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Income Tax - Case Laws
Showing 301 to 320 of 9151 Records
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2015 (12) TMI 1331
When tax payable and when assessee deemed in default - powers under Sections 220(3) & 220(6) - validity of CBDT Instruction - Held that:- It is incorrect to state that DBDT Instruction No.1914, dated 02.12.1993 supersedes all previous instructions. Although instruction No.1914 specifically states that it is in supersession of earlier instructions, the position obtaining after the decision of the case in Volvoline Cummins Limited Vs. DCIT (2008 (5) TMI 20 - HIGH COURT OF DELHI ) is not altered at all. This is so, the DBDT Instruction No.95, dated 21.08.1969 was issued with the consent of the informal consultative committee held on 13th May, 1969 formed under the business rules of the Parliament, which even now holds the field.
Hence, we are of the opinion that the tendency of making high pitched assessments by the Assessing Officer is not unknown and it may result in serious prejudice to the assessee and miscarriage of justice & sometimes may even result into insolvency or closure of the business if such power was to be exercised only in a pro-revenue manner. Hence, the powers under Sections 220(3) & 220(6) of IT Act have to be exercised in accordance with the letter and spirit of CBDT Instruction No.95 dated 21.08.1969, which is binding on all the assessing authorities created under the Act.
Therefore, the impugned order passed by the respondent without considering CBDT Instruction No.95, dated 21.08.1969 is against the principles laid down in the judgments stated supra. In the absence of any specific bar to provide an opportunity in the provision, the respondent ought to have provided an opportunity to get absolute stay till the disposal of the appeal as well as in consideration of the reasons to treat the assessee as 'not being in default', in order to avoid interest and penalty. Whereas in this case the Assessing Officer had failed to provide an opportunity of being heard prior to disposal of the application under Section 220(3) for stay. Hence, the impugned orders are liable to be set aside.
The respondent is directed to consider the petition filed by the petitioner under Section 220(3) and 220(6) of IT Act, in conformity with CBDT Instruction No.95, dated 21.08.1969, by providing an opportunity of being heard to the petitioner, and pass orders in accordance with law, as early as possible.
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2015 (12) TMI 1330
Addition u/s 68 - assessment u/s 153A - CIT(A) deleted the addition - Held that:- Hon'ble Supreme Court in the case of Lovely Exports Pvt. Ltd. [2008 (1) TMI 575 - SUPREME COURT OF INDIA] has clearly laid down the law that once the assessee has given the complete details and the information of the investors who have made investments in the share capital of the company and proved identify then no addition can be made in the hands of the assessee company and in respect of such investments the department should proceed against the individual investor. In the case in hand also, the requisite details, proof, confirmation, evidences etc. are produced. The ratio of the decision of the Hon'ble Supreme Court is directly applicable on the facts of the case. In view of the above discussion of the matter, we do not find any infirmity in the factual finding given by the CIT(A) after duly appreciation of evidence on the file and the same is accordingly upheld. - Decided against revenue
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2015 (12) TMI 1329
Deduction under Section 80-IB - revision u/s 263 - Held that:- AO is bound to record reasons one way or other for the conclusion reached in the assessment order. The Assessing Officer is expected to discuss the claim of the assessee under Section 80-IB of the Act and record his own reason either for allowing or disallowing the claim of the assessee. Since this exercise has not been done by the Assessing Officer, this Tribunal is of the considered opinion that the order of the Assessing Officer is not only erroneous but also prejudicial to the interests of Revenue. Therefore, this Tribunal do not find any reason to interfere with the order of the Commissioner. However, the Assessing Officer, while passing consequential order, shall consider the decision of this Tribunal in the assessee's own case for assessment year 2010-11 in I.T.A. No.1174/Mds/2015 dated 29.09.2015 and other judgments, if any, brought to the notice of the Assessing Officer by the assessee in the course of proceeding. In other words, the Assessing Officer shall independently examine the issue afresh in accordance with law and thereafter decide the same after giving reasonable opportunity to the assessee.
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2015 (12) TMI 1328
TPA - Method of determination of arm's length price (ALP) - Transfer Pricing Officer confused himself in characterization of the assessee's functions as captive, routine, full-fledged distributor at one place and routine distributor in another place. The Transfer Pricing Officer is also characterizing the assessee as an agent in one place and captive distributor and agent in another place. - Held that:- In view of the misunderstanding of the facts by the Transfer Pricing Officer and Dispute Resolution Panel, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the Dispute Resolution Panel once again on the basis of the agreement entered into between the assessee and Roca Sanitaria S.A. Spain
TDS u/s 194C - disallowance can be made under Section 40(a)(ia) of the Act for short deduction of tax’ - Held that:- Section 40(a)(ia) does not envisage a situation where there was short deduction / lesser deduction as in case of section 201(1A) of the Act. There is an obvious omission to include short deduction / lesser deduction in section 40(a)(ia) of the Act. Therefore, this Tribunal is of the considered opinion that in case of short / lesser deduction of tax, the entire expenditure whose genuineness was not doubted by the assessing officer, cannot be disallowed. Accordingly, the orders of lower authorities are set side and the entire disallowance is deleted - Decided in favour of assessee.
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2015 (12) TMI 1327
Disallowance of director’s remuneration - non deduction of TDS - Held that:- Original minutes of Board meeting were shown during the course of hearing wherein it was decided for increasing remuneration of director, Mr. N. C. Dalal from ₹ 20,000/- to ₹ 1,00,000/- per month w.e.f. 1.4.2007, along with ledger of director’s remuneration, form no.16 for certificate u/s 203 of the Act for TDS from income chargeable under the head salaries along with proof of deposit of TDS on salary for increased amount of remuneration effective from 1.4.2007 which was paid on 22.12.2007. All these evidences have not been controverted by ld. DR. As such looking to the above facts, we are of the view that there was a genuine increase in the remuneration of the director effective from first April, 2007 and, therefore, ld. CIT(A) was not justified in upholding the action of Assessing Officer. We set aside the order of CIT(A) on this ground and delete the impugned addition - Decided in favour of assessee.
Disallowance of depreciation on the good-will - Held that:- As decided in assess's own case [2014 (12) TMI 1059 - ITAT AHMEDABAD ] it is now well settled that the goodwill is an intangible asset entitled to depreciation. The quantification of goodwill in this case seems to be reasonable. The assessee has filed a copy of working of the valuation of the goodwill as given by M/s.Anmol Sekhri & Associates, Mumbai, valuer, and a copy of which has been filed in the compilation before the Tribunal. A perusal of the said valuation report justifies the reasonableness of the valuation of the goodwill as claimed by the assessee. In these facts of the case, we hold that the claim of the assessee for depreciation on goodwill was justified - Decided in favour of assessee.
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2015 (12) TMI 1326
Disallowance u/s 14A - Held that:- We find from the facts of the instant case that the Learned AO has not examined the accounts of the assessee and there is no satisfaction recorded by the Learned AO about the correctness of the claim of the assessee and without the same, he invoked Rule 8D of IT Rules. While rejecting the claim of assessee with regard to expenditure in relation to exempt income, the Learned AO has to indicate cogent reasons for the same. We find that the Learned AO had straight away embarked upon computing disallowance under Rule 8D(2) of the Rules. Hence we hold that the action of the Learned AO in directly embarking on Rule 8D(2) of the Rules is not appreciated and hence no disallowance u/s 14A of the Act could be made in the facts of the instant case.
We find lot of force in the argument of the Learned AR that computation of disallowance under Rule 8D can be used only for computation of income under normal provisions of the Act and not for book profits u/s 115JB of the Act. Unless an item is debited in the profit and loss account, the same cannot be the subject matter of addition to book profits under clause (f) of Explanation to section 115JB of the Act. The disallowance made u/s 14A of the Act read with Rule 8D is only artificial disallowance and obviously the same is not debited in the profit and loss account and the same cannot be imported into clause (f) of Explanation to Section 115JB of the Act.
Rural Employment Cess and Primary Education Cess - whether would come under the ambit of provisions of section 43B ? - Held that:- In the facts of the instant case, the assessee had commenced its operations from Asst Year 2003-04 and in the very first year, this issue was taken up for disallowance and the same was deleted by the Learned CIT-A and the revenue chose not to file an appeal before this tribunal. The next scrutiny assessment was made for Asst Year 2006-07 wherein no addition on this account was made. This goes to prove that the revenue had already accepted to the contentions of the assessee on the impugned issue and satisfied that the cess collected from customers have been duly remitted in the succeeding year in accordance with the provisions of The West Bengal Rural Employment and Production Act, 1976 and The West Bengal Primary Education Act, 1973 and was also satisfied with the manner of treatment of the same by the assessee for tax purposes. Having done so, there is no good reason for the revenue to shift its stand in the assessment year under appeal. We hold that the cess collected from customers in the sale invoices shall not be chargeable to tax in the year of collection and accordingly, the grounds raised by the assessee in this regard are allowed.
Entitlement to additional depreciation - whether coal mining is production of coal or not? - Held that:- This issue is squarely covered by the decision of the Jurisdictional High Court in the case of CIT vs G.S.Atwal & Co [ 2001 (2) TMI 32 - CALCUTTA High Court ] if the assessee owns the machinery for which investment allowance is claimed, and such machinery is used for production then the section applies, it does not matter if the use for production is made by the lessee or only in one industrial part of the assessee’s business undertaking. Accordingly, the transport business of the assessee does not tilt the question one way or the other - Decided in favour of assessee
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2015 (12) TMI 1325
Penalty u/s 271(1)(c) - Held that:- There is no dispute that quantum addition has been deleted by the Tribunal, therefore, in our humble opinion, the ld. Commissioner of Income tax (Appeals) is justified in deleting the penalty. Our view further finds support from the decision and the ratio laid down in CIT vs S.P Viz Construction company (1988 (10) TMI 24 - PATNA High Court ) and K.C. Builders vs ACIT (2004 (1) TMI 7 - SUPREME Court ). We are of the view that where the penalty for concealment or furnishing inaccurate particulars was levied and after deleting the quantum addition, there remains no basis at all for levying the penalty. Ordinarily, penalty cannot stand in itself if the addition made in the assessment itself is set aside or cancelled by the superior authority/Court. The penalty cannot stand by itself because false result may be produced by the falsity of one or more of the constituent items in the return. The word ‘inaccurate particulars’ would cover falsity in the final figure and also the constituent elements or items. They simply would mean inaccurate in some specific or definite respect whether in the constituent or subordinate items of income or the end result. Concealment or furnishing inaccurate particulars implies some deliberate act on the part of the assessee in withholding the true facts from the authorities. Since, the basis of levying penalty remains no more in existence, after deletion of quantum addition, therefore, from this angle, the stand of the ld. Commissioner of Income tax (Appeals) is justified. - Decided against revenue
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2015 (12) TMI 1324
Addition on account of unverifiable construction expenses - CIT(A) deleted the addition - Held that:- The assessee had shown the additional income in the returns furnished by him and his son and the AO had not recorded any finding that there was any evidence of any unexplained expenditure/ investment or any income which was not covered in the additional income disclosed by the assessee. CIT (A) has rightly held that there was no justification for making ad hoc disallowance of 10% out of the expenditure claimed to have been incurred by the assessee in construction business. We agree with the Ld. CIT(A) that whether the assessee was a builder/developer or a civil contractor is not relevant and only the issue is estimation of reasonable net profit of the assessee's business. In any case, section 44AD of the Act is not applicable in the assessee’s case because the turnover of the business exceeded ₹ 40,00,000/-. When the assessee is a builder/developer and is engaged in construction activities, and the assessee had shown a net profit rate of 10% of his gross receipt, whereas the rate of 8% is given in section 44AD for civil contractor is to be taken only as a benchmark for the purposes of estimation of net profit in such cases. Therefore, we concur with the ld CIT(A) that the ad hoc disallowance was not warranted and we find no merits in this ground of appeal of the department. In view of the above, we hold that the ld. CIT (A) rightly deleted the addition - Decided against revenue
Addition on account of cash expenditure exceeding ₹ 20,000/- - CIT(A) deleted the addition - Held that:- We find that the payments were made in cash to stamp vendors who acted as the agents of the Government for selling stamp papers, hence, such payments were covered under the exception provided in Rule 6DD(b). We further find that these payments were duly vouched by the physical existence of stamp papers in question which were actually utilized for purpose of acquiring the land in question. Therefore, we uphold the order of the ld. CIT (A) deleting the addition of ₹ 1 lakh made by the AO. Decided against revenue
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2015 (12) TMI 1323
Clean development mechanism (CDM) receipts - whether are not subsidies but trading receipt? - Held that:- Commissioner of Income Tax (Appeals) allowed the claim of the assessee holding that clean development mechanism would constitute capital receipt in the hands of the assessee following the decision of the co-ordinate Bench in assessee's own case for the assessment year 2009-10. Thus we hold that carbon credit receipts are capital in nature and thus, we uphold the order of the Commissioner of Income Tax (Appeals) and reject the grounds raised by the Revenue on this issue. - Decided in favour of assessee.
Foreign commission payment - TDS liability u/s 195 - whether made only for the purpose of managing sales of the assessee outside India by means of engaging agents and as per the provisions of section 9(1)(vii) of the Act any payment made for the purpose of rendering managerial services outside India shall be considered only as payment made for fees for technical services? - Held that:- Supreme Court in the case of GE India Technology Centre Private Limited Vs CIT (2010 (9) TMI 7 - SUPREME COURT OF INDIA) wherein held that the assessee is not liable to deduct TDS when nonresident provided service outside India. It was held that when the services are provided outside India, the commission payments made to non-resident cannot be treated as income deemed to accrue or arise in India, therefore the provisions of section 195 has no application. It is clear that in order to invoke the provisions of Section 195 of the Income tax Act, the income should be chargeable to tax in India. Here, the commission payments to non-resident in the case of the appellant are not chargeable to tax in India and therefore the provisions of Section 195 are not applicable. In the case of appellant, the facts are similar and the decision of the Hon'ble Supreme Court and also the jurisdictional Tribunal decision referred to above is squarely applicable. Hence, the Assessing Officer is correctly directed to delete the addition made u/s 40(a)(ia} for non-deduction of TDS in respect of commission payments to non-resident.- Decided in favour of assessee.
Entitlement for deduction under section 80IA on windmills - Held that:- All the business undertakings are wind mills and they have claimed the benefit of deduction under Section 80IA of the Income Tax Act for the assessment years in question and for the subsequent years as well. Having exercised their option and their losses have been set off already against other income of the business enterprise, the assessee in this appeal falls within the parameters of Section 80IA of the Income Tax Act. See Velayudhasamy Spinning Mills (2010 (3) TMI 860 - Madras High Court ) - Decided in favour of the assessee
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2015 (12) TMI 1322
Confession of additional income during the course of search and seizure and survey operations - Held that:- No hesitation in holding that no addition can be made merely on the basis of surrender without existence of any corroborative evidence found against the assesee. We would also like to state that the assessee had retracted by filing a written submission before the DIT, Inv.-I, New Delhi on 28.11.2006 which is 6 days after the search. There was sufficient time with the Investigation Wing to carry on the investigation and to collect the evidence against the retraction. However, records show that nothing has been done in this regard. In such a situation, the retraction of the assessee cannot be said to be invalid in absence of any incriminating documents. In view of these facts, we uphold the order of the CIT(A) stating no addition can be made merely on the basis of surrender without existence of any corroborative evidence found against the assesee - Decided in favour of assessee.
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2015 (12) TMI 1292
Sale of flats - assessable as an adventure in the nature of trade OR long term capital gain - Held that:- The Court finds that merely because the Assessee approached the builder for constructing the flats on the portion apart from the already constructed portion, would not make the transaction an 'adventure in the nature of trade.' All that the Assessee had received from the sale of the flats was a residential flat of the value of ₹ 5,32,855 and ₹ 4 lakhs in cash as a result of the agreement entered into with the builder.
As explained by this Court in Shanti Banerjee (deceased) by LRs (2015 (11) TMI 1213 - DELHI HIGH COURT ) where the construction and sale of the flats do not change the character of the asset and there was no material to show that the Assessee ever had the intention to exploit the plot as a commercial venture, the transaction cannot be characterized as ‘an adventure in the nature of trade’ leading to the resultant receipt as business income in her hand. The fact that the Assessee got a flat on the rear second floor apart from the original constructed portion on the ground floor made no difference to the nature of the transaction. The AO, the CIT (A) and the ITAT have proceeded on an erroneous legal premise that the agreement entered into by the Assessee with the builder and the consequent sale of the flats by the builder on behalf of the Assessee was an adventure in the nature of the trade. - Decided in favour of the Assessee and against the Revenue
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2015 (12) TMI 1291
Addition u/s 68 - Held that:- As far as the present case is concerned, the Assessee has indeed discharged its onus of proving the creditworthiness and genuineness of the lender (TIL). There was no requirement in law for the Assessee to prove the genuineness and credit worthiness of the sub-creditor, which is in this case was TCL. - Decided in favour of the Assessee
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2015 (12) TMI 1290
Compensation received from the German publisher - Honorarium receipt - Character of the receipt in the hands of the Assessee - whether a capital receipt not chargeable to tax under Income Tax Act? - Held that:- Certain facts of the present case are not disputed by the Revenue. First, that the Assessee was a journalist by profession and was appointed as the foreign correspondent in India of a German news magazine Der Spiegel. The second is that the German publisher was paying a lumpsum amount upon termination as sign off compensation for performance of authorship/professional services for a continuous period of 23 years". Thirdly, the letter written by the publisher acknowledges that the compensation was being paid "Due to the loss of his work place and in consideration of his long time association". These factors have a bearing on the character of the receipt in the hands of the Assessee. Indeed this was compensation for loss of an income-generating asset.
The Court concurs with the conclusion of the CIT (A) that the sum paid to the Assessee was "to compensate for the abrupt loss of source of income" and that the termination of contract had fatally injured the appellant's only source of income for the last 20 years." The mere fact that the Assessee was free to earn through other sources would not make a difference to this position. Recently this court in Khanna and Annadhanam v. Commissioner of Income Tax [2013 (1) TMI 681 - DELHI HIGH COURT] was considering the nature of a receipt in the hands of the Assessee, a firm of Chartered Accountants for the termination of an arrangement by which it was receiving referral work from abroad. After discussing the decisions of the Supreme Court in Kettlewell Bullen and Co. Ltd. (supra) and Oberoi Hotel Pvt. Ltd. v. CIT [1999 (3) TMI 2 - SUPREME Court ] wherein held as that if the receipt represents compensation for the loss of a source of income, it would be capital and it matters little that the assessee continues to be in receipt of income from its other similar operations. - Decided in favour of the Assessee
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2015 (12) TMI 1289
Recovery proceedings - assessee prayed for refund of the amount already recovered by the department by attaching the petitioner's bank account - deduction under section 80IB(10) disallowed - Held that:- For whatever reason if the Assessing Officer was of the opinion that such deduction was not allowable, such findings could have been recorded. However, in the present case, we prima facie find that after rejecting the assessee's revised valuation of the closing stock, the Assessing Officer simultaneously proceeded to reject the claim for deduction under section 80IB(10) of the Act interalia on the ground that only to avoid minimum alternative tax liability for the later years, such claim is being advanced. In isolation, perhaps this assessment of the Assessing Officer of the situation may have been justified but when the Assessing Officer rejected the very valuation of the closing stock, we wonder whether it was even open for her to process the assessee's claim for deduction under section 80IB(10) of the Act. Prima facie, these aspects are incongruent. We make it however, clear that these are purely prima facie observations and certainly not meant to disturb or dislodge the order of assessment or in any manner influence the appellate proceedings.
Nevertheless, we cannot escape the conclusion that the petitioner has made out a strong prima facie case against the order of assessment in which as noted, the sole addition is on the basis of rejection of petitioner's claim for deduction under section 80IB(10) of the Act.
Pending appeal before the Commissioner(Appeals) therefore, there shall be stay against further recovery of the tax demand arising out of such order of assessment. However, amount of ₹ 20.05 lacs (rounded off) already recovered by the department would not be returned at this stage, and would be adjusted eventually upon the Commissioner (Appeals) deciding the appeal of the petitioner.
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2015 (12) TMI 1288
Disallowance u/s 14A - Held that:- It is agreed between the parties that the issue raised herein stand concluded against the Revenue by the decision of this Court in the case "Godrej & Boyce Mfg.Co.Ltd. VS. DCIT, (2010 (8) TMI 77 - BOMBAY HIGH COURT ) - Decided against revenue
Claim of rebate under Section 88E - ITAT deleted the addition - Held that:- Revenue does not dispute the fact that for the Assessment year 2006-07 the claim under Section 88E made by the respondent-assessee was on the similar basis as adopted in the subject Assessment Year and the claim was accepted by the Revenue. In view of the decision of the Tribunal in KBII Securities Pvt. Ltd. (2012 (7) TMI 930 - ITAT MUMBAI) which has been merely followed by the impugned order as well as the Revenue accepting an identical basis adopted in the earlier Assessment Year, coupled with the fact that even before us the Revenue is unable to point out to why and how the method of allocation of expenses made by the respondent-assessee is incorrect and/or bad.- Decided against revenue
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2015 (12) TMI 1287
Unexplained investments u/s. 69 - ITAT deleted the addition - Held that:- Upon appreciation of the evidence on record and finds no reason to take a different view. In the opinion of this court, having regard to the evidence which has come on record, which reveals that there is an agreement to sell executed between the assessee and the sellers, which shows the price of the plots of land in question to be a much higher figure than the documented price and the fact that the sellers have stated that they have received higher amounts by way of on-money and have also shown receipt of such amount in their incometax returns, the circumstances do raise a suspicion. However, as held by the Supreme Court in Commissioner of Incometax v. Daulatram Rawatmull, (1964 (3) TMI 14 - SUPREME Court ), even if circumstances raise a suspicion, suspicion cannot take the place of evidence.
In the light of the above discussion, it is evident that the conclusion arrived at by the Tribunal is based upon findings of fact recorded by it upon appreciation of the evidence on record. The learned counsel for the appellant, despite strenuous efforts, is not in a position to point out any perversity in the findings recorded by the Tribunal. Under the circumstances, in the absence of any material to the contrary being brought to the notice of the court so as to dislodge the findings of fact recorded by the Tribunal, the impugned order of the Tribunal being based upon concurrent findings of fact recorded after appreciating the evidence on record, does not give rise to any question of law - Decided in favour of assessee.
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2015 (12) TMI 1286
TDS u/s 195 - Disallowance u/s 40(a)(ia) - payment of commission to a agent outside India - CIT(A) deleted the addition - Held that:- In the present case, the asseessee produced all the evidences relating to the transactions it had with the party who procured the above said goods for food for Oil programme and all the payments were routed through valid channels by way of Banks where it is shown that the expenditure by way of commission incurred in relation to business, having relevant material on record and accepting the same as genuine transactions, but, however, basing on a report which is not part of the assessment, disallowing the claim is unjustified. With reference to the Circular No:786 dt:07-02-2000 issued by the CBDT it is very clear that no tax is deductible u/s 195 of Act on export commission and related charges payable to a non-resident for services rendered outside India is an allowable expenditure.
Therefore, in the light of observations of above, we deem it proper to hold that the payment of commission to a agent outside India is a business expenditure is allowable and we confirm the order passed by the Ld. CIT(A).- Decided in favour of assessee.
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2015 (12) TMI 1285
Reopening of assessment - higher rate of depreciation claimed - Held that:- We are of the view that the AO reopened the assessment after having accepted the contention of the assessee that higher rate of depreciation is allowable. Again reopening the assessment on same set of facts is not justified. The assessee also filed the statement claiming depreciation along with the return and basing on which the depreciation was allowed in the original assessment. It could not be said that the AO did not apply his mind and there was nondisclosure of facts by the assessee. The AO completed the assessment proceedings in the year 2008 and again a notice under section 148 was issued in the year 2011, wherein he did not find anything new material against the assessee to reopen the assessment but he only basing on the facts of the original assessment, he issued the said notice for reassessment and passed the reassessment changing only the rates of depreciation available to the said claims. Therefore, we are of the view that in this present case the AO on mere change of opinion only issued the said notice much less for any tangible material found during these three years. By respectfully following the ratio or principle laid down by the Hon’ble Supreme Court in the case of CIT vs. Kelvinator of India India, 320 ITR 561 [2010 (1) TMI 11 - SUPREME COURT OF INDIA ] we are of the view that no tangible materials are found by the AO to reopen the assessment for A.Y. 2006-07, which was originally concluded in the year 2008 and we find no justification in reopening the assessment. Accordingly, the revised additional ground raised by the assessee is allowed. - Decided against revenue.
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2015 (12) TMI 1284
Post Search assessment - double additions - Benefit of the surrender made by the assessee - Held that:- In this case assessee has prepared a cash flow statement from the books of accounts of the assessee and shown that sources of the amount of ₹ 25,00,000/- taken to Bhuveneshwar on 5.8.2008 and ₹ 45,00,000/- cash seized on 22.8.208 are out of the amount available with the assessee on account of surrender made. As per the detailed breakup of the entries passed by the assessee on account of surrender shows that an amount of ₹ 45,00,000/- Seized by Income tax department and ₹ 25,00,000/- being cash sent to Bhuvenshwar shown as 'cash to BBS' as per page no 6 of the paper book.. As per page 2 of the paper book, Cash flow statement shows that as on 6.8.2008 assessee was having the cash balance of ₹ 1,50,85,236/- and out of which on 31.7.2008 an amount of ₹ 6,14,597/- was spent on Infoage, on 5.8.2008 ₹ 25,00,000/- utilized for sending for cash to Bhuvneshwar and on 22.8.2008 cash was seized by Income tax department of ₹ 45,00,000/-. As per that statement assessee still has the balance of ₹ 74,70,639/- as at 22.8.2008 which is taken in to the books of accounts. This cash flow statement is not controverted by the AO as well as CIT(A) when it was specifically submitted that same is made based on the entries made in the cash book immediately after the surrender of ₹ 2,47,85,236/-. It is surprising that AO wants to tax the surrender amount as well as its application which definitely amounts to double addition in the hands of the assessee specially when the amounts are recorded in the books of accounts and there is no evidence that same is not available with the assessee
Merely on the basis of time period in absence of any contrary material assets/ cash available with the assessee in its books cannot be disbelieved. We reject the contention of the revenue that because of elapse of such a long time, credit of surrender made by assessee cannot be granted for the amount used by assessee out of that disclosure/surrender. Therefore we reveres the order of CIT (A) and delete the addition - Decided in favour of assessee.
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2015 (12) TMI 1283
Disallowance of deduction u/s 36(1)(viii) - Held that:- Admittedly, in the case in hand, the assessee has transferred the amount of ₹ 200 crores in the special reserve created during the subsequent year, out of the general reserve created during the year under consideration, whereas the claim of deduction has been made in respect of the amount of ₹ 161 crores only. We, therefore, direct the AO to allow the claim for the deduction to the assessee in the light of the decision of the co-ordinate bench of the Delhi Tribunal in the case of "M/s. Power Finance Corporation Ltd. vs. JCIT" (2008 (7) TMI 982 - ITAT DELHI). - Decided in favour of assessee
Disallowance of provision towards liability arising on account of wage revision payable to employees - Held that:- The issue is squarely covered by the decision of the co-ordinate bench of the Tribunal in the case of "Tata Communications Ltd. vs. DCIT" [2013 (2) TMI 506 - ITAT MUMBAI ] wherein the Tribunal has taken a view that in case of salary/wage revision, what is important is not the date of signing the agreement nor the date of approval granted by the DRE, what is important is the effective date of commencement. The Tribunal, while relying upon the decision of the Hon'ble Supreme Court in the case of "Bharat Earth vs. CIT [2000 (8) TMI 4 - SUPREME COURT], held that in such a case the incurring of liability was certain and the same could also be estimated with reasonable certainty, although, the actual quantification may not be possible. In the case in hand also as per the agreement and the policy, the wage revision was certain and it could have been reasonably estimated also. Hence, the provision made by the assessee towards wage revision was allowable - Decided in favour of assessee
Inclusion of income of foreign branches into the total income of the assessee - Held that:- The assessee will be entitled to credit of such taxes which have been paid by the branches in other contracting states. Since the issue is squarely covered by the decision of the co-ordinate bench of the Tribunal in the own case of the assessee, hence, respectfully following the same, the appeal of the Revenue is treated as allowed in the same lines.
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9911796707
