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Showing 341 to 360 of 14810 Records
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2013 (12) TMI 1426
Demand of service tax - Repair of damaged electric motors - Penalty u/s 75A and 76 - Held that:- As per entry at Section 65(64) as it stood at the relevant time and reproduced above only activities carried out under a maintenance contract was covered in clause (i). The appellants had no maintenance contract with their customers. Clause (ii) was applicable only to a manufacturer of the goods or persons authorized by him. The appellants were not the manufacturer of the goods or a person authorized by such manufacturer. So the activity was not covered by the definition at Section 65(64) at the relevant time. So the demand is not maintainable. Consequently interest and penalties also does not arise - Decided in favour of assessee.
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2013 (12) TMI 1425
Penalty u/s 75A, 76 and 78 - Invokation of power u/s 80 - Business Auxiliary Service - Held that:- appellant is not contesting the Service Tax amount and interest demanded. The appellant is a small service provider and the levy in question was in the initial stage of implementation. The very name of the service viz “Business Auxiliary Service” does not give any clarity and the entry covered different types of activities. So there was confusion in the minds of people about the actual scope of such service. For that reason, the appellant was not able to claim the Service Tax amount from the HDFC Bank and consequently there was some delay in remitting the tax to the Government. In this type of situation, it is proper to invoke powers under Section 80 of Finance Act, 1994. The Adjudicating Authority rightly did so and there was no reason to reverse such order and impose penalty on the appellant - Decided in favour of assessee.
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2013 (12) TMI 1424
Stay of demand - Held that:- As per the CBDT Instruction, which is prevalent as of now is that in the normal course, the payment will not be stayed but can only be done for valid reasons and merely because an appeal has been preferred against the assessment order would not entitle a party to the stay - The petitioner-Trust is admittedly having Rs. 120 Crores in its account and, therefore, is in a position to make the payment - The Tribunal has, while taking into consideration the liquidity position of the petitioner-Trust and also keeping in view the interest of revenue, proceeded to stay 75% of the outstanding demands in dispute and has only required the petitioner to make payment of 25% of the outstanding demand - The petitioner has only been asked to deposit Rs. 11,40,43,550/- on or before 31.12.2013 - On such deposit and production of the original receipt before the Registry, the main appeals of the petitioner have been directed to be fixed in the month of January, 2014 - Decided against petitioner.
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2013 (12) TMI 1423
Validity of reassessment u/s 147 - service of notice - Held that:- The assessment proceedings were reopened after giving notice in terms of Section 148(1) of the Act - The assessee's accountant had received the notice and the assessee has subsequently attended the proceedings - A perusal of assessment records goes to reveal that Shri Tarsem Pal, Accountant was duly authorised to receive the notices and the services were rightly effected u/s 282 of the I.T. Act - Action of the AO in reopening the case under Section 147 of the Act as also of service of notice under Section 148(1) of the Act on the assessee through its representative, to be valid and legal - Decided against assessee.
Undisclosed octroi income - Held that:- The assessee has failed to show supporting entries showing payment of octroi - Decided against assessee.
Reserves on account of Sundry World Bank Account - Held that:- It was entire sale price charged in advance - The assessee did not refund the balance amount immediately at the time of delivery of tractor - The amount received as sale price in advance was clearly in the nature of trading receipt and the entire amount is clearly assessable as income of the assessee - The adjustment on account of refunds should be made in the year in which the deposits was actually received between the assessment year 75-76 to 77-78 - Decided against assessee.
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2013 (12) TMI 1422
Validity of assessment u/s 147 - Held that:- Chart of computation of income was furnished along with the return, share of the assessee was mentioned as 20% in the rental income, whereas during scrutiny of the cases, it was found that the assessee had not disclosed her income truly in the income tax return - When pursuant to notice under section 148 of the Act, the assessee had furnished the return, income was declared disclosing 25% share in the income of the property - It was thus clearly a case of escape of income from the assessment - It was not at all a case of 'change of opinion' but was a clear case of 'escapement of income from assessment' - Decided against assessee.
Whether simple interest or compound interest charged by the bank on the amount borrowed by the assessee be allowed - Held that:- As per section 24(1)(vi) of the Act - Amount of interest payable on capital borrowed, for construction of the property yielding income, is an admissible deduction - Only interest payable on such borrowed capital is to be deducted while computing income chargeable to income tax under the head 'income from house property” - Interest paid on interest levied by the bank, because of non-payment of instalments of borrowed capital to the bank, does not qualify for an admissible deduction - Decided against assessee.
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2013 (12) TMI 1421
Whether question of law raised first time before Tribunal be entertained - Held that:- On transfer of flats by the assessee the AO treated the capital gain as short term whereas the CIT(A) treated it as long term term capital gain - The issue was of gain being either short term or long term - The Revenue neither before the Assessing Authority nor before the First Appellate Authority claimed it as business income - For the first time, before the Tribunal without any factual foundation, the said contention could not have been raised - The Tribunal is justified in declining to entertain the appeal on that ground - Decided against Revenue.
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2013 (12) TMI 1420
Whether expenditure incurred in excavating a drain to discharge effluents is revenue or capital - Held that:- Following Commissioner of Income Tax V/s Glen View Rubber Co. (P) Ltd. [2007 (1) TMI 121 - KERALA High Court] - Any expenditure incurred in complying with statutory requirements particularly where the asset concerned would enure to the benefit of the assessee from year to year, would necessarily be an asset of enduring nature - Such asset should be categorised as capital expenditure - The mere fact that the land is not owned by the assessee, is irrelevant as by excavating the drain through forest land on the basis of approval granted by the Forest Department, the assessee has been able to overcome statutory requirements for release of effluents as prescribed under the Pollution Control Act - Expense incurred upon construction of the drain for release of effluents have conferred benefit of an enduring nature upon the assessee - Decided in favour of Revenue.
Compensatory afforestation - Held that:- The assessee had offered gross amount of interest including TDS to tax in the Assessment year 1992- 93 - The assessee was not allowed credit for the TDS for want of TDS Certificates - The assessee could not obtain TDS certificates - Following Sutlej Cotton Mills Limited v. CIT [1978 (9) TMI 1 - SUPREME Court] - What is material is the factors or the circumstances which cause loss and the true nature and character of loss - If the loss occurred during the course of carrying on the business, it is incidental to it and hence allowable - The assessee having suffered loss, the expenditure had to be allowed as revenue expenditure - Decided against Revenue.
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2013 (12) TMI 1419
Product Development Cost - Capital or Revenue - Held that:- The development was on account of scientific research - The evidence on record shows most of the money is spent towards cost of the employees, who had developed the product, multi channel customer relationship management solution, which provides sales, marketing, services, human resources and finance through the medium of e-mail, chat, wireless, fax, phone, etc. to the end users - The expenditure in respect of the scientific research, even if it is capital in nature as it was incurred in relation to the business carried on by the assessee under Section 35(1)(iv) of the Act - the said expenditure is to be deducted - Decided against Revenue.
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2013 (12) TMI 1418
Penalty u/s 271(1)(c) - Held that:- The assessee has himself disclosed his additional income vide letter before passing of assessment order - Following Commissioner of Income Tax, Ahmedabad Vs. Reliance Petro-products Private Ltd [2010 (3) TMI 80 - SUPREME COURT] - There has to be concealment of the particulars of the income of the assessee and secondly, the assessee must have furnished inaccurate particulars of his income in order to be covered u/s 271(1)(c) - The assessee himself disclosed the value of land and calculated long term capital gain - Decided against Revenue.
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2013 (12) TMI 1417
Allowance of burning loss - Held that:- Following assessee's own case for earlier years - The Tribunal had not at all examined the various factors which were taken by the Commissioner of Income Tax (Appeals) in accepting the burning loss shown by the appellant - It had rejected the trading loss by invoking sub-section (1) of Section 145 of the Act - Provisions of sub-section (1) of Section 145 of the Act has rightly been invoked, the estimate of income has to be based on some materials - The Commissioner of Income Tax (Appeals) had taken into consideration various factors while accepting the burning loss shown by the appellant which in our considered opinion the Tribunal had failed to advert into - The issue was set aside for fresh adjudication.
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2013 (12) TMI 1416
Loan taken at higher interest rate than bank rate - Held that:- The Tribunal has confirmed the finding of CIT (A) and AO - The appellant borrowed from the outsiders at 18%, the capital borrowed from family members and sister concern was at 24% - Bank rate was not more than 21% - The A.O. tried to enter into the true nature of transaction in which he found it unreasonable for the assessee to borrow from the family members at a higher rate than the borrowings from outsiders - The payment of interest to the family members and sister concern at 24% was diversion of profits - It was found highly unusual for a person to borrow from the family at higher rate than the rate prevailing in the market and the rate of interest to be paid to the bank - Decided against assessee.
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2013 (12) TMI 1415
Depreciation for the purposes of section 115JA - Held that:- Following Apollo Tyres Ltd Vs. CIT [2002 (5) TMI 5 - SUPREME Court] - Company as well as Registrar of Companies is obliged to satisfy that the accounts of the company are maintained in accordance with the requirements of the Companies Act - The book profits u/s 115JA, depreciation shall be computed on the same method and rates, which have been adopted for calculating the depreciation for the purpose of preparing the profit and loss account laid before the company at its Annual General Meeting in accordance with the provisions of Section 210 of the Companies Act, 1956 - The department did not bring anything on record, which could have established that the accounts of the company were not maintained in accordance with the requirements of the Companies Act - Decided against Revenue.
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2013 (12) TMI 1414
Whether transactions of purchase and sale of shares constitutes business income - Held that:- The facts in the impugned year do indicate that the transaction cannot be considered as investment in shares - Regarding transactions in F&O - There is no delivery of the shares - Shares of Cybermedia were purchased and sold on the same day - Therefore these should also be treated as business income - The authorities are of the view that remaining transactions should also be treated as business activity - There can not a situation where part of transaction can be treated as business and other as investment - The period of holding has never exceeded 150 days - It cannot be considered that assessee's intention is to invest in shares as there is large turnover within a short period - The intention is not to make investments for long periods as the frequency of transactions is very high - Decided against assessee.
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2013 (12) TMI 1413
Deletion of Confirmation of Gross receipt – Held that:- Only profit portion has to be brought to tax after considering the facts and reasonably estimating the profit margin of the appellant - the appellant has acted only as a mediator between the consigner and the truck-owner/driver and the consideration is only commission and not freight - He does not have any vehicles of his own - the appellant is only a commission agent - The CIT (A) has followed the order of the Tribunal while directing the Assessing Officer to apply net profit rate of 7% - There was no infirmity in the direction given by the Ld CIT (A) to the Assessing Officer to apply net profit rate of 7% - decided against Assessee.
Confirmation of Addition of 40% of Expenses of office expenses and fuel expenses - Held that:- The appellant has not submitted anything - the appellant has miserably failed in substantiating his claim and discharging his onus of proving the genuineness of expenses - the disallowance made by the A.O. confirmed - No material has been placed before us to rebut the findings recorded by the CIT (A) - the expenses are not fully vouched – Decided against Assessee.
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2013 (12) TMI 1412
Deletion on account of expenditure claimed towards shifting of plant and machinery – Held that:- The expenditure incurred was towards shifting of plant, machinery, equipments files and records, etc., to the second location at Balanagar consequent upon sale of its industrial land at Kavadiguda where these plants and machineries were earlier located - No new plant or machinery has been set up by the assessee - The Assessing Officer has not given any reason as to why he considers the expenditure as capital in nature - during the remand proceeding though the assessee has produced all evidences with regard to the expenditure incurred towards shifting, the Assessing Officer has not offered any comment why he considers the expenditure as capital in nature - the expenditure incurred was towards shifting existing plant, machinery equipments, records, etc. - The incurring of expenditure did not result in any benefit of enduring nature to the assessee – Thus, the expenditure incurred is revenue expenditure and as such is allowable.
Relief on account of Computation of book profit by AO u/s 115JB(2)(vii)of the Act – Held that:- The period for which the assessee becomes entitled for deduction under the aforesaid provision commences from the assessment year in which it becomes a sick industrial company and ends in the assessment year during which the net worth becomes equal to or exceeds the accumulated losses - for the first time the net worth has exceeded the accumulated losses during the impugned assessment year - the provision contained in clause (vii) to Explanation 1 of section 115JB is very much applicable to the assessee - the assessee is entitled to claim deduction under the provision - the AO has not correctly interpreted the provision of the Act – the letter relied by AO reveals the fact that nowhere the Board has made any adverse comment with regard to the assessee's claim of deduction under clause (vii) to Explanation 1 of section 115JB(2) for the impugned assessment year – Decided against Revenue.
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2013 (12) TMI 1411
Allowance of the claim of exemption under Section 54F of the Act – Held that:- The possession of the property has already been given by the assessee - the registration which was made on 1-9-2005 was a formality - the crucial date of transfer has to be taken into consideration as 16-4-2005 - Even and otherwise, the assessee has invested huge amounts before this date and the assessee claimed deduction only of Rs.33 lakhs or odd – there was no infirmity in the order of CIT(A) – The deduction u/s 54F allowed - Relying upon ACIT Vs. Dr. P.S.Pasricha [2008 (1) TMI 649 - ITAT MUMBAI] - the deduction under Section 54F is allowable even the funds were taken on loan – decided against Revenue.
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2013 (12) TMI 1410
Addition on account of unexplained investment based on statement – Held that:- during the course of search statement u/s 132(4) was recorded of the assessee by which it was admitted that he will disclose a sum of Rs. 60 Lakh for the year in consideration and amount of Rs. 65 Lakh for assessment year 2008-09 - while filing the return no such amount was declared by the assessee as assessee retracted from the statement, for the reasons that no such investment was made in shares as only Rs. 2.50 lakh was given as advance on account of purchase of share - Neither there was any purchase was made by the assessee nor any incriminating documents were found.
If there no shares were purchased and assessee has paid only 2.50 Lakh in advance then ofcourse, addition should not have been made only on the basis of statement made u/s 132(4) - there should be some corroborative evidence – but there was no corroborative evidence found from which it can be said that assessee has made investment of Rs. 60 Lakh - Only on the basis of statement recorded u/s 132(4) this addition has been made and sustained - no addition could be made or sustained simply on the basis of statement recorded at the time of survey/search - AO made addition on the basis of statement recorded and no other enquiry has been made, neither case has been examined properly, nor the fact that the company in which the assessee is a director has surrendered additional income – The matter should go back to the file of the Assessing Officer –Decided in favour of Assessee.
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2013 (12) TMI 1409
Object of “general public utility” – Held that:- Following the assessee’s own case for the A.Y. 2008-09 - On performance in the nature of Dance, Drama, Music education and making auditorium available for school and colleges, theatre groups and taking nominal charges for making the auditorium available for such activities cannot be termed as unreasonable – The assessee was considered as charitable organization – Activity of making available to other institution for the purpose of promoting dance, drama music etc. is in the nature of charitable activities and same does not result in any earning to the trust - To earn income for the purpose of carrying on the charitable activities, the trust had partly let out the premises so as to earn regular income - Decided against Revenue.
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2013 (12) TMI 1408
Additions on account of undisclosed stock - Non-granting adequate opportunity to produce the evidences – Held that:- The assessee had not been granted adequate opportunity to explain the stock of jewellery in respect of the customers who had given the gold jewellery for making the ornaments - The assessee had not been granted adequate opportunity to explain the issues in the course of assessment - The additions had been made only on surmises and conjectures without giving the assessee adequate opportunity to explain the individual items - The assessee has produced certain fresh evidences before the Tribunal in the form of affidavits – The issue was restored to AO for fresh adjudication.
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2013 (12) TMI 1407
Disallowance u/s 37(1) – Held that:- The AO has only disallowed these expenditures because he is of the view that such expenditure need not be incurred when the assessee has income assessable as per the provisions of section 48 of the Act - The assessee is a company and the expenditure was required to be incurred as the company had to maintain its staff and office as also the management fees had to be incurred in respect of various investments that the assessee did in the course of its business - The ld. CIT(A) has considered the fact that the assesee is an investor and is in the business of making investments the income from some of which are exempt from tax – Decided against Revenue.
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