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Showing 501 to 520 of 14810 Records
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2013 (12) TMI 1265
Exemption u/s 10A – The assessee earned profit in STPI unit whereas incurred loss in non-STPI business - Held that:- Following CIT v. Yokogawa India Ltd. [2011 (8) TMI 845 - Karnataka High Court] - “Total income” used in Section 10A was to be understood as the total income of the STPI unit, which was clear from the first proviso to Section 10A(1) which made a reference to the total income of the undertaking and not to the total income of the assessee - Assessee was entitled for claiming deduction considering its STPI unit separately - CIT fell in error in concluding that giving-effect order suffered from any error prejudicial to the interests of Revenue – Twin conditions for invoking power of CIT under Section 263 of the Act were not satisfied - Decided in favour of assessee.
Payment towards gratuity scheme of LIC – Held that:- Following assessee’ own case for A.Y. 2002-03 [2007 (6) TMI 273 - ITAT MADRAS-C] - The assessee company has a scheme with the LIC of India and the payment is made to LIC of India - LIC of India is an approved institution for maintaining gratuity funds – The issue was restored for fresh examination.
Employee’s contribution to ESI and PF – Held that:- Following CIT v. Alom Extrusion Ltd. [2009 (11) TMI 27 - SUPREME COURT] - Amendment to Section 43B made by Finance Act, 2003, would act retrospectively with effect from 1st April, 1988 – Amount should be paid during the year irrespective of the fact that the contribution was deposited after due date - Decided against Revenue.
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2013 (12) TMI 1264
Interest u/s 234B and 234C – A search and seizure operations u/s 132 were carried out at the premises on 13.03.2008 - Cash amounting to Rs. 3,86,11,000/- was seized - The appellant company requested the assessing officer to adjust the aforesaid amount of Rs. 3,86,11,000/- as advance tax paid by the appellant - Held that:- Following Commissioner of Income Tax vs K.K. Marketing [2005 (5) TMI 58 - DELHI High Court] - Seizure of cash belonging to the assessee firm could be adjusted against its advance tax liability since there is a request by the assessee to adjust the seized cash against the advance payment of tax – Following Commissioner of Income Tax vs Arun Kapoor [2010 (7) TMI 610 - Punjab and Haryana High Court] - On request for adjustment of advance tax liability against seized cash, the assessee is liable to pay interest u/s 234B and 234C - The assessee is also entitled to get benefit of payment of advance tax out of seized cash from the date of making application for adjustment of seized cash as advance tax towards tax liability – Decided against Revenue.
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2013 (12) TMI 1263
Disallowance of interest on capital borrowed for capital WIP - Held that:- AO did not give clear finding on the issue and made adhoc disallowance of 15 % from the profit and loss account - There is no finding recorded by AO that the textile project was not by way of expansion of business - The interest on the borrowed amount for the project was to be allowed as revenue expenditure, as held by the Tribunal - The Tribunal being final court of accepting any finding has found justification in the order of CIT (A) in deleting the addition of ₹ 14,52,654/- because on the facts of the case that the assessee had used the funds for the purpose of its business - Decided in favour of assessee.
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2013 (12) TMI 1262
Rejection of registration u/s 12AA - Held that:- nothing has been brought on record, by the learned Commissioner of Income Tax before denying registration under section 12AA of the Act and approval under section 80G of the Act - Tribunal is a final fact finding authority and has found that - As per the aims and objectives of the trust, registration should be granted - Decided against Revenue.
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2013 (12) TMI 1261
Evasion of taxes - Held that:- The appelant filed revision u/s 264 of the Act - The Commissioner, allowed the appellant to produce the materials in support of the alleged expenditure incurred for improvement of the land sold by the appellant - After having gone through the entire materials/evidence, the revisional authority held that all the documents produced by the appellant in support of his case are fabricated - Spot inspection was also conducted by the revisional authority and it was found that the claim of the appellant in respect of the development/improvement of the land was not genuine - Decided against petitioner.
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2013 (12) TMI 1260
Validity of assessment u/s 147 - Held that:- Notice has been issued within the stipulated time and cannot be treated as barred by time - The AO has also furnished reasons recorded by the assessing officer for reopening the case - The appeal has no merits - Decided against assessee.
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2013 (12) TMI 1259
Deduction u/s 80HHC on goods manufactured and traded by self - Held that:- The deduction u/s 80HHC was a legally debatable issue - After the judgment of Apex Court in IPCA Laboratories (supra) the entire provisions of Income Tax Act under Section 80HHC were modified - If assessee's entire claim had been disallowed because of the decision of the Supreme Court in IPCA vs. DCIT [2004 (3) TMI 9 - SUPREME Court] that would not have tantamounted to assessee concealing its income or furnishing inaccurate particulars of its income, because the assessee has made calculation of deduction u/s 80HHC as per the then prevailing interpretation - In such case the conditions necessary for levy of penalty under Section 271 (1) (c) of the Act are not fulfilled - The Income Tax Authorities did not find that the assessee had either concealed the particulars of his income or furnished inaccurate particulars of such income, to attract the levy of penalty - Decided against Revenue.
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2013 (12) TMI 1258
Penalty u/s 271(1)(c) - Held that:- The firm was reconstituted and that even if the relevant AY, was the first year of the business of the new firm, where the entry in favour of the one of the partners, which was to be paid to her, was not sufficiently explained - Nothing was produced to support the argument that there is no concealment - There was no documentary proof as to the payment of goodwill. If it was goodwill what was the basis for its calculation is also not shown - The Tribunal is a final fact finding authority and it was of the view that income has been concealed - Decided against assessee.
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2013 (12) TMI 1257
Genuineness of unsecured loans and creditworthiness of lenders - Held that:- After the initial burden was discharged by the appellant-assessee, the AO did not accept the application to summon the creditors and proceeded to examine the records namely the bank accounts to find out whether the unsecured loan transactions were genuine - He considered each and every loan transaction and found that none of the individual unsecured creditors could be said to be creditworthy to advance loans for such amounts - The findings recorded by the AO about the creditworthiness of some unsecured loans out of total unsecured loans, does not suffer from any error of law - The AO didnot failed to exercise his jurisdiction in refusing to summon the file of unsecured creditors other than one who had appeared and was examined - Decided against assessee.
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2013 (12) TMI 1256
Whether surplus amount of sale of land is assessable as long term capital gain or adventure in trade - Held that:- The CIT (A) considered the facts and relied upon relevant principles of law, as well as the case laws in arriving at a conclusion that in the given circumstances, the agreement with the coloniser, who had to develop the plots and ultimate sale of the plots to the nominees of the colonisers, at a price to be fixed by the coloniser in which the assessee had no share of excess profits, was not in the nature of any adventure in the nature of trade - The assessee was not engaged in any trade or business of selling land - The transaction was only to get best price of his land, which the coloniser was ready to pay - The ITAT did not commit any error on facts or in applying the principles of law in upholding the findings of CIT(A) - Following Ram Narain Sons (P) Ltd. v. IT Commissioner [1960 (12) TMI 3 - SUPREME Court] - In consideration whether a transaction is or is not an adventure in the nature of trade, the problem must be approached in the light of the intention of the assessee having regard to the "legal requirements, which are associated with the concept of trade or business - Decided against Revenue.
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2013 (12) TMI 1255
Unexplained commission paid – Held that:- The Assessing officer has accepted the payment of commission by Santosh Kumar Agarwal - When the amount has already been assessed in his hands, then the same amount cannot be added in the hands of the assessee to avoid double taxation – There is no justification for making the addition of Rs.16,40,000/- in the hands of the assessee.
Unexplained payment - Held that:- The ITAT found that M/s. Mohan Lal Jain & Sons was having transaction with Sri Santosh Kumar Agrawal only. He was not having any transaction with the assessee firm. M/s. Mohan Lal Jain & Sons have repeatedly asked Sri Santosh Kumar Agarwal, whose wife was a partner in the assessee firm, for making the payment, and Sri Santosh Kumar Agrawal has also confirmed it.
Net Profit rate - Held that:- Profit @ 8 % was justified and accordingly an addition of Rs. Rs.9,649/- was confirmed, and relief of Rs.1,11,149/- was granted - Decided against Revenue.
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2013 (12) TMI 1254
Reference to valuation officer for valuation of land - Held that:- The assessee had purchased the plot in question from the UPSIDC - The UPSIDC had informed the Revenue authority through its letter dated 7.1.1997 that the cost of plot as on 1st April, 1981 was Rs.9.75 per square yard, which has not been disputed by the assessee then in such a situation it was not necessary for the assessing authority to refer the matter to the valuation officer - Once from the documentary evidence and material on record, it is established that the cost of land is Rs. 9.75 per square yard then there appears to be no reason to invoke the provisions of Section 55A of the Income Tax Act - The power conferred in Section 55A deals the controversy to refer to valuation officer, in case there is dispute or doubt or inability to find out the fair market value of capital assets - Decided against assessee.
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2013 (12) TMI 1253
Penalty for concealment of income - Undervaluation of closing stock - Held that:- The assessment was not based on estimation - The assessee had concealed the income by reducing the value of the closing stocks at absurdly lower rate, which was much less than the purchase price without any evidence or material to show that the stock of foodgrains had deteriorated to such an extent, that the valuation would be lesser than the purchase price - The AO applied the lowest of the purchase rates for each of the commodities constituting the assessee's closing stock as obtaining in the month of its purchase - The AO did not estimate such value - In the absence of any other material produced by the assessee he accepted the lowest of purchase price as the value of the closing stock - Decided against assessee.
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2013 (12) TMI 1252
Whether reopening of assessment u/s 147 based on DVO's report constitute reason to believe - Held that:- The Tribunal found that the DVO's report is based on his opinion, and not on any material, which could form the basis of reopening of the cases, and thus it can at best be treated as an information, which will not be sufficient material for recording 'reason to believe' to proceed in the matter - The opinion of the DVO, as to what would be reasonable percentage of architects fees and the supervision charges by the Directors, would not constitute tangible material for exercising powers of reopening the assessment - Following Assistant Commissioner of Income-Tax v. Dhariya Construction Co. [2010 (2) TMI 612 - Supreme Court of India] - The DVO's report per se is not an information for the purposes of reopening assessment under Section 147 of the Act - The Assessing Officer has to apply his mind on the information, if any, collected and must form a belief thereon on reopening the assessment - There has to be something more than the report of DVO for the belief of the Assessing Officer - Decided against Revenue.
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2013 (12) TMI 1251
Whether interest income earned on surplus amount of funds involved in FDRs be treated as business income - Held that:- Following Totgar's Co-operative Sale Society Ltd v. Income-Tax Officer [2010 (2) TMI 3 - SUPREME COURT] - The interest on the FDRs cannot be treated as income from profits and gains of business - The word 'income' has been defined in Section 2 (24) (i) of the Act to include 'profits and gains'. Sub-section is an inclusive. The business profits have been specifically included in the word 'income' - The assessee-company had invested the surplus funds, which were not immediately required by it, in FDRs, which were later on encashed and used for expansion of business - The deposits made by the company were not in the regular course of business, nor it was the business of the company to make deposits and earn interest - The interest income cannot be said to be attributable to the activities of the company. The interest had accrued on the funds, which were not immediately required by the assessee-company for its business purposes and which were invested in FDRs - The assessee company is engaged in the business of manufacture of oxygen and nitrogen gas; re-rolling of steel; and fabrication of railway wagons. The surplus profits retained by the company were kept in FDRs - The interest earned on such income was not earned out of business regularly carried out by the assessee company - Decided in favour of Revenue.
Deduction u/s 32AB of interest earned on FDRs - Held that:- The AO had rightly disallowed the deductions under Section 32AB out of the interest income treating the same as income from other sources - Decided in favour of Revenue.
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2013 (12) TMI 1250
Whether reopening of assessment u/s 147 is permissible on the basis of audit report - Held that:- The audit report was not the only information, which persuaded the assessing authority, to issue notice under Section 142 (1) of the Act - The audit report was submitted on 17.11.2008, and was available on record - The Assessing Officer after examining the judgments of the Supreme Court in Liberty India [2009 (8) TMI 63 - SUPREME COURT] - The AO formed an opinion to issue notice under Section 142 (1) of the Act, fixing 15.06.2012 to submit the specified documents mentioned in the questionnaire attached with the notice dated 31.5.2012. The Assessing Officer did not commit any jurisdictional error in issuing the notices - Decided against petitioner.
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2013 (12) TMI 1249
Unreasoned order of Tribunal - Valid or not - Held that:- Though tribunal has extended the benefit of its earlier judgement while deciding the controversy as raised, but not indicated as to what and in which manner the case is identical to the earlier judgment - It was incumbent upon the tribunal to discuss the similarity between two controversy, one which was decided earlier and the other i.e. the case in hand - If the tribunal would have compare the similarity between two disputes the one of which was decided earlier and thereafter parity have been extended then finding should have been recorded with regard to similarity of dispute – Following Assistant Commissioner, Commercial, Tax Department, Works Contract and Leasing, Quota Vs. Shukla and Brothers [2010 (4) TMI 139 - SUPREME COURT OF INDIA] - It shall be obligatory on the part of the judicial or quasi judicial authority to pass a reasoned order while exercising statutory jurisdiction - Reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases - The tribunal has been failed to discharge his obligation by not discussing the evidence and material available on record extending parity to the respondent - The order is unreasoned and decided without discussing the similarity between the case in hand and the earlier judgement of tribunal – The issue was restored for fresh adjudication.
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2013 (12) TMI 1248
Application for renewal of exemption u/s 80G - Held that:- The petitioner neither misutilised the grant nor utilised it for any business - The observations of CIT that the interest was utilised for business is not based on any material and the discussion of the manner in which the interest was utilised - He also did not record any finding that the respondent assessee did not comply with the terms and conditions of the utilisation of the grant - Section 80G(5)(i)(b) provides the condition for exemption or rejection of the application for renewal, if the donation made to the institution or funds are not used by it directly or indirectly for the purpose of such business - The Commissioner did not record any such finding that the funds, which was earmarked and was kept in separate account in fixed deposit was not used by the respondent assessee directly or indirectly - There was no occasion to misuse the funds as the hospital had not yet started and thus the plant and machinery could not be purchased from the grant, which was kept in fixed deposit - Decided against Revenue.
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2013 (12) TMI 1247
Utilization of advance license - Whether the petitioner proprietorship of U.K. Paint (India) Limited can utilise advance licences in respect of goods imported earlier - Held that:- advance licences could be issued subsequently, even after the goods had been imported or arrived. The only stipulation was that the goods should not have been cleared. It is not the case of the Revenue that the goods had been cleared. The Advance license in terms of paragraph 65 of the policy could have been used for clearing the goods in question. Section 72 does not relate to clearance of goods but refers to the term “removal of goods” and the duty payable on deemed removal. The case of the Revenue/respondents is that the duty had to be paid and was calculated in terms of Section 72(1) on the date the period of warehousing came to an end, i.e., on 27th January, 1996.
Whether the petitioner is liable to pay interest under Section 61(2) of the Customs Act, 1962 - Held that:- as the petitioner has already paid custom duty in terms of the interim order, we do not think it will be appropriate to ask petitioner to furnish advance/duty free licences with DEEC book at this stage. This may also not be in the interest of the respondents as they will have to refund duty paid, with interest. Accordingly, it is directed that customs duty paid by the petitioner in terms of the interim order dated 25th February, 1999 will be treated as final and binding and “no interest for delayed payment will be recoverable” - Decided in favour of assessee.
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2013 (12) TMI 1246
Imposition of anti-dumping duty - Imports of NTCF from China - manner of decision - principles of natural justice - Held that: - Anti Dumping Duty was rightly imposed in the fitness of the circumstances of the case. Recommendations of DA notifying no cessation of antidumping duty are not at all faulty since he had carried out a detailed examination of various facts to come to the conclusion that the subject goods originating in or exported from Chinese Taipei, Indonesia and EU (excluding France) have been exported below their normal value, resulting in dumping. He also came to the conclusion that in the case of revocation of anti dumping duties, the dumped imports from these countries are likely to continue to cause injury to Domestic Industry.
The resultant customs notification issued by Ministry of Finance imposing anti-dumping duty is based on sound reasons. Both the notifications are therefore upheld. All the grounds raised by the appellant in the present appeal against mid-term review initiated at its instance being devoid of merit, the appeal is liable to be dismissed.
If one person hears and other decides, then personal hearing becomes an empty formality. In the present case, admittedly, the entire material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no occasion to hear the appellants herein. In our opinion, the final order passed by the new DA offends the basic principle of natural justice. Thus, the impugned notification having been issued on the basis of the final findings of the DA, who failed to follow the principles of natural justice, cannot be sustained. It is quashed accordingly.
The appellants cannot claim refund of duty already levied in as much as they have not specifically challenged the findings of the sunset review, and therefore, the findings in relation to the existence of dumped imports, material injury to domestic industry and causal link between dumped imports and material injury to domestic industry remain unchallenged - Following decision of AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION Versus THE DESIGNATED AUTHORITY & ORS. [2011 (1) TMI 7 - SUPREME COURT OF INDIA] - Decided against assessee.
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