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Income Tax - Case Laws
Showing 161 to 180 of 9151 Records
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2015 (12) TMI 1663
Unexplained jewelry - excess jewellery found in a search - explanation offered by the assessee that if the credit is given for 500 grams for each family members in terms of instruction no.1916 dated 11-05-1994 which governs the seizure, during the course of search and seizure operations source for 1300 grams can be treated as explained - Held that:- Now we deal with the applicability of CBDT instruction in terms of which credit of 1300 grams of jewellery was claimed by the assessee. It is the duty of the assessee to bring on record the family members with supporting evidence and also prove that other family members i.e. father of assessee had not claimed the same relief. We find from material on record that it is father of the assessee, who offered the explanation in support of source of jewellery found. We also find that father of the assessee and assessee are residing jointly. Mere reliance on the case laws does not come to the rescue of the assessee without bringing any supporting material on record in support of legal proposition. Therefore, in absence of any material on record, we are not able to grant any relief on this ground.
Regarding the ancestral jewellery of 500 grams the assessee had not produced any evidence proving the existence of ancestral jewellery of 500 grams therefore, it cannot be treated as explained. Regarding the balance jewellery of 400 grams in the hands of the assessee’s wife Smt.Saritha Bai, the order of learned CIT(A) is well reasoned since the wealth tax return of the assessee’s wife was filed after conclusion of search & seizure operation, it cannot be treated as explained. - Decided against assessee
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2015 (12) TMI 1662
Issues Involved:
1. Inclusion of R-Systems International Ltd. as a comparable.
2. Inclusion of Eclerx Services Limited as a comparable.
3. Inclusion of Infosys BPO Limited as a comparable.
4. Inclusion of TCS e-serve International Limited as a comparable.
Issue-wise Detailed Analysis:
1. Inclusion of R-Systems International Ltd. as a Comparable:
During the course of hearing, the assessee argued for including R-Systems International Ltd. as a comparable. The TPO rejected this company on the ground that it was engaged in software development, while the DRP rejected it due to its different financial year. The assessee submitted the margins for the period April 2009 to March 2010, based on calendar year data available in the public domain, which were not considered by the lower authorities. The Tribunal referenced the Delhi Bench decision in MERCER CONSULTING (INDIA) PVT. LTD. and the Mumbai Bench decision in AEGIS LTD., which allowed the inclusion of such data. The Tribunal remitted the issue to the TPO/AO to include R-Systems International Ltd. in the list of comparables after re-computing the margins for the financial year under consideration based on the audited accounts, taking segmental data of the BPO segment into consideration. This ground was allowed for statistical purposes.
2. Inclusion of Eclerx Services Limited as a Comparable:
The assessee contended that Eclerx Services Limited was functionally different, providing high-end KPO services, while the assessee was engaged in routine BPO services. The Tribunal noted that the Delhi High Court in Rampgreen Solutions Pvt. Ltd. and the Tribunal in the assessee's own case for A.Y. 2009-10 had held that KPO service providers are not comparable to BPO service providers. The Tribunal directed the exclusion of Eclerx Services Limited from the list of comparables, following the precedent set by the Delhi High Court and the Tribunal's earlier decisions.
3. Inclusion of Infosys BPO Limited as a Comparable:
The assessee argued that Infosys BPO Limited was functionally different and had a significantly higher turnover, driven by its brand value and entrepreneurial nature. The Tribunal referenced multiple judgments, including the Delhi High Court decision in Agnity India Technologies Pvt Ltd., which upheld the exclusion of Infosys BPO due to functional differences and its large turnover. The Tribunal agreed with the assessee's arguments and directed the exclusion of Infosys BPO Limited from the list of comparables.
4. Inclusion of TCS e-serve International Limited as a Comparable:
The assessee argued that TCS e-serve International Limited was not comparable due to its transactions with Citigroup entities, functional differences, and an exceptional year of operations. The Tribunal noted that TCS e-serve was part of a large group and provided various technical services, making it functionally distinct from the assessee's BPO services. The Tribunal referenced the decision in Techbooks International Pvt. Ltd., which excluded TCS e-serve due to the absence of segmental data for its software development services. The Tribunal directed the AO to exclude TCS e-serve International Limited from the list of comparables.
Other Grounds:
Ground Nos. 1 to 6, 9, 12, 16, 17, 18 & 19, and 20 & 21 were dismissed as no specific arguments were made by the Ld. Counsel or were deemed consequential.
Conclusion:
The appeal of the assessee was partly allowed, with specific directions to exclude certain companies from the list of comparables and to reconsider the inclusion of R-Systems International Ltd. based on re-computed margins. The order was pronounced in the open court on 9th December 2015.
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2015 (12) TMI 1660
TPA - selection of comparable - Held that:- As gone through the Master Services Agreement between the assessee and its AE, namely, Tech Enterprises Inc., a Fairfax based incorporation having its registered office at Fairfax, Virginia, USA. This Agreement is valid for the year under consideration as well, whose copy is available at page 263 onwards of the paper book. As per this Agreement, the assessee specializes in provision of technical services, such as, data conversion, web-page construction, data entry/key boarding and software development. The assessee under this Agreement has undertaken to render ‘Included services’ which have been described in Exhibit-A. The services so availed by the assessee’s AE are ultimately given to end-customers. Thus companies dissimilar with that of assessee need to be excluded from final list of comparability.
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2015 (12) TMI 1659
Interest on time deposits paid to members under Section 194A - assessee is a Co-operative bank - Held that:- The Ministry of Finance, Government of India vide Circular No.19/2015 in F.No.142/14/2015- TPL, has clarified that the Co-operative Banks need not deduct tax at source under Section 194A of the Act. - Decided in favour of assessee.
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2015 (12) TMI 1657
Addition u/s 68 - reopening of assessment - Held that:- Nowhere in the assessment order the ld. Assessing Officer has brought into existence any material to show that the company Victory Software P. Ltd. is a non-existing and a fictitious entity. It is, therefore, incorrect to arrive at a conclusion that the money received by the assessee by way of share application from Victory Software is bogus.
We also hold that the assessee has discharged its burden u/s 68 as it had filed the enormous details in respect of M/s Victory Software P. Ltd. before the ld. Assessing Officer for him to investigate upon in detail. The ld. Assessing Officer has failed to establish that the details filed by the assessee are wrong. He has also failed to produce sufficient material on record to prove that the receipt of money by the assessee from M/s Victory Software P. Ltd. is accommodation entries from the entry operator S.K. Jain Group. In the above circumstances, we allow grounds filed by the assessee and held that reopening by the ld. Assessing Officer was met valid. - Decided in favour of assessee.
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2015 (12) TMI 1653
Assessment u/s 153C - Held that:- No hesitation in holding that the A.O. of the person searched has not recorded any satisfaction that the income relatable to the seized material belongs to the assessees herein. Therefore, the assessments are quashed.
Rectification of mistake - Held that:- Since the very basis i.e., the assessments under section 143(3) read with section 153C of the I.T. Act have been quashed, the order passed by the A.O. u/s. 154 has no legs to stand. Therefore, the appeals against the order of the CIT(A) confirming the order of the A.O. under section 154 are also quashed as having no basis.
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2015 (12) TMI 1651
Addition u/s. 14A read with Rule 8D(2)(ii)- Held that:- As the assessee-company has suo moto worked out the interest disallowance of borrowing which were subject matter of investment in shares which were generating exempt income and hence the working given by the assessee is done on the basis of Auditor’s report of statutory auditor who carried out the work of audit. No qualifying has been made by the auditor while submitting Form 3CD report u/s. 44AB of the Act. Also as the assessee-company’s own capital is much more than the investment made by the assessee-company in the shares/mutual funds which were generating exempt income and therefore disallowance was not correct considering the jurisdictional High Court decisions in the case of Reliance Utilities and Power Ltd. (2009 (1) TMI 4 - BOMBAY HIGH COURT) and also taking note of the facts available on record and also taking note of his predecessor CIT(A)’s orders which have been referred by the assessee-company - Decided in favour of assessee
Allowance of foreign travelling expenses of wife of Chairman of the assessee-company - Held that:- CIT(A) after considering the submissions of the assessee that Mrs. Patsy P. Mistry was a Director of the assessee-company and wife of the Chairman of the Company Mr. Pallonji S. Mistry travelled abroad. Mr. pallonji s. Mistry is 80 years as on 31.3.2008 when Mrs. Patsy P. Mistry, Director of the accompanied him and considering the age of the Chairman of the assessee-company and also his medical necessity of health, his wife accompanied him during his tour abroad. Learned CIT(A) was of correct view that same was completely justified and warranted to accompany the Chairman hence the journey undertaken by Mr. Patsy Mistry cannot be said to be unjustified and not for business purposes when the chairman of the company was so warranted for the assessee’s business and operations. Learned CIT(A) disagreed with the Assessing Officer’s finding and deleted the addition made by Assessing Officer. - Decided in favour of assessee
Disallowance of Employees’ Contribution to Provident Fund/ESIC - payments made after the due dates - Held that:- The assessee-company has paid the contribution to PF and ESIC after the due date but within the grace period. Learned CIT(A) was rightly held that the payment made within the grace period by following the Judgement of Hon'ble Supreme Court in the case of CIT Vs. Alom Extrusions Ltd. (2009 (11) TMI 27 - SUPREME COURT ). Therefore, we are of the considered view that the findings of learned CIT(A) on this issue do not require any infirmity - Decided in favour of assessee
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2015 (12) TMI 1650
Undisclosed investment addition u/s 69 - Held that:- We have noticed that the basis for making the impugned addition is the loose sheet found during the course of search conducted in the Bharat Shah Group. A very important point is that the said loose paper does not contain the name of the assessee, it was an undated document and does not bear signature of anyone. Another important point is that both the purchaser as well as seller has denied the contents of the said document.
AO has tried to decipher the information found in the said document by interpreting that “Sh” represents Cash payment and “Q” represents cheque payment. We notice that the assessing officer has not brought any material on record to corroborate his interpretation. A perusal of the document would show that the letter written after 45 looks like “C” and hence it is capable to different interpretation also as against the interpretation given by the AO as “Lakhs”. The assessing officer has only tried to corroborate his interpretation by comparing the aggregate amount noted in the loose sheet with the stamp duty valuation. However, as pointed out by the assessee, the alleged cash payment together with the purchase value declared by the assessee far exceeds the stamp duty valuation and hence such kind of corroboration is not acceptable.
Even otherwise, the stamp duty valuation stated to be adopted by sec 50C is only a legal fiction applicable to a seller of property and it does not automatically support the conclusion that the difference between the stamp duty valuation and the actual sale consideration as passed hands. Though the AO has interpreted that the cheque payment made by the assessee was ₹ 2.85 crores, the said interpretation has been proved to be wrong by the co-owners, since they have actually paid a sum of ₹ 3.85 crores by way of cheque. Further, the assessee has stated that the payments have been made in 2004, 2010 and 2011, which fact also does not support the interpretation given by the assessing officer. Under these set of facts, we are of the view that the Ld CIT(A) was justified in observing that the assessing officer has made the impugned addition on surmises and conjectures. The decision rendered by Hon’ble jurisdictional High Court in the case of Lata Mangeshkar (1973 (6) TMI 13 - BOMBAY High Court ) supports the case of the assessee. - Decided in favour of assessee
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2015 (12) TMI 1649
Disallowance of business expenditure - treating it as Work-in progress ('WIP') - Held that:- We find that rather the case of the assessee is on better footing as the assessee was carrying out different projects though at the same location, hence it was not a case of single project. Even otherwise the resultant income from the project is a loss even after capitalisation of expenditure by the AO to work in progress. Hence, there is no tax implication, so far as the year under consideration is concerned and the loss otherwise also has to be carried forward. Under such circumstances, it cannot be said that the assessee has adopted the above stated accounting method to avoid tax on income for the year under consideration. The assessee, thus, has followed the accounting method which has been consistently followed by it and which is as per the recognized principles of accounting. In view of the above discussion of the matter and following the above decision of the Tribunal for the sake of consistency, this issue is decided in favour of the assessee.
Chargeability of interest income AO called upon the assessee to show cause as to why the interest income earned on bank F.Ds should not be treated as "Income from Other Sources" - Held that:- The decision of Hon'ble Bombay High Court in the case of “CIT vs. Lok Holdings” (2008 (1) TMI 365 - BOMBAY HIGH COURT) is squarely applicable. In that case the assessee was engaged in development of properties. Advance from customers intending to purchase flats was deposited with the banks in the course of business. The interest income was held to be assessable as business income and not as income from other sources. Following the decision of Hon'ble Bombay High Court in the case of “Lok Holdings” (Supra) the interest income earned from temporary deposits pending their utilization out of customer advances on the booking of flats related to the project of the assessee is assessable as business income. The A.O. is accordingly directed to assess the same as business income. This ground of appeal is also allowed.
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2015 (12) TMI 1648
Entitled to the exemption u/s 80P(2)(a)(i) - Held that:- There is no dispute that the assessee is a co-operative credit society registered under the Karnataka State Cooperative Societies Acct, 1959. The income earned by the assessee during the year is from the activity of providing credit facilities to its members. Therefore, the case of the assessee is covered by the judgment of the Hon’ble jurisdictional High Court in the case of CIT Vs Sri Biluru Gurubasava Pattina Sahakari Sangh Niyamit, Supra [2015 (1) TMI 821 - KARNATAKA HIGH COURT ] wherein held that 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. - Decided in favour of assessee
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2015 (12) TMI 1647
Assessment of income of the assessee trust - interest income - Held that:- Interest income was not liable to be taxed as business and profession in the hands of the assessee trust, being a revocable trust. However, such income is to be taxed in the hands of contributors.
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2015 (12) TMI 1642
Registration under Section 12AA(a) denied - application filed in the Form 10A - Held that:- The assessee had filed application in Form No. 10A alongwith required details. The society is registered from 1998 under the Societies Registration Act. The copy of the society are charitable and activity are genuine. At the time of registration of Trust/Institution, the ld CIT is to be judged the object of the Trust, which should be charitable in nature as the assessee is imparting the education programme through college and school education programme and he also provided various charitable services to the society as per object of the Trust. The case laws relied by the assessee are squarely applicable in the case of the assessee, accordingly, order of the ld CIT is set aside the directed to grant registration from the financial year 2012-13 as per application filed in the Form 10A. - Decided in favour of assessee.
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2015 (12) TMI 1631
Adjournment seeked - Held that:- In this case, only after the hearing of the admission commenced and after spending sometime on it, an adjournment is sought to find out the fate of the earlier orders of the Tribunal followed by the impugned order.
We make it clear that in case the Revenue does not do the necessary exercise before the appeal comes up for admission and only seek time to carry out the above exercise at time the appeal reaches hearing of admission, no time would be granted. We would be constrained to dismiss the appeal in view of the Revenue not being able to point out the fate of the earlier orders passed by the Tribunal which has merely been followed by the impugned order of the Tribunal.
The learned Counsel for the Revenue is directed to serve a copy of this order on the Principal Chief Commissioner of the Income Tax, Pune. This would enable him to bring it to the notice of all his Officers, so that the above exercise is carried out at the time of filing an appeal or at least before the appeal comes up for admission.
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2015 (12) TMI 1629
Interest subsidy granted under TUF scheme - whether revenue or capital in nature - Held that:- We do not find any merit in the order passed by the lower authorities treating the subsidy so received as revenue receipts. Accordingly, the AO is directed to treat the subsidiary in all the years under consideration are capital in nature. See Sahney Steel and Press Works Ltd. vs CIT (1997 (9) TMI 3 - SUPREME Court) - Decided in favor of assessee.
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2015 (12) TMI 1622
Deduction u/s 80IB(10) - Held that:- The Tribunal in the case of assessee for assessment year 2007-08 [2013 (2) TMI 289 - ITAT MUMBAI] identically, deliberated upon the issue and finally held that the assessee is eligible for deduction u/s 80IB(10) of the Act. No contrary facts were brought to our notice by either side in respect of development project carried out in Dharavi Slum Area. Following the aforesaid decision of the Tribunal wherein, the circular of the Board Regulation no. 33(10) of DC rules for Greater Mumbai, 1991, read with provision of notification no. PB-4391/4080(A)/UD-II(ROP)dt. 03/06/1992 along with conditions therein, Notification no. 2 of 2011, dated 05/01/2011, issued by CBDT, decision from Hon’ble Apex Court in CIT vs. Alom Extrusion Ltd.(2009 (11) TMI 27 - SUPREME COURT) and Allied Motors P. Ltd. vs. CIT (1997 (3) TMI 9 - SUPREME Court), were considered, thus, we find no infirmity, on this issue, in the order of the Ld.CIT(A). It is affirmed. - Decided in favour of assessee
Eligible for deduction u/s 80 IB(10) - Disallowance to rent expenses - assessee paid rent to close relatives and did not produced the details of the premises taken on rent, purpose of utilization of the premises for business purposes and genuineness of the transaction - Held that:- Even if, the said expenses are disallowed, the assessee is eligible for deduction u/s 80 IB(10) on enhanced income for the project as the said expenses worked laid against the income from the eligible project by placing reliance upon the decision in Liberty India Ltd. (2009 (8) TMI 63 - SUPREME COURT) wherein held that the devices adopted to reduced on inflate the profits of eligible business has to be rejected while calculating deduction u/s 80IB.
As that during assessment proceeding the details of payment of rent of ₹ 1,20,00/- is to Shri. Amit Ringshia and Shri. Aditya Ringshia, with respect to Andheri office premises and ₹ 1,80,000/- to Shri. K.G. Ringshia (HUF) for our office premises in Vile-Parle were filed by the assessee. The payment of rent was duly authenticated by relevant documents. No Contrary decision or facts were brought to our notice by either side and more specifically the Revenue. Thus, we find on infirmity in the conclusion drawn by the Ld. CIT (A) in deleting the addition .- Decided in favour of assessee
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2015 (12) TMI 1621
TDS u/s 194C - contract of supply of material - nature of Composite contract - Held that:- In the present case we have three contracts, one for supply of goods/equipment, another for erection and another for civil engineering works. The dispute in the present case also is with respect to the deduction of tax with respect to the contract pertaining to supply of goods. The examination of the general terms and conditions of the contract here also proves that after the bid offered by the contractor is accepted and the assessee decides to award the contract to the successful bidder, a divisible contract covering the entire scope of the partial/total turnkey has to be entered into with the successful bidder.
Upon careful consideration of the facts and circumstances of the present case, in our considered opinion, the same is identical to the issue dealt with in the case of CIT vs. Karnataka Power Transmission Corporation Ltd. [2012 (6) TMI 204 - Karnataka High Court ]. Learned D.R. could not point out any feature in the contract in the present appeal whether distinguish it from the facts mentioned in above appeal dealt by the Hon’ble High Court. Hence following the above decision, we hold that the contract of supply of material is a separate distinct contract and on which no deduction is permissible u/s 194C.
We further find that in the present case the assessee is not liable to deduct tax at source on the supply portion as per Explanation (iv) (e) to section 194C. Section 194C mandates that a person responsible for paying any sum for carrying out any work in pursuance of the contract between the contractor and a specified person shall at the time of credit of such sum with the account of the creditor or at the time of payment thereof deduct a specified sums as incometax.
The Hon’ble jurisdictional High Court in the case of CIT vs. Glenmark Pharmaceutical Ltd. [ 2010 (3) TMI 289 - BOMBAY HIGH COURT ] has clearly expounded that if the property in the product manufactured passes to the customer upon delivery and the material that was required was not sourced from the customer/purchaser but was independently obtained by the manufacturer from a person other than customer, the contract entered into by the assessee was not a contract for carrying on work within the meaning of section 194C.Considered from this point of view also the assessee is not liable for deduction of tax at source on the equipment good supply contract. - Decided in favour of assessee
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2015 (12) TMI 1620
Transfer pricing adjustment - services at arm's length - MAM selection - TNMM or CUP - Held that:- We are of the considered opinion that the agreement is an intrinsic one and that it is wrong to split the same and hold that some services are at arm’s length and some services are not.
CIT(A) accepted TNMM to arrive at the ALP, in respect of certain services received by the assessee and in the same breath, has rejected the analysis undertaken by the assessee under the TNMM in respect of other services. We are informed by the assessee that, the authorities have accepted TNMM as MAM in the subsequent years. The Revenue has to be consistent in its approach. In our view, the TPO analysis of the assessee using TNMM as the MAM has to be accepted. When there is an agreement for services and certain services out of a bundle of services are undisputedly rendered, the entire agreement has to be viewed as a whole. Whether the services have actually resulted in a benefit to the assessee or not is not material. The conclusion of the Ld.TPO that the services have not resulted in any benefit and that no independent entity would have made such a payment is in the realm of surmises and conjunctures and not backed by any material. Thus the ALP determined by the assessee company is accepted and the TPO adjustment is deleted.
It is stated at the Bar that, for A.Y. 2010-11, the DRP has accepted the ALP determined by the assessee, in respect of GVP services, VIPFS services and Ticketing Hub Services.
Thus we are of the considered opinion that with regard to PSM and RIS segments, even if cost plus method is taken as the MAM, the markup charged by the AEs is within the +/-5% range, allowed under second proviso to section 92C of the Indian Income Tax Act, 1961, these services can be considered to be at arm’s length.
Regarding GVP services, VIPFS services and Ticketing Hub Services, the service charges paid by the Assessee, represents the actual cost incurred by the AEs, without any markup. Hence these can be considered to be at arm’s length. Thus we are of the opinion that the services received by the assessee should be considered to be arm’s length. - Decided in favour of assessee.
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2015 (12) TMI 1618
Depreciation claimed on motor car - disallowance on the alleged ground that vehicles were not registered in the name of the company - Held that:- Following the decision of the Hon’ble Supreme Court in the case of ICDS Ltd (2013 (1) TMI 344 - SUPREME COURT ) we hold that the assessee is entitled for claim of depreciation on the vehicles used by it even though it has been purchased in the name of the Director. We, therefore, set aside the findings of the Ld. CIT(A) and direct the AO to allow the claim of depreciation - Decided in favour of assessee.
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2015 (12) TMI 1617
Penalty u/s.271(1)(c) - Held that:- Show cause notice u/s. 274 of the Act is defective as it does not spell out the grounds on which the penalty is sought to be imposed. Following the decision in the case of CIT Vs. Manjunatha Cotton & Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT ] we hold that the orders imposing penalty in all the assessment years have to be held as invalid and consequently penalty imposed is cancelled.
For the reasons given above, we hold that levy of penalty in the present case cannot be sustained - Decided in favour of assessee
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2015 (12) TMI 1616
Tax on the ‘capital gain’ on a ‘transfer’ - transfer of an Agricultural land to non- agriculturists - Held that:- Entire amount of sale consideration was refunded and original documents with respect to this property were also received back by the assessee. The perusal of the above clearly shows that transfer was illegal in the eyes of law from the very beginning and therefore, it can be clearly said that the transfer was void ab initio. No legal rights had accrued to the parties on execution of sale deed, as the same was void ab initio in the eyes of law. No transfer of the impugned land had taken place, and therefore, no amount of ‘capital gain’ was taxable as per law.
Under the given facts, we should keep in mind the concept of ‘Real Income’ theory. According to this theory, an assessee can be made to pay tax only and to the extent of income actually earned by him, and not beyond that. In the facts before us, the accepted factual and legal position is that no valid transfer (of the impugned land) had taken place as per law, and therefore, no question can arise of earning of ‘capital gain’ and taxing the same under the income tax law. It is further noted by us that it is settled law that an assessee can resile from its return if it is found at any later stage that the income offered therein was not taxable in accordance with law. Immediate reference can be made on the judgment of in the case of Bharat General Reinsurance(1970 (12) TMI 5 - DELHI High Court), which was subsequently approved in the case of Rampur Distillery and Chemical Co Ltd vs CIT (1990 (11) TMI 3 - SUPREME Court ) - Decided in favour of assessee
Claim of long term loss in respect of investment in shares disallowed - Held that:- We agree with the view taken by the lower authorities that a loss or gain can arise u/s 45 of the Income Tax Act 1961 only from “transfer” of a capital asset, effected in the previous year. Since, no transfer of the aforesaid shares was effected during the previous year, therefore, no claim of loss could have been allowed to the assessee, as per law. The contention of the Ld. Counsel that provision for decline in value of investment has been made because of mandatory requirement of Accounting Standard-13, is also not sustainable for the reason that accounting entries are not determinative for the taxability or otherwise of the transactions of the assessee. It is settled law that taxability of the transactions of the assessee has to be determined in view of the provisions of the Income Tax Act, and not on the basis of entries made in the books of accounts by the assessee. Therefore, keeping in view all the facts and circumstances of the case, we find that the said loss was not allowable - Decided against assessee
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