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Showing 121 to 140 of 876 Records
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2010 (2) TMI 1204 - CESTAT KOLKATA
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... ... ..... in dealer’s invoice the number of RG-23D entry is not mentioned we find that when the value of goods and duty payment particulars are mentioned in the invoice and genuineness of the invoice not in dispute the Appellant is entitled for the credit hence the demand in this regard is also set aside. 13. In respect of penalty we find that in two cases ₹ 5,000/-(Rupees Five Thousand only) penalty is imposed and in other cases ₹ 2,500/-(Rupees Two Thousand Five Hundred only) is imposed. As we find that there is no dispute that Appellants have received the material under the duty paying document and the credit is being denied as the documents were found to be defective on certain grounds in the present Appeals we are allowing substantially all the credit which was denied therefore we do not find any justification for imposition of penalty hence the penalties are set aside. 14. Appeals are disposed of as indicated above. (Pronounced and dictated in the open court.)
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2010 (2) TMI 1203 - DELHI HIGH COURT
Payment of interest under the decree - Computation of the Interest amounts due - attached monies are not sufficient - liability of judgment debtor / DDA till which date the decree holder is entitled to interest? - till the date of attachment or till the date of release of the attached monies - HELD THAT:- Recently in N.K. Garg & Company Vs. Union of India[2009 (3) TMI 1101 - DELHI HIGH COURT] held that where the decree directs the payment of interest till the date of payment of the decretal amount, interest is payable till the date of payment and not till the date of attachment.
In the present case, also no neglect can be attributed to the decree holder in release of the attached monies. The judgment debtor inspite of notice of the execution, kept on seeking adjournments and ultimately on 31st March, 2006, the court issued warrants of attachment of the monies lying in the bank account of the judgment debtor.
Even thereafter opportunities were sought for making the payment directly. Ultimately on 2nd August, 2006 on the failure of the judgment debtor to make payment inspite of assurances, this court directed the attached monies to be forwarded by the bank in the name of the Registrar General of this Court. Thereafter on 18th December, 2006, the counsel for the judgment debtor for the first time contended that the amount payable under the decree was less than the amount attached and received in the Court.
Accordingly, order for release of the amount admitted by the judgment debtor was made on 18th December, 2006 and pursuant thereto the monies released on 10th January, 2007. It is thus held that the decree holder would be entitled to interest under the decree till 10th January, 2007.
TDS on the element of interest - 194C OR 194A - HELD THAT:- Recently in Indian Hume Pipe Co. Ltd. v. State of Rajasthan [2009 (10) TMI 530 - SUPREME COURT], it has been held that a person deprived of monies is entitled to be compensated by whatsoever name called, be it interest, compensation or damages. Thus, it cannot be said that payment of interest under the decree is akin to payment of interest to which Section 194 A applies. The reasoning given in Unique Enterprises [2006 (1) TMI 624 - DELHI HIGH COURT] that such payment is as part of a decree and the payment merges in the decree holds good qua Section 194 A also.
No merit in either of the objections raised by the judgment debtor. The parties to appear before the Registrar General of this Court for computation of the amounts due in terms of the aforesaid and the additional amounts found due to the decree holder be released from the attached monies and if the attached monies are not sufficient, the judgment debtor / DDA to pay the said amount to the decree holder immediately on computation.
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2010 (2) TMI 1202 - SC ORDER
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... ... ..... Das,Adv. For the Respondent Mr. Preetesh Kapur,Adv., Mr. Ankur Saigal,Adv., Ms. Bina Gupta,Adv., Mr. Gaurav Singh,Adv. O R D E R Heard learned counsel on both sides. Delay condoned. The special leave petition is dismissed.
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2010 (2) TMI 1201 - ITAT HYDERABAD
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... ... ..... red details for adjudicating the issue under dispute and hence he requested that in the interests of natural justice, these matters may be remitted back to the file of the assessing officer for reconsideration afresh in accordance with law. o p /o p 6. We have considered the rival submissions and perused the material available on record. After considering the facts of the case, we find that both the representatives of rival parties agreed to send back the matters to the file of the assessing officer for reconsideration. In view of the above, we agree with the representatives of the parties and send back all the issues including additional grounds to the file of the assessing officer for consideration afresh in accordance with law and decide the same after hearing all the contentions of the assessee. o p /o p 7. In the result, both the appeals by the assessee are treated as allowed for statistical purposes. o p /o p Order was pronounced in the open court on 10-2-2010 o p /o p
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2010 (2) TMI 1200 - SC ORDER
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... ... ..... 30/2010. In the meantime, there will be stay of further proceedings in RC No. 6(E)/2003/CBI/SPE/EOU/VII/New Delhi, pending before the learned Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi.
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2010 (2) TMI 1199 - ITAT DELHI
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... ... ..... ence, we uphold the order passed by the CIT(A).” o p /o p 13. The decision in the case of Lucky Minerals (P) Ltd. vs. CIT 116 Taxman 1(SC) relied by the ld. DR is distinguisable from the present case. in the said case. Hon’ble Supreme Court has observed that it has not been found by the Tribunal that the assessee company converted the boulders into powder, chips or any other article commercially known by another name and used as a different article. Thus, the Court held that the activities carried on by the assessee company did not amount to manufacture. Similarly, other decisions relied upon by the Revenue are distinguishable on facts.” o p /o p 6. In view of the aforesaid discussion, following the precedent we uphold the order of the ld. CIT(A) and decide the issue in favour of the assessee. o p /o p 7. In the result, the revenue’s appeal is dismissed. o p /o p Order pronounced in the open court on 18/02/2010 upon conclusion of the hearing. o p /o p
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2010 (2) TMI 1198 - CESTAT MUMBAI
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... ... ..... of the same assessee. The pertinent point to be considered in the context is the fact that revenue-neutrality is only one of the considerations against invocation of the extended period of limitation. The ruling of the Apex Court is that the extended period of limitation under the proviso to Section 11A(1) of the Act can be invoked on other grounds even in revenue-neutral situation. In the present case, such grounds did exist, as I have already found and therefore the case law cited by the learned Counsel on the point is of no avail. 9. In the result, the challenge against invocation of the extended period on limitation fails. Now that the appellant is found to have suppressed the correct facts before the department with intent to evade payment of duty, it would follow that Section 11AB and Section 11AC of the Act would also get attracted. In other words, the orders of the lower authorities cannot be interfered with. 10. The appeal is dismissed. (Dictated in Court)
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2010 (2) TMI 1197 - ITAT AHMEDABAD
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... ... ..... ect of Banas-II Dairy Unit. However, the decision of Tribunal for the assessment year 2004-05 was delivered on 07.12.2008. The Learned Commissioner of Income Tax(Appeals) passed the impugned order on 24.01.2008. Obviously the decision of the Tribunal for the assessment year 2004-05 was not available when the Learned Commissioner of Income Tax(Appeals) passed the impugned order. In view of this, we restore the matter to the file of A.O. with the direction that the assessee should furnish the audit report, A.O. will examine the same. The A.O. will also examine when this Unit was set up and consider the allowance of deduction under section 80IB keeping in view the decision dated 07.11.2008 of the Tribunal in assessee’s own case for the assessment year 2004-05 after giving opportunity of being heard to the assessee. 23. In the result, the appeal of the Department is dismissed and the appeal of the assessee is allowed in part. The Order pronounced in the Court on 26.02.2010
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2010 (2) TMI 1196 - SC ORDER
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... ... ..... elay condoned. Special leave petition is dismissed.
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2010 (2) TMI 1195 - ITAT MUMBAI
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... ... ..... reasons 1) We find that range of rates is NASSCOM report is specific to “Customer Care BPO and this is segment in which the assessee falls. Therefore the rate given in NASSCOM is specific and not general. 2) The billing rate per hour of the assessee US 13.09 per hour is in line with the man hour prevalent in the industry as can be verified from page 52 of the Paper book submitted by the assessee. 3) The TPO has selected data of companies which function in entirely different segment which are uncomparable with the assessee’s case and hence the same cannot be adopted. 4. The AM of the margin given by the TPO at 6.28 is incorrect and cannot be relied upon. 14. Hence we are of the opinion that the Comparable Uncontrolled Method (CUP) followed by the assessee company is the most appropriate method in this case and we dismiss the Revenue’s appeal. 15. In the result, the appeal filed by the Revenue is dismissed. Order pronounced on this 18th day of February, 2010
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2010 (2) TMI 1194 - GUJARAT HIGH COURT
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... ... ..... ortunity of being heard be given to the petitioner and it is open to the petitioner to lead all necessary documents or to make submission for this representation in support of its claim. We are also making it clear that if the representation is decided against the petitioner, liberty is reserved to the petitioner to challenge the decision of the respondent authorities on the petitioner's representation before an appropriate Forum. 4. Ms.Mehta submits that if the petitioner would submit the documents and/or make further representation in that case, some more time will be required to decide the representation. Mr.Nanavati has submitted that the petitioner will file within one week from today, the further representation along with all other supporting details and materials. If that be so, the respondent-State shall decide such representation within one month from the date of receipt thereof. 5. With this direction and observation, this petition is, accordingly, disposed of.
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2010 (2) TMI 1193 - DELHI HIGH COURT
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... ... ..... he Revenue submits that the Tribunal had directed the deposit of 20 per cent of the demand and not the deposit of ₹ 5 crores in two equal instalments of ₹ 2.5 crores each. 5. This, however, is a controversy which would be resolved by the Tribunal in deciding the rectification application, which has been filed by the petitioner. The petitioner has approached this Court by way of this writ petition because the rectification application was not listed before the Tribunal prior to 15-2-2010, on which date the first instalment had to be paid. We see that in such a matter where there is a controversy with regard to what was the exact order that was pronounced in open Court, the matter should be disposed of on the earliest possible date to obviate any further complications. Consequently, we direct that the Tribunal should take up the hearing of the miscellaneous application filed by the petitioner on 18-2-2010. 6. The writ petition is disposed of in the aforesaid terms.
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2010 (2) TMI 1192 - ITAT MUMBAI
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... ... ..... er of the ld. CIT(A) with a direction to the A.O. to assess the profit on sale of shares under the head short term capital gain as offered by the assessee. Ground No. 1 of assessee’s appeal is accordingly allowed. 12. Keeping in view our decision rendered above while disposing of Ground No. 1, the issue raised by the assessee in Ground Nos. 2 & 3 of his appeal claiming the benefit of carried forward of losses has become infructuous. However, the A.O. is directed to allow the set off according to law after examining the past record of the assessee. This ground of assessee’s appeal is accordingly dismissed having become infructuous. 13. The issues raised by the assessee in Ground Nos. 4 & 5 relating to levy of interest u/s. 234A, 234B, 234C & 234D are consequential. The A.O. is accordingly directed to give consequential relief to the assessee. 14. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 17th February 2010.
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2010 (2) TMI 1191 - ITAT BANGALORE
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... ... ..... ontention of the assessee that TDS obligation was not was required, considering the computation of income shown in each case where F No.13 application was made to the AO concerned for authorization, in our considered view, to put it gently, the assessee had over-stepped in his perception which he was not obliged to do so under any provisions of I.T.Act. 8.2.11. In an overall consideration of the facts and circumstances of the issue and in conformity with the finding of the Hon’ble Tribunal referred supra, the Ld. CIT(A) was justified in confirming the stand of the AO on this count. It is ordered accordingly. 9. The other grievance of the assessee is with regard to the charging of interest u/s 234B of the Act. Charging of interest u/s 234B of the Act is mandatory and consequential in nature and, thus, this ground is dismissed as not maintainable. 10. In the result, the assessee’s appeal is dismissed. Pronounced in the open court on this 16th day of February, 2010.
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2010 (2) TMI 1190 - ITAT DELHI
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... ... ..... at while earlier notices were received by the assessee, it is not understandable as to how notice for hearing on 10.12.2008 was not received by the assessee. o p /o p 3. We have considered the facts of the case and submissions made before us. On perusal of the record, it is seen that a notice dated 23.10.2008 was issued to the assessee fixing the case for hearing on 10.12.2008. However, the evidence of its service is not on record. In these circumstances, we think it fit to recall the order so that the appeal may be decided on merits after hearing the assessee. For this purpose, the appeal is fixed for hearing on 14.4.2010. This date was intimated to both the parties in the open court soon after conclusion of the hearing and they were informed that no notice shall be issued for this hearing. o p /o p 4. In the result, the application is allowed. o p /o p This order was pronounced in the open court on 19.2.2010 soon after completion of the hearing of the application. o p /o p
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2010 (2) TMI 1189 - ITAT PUNE
Penalty u/s 271(1)(c) - return filed in response to notice u/s 153A - eligibility to immunity prescribed in Expln. 5. - HELD THAT:- In the instant case, assessees filed original return prior to the search u/s 132. Assessees disclosed an additional income during the search and filed the return in response to notice under s. 153A and honoured the said disclosed additional income. Undisputedly, the said income was neither recorded in the books of account nor disclosed to the CIT/Chief CIT before the search nor the source of the same explaining the manner of deriving was provided.
We following the decision of Third Member Bench in the case of Kirit Dahyabhai Patel [2009 (6) TMI 654 - ITAT AHMEDABAD-B] have come to the conclusion that since additional income declared in returns filed in response to notice u/s 153A does not fall under category of return mentioned in Expln. 5 to s. 271(1)(c), assessees were not entitled to immunity from penalty
CIT(A) was not justified in deleting the penalty levied by the AO on additional income declared in returns filed in response to notice u/s 153A without examining that assessees had fulfilled the requirement of immunity prescribed in Expln. 5. No such argument has been advanced before us either that assessees were fulfilling these requirements of immunity to grant benefit under Expln. 5. We thus while setting aside the first appellate order to this extent, restore the penalty levied by the AO on such additional income declared in returns filed in response to notice under s. 153A. The grounds are accordingly allowed. Consequently the appeals are allowed.
In the result, appeals are allowed.
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2010 (2) TMI 1188 - ITAT AHMEDABAD
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... ... ..... annot be restored back. 6. On careful consideration of relevant facts, we are inclined to accept the contention raised on behalf of the assessee. When the Tribunal passed the order, it did not have the benefit either of the definition of word ‘manufacture’ itself or the decision of the Hon'ble Supreme Court in the case of Arihant Tiles and Marble P. Ltd. (Supra). We therefore, restore the matter back to the file of the Assessing Officer who will reconsider the issue afresh after considering the definition of the word ‘manufacturing’ as contained in section 2(29BA) and also ratio laid down by Hon'ble Supreme Court. The Assessee shall place necessary material in support of its contention that it is entitled to deduction under section 80IB. Charging of interest under section 234B is consequential in nature. In the result, appeal is treated as allowed for statistical purposes. Order signed, dated and pronounced in the Court on 12th February, 2010.
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2010 (2) TMI 1187 - ITAT MUMBAI
Deduction u/s 80IB(10) - non adherence to condition is that the housing project should be on the size of plot of land which has a minimum area of one acre - claim denied as the project was not a 100% residential project - assessee submitted that there is no such strict condition prescribed in the section and at any rate the commercial construction amounted only to 1.36% of the total project area of 136475 sq.ft. and there is thus substantial compliance with the condition, if at all there is any, prescribed by the section and at any rate the area occupied by the commercial space was very very negligible - CIT(A) agreed with the view taken AO and took the view, total area of the plot was 4600 sq. metres, the area of 656.75 sq. metres had to be excluded for the D.P. Road and if this is excluded, the size of the plot would be reduced to 3943.25 sq.metres, which is less than one acre (one acre equals 4050 sq. metres).
HELD THAT:- On issue of housing project was not entirely residential but was partially commercial, the same is governed by the order Brahma Associates [2009 (4) TMI 215 - ITAT PUNE] as held that the margin of 10% can be given for commercial area and so long as the commercial space in the built up area is less than 10% of the total built up area, the claim for deduction u/s 80IB(10) cannot be denied. This order supports the assessee’s claim that the commercial area of ‘Umiya Complex’ being only 1.36% of the total built up area, the deduction cannot be refused. Assessee’s claim cannot be refused on this ground namely the ground that the assessee did not satisfy the condition prescribed by clause (c) of section 80IB(10).
Denial on basis of clause (b) of section 80IB(10) - In addition to the fact that the assessee itself has treated the entire project as a single project, though it was spread over two plots of land, we find from the annexure to the development agreement that both the plots are contiguous to each other.
There is no condition in the clause that recreation area has to be excluded while examining whether the plot is of the size of one acre or less. If the recreation area of 591.49 sq. metres is added to the total plot area of 3597.91 sq. metres, it gives an area of 4189 sq. metres which is the size of the plot. The total plot area has been arrived at by MNP 3597.51 only for the purpose of calculating the permissible FSI. The permissible FSI as per column 9 of the area statement is one, which means that the assessee can build 3597.91 sq.metres in the said plot. However, for the purpose of clause (b) of section 80IB(10), the plot area has been taken at 4189 sq. metres, if not at 4600 sq. metres, even on this basis, the size of the plot is more than one acre. In our opinion, the CIT(A) committed an error in simply excluding 656.75 sq.metres from the area of 4600 sq.metres without appreciating that the exclusion is only for the purpose of D.P. Road which does not reduce the size of the plot as a whole. We are therefore satisfied that there is no violation of the conditions prescribed by clause(b).
Direct AO to allow the deduction claimed by the assessee u/s 80IB(10) - Decided in favour of assessee.
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2010 (2) TMI 1186 - ITAT JAIPUR
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... ... ..... interest on the bank overdraft. This year also, the AO disallowed ₹ 6,000 which was confirmed by the learned CIT(A) also following the orders in the earlier years in the asst. yrs. 2002-03, 2003-04 and 2004-05. The contention of the assessee in this regard remained that the said organization was a charitable organization and the advance was given for social purpose without charging interest. 14. Considering the rival submissions of the parties, it is noticed that this issue came up before the Tribunal in the earlier years also wherein, vide order dt. 31st July, 2008 of this Bench (ITA Nos. 607, 608 and 161/Jp/2008) in case of the appellant for asst. yrs. 2002-03, 2003-04 and 2004-05, disallowance made on exactly same ground, was upheld holding that the interest-free advance was not made for business purposes. Hence following same, the disallowance so made is upheld this year also and the related ground is thus, rejected. 15. In the result, the appeal is partly allowed.
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2010 (2) TMI 1185 - ITAT MUMBAI
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... ... ..... is company in turn sold the shares on 30.10.2006 for ₹ 150/- per share and declared the capital gains accordingly in its return of income, copy of which has been placed at pages 170 to 174 of the paper book. The capital gains declared in the return was accepted in the assessment order passed under section 143(3) on 17.11.2009. These facts also show that the capital gains in the assessee’s case have to be computed only on the basis of the agreed price of ₹ 148/- per share, since the department has accepted the sale price of ₹ 150/- per share in the case of the above two companies. 8. For the above reasons we direct the Assessing Officer to compute the capital gains on the sale of the shares of M/s Dimexon Diamonds Limited on the basis of the agreed sale price of ₹ 148/- per share. 9. In the result, the appeal of the assessee is allowed and the appeal of the Department is dismissed with no order as to costs. Order pronounced on 26th February 2010.
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