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Showing 121 to 140 of 1585 Records
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2015 (8) TMI 1474
Unaccounted income - AO treated the amount received from Niraj Jain / Pooja Expo Inc. as unaccounted income of the assessee - HELD THAT:- Addition has been made without bringing any evidence on record. Also find that the CIT(A) passed exparte order on the date of hearing itself without given sufficient opportunity of being heard, which is contrary to the principle of natural justice.
Therefore, in the interest of natural justice, remit back the issue in dispute to the file of the AO with the directions to decide the same afresh, under the law, after considering all the relevant evidences, after giving full opportunity to the assessee of being heard. Assessee is also directed to furnish all the evidences before the AO to substantiate his case.- Appeals filed by the assessee stands allowed for statistical purposes.
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2015 (8) TMI 1473
TP adjustment - “Management fee” paid to parent company at Korea - Arm’s Length Price (ALP) adopting CUP method - nature of work involved - HELD THAT:- Entire matter has to be remitted back to the file of Ld. TPO for denovo consideration because both the assessee as well as the Revenue has not examined the issue with respect to the correct factual matrix. “Management services” and “Technical services” false under different field and the nature of work involved both these services are different.
When the assessee has made payments to its parent company it has to establish and justify the nature of payment and the nature of service received for the purpose of determining Arms length price in Transfer pricing matters. The onus is on the assessee to substantiate its claim.
Just because the operating cost incurred by the assessee company is less than the operating cost of the comparable companies, the claim of expenses incurred towards payment made to its parent company on an adhoc basis cannot be justified. In modern management and technical field there are sufficient ways and measures to measure the services rendered by one entity to other entity - the assessee is bound to produce satisfactory evidence before the Revenue to establish its stand. In fact in this instance case the entire confusion has arisen because the assessee company has not submitted the evidence for the service rendered by the parent company to the assessee company against which the payments are made to the parent company by the assessee company. With these observations we remit the matter back to the file of TPO for fresh considerations - Appeal of assessee is allowed for statistical purposes
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2015 (8) TMI 1472
Penalty u/s 271(1)(c) - no positive income - Assessee contended that as the net result of the case of the assessee is a loss, no penalty u/s 271(1)(c) is imposable - proof of bonafide mistake - claim of carry forward losses - findings as to the concealment of income or furnishing of inaccurate particulars - AO relying on the decision of CIT Vs. Gold Coin Health Food Pvt. Ltd.[2008 (8) TMI 5 - SUPREME COURT] held that even it the returned income as well as assessed income are loss, still penalty u/s 271(1)(c) is leviable - CIT(A) allowed the appeal of the assessee by deleting the penalty
HELD THAT:- This is a case where excess claim of carry forward losses was made by the assessee, which was disallowed by the A.O., since it was not as per law. The assessee did not challenge the said order of the A.O. and accepted the said assessment.
It is not a case of concealment of income as the AO himself has picked up all facts and figures from the return of income and the details filed by the assessee. It is not also a case of furnishing of inaccurate particulars, as the assessee has disclosed all particulars rightly before the AO. It is a case where a excess claim was made by the assessee in its return.
Every disallowance or addition made by AO could not be the sole basis for levying penalty u/s 271(1)(c). Assessee has pleaded bonafide, which gets strengthened by the fact that the particulars of brought forward loss were declared to revenue and as per AO, assessee could claim business losses of only eight years and assessee was dependent on legal advice only. The explanation offered by the assessee was therefore bonafide. It is a clear case of claim made by committing a bonafide mistake.
The claim of carry forward losses is on account of an inadvertent & bonafide error and not intending to conceal income or to furnish inaccurate particulars of income. As this is a case of addition on account of excess claim made by the assessee, penalty could not be levied under section 271 (1)(c) - Case of RELIANCE PETROPRODUCTS PVT. LTD. [2010 (3) TMI 80 - SUPREME COURT] to be followed - Decided in favour of assessee.
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2015 (8) TMI 1471
"Mark to Market" loss - valuation of forward exchange contracts on the closing date of accounting year is not a notional loss as allowable - notional loss on account of valuation of foreign exchange forward contracts - HELD THAT:- Mark-to-Market gain or loss is held as allowable business gain or loss as the case may be. In the instant case, loss arising on re-valuation of forward contract agreements on 31st March, 2009. Thus, the CIT (A)'s order on this issue, for both the assessment years under consideration, is fair and reasonable and it does not call for any interference. Accordingly, Grounds raised by the Revenue in both the appeals are dismissed.
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2015 (8) TMI 1470
Corrigendum to correct the inadvertent typographical error - HELD THAT:- In the cause title, it has been inadvertently mentioned as Vijay Sahakari Bank Ltd. instead of Vidya Sahakari Bank Ltd., Therefore, the cause tile may be read as ‘Vidya Sahakari Bank Ltd’. instead of ‘Vijay Sahakari Bank Ltd’.
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2015 (8) TMI 1469
Condonation of delay in filing appeal - the total time taken for filing of the appeal was 200 days, and as such, the delay in filing of the appeal by the appellant (being the writ petitioner herein) was much beyond the condonation period of 30 days after expiry of normal 60 days - applicability of Section 5 of Limitation Act - Whether the impugned order in appeal passed by the Commissioner of Central Excise (Appeals-II), Kolkata, could be subjected to judicial review under Article 226 of the Constitution of India and interfered with?
Held that:- This issue is no more res integra in view of several pronouncements of the Hon'ble Supreme Court. In Singh Enterprises Vs. Commissioner of C. EX., Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA], where it was held that The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days.
Section 5 of the Limitation Act cannot be applied where specific power has been conferred upon a particular authority under a statute to condone delay.
Section 35 of the Central Excise Act, 1944, being time specific in nature and taking into consideration the admitted fact that the appellant (being the writ petitioner herein) presented the appeal beyond the outer time limit as provided under the said section, the impugned order passed by the Commissioner of Central Excise (Appeals-II), Kolkata, does not warrant any interference under Article 226 of the Constitution of India.
Petition dismissed.
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2015 (8) TMI 1468
Recovery of money - Commission due to the plaintiff for sale of products as a distributor of the defendant - it is argued that the amount which is claimed in the suit is that the amount with respect to which the defendant had issued a total of 11 TDS certificates and once the 11 TDS certificates are found to be issued by the defendant, the defendant is liable to pay the suit amount to the plaintiff - adjustment against the amount cheated/embezzled by the plaintiff - Held that:- In the present case, TDS certificates would be evidentiary admissions only and not judicial admissions of evidence for the same to form a basis at this stage itself for decreeing of the suit although issues have been framed with respect to disputed questions of facts and evidence is going on - Evidence which therefore exists at an intermediate stage of a suit would be relevant to one party to prove his case, but such evidence can always be questioned by leading evidence by the other side and also by cross-examining the witness of the other party.
This disputed question of fact entitles the defendant to lead the evidence to show as to how the plaintiff has embezzled money and such amounts of moneys are to be adjusted against the claim of the plaintiff in the suit.
The present is not a fit case in which the suit for recovery of money should be straightway decreed - to allow the application is to summarily reject the defence of the defendant without allowing the defendant to lead evidence on his defence which is a disputed question of fact requiring leading of evidence by the defendant - application is dismissed.
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2015 (8) TMI 1467
Best Judgement Assessment - levy of penalty - appellant failed to respond to SCNs - Form WW rejected - Held that:- Tthe appellant is obliged to do under the Act, is to file monthly returns and not really the auditor's report. In any case, after the best of judgment assessment orders are passed, the appellant has filed Form WW. The correctness of the particulars reflected in Form WW are not in question. In such circumstances, the rejection of the request for passing revised assessment orders is not in accordance with law. This aspect has not been properly appreciated in the writ petitions.
Once the original defect, if at all it was a defect, was cured by the assessee, by filing Form WW, the respondent cannot simply throw the form out on the ground that it was filed beyond the period of limitation. This is especially so when best of judgment assessment orders have been passed by him.
The matter is remitted back to the respondent for taking on file Form WW filed by the appellant in respect of both the assessment years - appeal allowed by way of remand.
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2015 (8) TMI 1466
Correct head of income - rental income from Operating Family Entertainment Center cum Mall and Maintenance Charges - "Income from House Property " OR "Profit and Gains from Business or Profession" - Held that:- As decided in assessee’s own case [2014 (7) TMI 1171 - ITAT MUMBAI] giving space with services and facilities of varied and wide nature would definitely constitute a business and the relationship between the parties in such case is distinguished from that merely of a landlord and tenant relationship. We therefore find no infirmity in the impugned orders of the CIT(A) treating the operational income received by the assessee companies from running of Malls in the form of rent and service charges as their business income and upholding the same on this issue, we dismiss these appeals filed by the Revenue. - decided in favour of assessee.
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2015 (8) TMI 1465
Levy of penalty u/s. 271(l)(c) - furnishing inaccurate particulars of income - treating the loss on foreign exchange fluctuation - Held that:- We find that there was difference of opinion between the AO and the assessee about treating the loss on foreign exchange fluctuation, that the assessee had furnished all the details about the claim made by it and had stated that after the repossession of the ship the transaction had become part of the working capital. Thus, all the details of about the claim were available on file. In our opinion, confirmation of an addition by higher judicial forum do not lead to automatic imposition of penalty u/s.271(1)(c)of the Act
Penalty notice the assessee had filed an explanation and we are of the opinion that it was a plausible explanation.
If any information is suppressed by the assessee and but for the attentiveness of the AO, it would have escaped taxation, the assessee has to be dealt with sternly, but not in a case where the assessee has filed an explanation that is prima facie reasonable.
In the case under consideration the reply filed by it was neither fanciful nor totally unacceptable. We find that in the case of Reliance Petro Products P. Ltd.(2010 (3) TMI 80 - SUPREME COURT) the Hon’ble Supreme Court has held that merely because an assessee raises a claim which is eventually disallowed, that does not mean that the ingredients of clause (c) of section 271(1) of the Act are satisfied or fulfilled so as to justify imposition of a penalty. - Decided in favour of the assessee.
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2015 (8) TMI 1464
Entitlement for deduction on account of Keyman insurance policy taken on the life of two partners - allowable deduction u/s.37(1) - Held that:- This issue has been settled by the Hon’ble jurisdictional High Court in CIT vs B.N. Exports (2010 (3) TMI 186 - BOMBAY HIGH COURT) by holding that, for claiming business expenditure u/s 10(10D) read with section 37 of the Act, insurance premium on Keyman insurance policy to ensure life of a partner and effect of Circular No.762 (supra), is an allowable deduction. The object and purpose of Keyman insurance policy is to protect the business against a financial setback which may occur as a result of premature death, to the business or professional organization and further a Keyman Insurance Policy is obtained on the life of a Keyman including partner to safeguard the firm against disruption of business. - Decided in favour of assessee
Disallowance of interest should be made u/s 14A with reference to net interest only - Held that:- the assessee duly explained its version with the help of the documentary evidence. It is noted that while computing the disallowance u/s 14A read with Rule-8D of the Rules, the Assessing Officer considered the payments to partners. The term ‘interest’ has been defined u/s 2(28A) which means, interest payable in respect of any money borrowed or debt incurred (including a deposit, claim or other similar right or obligation) and includes any service fee or other charge in respect of moneys borrowed or debt incurred or in respect of any credit facility which has not been utilized. The capital contributed by the partner is neither money borrowed nor debt incurred by the assessee, thus, we find no infirmity in the conclusion drawn by the ld. Commissioner of Income Tax (Appeals), resultantly. - Decided against revenue
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2015 (8) TMI 1463
Addition u/s 68 - Addition being the commission payment estimated by the AO - Held that:- Documents and confirmation letter filed by the share applicant company would show that the identity and credit worthiness of the transactions stand proved. Since the impugned sum of ₹ 10.00 lakhs was received through banking channels, the genuineness of the transactions also stand proved. Thus as noticed the assessee has discharged the initial burden of proof placed upon it.
CIT(A) has examined the copy of income tax returns, which may not throw light about the credit worthiness. Further the copy of bank statement also shows that there are continuous transactions of deposits and withdrawals. Hence, in my view, the observations made by the CIT(A) that there were heavy deposits before issuing the cheque of ₹ 10.00 lakhs to the assessee company also appear to be misplaced one. Hence, in my view, the Ld CIT(A) has confirmed the impugned addition without properly appreciating facts.
Unable to agree with the conclusions reached by CIT(A) in view of the foregoing discussions. Accordingly, set aside the order of CIT(A) on the issue of ₹ 10.00 lakhs and direct the assessing officer to delete the same. Consequently, the addition of ₹ 10,000/- relating to estimated commission income is also directed to be deleted. - Decided in favour of assessee
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2015 (8) TMI 1462
Disallowance of carry forward of excess capital expenditure which needs to be set off against the future income - assessee is a society, running several educational institutions - Held that:- This issue is no longer res integra. The Tribunal in assessee’s own case for the AY 2005-06 [2011 (8) TMI 1194 - ITAT DELHI] by following the judgment of the Hon’ble Bombay High Court in the case of CIT Vs. Institute of Banking [2003 (7) TMI 52 - BOMBAY HIGH COURT] has decided the issue in favour of the assessee.
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2015 (8) TMI 1461
CENVAT Credit - inputs/input services used for generation of electricity which is partly used by the appellant in their induction furnace and part of electricity was sold in market - Rule 6(3) of the Central Excise Rules, 2004 - Held that:- In this case, admittedly, the appellant has already reversed the entire amount of input/input services used in generation of electricity, therefore, same is sufficient. Therefore, appellant is not required to pay any amount of the value of 8/10 % of electricity - appeal allowed - decided in favor of appellant.
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2015 (8) TMI 1460
Entitled for deduction u/S 80G - Held that:- No deduction was allowed in respect of any donation unless such donation is a sum of money and since the assessee made donation in the form of equipments and not as a sum of money, such deduction was not permissible in law and which came to be challenged by the assessee in appeal before the Tribunal and after perusal of the records the Tribunal arrived to a conclusion that the money was paid to the manufacturer of those machines which were installed at the SMS Hospital with the prior consent and such machines were installed to provide medical assistance to the poor people and also observed that if the money would have been paid directly to the SMS Hospital donation u/S 80G was permissible but there was a confirmation in regard to machines being installed and paid by cheque to the manufacturer and machines once installed in SMS Hospital has been counter checked by the revenue, taking note thereof and the facts which came before the Tribunal into consideration allowed the appeal of the assessee & held that he is entitled for deduction u/S 80G of the Act. - decided in favour of assessee.
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2015 (8) TMI 1459
Corporate Insolvency Resolution Process - default in repayment of loan advanced to the corporate debtor - winding up petition filed against the Corporate Debtor has been admitted - Held that:- There does not appear to be any doubt as to the amount claimed to be due by the petitioning-creditor. It would be evident from the certificate of February 17, 2014 and the company’s e-mail of July 15, 2014 that the company has no defence to the claim.
CP is admitted for the principal sum of ₹ 3,87,49,003/- together with interest thereon at the rate of 8 per cent per annum from February 11, 2014, which is the date indicated in the letter of February 17, 2014 issued by the company to the petitioner. If the company pays off the entire amount, inclusive of interest and costs assessed at 2000 GM, within a fortnight from date, the petition will remain permanently stayed.
In default of such payment, the petition will be advertised once in “The Statesman” and once in “Bartaman”. The advertisements should indicate that the matter will appear before Court on the first available working day after the expiry of four weeks from the date of the publications being made. Publication in the Official Gazette will stand dispensed with.
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2015 (8) TMI 1458
TDS u/ 194C - tds liability on reimbursement expenses - addition u/s. 40(a)(ia) being the reimbursement of expenses paid to clearing and & forwarding Agents, reimbursed towards stamp charges, documents charges for custom, loading & Unloading charges and other miscellaneous expenses - Held that:- The assessee’s stand throughout has been that such shipping payments do not require TDS deduction as per the Boards Circular No. 723 dated 01-09-1995 excluding operation of the relevant TDS provisions. Both the lower authorities fail to rebut this contention on facts and law.
We accordingly hold that the CIT(A) erred in directing the Assessing Officer to consider assessee’s shipping line bills for the purpose of TDS deduction. The case file reveals that a coordinate bench of the tribunal in assessee’s own case for preceding assessment year [2014 (5) TMI 268 - ITAT AHMEDABAD] holds similar reimbursements made to be very payee as not covered by TDS provisions. The Revenue fails to point out any distinction on facts. We observe in these circumstances that the Commissioner of Income Tax(A)’s action in part is not liable to be upheld on both counts i.e. merits as well as judicial consistency. - Decided in favour of assessee.
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2015 (8) TMI 1457
Addition u/s 68 - Unsecured loans - accommodation entries received - genuineness of the transactions was not proved - Held that:- Considering this Remand Report dated 22.06.2012 filed in pursuance to the directions given to re-consider the issue on merits, the CIT(A) granted relief. In the said factual background, the ld. CIT DR was unable to point out any infirmity either in procedure followed or on conclusion arrived at on these facts in the order.
Admission of additional evidence considering the objections of the assessee to the first Remand Report - Held that:- Admittedly, as per the non-rebutted evidence on record, the effective hearing in the assessment proceedings started on 07.12.2011 leading to the passing of the assessment order on 29.12.2011. Thus in the absence of any evidence to the contrary the finding of the CIT(A) under challenge that “adequate and real opportunities was lacking during the assessment proceedings” is upheld. The Ground No.-2 of the Revenue accordingly is dismissed.
In the present case, admittedly the Assessing Officer, consciously and carefully after due and proper enquiry carried out by issuance of notices u/s 133(6) to the concerned persons/parties and considering the material comes to the conclusion that he is satisfied by the claim of the assessee on verification, then in such a situation the filing of the present appeals cannot be justified and can only be termed as a farce. - decided against revenue
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2015 (8) TMI 1456
TDS u/s 195 - non-deduction of tax on commission paid to non-resident outside India - addition u/s 40(a)(i) - income accrued in India - PE in India - Held that:- AO has accepted that the payment made by the assessee is on account of commission and compensation to the foreign agent and therefore it is not the case of the AO that the payment in question is either fee for technical service or royalty which could be taxed in India as per provisions of sec.9(1) of the Act. We further note that the AO has supported his finding by citing the reason that commission income arises in India because right to receive commission arises when the order is executed by the assessee in India.
In our view, this logic and contention of the AO is absolutely erroneous and based on mis-interpretation of the term ‘accrue or arise in India’ as per the provisions of sec.9(1). The commission is paid to foreign agent for services rendered by the agent outside India and the agent has no business link or source of income in India. Therefore, in absence of any business connection or source of income and consequently any permanent establishment in India, the said income in the hands of the foreign agent is not taxable in India. - decided in favour of assessee.
Disallowance of compensation paid of prior period export sales - selection of assessment year - Held that:- There is no dispute that the assessee is following mercantile system of accounting. Even otherwise, as per the accounting standard as well as per provisions of Companies Act, the assessee is bound to follow the mercantile system of accounting. The assessee has claimed sale rebate/damage on account of defective goods exported in the earlier year. It is pertinent to note that it is not the claim of the assessee that the liability of damage has been crystallized in this year and till the year under consideration assessee was disputing the claim of the purchaser. It is only payment in respect of same amount was adjusted against the purchases received in the year under consideration. Therefore, this amount of damage is undisputedly related to the export of goods made in the earlier assessment year.
Accordingly, when the assessee has never disputed the claim of damages, then the claim which pertains to earlier year cannot be allowed in the year under consideration. - decided against assessee.
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2015 (8) TMI 1455
Validity of assessment order - time limitation - non-communication/late communication of assessment orders - Held that:- The last date for filing the return was 20.11.2007 and the assessment was to be finalized within three years from the said date and the assessment order had to be passed by 20.11.2010. Accordingly, it was held that the assessment order passed on 22.07.2011 was time barred - appeal dismissed - decided against appellant.
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9911796707
