAT MUMBAI] wherein the Tribunal has observed the directions given to the AO to recast the accounts of the assessee by considering the element of Excise duty and other taxes in opening stock, purchases, sales and inventory has to be decided as per the findings given in A.Y. 2006-07. Respectfully following the directions given by the Co-ordinate Bench, we direct accordingly.
Value to be adopted with regard to the opening written down value of the block of assets - Held that:- This issue has been decided against the assessee by the Tribunal in assessee’s own case for A.Y. 2006-07
Disallowance on account of the provision for diminution in the value of investments while computing Book profits u/s. 115JB -Held that:- This issue is now decided against the assessee and in favour of the Revenue in view of the retrospective amendment by the Finance Act No.2 of 2009 with effect from 1.4.2001, now that this issue is covered by the Amendment against the assessee
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2015 (10) TMI 2639 - ITAT LUCKNOW
Penalty u/s 271(1)(c ) - income found in the locker - Held that:- Concealment and furnishing inaccurate particulars are different. The AO, while issuing notice, has to come to the conclusion as to whether it is a case of concealment of income or whether it is a case of furnishing of inaccurate particulars. The Hon’ble Apex Court in the case of T. Ashok Pai vs. CIT (2007 (5) TMI 199 - SUPREME Court) has held that concealment of income and furnishing inaccurate particulars of income carry different connotations.
As in the present case the penalty order does not make it clear as to whether the penalty has been imposed for concealing particulars of income or for furnishing inaccurate particulars of income we respectfully following the decision in the case of Commissioner of Income Tax & Another vs. Manjunatha Cotton & Ginning Factory (2013 (7) TMI 620 - KARNATAKA HIGH COURT) wherein held that Notice u/s 274 of the Act should specifically state the grounds mentioned in section 271(1)(c) , i.e. whether it is for concealment of income or for furnishing of inaccurate particulars of income. Sending printed form where all the ground mentioned in section 271 are mentioned would not satisfy requirement of law, thus we hold that the penalty imposed u/s 271(1)(c) of the Act was improperly imposed by the AO - Decided in favour of assessee
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2015 (10) TMI 2633 - ITAT MUMBAI
Validity of reopening of assessment u/s. 147 - Held that:- We find that in the reasons supplied to the assessee, at the time of issuing unsigned reasons the AO had not mentioned anything as what was the basis of arriving at the conclusion of escapement of income, that also in the reasons recorded he had not mentioned that the escapement of income was due to failure of the assessee to disclose truly and fully the material facts.
Considering the various factors-like supplying unsigned reasons, existence of two different sets of reasons for issuing 148 notice, not adjudicating objections raised by the assessee, reopening of assessment after a very long period, relying on the statements of third party that were not confronted to the assessee etc.-we are of the opinion, that the notice u/s.148 had been issued without the jurisdictional foundation u/s.147 being available to the AO and that the notice and the subsequent proceedings were without jurisdiction. - Decided in favour of the assessee.
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2015 (10) TMI 2631 - ITAT NAGPUR
Disallowance of deduction u/s 80IB(10) - no approval from the local authority for the housing project seeked - whether the Gram Panchayat is “local authority” or not - Held that:- There was a discussion of Bombay Village Panchayat Act, 1958 and as per section 52, sanction of construction of building within the limit of village has to be granted by the Panchayat. On the said basis it was held that the village Panchayat is a “local authority”.
As far as the issue whether the Gram Panchayat is “local authority” or not, the decision of ITAT, Pune Bench has been cited before us n the case of Hiraman Nivrutti Bhujal [2014 (5) TMI 1137 - ITAT PUNE] wherein other decisions were discussed and finally came to the conclusion that the concerned Gram Panchayat was a competent local authority for the purpose of issuing approval and completion certificate for claiming deduction u/s 80IB(10) of I.T. Act. Moreover, the respondent-assessee has also placed reliance on a decision of CIT vs. Gwalior Rayon Silk Manufacturing Co. Ltd. [1992 (4) TMI 3 - SUPREME Court ] for the legal proposition that the provisions for deductions and exemptions should be construed reasonably and in favour of the assessee. In our considered opinion since all the issues in hand have been covered either by the orders of the Tribunal in assessee’s own case or by respected coordinate Benches, therefore, we find no fallacy in the view taken by the learned CIT(Appeals). - Decided against revenue
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2015 (10) TMI 2628 - DELHI HIGH COURT
Condonation of delay - interpretation of Section 260A (2) (a) - Held that:- Today in two other appeals Pr CIT v. Gulbarga Associates Pvt. Ltd.(2017 (3) TMI 1266 - DELHI HIGH COURT)questions concerning the interpretation of Section 260A (2) (a) have been referred to a larger Bench. The Court is of the view that many of those questions would arise in the present appeal as well.
Consequently, this appeal is also directed to be placed before the Hon’ble the Chief Justice for being placed before the larger Bench to be re- heard.
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2015 (10) TMI 2626 - DELHI HIGH COURT
TPA - exclusion of two companies Cosmic Global Limited (‘CGL’) and Accentia Technologies Limited (‘ATL’) from the list of comparables for the purposes of determining the arm’s length price (‘ALP’) of the international transaction of ‘provision of ITES’ involving the Respondent Assessee - Held that:- One reason for exclusion of CGL was that it had outsourced its major activities whereas the Assessee was doing the business in-house. As far as ATL is concerned, it was noticed that there was merger of some other entity with it and, therefore, the said company could not be considered as a comparable.
The submission of learned counsel for the Revenue is that both these companies were included in the Assessee’s own list of selected entities and the demand for the exclusion was made only before the ITAT. Be that as it may, the Court is of the view that the order of the ITAT in so far as it concerns the exclusion of the above entities from the list of comparables does not give rise to any substantial question of law which requires consideration by the Court.
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2015 (10) TMI 2625 - ITAT PUNE
TPA - selection of comparable - Assessee does not outsource the work rather it receives outsourced work - Abnormal profit in the F.Y. of company is a major constraint to be selected as comparable - Held that:- Cepha Imaging Pvt. Ltd. should be considered as a comparable, if the RPT to sales is less than 25%.
So far as Allsec Technologies Ltd.- the functions carried out by Allsec Technologies Ltd. are different from that of the functions carried on by the assessee. Further, this company has incurred loss in the current year as well as in the preceding year. Apart from the general argument the Ld. Counsel for the assessee could not rebut the findings/observations given by the AO as well as the DRP as to how Allsec Technologies Ltd. should be included in the list of comparables. The various decisions relied on by Ld. Counsel for the assessee are not applicable to the facts of the present case. We, therefore, reject the arguments of the Ld. Counsel for the asessee on this issue and uphold the action of the AO/DRP in rejecting this company from the list of comparables.
R Systems International Ltd. - the company is product development and product seller. Accordingly, the DRP considered the same as not comparable with that of the assessee company. We do not find any infirmity in the order of the AO as well as the DRP on this issue. We find the Ld. Counsel for the assessee while arguing the case for exclusion of Cosmic Global Ltd. has argued that the same company had to be excluded since it had paid translation charges to third parties indicting outsourcing of work. For the above proposition, she also relied on various decisions. Therefore, once it has been found by the DRP from the director’s report that R Systems International Ltd. is leading provider of outsource product development services, business process, outsource service and also own product suites in BFSI, manufacturing and logistics verticals etc., therefore, in the own arguments of the Ld. Counsel for the assessee this company is functionally dissimilar and therefore the same cannot be accepted as comparable. In this view of the matter, we uphold the order of the AO/DRP on this issue.
Risk adjustment - Held that:- The different benches of the Tribunal are taking the view that an assessee who is a captive service provider and does not assume any risk or takes lesser risk as compared to comparable company which undertakes higher risks, then it is entitled to some risk adjustment. However, since the assessee has not produced complete analysis and complete spectrum of risk faced by business entity and in absence of risk analysis of each comparable, we restore this issue to the file of the AO with a direction to give an opportunity to the assessee to work out and justify to the satisfaction of the AO regarding the risk adjustment it is entitled to. We hold and direct accordingly. Ground of appeal by the assessee is accordingly allowed for statistical purposes.
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2015 (10) TMI 2624 - ITAT MUMBAI
Notional interest addition on the business advances given by an appellant to its Associated Enterprises (AE) - Held that:- There is no dispute on the nature of loans as "international transactions‟ in view of retrospective amendment by the Finance Act 2012 to section 92B of the Act relating to the “definition of international transactions”.
Regarding the charging of interest on such interest free loans given to the subsidiaries, it is now decided issue, by virtue of the case of CIT vs. Tata Autocomp Systems Ltd [2015 (4) TMI 681 - BOMBAY HIGH COURT ] that the said loan amounts are required to be bechmarked considering the LIBOR of the Singapore and Hong Kong, as the case may be. Now the question is what is the rate of interest which constitutes ALP in this case. It is the decision of the coordinate Bench in the case of Melstar Information Technologies Ltd (2015 (5) TMI 70 - ITAT MUMBAI) that LIBOR + 2% is followed by the Tribunal of Bombay Benches. No contrary decision of Bombay Benches of the Tribunal is brought to our notice by the Ld AR. Therefore, we are of the opinion that AO / TPO is directed to benchmark the impugned transaction by applying the arm‟s length rate of interest at LIBOR + 2% and the LIBOR of the respective countries should be considered. Accordingly, this part of the ground is partly allowed.
Considering rate of notional interest as 12 months average Libor + 300 basis - Held that:- On perusal of the loans given by the assessee and the date of return of the loans, we find no loan given by the assessee has exceeded one year. Minimum period of loan returned by the AEs is one month. Further, when the period of loans consumed by the AEs is not uniform for applying the uniform average of 12 months LIBOR on all these loans of that countries is prima facie not valid and appropriate. In these circumstances, we are of the opinion, considering the average of 6 months LIBOR of those countries, where loans are consumed, would meet the ends of justice. In any case, this issue was not addressed by the lower authorities during the relevant proceedings. As such, no judicial precedent is brought to our notice on this issue. Therefore, in our opinion, AO / TPO should verify the facts and give an opportunity to the assessee and decide the issue afresh.
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2015 (10) TMI 2622 - ITAT PUNE
Revision u/s 263 - Validity of assessment u/s 144C - Held that:- Where an order is passed by the Assessing Officer, which is contrary to the mandatory provisions of section 144C of the Act, then the same is to be declared one without jurisdiction, null and void and unenforceable in law. Accordingly, we hold so.
Commissioner on its own motion issued show cause notice on 17.12.2013 and had exercised the jurisdiction under section 263 of the Act and on the premise that the assessment order passed was without jurisdiction and without following procedure of law and hence, was erroneous. In the first instance, the assessee had already agitated the issue in appeal, which was pending. Further, where the order has been passed by the Assessing Officer, which is both null and void and is not sustainable in law, then in such circumstances, we find no merit in the exercise of jurisdiction by the Commissioner since for such exercise a valid order should be in existence and when no such valid order is in existence, the Revenue authorities cannot take the shelter of initiating the proceedings under section 263 of the Act in order to correct null and void order passed by the Assessing Officer. We find no merit in the exercise of jurisdiction by the Commissioner under section 263 of the Act.
Non-following of the conditions laid down in section 144C of the Act, we hold that the assessment order passed by the Assessing Officer was both null and void and has to be quashed. - Decied in favour of assessee
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2015 (10) TMI 2621 - ITAT DELHI
Determining the arm’s length price of the international transaction of advertising, marketing and promotion (AMP) spent and royalty payment - Held that:- So far as determination of arm’s length price of AMP expenses is concerned the Hon’ble Court in Sony Ericsson Mobile Communications India Pvt. Ltd. (Now known as Sony India Limited) & others [2015 (3) TMI 580 - DELHI HIGH COURT ] has held that if suitable comparable engaged in both distribution and advertising, marketing and promotion (AMP) functions are found, than, arm’s length price of the transaction should be determined on aggregate basis. If, however, there is some difference in the function of distribution or advertising, marketing and promotion performed by the assessee as compared to the comparables, then attempt should be made to bridge the difference by making a suitable adjustment to the profit margin of the comparables. The Hon’ble Court has gone on to hold that if such adjustment is not possible, then, the chosen comparable should be eliminated and if in the process of comparing, no comparables are left who are engaged in performing such distribution and advertising, marketing and promotion functions, then the International transaction of AMP should be segregated and its arm’s length price should be determined applying a suitable method, however, in determining so, a proper set off, if any available from the distribution activity should be allowed. We find that in the present case details of the advertising, marketing and promotion function performed by the assessee are not available on record. Further advertising, marketing and promotion functions of the comparables have also not analyzed by the TPO as he applied the bright line test for determining the value of International transaction of advertising, marketing and promotion expenses which approach has not been approved of by the Hon’ble High Court. Thus since the Ld. A.R fairly stated that facts need to be addressed afresh as at this stage without a detailed discussion on facts, agreements, conduct etc. of the assessee it was not possible to address the advertising, marketing and promotion function of the assessee as well as comparables, thus request for remitting the matter back to the AO on facts and circumstances of the case is found to be justified.
As far as determination of arm’s length of royalty payment is concerned, it is seen that the Hon’ble High Court has held that payment of royalty is a relevant consideration while determining the arm’s length price of international transaction of distribution and marketing, however the tax treatment of royalty being different, the Royalty transaction, may be bench marked separately. Since the determination of arm’s length price of royalty payment is inter connected with advertising, marketing and promotion expenses as held by the Hon’ble High Court we are of the view that determination of arm’s length price of royalty also cannot be done at this stage and needs to be remitted back.- Decided in favour of assessee for statistical purpose.
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2015 (10) TMI 2617 - ITAT MUMBAI
Reopening of assessment - assessee has contravened the provisions of section 13(1)(c), 13(3) and section 11(4), as a result of which capital expenditure has to be disallowed - Held that:- On a perusal of the reasons recorded for re–opening, we do not find any such allegation made by the Assessing Officer which satisfies the condition of proviso to section 147. On the contrary, as it appears, the re–opening of assessment is on the basis of facts and material which are already disclosed by the assessee either in the return of income or during the original assessment and on the basis of which the original assessment was made. No new tangible material has come to the possession of Assessing Officer to form a belief that income has escaped assessment.
It is also pertinent to mention here, in the appeal preferred against the original assessment order, Commissioner (Appeals) has accepted assessee’s claim of exemption under section 11 of the Act. Thus there being no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment, the re–opening of assessment on a change of opinion, that too, after expiry of four years from the end of relevant assessment year is invalid. - Decided in favour of assessee
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2015 (10) TMI 2607 - ITAT DELHI
TPA - determine the ALP of the AMP expenses - Held that:- In the present case, the ld. Counsel of the assessee s well as ld. DR failed to enlighten us towards any material divulging the AMP functions performed by the assessee as well as comparables adopted by the TPO to determine the ALP of the AMP expenses at our end. Therefore, there is lack of relevant facts before us on this issue. Under above noted facts and circumstances, we find it appropriate to set aside impugned order and restore the matter back to the file of TPO/AO for determining the ALP of the international transaction of the AMP spend by the assessee during the relevant financial period afresh in accordance with the manner as laid down by Hon’ble High Court in the case of Hon’ble Delhi High Court in the case of Sony Ericsson Mobile Communications India Pvt. Ltd. vs CIT [2015 (3) TMI 580 - DELHI HIGH COURT].
Allowance of depreciation - Held that:- We note that on combined reading of section 32(1), 2(11) and 43(6)(c) of the Act, the depreciation is computed on closing written down value following block of asset concept. We cannot ignore that when an asset is placed in block of asset, individual asset comprising within the block received through individual identity and therefore, the existence and use of individual asset fall within a block of assets is not of any relevance for the purpose of adjudication of the claim of the assessee for depreciation on plant and machinery. In the case of CIT vs Oswal Agro Mills Ltd. (2010 (12) TMI 947 - Delhi High Court) it was held that assets forming part of block of asset attracts depreciation of entire block of assets even if not used in the relevant financial year. In this case, undisputedly, DRP allowed depreciation of plant and machinery for AY 2007-08, however, the AO did not give effect to this order. In the second appal before the ITAT, the issue was decided in favour of the assessee by Tribunal. We further note that for AY 2008-09, the DRP allowed depreciation on plant and machinery during the course of rectification proceedings vide order dated 12.3.13 and for AY 2009-10, the AO himself accepted and allowed depreciation in the assessment order passed u/s 143(3) of the Act dated 28.2.2014. In view of above, depreciation on plant and machinery should be allowed to the assessee for AY 2006-07 and thus, ground no. 3 of the assessee is allowed
Addition u/s 40 - Held that:- We hold that the AO/DRP was not right in making disallowance in regard to the payment of royalty made by the assessee under TCA and the payment of royalty should be allowed as a revenue allowance/expenditure. However, we may point out that the issue of payment of royalty was not before the Tribunal for AY 2005-06, therefore, we decline to accept the submission of the ld. Counsel of the assessee that the issue is covered in favour of the assessee
Provisions for doubtful debts and doubtful advances - Held that:- The assessee added provision for doubtful debts to the taxable income of the assessee as per Note no. 1 to the Notes of accounts, therefore, when consistently, the assessee has not claimed provisions for doubtful debts and doubtful advances, then when the amount is reversed, it should not be added back to the taxable income of the assessee. At this juncture, we note that ld. DR during the argument, has fairly submitted that the department has no serious objection if the issue is restored to the file of AO/DRP for examination and verification of the assessee’s claim after considering explanation and documentary evidence of the assessee in this regard. Ld. Counsel of the assessee submitted that the assessee has no reservation if the matter is restored to the file of AO/DRP for fresh adjudication after allowing due opportunity of hearing for the assessee and without being prejudiced from its earlier DRP and assessment order.
Technical fee paid to DIL under TCA ought to be allowed - revenue expenditure OR capital expenditure - Held that:- The assessee’s right to use license was being hedged with all sorts of conditions in the TCA and the TCA with DIL entered into on the same date primarily facilitated in improving the technical aspect of manufacturing but it did not essentially form part of revenue earning apparatus viz. plant and machinery of the assessee. The Coordinate Bench of the Tribunal in the order in assessee’s own case for AY 2006-07 explicitly held that the expenditure incurred for acquiring technology which becomes part and parcel of revenue earning apparatus can only be said to be capital field but only where the technology only facilitated in improving manufacturing process, it could not be said to be part and parcel of capital structure of the company. On the basis of foregoing discussion, we respectfully follow the order of the Tribunal on this issue in favour of the assessee and hold that the technical fee paid by the assessee to DIL under TCA ought to be allowed as revenue expenditure.
Refund form custom department - Held that:- Since the assessee could not submit and furnish any reply, submissions and documentary evidence on this issue, therefore, the department has no serious objection if the issue is restored to the file of AO/DRP for a fresh verification and examination of the assessee’s claim. In view of above, we clearly note that during the draft assessment proceedings, the assessee could not submit relevant explanation, submission and documentary evidence supporting to its claim regarding refund from custom department and in absence of the same, the AO presumed that the AO has nothing to say in this regard and he made impugned addition without considering the totality of the facts and circumstances, therefore, we are inclined to hold that the assessee was not provided due opportunity to explain his claim during the proceedings before the lower authorities, therefore, agreeing with the contention of both the sides, we find it appropriate to restore this issue to the file of AO for a fresh adjudication and after providing due opportunity of hearing to the assessee and without being prejudiced with the earlier order or the DRP directions.
Credit while computing tax payable on assessed income as against advance tax deposited/taxes deducted at source - Held that:- The issue is pertaining to the verification of credit for advance tax deposited/tax deducted at source and the same may be sent to the AO for re-calculation and verification. Accordingly, ground no. 8 of the assessee is allowed by directing the AO to give credit against the advance tax deposited/tax deducted at source during the relevant financial period. Accordingly, ground no. 8 of the assessee is deemed to be allowed for statistical purposes.
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2015 (10) TMI 2596 - ITAT KOLKATA
Rejection of books results - Auditor’s Report reliance - whether the reports of the auditors could be said to be “material” on which reliance could be placed by the income tax authorities? - Held that:- We find that the books of accounts were destroyed due to fire that broke out in the business premises of the assessee on 18.5.2006 and hence the assessee had to heavily rely only on the audited balance sheets and tax audit report that were practically ready before the date of fire as assessee being a listed company , it had to submit quarterly financial results to the stock exchange after due review by its auditors. We also find that the case law relied upon by the Learned AR on the decision of Hon’ble Delhi High Court in the case of Addl CIT vs Joy Engineering Works Ltd(1978 (2) TMI 94 - DELHI High Court ) is well placed as it deals with identical situation.
Keeping in view of the fact that the revenue could not contradict the submissions of the assessee as well as the observations of the ld.CIT(A) in the impugned order, we find no infirmity in the orders of the ld. CIT(A) - Decided against revenue
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2015 (10) TMI 2595 - ITAT MUMBAI
Income arising on sale of shares - capital gain or business income - Held that:- During the year under consideration, the assessee has dealt in 68 scripts. But the repetitive transactions are few in numbers. The period of holding was less than 30 days in respect of 49 scripts and the same may actually go against the claim of the assessee. However, we notice that the assessee’s claim of Long term capital gains has been accepted by the AO. Hence, in our view, the low period of holding in respect of certain scripts may not be considered to be the sole determining factor. The assessee has furnished details of the days spent by the assessee on stock market at page 23 of the paper book. A perusal of the same would show that the assessee has spent on an average only 6 days in a month on share trading activity. The assessee has also earned dividend income of ₹ 46.25 lakhs.
All the factors discussed above, in our view, shows that the intention of the assessee was mainly to act as investor only. Accordingly, we are of the view that the gains arising on sale of shares should be assessed under the head Capital gains only. Accordingly, we set aside the order of Ld CIT(A) and direct the AO to assess the profits arising on sale of shares as Capital gains only. - Decided in favour of assessee.
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2015 (10) TMI 2593 - ITAT PANAJI
Deduction u/s 80P(2)(a)(i) eligibility - Held that:- The Commissioner of Income Tax (Appeals) has allowed the claim of deduction under sec. 80P(2)(a)(i) of the Act by following the decisions of the Hon’ble Karnataka High Court in the case of Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha, Bagalkot (2015 (1) TMI 821 - KARNATAKA HIGH COURT ) and in the case of General Insurance Employees Cooperative Credit Society Ltd. (2014 (6) TMI 912 - KARNATAKA HIGH COURT ) wherein held when the status of the assessee is a Co-operative society and is not a Co- operative bank, the order passed by the Assessing Authority extending the benefit of exemption from payment of tax under Section 80P(2)(a)(i) of the Act is correct.
No contrary decision could be cited by the Departmental Representative. We, therefore, do not find any good and justifiable reason to interfere with the order of the Commissioner of Income Tax (Appeals), which is hereby confirmed and the ground of appeal of the Revenue is dismissed.
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2015 (10) TMI 2592 - ITAT KOLKATA
Penalty u/s 271(1)(c ) - Held that:- Penalty proceedings are distinct and separate from assessment proceedings and just because an addition has been sustained in quantum proceedings, levy of penalty is not automatic. What has to be seen is whether there was a bonafide belief and bonafide explanation given by the assessee. If it is so, no penalty could be levied u/s 271(1)(c ) of the Act.
Moreover, we also find that the additions sustained by this tribunal in quantum proceedings in the sum of ₹ 1,45,000/- has been admitted by the Hon’ble Calcutta High Court as involving substantial question of law. Hence we hold that no penalty could be levied u/s 271(1)(c ) of the Act in respect of issues involving substantial question of law as no allegation could be raised on the assessee with regard to concealment of income or furnishing of inaccurate particulars of income and the issue involved is highly debatable in nature - Decided in favour of assessee
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2015 (10) TMI 2588 - ITAT CHANDIGARH
Revision u/s 263 - reliance on audit objections - capital gains - Held that:- The Assessing Officer has made enquiry with regard to investments in shares and mutual funds at assessment stage and assessee vide his reply dated 07.12.2010 offered the amount for taxation on account of capital gains. Therefore, it is not a case of no enquiry on capital gains by Assessing Officer. Therefore, the reasons given by the CIT in the impugned order are wholly unjustified for invoking jurisdiction under section 263 of the Act. Thus, the CIT did not assume the jurisdiction under section 263 in accordance with law and cannot substitute his opinion against opinion expressed by the Assessing Officer in the assessment order. Therefore, there is no justification to sustain the impugned order under section 263 of the Act. We, accordingly, set aside and quash the order under section 263 of the Act and restore the assessment order under section 143(3) of the Act dated 16.12.2010. - Decided in favour of assessee.
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