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Showing 141 to 160 of 1262 Records
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2015 (6) TMI 1129 - ITAT CHENNAI
Penalty u/s 271(1)(c) - received 1 million Euros for forgoing the right to sue/initiate legal proceedings for breach of pre-emptive right to purchase shares - decision on nature of the said receipt - Revenue is of the opinion that the said receipt constitutes revenue receipt against the assessee’s claim that it falls in capital zone - AO taxed the same u/s 28(va) - Held that:- We find there is no dispute before us so far as disclosure of information in the return of income is concerned. Assessee furnished all relevant particulars relating to the impugned receipt. Whatever is relied upon by the Assessing Officer in the penalty proceedings, the same are emanated from the return of income furnished by the assessee in normal course. There is also dispute on the nature of the said receipt whether it is a capital or revenue receipt.
While the ITAT upheld the revenue nature of the receipt, the Hon'ble High Court admitted the appeal of the assessee. Therefore, we find debtability on this issue. It is also undisputed fact that the Hon'ble High Court has admitted the appeal and the same is pending for final adjudication. Considering all these undisputed facts, we find no default in disclosure of information in the return of income by the assessee. Debatability is evident as narrated by the ld. Counsel for the assessee before us. On the other hand, the Revenue failed to prove the absence of debatability on the issue. Considering the overall factual matters of the case, we are of the opinion that it is not a fit case for levying penalty u/s 271(1)(c) of the Act - Decided against revenue
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2015 (6) TMI 1128 - ITAT MUMBAI
Recomputation of the value of closing work-in-progress by attributing interest proportion to the work-in-progress - Held that:- The issue arising in the present appeal is identical to the issue before the Tribunal in assessment years 2004-2005 and 2005-2006. The AO in the year under appeal, in turn, following the decision made in assessment years 2002-2003, 2004-2005 and 2005-2006 had recomputed the valuation of work-in-progress at the close of the year resulting in addition of ₹ 6,91,723 in assessment year 2006-2007 and ₹ 6,37,882 in assessment year 2007-2008. Since the issue arising in the present appeal is identical to the issue before the Tribunal in assessee’s own case in assessment years 2004-2005 and 2005-2006, following the same parity of reasoning, we uphold the order of the CIT(A).
Thus, the appeals filed by the Revenue for both the years are dismissed because of low tax effect and also because of the issue being covered by the earlier years of the Tribunal.
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2015 (6) TMI 1127 - ITAT CHANDIGARH
Exemption u/s 10(10C) – Held that:- Decision of the I.T.A.T., Chandigarh Bench rendered in the case of Shri Bikram Jit Passi (2012 (11) TMI 214 - ITAT, CHANDIGARH) is squarely applicable to the facts of the present case. Respectfully following the above order of the Tribunal, allow the claim of the assessee holding that the authorities below were not justified in disallowing the amount of ₹ 5 lacs under section 10(10C) of the Act. - Decided in favour of assessee.
Disallowance of leave encashment which was claimed as exempt under section 10(10AA) - AO had made the disallowance disputing the calculation made by the employer of the assessee - Held that:- There was no justification in disputing the calculation made by the employer of the assessee, particularly when the employer had allowed the said amount as a deduction after computing the same under the provisions of the law, which fact also stands admitted by the Assessing Officer. It is clear that the assessee had received an amount of ₹ 2,14,167/- as leave encashment and, therefore, there was no justification on the part of the Assessing Officer to dispute the calculation made by the employer of the assessee. No clarification has been sought from the employer Bank. In that view of the matter, I do not see any reason for making disallowance of ₹ 24,295/- out of the amount of ₹ 2,14,167/- received by the assessee on account of leave encashment from his employer.
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2015 (6) TMI 1126 - ITAT CHENNAI
Disallowance made in respect of provision for warranty - Held that:- The issue is squarely covered in favour of the assessee by the decision of the Tribunal in assessee’s own case, no provision can be recognized. Liability is defined as a present obligation arising from past events, the settlement of which is expected to result in an outflow from the enterprise of resources embodying economic benefits. A past event that leads to a present obligation is called as an obligating event. The obligating event is an event that creates an obligation which results in an outflow of resources. It is only those obligations arising from past events existing independently of the future conduct of the business of the enterprise that is recognized as provision. For a liability to qualify for recognition there must be not only present obligation but also the probability of an outflow of resources to settle that obligation. Where there are a number of obligations (e.g. product warranties or similar contracts) the probability that an outflow will be required in settlement, is determined by considering the said obligations as a whole.
Addition made being 5% of the dealer concession and incentives - Held that:- When the assessee claimed expenditure, it should be established that the expenditure was incurred for wholly and exclusively for the purpose of business. The assessee has to produce necessary bill and vouchers. In the present case, the assessee has failed to furnish details. The Assessing Officer having no option, disallowed 5% of the expenditure towards dealer concession and incentive. In our opinion, it is appropriate to specify the expenditure, which is not supported by bills and vouchers. Accordingly, we remit this issue back to the file of the AO with a direction to specify the disallowance in respect of expenditure, which is not supported by proper evidence. With this observation, this ground is allowed for statistical purposes.
Addition on account of transfer pricing adjustment as per the order of the TPO - Held that:- CIT(Appeals) remitted the issue back to the file of the AO with direction to give an opportunity the assessee to submit its explanation and decide the issue on merits towards upward adjustment of the value relating to transfer pricing. We do not find any infirmity in the finding of the CIT(A), since, the AO has not given adequate opportunity to the assessee to explain the revised estimate by the TPO.
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2015 (6) TMI 1125 - CESTAT, BANGALORE
Waste/by-product - Bagasse - excisability - reversal of CENVAT credit on GTA service - Held that: - reliance placed in the case of Balrampur Chini Mills Ltd. Vs. UOI [2013 (1) TMI 525 - ALLAHABAD HIGH COURT] where it was held that even after the amendment in Section 2(d), bagasse cannot be held to be an excisable item inasmuch as the same does not pass the test of manufacture, as defined in Section 2(f) of Central Excise Act - appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1124 - ITAT MUMBAI
Disallowance of Travelling Expenditure - Held that:- The assessee has submitted the details, according to which foreign travel expenses were subjected to FBT and since foreign travel expenses have already been subjected to FBT, the same could not be disallowed under section 37 of the Income Tax Act, 1961. See Om Intercontinental vs. ACIT[2013 (4) TMI 793 - ITAT MUMBAI ]. Therefore we delete the addition and appeal filed by the assessee is allowed.
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2015 (6) TMI 1123 - BOMBAY HIGH COURT
Adjustment restricted only on international transactions where the assessee has selected TNMM and applied the same on entity level by ITAT - Held that:- Revenue is unable to show how it arises from the impugned order of the Tribunal. It appears that the question itself is academic. In the above view, there is no occasion to entertain question (a) as substantial question of law.
Addition as the adjustment is with ±5 per cent - Tribunal deleting the addition as the adjustment is with ±5 per cent. as the Income-tax Appellate Tribunal has restricted the adjustment only on associated enterprise transactions which has resulted the adjustment within ±5 per cent. - Held that:- We find that the decision of the Tribunal is a factual determination of the arm's length price and the same is found within ±5 per cent safe harbour range. This is not show to be perverse and/or arbitrary.Accordingly, no occasion to entertain question (b) can arise as it does not give rise to any substantial question of law.
Disallowance under section 14A - Tribunal restoring the issue back to the file of the Assessing Officer for fresh consideration in view of the decision of Godrej and Boyce Manufacturing Co. Ltd. [2010 (8) TMI 77 - BOMBAY HIGH COURT] - Held that:- No fault can be found with the impugned order of the Tribunal inasmuch as it follows the decision of this court in Godrej and Boyce Mfg. Co. Ltd. v. Deputy CIT [supra]. Accordingly, there is no occasion to entertain question (c) as it does not give rise to any substantial question of law.
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2015 (6) TMI 1122 - ITAT BANGALORE
Adjustment in the arm’s length price(ALP) of international transaction - Held that:- The Assessee is a wholly owned subsidiary of Beceem Communications Inc. USA. The Assessee rendered software development services to its holding company thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
Deduction u/s.10A computation - Held that:- Taking into consideration the decision rendered by the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] we are of the view that it would be just and appropriate to direct the Assessing Officer to exclude telecommunication charges, internet charges etc., both from export turnover and total turnover, as has been prayed for by the assessee
Disallowing expenditure for acquiring the rights to use application software - Held that:- It is not disputed by the revenue that the expenditure was in respect of application software. Thus we hold that expenditure incurred on purchase of software should be allowed as revenue expenditure.
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2015 (6) TMI 1121 - KERALA HIGH COURT
Addition u/s 43B - Electricity duty payable under section 3(1) of the Electricity Duty Act, 1963 and surcharge payable to Government - Held that:- The issue stands already decided in favour of the assessee by virtue of the judgment of this court in Kerala State Electricity Board v. Deputy CIT [2010 (11) TMI 127 - Kerala High Court] wherein held Section 43B cannot be invoked in making the assessment of the liability of the appellant under the Income-tax Act with regard to the amounts collected by the appellant pursuant to the obligation cast on the appellant under section 5 of the Kerala Electricity Duty Act, 1963. - Decided against revenue
Application of section 115JB as to tax book profit - Held that:- The Commissioner (Appeals) found this issue in favour of the assessee and this was confirmed by the Tribunal. This issue is also covered in the aforesaid judgment of this court rendered in the case of the respondent-assessee itself.- Decided against revenue
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2015 (6) TMI 1120 - ITAT MUMBAI
Revision u/s 263 - Assessing Officer did not consider the issue of eligibility of additional depreciation on windmill and the same has resulted in loss of revenue - assessment order passed by AO under the provisions of section 143(3) r.w.s. 153A - Held that:- AO did not have jurisdiction to the make addition on the impugned issue as the same is not based on seized material. Such contention has been rejected only on the ground that there are conflicting views rendered by various High Courts and the contention of the assessee has not been rejected on the ground that the impugned addition is based on seized material. Also there is no material on record to suggest that issue regarding additional depreciation on Wind Mill was based on seized material. Therefore, certainly, this issue is other than the additions based on seized material.
If it is so then according to the aforementioned decision of Hon’ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015 (5) TMI 656 - BOMBAY HIGH COURT) the AO would not have jurisdiction to bring such issue in the assessment completed u/s. 153A r.w.s 143(3) and non-consideration thereof in the assessment order would not make the assessment order passed under section 143(3) r.w.s. 153A as erroneous and prejudicial to the interest of Revenue. - Decided in favour of assessee.
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2015 (6) TMI 1119 - ITAT KOLKATA
Deemed dividend addition made u/s. 2(22)(e) - loan taken from the company and company compensated by way of interest paid by the assessee on loan - Held that:- As decided in Pradip Kumar Malhotra case [2011 (8) TMI 16 - CALCUTTA HIGH COURT] the authorities below erred in law in treating the advance given by the Company to the assessee by way of compensation to the assessee for keeping his property as mortgage on behalf of the company to reap the benefit of loan as deemed dividend within the meaning of Section 2(22) (e) of the Act - Decided in favour of assessee.
Disallowance u/s. 14A to 1% of the dividend income - Held that:- We find that the ld.CIT(A) has restricted the disallowance to 1% of the dividend income by following the various decisions of the ITAT. Therefore, we find no infirmity in the impugned order of the ld.CIT(A) in doing so. The ld.CIT(A) has rightly restricted the addition u/s. 14 A of the Act to 1% of the dividend earned - Decided against assessee
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2015 (6) TMI 1118 - ITAT MUMBAI
Rectification of mistake - mistake in filling item No.43, which was taken into account by processing the return and the income of the assessee was processed at nil in place of a loss of ₹ 20,37,162/- - Held that:- The mistake, as is claimed by the assessee to be apparent from the record would fall within sub-clause (i) of clause (a) of the Explanation as the figure of “nil” stated against column No.43 would be inconsistent with the other entries of the same or some other items in the same very return. Therefore, Ld. CIT(A) was wrong in holding that assessee is not entitled to get the impugned mistake rectified. The adjustment sought for by the assessee in the rectification application would be in accordance with the provisions of section 143(1) and is an inadvertent mistake which is rectifiable under the provisions of section 154 of the Act. Accordingly, we hold that there is a mistake apparent from record which is required to be rectified. We direct the AO as well as Computerized Processing Center to rectify the mistake and accept the application filed by the assessee under the provisions of section 154 of the Act.
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2015 (6) TMI 1117 - CESTAT MUMBAI
Imposition of penalty u/s 114(iii) of the CA, 1962 - case of appellant is that the findings recorded by the adjudicating authority has no basis and there is nothing on record to implicate the appellant in any manner which attracts penal provisions - Held that: - the findings as recorded by the adjudicating authority are not substantiated in anyway. There is no statement implicating the appellant nor it is brought on record that Shri Sushil Dhuri is one of the employees of the appellant. In the absence of any other evidence to implicate the appellant herein, the penalty imposed on him is not in consonance with the law - penalty set aside - appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1116 - ITAT PUNE
Penalty u/s. 271(1)(c) - Deduction claimed u/s. 80I and 80IA on manufacturing and sale of Gutka, Treating sales tax incentive as capital receipt - Held that:- We are of the considered view that since the first two issues on which the penalty has been levied u/s. 271(1)(c) involves substantial question of law, therefore, no penalty is leviable thereon. The Hon'ble jurisdictional High Court in the case of CIT Vs. M/s. Nayan Builders and Developers (2014 (7) TMI 1150 - BOMBAY HIGH COURT) has held that where the debatable and arguable issues are involved and substantial question of law is framed in quantum proceedings, no case for levy of penalty is made out.
Depreciation on structures incidental or ancillary structure to the windmill - Held that:- No penalty was levied by the Assessing Officer on similar disallowance in the preceding assessment year, therefore, the penalty cannot be levied in succeeding assessment year for the same disallowanceLevy of penalty for disallowance of depreciation claim on structures ancillary to windmill is deleted.
Rate of depreciation is concerned, the assessee has admitted that the mistake in adopting rate at 100% was bonafide. We accept the explanation furnished by the assessee in erroneously applying higher rate of depreciation. It was in the impugned assessment year that rate of depreciation was reduced from 100% to 80%. The assessee applied 100% rate of depreciation instead of 80%. The mistake can be said to be a silly mistake caused by callousness. The assessee should have been more careful in applying the rate of depreciation. In view of the facts of the case, we are of the view that levy of penalty is not justified. - Appeal Decided in favour of assessee
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2015 (6) TMI 1115 - ITAT MUMBAI
Penalty imposed u/s.271(1)(c) - addition made on account of raw material purchased from Sun Pharmaceuticals, notional selling and distribution expenses and interest income on bank deposits/staff loan as not eligible for deduction u/s.80IB - Held that:- Tribunal in assessment year 2005-06 in quantum proceedings, wherein the addition made on account of notional selling and distribution expenses was deleted by the Tribunal. Since the addition on account of notional selling and distribution has been deleted in quantum proceedings, the penalty order passed with respect to such addition has no legs to stand. With respect to the addition made on account of raw material purchases, interest income on bank deposit/staff loan, the Tribunal has deleted the penalty after observing that penalty is not leviable in respect of disallowance u/s.80IB of the Act on account of raw material purchases as it is merely a claim which is found to be not sustainable in law.
Similarly the penalty with respect to the interest income on bank deposits/staff loan was deleted by the Tribunal by observing that penalty is not leviable in respect of disallowance u/s.80IB on account of interest income on bank deposit/staff loan as the assessee has furnished all details and it is merely a claim which is found to be not sustainable in law. Respectfully following the decision of the Tribunal in assessee’s own case for the assessment year 2005-06, we do not find any infirmity in the order of CIT(A) for deleting the penalty imposed u/s.271(1)(c) of the Act. - Decided in favour of assessee.
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2015 (6) TMI 1114 - MADRAS HIGH COURT
Testing of imported toys - M/s. Indian Institute of Technology, one of the agency, has declined to test the imported goods stating that it does not have the requisite technology to carry out the tests - the goods were tested by Central Revenue Control Laboratory and a report has been submitted - In view of the report submitted by Central Revenue Control Laboratory, this Court directs that it is open to the respondent department to proceed further and pass orders in accordance with law within two weeks from the date of this order - petition disposed off.
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2015 (6) TMI 1113 - ITAT BANGALORE
Deduction u/s.80P(2)(a)(i) denied - claim of the assessee for deduction u/s. 80P(2)(a)(i) disallowed for the reason that the assessee fell within the realm of Banking Regulation Act, 1949 - Held that:- No doubt, the assessee had satisfied two of the three primary conditions mentioned in section 5(ccv) of the Banking Regulation Act, 1949 viz., it had the primary object of banking and it had share capital which was in excess of Rs. One lakh. But, we find from the membership qualification as set out in the bye law, which has been reproduced by the Assessing Officer at page 37 of his order that there was nothing which forbid a cooperative society from becoming a member.
It is clearly stated that every person competent to contract under section 11 of the Indian Contract Act, 1872 could become a member, provided other conditions are satisfied. A person will definitely include a cooperative society. In any case, we find that the Hon’ble jurisdictional High Court in the case of Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha Bagalkot (2015 (1) TMI 821 - KARNATAKA HIGH COURT ) in relation to a similar issue, has held the business of the assessee is to provide credit facilities to its members. Since the assessee cannot carry on any banking business, the interest on investment is taxable as income from other source. Therefore the aforesaid facts, which is not in dispute clearly establishes that it is not a Cooperative Bank. Revisional Authority also in its order has categorically stated that the assessee is a Co-operative society, which provides credit facilities. Section 80P of the Act deals with the deduction of income of a society. - Decided in favour of assessee
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2015 (6) TMI 1112 - GOVERNMENT OF INDIA
Unclaimed baggage - abandonment of goods at airport - assorted electronic goods - watches - Ivory/Cream coloured powder - prohibited goods - confiscation - valuation of assorted electronic goods - Held that: - The Customs authorities have valued the goods on the basis of prevailing market rates and taking into consideration the type, brand, etc. and also based on information from the internet downloads (NIDB Data) after allowing the usual rebate - As no supporting document to substantiate the value of electronics goods has been produced, Government finds no infirmity in the method of valuation adopted by the Customs authorities.
Quantum of redemption fine and penalty - Held that: - redemption fine and penalty imposed are only 50% and 10% of the value of goods respectively. Keeping in view the gravity of offence and overall circumstances of the case, the same are reasonable and there is no ground for their further reduction.
Re-export of impugned assorted electronic goods - Held that: - applicant contravened the provisions of Section 77 of Customs Act, 1962. The goods brought by the applicant were prohibited (Beta Methazone Dipropionate powder) and in commercial quantity (assorted electronic goods), and hence do not constitute bona fide baggage in terms of Section 79 of the Customs Act, 1962 read with provision of Para 2.20 of EXIM Policy in force - Provision for re-export of baggage is available u/s 80 of the CA, 1962. However, as this will apply only in the case of declared bona fide baggage, the applicant is not eligible for re-export of impugned goods.
Revision application rejected - decided against applicant.
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2015 (6) TMI 1111 - GOVERNMENT OF INDIA
Rebate claim - denial on the ground that the merchant exporter have availed drawback of duty in respect of the goods for which the manufacturer has claimed the rebate of Central Excise duty paid at the time of clearance and hence, claims of rebate would result in double benefit - Held that: - The provisions of Rule 18 of Central Excise Rules, 2002 are interpreted by Hon’ble High Court of Bombay at Nagpur Bench, in the case of CCE, Nagpur v. Indorama Textiles Ltd., [2006 (5) TMI 8 - HIGH COURT OF JUDICATURE (BOMBAY)] wherein it was held that rebate provided in Rule 18 of Central Excise Rule, 2002 is only on duty paid on one of the stages i.e. either on excisable goods or on materials used in manufacture or processing of such goods. Hence, assessee is not entitled to claim rebate of duty paid at both stages simultaneously i.e. duty paid at input stage as well as finished goods stage.
The applicant could not substantiate their claim that the merchant exporter has availed only Customs portion of drawback by means of any valid documentary evidences. Hence, it can be implied that the applicant has availed both Customs as well as Central Excise portion of drawback. Under such circumstances, allowing rebate would amount to double benefit, which cannot be held admissible.
Revision application rejected - decided against applicant.
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2015 (6) TMI 1110 - GOVERNMENT OF INDIA
Recovery - duty drawback granted earlier - recovery on the ground that applicant failed to produce the evidence for realization of export proceeds in respect of impugned exported goods for which they were allowed drawback within the period allowed under Foreign Exchange Management Act, 1999 including any extensions of such period granted by the RBI - Held that: - it is a statutory requirement under relevant sections that export proceeds need to be realized within the time-limit provided thereunder viz. 6 months in this case subject to any extension allowed by RBI. As discussed above, the applicant has failed to fulfill their statutory obligations. Therefore, the order for recovery of drawback claim along with interest & penalty cannot be faulted with - revision application rejected - decided against applicant.
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