|
Advanced Search Options
Income Tax - Case Laws
Showing 501 to 520 of 9151 Records
-
2015 (12) TMI 830
Penalty proceedings u/s 271(1)(C) - addition being the professional income included in the income from mutual funds and disallowance on account of partners remuneration debited to the P/L account - Tribunal upheld the order of the CIT(A) in deleting the penalty - Held that:- The mistake was committed by the accountant of the assessee. Even it was not noticed by the AO, and the assessee itself during the course of assessment proceedings while preparing the details from its ledge accounts came to know the said mistake had been committed by the accountant and proposed for addition. Therefore, through a bonafide and inadvertent error the assessee claimed the income as exempt and wrongly provided for partners’ salary. But the submissions of the assessee was that the error occurred by a mistake of its accountant, who treated the said professional income as income from Mutual funds’ and the salary was claimed on the basis of the clause mentioned in the original partnership deed was not found to be false. We, therefore, keeping in view of the ratio laid down by the Hon’ble Supreme Court in the case of Price Waterhouse Coopers Pvt Ltd [2012 (9) TMI 775 - SUPREME COURT] are of the view that the ld. CIT(A) was justified in deleting the penalty so levied by the AO. - Decided in favour of assessee
-
2015 (12) TMI 829
Method of accounting of commission expenses on accrual basis - Held that:- As per clause 4 of the agreement, the commission payable to KSB Singapore (Asia Pacific) at the rate not exceeding 12.5% on FOB value of the order in the currency in India in which the order is placed. These charges will fall due for payment on receipt of payment from the clients. Being so, it is clear that the payment of commission accrued only on realization of sale value. The assessee's claim is that it is booking expenditure on the basis of sale value and not on the basis of sale realization and this system has been accepted by the department in earlier years as well as in the subsequent year. In our opinion, we are not concerned with the any other year which are not before us. In our opinion, if the department has accepted in earlier year, it was a mistake and there is no merit in continuing the same mistake in the assessment year under consideration. The payment of commission accrued only on realization of sale value and it is to be allowed when the realization of sale value which is in compliance with the agreement cited supra and disallowance is based on the above agreement brought on record by the authorities and hence, we do not find any infirmity in the orders of the authorities below, which is confirmed.
No reasons warranting interference with the order passed by the learned Appellate Tribunal by invoking the powers conferred on us under Sec.260A of the Income Tax Act, 1961 and necessarily the appeal has to be dismissed
-
2015 (12) TMI 828
Penalty under section 271(1)(c) - wrongly claiming exemption under section 10B in respect of interest not derived as ‘Profits and Gains of Business’ - CIT(A) deleted the penalty - Held that:- We are of the opinion that there can be no gainsaying that the assessee had raised a legal contention which was not finally accepted.
When that is the position, then the authoritative judgement of the Supreme Court in the case of Reliance Petroproducts (2010 (3) TMI 80 - SUPREME COURT ) wherein opined that by any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars, as relied upon leaves no manner of doubt that the view taken by the CIT and the Tribunal was a correct view. - Decided in favour of assessee
-
2015 (12) TMI 827
Receipt arising on transfer of TDER - whether are not taxable under the head 'Capital Gains'? - Whether the Tribunal was justified in law in allowing the appeal of the assessee by holding that there was no cost of acquisition of the TDR and thereby not subjecting the sum to Capital Gain Tax holding that the receipt arising on transfer of TDR are not taxable in the hands of the society? - Held that:- The questions as formulated by the Revenue stands concluded against the Revenue and in favour of the Assessee by the decision of this Court in CIT v/s. Sambhaji Nagar Cooperative Housing Society Ltd. [2014 (12) TMI 1069 - BOMBAY HIGH COURT ] - Tribunal was correct in holding that the receipt arising on transfer of TDER are not taxable under the head 'Capital Gains'. - Decided in favour of assessee
-
2015 (12) TMI 826
Non-granting of deduction under sec.80IB - Held that:- The assessee is engaged in the construction work of buildings as a contractor and when the assessee’s job includes only controlling and directing the work of building construction as per plan and design by the land lord and hand over the constructed flats on behalf of the land lord to the eligible flat owners who have got registered undivided right in the property. It is only performed the work as a contractor and the assessee’s job is not included designing the project and selling of the project and the assessee would not get any share in the constructed area and in the undivided property and the assessee cannot be said to have invested its own money to carry on the project.
Similar view has been taken by the Tribunal, Indore Bench in the case of M/s. Sky Builders & Developers vs. ITO [2011 (8) TMI 722 - ITAT INDORE] for the assessment year 2006-07. Since we have observed that the assessee is a contractor, there is no question of going to the merits of the case, as non-production of completion certificate of the project. The assessee is not eligible for deduction u/s.80IB(10) of the Act. - Decided against assessee.
-
2015 (12) TMI 825
Reopening of assessment - Held that:- Undisputedly in the instant case, nothing has been brought out by the Assessing Officer that income chargeable to tax has escaped assessment on account of failure on the part of the assessee as the assessee has declared all the details and raised a claim of 100% depreciation. Moreover, the issue on which assessment was reopened was already examined by the AO while allowing the claim in the original assessment. In the light of these facts, we are of the considered view that the assessment was reopened without the jurisdictional foundation u/s 147 of the Act. Therefore, the notice u/s 148 and subsequent proceedings are without jurisdiction and liable to be quashed - Decided in favour of assessee.
-
2015 (12) TMI 824
Allowability of exemption to the short term capital gain - sale of an agricultural land - eligibility for exemption from tax u/s 10 - Held that:- The assessee was not aware of this fact that the sale proceeds arised out of sale of an agricultural land is exempt from tax u/s 10 of the Act hence the assessee inadvertently could not adduce the said fact before the Assessing Officer as well as while filing the return of income. The assessee’s claim is in accordance with' the provisions of law and gets support from the CBDT circular No. l4 (XL-35) dated 11/04/1955, wherein it has been clearly stated that the officers of department must not take advantage of ignorance of an assessee as to his rights.
It is duty of the department to assist a tax payer in every reasonable way, particularly in matter of claiming and securing reliefs. Due to non-awareness, the assessee could not file certificate from the "Group Gram Panchayat, Ambhai-Amgaon, Khutal" for justification of its claim. It is settled legal position that assessee can raise its legal claim at any stage. The course of appellate proceedings, assessee filed a copy of certificate from "Group Gram Panchayat, Ambhai-Amgaon certified by Gram Sevak and Sarpanch, which suggested that the land is not situated in area, which is comprised within the jurisdiction of a municipality or a cantonment board and which has a population of not less than ten thousand or in any area within such distance, not being more than eight kilometer from the local limits of any municipality or cantonment board. This fact has not been disputed before us on behalf of Revenue.
Taking note of all the facts available on record, the CIT(A) found the assessee’s claim proper and appropriate in accordance with the provisions of law and accordingly allowed the same. There is nothing brought on record by the Revenue against this factual finding of the CIT(A) allowing the exemption to the short term capital gain disclosed by the assessee in the return of income on the ground that subject matter of STCG was agricultural land as defined u/s 2(14) of the Act. - Decided against revenue
-
2015 (12) TMI 823
Unaccounted gold jewellery found to the extent of 863.920 gms was treated as undisclosed investment - Held that:- This Tribunal is of the considered opinion that by taking into consideration of the status of the assessee and other family members, the gold jewellery owned by Smt. Sharmila, Shri Manivannan (HUF), Shri M. Ramalingam (HUF) cannot be totally ruled out. When the Assessing Officer accepted the jewellery to the extent of 1801.800 gms in the hands of three persons, he should have taken note of the status of the assessee as HUF, the status of Shri Manivannan (HUF) and the jewellery owned by Smt. Sharmila. Since they are family members, this Tribunal is of the considered opinion that they might have owned gold jewellery to the extent of 863.920 gms of gold jewellery. It is also an admitted fact that the assessee filed return of income in his HUF capacity for the assessment year 2006-07 and disclosed 410 gms of Jewellery. The assessee claimed before the Assessing Officer that the HUF purchased 410 gms of gold jewellery in the month of February, 2006. In the absence of purchase bill, the Assessing Officer made addition in the hands of the individual assessee. This Tribunal is of the considered opinion that when the assessee filed return of income for assessment year 2006-07 claiming that 410 gms of jewellery was purchased by HUF, the addition cannot be made in the hands of the assessee in his individual capacity. At the best, the addition could have been made in the hands of the assessee in HUF capacity. For the failure of the assessee-HUF to substantiate the purchase of 410 gms of jewellery in the month of February, 2006, this Tribunal is of the considered opinion that there cannot be any addition in the hands of the individual assessment of the assessee. - Decided in favour of assessee.
-
2015 (12) TMI 822
Disallowance on account of entrance fees u/s.37 - CIT(A) deleted the addition - Held that:- CIT(A) while deleting the addition has given a finding that the payment of entrance fees to the club was incurred for the purpose of business and was for smooth and efficient running of business enterprises and that the expenditure was wholly and exclusively for the purpose of business. Before us, Revenue has not brought any material on record to controvert the findings of ld. CIT(A). We therefore find no reason to interfere with the order of ld. CIT(A) and thus the ground of Revenue is dismissed. - Decided against revenue.
Disallowance on account of provisions for replacement & warranty charges u/s. 37 - Held that:- While deleting the addition ld. CIT(A) has accepted the contention of the Assessee that it was having present obligation as a result of past events resulting in a outflow of resources. Ld. CIT(A) has further given a finding that the method of accounting followed by the Assessee in respect of warranty provisions is consistent and is based on definite scientific method and that the provision of warranty made by the Assessee was not a contingent liability. Before us, Revenue could not controvert the findings of ld. CIT(A) and we therefore find no reason to interfere with the order of ld. CIT(A) and thus the ground of Revenue is dismissed.- Decided against revenue.
-
2015 (12) TMI 821
Amount received on account of Clean Development Mechanism (CDM) - capital or revenue receipt - Held that:- The amount received by the assessee on account of CDM (carbon credits) is capital in nature. See case of M/s My Home Power Ltd. [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT ]. The impugned order is set aside, the appeal is allowed. – Decided against Revenue.
-
2015 (12) TMI 820
Amount received on account of Clean Development Mechanism (CDM) - capital or revenue receipt - Held that:- The amount received by the assessee on account of CDM (carbon credits) is capital in nature. See case of M/s My Home Power Ltd. [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT ]. The impugned order is set aside, the appeal is allowed. – Decided against Revenue.
-
2015 (12) TMI 776
Reopening of assessment - Held that:- HC order upheld [2013 (3) TMI 645 - ALLAHABAD HIGH COURT]
In absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment years under consideration, the notice under section 148 of the Act having been issued after the expiry of a period of four years from the end of the relevant assessment years, the very initiation of proceedings under section 147 of the Act stand vitiated and as such cannot be sustained. - Decided in favour of assessee.
-
2015 (12) TMI 775
Penalty u/s 271(1)(c) - addition treating profits on cancellation of forward foreign exchange contract as trading receipt instead of capital receipt - Held that:- The question is whether non-acceptance of a claim can be said to be a concealment. In a case where claim is made it is for the authorities to decide. It may or may not accept the claim. In the instant case, as the sum claimed as deduction is undisputed, it cannot be said that the assessee had furnished inaccurate particulars of income. Since there is no finding that the factual details furnished by the assessee in its return were inaccurate or erroneous or false and as the assessee had claimed the deduction of an expenditure treating it be capital in nature, it is appropriate to refer to the law laid down by the Supreme Court in CIT vs. Reliance Petroproducts [2010 (3) TMI 80 - SUPREME COURT ] wherein held A mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars. Thus the income tax authorities erred in imposing the penalty and the Tribunal was not justified in upholding the imposition of penalty. - Decided in favour of assessee
-
2015 (12) TMI 774
Rectification of adjustment made in intimation under section 143(1)(a) of the Income-tax Act, 1961, with regard to claim for deduction under section 80HHC - whether the Assessing Officer was justified in passing the order under Section 143(1)(a) with regard to the deduction under Section 80HHC? - Held that:- It is to be noted that Section 143(1)(a) empowers the Assessing Officer to compute the total income or loss after making adjustments, namely, "any arithmetical error in the return" "or" "an incorrect claim, if such incorrect claim is apparent from any information in the return". It is nobody’s case that there was any arithmetical error in the return. Moreover, the claim, assuming to be incorrect was not apparent from the information in the return which could have been dealt by the Assessing Officer under Section 143(1)(a). Thus, the issue was a debatable one as correctly held by the Tribunal. If the Assessing Officer was of the view that there was reason to believe that the claim was inadmissible, he should have served notice on the assessee specifying the particulars of such claim or such loss or deduction or relief under Section 143(2) or if he had reason to believe that the income had escaped assessment should have served notice under section 148 of the Act. The Assessing Officer chose neither of the two avenues.
Thus the judgment of the Supreme Court in IPCA Laboratory Ltd. (2004 (3) TMI 9 - SUPREME Court ), relied on by the appellant, wherein the question for consideration was whether the appellants were entitled to deduction under section 80HHC in respect of the sum of ₹ 3.78 crores by ignoring the loss of ₹ 6.86 crores is not applicable as it is not a case regarding the processing of a return under section 143. The judgment of the Bombay High Court in IPCA Laboratories Ltd. (2001 (7) TMI 100 - BOMBAY High Court ) does not support the case of the Appellant as therein notice was issued under Section 148 of the Act, unlike the case in hand, where no such notice was issued. Therefore, the submission on behalf of the appellant cannot be accepted. - Decided in favour of the assessee.
-
2015 (12) TMI 773
Reopening of assessment - whether the reopening of the assessment under Section 147/148 is valid? - Held that:- In respect of one of the issues, viz., payment of interest on fixed deposits, the Assessees drew the attention of the Assessing Officer ("AO") to the fact that the amount has already been offered to tax and tax had been paid and yet, in the order disposing of the objections, the AO is completely silent as regards this objection.
The Court is of the view that notwithstanding several decisions of the Supreme Court as well as this Court clearly enunciating the legal position under Section 147/148 of the Act, the reopening of assessment in cases like the one on hand give the impression that reopening of assessment is being done mechanically and casually resulting in unnecessary harassment of the Assessee. - Decided in favour of assessee.
-
2015 (12) TMI 772
Entitlement to such a claim in view of proviso 5 to Section 10(23C)(via) - Held that:- This appeal is allowed in terms of the judgment The Commissioner of Income Tax, Mangalore and another Vs. M/s.Manipal Academy of Higher Education (2013 (10) TMI 161 - KARNATAKA HIGH COURT) setting aside the order passed by the Assessing Authority, the Appellate Commissioner and Income Tax Appellate Tribunal respectively and the matter stands remitted back to the assessing authority. It is needless to clarify that the remaining substantial questions of law raised in the memorandum of appeal are left open and it is the duty of the assessing authority to consider the same after affording opportunity of hearing to both the parties afresh and to pass appropriate orders in accordance with law.
-
2015 (12) TMI 771
Reopening of assessment - ITAT deleted the reopening assessment - Held that:- It is well settled that in order to issue a valid reassessment notice, the AO has to be satisfied on the basis of tangible material or information subsequently available to him that the assessee had not made full and true disclosure which led to income escaping assessment at the stage when the original assessment was completed. Short of that a re-appreciation of the existing materials which really amounts to review is impermissible. The Tribunal, in the circumstances of this case was justified in concluding that re-assessment proceedings themselves were not in accordance with law and consequently dismissing the Revenue’s appeal. - Decided in favour of assessee.
-
2015 (12) TMI 770
Non applicability of provisions of section 115JB on assessee as held by ITAT - Held that:- Provisions of section 115JB were applicable and that the amendment was prospective in nature. The Tribunal could not have ta ken a different view after relying upon the judgment in the case of State Bank of Hyderabad Vs. DCIT [2013 (3) TMI 307 - ITAT HYDERABAD]. If the Tribunal wanted to take such a view, the reasons should have been expressed, which the Tribunal never did. By this process the Tribunal got rid of the matter without really deciding the points urged. By such disposal of the appeal neither of the parties was benefited.
The impugned order is accordingly set aside and the matter is remanded for rehearing.
-
2015 (12) TMI 769
Transfer pricing adjustment - selection of comparbales - assessment proceedings on dissimilar companies - Held that:- The Hon’ble Delhi High Court held in the case of CIT Vs. Agnity India Technologies Pvt. Ltd. (2013 (7) TMI 696 - DELHI HIGH COURT) that comparison where super normal profit is shown by the company, it cannot be applied for ALP adjustment. The assessee had shown operating margin @ 13.17%, which is within +/- 5% variation of arithmetic mean i.e. 16.71% calculated on the basis of proper comparables. Therefore, we allow the assessee’s appeal and no adjustment is required to be made in ALP during the year under consideration. - Decided in favour of assessee.
Comparing full-fledged risk bearing entities with the appellant’s captive operations without making any risk adjustment for difference between the functional and risk profile of comparable companies - Held that:- The ld TPO was right by accepting the arithmetic mean of comparable of comparable companies if any risk as claimed by the appellant was concerned, it will be resulted in the arithmetic mean of all the companies as these risks adjustments also applicable for them. The assessee could not show how such difference in risk and functions affected result of comparables. The assessee in comparing the case with Infosys and Wipro had claimed that the appellant had negligible risk as it is a captive unit providing service to its AE and is remunerated on cost which marked up basis. - Decided against assessee.
-
2015 (12) TMI 768
Rectification of mistake - lack of jurisdiction in absence of order u/s. 127 - Held that:- The AR had referred to the letter of the assessee dated 14. 05. 2008. We find that the said letter pertains to the AY. 1995-96 only and not to the other years. The letter only proves that the assessee had asked for certain details from the AO, but it does not in any manner prove that the issue of change of jurisdiction u/s. 127 were agitated before the FAA. We find that the FAA had decided the appeal on 27. 3. 2008 whereas the letter to the AO is dated 14. 5. 2008. Naturally, the FAA had no occasion to deal with the issue.
We find that while dealing with the issue the Tribunal has dealt all the arguments raised by the assessee and had arrived at a conclusion. In our opinion, while deciding the rectification application we cannot sit over the judgment of the earlier bench, because we do not have power of review. We have reproduced the grounds taken by the assessee before the FAA in the second round of litigation and there was no ground about change of jurisdiction. In our opinion, the Tribunal was right when it held that the issue is not arising out of the order of the FAA. While deciding the MA we cannot decide such an issue.
As far as the argument of opening balance of cash credit is concerned, we would like to mention that the issue raised by the assessee was not argued by the assessee before the lower authorities as it had not taken the said ground. Considering the available material on record the Tribunal had decided the issue. Even if there is an error of judgment on part of the bench, same does not fall under the category of mistake apparent on the record, as held by the Hon’ble Bombay High Court in the case of Ramesh Electricals (1992 (11) TMI 32 - BOMBAY High Court ). The assessee had not brought to our notice any case by which the said judgment has been reversed. We also find that it is not that kind of a mistake that has been dealt with by the Hon’ble jurisdictional High Court in the case of Supreme Industries Ltd. (2014 (12) TMI 184 - BOMBAY HIGH COURT). It is not a case of typographical or arithmetical mistake. It is not the case that the judgment delivered by the Hon’ble Bombay High Court or the Hon’ble Apex Court has been not followed. The so called mistakes pointed out by the assessee are neither patent nor manifest nor self-evident and they require elaborate discussion of evidence or arguments to establish. Therefore, we agree with the argument advanced by the DR that the assessee wants us to review the order dated 15. 06. 2012 and that same is not permissible as per the provisions of section 254(2)of the Act.
. The assessments were reopened for the above mentioned three years on the basis of subsequent AYs. It was found that the assessee had taken loans from same parties in AY. 1997-98 and had not filed confirmations. It not file any detail, so the AO invoked the provisions of section 68 of the Act. In the appellate proceedings, before the FAA it challenged the re-opening of the assessment as well as the additions made with regard to the creditors. The FAA dismissed the appeal filed by the assessee on both counts. Before, the Tribunal it did not press the ground that dealt with the re-opening of the assessment. Accordingly, the grounds were dismissed. The assessee made a request to the Tribunal to admit additional evidences and the Tribunal restored back the matter to the file of the AO. The assessee could produce confirmation of eight creditors only out of the 145 creditors. The AO, deleted the addition with regard to those eight creditors. In the appellate proceedings before the FAA it did not object the re-opening of the assessment. One more request was made to admit additional evidences as per Rule 46A of the Rules, before the FAA. He admitted the same and directed the AO to make necessary enquiries. Ample opportunity and time was given to the assessee to produce details about the creditors, but it failed to produce the same. In these circumstances the FAA upheld the addition made by the AO. Considering the above facts the Tribunal had in its order dated 15. 06. 2012 had taken a decision. In our opinion, the said decision cannot be rectified under the provisions of section 264(2) of the Act, as no mistake apparent from the record was brought to our notice. - Decided against assessee
............
|
9911796707
