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Income Tax - Case Laws
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2012 (4) TMI 722
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... ... ..... therefore no disallowance u/s. 40(a)(ia) of I.T. Act is to be made. 25. Considering the above decisions and the facts of the case before us, we hold that on reimbursement of expenses by assessee to DTL on account of availing services of employees of DTL as per agreement dt. 15.4.2004, assessee was not required to deduct TDS and accordingly AO was not justified to make disallowance u/s. 40(a)(ia) of Act, particularly, when DTL actually paid the salary to its employees and deducted TDS on the amount paid by it to its employees. The assessee only reimbursed the expenses towards part of salary and conveyance expenses etc. to DTL and therefore provisions of Sec. 194J does not apply to it. Therefore Ld. CIT(A) has rightly held that disallowance made by AO u/s. 40(a)(ia) is not sustainable. Accordingly, we uphold the order of Ld. CIT(A) by rejecting ground No. 2 of appeal taken by department. 26. In the result, appeal of department is dismissed. Order pronounced on 4th April , 2012
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2012 (4) TMI 715
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... ... ..... her hand, vehemently objected to such plea of the learned A.R. and pointed out that all grounds and objections have been decided together as they were mixed on facts and law points. Hence, the order of the ld. DRP is just and proper in the facts and circumstances of the case. 7. As the detailed and proper findings of the DRP are not before us, we are of the opinion that without dealing with the grounds submitted before us, the matter deserves to be remitted back to the DRP for proper adjudication on all the objections and grounds raised by the assessee, after fresh hearing of both the parties delivering a speaking elaborate order as per requirement of law and procedure accepted by the courts and also by the authorities working as quasi-judicial functionaries. 8. In the light of above discussion, the appeal of the assessee is allowed and the matter is remitted back for fresh adjudication with above directions to the DRP. Order pronounced in the open court on 12th April, 2012.
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2012 (4) TMI 714
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... ... ..... d and gone through the orders of the authorities below. The CIT(A) after considering the paper book filed by the assessee gave a specific finding that as per the agreement, the carpet area of the three flats 780 sq.ft. only. He further gave a finding that built up area and super built up area worked out separately by the assessee. On perusal of the details of sale of flats with agreement value, the built up area comes only 913 sq.ft. and super built up area comes to 1092 sq.ft. Therefore, the assessee fulfilled the conditions of the built up area as required by section 80IB(10) and allowed the claim of the assessee. The learned DR simply supported the order of the AO and nothing was brought on record to contradict the above findings given by the CIT(A). We, therefore, find no infirmity in the order of the CIT(A) and uphold the same, dismissing the ground raised by the revenue. 12.. In the result, appeal of the revenue is dismissed. Pronounced in the open court on 13/04/2012.
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2012 (4) TMI 713
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... ... ..... viz. April and May 1991, pre-search period, for directing addition of ₹ 48,24,272/- as suppressed profit, merely on the basis of estimation. 2. Whether the Tribunal committed substantial error of law in holding that addition of ₹ 51,08,219/- being bogus purchases were rightly made by the assessee. 3. Whether the Tribunal committed substantial error of law in reversing the order of the CIT Appeals without any discussion of finding reached by the said authority and finding the same to be erroneous.
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2012 (4) TMI 712
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... ... ..... id that the case of the assessee would attract the provisions of sec. 271(1)( c). Accordingly, the additional income offered by the assessee is voluntary and based on the books of account and not because of any new material or facts came to the light during the search and seizure action. o p /o p 5.4 Therefore, in the facts and circumstances of the case, when the assessee has disclosed all the primary facts in the return of income filed u/s 139, then the additional income offered in the return filed u/s 153A because of some discrepancy and error would not amount to concealment of income or furnishing inaccurate particulars of income attracting levy of penalty u/s 271(1)( c) of the IT Act. o p /o p 6 In view of the above discussion, we are of the considered opinion that the levy of penalty is not warranted and accordingly, the same is deleted. o p /o p 7 In the result, appeals filed by the assessee are allowed. o p /o p Order pronounced on this 25th,day of April 2012 o p /o p
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2012 (4) TMI 711
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... ... ..... ssed by the Commissioner of Income-tax in respect of all items discussed by him and directed for reconsideration except the two issues on transport turnover and sales return claims, not pressed by the assessee in the course of hearing before the Tribunal. o p /o p 23. In the facts and circumstances of the case we set aside the direction of the Commissioner of Income-tax in the revision order in respect of all issues except the following two issues - o p /o p 1. Income from transportation of goods. o p /o p 2. Sales return in vehicle division. o p /o p 24. The directions issued by the Commissioner of Income-tax on the above two issues are upheld and the Assessing Officer is directed to act in accordance with law. In respect of the directions issued by the Commissioner of Income-tax on other issues, his order is vacated. o p /o p 25. In result, the appeal filed by the assessee is partly allowed. o p /o p Order pronounced on Tuesday, the 17th of April, 2012 at Chennai. o p /o p
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2012 (4) TMI 709
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... ... ..... n individual, and the claim of the assessee is as per provisions of law. Once the assessee is not liable to deduct TDS under the provision of Section 194C(1), the provisions of Section 40a(ia) for making disallowance of expenditure for non-deduction of TDS will not apply. We further find that, it is not the case of the revenue that the expenses are bogus or unreasonable or excessive but the disallowance is made merely for non-deduction of TDS. Accordingly, we are of the considered view that CIT(A) has rightly deleted the disallowance and we confirm the same.” 4. As the issue raised by the revenue is exactly on similar facts in the present case, taking a consistent view, we are of the view that the amended provisions of section 194C(1) of the Act will not apply to the present assessment year on the assessee. Accordingly, this issue of the revenue’s appeal is dismissed. 5. In the result, revenue’s appeal is dismissed. 6. Order is pronounced in the open court.
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2012 (4) TMI 705
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... ... ..... actual amount of expenses incurred by the C&F Agent on behalf of the assessee. The ld.CIT(A) also found that all payments were made by the assessee by account payee cheques to the C&F Agent which fact has been admitted by the Assessing Officer in his remand report. Therefore, the ld.CIT(A) has rightly deleted the disallowance of ₹ 14,91,489/-. No specific error in the above finding of the ld.CIT(A) could be pointed out by the ld.DR. The ld. DR could not produce any material before us to show that the amount of ₹ 14,91,489/- did not represent actual reimbursement of expenses incurred by the C&F Agent on behalf of the assessee. In the above facts and circumstances of the case, we do not find any good and justifiable reason to interfere with the order of the ld.CIT(A) which is confirmed and the grounds of appeal of the Revenue are dismissed. 8. In the result, the appeal filed by the Revenue is dismissed. Order pronounced in the open court on 20-04-2012.
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2012 (4) TMI 704
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... ... ..... r each bank account and if there is withdrawal from a bank account, after the peak date of such particular bank account, then assessee has to establish that such withdrawal from that bank account had been deposited in some other bank account before the peak date of such other bank account. If the assessee cannot establish this aspect then, the A.O. is justified in adopting separate peak of each bank account. The A.O. should pass necessary order as per law as per above discussion after providing adequate opportunity of being heard to the assessee. This ground is allowed for statistical purposes. 7. Ground No.7 was not pressed and accordingly rejected as not pressed. 8. Ground No.8 is regarding charging of interest u/s 158 BFA of the Income tax Act, 1961. This is consequential and hence, no separate adjudication is called for. 9. In the result, appeal of the assessee is partly allowed as indicated above. 10. Order pronounced in the open court on the date mentioned hereinabove.
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2012 (4) TMI 701
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... ... ..... urselves to accept the submission. The findings of fact arrived at by the authorities below are based on proper appreciation of the facts and the material available on record and surrounding circumstances. The doubtful nature of the transaction and the manner in which the sums were found credited in the books of accounts maintained by the assessee have been duly taken into consideration by the authorities below. The transactions though apparent were held to be not real ones. May be the money came by way of bank cheques and was paid through the process of banking transaction but that itself is of no consequence." In view of the foregoing discussion, we are of the view that the judgment and order of the Income Tax Authorities as well as Tribunal are based on relevant materials and appellate tribunal was correct in dismissing the appeal. The appeal is concluded by findings of facts and no substantial question of law arises for consideration, both the appeals are dismissed.
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2012 (4) TMI 700
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... ... ..... re and source of the said ₹ 50 lakhs and therefore the appellant has failed to explain the cash credit of ₹ 50 lakhs and which was rightly charged to income tax as income of the assessee. The said investment of ₹ 50 lakhs is rightly added as income of the previous years. 11. In our opinion, the Tribunal rightly rejected the contention of the appellant with regard to the contentions that the Assessing Officer ought to have conducted a further probe by issuing a notice or summons in examining the creditor. When the existence of the creditor itself was not established by the appellant and when he has failed to discharge the primary burden, which lies on him, the question of conducting further enquiry or probe does not arise. Therefore, we do not see any substantial questions of law arising for consideration to admit the appeal. 12. The appeal is accordingly dismissed. No order as to costs. As the appeal is dismissed, miscellaneous petitions shall stand closed.
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2012 (4) TMI 699
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... ... ..... post survey period, GP rate should be applied. Accordingly in this case also, we hold that for the pre survey period, book results should be accepted and for the post survey period, GP rate should be applied. For the post survey period in this case, the turnover is of ₹ 22,61,135/- and the GP rate in this case is applied by the A.O. of 13.62 . By applying this GP rate on this turnover, the GP of post survey period works out to ₹ 3,07,967/- as against this, the assessee has disclosed a gross profit of ₹ 3,65,595/- which is more than GP worked out for the post survey period by applying GP rate of 13.62 and hence, no separate addition is called for in respect of post survey period also in the present case. We direct the A.O. accordingly. 14. In the result, this appeal of the assessee is also partly allowed. 15. In the combined result, both the appeals of the assessees are partly allowed. 16. Order pronounced in the open court on the date mentioned hereinabove.
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2012 (4) TMI 698
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... ... ..... to the assessee. When so applied in this case, the net income would be a negative figure and the provisions of the Act would be more beneficial to the assessee. 5. The Tribunal thus allowed the claim of the Assessee in AY 01-02. The facts and circumstances under which the disallowance of interest was made in A.Y 2002-03 and the reasons for making the disallowance are identical. This appeal was taken up for hearing pursuant to the order of the Hon’ble High Court remanding the issue for fresh consideration by the Tribunal. In view of the similarity of facts and circumstances the decision rendered by the Tribunal for A.Y 2001-02 will be squarely applicable. Respectfully following the aforesaid decision we hold that the disallowance of interest sustained by the CIT(A) deserves to be deleted. Accordingly the ground of appeal is allowed. 6. In the result, the appeal in so far as ground No.1 concerned is allowed. Order pronounced in the open court on the 4th day of April 2012
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2012 (4) TMI 697
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... ... ..... ee. Relevant paragraph No.8.1. is as under - “8.1. Not only the above order, there is one more order which has also been placed for our perusal passed by ITAT Ahmedabad Bench “C” , decided in the case of a sister-concern, namely, Jay Chemical Industries Ltd. vs. DCIT bearing ITA No.875/Ahd/2007(Assessee’s appeal ) and ITA No.1177/Ahd/2007 (Revenue’s appeal) for Assessment Year 2003-04 order dated 06/11/2009,( also authored by my esteemed colleague brother ) wherein vide paragraph Nos.17, 18 & 19 it was held as under -” 3.2. Since in the past on this issue, a consistent view has regularly been taken by the Tribunal, therefore, respectfully following the same for this year as well, we hereby reject this ground of the Revenue. 4. As far as the final result of the appeal is concerned, that shall not alter as pronounced earlier, quote “24. Thus, the appeal of the revenue is partly allowed, but for statistical purposes.” unquote.
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2012 (4) TMI 695
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... ... ..... f ₹ 14,05,036/-. This ground is, accordingly, partly allowed." 4. The CIT(A) after taking the details of deposits and withdrawals restricted the peak addition at ₹ 1,95,597/-. Revenue before us could not adduce anything that the peak credit assessed by the CIT(A) is wrong. We find that the assessee has filed peak credit computation on the basis of transaction recorded in the bank account before CIT(A) but Revenue could not point out any defect in the same. In view of the above facts and circumstances, we are of the view that the CIT(A) has simply accepted the peak credit after AO's remand report. We find no infirmity in the order of CIT(A) in sustaining the part addition on the basis of the theory of 3 ITA No.1767/K/2011 Smt. Madhu Kedia, A.Y. 07-08 peak credit. Accordingly, we confirm the order of the CIT(A) and this issue of Revenue's appeal is dismissed. 5. In the result, revenue's appeal is dismissed. 6. Order is pronounced in the open court.
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2012 (4) TMI 693
Revision u/s 263 - Held that:- For the purpose of section 263, it is not necessary for the Commissioner of Income-tax to make a final adjudication of the issues. If he finds prima facie that certain relevant aspects of the assessment have not been examined by the assessing authority, which has made the assessment order erroneous and prejudicial to the interests of the Revenue, the Commissioner of Income-tax is within his competence to invoke section 263.
As far as the present case is concerned, the assessment order passed by the assessing authority is a very cryptic order where there is no discussion regarding certain vital issues arising from the assessment.
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2012 (4) TMI 692
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... ... ..... , the petitioner has already paid more than 50 of the tax assessed and, therefore, it is unjust and arbitrary to direct the petitioner to pay the balance amount even in instalments insofar as the matter is pending in appeal before the appellate authority. 2. I have heard the learned Standing Counsel appearing for the Income Tax Department also. 3. Now that the petitioner has filed Ext.P3 stay petition before the 2nd respondent-appellate authority, it is only appropriate that the appellate authority passes orders on the same expeditiously. Accordingly, this writ petition is disposed of with the following directions The 2nd respondent shall consider and pass orders on Ext.P3 stay petition, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Till the 2nd respondent passes orders on Ext.P3 stay petition, coercive proceedings for recovery of the balance amount due from the petitioner shall be kept in abeyance.
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2012 (4) TMI 691
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... ... ..... , the petitioner has already paid more than 50 of the tax assessed and, therefore, it is unjust and arbitrary to direct the petitioner to pay the balance amount even in instalments insofar as the matter is pending in appeal before the appellate authority. 2. I have heard the learned Standing Counsel appearing for the Income Tax Department also. 3. Now that the petitioner has filed Ext.P3 stay petition before the 2nd respondent-appellate authority, it is only appropriate that the appellate authority passes orders on the same expeditiously. Accordingly, this writ petition is disposed of with the following directions The 2nd respondent shall consider and pass orders on Ext.P3 stay petition, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Till the 2nd respondent passes orders on Ext.P3 stay petition, coercive proceedings for recovery of the balance amount due from the petitioner shall be kept in abeyance.
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2012 (4) TMI 690
Provisions of sec.40(a)(ia) - all payments made during the course of the year or it would apply only to the expenditure which remain payable as at the end of relevant year - Held that:- Accordingly, by following the decision rendered by the Special bench referred Merilyn Shipping & Transports (2012 (4) TMI 290 - ITAT VISAKHAPATNAM) we hold that the provisions of sec.40(a)(ia) would apply only to the expenditure which remain payable as at the end of the relevant financial year. In the instant case, the entire expenditure has been paid during the course of the previous year and no amount remains payable as at the year end. Accordingly, we set aside the order of CIT(A) on this issue and direct the Assessing Officer to delete both the additions referred.
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2012 (4) TMI 689
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... ... ..... decided by the Hon'ble Supreme Court Kwality Biscuits Ltd. 8. It is contended that CIT (Appeals) had erred in coming to the conclusion that charge of interest is mandatory and consequential in nature." 6. We find that this issue is now covered by the decision of Hon'ble Supreme Court in the case of JCIT vs. Rolta India Ltd. 330 ITR 470 (SC) wherein it has been held that interest u/s 234B and 234C shall be payable for failure to pay advance tax in respect of tax payable u/s 115JA/115JB. Therefore, we hold that learned CIT (A) has rightly decided that interest is leviable u/s 234B in respect of income computed u/s 115JB. However, ld. Assessing Officer is directed to re- compute that interest on the income which remains finally assessable after giving effect to this order. We direct accordingly. 7. In the result, the appeal filed by the assessee is partly allowed for statistical purposes in the manner aforesaid. The order pronounced in the open court on 13.04.2012.
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