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Case Laws
Showing 401 to 420 of 14810 Records
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2013 (12) TMI 1366
Unexplained investment in jewellery - Held that: - The assessee explained the source of acquisition of the jewellery worth about Rs. 38 lakhs with the help of jewellery reports and purchase bills - Though item-wise detail was not submitted, but the weight and the value of the jewellery was submitted by the assessee in the valuation report which was further verified by the AO during the remand proceedings and he did not point out any defect or suspicion regarding validity of the same - The balance of addition is explained by the fact of receiving of gifts - The evidences submitted by the assessee itself were sufficient in the absence of any contrary evidence to show any suspicion about the genuinity of the said documents - The assessee even has filed the statements of jewellery in his Income Tax Returns for the assessment year 2006-07 - It is also very common that as per the customs and practices prevalent in our country, the jewellery/gold etc. is gifted by the relatives and friends of a person at the time of certain occasions like marriages, birth of a child, birthdays, marriage anniversaries etc - The quantum and the worth of the gifts also depend upon the social as well as financial status not only of the donor but of the donee also - It cannot be said to be a case of unexplained jewellery - Decided in favour of assessee.
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2013 (12) TMI 1365
Validity of determining the ALV by adding notional interest on the interest free deposit - Held that:- When the actual rent declared by the assessee is more than the ratable value fixed by the municipal authorities, there is no reason to disbelieve the actual rent declared by the assessee - It is not warranted on the part of the AO to determine the income by taking the fair market rent of comparable properties let out in the localities by ignoring the ratable value fixed by the municipal authorities for arriving at the annual letting value - Decided in favour of assessee.
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2013 (12) TMI 1364
Issue regarding the relevant head of income - Held that:- If an income falls under more than one head, the assessee has the option of choosing for the purpose of income tax, such head which makes the burden on his shoulders lighter - In the absence of any evidence brought by the authorities below to disprove/disbelieve the claim of the assessee treating the impugned receipt under the head 'business income', the authorities below are not justified in treating the same under the head 'income from other sources' - Admission by the assessee made during the survey cannot be the sole basis for taking a decision by the revenue authorities during the assessment proceedings.
Disallowance of interest paid to firm - Held that:- As per clause 12 of the Partnership deed, the partners are entitled to interest on the credit balance in the capital account, as prescribed u/s 40(b)(iv) of the I.T. Act 1961 @ 12% - The partners are also liable to pay interest on the debit balance in capital account on similar basis - the claim of the assessee is emanating out of contractual obligation and is in consonance with the provisions of law - Decided in favour of assessee.
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2013 (12) TMI 1363
Validity of order u/s 263 - Revision by CIT - Erroneous and prejudicial to revenue order - Held that:- Following assessee's own case for the A.Y. 2004-05 - The deprecation claimed by the assessee has been accepted by the Assessing Officer - The items are in the same block and hence, depreciation cannot be disallowed this year - the Revenue cannot be allowed to change its view with regard to a fundamental aspect of a transaction taken in earlier assessment year unless it is able to demonstrate a change in circumstances in the subsequent assessment year - The respondent cannot under Sec.263 interfere on an issue which has been accepted by the Revenue for a number of years particularly when the Assessing Officer in the assessment order for the assessment year 2006-07 takes the same view by terming it erroneous as the respondent is able to demonstrate a change in circumstances in the said assessment year - Decided in favour of assessee.
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2013 (12) TMI 1362
Penalty u/s 271(1)(c) - Held that:- The assessee declared income from capital gains as when realized by him that such income has inadvertently not returned - No show cause notice was issued before 20.02.2004, the revised computation filed by the assessee on the said date cannot be said to declare additional income of the assessee after detection of concealment by the department - Following AVR Prasad vs. ITO [2005 (8) TMI 308 - ITAT HYDERABAD-B] - Penalty cannot be levied if any income is voluntarily declared before any concealment is detected - The Assessing Officer has not found the explanation furnished by the assessee to be false - Penalty cannot be levied if any bona fide mistake is involved - Decided against Revenue.
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2013 (12) TMI 1361
Bond issue expenses - Capital or revenue in nature - Held that:- Following 'India Cement Ltd. vs. CIT [1965 (12) TMI 22 - SUPREME Court] - A loan obtained cannot be treated as an asset or an advantage for the enduring benefit of the business of the assessee; that where the borrowal was incidental to the carrying on of the assessee's business, the expenditure was for securing the use of the money for a certain period - The bond issued was not entitled for conversion into shares and that being so, raising of funds through such bond issue cannot be termed as raising of capital by issuance of shares - Decided against Revenue.
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2013 (12) TMI 1360
Validity of reassessment proceedings - Held that:- The assessee has submitted and disclosed fully and truly all material facts necessary for assessment such as enclosed copies of the detail of commitment charges paid, copies of the rental receipts and rental payments - The Assessing Officer had no reason to believe that the income chargeable to tax has escaped assessment due to non-disclosure - The Commissioner of Income Tax(A) rightly held that the assumption of jurisdiction u/s 147 and 148 of the Act was based on change of opinion - Having second thoughts on the same material and omission on the part of Assessing Officer to draw the correct legal presumption during the assessment proceedings cannot be a basis of initiation of reassessment proceedings u/s 147 of the Act - The Commissioner of Income Tax(A) rightly held that reassessment proceedings do not survive the test of judicial scrutiny and the same are not sustainable - Decided against Revenue.
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2013 (12) TMI 1359
Computation of Long term and short term capital gain (LTCG / STCG) - development of the property and to convert the house into apartments - Quantum of assessment u/s 147 of the act – Held that:- Sale consideration received towards the land should be assessed as long-term capital gain and the profits arising out of the superstructure is to be assessed as short-term capital gain - the assessee is entitled to the benefit of exemption provided under sections 54 and 54F of the Act - The authorised representative has given detailed computation of long-term and short-term capital gain arising out of sale of land and built-up area falling in the share of the assessee - the assessee has conceded the short-term capital gain arising from sale of built-up area - As per the computation, the assessee has earned the long-term capital gain from the sale of land to the developer as Rs. 1,41,33,400 and the long-term capital gain arising out of sale of share of undivided land at the time of sale of built-up area was Rs. 1,14,81,000 - The assessee has invested a sum of Rs.1,60,00,000 in capital gains bonds and Rs. 1,15,00,000 in capital gains scheme totalling Rs. 2,75,00,000 and has claimed deduction under sections 54 and 54F of the Act – Decided against Revenue.
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2013 (12) TMI 1358
Penalty u/s 271(1)(c) of the act – Bogus and unexplained gifts – Held that:- The assessee has furnished particulars of gifts in the return of income originally filed by him – the particulars are not found false as no such satisfaction is found recorded in the orders of the authorities below - There is also no finding by the authorities below as to whether any details supplied in the return are incorrect, erroneous or false – thus, it could not be a case of furnishing inaccurate particulars by the assessee for inviting penalty under section 271(1)(c) of the Act - Following CIT v. Reliance Petroproducts (P.) Ltd. [2010 (3) TMI 80 - SUPREME COURT] - The assessing authority made no enquiry but jumped to the conclusion of imposition of penalty on the basis of quantum addition sustained by the Appellate Tribunal - Even the satisfaction as envisaged by section 271(1B) of the Act is not discernable from the body of the assessment order - The explanation furnished by the assessee is found bona fide – thus, the penalty imposed is set aside – Decided in favour of Assessee.
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2013 (12) TMI 1357
Denial of claim of additional depreciation u/s 32(1)(iia) of the act – New Plant and machinery eligible for depreciation – Held that:- First requirement for being eligible for the claim of additional depreciation is that it should be on a new machinery or plant - A machinery is new only when it is first put to use - Once it is used, it is no longer a new machinery - the machinery on which additional depreciation has been claimed, was already used in various preceding previous years – thus, for the assessment year, it is no more a new machinery or plant - Relying upon The Deputy Commissioner of Income-tax Versus M/s. Brakes India Ltd. [2012 (3) TMI 31 - ITAT, CHENNAI] - Once it is not a new machinery or plant, allowance under Section 32(1)(iia) cannot be allowed - There is nothing in the statute which allows such claim of additional depreciation every year on machinery acquired in earlier year - CIT(Appeals) was justified in confirming the disallowance of additional depreciation – Decided against Assessee.
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2013 (12) TMI 1356
Transfer pricing adjustment on account of payment of royalty – Held that:- Following M/s. SC Enviro Agro India Pvt. Ltd. Versus Dy. Commissioner of Income tax [2012 (11) TMI 1107 - ITAT MUMBAI] - there was no justification for payment of royalty on the ground that it was a case of contract manufacturing - under transfer pricing provisions, the TPO was required to determine arms-length-price and then recommend adjustment which had not been done - The disallowance had been made on the ground that there was no justification for royalty which was not correct - the royalty was payable as per agreement for using of technical know-how on value added price to the principal - Thus royalty payment was independent of manufacturing of goods - royalty had been paid not on entire sale price but only value added price which was worked out separately - The royalty had also been paid on sale to third parties which had been allowed but royalty on sales to AE had not been allowed when rate of royalty was the same - no disallowance had been made in the earlier year – the order of CIT(A) set aside – Decided in favour of Assessee.
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2013 (12) TMI 1355
Whether transfer fees, non-refundable security deposit and nominee occupancy charges are exempt on basis of mutuality - Held that:- Following assessee's own case for the A.Y. 2007-08 - All these expenses are exempt form tax on account of principle of mutuality - Decided against Revenue.
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2013 (12) TMI 1354
Deletion on account of Short Term Capital Gains – Difference of the value of transfer of shares - Applicability of Section 148 - Held that:- Section 153C in fact corresponds to earlier section 158BD relating to assets, documents etc. of any other person found during search or requisition as per chapter XIVB - In such a case, books, documents etc. have to be handed over to the AO having jurisdiction over such third person who will initiated the proceedings and issue a notice to such person u/s 153C of the Act – Following MANISH MAHESHWARI and INDORE CONSTRUCTION P. LTD. Versus COMMISSIONER OF INCOME-TAX [2007 (2) TMI 148 - SUPREME COURT OF INDIA] - if procedure laid down in Sec.158BD is not followed, the block assessment proceedings would be illegal - The provisions of section 153BC are exactly similar to the provisions of section 158BD under block assessment proceedings - The AO has grossly erred in not issuing notice u/s 153C and in not making asstt u/s 153C read with section 153A of the Act - The provisions of section 153C specifically exclude the applicability of provisions of section 148 of the Act.
In the various statement recorded, none of the witnesses was questioned about the sale of shares by the appellant, much less any witness stating that the appellant had been paid any amount over and above the face value of the shares by the buyer of the shares - The AO could have summoned the persons who had negotiated the deal of purchase of shares from the appellant and ascertained whether any amount over and above the face value of the shares was paid to the appellant - there is not an iota of evidence to establish that the appellant received any money over and above the face value for the transfer of shares – Decided against Revenue.
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2013 (12) TMI 1353
Professional and consultancy fee – Held that:- Assessee’s business model is concerned of providing various support services to its parent company located in USA - Service Agreement clearly provides that assessee company would be reimbursed the expenditure incurred with the markup of 8% - The assessee has availed the services of Control Risk Group, Singapore in order to carry out the due diligence and risk analysis with the target hotels, for rendering service to its parent company - These expenses are incurred in the normal course of the business of the assessee and accordingly are revenue in nature.
Consultancy fee for office space – Held that:- The brokerage has been paid for arranging the office space - The premises were not purchased during the year - It was only a case of rental of office space for a limited period – Decided against Revenue.
Advertisement and sales promotion – Held that:- Following C.I.T. vs. Salora International [2008 (8) TMI 138 - DELHI HIGH COURT] - There is no element of brand building or acquisition of brand by incurring such expenses - The concerned brands were not owned by the assessee, but it belongs to the assessee's overseas group entity - Assessee has been reimbursed the entire advertisement and sale promotion expenses by the overseas group entity on cost plus basis – The total expenditure works out approximately 1.9% of the total expenditure - Decided against Revenue.
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2013 (12) TMI 1351
Waiver of pre-deposit of penalty - Misdeclaration of goods - Held that:- applicant in his statement dated 24.09.2009 recorded under Sec.108 of the Customs Act admitted that he had earlier passed several overvalued consignments to various exporters on monetary consideration. Further we find that one Smt. Kirti Rathod, Preventive Officer of Customs who examined the shipping bills in question and found that the declared value was on higher side and thereafter she personally brought this fact to the notice of the applicant and the applicant informed her that valuation is not her responsibility and that it is the work of the superintendent and field officer. In these circumstances, we find that the applicant has not made out a prima case for total waiver of the penalties - Conditional stay granted.
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2013 (12) TMI 1350
Waiver of pre-deposit of penalty - Order passed under Sec. 129E - Held that:- as per the provisions of Sec. 129A of the Customs, the tribunal has jurisdiction to entertain the appeal against the order passed by the Commissioner of Customs as an adjudicating authority or an order passed by the Commissioner of Customs (Appeals) under Sec. 128A of the Customs Act. The present order is passed under Sec. 129E of the Customs Act. Hence as per the provisions of Sec. 129E, no appeal lies to the tribunal against such order - Stay denied.
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2013 (12) TMI 1349
Denial of refund claim - Import made in 1986 - Goods released on payment of redemption fine - Bar of limitation - Held that:- appellant has imported the goods in 1986 and paid the duty and redemption fine at the time of clearance, the said order was challenged by the appellant before the Commissioner (Appeals). Till date, neither the appellant tried to obtain a copy of the order of Commissioner (Appeals) even after they got the communication in 2005 that the appeal has been decided in the year 1987 nor the order of 1987 passed by the Commissioner (Appeals) is on record. In the absence of the fate of the assessment, refund claim is not maintainable. We have further observed that the goods have been imported in 1986 and refund claims was filed in the year 2005-06 which is highly time barred - in the absence of the fate of their assessment refund claim is not maintainable - Decided against assessee.
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2013 (12) TMI 1348
Import of goods duty free under the value based advance Licensing Scheme - Notification No. 203/92-Cus. - Held that:- appellant is a merchant manufacturer is not in dispute and to that fact they have produced a certificate issued by the Divisional Deputy Commissioner certifying that the appellants are the merchant-manufacturer. Therefore, they have not availed the Cenvat credit. This certificate has also not disputed by the adjudicating authority also - appellant have discharged their onus to prove that they have not availed inputs stage credit of the imported goods, which were used in the manufacture of the exported goods. Further, in the case of Consumers Plastic Pvt Ltd., (2001 (7) TMI 456 - CEGAT, MUMBAI) this Tribunal has categorically held that the burden is to prove that the appellants have availed input stage credit is on Revenue. Admittedly, in this case the Revenue has not produced any documentary evidence to show that the appellants or supporting manufacturer have availed input stage credit - Decided in favour of assessee.
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2013 (12) TMI 1347
Availment of Cenvat credit - Waiver of Pre-deposit – Held that:- The container number which is indicated on the bill of entry is reflecting clearly on the transport documents i.e. on the LR issued by the transporters as having been delivered to the appellants – Relying upon COMMISSIONER OF CUSTOMS & C. EX., VAPI Versus DNH SPINNERS [2009 (7) TMI 130 - CESTAT, AHMEDABAD] - this correlation definitely demonstrates that appellant has received the consignment, though the bill of entry is in the name of their Head Office - there is no dispute as regards the receipt of consignment at the appellant’s factory, non-mentioning of appellant’s name in the bill of entry or endorsement by the Head Office is a curable defect – Prima facie the appellant is able to establish case in their favour – stay granted.
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2013 (12) TMI 1346
Supply of ‘Aromatic Compounds’ to various traders – Waiver of Pre-deposit – Held that:- Appellant had filed affidavit/ certificates of various traders who have categorically stated that ‘Aromatic Compounds’ purchased by them from the appellant are being sold to various small and tiny industrial units manufacturing Agarbatis etc. – Following UOI vs. Garware Nylons Limited [1996 (9) TMI 123 - SUPREME COURT OF INDIA] - the appellant had classified the product under Chapter heading 3302 on his knowledge of the product, if the department wants to reclassify the product under Chapter heading 3303, it is for the Revenue to adduce evidence to this regards - there was no evidence found which has been put forth by the Revenue for change of classification of the very same products which are cleared to the traders - Prima facie, the appellant has made case in their favour – Pre-deposits waived till the disposal – Stay granted.
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9911796707
