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Income Tax - Case Laws
Showing 141 to 160 of 9151 Records
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2015 (12) TMI 1690
Non-appearance on the last date of hearing - Held that:- Reason given by the learned counsel for the applicant in the Miscellaneous Application for nonappearance on the last date of hearing is that inadvertently the applicant wrongly noted the date of hearing in this case as 15.7.2015 instead of 15.6.2015. By the time, it came to the notice of the applicant that the date was wrongly noted, the appeal was dismissed for non prosecution. In this regard, an affidavit of the managing trustee of the applicant trust was placed on record.
Considering the explanation of the applicant, we are of the view that the applicant has been able to explain the sufficient cause for non appearance. Therefore, one more opportunity could be given to the applicant to argue the appeal on merits.
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2015 (12) TMI 1689
Addition u/s 40(a)(ia) - TDS u/s 194J - no tax had been deducted on processing charges paid to SBI for managing the consortium account of the FCI - Held that:- The processing charges were collected from the FCI by the SBI for processing of the loan involved. It never went to the assessee’s account. The assessee got net of the processing charges i.e., interest exclusively, there being no outflow of expenses. There was no occasion for the assessee to deduct TDS. It was on account of the accounting treatment that the AO was of the view that the TDS was required to be made on the processing charges. In such facts, the provisions of section 194J of the Act are definitely not attracted. The payment has been made as processing charges to the SBI for managing consortium account of FCI. It remains undisputed that the loan involved was processed by the SBI and not by the assessee bank. Therefore, the provisions of section 194J did not get attracted. No tax was required to be deducted on the processing charges paid to the SBI - Decided in favour of assessee.
TDS u/s 194J - non deduction of tds on clearing house charges/MICR charges paid - human intervention - Held that:- As per this system, the machine recognizes the numeric data printed with magnetic charged ink. This is done with the help of ultraviolet rays which scan the genuineness of cheques. The department has not been able to dispute that MICR clearance of cheques can be possible by a mechanized system only and not through human intervention, keeping in view the processing of bulk cheques. The assessee Bank did not make TDS, since the amount had been paid as share of expenditure incurred by the concerned Bank and apportion to the assessee Bank as its share of that expenditure. No tax was required to be deducted on the amount incurred towards MICR, as mere collection of a fee for use of a standard facility provided to all those who are willing to use it does not amount to fee received for technical services, as wrongly held by the AO. - Decided in favour of assessee.
Bari Brahmana Branch of the assessee as eligible for deduction u/s 36(1)(viia) - Held that:- The provisions of section 36(1)(viia) prescribe that in respect of any provision for bad and doubtful debts made by a Scheduled Bank, an amount not exceeding certain percentage, as specified by the Finance Acts for different assessment years, of aggregate average advances made by the Rural Branches of such Bank computed in the prescribed manner, deduction is to be allowed. In view of the above specific provisions of the Act, the definition of the “Rural Branch” as a place with population upto 10000, the department is not justified in placing reliance on the Digest of Statistics for 2002-03 published by the Govt. of J & K. It is trite that when the Act specifically deals with a particular situation, it is the concerned provisions of the Act, which have to be gone by and no outside material can be resorted to. In the present case, the Bari Brahamana Branch of the Bank is located at village Kartholi, where the population as per the last census was of 314. - Decided in favour of assessee.
100% depreciation on wooden partitions - Held that:-It is seen that depreciation was claimed on the wooden partitions, claiming that the expenditure was incurred on wooden partitions, as purely temporary erections, eligible for 100% depreciation as provided under the I.T.Act, 1961. A similar addition was deleted by the ld. CIT(A) for the assessment year 2002-03, which deletion was not challenged by the department. The wooden partitions, as remains undisputed, were erected in leasehold (tenanted) premises. The partitions had not provided any enduring advantage to the assessee. They were redesigned time and again, as per the assessee’s business requirement. It is also not the case of the department that these partitions became the property of the assessee at the end of the lease. Moreover, it has not been shown that they created any tangible assets, for which, a value could be attributable.- Decided in favour of assessee.
TDS on interest paid to Jammu Development Authority - Held that:- It has not been disputed that Jammu Development Authority stands incorporated by the J & K Development Act, 1970. C.B.D.T. Notification no.3489, dated 27.10.1970, issued in pursuance of the provisions of section 194A(3)(f) of the Act, provides that no tax was required to be deducted on interest on deposit paid to a Corporation incorporated under a State Act. The position is not any different so far as regards J.D.A. incorporated under the said State Act, too. Therefore, the provisions of section 194A of the Act are not applicable, due to which, the provisions of section 40(a)(ia) are also not attracted.- Decided in favour of assessee.
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2015 (12) TMI 1687
Unexplained share capital - survey u/s.133A - Held that:- Mere production of confirmation letter from Smt. Vimalamma is not sufficient in this case. She has given different statements at different stages. We do not know whether she is truthful and honest to disclose the correct fact. Being so, her statements are not reliable when surrounding and attending facts brought on record by the A.O indicate and reflect paper work and documentation. But genuineness, creditworthiness and identity are deeper, it shall require to be established by documents. Being so, the Commissioner of Income Tax (Appeals) has taken just cursory look at the entire things and deleted the addition which is improper. Hence, the matter is remitted back to the file of the Assessing Officer for conducting detailed inquiry and decide the issue afresh. The assessee has to file bank account details of Smt. Vimilamma to prove the transaction. This appeal of the Revenue is partly allowed for statistical purposes.
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2015 (12) TMI 1686
Bogus purchase - Held that:- Non receipt of goods from the supplier and that the invoices were only pro-forma invoices, the AO ought to have examined the suppliers to find out the truth or otherwise of the claim made by the Assessee. The mere presence of authorization letter to truck drivers would not in our view prove the case of the revenue. Each of the 4 invoices are accompanied by delivery challan and in three of the delivery challans i.e., except the delivery challan M/S.Narayani Traders dated 24.7.2007 for ₹ 1,02,000/- none of the delivery challan evidence acknowledgement of having taken delivery of goods. Since delivery of goods under delivery challan dated 24.7.2007 for ₹ 1,02,000 is acknowledged and since the AO has presumed that these goods were sold by the Assessee, we are of the view that 5% G.P. on the value of the purchases alone should be added, as pleaded by the learned counsel for the Assessee before us. In respect of the other three purchases the addition is directed to be deleted as there is no evidence of the purchases having actually been completed by the Assessee.
Undisclosed business income - addition by the AO by artificially calculating the figures of stock - Held that:- The survey was conducted on 10.3.2008. There was no excess quantity of stock found physically in the business premises of the Assessee. The stock statement given to the bank is dated 29.2.2008. This stock statement was obviously incorrect as it was not in tune with the physical stock with the Assessee. In such circumstances the plea of the Assessee that the statement of stock given to the bank showed inflated figures and was only for the purpose of availing credit facility from the bank stands established. Therefore the impugned addition ought to have been deleted by the CIT(A).
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2015 (12) TMI 1684
Rejection of books of accounts - Held that:- As the facts emerges that the assessee is a 100% exporter of the readymade garments and books of account are duly audited and supported by records. There is no adverse comments about the transactions, expenditure and stock maintenance, comparative stock inventory prepared by the assessee is based on the record and lower authorities have not pointed out any specific defects in the valuation of the closing stock and items. In our considered view, the books of account of the assessee cannot be rejected in such casual manner and summary manner. We find merit in the arguments of the ld. AR of the assessee that maintenance of day today production stock in the readymade garments trade is impossible to be maintained by the assessee. Adverse inference drawn about the expenses under the head stitching, embroidery, dying and printing being high have neither been justified ld AO nor any disproportionateness in comparative figure has been demonstrated. Thus in our view, the books of account of the assessee are not liable to be rejected. - Decided in favour of assessee.
Loss in Tushar guest house - Held that:- We are of the view that when the Department has accepted the loss in assessment year 2007-08 then there is no justification in refusing the accepted loss in assessment year 2008- 09. Consequently, this ground of the assessee is allowed in assessment year 2008-09.- Decided in favour of assessee.
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2015 (12) TMI 1682
Entitlment to carry forward the unabsorbed depreciation - whether such adjustment of non-granting of set off of such losses could be made in an order u/s 154? - Held that:- We find that the section 32(2) of the Act pursuant to the amendment in Finance Act 1996 curtailed the benefit of carry forward of unabsorbed depreciation loss to a period of 8 years and brought the said provision at par with the unabsorbed business losses. This provision was in force till Asst Year 2001-02. Again the Finance Act 2001 with effect from Asst Year 2002-03 amended Section 32(2) of the Act and restored back to the original version of the section as it stood prior to amendment by Finance Act 1996, allowing the benefit of carry forward of losses to an infinite period and treating the same different from that of unabsorbed business losses
The purposive and harmonious interpretation has to be taken keeping in view the intention of the amendment of section 32(2) of the Act by Finance Act 2001. We hold that while construing taxing statutes, rule of strict interpretation has to be applied, giving fair and reasonable construction to the language of the section without leaning to the side of the assessee or the revenue. But if the legislature fails to express clearly and the assessee becomes entitled for a benefit within the ambit of the section by the clear words used in the section, the benefit accruing to the assessee cannot be denied
We find that this particular issue has been the subject matter of huge debate and dispute and also gave rise to the creation of special bench by the tribunal to adjudicate this issue which goes to prove that the issue is highly debatable and hence cannot be the subject matter of rectification proceedings u/s 154 of the Act. In our opinion, what could be rectified u/s 154 of the Act is a mistake which must be obvious and patent and not something which can be established by a long drawn process of reasoning as has been held by the Hon’ble Supreme Court in the case of T.S.Balaram, ITO vs Volkart Bros (1971 (8) TMI 3 - SUPREME Court ).
Thus AO clearly erred in adjudicating this highly debatable issue under rectification proceedings u/s 154 of the Act which is not permissible and accordingly we quash the said order. - Decided in favour of assessee.
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2015 (12) TMI 1681
Capital gain accrued on sale of land as LTCG - land sold on 7th April, 2007 and which was acquired by Assessee in terms of perpetual lease deed dated 9th May, 1973 and acquired on freehold only on 25th January, 2007 - Held that:- Issue stands covered against the Revenue and in favour of the Assessee by the decision of CIT v. Frick India Ltd. [2014 (9) TMI 394 - DELHI HIGH COURT ] wherein held conversion of leasehold right into freehold by way of improving the title over the property would not affect the taxability of the gain from property, which is relatable to the period over which the property is held - Thus the asset, i.e. the tenancy rights were held for nearly 14 years and consideration received on surrender has been rightly treated as a long term capital gain – Decided against revenue.
Issue notice limited to question B, returnable on 22nd March, 2016 - Whether in the present facts and circumstances of the case the ITAT has erred in allowing indexation benefit on the borrowing cost when the leasehold right was cancelled on 29th March, 1998 and the same was restored back on 6th August, 2004?
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2015 (12) TMI 1680
Admissibility of claim for deduction on account of ‘Cess’and ‘Cess Surcharge’ - cessation of liability - whether the deduction claimed by the Assessee is liable to be denied on the ground that the Assessee had not recorded the liability in question in its books but had claimed the same in the computation of income filed along with the return - Held that:- AO has erroneously held that “had the assessments been completed before the decision of the Supreme Court, the Assessee could not have revised the return and his action for applying the provisions of Section 41(1) in AY 1990-91 would have been justified”. It is at once seen that following such principle would introduce arbitrariness in determining the income chargeable to tax in a particular year as it would be contingent on the date of making the assessment. The income of a relevant year has to be determined on the basis of the accounting principles and in accordance with the provisions of the Act. The computation of income chargeable to tax in a given assessment year is not dependent on the date on which the assessment for that year is completed. The events having a bearing on the income of an Assessee have to be accounted for in the year in which the events occur. Thus, the effect of cessation of liability by virtue of the decision of the Supreme Court in India Cement (1989 (10) TMI 53 - SUPREME Court ) would have to be assessed in AY 1990-91.
As AO is required to assess the income of the Assessee based on the accounting system followed as well as the provisions of the Act. The question whether a deduction is to be allowed is not contingent on whether the Assessee can reopen its books or withdraw its claim; it has to be allowed on the basis whether such deduction is admissible or not. Thus, the question whether a deduction was admissible on account of the liability to pay cess or cess charge would have to be determined on the basis whether such a liability had accrued at the material time.Thus, whether the Assessee could withdraw its claim by filing a revised return is wholly extraneous to the issue whether the deduction claimed by the Assessee was admissible under the provisions of the Act. - Decided against revenue
Admissibility of Investment Allowance under Section 32A - Held that:- Admittedly, the plant and machinery in question had not been commissioned prior to 31st March, 1987 and was, in fact, commissioned on 14th August, 1987 along with other units of the plant.
That even according to the Assessee, the coal mill plant was kept idle for want of software. This also indicates that notwithstanding the submissions made that such software was not essential, the Assessee also felt necessary to keep its plant idle for want of such software.Admittedly, the coal dustbin was an integral part of the plant which had not been installed. The fact that the coal mill could be operated without the coal bin does not lead to the conclusion that it was not an integral part of the plant.
The AO’s finding that the precalcinator was also acquired after 31st March, 1987 is not disputed. Therefore, the contention that the gases could be diverted directly to the precalcinator in absence of coal ESP is also of no assistance to the Assessee.
No test report, acceptance report, or any other material was produced by the Assessee, which would indicate that a trial run of the coal mill plant had been conducted or that the plant was operational. There was no material to indicate that the Assessee had accepted the installation of the plant in question.
The AO had noted that major machineries costing ₹ 2,11,24,780/- forming a part of the plant - Coal Mill ESP costing ₹ 45,62,536/-; Coal Mill & Auxiliaries costing ₹ 1,05,18,706/-; Pre-heating and Precalcinators costing ₹ 15,14,707/-; and Clinkering Including coal fixing costing ₹ 45,23,831/- – were acquired after 31st March 1987. Thus we are unable to hold that the concurrent findings of the AO, CIT(A) and the ITAT are not supported by reason. Accordingly, the second question is answered in favour of the Revenue and against the Assessee.
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2015 (12) TMI 1678
Addition in respect of export sale proceeds, bogus duty drawback, unsecured loan, sales outside books, advance received from customers and cash deposits - additions made essentially on the basis of the statement of Mr. Manoj Gupta, partner of the Assessee - ITAT deleted the addition - Held that:- CIT (A) undertook a detailed examination of the material to return a finding that none of the additions were called for. The documents placed by the Assessee on record were held sufficient to demonstrate that the amount received by the Assessee was indeed towards the export sale proceeds and no bogus duty drawback was received by the Assessee. Therefore the duty drawback received could not be treated as the Assessee’s unexplained income. In any event, the whether the duty drawback was wrongly received by the Assessee could be decided only when the DRI proceedings concluded. As far as the income tax proceedings were concerned, the duty drawback had to be treated as having been received in relation to export sales made by the Assessee. The materials with regard to each of the above additions were examined by the CIT (A) and found not to be justified.
In the impugned order, the ITAT has discussed the evidence in detail and has concurred with the above factual findings of the CIT (A). No substantial question of law arises. - Decided in favour of assessee.
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2015 (12) TMI 1677
Monetary limit - maintainability of appeal - Applicability of provision of Section 50C to depreciable assets covered under Section 50 - Held that:- Since the tax effect in this appeal is below the monetary limit as per Circular which has been issued with retrospective effect and as Mr.Dudhoria submits that he has no written instruction from the Department for withdrawing this appeal and as the said Circular No. 21 of 2015 dated 10th December, 2015, in view of Section 119(1) is binding on the departmental authority, the appeal is treated to be dismissed as withdrawn.
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2015 (12) TMI 1676
Valuation of the stock - Held that:- Admittedly, the assessee valued the closing stock in the earlier assessment years at the cost price. During the year under consideration the assessee valued the same at market price. Due to change of the method, the Assessing Officer disallowed the diminution in the value of shares to the extent of ₹ 75.90 lakhs. This Tribunal is of the considered opinion that as rightly submitted by the assessee, the assessee has option to value the shares either at cost price or at market price, therefore, the assessee opted to value the shares at market price. Since the market price is less than the cost price, the assessee cannot be faulted with and the CIT(A) has rightly allowed the claim of the assessee. This Tribunal do not find any reason to interfere with the order of the CIT(A) and accordingly the same is confirmed.
Computation of indexed cost for capital gain - Held that:- The Pune Bench of this Tribunal in the case of Kalyani Exports & Investments (P) Ltd. (2001 (1) TMI 240 - ITAT PUNE ) by majority view found that an asset cannot be acquired first as non-capital asset at one point of time and again as a capital asset at a different point of time. The Tribunal found that there can be one acquisition of asset for the first time irrespective of the character at that point of time. Therefore, by majority opinion it was found that what is relevant for the purpose of capital is the cost of acquisition and not the date at which it became the capital asset. Since by majority opinion, the Pune Bench of this Tribunal found that the cost of original acquisition has to be taken into consideration for calculating the cost inflation index and the CIT(A) has apparently followed the above order, we do not find any reason to interfere with the order of the CIT(A). Accordingly, the same is confirmed.
Disallowance of 2% of the dividend income earned - Held that:- Admittedly, Rule 8D of the Income-tax Rules is not applicable for the assessment year under consideration. Therefore, the expenditure for earning the exempted income has to be estimated on a reasonable basis. The CIT(A), after taking into consideration all the circumstances and facts available on record, estimated the expenditure at 2% of the dividend income. In those circumstances, this Tribunal do not find any reason to interfere with the order of the CIT(A). Accordingly the same is confirmed.
Disallowance of advertisement expenses - Held that:- The entire cost of publication is borne by the assessee’s client, therefore, the Assessing Officer found that there is no question of making any further payment towards publicity. The fact remains that the assessee made wide publicity by using additional pages in the magazine ‘The Integrated Share News’ which would have been otherwise used by M/s Alpha Systems Ltd for earning revenue. Since the assessee made use of the additional pages, it has to necessarily compensate M/s Alpha Systems Ltd. After wide publication, there was hike in the income of the assessee from ₹ 5,52,66,000/- to ₹ 12,18,65,000/- during the year under consideration. Therefore, as rightly found by the CIT(A), there was a nexus between the payment of advertisement charges and the business of the assessee. Hence, this Tribunal do not find any reason to interfere with the order of the CIT(A). Accordingly, the same is confirmed.
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2015 (12) TMI 1675
Exclusion of internet expenses from the export turnover treating it as incurred for delivery of software outside India for the purpose of computation of deduction under section 10A - Held that:- Following the case of CIT v M/s Tata Elxsi Ltd. & Others [2011 (8) TMI 782 - KARNATAKA HIGH COURT] we are inclined to accept the alternative contention of the assessee that if this expenditure is excluded from the export turnover, then the same should also be excluded from the total turnover for the purposes of computation of deduction under section 10A of the I.T. Act.
T.P. adjustment - Held that:- Assessee is a 100% captive service provider and is engaged in the business of providing software development services to it’s A.E., thus companies functionally dissimilar with tat of assessee need to be de-selected from final list of comparable.
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2015 (12) TMI 1674
Reopening of assessment - audit objection raised by Income Tax Revenue Audit Officer (ITRAO) relied upon - Held that:- The return of income was filed on 3.10.2003 showing income before set off of brought forward unabsorbed depreciation allowance at ₹ 6,12,417/- and after set off of brought forward unabsorbed depreciation allowance at Rs. Nil, the tax was levied. Thereafter an objection was raised by the ITRAO on 11.2.2005 which was replied by the Assessing Officer on 18.10.2005 and thereafter notice u/s. 148 was issued on 19.1.2007 i.e. just before expiry of four years. Which shows that callous act on the part of the Assessing Officer to issue notice just before the expiry of the four years, that too, when the entire material was before the Assessing Officer and all those facts were disclosed before the Assessing Officer i.e. on 3.10.2003 itself and there is no explanation on the part of the Assessing Officer as to why it take approximately four years to issue notice u/s. 148 of the Act and more particularly when there was no new tangible material in formation of belief.
We have found upon the entirety of the facts in the present case that there was a gross ‘omission’ or ‘lapse’ on the part of the Assessing Officer who was having material before him since 3.10.2003 but just before the expiry of four years, all of sudden notice u/s. 148 regarding reopening of assessment has been issued without any new tangible material.- Decided in favour of assessee.
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2015 (12) TMI 1673
TP adjustment of AMP expenditure - Held that:- Making adjustments to AMP expenses segregated from the ‘bundled transactions’ will only lead to the situation of making additions thereby increasing PLI unfairly. Regarding the fetters to the AO, we find that the assessee has considered the benchmarking of the AMP transactions in his TP studies. The TPO’s order is selfexplanatory regarding the rejection of the said comparables and thrusting of his five comparables. On these facts, we find that in the remanding proceedings, AO/TPO shall consider the same comparables when resorting to any search in this regard. The question of benchmarking other international transactions, which were accepted by the TPO and the AO should not arise in the remanding proceedings as they should not be given second chance merely because of the Hon’ble Delhi High Court judgment in the case of Sony Ericsson (2015 (3) TMI 580 - DELHI HIGH COURT ). However, TPO is free to re-use his data, which is already on record so far as benchmarking of the AMP transactions considering the rejection of the BLT, by the Delhi High Court. Further, TPO is directed to apply all the principles laid down by the Hon’ble Delhi High Court in the case of Maruti Suziki India Limited vs. CIT [2015 (12) TMI 634 - DELHI HIGH COURT] in the remand proceedings in the matters of the requirement of benchmarking the AMP transactions.
Disallowance of depreciation on the plant & machinery and building - Held that:- The issue was decided by the CIT (A) in favour of the assessee for the AY 2007-2008 and the Revenue has not filed any appeal against the said decision of the CIT (A) before the Tribunal. It is not clear, whether the Ld DR is aware of the reasons for not the filing of the appeal before the Tribunal for the AY 2007-2008. Considering the same, we are of the opinion, when the plant and machinery relating to the manufacturing activity is one and the same. The Department is accepted to follow that the set ‘principle of consistency’ in matters relating to the claim of depreciation on the plant & machinery, which is the part of the ‘block of assets’ of plant & machinery. Therefore, after verifying the records pertaining to the assessment year prior to the AY 2009- 2010, thus we are of the opinion that is the same is allowed in earlier years. We order accordingly.
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2015 (12) TMI 1672
Exemption under Sections 11 & 12 denied - Held that:- The following questions are framed for consideration:
(i) Whether ITAT was correct in law and on facts in setting aside the order passed by CIT(A) and thereby denying exemption to the Assessee under Sections 11 & 12 of the Income Tax Act?
(ii) Whether ITAT was correct in law and on facts in holding that the activities carried out by the Assessee fall under the 4th limb i.e, "the advancement of any other object of General Public Utility" of the definition of the term "charitable purpose" under Section 2(15) of the Act and not under the 2nd limb "education"?
(iii) Whether ITAT could re-examine the issue already decided by it vide order-dated 30.09.1980 in favour of Assessee for AY 1975-76 and 1976-77, without referring the same to the larger bench particularly when there is no change in the activities carried out by the Assessee throughout these years?
Learned counsel for the parties are permitted to file, within eight weeks, additional documents/papers which are part of the assessment record or were filed before the ITAT.
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2015 (12) TMI 1671
Penalty levied u/s 271(1)(c) - capital gain - Transfer exigible to tax by reference to Section 2(47)(v) read with Section 53-A of the Transfer of Property Act, 1882 - JDA entered by assessee - Held that:- On perusal of the order of the Hon’ble Punjab & Haryana High Court in the case of the assessee bunched alongwith the case of C.S Atwal [ 2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] we find that the High Court has decided the quantum issue in favour of the assessee by holding that the assessee was liable to pay tax on capital gain earned on only that portion of the land which had been duly transferred by way of Registered sale deed and consideration relating to which had been received by the assessee. With respect to the balance land, the High Court held that no transfer of the same had taken place even by virtue of the JDA and hence the assessee was not exigible to capital gain tax on the same.
In view of the above, since the addition made to the income of the assessee does not survive, the question of levy of penalty u/s 271(1)(c) does not arise at all. - Decided in favour of assessee.
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2015 (12) TMI 1667
Disallowance of carry forward of the expenditure to be set off against the future income of the assessee trust - Held that:- The income of charitable trusts is required to be computed on commercial principles. The concept of application of the income for the year in which the income has arisen is not found in Section 11(1)(a) of the Act. No limitation to the above effect is found in the language of the section. It merely requires application of the income that has arisen from the property held under trust. In this view of the matter, the principles relating to set off of losses, etc. is not of any relevance and therefore any excess application of income during the year can be regarded as application of the income of future years and can be adjusted. Therefore, in our view, the claim of the assessee for carry forward of excess application is in accordance with the judicial precedents on the issue and the same is allowable. See Commissioner of Income-Tax Versus Institute Of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY High Court ] - Decided in favour of assessee
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2015 (12) TMI 1666
Deferred compensation expenses on account of ESOP - allowable business expenses - Held that:- The deductibility of expenses on account of ESOP being discount under the ESOP has been decided in Biocon Limited v. DCIT [ 2014 (12) TMI 838 - ITAT BANGALORE] held that discount under ESOP is in the nature of employees cost and is hence deductible during the vesting period w.r.t. the market price of share at the time of grant of options to the employees. The Hon’ble Special Bench has held that the amount of discount claimed as deduction during the vesting period is required to be reversed in relation to the un-vesting/lapsing options at the appropriate time, however, an adjustment to the income is called for at the time of exercise of option by the amount of difference in the amount of discount calculated with reference to the market price at the time of grant of option and the market price at the time of exercise of option. No contrary decision is brought to our notice by the Revenue to controvert the decision of the Special Bench of Bangalore ITAT with respect to this issue.
Thus deduction being deferred employee compensation expense (ESOP) debited under the head employee cost as an allowable business expenditure under the head ‘profit and gains of business or profession’ incurred wholly and exclusively for the purposes of business of the assessee company. We further hold that the amount of discount claimed as deduction during the vesting period is required to be reversed in relation to the un-vesting/lapsing of options at the appropriate time. However, an adjustment to the income is called for at the time of exercise of option by the amount of difference in the amount of discount calculated with reference the market price at the time of grant of option and the market price at the time of exercise of option - Decided in favour of assessee
Disallowance u/s 14A read with Rule 8D - Held that:- Since the relevant A.Y. is 2008-09, the Hon’ble Bombay High Court in Godrej & Boyce Mfg. Co. Ltd. (2010 (8) TMI 77 - BOMBAY HIGH COURT) has already held that the Rule 8D is applicable for A.Y. 2008-09 and hence in our considered view, the investment of ₹ 4,61,37,00,000/- made by the assessee company in its subsidiary namely M/s India Infoline Investment Services Ltd. of ₹ 4,61,37,00,000/- will be included in the average investment for the purpose of computation of disallowance u/s 14A r.w.r 8D(2)(iii) of the Income Tax Rules, 1962 and hence to that extent, the contention of the Revenue is accepted while the assessee company has demonstrated that the investments in the share capital of India Infoline Investment Services Limited on 4th February 2008 has been made out of proceeds of fresh issue of shares of the assessee company in January 2008, thus no disallowance under Rule 8D(2)(ii) of Income Tax Rules, 1962 read with Section 14A of the Act is justified.
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2015 (12) TMI 1665
Entitlement for deduction u/s. 54 in respect of one house only - Capital gains exemption in case of investment in a residential house property - Held that:- The comprehensive reading of circular 1 of 2015 made it clear that the exemption of LTCG is also available if investment made in more than 1 residential house.
In view of the judgment in CIT vs. Chand M. Makhija [2013 (12) TMI 1525 - KARNATAKA HIGH COURT] and circular 1 of 2015 of CBDT, the assessee was not liable for LTCG against flat no.101 and the addition made by the AO which was sustained by the CIT(A) is deleted.
Since ground no.1 of appeal has been allowed by us and holding of 2 flat are not to be treated as separate investment for allowing deduction u/s 54 of the Act, hence, ground no.2 has become infructuous.
Addition of amount received on account of alternate accommodation - Held that:- CIT(A) while dealing with this addition has held that the assessee has not been able to prove any nexus between the rent received of ₹ 15,50,000/- and expenses claimed of ₹ 6,36,280/- and further held that in absence of such nexus, the expenses so claimed cannot be allowed, however, the same was sustained to the extent of ₹ 6,36,280/-. Assessee drawn our attention to page 11 of the development agreement wherein it has been clearly mentioned that the assessee is entitled to ₹ 15,50,000/- in temporary alternative accommodation to be acquired by the owners through their own efforts and their own choice.
Since this compensation of ₹ 15,50,000/- has been shown as income under the head “Income from other Sources”, therefore, the assessee is entitled for deduction of expenses incurred for earning this income.We accordingly, direct the AO to allow the deduction of expenses claimed, on account of (i) rent paid ₹ 5,94,000/- (ii) Brokerage ₹ 27,280/- and (iii) Rent paid brokerage ₹ 15,000/-
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2015 (12) TMI 1664
TPA - selection of comparable - Held that:- Motilal Oswal Investment Advisors Pvt Ltd is held as a “merchant banker and investment banker”, which is functionally not similar to that of function of non-binding advisory services. Therefore, after hearing both the parties in this regard, we are of the opinion that Motilal Oswal Investment Advisors Pvt Ltd is not a good comparable in this case. Accordingly, AO is directed to exclude the same from the comparables.
IDFC company is engaged in rendering of services as Portfolio Manager, whose functions are intimately different from that of the functions of non-binding advisory services rendered by the assessee to its AEs.
The services rendered by the ICRA are more akin to ITeS activities and not the non-binding advisory services. We find merit in the argument of the Ld Counsel for the assessee. Further, Ld Counsel also brought our attention to the fact that the TPO / AO collected some information u/s 133(6) of the Act and made use of the same at the back of the assessee without supplying copies to the assessee. We find merit in the arguments of the Ld Counsel for the assessee that the said information shares with the assessee before they are made use by the TPO / AO. For this limited purpose, we remand this issue to the file of the AO / TPO to re-examine the functions of the said company in depth after supplying the information so collected by them u/s 133(6) of the Act.
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