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Case Laws
Showing 121 to 140 of 910 Records
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2008 (8) TMI 907 - ITAT CHENNAI
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... ... ..... that the transfer of shares by way of family arrangement would not attract capital gains tax, as the same was a prudent arrangement to avoid possible litigation among the family members and was made voluntarily and not induced by any fraud or coercion and, therefore, could not be doubted. The Tribunal was justified in arriving at the conclusion that the family arrangement among the assessees did not amount to any transfer and, hence, was not exigible to capital gains tax." 16. Thus, the angle of consideration that the ‘transfer’ was necessitated on account of family arrangement, also supports the view that no capital gain is attracted in this case. Hence, we do not find any infirmity in the order of the learned Commissioner of Income-tax (Appeals) in this aspect also. Hence, the order of the learned Commissioner of Income-tax (Appeals) is confirmed and the issue is decided in favour of the assessee. 17. In the result, this appeal by the revenue is dismissed.
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2008 (8) TMI 906 - PUNJAB AND HARYANA HIGH COURT
Rejection of the books of accounts - application of the net profit rate and allowing depreciation separately claimed by the assessee - HELD THAT:- We do not find any illegality in the finding recorded by the Tribunal that the profit assessed on the gross receipts is arrived at by taking into consideration all allowable expenses and no further deduction on account of depreciation can be separately allowed.
Therefore, there is no merit in the present appeals. Hence, the same are dismissed.
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2008 (8) TMI 905 - KARNATAKA HIGH COURT
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... ... ..... .F.A. No. 5387/2002 and batch of cases decided by the Division Bench of this court pertains to acquisition of lands for the same purpose and same village has held that the compensation payable to the dry land is ₹ 1,15,600/- and compensation of ₹ 1,25,000/- is awarded for the wet lands. In the cited case, it was shown that the lands in question banana plantation is cultivated. In the instant case, sugarcane is cultivated. The average yield of sugarcane taken at 40 ton per acre, the rate of sugarcane in the year 1998 was ₹ 910/- per ton. In this case, the acquisition is of the year 1997, if the rate at ₹ 910/- per ton is considered, the claimants would be entitled to compensation around ₹ 1,32,000/-. Since the claim in appeal is for ₹ 1,74,000/- per acre. The award is restricted to ₹ 1,74,000/- per acre. The appeals are allowed accordingly and compensation is granted at the rate of ₹ 1,74,000/- with costs and statutory benefits.
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2008 (8) TMI 904 - ITAT MUMBAI
Modvat Credit - Adjustment under Section 145-A - Meaning of ''Modvat'' - Variation in excise duty paid by procuring raw materials and discharge of excise duty liability on non-finished goods - whether entire balance whatever in the Modvat account is to be added to closing stock while giving effect to the s. 145A of the Act - effect of the s. 145A to opening stock - Assessee submitted that the guidelines issued by the institute clearly show that in both i.e., inclusive and exclusive methods for Modvat, the profit remains unchanged and therefore the effect on Modvat credit available at the end of the financial year is nil.
AO did not accept submissions because there was no addition of unutilized Modvat credit to the closing stock of the assessee in the earlier year - accordingly made the addition - CIT(A) decided the issue against the assessee.
HELD THAT:- Modvat is a procedure whereby manufacturer can utilize credit for input duty against duty payable on final products. Duty credit taken on input is of the nature of set off available against the excise duty payable on the final products.
It may be pointed out that the 'inclusive method' is not permitted by AS-2 which is made mandatory from accounting year beginning on or after 1st April, 1999. Further, in the Guidance Note on Accounting for Modvat the second method (inclusive method) has been withdrawn with effect from accounting year commencing from 1st April, 1999. In view of the above, the adjustments u/s. 145A will have to be made in all cases where 'exclusive method' is followed.
We noticed that if an assessee has followed the procedure as laid down by the ICAI and tax auditor reported this aspect in cl. 12(b) in Form 3CD of tax audit report, in such case the point remained to examine is allowability of amount of excise duty which has been adjusted in closing stock of finished goods. No doubt the excise duty adjusted to the closing stock is an allowable revenue expenses. The addition of entire balance in Modvat account is not proper because the nature of this account is personal account, an item of assets side of the balance sheet which always have a debit balance.
It may be noted that after making the addition to the closing stock u/s 145A, it will be possible to claim a separate deduction for excise duty actually paid after the year end but before the due date for filing the return of income on production of evidence as provided u/s 43B.
The contention of the assessee is that the assessee has given effect to the s. 145A. The ld AR in support of that filed a chart and demonstrated accordingly. Such detailed working is also given in tax audit report as required in cl. 12(b) of Form 3CD. But submissions of ld AR and deduction u/s 43B in accordance with discussion are subject to verification therefore, we send the matter back to the file of the AO for limited purpose to verify the facts of the case of assessee.
If the AO finds that the assessee has given effect to s. 145A and also deduction u/s. 43B is made as per discussion, the addition made by him u/s 145A may be deleted. Thus, the grounds of appeal raised by the assessee in this regard are treated as allowed for statistical purposes.
Now we take the second aspect of the matter. The ld AR submitted that effect of the s. 145A to opening stock is also to be given - On consideration of s. 145A and CBDT circular explaining the provisions of s. 145A and judgment of the Delhi High Court in CIT vs. Mahavir Aluminium Ltd.[2007 (11) TMI 41 - HIGH COURT OF DELHI]. we noted that when the adjustments are made in the valuation of inventories, this will affect both the opening as well as closing stock. Whatever adjustment is made in the valuation of closing stock, the same will be reflected in the opening stock also irrespective of any consequences on the computation of income for tax purposes. We further noticed that s. 145A starts with the non obstante clause "notwithstanding anything to the contrary contained in s. 145".
Therefore, to give effect to s. 145A, the opening stock as on 1st April, 1998 will have to be increased by any tax, duty, cess or fee actually paid or incurred with reference to such stock if the same has not been added for the purpose of valuation in the accounts. The AO is directed to give the effect of s. 145A as per discussion.
In the result, the appeal of the assessee is allowed for statistical purposes.
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2008 (8) TMI 903 - ITAT AGRA
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... ... ..... hat in asst. yr. 2005-06 same rate has been allowed by AO. A chart has been produced for comparison Financial year Comm. recd. from GTC, Comm recd. from Total comm. recd. Aligarh others 1999-2000 5,59,886 3,37,800 8,97,686 2000-01 5,95,432 2,50,900 8,46,332 2001-02 5,29,494 2,28,800 7,58,294 2002-03 4,58,500 1,69,200 6,27,700 2003-04 4,51,010 3,10,000 7,61,010 1. From the above chart it is evident that no higher commission has been paid to him. There is no other evidence except assumption that the rate of commission ranges between 1 per cent to 2 per cent. In the absence of any evidence the action of learned AO cannot be upheld. Hence we set aside the orders of the authorities below on this issue and order to delete the impugned addition. 2. Ground No. 7 relates to charging of interest under ss. 234B and 234D. The charging of interest is consequential and mandatory. Therefore, this ground is decided accordingly. 3. In the result, the appeal of the assessee is partly allowed.
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2008 (8) TMI 902 - DELHI HIGH COURT
Petition against Order passed by the CIT - Mistake application filled u/s 264 - Deduction u/s 80-IB(3) - late filing of the return - sufficient cause - condonation of delay under proviso to s. 264(3) - manufactures plastic granules - HELD THAT:- The CIT has not examined the aspects of the matter which we have set out. We are of the view that there was sufficient cause for having made the application after a delay of about seven and a half months. The CIT ought to have condoned the delay. As indicated, the delay was on account of a bona fide mistake and is not visited by any mala fides or any element of recklessness. The petitioner has also been able to show that the claim was not made earlier because legal advice on that account was not forthcoming.
The petitioner had no reason not to have claimed it at an earlier point of time. He did not do so because the requisite advice from its tax department had not been rendered. This can certainly be treated as a sufficient cause for condonation of delay, particularly in the light of the provisions of proviso to s. 264(3) as well as the provisions of s. 5 of the Limitation Act, 1963.
Consequently, we set aside the order of the CIT and remit the matter to the CIT for a decision on merits.
The writ petition stands allowed.
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2008 (8) TMI 901 - SUPREME COURT
Whether the forfeiture of security deposit is without authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act?
Whether the writ petition is maintainable in a claim arising out of a breach of contract?
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2008 (8) TMI 900 - SUPREME COURT
Whether the order passed by a learned Single Judge of the Delhi High Court dismissing the Criminal Revision Petition on the ground that there was inordinate delay in filing and re-filing the revision petition correct?
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2008 (8) TMI 899 - CALCUTTA HIGH COURT
Validity of SCN - the Department after two years from the date of inspection issued a show cause notice
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2008 (8) TMI 898 - PUNJAB & HARYANA HIGH COURT
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... ... ..... Tribunal. 4. After hearing learned counsel for the parties, we find that the view expressed by the Tribunal allowing the expenses to be revenue in nature cannot be faulted with. It is a case where the assessee made certain expenses for exploring the possibility of setting up a paper project at Saharanpur which could not materialise. No asset of permanent nature with enduring benefit was acquired by the assessee. The plant could not be set up to which such an expenditure made could possibly be capitalized. 5. Accordingly, the question, referred to above, is answered against the revenue and in favour of the assessee. 6. As far as question No. 2 is concerned, it is not disputed that the issue raised is covered by an earlier judgment of this Court in CIT v. Mahavir Spinning Mills Ltd. 7. For the reasons stated in Mahavir Spinning Mills Ltd.’s case (supra ), the question is answered against the revenue and in favour of the assessee. 8. Reference is disposed of accordingly.
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2008 (8) TMI 897 - DELHI HIGH COURT
Block assessment u/s 154B - Addition as undisclosed income - basis of certain bank statements discovered during the ''post search inquiry'' - Gift received from non-resident individuals found in the course of a search.
HELD THAT:- The Tribunal placed reliance on the decision of this Court in CIT v. Ravi Kant Jain [2001 (3) TMI 52 - DELHI HIGH COURT] hold that the computing of undisclosed income pursuant to a search operation can only be done on the basis of evidence found as a result of search. It is therefore, clear that the assessment in the block period can only be done on the basis of the evidence found as a result of search.
Following the same, we feel that the finding returned by the Tribunal in the impugned judgment with regard to the bank statements cannot be interfered with.
In Vishal Aggarwal [2005 (5) TMI 33 - DELHI HIGH COURT] the Tribunal in a similar situation had returned the finding that there was nothing in the assessment order to show that any evidence was found during the search to suggest that the gifts were bogus. The gifts having been declared in the returns of income, fell outside the purview of Chapter XIV-B of the Income Tax Act, 1961. In such a similar situation, this Court in Vishal Aggarwal (Supra), did not interfere with the findings and conclusions returned by the Tribunal and was of the view that no substantial question of law arose for the consideration of this Court.
We also take a similar view and find that no interference with the impugned order of the Tribunal is called for on this ground also.
The appeal is dismissed.
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2008 (8) TMI 896 - BOMBAY HIGH COURT
Assessee, job worker, engaged in processing of fabrics – concessional rate of duty paid on man made fabrics containing polyster below 70% - the issue squarely covered by the decision in the case of COMMISSIONER OF C. EX., MUMBAI Versus LAJYA DYEING & BKEACHING WORKS [2008 (2) TMI 41 - SUPREME COURT], where it was held that there is no legal requirement for processors to verify the correctness of declaration furnished by owners.
Also, there is no proof of collusion between the supplier and the assessee - appeal dismissed.
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2008 (8) TMI 895 - CESTAT AHMEDABAD
High Seas Sale - Principles of Natural Justice - Revenue's case mainly based upon the non-entry of transportation trucks at the check posts
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2008 (8) TMI 894 - HIMACHAL PRADESH HIGH COURT
Deduction on bad debt - word "established" - Whether even after the amendment to s. 36(1)(vii) which after amendment provides that deduction on account of bad debt should be allowed once the same is established to have been written off in the books of accounts without proving anything else, the Tribunal was correct in law in upholding the disallowance on the ground that the assessee appellant had failed to prove that the debt had become irrecoverable? - HELD THAT:- It is apparent that prior to amendment, the assessee could claim deduction on account of bad debt, only if it was established that any debt or part thereof had become a bad debt in the previous year. The legislature in its wisdom chose to amend the Act and the amended provision is absolutely clear that once the assessee writes off any bad debt or any part thereof as being irrecoverable, the assessee is entitled to claim deduction for the same.
The word "established" has been deleted from the amended provision. The intention of the legislature is absolutely clear that the assessee is no longer required to establish that the debt is bad. He has only to prove that he has written off the debt in his books of accounts as a bad debt. Once he writes off the debt as being irrecoverable, his claim for deduction cannot be rejected on the ground that debt has not been established to have become irrecoverable debt.
In view of the clear-cut language of the Sec. 36(2)(iii) and the distinction between the unamended and amended provisions, there is no manner of doubt that the intention of the legislature was that the assessee was entitled to claim deduction in case he, in his books of account, had written off the debt as a bad debt. In our view the language is crystal clear and brooks of no other interpretation.
As per the amended provisions of the IT Act, 1961 once the debt has been written off as a bad debt, it is not the requirement of law that the assessee should establish that the debt has in fact become bad. The reason behind this is that after amendment to s. 36(2), in case the assessee recovers any part of the debt the same is assessable as his income in the year when the debt is recovered.
In view of the above discussion, the question is answered in favour of the assessee and against the Revenue.
Appeal filed by the assessee is allowed and disposed of accordingly.
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2008 (8) TMI 893 - SC ORDER
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... ... ..... (DTAA)? At the outset, it may be stated that this Civil Appeal concerns Assessment Year 1997-98. Under the Income Tax Act, each assessment year is a unit by itself. In the present case, there a concurrent finding that Sofema SA, respondent herein, is not a PE under the DTAA. However, we find that this finding has been given on the basis that there is no evidence or justification forthcoming from the side of the Department to show that the respondent is a PE. On that account alone, we do not wish to interfere in this matter. For the afore-stated reasons, this Civil Appeal stands dismissed. No order as to costs.
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2008 (8) TMI 892 - SUPREME COURT
Whether conviction and the sentence passed against Hardip Singh under the provisions of Section 18 of the Narcotic Drugs and Psychotropic Substance Act, 1985 is contrary to law?
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2008 (8) TMI 891 - CESTAT BANGALORE
Valuation - new machine - rejection of transaction value - rebuttal evidence in the form of another Chartered Engineer’s Certificate - Held that: - the transaction value of second-hand machineries cannot be rejected in the absence of any contemporary import of identical goods at identical prices - the Transaction Value is accepted while restricting the RF and penalty to 10% and 5% respectively - appeal allowed - decided partly in favor of appellant.
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2008 (8) TMI 890 - CESTAT AHMEDABAD
Valuation - Superior Kerosene Oil (SKO) - Liquefied Petroleum Gas (LPG) - ONGC is paying Excise duty on a value which is declared as assessable value, but this price is different from what they are collecting from their customers, namely HPCL, BPCL, IBP and IOCL - Held that: - There is no dispute that additional consideration which is paid by the oil marketing companies has been paid out of the subsidy from oil pool account and not received from ultimate consumers - appeal allowed - decided in favor of appellant.
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2008 (8) TMI 889 - CESTAT BANGALORE
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... ... ..... of time. In any case, his contention is that Priya Blue case (supra) cannot be applied. 3. On a very careful consideration of the issue, I find that the Original and Appellate Authorities have not considered this submission of the appellant that on account of clerical error the appellant was not in a position to claim the refund. It has also been urged that the claims were filed within the statutory limits and the finding that they were time-barred is also not based on facts. In the interest of justice, I feel that the matter has to be remanded to the Original Authority to examine the contentions raised by the appellant. Hence, appeals are allowed by way of remand to the Original Authority to decide the issue of de novo within a period of two months from the date of issue of this order after granting an opportunity of personal hearing to the appellants. The appellants are required to produce all the evidence which they rely upon. (Pronounced and dictated in open Court)
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2008 (8) TMI 888 - BOMBAY HIGH COURT
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... ... ..... law as framed do not at all arise from the order of the Tribunal impugned in this appeal. Hence, rejected.
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