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Income Tax - Case Laws
Showing 141 to 160 of 1116 Records
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2015 (10) TMI 2587 - GUJARAT HIGH COURT
Withdrawal of appeal - Held that:- In view of the amendment in section 253(1)(f) of the Income Tax Act, 1961, a provision has been made for appeal to the Tribunal. He, therefore, seeks permission to withdraw the petition.
Permission, as prayed for, is granted. The petition is disposed of as withdrawn. Notice is discharged.
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2015 (10) TMI 2583 - ITAT BANGALORE
Eligibility to deduction u/s.80P - whether assessee was eligible for deduction u/s.80P(2)(a) or 80P(2)(d) of the Act, on the interest received by it? - Held that:- What we find is that in case the interest was received from surplus invested by the assessee in short-term FDs or Savings Bank account of other banks, then the judgment of jurisdictional High Court in the case of Tumkur Merchants’ Souharda Credit Cooperative Ltd [2015 (2) TMI 995 - KARNATAKA HIGH COURT ] would come to its aid. However, if the money deposited was amounts lent to the assessee by its members, or due by the assessee to its members then such deduction may not be automatic. We are therefore of the opinion that the issue requires a fresh look by the AO. We set aside the orders of authorities below and remit the issue back to the file of the AO for consideration afresh in accordance with law. - Decided in favour of revenue for statistical purpose..
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2015 (10) TMI 2581 - ITAT MUMBAI
Restricting the disallowance made u/s 14A r.w. Rule 8D - Held that:- It is seen that the predecessor has directed the AO to consider net interest paid for disallowance u/s 14A. Following the predecessor’s order as mentioned in preceding para, the AO is directed to consider only net interest paid for working disallowance u/s 14A of the Act. This ground of appeal is, thus, partly allowed.
Addition on account of penalty paid to stock exchange - Held that:- The penalties / fine paid to BSE, NSE are on account of non-collection of margin charge, procedure failure to follow bye-laws, rules/ regulations of the Stock Exchange. These expenses are in the nature of payments towards violating the prescribed Rules/ Regulations, short/ partial collection of margins, non-maintenance of complete records, delay in payments of funds and securities, incomplete KYC forms, etc. which are main breach of contractual liability and non-adherence to proper procedure laid down by the Stock Exchanges, and are not for any infringement or infraction of any statutory law, and therefore, are not hit by Explanation to sec.37(1) of the Act. Further, BSE & NSE are not statutory bodies and hence, fines and penalties levied by BSE & NSE cannot be equated with statutory Rule or Law. Since, the facts and circumstances of this year are similar to that of AY 2009-10, I have no reason to differ with view taken by my predecessor. Hence, the penalty disallowed by the AO is deleted. This ground of appeal is allowed.
Addition in respect of notional loss open position in the F & O - Held that:- In find from the P & L A/c that the appellant had already credited the amount of ₹ 9,593/- to the P & L account. Thus, by adding the same amount again in the computation of income, the AO has taxed twice the same amount, I, therefore, direct the AO to delete this addition on account of F & O transaction.
Addition in respect of expenses at club - Held that:- The Hon’ble Delhi High Court in CIT(A) vs. Nestle India reported by (2007 (4) TMI 180 - DELHI HIGH COURT) held that (Even though there was no specific finding that the payment was made by the assessee for improving its business there was an implicit acknowledgement that expenses incurred by the assessee were for business purposes. The assessee was entitled to deduction as claimed). Hence the addition made on account of club expenses which was deleted by ld. CIT(A) is also does not require any interference and the same is reasoned one.
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2015 (10) TMI 2578 - DELHI HIGH COURT
Provision for transit breakages - whether was not contingent in nature or based on a scientific basis and as such was not an allowable deduction while computing the total income? - Held that:- In In view of the judgment passed in Seagram Distilleries Pvt. Ltd case [ 2015 (10) TMI 491 - DELHI HIGH COURT] there is no reasonable scientific method adopted by the Assessees to estimate the transit breakages so as to justify creating of provision for such breakages.
The provision would, in the circumstances, be a provision for a contingent liability and, therefore, in terms of the AS 29 ought not be recognised.
The actual transit breakages as and when they occur are allowable as revenue expenditure in the accounting year in which such breakages occur. Question framed is answered in favour of the Revenue and against the Assessees.
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2015 (10) TMI 2577 - ITAT AHMEDABAD
Refund in relation to surplus sum - differential amounting between ₹ 1.75 crores alleged unaccounted income reduced by the actual sum declared of ₹ 27 lacs - Held that:- Revenue has failed to produce any material evidence supporting the impugned addition amount of ₹ 1.48 crores added merely on the basis of a very much vague and conditional disclosure statement of Shri Patel which stands retracted later on. We hold in these facts the Assessing Officer and the CIT(A) have erred in making the above stated additions in assessee’s as its unaccounted income. The same stands deleted. Other arguments narrated in preceding paragraphs have been rendered infructuous
Penalty u/s 271AAA - Held that:- There is no dispute that this penalty sum of ₹ 14.80 lacs relates to addition of ₹ 1.48 crores made in the course of quantum proceedings as deleted in assessee’s appeal. That being the case, we hold that the impugned penalty has no legs to stand.
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2015 (10) TMI 2576 - ITAT DELHI
Transfer pricing adjustment - comparable selection - Held that:- Considering the judicial precedent in assessee’s own case the Ld. CIT DR stated that as far as the calculations are concerned the issue has to be verified by the TPO and in the face of the order of the Co-ordinate Bench as the issue has to go back it was submitted that he would have no objection if the calculations as considered by the TPO are taken on record and the departmental ground is allowed. The Ld. AR in reply submitted the let the TPO consider both the calculations and he would have no objection.
We have heard the rival submissions and perused the material available on record following the judicial precedent in the light of the submissions of the parties, we allow the departmental appeal as canvassed by the ld. CIT DR and not opposed by the Ld. AR and direct the TPO/AO to recompute the operating margins of the comparables retained by the TPO in line with the rates of depreciation charged by the assessee under the straight line method.
Applying the principle that only companies which are on similar standard can only be comparables Fortune Infotech Ltd. is excluded from the list of the comparables in view of the fact that it holds unique intangibles which position is not disputed by the Revenue.
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2015 (10) TMI 2575 - ITAT MUMBAI
Addition u/s 69A - addition has been made mainly on the basis of “Parvez Sir” appearing on the loose paper bearing No. 4 & 5 and cash statement dated 18.11.2006 - Held that:- AO had made the addition only on surmise that the impounded papers bearing No. 4 & 5 were containing entries which are dated 11.11.2006 whereas the assessee retired from the firm on 15.11.2006. Assessee in his statement before the Assessing Officer has categorically denied that he is not “Parvez Sir” as mentioned in the impounded papers in respect of Alliance Hotel. Apart from the above, the Assessing Officer did not have any other ground for arriving at the conclusion that the entry “Parvez Sir” is referring to assessee. It is undisputed fact that Alliance Hotel had carried out reconstruction work which was subsequently turned out to be illegal and was demolished. This fact was further corroborated by the order of the Brihyan Mumbai Mahanagar Palika bearing No. ACA/180/MOHA/ di. 19.03.2009, clearing mentioned that the said firm had constructed unauthorized construction of mezzanine floor and additional room with attached toilet in Alliance Hotel, 3rd floor, Empire Building. The fact of reconstruction of Alliance Hotel was accepted by Shri Kasan Ghaswala, being Managing Partner of the firm. In view of this it is absolutely evident that the Assessing Officer has made the addition on conjuncture and surmises without concrete evidence in his possession.
The Assessing Officer of Alliance Hotel did not make any separate addition of ₹ 40,00,000/-. In fact in the aforesaid computer sheet did not add this amount to the total income of Alliance Hotel. This sum of ₹ 1.08 Crores included the sum of ₹ 4000,000/-, added by Assessing Officer of the assessee to the total income of the assessee. Thus, Assessing Officer of Alliance Hotel was of the opinion that over and above ₹ 2,62,40,000/-, no further addition of ₹ 40,00,000/- is required to be made. In view of our discussion coupled with the fact that provisions of section 69A has no application on the act of assessee’s case therefore, the addition of ₹ 40,00,000/- made by Assessing Officer under section 69A of the Act was rightly directed to be deleted. Accordingly, both the additions of ₹ 2,62,40,000/- plus ₹ 40,00,000/-, aggregating to ₹ 3,02,40,000/-, were rightly directed to be deleted. This reasoned findings of the CIT(A) need not any interference from our side.
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2015 (10) TMI 2574 - ITAT DELHI
Validity of reassessment proceedings - Held that:- The assessee had furnished evidences, which have been thrown by the assessing officer without making any enquiry thereupon. We find that there is a vast difference between the cases, where there is substantial material to establish collusive arrangement and where the evidences furnished have been thrown without any enquiry.
Thus we find that the Assessing Officer has not applied his mind independently for recording the reason that the income of the assessee has escaped assessment. The record further reveals that identity of the creditors is not doubted and the evidences, mentioned above, furnished by assessee in support of share application money received by the assessee through banking channel have not been enquired into and commented upon by the authorities below to doubt the creditworthiness of the creditors and genuineness of the transactions. - Decided in favour of assessee
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2015 (10) TMI 2573 - BOMBAY HIGH COURT
Disallowance u/s 40(a)(ia) - TDS on subscription to e-magazines - Held that:- It is not the case of the Revenue that specific queries raised by the respondent-assessee were answered to by M/s Bloomberg as a part of the consideration of ₹ 4.34 lakhs. The information is made available to all subscribers to e-magazines/journal of M/s Bloomberg. Therefore, in no way the payments made to M/s. Bloomberg can be considered to be in the nature of any consultative/professional services rendered by Bloomberg to the respondents. In any view of the matter, the findings reached by both authorities that payments made to M/s. Bloomberg was made for subscription to e-magazines and therefore, there is no occasion to deduct tax under the Act cannot be said to be perverse or arbitrary.
Deemed dividend addition u/s 2(22) - Held that:- Issue arising herein stands covered against the Revenue and in favour of the respondent-assessee by the decision of this court in CIT v. Impact Containers P. Ltd [2014 (9) TMI 88 - BOMBAY HIGH COURT] as deeming provision of section 2(22)(e) of the Income-tax Act cannot be applied to an assessee company as the assessee-company is not a shareholder of the company that advanced loan to the assessee-company even though there was a common shareholder holding substantial interest on both the companies
Appeal admitted on question 1
Whether Tribunal was justified in allowing depreciation on amount paid by the assessee-company to Ashmavir Financial Consultants being amount paid by the assessee- company for acquiring the clientele of the business of Ashmavir Financial Consultants even though such payment made by the asses see-company could not be considered as purchase of goodwill or any commercial right from the said Ashmavir Financial Consultants ?
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2015 (10) TMI 2569 - ITAT MUMBAI
Assessment u/s 153A - Held that:- Factually speaking, in the present case the assessment for the year under consideration stood completed on the date of search. As perused the assessment order and find that there is nothing brought on record to suggest that any material was found during course of search in relation to the impugned addition. The entire discussion on this point in para-3 of the assessment order does not refer to any material found during the course of search leave alone any incriminating material. Therefore, in this factual background, no justification for the Assessing Officer to make the impugned addition in an assessment finalized under section 153A of the Act in the absence of incriminating material having not been found during the course of search, qua the impugned addition.
Thus set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition made as the same is purported to be beyond the scope and ambit of assessment envisaged under section 153A of the Act. - Decided in favour of assessee
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2015 (10) TMI 2567 - ITAT LUCKNOW
Addition in respect of purchase being amount debited to purchase account - Held that:- The amount being bad debts was required to be written off but inadvertently, the dealing clerk debited the amount to hide account to clear the debit balance instead of written off as bad debts. It was also contended by the CIT(A) that this position was explained to Assessing Officer but did not appreciate the same. The CIT(A) reexamined the claim of the assessee and having verified the fact that the excess payment of ₹ 58,343/- could not be recovered for earlier years or in the year under consideration, therefore, the same would be termed as trading loss. The mistake was made by the Clerk by debiting the same to hide purchase account instead of trading loss. The CIT(A) reexamined the claim of the assessee and having found the truth therein correctly accepted the claim and deleted the addition.
Addition on account of cash purchase of raw hide by applying the provision of Section 40A(3) - Held that:- As carefully examining the provision of Rule 6DD(e) of the Rules in which the payments for purchase of produces of animal husbandry ( including livestock, hides and skins) or doing or poultry forming are excluded from the clutches of payment in cash exceeding the specified limit. Therefore, we are of the view that since the payments were made for purchase of raw hides to the producer through the commission agent provision of Rule 40A(3) cannot be invoked as its falls within the exemption clause of Rules 6DD(e) of the Rule. 12. We, therefore, do not find any justification in the addition of ₹ 22,10,155/- made on account of purchases in cash by invoking in provision of Rule 40A(3) of the Act so far as the addition deleted by the CIT(A) are concerned, we find that the CIT(A) has mentioned in his order that the payments were made in cash on Sunday therefore, the same stands excluded as per Rule 6DD(j) of the Rule. We therefore, find no infirmity in the order of the CIT(A) deleting the addition
Sales effected to sister concern - difference in price - Held that:- In the light of the detailed explanation and was of the view whatever little difference in prices are there it has to be seen in the light of quantum of sale. The sale to M/s Popular was of very small quantity and that too single quality, whereas the sale to Treadstone is of much bigger quantity and also of varying qualities. Therefore one cannot compare to average rate of sale made to Treadstone with that of M/s Popular where only one quality in small lot was sold. AO made an addition having relied upon the observation of the special auditor in its report even without realizing that hides are not manufactured. Therefore, it is of different qualities and the rates of the hides depends upon the qualities. It is also fact that the hides are measured per diameter and different sizes of hides are of different rates, therefore, the rates of particular hides cannot be compared with other hide. We have carefully examined the order of the CIT(A) and we find that the CIT(A) has properly appreciated the facts of the case and adjudicated the issue in right perspective. Since no specific infirmity has been pointed out by the Ld. DR we confirm the order of the CIT(A).
Addition on account of excess consumption of chemical - Held that:- While adjudicating the issue, the CIT(A) took the cognizance of the report and restore the matter to the AO to determine the average cost of consumption of chemicals as per norms laid down by the institute. Undisputedly, the special auditor is not a technical expert, therefore, his observation cannot be made to be the sole basis for making addition. The Assessing Officer should have relied upon the report of the CLRI instead of following the report of the auditor.
Validity of assessment - assessee has contended that the assessment was not framed by the competent Officer as he has not issued a notice u/s 143(2) of the Act - Held that:- . Initially, the notice u/s 143(2) was issued within the prescribed period by Assessing Officer having jurisdiction over the assessee. Therefore, it cannot be said that the notice u/s 143(2) was not issued upon the assessee within the prescribed period. It is also evidence from the assessment order that during the course of assessment proceeding, jurisdiction was transferred from one officer to other officer and the subsequent officer has completed the assessment. Under these circumstances, we find no merit in the contention of the assessee that every time new Officer should issue a notice u/s 143(2) of the Act. Whenever jurisdiction is transferred from one Officer to other Officer the subsequent officer shall continue with the proceeding from the stage left by the earlier officer. There is no requirement of law to issue a notice u/s 143(2) every time by the new Officer, we therefore, find no merit in the contention of the assessee and we accordingly reject the same.
Disallowance made u/s 40(a)(ia) - Held that:- We restore the issue to the file of the AO with a direction to verify the facts and if the recipient has paid the taxes on this receipt no disallowance be made in the hands of the assessee in this regard.
Disallowance of pre paid expenses - Held that:- The assessee has credited the pre paid expenses account and debited it to the Freight and Cartage inward account. We, therefore, find no infirmity in the accounting system. Since there is no loss to Revenue, we find no merit in the disallowance
Addition of bad debts - Held that:- It is not clear from the orders of lower authorities that requisite conditions of Section 36(2) are fulfilled are not for claiming a bad debts. Therefore, we set aside the order of the CIT(A) and restore the matter to the file of the AO with a direction to examine the claim of bad debts in the light of facts whether the assessee has fulfilled the requisite conditions of section 36(2) of the Act.
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2015 (10) TMI 2566 - ITAT LUCKNOW
Interest subsidy - nature of receipt - revenue or capital subsidy - repayment of loan acquired for acquisition of capital assets - Held that:- In the case of Ponni Sugars and Chemicals Ltd. [2008 (9) TMI 14 - SUPREME COURT ] their lordship has held that the nature of subsidy is to be determined in respect of purpose for the subsidy is granted. The character of subsidy is to be determined with respect to subsidy is granted. In other words one has to apply the purpose test. The point of time as subsidy paid is not relevant. The source is immaterial if the object of the subsidy is to enable the assessee to run the business more profitably then the receipt is of revenue receipt. On the other hand, object of the assistance under the subsidy scheme is to enable the assessee to setup a new unit or to expend an existing unit then the receipt of the subsidy is a receipt in capital account. Their lordship has further held that after reversing the judgment of the High Court that main eligibility condition in the schemes was that the incentive had to be utilized for repayment of loans taken by the assessee to setup new units or for substantial expansion of an existing unit. Their lordship accordingly held that the subsidy received by the assessee was not in the course of trade but was of capital nature.
Carefully perused the orders of the Tribunal referred by the assessee and we find that in the case of ACIT Vs. Shree Cement Ltd [2011 (9) TMI 561 - ITAT JAIPUR] an identical fact that the interest subsidy was considered to be the capital subsidy. Therefore, in the light of aforesaid judgments, we are of the view that the CIT(A) has rightly treated the interest subsidies as a capital receipt as it was received only for repayment of loan acquired for acquisition of capital assets. Accordingly, the Revenue fails on this issue.
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2015 (10) TMI 2564 - ITAT LUCKNOW
Unexplained investment in immovable property u/s 69 - Held that:- For the provisions of Section 69 of the Act to apply it is necessary that the assessee should have made investments which were not recorded in the books of account. However, when no evidence, much less incriminating evidence, was found as a result of search to suggest that the assessee has made any payment over and above the consideration mentioned, no addition u/s 69 would arise. The Hon’ble Delhi High Court in the case of CIT Vs. Smt. Suraj Devi reported in (2010 (8) TMI 217 - Delhi High Court ) has held that the primary burden of proof in such cases is on the Revenue and it is only when such burden is discharged that it would be permissible to rely upon the valuation given by the Valuation Officer.
The Hon’ble Delhi High Court in the case of CIT Vs. Bajrang Lal Bansal reported in (2010 (8) TMI 65 - DELHI HIGH COURT ) has held that the primary burden to prove understatement or concealment of income was on the Revenue and it was only when such burden was discharged that it would be permissible to rely upon the valuation given by the DVO. Where there was no evidence found as a result of the search to suggest that the assessee had made any payment over and above the consideration mentioned in the return no addition on the basis of report of the DVO could be made.
The department has failed to prove understatement or concealment of income vis-a-vis purchase of immovable property. The AO has simply relied on the report of the DVO without applying his mind to the facts of the case and the surroundings circumstances. Addition u/s 69 deleted - Decided against revenue
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2015 (10) TMI 2563 - ITAT JAIPUR
Unexplained deposit - Held that:- In the present case assessee was called upon to explain the deposits made in her savings bank account to the extent of ₹ 15,00,000/-. The assessee was required to satisfactorily explain the source of the cash deposit in the savings bank account during the assessment year. For the purpose of explaining the source of cash deposit, the assessee has submitted that the amount was received by her on account of sale of her plot to one Shri Shakeel Khan vide documents dated 4.6.2007 . The sale consideration received by her was deposited by her in savings bank account after finalization of sale.
The assessee transferred this plot on the basis of Agreement to Sale, Will and General Power of Attorney. The General Power of Attorney had been registered in favour of Shri Shakeel Khan on 04.06.2007. The assessee’s case prima facie appears to be in favour of assessee that no one without any receipt of consideration would register the General Power of Attorney in favour of a stranger. But it is also undisputed fact that on verification from the side of Shri Shakeel Khan through statement recorded under section 131 has shown that he had denied having given ₹ 15,00,000/- against the sale consideration as claimed by the assessee. Thereafter Shri Shakeel Khan had sold this plot subdividing to third party on subsequent date through registered sale deed. There is no evidence about subsequent sale and what status has been shown in the registered sale deed of Shri Shakeel Khan. On verification of bank account, it is also clear that assessee has withdrawn money from the bank account in which cash of ₹ 15,00,000/- were deposited for purchase of residential house. It is also found from the copy of account that assessee had also taken loan from Punjab National Bank for construction of the house. All these facts are required to be re-examined by the AO which has not been considered at the time of assessment as well as by the ld. CIT (A), which shall explain the nature of transaction. Accordingly, we set aside this issue to the file of AO for fresh decision after affording opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes.
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2015 (10) TMI 2561 - ITAT LUCKNOW
Ingenuine trade creditors - assessee submitted that records of the trade creditors were not maintained during the year because assessee had not maintained any books of accounts due to applicability of provisions of section 44AE - Held that:- Assessee had failed to give names, addresses, confirmation, bank statement and transactions details of the creditors. In the absence of these details, the claim of the assessee regarding sundry creditors is not acceptable particularly when there was no such creditor in the year ended on 31.3.2005 and the nature of business is stated to be the same. The AO has also reproduced the cash flow statement on page 3 of his assessment order which shows that against the receipt of ₹ 30.55 lacs, the assessee has shown expenses of ₹ 12.64 lacs resulting in a surplus of ₹ 17.90 lacs against which the assesee has declared income of ₹ 2.10. lacs only u/s 44AE of the Act.
As per the provisions of section 44AE such income is taxable even if the assessee has not maintained books of accounts. When the assessee has shown a cash surplus of ₹ 17.92 lacs as against the declared income of ₹ 2.10 lacs such excess cash surplus has to be explained. If the assessee is claiming to have trade creditors to the tune of ₹ 9,80,000/-, he is bound to substantiate the same, if required to do so. Although the assessee is not required to maintain regular books of accounts, he is bound to furnish information regarding trade creditors if he has claimed their existence. Under these facts it cannot be accepted that the trade creditors shown by the assessee are genuine.
AO has made an addition on the basis of the statement of affairs and the cash flow statement drawn and submitted by the assessee himself and hence the assessee cannot rightfully claim that he is not obliged to substantiate the same by taking shelter under the provisions of section 44AE of the Act. - Decided against assessee.
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2015 (10) TMI 2560 - ITAT JAIPUR
Disallowance u/s 24(a) - treatment to rental income as ‘Income from house property’ instead of ‘Income from business and profession' - rental income earned from stock in trade - Held that:- More enquiry is required to be conducted by the AO to ascertain the true nature of assessee’s activities with a view to ascertain whether the letting was a business activity or was exploitation of property by the owner. In our view, for that purposes AO is required to make more enquiries like whether there are any other source of income besides giving the properties on rent or what is true intention of the assessee by letting the property or whether the properties were leased out interregnum period waiting actual the sale of the property with a view to mitigate the loss as would have been done by an ordinary property owner. We notice that the various portions of the property, like the ground floor, 1st floor, 6th floor and 7th floor were lying vacant as mentioned in the closing stock as on 31.3.2011. In our opinion, AO should also bear in mind the status of vacant floors in the property while deciding the issue.
Thus we restore the matter to the file of AO to decide afresh after affording reasonable opportunity of being heard to the assessee.
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2015 (10) TMI 2559 - ITAT JAIPUR
Revision u/s 263 - assessee is not entitled to claim deduction u/s 10AA of the Act on purely trading activity - Held that:- On perusal of order of the AO as well as submission filed before the AO during the assessment proceedings, it is clear that the AO has raised a specific query in relation to deduction claimed by the assessee u/s 10AA of the Act. In response, the assessee has filed the reply alongwith report u/s 10AA in form No. 56F. Thereafter, the AO has raised further enquiries and the assessee filed the detailed reply which is mentioned hereinabove. Therefore, it is clear that specific query was raised by the AO and on perusal of the details and reply submitted by the assessee, the AO allowed deduction u/s 10AA of the Act to the assessee. In this regard, it is clearly not a case where there is lack of enquiry by the AO. On similar facts in the case of another assessee in the case of M/s. Goenka Diamond and Jewels Ltd. [2012 (3) TMI 258 - ITAT JAIPUR] the Coordinate Bench of ITAT has taken a view that deduction u/s 10AA is available in respect of trading activity. - Decided in favour of assessee
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2015 (10) TMI 2558 - ITAT JAIPUR
Penalty U/s 271(1)(c) - undisclosed cash deposits - voluntary disclosure of income - Held that:- Surrender subject to non-initiating the penalty proceeding and prosecution does not absolve the assessee from liability of penalty. The material fact is that the assessee offered any explanation for concealment or furnishing of inaccurate particulars of income to be seen. Penalty proceeding and satisfaction of the Assessing Officer need not be recorded in a particular manner. Therefore, the assessee does not get any immunity from the penalty on the ground that appeal has been admitted before the Hon'ble High Court which also does not make issue before the Hon'ble High Court debatable. The fact is that the assessee had deposited cash from undisclosed source, which has not been explained by him before the lower authority. Thus we confirm the order of the ld CIT(A). - Decided against assessee.
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2015 (10) TMI 2557 - ITAT JAIPUR
Exemption under section 10BA to a trading and export firm which was not involved in manufacturing or production of eligible artistic articles - Held that:- As per sub-section (6) of section 10BA, the sub-section (8) and sub-section (1) of section 80IA also applicable in relation to the undertaking referred to in this section as they apply for the purpose of undertaking referred to in section 80IA. Section 10BA was inserted by the Finance Act, 2003 with effect from 1.4.2004 whereas section 80IA was inserted by the Finance Act, 1999 with effect from 1.4.2000. Originally section 80IA was inserted by the Finance Act, 1991 with effect from 1.4.1991. The languages of both the sections are same but the effective dates are different. Therefore, findings of Hon’ble Supreme Court in the case of Liberty India [2009 (8) TMI 63 - SUPREME COURT] squarely are applicable in case of deduction claimed by the assessee under section 10BA and credited duty draw back and DEPB in the Profit & Loss Account, but is not derived income from undertaking. Therefore, we reverse the order of ld. CIT (A) to that extent.
Hon’ble Supreme Court in the case of Topman Exports (2012 (2) TMI 100 - SUPREME COURT OF INDIA ) held that entire sale proceeds not to be treated as profits but only difference between sale value and face value of credit – DEPB credit chargeable as income under section 28(iiib) in year in which applied for against exports. Further, profit on transfer of credit chargeable under section 28(iiid) in year in which transferred.
Thus Assessing Officer is directed to recalculate the income accordingly.
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2015 (10) TMI 2556 - ITAT JAIPUR
Penalty levied u/s 271(1)(c) - Estimation of income on the basis of the material seized during the search conducted by the Excise authorities - Held that:- On the basis of admission made by the assessee, the income was estimated on the basis of past history of the assessee and that was based on the material found referred herein above . The addition made by the AO, though was challenged before ld. CIT (A) and before the ITAT, but the Tribunal sustained the addition on the basis of the material admitted by the assessee in the proceedings initiated by the Excise Department. In our view, the ld. Counsel for the assessee is not right in his contention that whenever an assessment is made on the basis of flat rate of profit on estimation basis, no inference can be made that the assessee has concealed the income. In the present case, the AO has estimated the income on the basis of the material seized during the search conducted by the Excise authorities and admission made by the assessee. Therefore it is not a case of mere estimation but was a case of deriving income based on undisclosed investment/purchases and undisclosed sales of the product. In our view, assessee has concealed the particulars of income and, therefore, the assessee is liable for imposition of penalty on account of concealed income. Therefore, we find no infirmity in the order of ld. CIT (A) which is confirmed. - Decided against assessee.
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