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Showing 41 to 60 of 2843 Records
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2015 (10) TMI 2814
Non prosecution of appeal - HELD THAT:- When the matters were called up for hearing today, no one has appeared on behalf of the assessee. The assessee has not filed any adjournment applications also. The notices of hearing sent to the assessee have not returned unserved. In these circumstances, it appears that the ass-the appeals filed by the assessee are dismissed for non-prosecutionessee is not interested in prosecuting his appeals. The appeals filed by the assessee are, therefore, liable to be dismissed, for non-prosecution.
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2015 (10) TMI 2813
Disallowance of bogus expenses - action of the CIT(A) in disallowing expenses @ 2.5% as against 5% disallowed by the AO - HELD THAT:- We find that the assessee had claimed certain expenditure and no supporting evidences have been filed before the Assessing Officer. However, before the ld. CIT(Appeals), some vouchers were filed, which were perused in the presence of the AO and found that some vouchers are self-vouched. CIT(Appeals), keeping in view all the factors, restricted the disallowance from 5% to 2.5%. Therefore, we find no reason to interfere with the order passed by the CIT(Appeals) and accordingly, we dismiss the grounds raised by the Revenue.
Addition towards unexplained investment in land - HELD THAT:- CIT(A) satisfied about the source of fund in assessment year 2003-04 that it came from M/s LKS Petroleum India Pvt. Ltd. CIT(A) is not justified in giving direction to the Assessing Officer to consider the same in assessment year 2004-05. In our opinion, if the cheque is issued from LKS Petroleum India Pvt. Ltd and is duly reflected in the books of account of LKS Petroleum India Pvt. Ltd and they are filing return of income then there is no question of treating the same in the hands of assessee as unexplained investment in assessment year 2004-05. As such, the assessee has to explain the same before the Assessing Officer - we are remitting this issue to the file of the AO for fresh consideration.
Unexplained expenses - CIT(A) deleted the addition on the reasoning that this was duly reflected in the books of account of DMDK party - contention of the ld. DR is that DMDK party is not maintaining the proper books of account and the expenses are not reflected in the books of DMDK party - HELD THAT:- As submitted that it was reflected in the books of account of the DMDK party. However, no material has been furnished to show that this amount of ₹ 25 lakhs is duly accounted for in the books of account of DMDK party. As such, we are not in a position to express any opinion on this issue and this requires further verification at the end of the AO - Accordingly, we remit this issue back to the file of the Assessing Officer for verification after giving adequate opportunity of hearing to the assessee.
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2015 (10) TMI 2812
Short term capital loss on account of forfeiture of share warrants - whether the share warrants could be treated as a capital asset under Section 2(14)? - HELD THAT:- As decided in SHRI CHAND RATAN BAGRI [2010 (1) TMI 123 - DELHI HIGH COURT] the share warrant is a capital asset. It is stated that the Revenue has not filed an appeal against the said judgement on account of the low tax effect.
Since the aforementioned judgment of this Court holds the field, no substantial question of law arises in this appeal.
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2015 (10) TMI 2811
Levy of service tax - Goods Transport Agency service - purview of transport of goods by road services - services of several transporters for transport of mined coal from coal face to coal stockyards in appellant's own dumpers - Rule 4B of the Service Tax Rules, 1994 - HELD THAT:- The definition of "Goods Transport Agency" in Section 65(50b) clearly specifies that Goods Transport Agency means any person who provides services in relation to transport of goods by road and issues a consignment note by whatever name called. The Explanation under Rule 4B of the Service Tax Rules, 1994 clarifies that consignment note is a document, issued by a goods transport agency against the receipt of goods for the purpose of transport of goods in a goods carriage and contains other specified details.
Clearly, as no consignment note as generally understood or delineated in Rule 4B was issued by the transporters to the appellant in the transactions in issue, the classification by the impugned order that appellant received transportation of goods by road service, is unsustainable - Appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2810
Tax rate for royalty income - Determination of tax liability on income earned by way of Royalty earned by the assessee in India - India-USA DTAA - different rates for different payments - income arising out of agreements entered prior to 01.06.2005 were offered under the provisions of DTAA at the rate of 15% and income arising on account of agreements entered after 01.06.2005, were offered for taxas per the provisions of Section 115A of the Act, at 10% - HELD THAT:- We find that the issue raised by the Revenue in this appeal is squarely covered by the decision of the coordinate bench in IBM World Trade Corporation v. DDIT [2012 (5) TMI 58 - ITAT BANGALORE] CIT (A) has reproduced this decision in its entirely in his order. Nothing has been brought before us by the Revenue to take a different view. Especially so since the decision relied on by the CIT (A) was that of the assessee itself for an earlier year on the same set of facts.- Decided against revenue.
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2015 (10) TMI 2809
Reopening of assessment u/s 147 - AO sought to reopen the assessment after the period of limitation prescribed u/s 147 - HELD THAT:- As per the first proviso to section 147, the AO can reopen the assessment after expiry of four years from the end of the relevant AY where the assessee is in default in filing of its return of income u/s 139 or failed to respond to notices u/s 142(1), 148 or failed to fully and truly disclose all information necessary to complete the assessment of its income. In the present case, AO could have reopened the assessment by the end of AY 2009-10 - AO has issued notice u/s 148 of the Act on 25/02/2011. Therefore, the AO has sought to reopen the assessment after the period of limitation prescribed u/s 147 of the Act, even though there was no failure of the assessee to disclose fully and truly all material facts necessary for the assessment of its income. The AO has not recorded any finding to such a default committed by the assessee and also assessee was not at fault. Hence, we dismiss the revenue appeal as not sustainable.
For AY 2006-07 depreciation was claimed on goodwill which is not as per section 32(ii) of the Act - From the Fixed Assets Schedule filed by the ld. AR, he has clearly demonstrated that the goodwill was wrongly capitalized instead of clubbing the sales tax liability with the cost of plant & machinery. We do not find any escapement of income to the revenue as the depreciation will be same when calculated on the revised plant & machinery cost.
AO has completed original assessment after making due enquiry and proper application of mind on the issues on which assessment was reopened. Even otherwise, the AO relied on the assessee’s explanation on the issue vide letter No. TCPL/15/08, dtd. Nil, which was very much available on record before AO while completing the assessment u/s 143(3) on 19/12/2008. Hence, no new evidence has come to the notice of the AO. Hence, in our view, reopening in the present case was on change of opinion after passing of the assessment order. We dismiss the revenue appeal for this year also. - Decided in favour of assessee.
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2015 (10) TMI 2808
Deduction u/s.80IA - claim denied in respect of the profits relating to captive generation of power which could not be considered as profits “derived from” an identification industrial undertaking - Whether CIT(Appeals) erred in holding that the assessee was entitled to deduction u/s.80IA from the two power generating units situated in the main manufacturing plants producing news print and writing paper, set up for captive consumption as they did not qualify to be considered as separate industrial undertakings within the meaning of clause (iv) of sub-section (4) of sec 80IA? - HELD THAT:- As decided in own case [2011 (6) TMI 776 - ITAT CHENNAI] assessee is bound to succeed in these appeals. Its claim for deduction under Section 80-IA of the Act has to be allowed in respect of its power generated from TG-3 Boiler 4 and TG-4 Boiler 5 units as well.
Initial assessment year referred to in section 80IA(5) - unabsorbed depreciation and carried forward losses of the earlier years which had already been set off against the other income to be carried forward and taken into consideration for the purpose of computation of deduction u/s.80IA - HELD THAT:- As decided in Velayudhaswamy Spinning Mills (P) Ltd [2010 (3) TMI 860 - MADRAS HIGH COURT] eligible business were the only source of income during the previous year relevant to initial assessment year and every subsequent assessment years. When the assessee exercises the option, the only losses of the years beginning from initial assessment year alone are to be brought forward and no losses of earlier years which were already set off against the income of the assessee. Looking forward to a period of ten years from the initial assessment is contemplated. It does not allow the Revenue to look backward and find out if there is any loss of earlier years and bring forward notionally even though the same were set off against other income of the assessee and the set off against the current income of the eligible business, Once the set off is taken place in earlier year against the other income of the assessee, the Revenue can not rework the set off amount and bring it notionally. Fiction created in sub-section does not contemplate to bring set off amount notionally. Fiction is created only for the limited purpose and the same can not be extended beyond the purpose for which it is created.
Incentive on carbon credit is capital in nature - capital or revenue receipt - HELD THAT:- Similar issue was decided by the Andhra Pradesh High Court in the case of CIT v. My Home Power Ltd [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT] wherein it was held that income received from sale of carbon credit is considered as capital receipt and not business receipt and not liable for tax under the Act. Accordingly, we agree with the finding of the Commissioner of Income-tax(Appeals) on this ground and dismiss the ground of appeal taken by the Revenue.
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2015 (10) TMI 2807
Estimation of 25% profits on unverifiable purchases - HELD THAT:- Both the parties agreed that the issue in question may be set aside to the file of the AO to decide the same afresh after the judgement rendered in the case of Anuj Kumar Varshney & Others vs. ITO [2015 (4) TMI 533 - ITAT JAIPUR] after giving the assessee a reasonable opportunity of being heard in accordance with law. Ground No. 2 of the assessee is allowed for statistical purposes.
Disallowance of expenses - HELD THAT:- We find merit in the arguments of the ld. DR that the assessee has neither denied the deficiency in the record in question nor has given any improvement in compliance of the record. In view of all these defects, there is no mitigating circumstance to disturb the estimate made by the AO. Assessee has not given any reason to suggest that the estimate is either arbitrary or unjustified. In view thereof, I see no infirmity in the order of the ld. CIT(A). Ground No. 4 of the assessee is dismissed.
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2015 (10) TMI 2806
Claim of interest for an extended period - repeated and consecutive delays in handing over the site due to which the Respondent could not complete the work within the stipulated time - price escalation clause - the claim of the Respondent stood barred by the principles of prescription as contained in the Limitation Act, 1963 - HELD THAT:- The payment of the Final Bill and Security Deposit could not be construed to accept or acknowledge the damages raised by the Respondent and therefore Section 19 would not per se extend the period of limitation. Furthermore, there could be no extension Under Section 18 on account of the acknowledgement in writing, as at each point that the Respondent raised a claim for damages, it was specifically refuted by the Appellant State, and the amounts that were accepted by the Appellant State were limited to the liabilities within the contract, not fresh liabilities for damages.
The Respondent has also argued that since notice Under Section 80 of the Code of Civil Procedure was served to the Appellant State claiming damages on 7.8.1983, a period of two months from the date of the notice would have to be excluded when calculating the period of limitation, as per Section 15(2) of the Limitation Act - It is thus clear that the Respondent failed to file the suit for damages within the period prescribed in the Limitation Act. The suit is required to be dismissed on this ground alone.
Appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2805
Detention of goods on the ground of mis-classification - demand for security deposit at twice the value of tax sought to be evaded - HELD THAT:- The detention has been made by the Checkpost authorities, which can be only on the ground of suspicion of evasion of tax. A mere misclassification, which is discernible from the records, cannot lead to a conclusion of evasion. The issue with respect to whether the higher rate of tax is applicable cannot be looked at as an issue of evasion of tax. In any event, the petitioner shall be allowed release of goods on execution of a simple bond and adjudication proceedings shall be completed expeditiously untrammeled by any observation herein, but however regulated by the judgments of this Court.
Petition disposed off.
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2015 (10) TMI 2804
Money Laundering - Validity of warrants issued for securing her presence before the learned Special Judge, Patiala in a statutory complaint - HELD THAT:- It is an admitted fact that during investigation of the money laundering case, the petitioner was never arrested by the Enforcement Directorate in exercise of its powers under Section 19 of the Act - The assets created by the petitioner with the alleged aid of proceeds of crime have already been seized/attached.
It is not the case of Enforcement Directorate that any private vulnerable witness is to depose against her. It would, thus, be too much presumptuous at this stage that the petitioner would tamper with the evidence - The complaint is at the initial stage and its adjudication will take time.
The interim order dated 26.8.2015 is made absolute - Application disposed off.
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2015 (10) TMI 2803
Suspension of CHA License - continuation of suspension - distinction between the proceedings under Regulation 20 and the proceedings under Regulation 22 - HELD THAT:- The Tribunal in SS. INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS (SEAPORT-IMPORT) CHENNAI [2015 (1) TMI 444 - CESTAT CHENNAI], allowed the appeal and set aside the order of suspension, on the basis of an earlier decision of the Tribunal itself in the case of M/S. D. THIMMESWARA RAO AND OTHERS VERSUS COMMISSIONER OF CUSTOMS (PORT IMPORT) [2013 (11) TMI 1045 - CESTAT CHENNAI]. In the said decision, the Tribunal noted the distinction between the proceedings under Regulation 20 and the proceedings under Regulation 22. The Tribunal also took note of another decision of the Tribunal in MANJUNATHA SHIPPING SERVICES VERSUS COMMISSIONER OF CUSTOMS (IMPORTS) , CHENNAI [2013 (10) TMI 1002 - CESTAT CHENNAI] - Moreover, the Customs House Agent licence granted to the second respondent expired on 6-4-2015. Hence, the appeal arising out of an order of suspension had actually become infructuous.
Appeal dismissed.
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2015 (10) TMI 2802
Valuation of goods - Section 4 - deduction towards Sales Tax, Cash Discount and Volume Discount on excise duty payable - HELD THAT:- The issue decided in the case of M/S. PUROLATOR INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI – III [2015 (8) TMI 1014 - SUPREME COURT] where it was held that It is clear that “cash discount” has therefore to be taken into account in arriving at “price” even under Section 4 as amended in 2000.
Appeal dismissed.
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2015 (10) TMI 2801
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- Since the tax effect involved in the instant appeal is negligible, the appeal is dismissed on this ground alone.
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2015 (10) TMI 2800
Loss arising on transfer of assets - Loss under the head 'Income from Business or Profession' OR 'Loss from Short Term Capital Gains' - whether the amount of loss is to be treated as short term capital loss as claimed by the assessee or as business loss as treated by the lower authorities? - HELD THAT:- Since the findings of the Ld. CIT(A) for A.Y. 2006-07 have been reversed by the Tribunal by order dated [2014 (1) TMI 1599 - ITAT MUMBAI] and it is also an admitted fact that the investment pattern/ share transaction activity is almost identical to that of the earlier assessment year, hence, applying the same ratio and for the sake of principle of consistency, we hold that the short term capital loss returned by the assessee has to be treated as such and not as business income of the assessee. This issue is accordingly decided in favour of the assessee.
Disallowance u/s 14A in relation to the expenditure incurred for earning of exempt income - HELD THAT:- A perusal of the assessment order reveals that the AO has not followed the guidelines of objective satisfaction as laid down by the Hon’ble Bombay high Court in the case of Godrej & Boyce [2010 (8) TMI 77 - BOMBAY HIGH COURT] while making the disallowance . He without recording any reasoning for his dissatisfaction with regard to the working/claim of the assessee, straightway applied Rule 8D against the mandate of the provisions of section 14A of the Income Tax Act. The ld. CIT(A) also ignored the mandate of the provisions of section 14 A, while confirming the disallowance.
So keeping in view of the overall facts and circumstances of the case, we restore this issue back to the file of the AO with a direction that the AO will give opportunity to the assessee to place on record all the relevant facts including its accounts and then examine the computation/calculation made in this regard by the assessee having regard to the accounts of the assessee. The AO will be at liberty to call for any record/evidences or statement etc. from the assessee as may be required by him for deciding the issue under consideration. After going through the details provided by the assessee, the AO will decide the issue by way of a speaking order in the light of the observations made above.
Disallowance of interest expenditure on interest free loan given - HELD THAT:- As observed that the Hon’ble Bombay High Court in the case of “CIT vs. Reliance Utilities and Power Ltd” [2009 (1) TMI 4 - BOMBAY HIGH COURT] has held that if there are funds available, both interest free and over draft and/or loans taken, then a presumption would arise that investments would be out of the interest free fund generated or available with the company, if the interest free funds were sufficient to meet the investment. Similar proposition can be applied in the case of assessee also. If the assessee is able to prove that sufficient own funds were available with the assessee then it has to be presumed that interest free loans were advanced by the assessee out of his own funds. This is required to be demonstrated from his accounts by the assessee before the AO. Further the assessee has claimed that it is a case of double disallowance. We accordingly restore the matter to the file of the AO to decide this issue afresh and also to verify as to whether any double disallowance has been made on this issue and to decide the issue in accordance with law.
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2015 (10) TMI 2799
Grant of Bail - appellant contended that the Appellant was not named in the FIR and hence this fact should have been taken note of while considering his bail application - HELD THAT:- Taking note of the fact that firstly, the investigation in the case is complete; secondly, the charge sheet is filed; thirdly, the Appellant is in custody for the last six months and lastly, looking to the old age of the Appellant who is also ailing, the impugned order is set aside and bail granted to the Appellant.
Appeal allowed.
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2015 (10) TMI 2798
Demanding the tax deducted at source from the assessee who has suffered a deduction - deduction of TDS by the 2nd respondent - Seeking for mandamus directing the 1st respondent to reflect the TDS amount, which has been deducted by the 2nd respondent herein while paying rent, and to treat the 2nd respondent as the defaulter and also directing the 1st respondent to recover the dues from them - According to the petitioners, the 2nd respondent deducted TDS and though necessary details were furnished to the authority concerned by the petitioners, recovery proceedings are sought to initiated - HELD THAT:- There is no dispute that the 2nd respondent was a tenant under the petitioners herein. Now, the petitioners claim that the 2nd respondent vacated the premises long back. It is the specific case of the petitioners that though the 2nd respondent company effected TDS, it had failed to remit the same into the account of the Income Tax Department.
This is a disputed fact which cannot be resolved in this writ petition without any material and in the absence of the 2nd respondent. Having regard to the fact that the deduction of TDS from the amount payable to the petitioners towards rent as well as remittance of the same were to be made by the 2nd respondent, this court deems it appropriate to direct the respondents 1 and 3 to consider the letter/representation of the petitioner in this regard after issuing necessary notice to the 2nd respondent and to conduct an enquiry and to pass appropriate orders on merits and in accordance with law. The said exercise shall be completed within a period of four weeks from the date of receipt of a copy of this order.
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2015 (10) TMI 2797
Credit for TDS - CIT(A) deleted the disallowance made by the AO u/s.199 in view of 1st and 2nd proviso - HELD THAT:- This issue is squarely covered in favour of the assessee by the decision of the Tribunal in assessee’s own case [2015 (11) TMI 9 - ITAT CHENNAI] wherein held we are not in a position to express any opinion whether the assessee is having any element of income from subscription charges received from various parties. Therefore, if the entire subscription received by the assessee is transferred to M/s. Sun TV and the assessee is entitled only for commission on subscription income, then the Tribunal’s decision relied by the assessee’s counsel is applicable. Accordingly, we are remitting the entire issue back to the file of the Assessing Officer to consider the issue afresh in the light of the above observation.
Respectfully following the aforesaid decision of the Tribunal, we are remitting the entire issue back to the file of the Assessing Officer for fresh consideration - Appeal of the Revenue is partly allowed for statistical purposes.
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2015 (10) TMI 2795
Grant of unconditional leave to defend the suit - direction to comply with unconditional leave to defend the suit, not complied with - HELD THAT:- In view of non-deposit, the plaintiff is entitled to have the suit decreed in its favour. The plaintiff has already filed the documents which were admitted in evidence and taken on record on 1st October, 2015.
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2015 (10) TMI 2794
Disallowance of 25% of the royalty and treating the same as capital expenditure - assessee entered into a license and technical assistance agreement (royalty agreement) with its parent company for licensing of the technical information including method of manufacture and improvements with respect to the products and technical services - HELD THAT:- It is pertinent to note that for the year under consideration, royalty paid by the assessee was under the same agreement as it was paid for the assessment year 2004-05. The Hon’ble High Court has decided this issue [2015 (1) TMI 240 - KARNATAKA HIGH COURT] after considering the relevant clauses of the agreement and therefore, the issue of payment of royalty is now covered by the decision of the Hon’ble High Court in the assessee’s own case. Respectfully following the decision of the Hon'ble jurisdictional High Court, we allow the claim of the assessee and the addition made by the AO on this account is deleted.
Disallowance of doubtful advances written off - assessee did not produce any break-up of the amounts as well as advances and as per the AO the advances were capital in nature - HELD THAT:- New facts have been brought before us by the assessee stating that the assessee has now restricted the claim after netting the amount payable to WMS to the balance of amount ₹ 1,34,000/- only which was to be written off on this account as against the original claim of ₹ 1,14,05,413/-. Further, the assessee has produced additional evidence which is required to be verified and examined. Accordingly, in the facts and circumstances and in the interest of justice, we set aside this issue to the record of the AO to adjudicate the same after considering the facts as well as the additional evidence brought before us. This ground is partly allowed for statistical purposes.
Disallowance of administrative fee by invoking the provisions of sec.40A(2) - excess payment to the related party - assessee has submitted that the provisions of sec.40A(2) are not applicable to the said transaction when the assessee has already reported the transaction as international transaction which was referred by the AO to the TPO for determination of the ALP - HELD THAT:- There is no dispute that the transaction has been reported by the assessee as international transaction which was also accepted by the AO and the TPO as an international transaction. Thus, once a particular transaction is admitted as international transaction then the same falls in the ambit of the provisions of X chapter of the Act which are specific provisions to deal with such transactions between the assessee and its AE. Therefore, once the transaction is undisputedly subject matter of Chapter X of the IT Act, then the other general provisions of the Act cannot be applied simultaneously.
AO, having considered the transaction being international transaction and making a reference to the TPO for determination of the ALP cannot go back to the provisions of sec.40A(2) for determining the reasonableness of the price paid by the assessee. Our attention was invited by assessee that for the assessment year 2001-02 to 2002-03 the payment in question was subjected to MAP and only 25% is charged to tax. Therefore, it was accepted by the department that the services were rendered by the AE to the assessee in India. We further note that the AO has not conducted any inquiry or investigation to find out the excessiveness of the payment made by the assessee to its AE.
In the case in hand, when the AO has not conducted any inquiry or brought out any material on record to prove that payment made by the assessee is excessive and unreasonable making an adhoc disallowance by invoking the provisions of sec.40A(2) of the Act is not justified.
TP adjustment in respect of administrative service fee - HELD THAT:- TPO is not empowered to determine the ALP at nil though the quantum/size has to be decided along with ALP to be determined as per Chapter X of the Act. The assessee has also filed additional evidence in support of its claim that the AE has rendered services. Since additional evidence filed by the assessee is relevant and material document in adjudicating the issue, and further when the TPO has not determined the ALP as per the provisions of chapter X as well as the IT Rules, therefore, in the facts and circumstances in the case as well as in the interest of justice, the issue is set aside to the record of the AO/TPO for adjudication of the same after considering the relevant evidence as well as in the light of the above observations.
Levy of interest u/ss.234A and 234B is mandatory and consequential. Therefore, no separate finding is required.
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