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Showing 121 to 140 of 888 Records
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2009 (8) TMI 1171 - SC ORDER
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... ... ..... al, JJ. ORDER Appeal dismissed.
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2009 (8) TMI 1170 - CESTAT MUMBAI
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... ... ..... waived. The applicant is before me against the interest demand. 3. Heard. 4. Shri Bharat Raichandani, Advocate for the applicant submits that it is case of revenue neutrality. The question of differential duty does not arise in case when duty not payable, interest cannot be charged. 5. On the other hand, the ld. JDR submits that the applicant itself has quantified the differential duty on finalization of the cost of production as per CAS-4, the applicant is liable for the payment of interest, He placed reliance on CCE, Pune v. SKF India Ltd., 2009-TIOL-82-SC-CX wherein it was held that interest is leviable on delayed or deferred payment of duty for whatever reasons. 6. Considering the submissions made by both the parties and facts and circumstances of the case, I find that the applicant is having a strong prima facie case, I grant waiver of pre-deposit of the interest demand and stay demand thereof during the pendency of this appeal. (Pronounced in Court)
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2009 (8) TMI 1169 - CESTAT NEW DELHI
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... ... ..... llected through dual approach of Revenue to tax service provider and service recipient. 2. We have specifically directed revenue to examine the issue of double taxation, if any, by two Commissionerates. 3. Ld. DR submits today that time was very short to get a reply from the Commissionerate. We, therefore, grant time to Revenue to examine the pleading of the Ld. Counsel as to double taxation of the same service under two different categories by different Commissionerate. 4. We make it very clear that we are hearing such double taxation grievance in similar cases for sometimes past repeatedly. Revenue is accordingly directed to come out with a clear report whether service charges that has been subject matter of tax by the impugned order, are by any means subject matter of double taxation by Commissionerate of Allahabad. Report from that Authority is expected by 30.9.09. 5. Call the matter on 12.10.09. Till then there shall be status quo ante. Order dictated in the open Court.
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2009 (8) TMI 1168 - ITAT DELHI
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... ... ..... on Ltd. (supra), any subsidy that was granted to offset the cost of an asset, would fall within the expression “met directly or indirectly” in the said Explanation, whereas the subsidy received merely to accelerate the industrial development of the State cannot be considered as payments made specifically to meet a portion of the cost of the assets. o p /o p 9.7. In the light of the aforesaid view we are of the opinion that sales-tax subsidy which was received by the assessee cannot be treated as a subsidy in respect the asset employed by the assessee. Therefore, the learned CIT(A) was not justified in giving a direction to the Assessing Officer to reduce the said subsidy from the actual cost of the subsidy u/s 43(1) of the Act. o p /o p Accordingly, ground of the assessee is allowed. o p /o p 10. In the result, revenue’s appeal is dismissed and the appeal filed by the assessee is partly allowed. o p /o p Order pronounced in open court on 28-8-2009. o p /o p
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2009 (8) TMI 1167 - CESTAT MUMBAI
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... ... ..... ived. Needless to mention that failure to comply with the above directions will result in dismissal of all the Appeals. 16. We further hold that once the aforesaid order is complied with, the order impugned in the captioned Appeals will stand set aside and the Appeals will stand remanded back to the Adjudicating Authority, who will pass fresh orders after granting the Appellants sufficient opportunity of being heard and after furnishing copies of all the documents that are relied upon in the show cause notice and further documents they seek to rely, while passing the adjudication order. Further, the permission to cross examine various people as sought by ICCONOL Petroleums Private Limited, vide their reply dated February 6, 2007, will be dealt with the Adjudicating Authority as per law. 17. The appeals filed by the appellants are remanded to the adjudicating authority for de novo decision in the above terms. The stay petitions also stand disposed of. (Pronounced in Court on)
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2009 (8) TMI 1166 - ITAT MUMBAI
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... ... ..... ch specific asset or assets of enduring nature has come into existence. Aggrieved the Revenue is in appeal. 27. We have considered the rival contentions and perused the orders of authorities below. There is no dispute that the repairs were done on a tenanted property. The nature of expenses recorded by the AO clearly shows that they were inevitable for upkeep of the premises. As has been observed by the first appellate authority despite giving a general remark that the repairs were in the nature of enduring benefit, he has not singled out any particular items of expenditure which had the character of enduring nature. Routine painting expenditure cannot be held as that of capital nature; so also replacement of broken tiles, etc. In this view of the matter we agree with the findings of the first appellate authority and reject the ground raised by the Revenue. 26. In the result, the appeal filed by the assessee is partly allowed and the appeal filed by the Revenue is dismissed.
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2009 (8) TMI 1165 - BOMBAY HIGH COURT
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... ... ..... of fact that the profit arising from TDR should be termed as capital gain as such not assessable to tax. The view taken by the Tribunal is a reasonable and possible view. In this view of the matter, we see no substantial question of law involved in this appeal. The same stands dismissed for want of substantial question of law with no order as to costs.
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2009 (8) TMI 1164 - BOMBAY HIGH COURT
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... ... ..... 2008 304 ITR 401 (Bom), however, the same has also not been considered. 4. Considering the inconsistency in the orders, the impugned order is set aside looking to the consensus between the parties and the matter is remanded back to the assessing officer in the light of the judgments of this Court in M.V. Sonawala, J.K. Investors (Bombay) Ltd. and Akshay Textiles Trading & Agencies Ltd. referred hereinabove and the other judgments holding the field with one more clarification that the ratio of calculation of annual rateable value shall be based on the value determined by the municipal authorities. All other questions relating to the interpretation of law are kept open. 4. So far as Income Tax Appeal Nos.759 of 2008 and and 866 of 2008 are concerned, the impugned order is set aside for the reasons recorded in Income Tax appeal No.758 of 2008 and the matter is remanded back to the assessing officer. 5. All the petitions are disposed of accordingly with no order as to costs.
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2009 (8) TMI 1163 - KERALA HIGH COURT
Constitutional validity of certain provisions of the Kerala Stamp Act, 1959, which were introduced by way of an amendment by the Finance Act, 2007 - scope of works contract.
Held that: - there is no reason for the third petitioner to include those conditions, if he is only a works contractor. Those conditions would show that the third petitioner is more than a works contractor. A close reading of Ext.P2 would show that the third petitioner is not at all a works contractor. Yet another relevant fact is that it was the third petitioner who obtained the building permit from Kakkanad Panchayat, under the Kerala Municipality Building Rules, 1999, which were extended by the Government to the said Panchayat's area also. So, it is the responsibility of the third petitioner under the said Rules to build the apartments in accordance with the conditions of the building permit and also in compliance with the relevant Rules. Therefore, the third petitioner is not a works contractor.
If the veil is lifted, it is clear that the builder is building and selling flats to prospective buyers and the sale consideration is received in instalments. But, agreements are made to appear the transaction to be one of works contract. If it is a works contract and the owner is constructing a building in his property, no duty can be levied on the building constructed because no transfer takes place.
A legislation cannot be invalidated by simply saying that its provisions are arbitrary, unless the challenge is referable to specific violation of any constitutional provision. The payment or the liability to pay stamp duty will not, in any way, affect the rights of the first petitioner or its members to carry on the business of development of lands or building flats.
Petition dismissed - decided against petitioner.
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2009 (8) TMI 1162 - ALLAHABAD HIGH COURT
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... ... ..... interest on additional levy sugar price under the Levy Sugar Price Equalization Fund Act, 1976 has been considered and decided against the department by this Court in I.T.R.176 of 1988. Commissioner of Income tax Lucknow Vs. M/s Dhampur Sugar Mills Limited, Bijnor, decided on 9-3-2005. Therefore, appeal does not raise any substantial question of law. It is dismissed accordingly.
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2009 (8) TMI 1161 - CESTAT CHENNAI
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... ... ..... id ₹ 75 lakhs. We accept the payment already made is sufficient for the purpose of compliance with the statutory requirement of Section 35F of the Central Excise Act, 1944 and waive predeposit of balance amount amounts including interest and penalty imposed upon the applicants and stay recovery thereof during the pending of the appeal. (Order pronounced and dictated in the open Court)
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2009 (8) TMI 1160 - ITAT VISAKHAPATNAM
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... ... ..... ly”. Since the learned Counsel appearing on behalf of the assessees mainly pressed for consideration the said concerning exemption u/s 10(26AAB), having regard to the fact that the issue stands squarely covered by the aforesaid decision, we reverse the orders passed by the tax authorities and hold that the income of the assessees herein is exempt from levy of tax by virtue of retroactive operation of Section 10(26AAB) of the Act and direct the Assessing Officer accordingly. 5. In view of our decision on the above said issue, it is not necessary to consider various other issues, which were urged by the assessee in the grounds of appeal. It is not out of place to mention that the learned Counsel did not seriously press for consideration the other grounds in view of the order pronounced by us on the legal issue. 6. In the result, the appeals filed by the assessee are partly allowed and the stay applications are rejected. Pronounced accordingly in the open Court 13-8-2009.
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2009 (8) TMI 1159 - BOMBAY HIGH COURT
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... ... ..... pothesis that the amount does not represent concealed income as with the hypothesis that it does. If the assessee gives an explanation which is unproved but not disproved, i.e. it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee’s case is false. The view taken by the Tribunal is a reasonable and possible view. The appeal is without any substance. The same is dismissed in limine with no order as to costs.
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2009 (8) TMI 1158 - ITAT BANGALORE
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... ... ..... it has been considerably met by the Government looking to the quantum of Government grant received in the instant case for the assessment years under consideration, we feel that the learned CIT(A) was justified in holding that the Educational Institution under consideration has been substantially financed by the Government. The learned CIT(A) held justified by the ITAT in holding that the income is exempt u/s 10(23C)(iiiab) of the IT Act”. The aforesaid decision has not been interfered by the Hon’ble High Court in ITA Nos.186 & 187/2007 dated 29th November, 2007 and 17th December 2007 respectively. 8. Facts and issue being similar, so following the same reasoning, we are not inclined to interfere with the findings of the CIT(A) who has held that the assessee is entitled for exemption u/s 10(23C)(iiiab) of the IT Act. The same is upheld. 9. In the result, the appeals filed by the revenue are dismissed. Order pronounced in the open Court on the date of hearing.
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2009 (8) TMI 1157 - ITAT PANJI
Depreciation on goodwill - consequential claim on WDV - exchange ratio for amalgamation - Claim denied as value of the asset is not a depreciable one - HELD THAT:- We are of the view that the assessee has not established that it has acquired any rights of either commercial or business nature while valuing the goodwill. It is a balancing figure at the time of amalgamation and the focus of the entire valuation report is on fair exchange ratio for merger and allotment of shares of the amalgamated company to the shareholders of the amalgamating companies. Since there are no business or commercial rights involved in paying the amount and the goodwill is being a balancing amount in the scheme of amalgamation after the fair value arrived at for merger of the companies, the facts of the case do fall within the propositions laid by the Hon'ble Tribunal in the case of Bharatbhai J. Vyas v. ITO [2005 (8) TMI 279 - ITAT AHMEDABAD-C].
In the present case the goodwill simpliciter is valued at ₹ 3,05,91,000 and there were no business or commercial rights involved in that goodwill accounted by the assessee. In view of this while agreeing with the principle laid down in the abovesaid case that goodwill simpliciter is not eligible for depreciation we are not in agreement with the proposition laid down by the learned counsel that the amount accounted for by the assessee can be bifurcated into goodwill simpliciter at ₹ 50 lakhs and the balance for other commercial rights. Since no commercial rights are said to have been acquired by the assessee company under the scheme of amalgamation, we are not persuaded by the submissions of the learned counsel.
Moreover in the provisions of s. 32(1)(ii) while mentioning the various intangible assets specifically and also mentioning business or commercial rights of similar nature, the legislature has specifically excluded the word 'goodwill' because it cannot be considered as a commercial or business right. Moreover, as rightly considered by the AO this goodwill is not purchased from any other person but has been acquired in the course of amalgamation in assessee's own books of account as a balancing figure for the assets acquired and the price paid. In view of these provisions, it is very clear that goodwill simpliciter cannot be considered for allowance of depreciation.
In view of this we are in agreement with the orders of the AO and the CIT(A) on this issue and hold that assessee's claim of depreciation on goodwill cannot be allowed on the facts of the case. Accordingly ground No. 1 in all the years is rejected.
Deduction u/s 80IA - Set off of losses and unabsorbed depreciation of the units carried forward - assessee claimed deduction under s. 80-IA on profits from Unit 3 and Unit 4 without setting off unabsorbed depreciation/losses whereas the other two units were under losses - HELD THAT:- This issue is crystallised by the decision of the Hon'ble Supreme Court in the case of IPCA Laboratory Ltd. [2004 (3) TMI 9 - SUPREME COURT] wherein it was held that s. 80-IB has an overriding effect on all other sections in Chapter VI-A. It is now settled law that while computing gross total income necessary set off has to be given to the unabsorbed depreciation while computing income under the head the business or profession and the brought forward losses while arriving at the gross total income. In view of this, the contentions of the assessee cannot be accepted and the orders of the AO and the CIT(A) on this issue arc upheld. Accordingly ground No. 2 in all the appeals is rejected.
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2009 (8) TMI 1156 - KERALA HIGH COURT
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... ... ..... the items of business carried on by them. The argument of Senior Standing Counsel that the case decided by the Gujarat High Court is on different facts, appears to be true because their the crane in that case is mounted on the truck and the truck is admittedly entitled to depreciation at 40 per cent. When the crane mounted on the truck, the crane becomes mobile and when both are let out on hire as a mobile crane, the value of the crane also becomes part of the motor lorry entitling for depreciation on the combined value. Even though the facts in the Gujarat decision are different, we still feel the principle applied by the Gujarat High Court is applicable in this case also, because in this case JCB itself is functionally and operationally used as motor vehicle for transport of goods within limited distances. We therefore uphold the view of the Tribunal that JCB is entitled to higher rate of depreciation claimed by the assessee. In the circumstances, the appeal is dismissed.
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2009 (8) TMI 1155 - ITAT AHMEDABAD
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... ... ..... ellate proceedings. In the result, the addition as made by the Assessing Officer under this head is restricted to ₹ 1,00,000/-. Accordingly, this ground of appeal is partly allowed." 7. From the above, it is observed that addition of ₹ 1,00,000/- was made merely on estimate and the revenue could not bring any material on record to show that agriculture income of ₹ 3,00,000/- disclosed by the assessee was actually and inflated one. In absence of any such material brought on record by the revenue, in our considered opinion merely because of difference due to estimate penalty under section 271(1)(c) cannot be levied. Hence, we set aside the orders of the lower ITA No.1433/Ahd/2009 Shri. Natubhai Naranbhai Virani Asst.Year -2003-04 authorities and delete the penalty of ₹ 31,500/- and allow the ground of appeal of the assessee. 8. In the result, the appeal of the assessee is allowed. Order signed, dated and pronounced in the Court on 7th August, 2009.
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2009 (8) TMI 1154 - DELHI HIGH COURT
Penalty u/s 271(1)(c) - Addition of Short term capital gain under the head “Professional Development Expenses - Disallowance of expenses and under the head “Professional Development Expenses” and under the head Advertisement - Tribunal has set aside the penalty order stating that there was no concealment of income or furnishing of inaccurate particulars - HELD THAT:- Where the assessee has disclosed all material facts in regard to the claim made, the onus placed upon the assessee stood discharged. In the instant case, the assessee had disclosed all the particulars of income. AO disallowed the expenses claimed on the ground that they were not incurred for the business purpose of the assessee and that they have been claimed against exempted income.
Thus, it cannot be held that the assessee has filed inaccurate particulars of income or had concealed its income. Thus, the penalty cannot be levied for this reason also. We also observe that the expenses claimed by the assessee have not been found by the AO as bogus or false.
Thus, the genuineness of the expenses incurred by the assessee has not been doubted by the AO and, therefore, the penalty cannot be levied on the assessee still further, the assessee explained that it was due to genuine mistake that it omitted to show the capital gain on the sale of six cars and that as soon as it was pointed out, the same was accepted by the assessee.
In this context, assessee, by referring to the order of Suresh Chand Mittal, [2001 (6) TMI 63 - SC ORDER] submitted that it has been held that where the department has not discharged its burden of proving concealment and has simply rested its conclusion on the act of voluntary surrender done by the assessee in good faith, the penalty could not be imposed. Hence, for the reasons given in the foregoing, we set aside the order of the CIT (A) and the Assessing Officer and delete the penalty - Decided in favour of assesee.
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2009 (8) TMI 1152 - CESTAT AHMEDABAD
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... ... ..... and Shri P.K. Jalan was directed to deposit Rs. One lakh, in the first round of litigation by the Tribunal, when the matter was remanded to Commissioner (Appeals) for decision on merits, after ascertaining the compliance with the above order. 2. In view of the above, we treat the deposits made by all the appellants as sufficient for the purpose of Section 35F and dispense with the condition of pre deposit of balance amount of dues. All the three stay petitions are disposed off in the above manner. (Dictated & Pronounced in the Court)
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2009 (8) TMI 1151 - ITAT CUTTACK
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... ... ..... satisfy the mandate of the section nor entitle the Revenue to presume or consider the required condition as having been satisfied or proved. In other words, the same, though not disproved, is, yet, not proved, i.e., remains unproved, so that the section cannot be invoked. It is incumbent on the Revenue, in case it wishes to under the circumstances, apply the section, bring on record material which could be said to lead to the satisfaction of its said second condition as well, making requisite investigation or adopt such other means permissible in law at its command. The Revenue, thus, having not discharged the onus for proving the satisfaction of the precedent conditions for the application of the section, its case cannot merit judicial approval and, thus, fails. Needless to add, the impugned appellate order is silent on this issue, i.e., the satisfaction of the second condition aforesaid. We decide accordingly. 8. In the result, the assessee's appeal is partly allowed.
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