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Showing 101 to 120 of 1328 Records
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2014 (4) TMI 1230
Loss/expenditure claimed by assessee on account of fluctuation in the rate of foreign exchange i.e., Market to Market (MTM) loss - whether cannot be considered to be notional as per the CBDT instruction No.3 of 2010, when the said amount was rightly disallowed by the Assessing Officer in terms of proviso ‘D’ of Section 43(5)? - Held that:- Tribunals consistently held that the loss/expenditure claimed by the assessee on account of fluctuation in the rate of foreign exchange couldn’t be considered to be notional by following the instruction No.3 of 2010 of CBDT. Therefore, we do not find any element of law to be decided in this appeal.
Accordingly, we dismiss the appeal. Miscellaneous petitions pending, if any, shall also stand closed.
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2014 (4) TMI 1229
Deduction u/s 80IA on the profits of the power generation unit - allocation of losses - cost of steam is what is to be allocated between the power plant and the rice mill - Held that:- From the assessee’s reply it is evident that there is loss of heat in the process. This loss has to be allocated between power generation unit and rice milling unit. Assessee’s argument that loss cannot be shared is not an acceptable proposition. Hence go on to allocate these losses equally between the power generation unit and rice milling unit. Thus, the loss allocated to power generation unit is worked out to 5.05%. This coupled with the heat used for power generation of 10.70% works out to 15.75%. Thus, the percentage of rice husk utilization for power generation is pegged at 15.75% instead of 10% as calculated by the assessee. Thus AO is directed to reallocate the profits from power generation unit after allocating 15.75% of the expenditure of boiler unit towards power generation instead of 10% as taken by the assessee.
Once we come to our conclusion that 10% of the steam is utilized by the power generation plant, then all the cost i.e. attributable and relatable to the generation of steam has to be allocated only on that basis. The cost of steam cannot be segregated into that which is incurred up to a particular point and cost incurred after a particular point. This to our mind is not logical. Thus the allocation made by the assessee to our mind is justified. Hence, we allow this ground of the assessee.
Report u/s 10CCB within time is not mandatory - Held that:- This issue is covered in favour of the assessee and against the revenue by the decisions of the Hon’ble Delhi High court in the case of CIT Vs. CONTIMETERS ELECTRICALS Pvt. Ltd. [2008 (12) TMI 4 - HIGH COURT DELHI].
Adoption of husk consumption rate - CIT(A) held that the assessing officer had not pointed out errors nor rejected the data as per the records maintained by the assessee, before taking up comparable cases such as M/s. Sudha Agro Oils and Gautam Solvents for coming to such conclusions - Held that:- We find that this conclusion of the Ld. CIT(A) is as per law for the reason that no estimates can be made without rejection of the books of accounts and without pointing out errors in those books of accounts. When the assessee is maintaining detailed records of husk consumption, electricity production, etc., the assessing officer has to point out errors in these records, reject the same and then only go for comparable cases. As the assessing officer has not done the same, CIT(A) is right in his finding.
Non-maintenance of separate books of accounts for power generation business - dis-entitle the assessee for making the claim u/s 80IA - Held that:- As pointed out that in the assessment year 2009-10 the assessing officer, on the very same set of facts, accepted that books of accounts maintained by the assessee on the ground that they fulfill the requirements of separate books of accounts as the purpose of having separate books of accounts, is to enable the assessing officer to ascertain the profits from power generation business. When this objective is fulfilled and when the assessing officer in the subsequent year holds so, we are of the considered opinion that the finding of the Ld. CIT(A), which is in consonance with circular no.1 of 13 dated 17.1.2013 issued by the CBDT requires to be upheld.
Allocation of husk cost - Held that:- Allocation of husk @10% is reasonable, suffice to say that consistent with the view taken on this issue for the earlier assessment year, we allow this ground of the assessee.
Disallowance u/s 40(a)(ia) - expenditure is paid during the year and not payable as at the end of previous year - Held that:- Case of Merilyn Shipping and Transport Vs. ACIT [2012 (4) TMI 290 - ITAT VISAKHAPATNAM] has since been suspended and the Hon’ble Kolkata High Court in the case of CIT Vs. Crescent Export Syndicate [2013 (5) TMI 510 - CALCUTTA HIGH COURT] held that the law laid down in the case of Merilyn Shipping and Transport (Supra) is not a good law. Further, it was held that the provisions of S.40(a)(ia) are applicable even when the expenditure is paid during the year and not payable as at the end of previous year.-
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2014 (4) TMI 1228
Variation in the value of sales figure as reported in Profit and Loss Account and Sales Tax Returns with ER-1 returns for the years 2007-08 and 2008-09 - Demand of Central excise duty - Held that:- The appellant had placed the records. The learned Authorised Representative also made submission to distinguish these evidences. So, it is appropriate that the matter is required to be examined by the adjudicating authority after considering these evidences - appeal allowed by way of remand.
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2014 (4) TMI 1227
Accrual of income - Taxability of freezer deposits received by these assessee from their customers - The only objection of the DR is that the appeal was filed against the order of the Tribunal and the same is pending before the High Court. But on a query from the Bench, DR submitted that he does not have knowledge of any stay granted by the Hon’ble High Court on the operation of the earlier order of the Tribunal.
Held that:- Since the CIT(A) has followed the order of the Tribunal, we are of the considered opinion that mere pending of the appeal before the High Court against the order of the Tribunal cannot be a reason to take a different view. Therefore this Tribunal is of the considered opinion that the deposits collected by the assessee for freezer cannot be considered as income of the assessee.
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2014 (4) TMI 1226
Entitled to claim deductions u/s 54B and 54F - two properties purchased by in the name of her two daughters, who are her only successors - 'Unmarried daughters'- Held that:- The words used in the Sections should be given liberal interpretation as the property has been purchased in the name of appellant's daughters who are also her heirs. The intention of the Legislature is to extend the benefit to the members of the family which includes married daughters who are possible legal heirs.
We are unable to accept the contentions as the language of the aforesaid Sections is very clear that it relates to unmarried daughters. Here the undisputed fact is that the property is purchased in the name of married daughters. When the Legislature thought it fit to specify the words 'unmarried daughters', the Court cannot substitute the words. No illegality or infirmity in the impugned judgment and order in any manner.
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2014 (4) TMI 1225
Maintainability of appeal - Non-compliance with pre-deposit - Held that:- Pre-deposit order has not been complied with. In view of this position, the appeal is dismissed for non-compliance with the requirement of provisions under Section 35F of the Central Excise Act, 1944, made applicable to service tax matter - appeal dismissed.
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2014 (4) TMI 1224
Adjustment contemplated by Section 10A - Tribunal has directed that the loss of one unit can be adjusted against the profit of another unit but after allowance of deduction under Section 10A of such profitable units - Held that:- The Tribunal has directed that the loss of one unit can be adjusted against the profit of another unit but after allowance of deduction under Section 10A of such profitable units. The loss of one unit under Section 10A of the Act shall be adjusted against the income liable for deduction under the same section but in relation to the income from other unit. As far as that aspect is concerned, the counsel agree that the same is answered in favour of the assessee and against the revenue. This controversy has been dealt with by a Division Bench of this Court in the case of Hindustan Uni Liver Ltd. v/s. Deputy Commissioner of Income Tax & anr. (2010 (4) TMI 206 - BOMBAY HIGH COURT) .
Deduction of data line cost from export turn over - Deduction u/s 10A - Expenses which AO desired to pick were not incurred in relation to export and, therefore, cannot be termed as deductions permissible from export turnover - Held that:- These expenses have been incurred for the purposes of the business of software development at the software units in India. It is that finding which the Assessing officer was unable to controvert or unable to bring any contrary material to disprove the same. Tribunal found that the AO could not have insisted on the deduction. It is that exercise undertaken by AO which has not been upheld but rather disapproved by the Tribunal. This is a finding purely on the facts and pertaining to the business of the assessee. The facts pertaining to the assessee's business of software development, the charges and which are claimed to have incurred, are in relation to the business of software development within India. They could not be said to be costs deductible from export turnover for the purposes of Section 10A of the Act. In such circumstances, we are of the opinion that any wider controversy or larger question does not require any answer.
Recompute the transfer pricing adjustment - Held that:- The Tribunal may have expressed some prima facie opinion in relation thereto, however, it has directed the Assessing officer to complete the same after giving an opportunity to the assessee in accordance with law. We are unable to find any substance in the complaint of Mr.Tejveer Singh that direction of the Tribunal or prima facie observations are binding the Assessing Officer in the fresh exercise. When the exercise is afresh the Assessing officer is directed to act in accordance with law, then, we do not think that any prima facie observation of the Tribunal will bind the Assessing officer or guide him to consider the claim in the particular manner. Additionally, we clarify that all contentions and objections in relation to this claim of both sides are kept open. The Assessing Officer shall decide the claim or issue strictly in accordance with law.
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2014 (4) TMI 1223
Assessment of income - addition on account of profit arising from the sale of 11 flats admeasuring 1943 square metres out of which 50% has been taxed for each of the respondents abovenamed - It was the case of the assessee that the said amount was already assessed in the hands of one Mr. Monserrate (in whose favor construction right was transferred) for earlier assessment year and as such the taxation in the hands of the respondent would amount to double addition.
Held that:- Authorities below have concurrently found on the basis of appreciation of evidence on record that there was no transfer and as such the income could not be taxed in the hands of the respondent herein. The records also reveal that the person to whom flats have been assigned have duly been taxed on such income. As such the income of the said flats were shown in his return. The concurrent findings of fact arrived at by the authorities below based on evidence on record cannot be re-appreciated by this Court in the present appeal u/s 260A of the Income Tax Act unless any perversity is disclosed by the appellant.
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2014 (4) TMI 1222
Estimation of income - determination of percentage of sales - Hawala Income / Hawala Commission - allegations that the transaction with the sister concerns group concerns transactions which are done to inflate sale for obtaining bank facilities on which no commission is earned - During the course of survey, it was found that the assessee is not actually doing business in iron/steel, but is mainly engaged in issuing bogus sale bills without actually delivering the goods, except in a very few transactions.
Held that:- In the first round, the Tribunal has set aside the matter to the file of the Assessing Officer only for the purpose of examining the expenses and insofar as the assessment of net commission is concerned, the same was upheld at 1% of the turnover as determined by the Assessing Officer.
Now, in the third round of proceedings, the assessee has taken a plea that the turnover pertaining to its sister concerns should be excluded from the total turnover for the purpose of estimating the commission income. There is no observation or finding of the Tribunal on this score. Even in the second round of proceedings, the Tribunal has set aside the issue purely for examination of expenditures only. In this order also, there is no whisper with regard to the plea which has been raised by the assessee in this round of proceedings. Once the mater has reached upto the stage of the Tribunal and categorical directions have been given for framing the assessment, the Assessing Officer cannot travel beyond the scope and ambit of the directions of the Tribunal.
Appeal dismissed - Decided against the assessee.
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2014 (4) TMI 1221
Applicability of notification - benefit of N/N. 5/2006-CE or N/N. 2/2008-CE.? - CENVAT Credit - Held that:- On an identical issue, the case of Savana Ceramics, [2014 (9) TMI 104 - CESTAT AHMEDABAD] this Bench has allowed the appeal at the stay stage itself, where it was held that It is now a settled proposition of law that when there are two exemption notifications available for a product then it is upto the assessee to choose the exemption notification more beneficial to him - appeal allowed - decided in favor of appellant.
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2014 (4) TMI 1220
Waste - Whether the appellant is liable to pay 10% of the value of the bagasse emerged as a waste product during the manufacture of molasses and sugar?
Held that:- Inasmuch as bagasse is an inevitable waste arising during the course of manufacture and cannot be held to be a final marketable excisable product there is no requirement of payment of 10% amount in terms of the provisions of Rule 6(3)(1).
The Board’s Circular No. 904/24/2009-CX, dated 28-10-2009, stands struck down by Allahabad High Court in the case of Balrampur Chini Mills v. Union of India [2013 (1) TMI 525 - ALLAHABAD HIGH COURT], it stands held that the bagasse does not attract the provision of Rule 6(3)(1) of Cenvat Credit Rules.
Appeal allowed - decided in favor of appellant.
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2014 (4) TMI 1219
CENVAT Credit - the decision in the case of DELOITTE SUPPORT SERVICES INDIA PVT. LTD. VERSUS C.C.E., HYDERABAD-IV [2013 (10) TMI 1483 - CESTAT BANGALORE] contested - Held that:- There is no reason to interfere with the impugned order as the impugned order has been passed relying on two High Court decisions - appeal dismissed.
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2014 (4) TMI 1218
Rental income - nature of income - to be treated as Business income or income from house property - whether depreciation should be allowed - Held that:- Assessee is engaged in the business of Services, leasing and business Centre facilities, Maintenance & Running of Guest House - thus income of the assessee should be assessed under the head income from business and it should be allowed expenses incurred by it in carrying out its business - Depreciation claimed by the assessee has also been allowed by the Tribunal - FAA has granted relief to the assessee,in pursuance of the orders of the Tribunal - hence respectfully following the orders of the Tribunal for earlier years and confirming the order of the FAA,we decide effective ground of appeal against the AO - Decided in favor of assessee.
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2014 (4) TMI 1217
Application for registration u/s 12AA rejected - nature of activities of the assessee as of commercial nature - scope of enquiry at registration stage - Held that:- The activities of the assessee-institution, which is meant to promote and protect the interests of the Grain and Seed Merchants, who are its members, cannot be said to be activities of a commercial nature, and they fall within the ambit of activities of ‘general public utility’.
For the financial affairs of the assessee, it is evident from the material on record that the donation to the Chief Minister’s Fund having been made by the assessee through a bank account of the assessee, from out of the receipt of donations from various members and others, numbering as many as 128, and as such, it cannot be said that there was any misuse of funds by the assessee. In respect of small amounts of donations received from many as many as 128 persons also, assessee claims to have maintained some record, which was produced before the Director of Income-tax(Exemption). No merit in the observations of the Director of Income-tax(Exemption) with regard to misuse of funds
Allahabad High Court in the case of CIT V/s. Red Rose School (2007 (2) TMI 575 - ALLAHABAD HIGH COURT) the scope of enquiry contemplated while granting registration under S.12AA cannot extend to misuse of fund or earning profit by the assessee, as that part would be taken care of by Sections 11 and 12, while granting exemption under those sections. - Decided in favour of assessee.
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2014 (4) TMI 1216
Refund of CENVAT credit - various input services - denial on account of nexus - Held that: - without a building, no manufacture can take place and therefore the service relating to building lease rent can be definitely said to be in or in relation to the manufacture - all the services can be said to be in or in relation to the manufacture or are covered by the definition of input service - refund allowed - appeal dismissed - decided against Revenue.
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2014 (4) TMI 1215
Penalty proceedings u/s 271(1)(c) - Nature of land sold - assessee claimed that the land sold and subsequently purchased "along with development rights is agricultural land and is liable for capital gain tax - AO rejected the claim as the land in question at Mohamawadi is within 8 Kms. of Pune Municipal Corporation - LTCG OR STCG - Held that:- The assessee filed the return of income on 31st Dec., 2007 claiming the year of acquisition of the asset as 1999 instead of the correct year as 2004. The notice issued under s. 143(2) of the Act dt. 11th Sept., 2008 was issued and served on the assessee on 16th Sept., 2008 and the final order was passed on 30th Dec, 2009. Even though the period of holding of the asset sold was for less than 36 months and therefore the income does not fall within the long-term capital gain, we find the assessee never filed any revised return before the issue of notice under s. 143(2) Further, the assessee before the CIT(A) vide letter dt. 20th Jan., 2012 had stated that he had voluntarily accepted for the agreed addition in respect of deduction wrongly claimed by his consultant.
Thus the asset purchased in the year 2004 has been taken as 1999 to treat the profit on sale of the asset as long-term capital gain and assessee has neither filed any revised return nor brought the mistake to the notice of the AO before the same was detected. We set aside the order of the CIT(A) and confirm the penalty levied by the AO. Grounds raised by the Revenue are accordingly allowed.
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2014 (4) TMI 1214
Carry forward of short-term capital loss - assessee had not claimed any such loss in the return of income - Held that:- It is not disputed by the Revenue that the loss arose to the assessee on account of surrender of single premium equity linked insurance policies, which were used for making investments in Mutual Fund. Revenue has also not disputed the claim of assessee that resulting loss on account of such surrender of single premium insurance policy could be treated as short-term capital loss. It’s only grievance is that assessee had not made such a claim before the ld. CIT(Appeals). It is true that assessee had not made the claim in her return of income. However, it is also a fact that assessee had endeavoured to set off the loss against her interest income, which was not allowed by the Assessing Officer. Hence, it is not that there was no claim of loss at all. We are, therefore, of the view that ld. CIT(Appeals) acted well within his powers, when he directed the Assessing Officer to allow the carry forward of short-term capital loss - Decided against revenue
Disallowance of interest - Held that:- The profits were sufficient to meet the advance tax liability and the profits were deposited in the overdraft account of the assessee and in such a case it should be presumed that the taxes were paid out of the profits of the year and not out of the overdraft account for the running of the business.CIT(Appeals) was justified in allowing the interest paid on loans to be deducted from the interest earned. - Decided against revenue
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2014 (4) TMI 1213
Oppression and mismanagement - violation of the SEBI Act, Take Over Regulations, PFUTP and DIP Guidelines - Held that:- The fact that some of the acts complained of may also violate the SEBI Act or Regulations made thereundere would not prevent the respondent from pursuing the remedies under Sections 397 and 398 of the Act. To hold otherwise would mean that the respondent has to elect whether he can complain against statutory violations under the SEBI Act or initiate proceedings under Sections 397-398 of the Act. The two proceedings as discussed are completely different in their nature and occupy a different and distinct jurisdictional field. Thus unable to accept that the two proceedings are mutually exclusive.
Whether the proceedings filed by respondent no. 1 are an abuse of process of law? - Held that:-Apart from the conclusion that the SEBI Act and the statutory regulations and guidelines framed thereunder have not been violated, it is doubtful whether any other observations made by SEBI would preclude respondent no.1 from ventilating his grievance before the CLB. The order dated 25.04.2012 passed by SAT seems to imply that respondent no.1 is at liberty to agitate all his grievances before the CLB. Even if it is assumed that any question raised before the CLB is concluded between the parties in proceedings before SEBI, the same would not prevent respondent no.1 from pursuing its petition before the CLB. It is not necessary for this Court to decide whether any grievance raised by respondent no.1 before the CLB is barred by the principles of issue estoppel and it will be open for the parties to place their contentions with respect to this aspect before the CLB. And, the CLB shall consider the same in accordance with law. The present appeal is dismissed as being devoid of any merit
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2014 (4) TMI 1212
Creation of artificial volumes - Allegations against the appellant were mainly that he made misleading corporate announcement in March 2005 regarding preferential / rights issue with a view to lure investors - Guilty of violating PFUTP Regulations, SAST Regulations and PIT Regulations - Held that:- As during the proceedings before this Tribunal, the appellant was granted leave to obtain and submit a signature comparison report from a Forensic expert. Accordingly, the appellant furnished a signature comparison report dated June 18, 2013. The respondent also filed reply / comments in response to the said report. During the course of hearing, it was felt that in the facts and circumstances of the case, a comparison of the appellant’s signature would be required to ascertain authenticity of his alleged signature on the transfer deed. This factual analysis may also require additional evidence. It would be, therefore, appropriate to remand this matter to the learned adjudicating officer for fresh hearing and adjudication.
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2014 (4) TMI 1211
Eligibility of auction - permissible for the Port Trust to terminate the tender - Held that:- As already pointed out that can hardly be a ground to test the validity of a decision in administrative law. For the sake of argument, even if you presume that there a concluded contract, mere termination thereof cannot be dubbed as arbitrary. A concluded contract if terminated in a bonafide manner, that may amount to breach of contract and certain consequences may follow thereupon under the law of contract. However, on the touch stone of parameters laid down in the administrative law to adjudge a decision as are arbitrary or not, when such a decision is found to be bonafide and not actuated with arbitrariness, such a contention in administrative law is not admissible namely how and why a concluded contract is terminated. We, therefore, reject this contention of the appellant.
Doctrine of promissory estoppel applicability - Held that:- If there is a supervening public equity, the Government would be allowed to change its stand and has the power to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. Merely because the resolution was announced for a particular period, it did not mean that the Government could not amend and change the policy under any circumstances. If the party claiming application of doctrine acted on the basis of a notification, it should have known that such notification was liable to be amended or rescinded at any point of time, if the Government felt that it was necessary to do so in public interest. This contention of the appellant, therefore, is equally devoid of any merits.
Concluded contract between the parties - Held that:- When the LOI is itself hedged with the condition that the final allotment would be made later after obtaining CRZ and other clearances, it may depict an intention to enter into contract at a later stage. Thus, we find that on the facts of this case it appears that a letter with intention to enter into a contract which could take place after all other formalities are completed. However, when the completion of these formalities had taken undue long time and the prices of land, in the interregnum, shot up sharply, the respondent had a right to cancel the process which had not resulted in a concluded contract.
We again emphasise that the issue of the argument of their being a concluded contract is raised in a petition filed under Article 226 of the Constitution and not by way of suit. The issue whether there was a concluded contract and breach thereof become secondary and is examined by us with that limited scope in mind. In such proceedings main aspect which has to be is as to whether impugned decision of the Port Trust was arbitrary or unreasonable. It is also important to remark that in a given case even if it is held that there was a concluded contract, whether specific performance can be ordered or not would be a moot question in writ proceedings. The appellant took the calculated risk in not going to the civil court and choosing to invoke extraordinary jurisdiction of the High Court, which is also discretionary in nature. Appeal dismissed.
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