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Case Laws
Showing 161 to 180 of 1479 Records
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2016 (6) TMI 1321 - ITAT DELHI
Addition on account of Arm’s Length Price adjustment - comparable selection criteria - Held that:- As gone through the material available on the record. In the present case, it is an admitted fact that complete data relating to the comparable selected by the assessee was not available at the time of making the transfer price study. However, the same are now available at the public domain. We, therefore, think it appropriate to restore this issue back to the file of the TPO/AO to be decided afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.
MAM selection - TPO applied the residuary profit split method as most appropriate method instead of TNMM method choosen by the assessee as most appropriate method - Held that:- As noticed that the TPO for the assessment year 2010-11 had considered the TNMM method as most appropriate method by keeping in view the Circular No. 6/2013 dated 29.06.2013 but it is an admitted fact that the said Circular was not in existence when the TPO passed the impugned orders for the respective assessment years i.e. assessment years 2007-08 to 2009-10, under consideration. However, he admitted while passing the orders u/s 92CA of the Act for the assessment year 2010-11 that TNMM is most appropriate method for determining the Arm’s Length Price. We, therefore, deem it appropriate to set aside this issue relating to the assessment years 2007-08 to 2009-10 to the file of the TPO/AO to decide as to what is the most appropriate method by considering the facts and the guidelines available in the form of circular.
As regards to the issue relating to the comparables for which the information u/s 133(6) of the Act were obtained by the TPO and which were not confronted to the assessee, we are of the view that this issue also deserves to be set aside to the file of the TPO/AO for fresh adjudication in accordance with law.
Additional ground relating to deduction u/s 10A of the Act was not before the TPO/AO. The said grounds are purely legal grounds and raised first time before the Tribunal, so this issue raised in the additional grounds is remanded to the file of the TPO/AO to be decided along with another assessment years under consideration.
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2016 (6) TMI 1320 - ITAT MUMBAI
Determining income under section 44BB - Receipts on account of service tax were includible in the gross receipts for the purpose of determining income under section 44BB - Receipts on account of VAT were includible in the gross receipts for the purpose of determining income under section 44BB - Held that:- As decided in DIT vs. Mitchell Drilling International Pvt [2015 (10) TMI 259 - DELHI HIGH COURT] for the purpose of computing the presumptive income for the purpose of section 44BB of the Act, the Service Tax collected by the assessee on the amount paid to it for rendering services is not to be included in the gross receipt in terms of sub section 44BB(2) and 44BB(1) and concluded that Service Tax is not an amount paid or payable or received or deemed to be received by the assessee for the services rendered by it and the assessee is only collecting the service tax for passing it to be Government, the Hon’ble Delhi High Court also considered the Circular No. 4/2008 dated 28.04.2008 of the CBDT which clarifies that the service tax paid by the tenant does not pertake a nature of the income of the landlord and that landlord only collecting tax for government for collecting income tax.
In Oceaneering International GMBH (2015 (11) TMI 1546 - ITAT MUMBAI), the Co-ordinate Bench of this Tribunal while considering the issue, whether service tax collected by the assessee-company does not have any element of income and cannot be form part of the gross receipt for the purpose of computing the presumptive income of the assessee u/s. 44BB of the Act and after considering the almost identical fact answered the issue in favour of the assessee,
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2016 (6) TMI 1319 - ITAT CHANDIGARH
Penalty under section 271AAA - assessee has not brought on record any documentary evidences to substantiate the manner of deriving undisclosed income - question regarding manner of earning income - Held that:- CIT(Appeals) specifically noted in his finding that revenue has not asked the assessee to disclose the manner in which such income was earned. Therefore, issue was found covered by judgement of Gujrat High Court in the case of CIT Vs Mahendra C. Shah[2008 (2) TMI 32 - GUJARAT HIGH COURT]. Since no question is asked during the statement recorded under section 132(2) of the Act, then the assessee cannot be expected to further substantiate the manner of earning undisclosed income. The ld. CIT(Appeals), therefore, correctly found that when revenue never asked any question regarding manner of earning the income, therefore, no penalty should be levied against the assessee. - decided in favour of assessee
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2016 (6) TMI 1318 - RAJASTHAN HIGH COURT
Penalty u/s 78(5) of Rajasthan Sales Tax Act, 1994 - Compliance with requirement of 78(2)(A) of the Rajasthan Sales Tax Act, 1994 - submission of 18-A form on receipt of notice - Held that:- The Hon'ble Supreme Court of India in the case of D.P. Metals [2001 (10) TMI 881 - SUPREME COURT OF INDIA] has categorically held that on show cause notice with regard to alleged contravention/ deficiency found in respect of goods in transit, if the deficiency/ contravention is removed, with the filing of the requisite document by the assessee with the reply to the show cause notice, imposition of penalty ought to be eschewed.
Both the first appellate authority and the Tax Board have not committed any illegality in passing the impugned orders setting aside the Assessing Officer's order of penalty u/s 78(5) of the 1994 Act - petition dismissed - decided against petitioner-Revenue.
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2016 (6) TMI 1317 - ITAT MUMBAI
Addition to the total amount as been received by the assessee for post settlement of claims - Held that:- In the assessee’s own case for A.Y.2007-08 [2016 (2) TMI 157 - ITAT MUMBAI] wherein it has been held that this amount was not the income of the assessee and upheld the finding of the learned CIT(A) in the assessee’s own case. Accordingly, it is apparent that this ground has been squarely covered by the order passed by the Income Tax Appellate Tribunal in the assessee’s own case for A.Y.2007-08 and therefore, we are of the view that on this ground learned CIT(A) has passed the order judiciously and correctly which does not required to be interfere with at this appellate stage. Accordingly, these issues are decided in favour of the assessee.
Addition of software expenses and disallowance of net amount of capitalised and depreciation allowed - Held that:- In the assessee’s own case, it is not in dispute that the co-ordinate bench of Income Tax Appellate Tribunal has treated that software expenses as revenue in nature and allowed the same. No distinguishable facts has been placed on record. No any other order which is contrary to the order passed by the Income Tax Appellate Tribunal in [2016 (2) TMI 157 - ITAT MUMBAI] in the assessee’s own case has been produced. Therefore, in the said circumstance by following the observations of co-ordinate bench we are of the view that the CIT(A) has rightly deleted the expenses and allowed the same.
Addition u/s.40A(9) - contribution to employees’ recreation club - reimbursement of expenses incurred by the club for the welfare of the employees. - Held that:- CIT(A) by following ITAT order and also after considering the order passed by Assessing Officer for A.Y.2006- 07 in the set aside proceedings, deleted the addition made in this year. - learned CIT(A) has passed the order judiciously and correctly which does not require to be interfere with at this appellate stage.
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2016 (6) TMI 1316 - GUJARAT HIGH COURT
Adjustment made on account of excess credit period - associate enterprise was bound o compensate the assessee for funds lying at the AE's disposal for a period beyond a credit period allowed by the assessee to third partner - exclusion of export benefits such as DEPB and duty draw back from the profit eligible for deduction under Section 80IB - Held that:- this issue is mainly remanded by the Tribunal to the Assessing Officer. Such question is, therefore, not considered in this tax appeal.
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2016 (6) TMI 1315 - SC ORDER
Classification of services - providing services relating to transportation of light Commercial Motor Vehicles & Multi Utility Vehicle, manufactured by M/s Force Motors Ltd. by way of getting them driven by skilled drivers - Support Service for Business or Commerce (BSS) and / or Business Auxiliary Service (BAS).
Held that:- Issue notice on the application for condonation of delay as well as on the appeal - As an interim measure, it is directed that no coercive steps shall be taken for recovery subject to deposit of the entire amount of duty and 50% of the penalty within four weeks hence.
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2016 (6) TMI 1314 - CESTAT BANGALORE
CENVAT Credit - whether the appellant is required to reverse 10% of the value of the exempted goods cleared to SEZ Developers in terms of the provisions of Rule 6 of the Cenvat Credit Rules 2004? - Held that:- Identical issue decided in the case of THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX AND THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S FOSROC CHEMICALS (INDIA) PVT LTD AND OTHERS [2014 (9) TMI 633 - KARNATAKA HIGH COURT], where it was held that amendment has to be construed as retrospective in nature and the benefit of Rule 6(6)(1) as amended in 2008 has to be extended to the goods cleared to a "developer" of a Special Economic Zone for their authorized operations - appeal allowed - decided in favor of appellant.
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2016 (6) TMI 1313 - BOMBAY HIGH COURT
Application for rectification under Section 254(2) - penalty under Section 221 - Held that:- Tribunal in the impugned order has dealt with the issue of imposition of penalty being imposed under Section 221 of the Act even without service of demand notice under Section 156 of the Act upon an assessee. This the Tribunal could have only done while passing an order in appeal.
The consequent order which would has been passed in appeal would enable the parties to challenge the same before this Court in an appeal under Section 260A of the Act. The procedure adopted by the Revenue in this case has deprived the right of statutory appeal to the petitioner. No appeal is entertained by this Court from an order dismissing the Miscellaneous Application for rectification under Section 254(2) of the Act (see Chem Amit (2004 (11) TMI 24 - BOMBAY HIGH COURT). Thus in the process of atoning for a mistake, one should take utmost care to ensure no further prejudice is caused. The rejection on merits of the contentions of the parties by the Tribunal on a substantial question of law is subject to the statutory right of appeal under Section 260A of the Act. This right cannot be bypassed by dealing with the merits in an Miscellaneous Application for rectification.
In the above view, we set aside the impugned order dated 14th March, 2008 of the Tribunal. We direct the Tribunal to recall its order dated 9th May, 2006 to the extent it upheld the order of the Assessing Officer imposing penalty under Section 221 of the Act and post the appeal for hearing at a date convenient to it
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2016 (6) TMI 1312 - ITAT AHMEDABAD
Levy of penalty u/s.271(1)(c) - disallowance of claim of deduction made u/s.80IA(4) - Held that:- It is assessee’s submission that the facts in the year under appeal are identical to that of earlier years in which the Hon’ble Gujarat High Court has admitted the appeals of the assessee. The aforesaid facts, have not been controverted by Revenue. In the present case, since the penalty has been levied on the issue which is already before the Hon’ble Gujarat High Court and in view of the fact that the assessee was allowed deduction in AY 2006-07, we are of the view that the issue of penalty on such claim needs to be remanded back to the file of AO for deciding it on the basis of the decision in quantum appeal which is before the Hon’ble Gujarat High Court and in accordance with law. We therefore without expressing our view on the merits of the case, restore the issue back to the file of ld.AO. Thus, grounds of assessee’s appeal are allowed for statistical purposes.
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2016 (6) TMI 1311 - KERALA HIGH COURT
Return of seized documents - Held that:- What is required to be resolved in this appeal are disputed questions of fact as to whether it was the original of the documents which were seized/produced or whether the documents were only photocopies. Such factual controversy cannot be resolved by this Court in a proceeding under Article 226 of the Constitution - appeal disposed off.
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2016 (6) TMI 1310 - ITAT MUMBAI
Disallowance of part of deduction claimed under section 80P(2)(a)(i) - interest income - Held that:- In the present case there is no surplus fund available as demonstrated from the Balance Sheet and secondly, the investments made in the fixed deposit is assessee’s own funds and not a liability of the assessee re–payable to the members - No hesitation in holding that the interest income earned by the assessee on the fixed deposits kept with the banks is to be treated as business income of the assessee and the assessee would be eligible to claim deduction under section 80P(2)(a)(i) on such income. Therefore, allowing the grounds raised by the assessee, we set aside the order of the learned Commissioner (Appeals) on this issue. In view of our aforesaid decision, the alternative grounds raised by the assessee for allowing expenditure on the interest income has become infructuous, hence, not required to be adjudicated.
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2016 (6) TMI 1309 - ITAT DELHI
TPA - comparable selection - functinal similarity - Held that:- Companies functionally dissimilar with that of assessee ICC India as providing IT-enabled services including data processing, data archiving, coding, Comp setting for Internet, etc. ICC India handles everything from LaTeX, Quark and FrameMaker composition to technical illustration and eBook conversion need to deselected from final list.
It has been noted by the DRP that the margin has been wrongly taken at 1.73% instead of 12.58%. However, the DRP has somehow omitted giving the directions to remove the inaccuracy. Accepting the assessee’s plea we direct the TPO to recompute use the PLI of the assessee as discussed in detail in pages 21-23 of the DRP order after duly factoring the impact of prior period depreciation of ₹ 89,74,100/-, increase in stock of ₹ 38,80875/- and ₹ 27,02,513/- on account of other income after affording a proper opportunity to the assessee to support its claim. It is also the assessee’s contention that the working capital adjustment has been reduced from 3.64% to 2.18% without providing any details. In this regard also, the TPO is directed to re-compute the working capital adjustment after giving a proper opportunity to the assessee to submit its working and objections
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2016 (6) TMI 1308 - ITAT CHENNAI
Profit on sale of land - capital gain or busniss income - intention of the partners at the time of purchase of the property - whether the investment made by the assessee in the land at Nolambur is a stock-in-trade or capital asset? - Held that:- Entire circumstances and the material facts need to be taken into consideration to ascertain the intention of the partners at the time of purchase of the property. After considering all the facts available on record, including the payment made before the date of formation of partnership firm, this Tribunal is of the considered opinion that the land in question was intended to be treated as capital asset by the partnership firm.
The assessee in order to generate funds for business might have entered into Memorandum of Understanding with another trader who is dealing in real estate. If the intention of the assessee is to deal in real estate, the assessee would have developed the land by itself. In the case before us, the assessee has not dealt with the land by itself. The land was in fact handed over to other trader in real estate for development. The matter would be entirely different if the assessee constructed the multistory building and developed the land. Since the land was simply handed over to other trader for development, this Tribunal is of the considered opinion that the land in question has to be treated as capital asset.
Even though the partnership firm was formed 05.04.2005 and the land was registered in the name of the firm on 23.05.2005, the assessee has not commenced any business activities; no other land appears to have been purchased; no supplementary work was carried on by the assessee-firm in the subject land; no organized effort was made other than simply entering into Memorandum of Understanding with the builder. As all risks and rights relating to construction of building were vested with the builder and the assessee has not taken any risk in the construction and development of flats, this Tribunal is of the considered opinion that the profit on sale of the land in the hands of the assessee-firm cannot be treated differently than as it was treated in the case of Mrs. Saroj Agarwal.
This Tribunal is of the considered opinion that the profit on sale of land has to be necessarily assessed as capital gain and not as business income. - Decided in favour of assessee
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2016 (6) TMI 1307 - MADRAS HIGH COURT
Rejection of petitioner application as a dealer - demand of tax - rejection on the ground that the property did not belong to petitioner - principles of Natural Justice - Held that:- The Registration Certificate has not been able to be issued to the petitioner, as the property did not belong to him.
Also, with a view to afford one more opportunity, notice was issued to the petitioner to choose any other place where he wants Registration Certificate. This has also not been availed by the petitioner.
Petition dismissed - decided against petitioner.
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2016 (6) TMI 1306 - GUJARAT HIGH COURT
Allowing set off capital expenditure from the revenue income - admitting the additional ground - Held that:- In the case of Commissioner of Income Tax-IV v. Shree Rama Multi Tech Ltd. reported in [2012 (12) TMI 984 - GUJARAT HIGH COURT] and submitted that as the issue is already covered by these decisions, the questions raised in this appeal be answered in favour of the assessee.
We are of the view that the Tribunal has not committed any error while remanding the matter back, and, we see no infirmity in the impugned order. Without adjudicating the question posed for our consideration, we confirm the order of the Tribunal remanding the matter and we make it clear that we have not expressed any opinion on the merits and it will be open for both the sides to raise their contentions before the concerned authority. It is further clarified that if the assessee raises an issue that the matter is already covered by the decisions, as above, the Assessing Officer may consider the same in accordance with law.
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2016 (6) TMI 1305 - GUJARAT HIGH COURT
CENVAT Credit sale promotion activities - Beneficial amendment to Rule 2(l) vide notification no. 2/2016 CE(NT) dated 3.2.2016 is retrospective or prospective - the decision in the case of M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD].
The appeal is ADMITTED for consideration of various substantial questions of law raised.
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2016 (6) TMI 1304 - ITAT DELHI
Penalty u/s 271(1)(b) - order under Section 143(3) issued - Held that:- We hold that the imposition of penalty u/s 271(1)(b) of the Act was patently wrong, specially in view of the fact that the impugned assessment order has been passed u/s 143(3). While setting aside the impugned order, we direct the Assessing Officer to delete the penalty.
See Akhil Bhartiya Prathmik Shikshak Sangh Bhawan trust vs ACIT [2007 (8) TMI 386 - ITAT DELHI-G] wherein held held that where an order under Section 143(3) has been issued and not under Section 144 of the Act, the same implies that the subsequent compliance in the assessment proceedings is considered as good compliance and defaults earlier committed were ignored by the AO. - Decided in favour of assessee
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2016 (6) TMI 1303 - ITAT DELHI
Penalty u/s. 271AAA - assessee not specified the manner in which the undisclosed income was earned - Held that:- In present case, income as discussed was trade advance, therefore, by virtue of the words "Trade Advance" it is apparent that it is unaccounted business income. The appellant has paid taxes on such undisclosed income, the Assessing Officer has assessed such income as business income without making any additions, therefore, the mannered to earn undisclosed income was there in the statement U/S 132(4). It is not disputed that there was disclosure U/S 132(4) of I.T. Act. and the Assessee has honoured the disclosure and paid tax thereon and filed return to that affect.
The aforesaid order passed by the Ld. CIT(A) on the issue in dispute as well as the orders of the Tribunal and the Hon’ble High Courts relied upon by the Ld. CIT(A) while deleting the penalty in dispute, we are of the view that the Ld. First Appellate Authority has passed a well reasoned order which does not need any interfere on our part. - Decided against revenue
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2016 (6) TMI 1302 - GUJARAT HIGH COURT
Re-opening of the assessment order u/s 147 - Held that:- the notice for re-opening should be withdrawn based on the reasons supplied to the petitioner, with a view to issuing a fresh notice after recording fresh reasons - thus if fresh notice is issued, the petitioner may consider challenging it in accordance with law - Petition is disposed.
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