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Showing 121 to 140 of 1760 Records
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2015 (9) TMI 1650
Application u/s 12AA rejected - Tribunal held that on the grounds indicated as the application could not be rejected, directed for grant of registration under section 12A - HELD THAT:- If the assessment made and the reasons given by the learned competent authority in the order passed rejecting the application under section 12AA(1) of the Income Tax Act, is perused, we find that the application has been rejected on merits after considering various transactions and activities of the Trust in question and not based on the activities of the Trust.
That being so, the Tribunal has not committed any error in applying the law laid down in the case of DPR Charitable Trust (2011 (8) TMI 1136 - MADHYA PRADESH HIGH COURT . No substantial question of law arises for consideration in this appeal.
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2015 (9) TMI 1649
Scope of scrutiny in cases selected under CASS - conversion the limited scrutiny in to unlimited - revised ground - CBDT letter dated 23.05.2007 - approval of the Pr.CIT/DIT for taken up for comprehensive scrutiny - HELD THAT:- Admittedly, the necessary approval had not been taken by the AO while widening the scope of inquiry. Though the Ld. D.R. has submitted that the notice in this case was issued on 20.08.09 whereas the instruction of CBDT regarding the wider scrutiny was issued on 08.09.2010 and that the said circular was applicable prospectively and not retrospectively, however, it is noted that the said instruction of 2010 has been passed in reconsideration of instruction dated 23.05.2007. Under such circumstances, the instruction of 2007 was operative on the date of issue of notice. The Ld. D.R. has not submitted any evidence on the file that the AO had taken the necessary approval of ACIT/JCIT for widening the scope of inquiry.
The action of the AO in widening the scope of the inquiry without obtaining the necessary permissions as per the Board’s instruction was without jurisdiction and the same is accordingly set aside and consequently the additions made beyond the scope of AIR information are ordered to be deleted. The assessee’s appeal succeeds on technical/legal ground taken by the assessee vide revised ground of appeal.
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2015 (9) TMI 1648
Appellant’s election as a Councilor of the Bruhan Mumbai Municipal Corporation from Ward No. 76 - Time limitation prescribed under Section 33 of the Mumbai Municipal Corporation Act, 1888 - whether the election petition filed by respondent No.1 against the appellant under Section 33 (1) of the Act before the Chief Judge is within limitation as prescribed under Section 33 (1) of the Act?
Held that:- The period of 10 days prescribed for filing the election petition begins from "the date" on which the list prescribed under clause (k) of Section 28 of the Act was available for sale or inspection. In other words, the starting point of limitation for filing the election petition for counting 10 days is “the date" on which the list prescribed under clause (k) of Section 28 of the Act was available for sale or inspection. Therefore, in order to see as to when the list was prepared and made available for sale or inspection, it is necessary to read Section 28 (k) of the Act - if the State Election Commissioner has failed to frame the Rules for proper implementation of the functions set out in Section 28 (k) of the Act and due to that reason, there appears to be some kind of ambiguity noticed in its interpretation, then, such provision should be interpreted as far as possible in a manner which may benefit the elected candidate rather than the election petitioner.
On which date such list was available for sale or inspection to the voter of the ward? - Held that:- There is no hesitation in holding that the list prescribed under Section 28 (k) was made available to all the parties including the voter of the ward in question on 17.02.2012 by the Returning Officer - the list prescribed under Section 28(k) was available for inspection and sale to the voters of the ward in question on 17.02.2012. In view of this finding, the limitation to file election petition would begin from 17.02.2012 and it will be up to 27.02.2012. In other words, period of limitation of 10 days prescribed for filing the election petition in Section 33 (1) of the Act would begin from 17.02.2012 and it would be up to 27.02.2012.
The legislative intention, appears to be clear leaving no ambiguity therein by including Section 28 (k) only and excluding Section 10 and 32 in Section 33 (1).
The election petition filed by respondent No.1 out of which this appeal arises was barred by limitation and hence it should have been dismissed as being barred by limitation.
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2015 (9) TMI 1647
Scheme of amalgamation - First Motion petition under Section 391 to 394 read with Section 100 to 104 of the Companies Act, 1956 - eight are transferor companies and the ninth is the transferee company - HELD THAT:- All the shareholders of all companies / applicants are stated to have given their consent. It is also stated that the applicants do not have any secured creditors. All the unsecured creditors are also stated to have been given their consent.
Exemption from meeting is also sought.
Arguments heard. Orders reserved.
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2015 (9) TMI 1646
Validity of criminal proceedings - Surprise inspection of unaccounted money - Bribe - specific contention put forth on the side of the prosecution is that the petitioner has demanded and accepted bribe from District Managers, TASMAC - seizure memo not prepared - whether in the absence of seizure memo, the entire criminal proceeding initiated against the petitioner is liable to be quashed? - Held that:- From a close reading of Section 461 of Cr.P.C., it is easily discernible that mere failure on the part of the Investigating Agency in preparing seizure memo does not vitiate the proceedings - In the instant case, it is an admitted fact that the Investigating Officer has not prepared any seizure memo with regard to tainted money. Only on that basis, present petition has been filed for quashing the entire proceeding of Special Calendar Case No. 3 of 2014. It has already been pointed out that the irregularity put forth on the side of the petitioner does not come within the ambit of Section 461 of Code of Criminal Procedure, 1973 - Failure to prepare seizure memo is nothing but a flimsy mistake on the part of the Investigating Officer.
Supreme Court in the case of KHET SINGH VERSUS UNION OF INDIA [2002 (3) TMI 48 - SUPREME COURT OF INDIA], made clear that if there is any irregularity in preparing seizure memo, it would not belittle or vitiate the case of the prosecution.
In the instant case, as stated in many places, with regard to seizure of tainted money from the petitioner, seizure memo has not been prepared. It is nothing but a flimsy mistake on the part of the Investigating Officer, but at the same time, the Court has to look into the statements alleged to have been given by some District Managers, wherein it has been clearly mentioned that most of them have given bribe to the petitioner - It has already been pointed out that mere omission on the part of the Investigating Officer in preparing seizure memo would not vitiate the entire proceedings. Further, as per the decision referred to by the learned counsel appearing for the petitioner, seizure memo can be used as a corroborative evidence. Therefore, it is quite clear that it is not a substantive piece of evidence. Since seizure memo can be used as a corroborative evidence, mere omission on the part of the Investigating Officer in preparing the same would not militate the case of the prosecution.
Petition dismissed.
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2015 (9) TMI 1645
Depreciation on fixed asset of assessee trust - HELD THAT:- Judgment of Apex Court in the case of Escorts Ltd (1992 (10) TMI 1 - SUPREME COURT) relied on by the AO while making the disallowance is not applicable to a charitable organization, like the assessee in the present case which is registered u/s 12A of the Act, since it pertains to the claim of depreciation under the provisions of section 35 of the Act. As per the proposition laid down in the case of DIT (E) vs. Framjee Cawasjee Institute [1992 (7) TMI 331 - BOMBAY HIGH COURT] expenditure on acquisition of depreciable asset was treated as application of income of the trust in the year of acquisition, depreciation is allowable in subsequent years.
Disallowance of carry forward of deficit - amount was claimed as set-off against the accumulated carried forward deficit of earlier years - HELD THAT:- It is a settled issue that any surplus amount of the current year can be set-off against the brought forward deficit of the earlier years and the same view was even supported by judgment of CIT vs. Institute of Banking [2003 (7) TMI 52 - BOMBAY HIGH COURT]. Considering the same, CIT (A) has rightly adjudicated the issue by granting relief to the assessee
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2015 (9) TMI 1644
Validity of Assessment U/s 143(3) read with section 154 passed by successor AO - AO has reviewed his own order without properly assuming jurisdiction and hence, the assessment order passed u/s.143(3) r.w.s.254 on the second occasion i.e. on 18.02.2014 is illegal and void ab- initio - HELD THAT:- It is well-settled that there cannot be two assessments in respect of total income of an assessee in one and the same A.Y. The assessee cannot be assessed twice over for the same A.Y. by framing two assessments, because there cannot be double taxation of the same income. During the existence of first order dated 16.09.2013, the second order dated 18.02.2014 could not have been passed and if passed, the same is non est. The two orders cannot exist at the same time. In this connection, I find merit in the appellant's plea [based on judgment of Hon'ble jurisdiction High Court in the case of Classic Share & Stock Braking Services Ltd. (2013 (3) TMI 516 - BOMBAY HIGH COURT) that after having passed order dated' 16.09.2013 giving effect to the order of Hon'ble ITAT, the impugned assessment order dated 18.02.2014 passed by the AO is totally illegal, void and without jurisdiction. Under these circumstances, there is no hesitation in holding that the impugned order passed by the AO is bad in law and void ab initio and the same is, therefore, annulled - Decided against revenue
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2015 (9) TMI 1643
Addition treating the amount of share application money received as income of the assessee - Held that:- The statement of Bank of Baroda of Satco reflecting the payment of four cheques to STSPL for sale of its own investment/shares of stock exchange was also filed before the lower authorities. Our attention was also invited to the contract note of Satco dated 3-9-2007, 4-9-2007, 5-9-2007 & 7-9-2007 reflecting the sale of shares/investments by STSPL on the stock exchange with trade date and also the order number, order time, trade number, trade time, name of shares, quantity, rate, service tax, STT charges, total amount of settlement, settlement period etc. Demat account of STSPL with Satco-CDSL showing debit of investment/shares sold was also placed on the record. The STSPL audited annual accounts, computation of income, assessment order under section 143(3) for assessment year 2008-09 & 2009-2010 duly reflected and the aforesaid amounts received from Satco and paid by STSPL towards 50% share application money was also placed on record.
No justification in the addition made by the AO in respect of share capital received by the assessee for which not only identity but the source and genuineness was duly established. - Decided in favour of assessee.
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2015 (9) TMI 1642
Reopening of assessment - disallowance of loss on sale of assets - change of opinion - Held that:- Re-assessment proceedings are liable to be quashed for the reason that the proceedings u/s 147 has been initiated merely on change of opinion.
As already seen that, while completing the original assessment, the AO has made enquiries with regard to the details of loss on sale of assets and further the details of the customs duty on the plant & machinery debited by the assessee in P & L account as the asset was not existing during the year. Thus we notice that the assessing officer has applied his mind on the impugned issue and has taken a view. On perusal of the reasons recorded by AO for initiating the re-assessment proceedings, we notice that the above said details were available while completing the assessment u/s 143(3). AO, on a mere change of opinion, has issued the notice for re-assessment. It is not permissible for the AO to resort to proceedings u/s 147 merely on change of opinion.
We notice that the AO has reopened the assessment after expiry of four years from the end of the relevant assessment year. Hence it is imperative on the part of the assessing officer to show that the conditions specified in the first proviso to sec. 147 are complied with. However, the AO has failed to show that there was failure on the part of the assessee to disclose fully and truly all material facts.
We are of the view that the reassessment proceeding under section 147 has not been validly initiated because the same has been initiated merely on a change of opinion without any fresh material coming into the possession of the AO. We, therefore, hold that the reassessment proceedings are invalid and consequently the order of reassessment is quashed. - Decided in favour of assessee
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2015 (9) TMI 1641
Waiver of penalty u/s 10A of Central Sales Tax Act - misuse of form-C - violation of terms and conditions of central registration certificate - penalty was deleted by taking a view that the generator sets, which were being exported was the part of the machine and the assessee was not liable to pay any tax on it being an item under its registration certificate - Held that:- This view has been settled by this Court in the case of Majhola Distillery & Chemical Works Pilibhit vs. C.S.T. reported in 2005 UPTC 318 wherein this Court has held that the generator set was purchased by the assessee for the purpose of running the plant and machinery under the bonafide belief that it would be included in the registration certificate.
The question of law is answered in favour of the assessee and against the department.
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2015 (9) TMI 1640
Reopening of assessment - receipt as sales tax benefit under the power policy of the State Government for installing windmills in the Maharashtra State - Sales Tax benefit is not an income derived from the business of the industrial undertaking, allowing the same resulted in excess deduction u/s. 80IA which in turn resulted in short levy of tax - Held that:- Reasons for the reopening of the completed assessment have been duly considered by the AO while making the original assessment order. Therefore, it is clear that no new facts have come to the notice of the AO for reopening a completed assessment.
In so far as the claim of the Revenue that sales tax subsidy has no direct nexus with the business of the assessee has already been decided by the Tribunal in assessee’s own case [2015 (9) TMI 1639 - ITAT MUMBAI] wherein the Tribunal has held that the amount of sales tax subsidy is directly arising from the business of the assessee, therefore, the decision in the case of CIT Vs Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA] and the decision CIT Vs ICICI Bank Ltd. [2012 (7) TMI 521 - BOMBAY HIGH COURT] have been correctly relied upon by the Ld. CIT(A). We, therefore, do not find any reason to interfere with the findings of the Ld. CIT(A). - Decided against revenue
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2015 (9) TMI 1639
Reopening of assessment - denying the deduction u/s. 80IA in respect of the receipts from transfer of sales tax benefits - Held that:- In assessee’s own case for A.Y 2003-04 to 2006-07 we find that the Tribunal has treated the sale consideration received on the transfer of Sales tax benefits/incentive as a benefit directly arising from the business and therefore the same was treated as a revenue receipt.
Coming to the reasons recorded for the reopening of the assessment as mentioned elsewhere in this order, the allegation of the Revenue is that, the sales tax benefit is not an income derived from the business of the industrial undertaking. This view of the AO is not matching with the decision of the Tribunal in assessee’s own case in earlier assessment years as mentioned hereinabove.
Once the issue has been thoroughtly examined/scrutinized and has met the higher judicial forum, reopening of the assessment based on the same set of facts is nothing but a change of opinion which is not permissible as per the ratio laid down by the Hon’ble Supreme Court in the case of Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT OF INDIA]. - Decided against revenue
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2015 (9) TMI 1637
Accumulation of the income derived from property held under the Trust under section 11(1)(a) - @15% of the income derives from property held under the Trust under section 11(1)(a) or its accumulation can only be restricted to 15% of the balance amount remained with the assessee after applying for charitable purpose - CIT(A) held that exemption available under section 11(1)(a) i.e. 15% of the income is unfettered and not subject to any conditions - Held that:- With the assistance of the ld.representative, we have gone through the record carefully. The ld.counsel for the assessee has placed on record a copy of the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Programme for Community Organisation [2000 (11) TMI 4 - SUPREME COURT] as held it is clear that a charitable or religious trust is entitled to accumulated twenty-five percent of income derived from property held under trust. For the present purposes the donations the assessee received, in the sum of ₹ 2,57,376, would constitute its property and it is entitled to accumulate twenty five per cent thereout. - Decided against revenue
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2015 (9) TMI 1636
Levy of penalty u/s 272A(2)(k) - assessee had failed to file the quarterly TDS return in Form No. 26Q for the second quarter by the due date and there was a delay of 191 days in filing the same - reasonable cause for delay - Held that:- The reason for the delay as being on account of systems error and delay in filing return by Chartered Accountant on account of data mismatch. All that the Ld. Joint Commissioner found was that the reason was insufficient / unreasonable. The explanation of the assessee was not controverted. Such un-controverted explanation of the assessee constitutes reasonable cause within the meaning of Section 273B, which provides that no penalty shall be levied if reasonable cause for the failure is established by the assessee. Therefore the penalty could not be levied u/s 272A(2)(K) of the Act.
Also an admitted fact that the Tax deducted at source, to which the F.No. 26 Q pertained, was paid within the prescribed time. No loss as such has therefore been caused to the Revenue. Delay in filing return is at best a technical or venial breach of law and no contumacious conduct can be attributed to the assessee. - Decided in favour of assessee.
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2015 (9) TMI 1635
TPA - comparability analysis - functinal similarity - Held that:- M/s Accentia Echnologies Ltd., during the relevant year, and the said company therefore, cannot be considered as comparable due to this extraordinary event which occurred in the relevant year as rightly held by the Tribunal inter-alia in the case of Excellence Data Research Pvt. Ltd (2014 (9) TMI 126 - ITAT HYDERABAD).
Direct the TPO to consider M/s MIcroland Ltd., as a good comparable for the purpose of analyzing the pricing of the international transaction undertaken by the assessee.
Credit of tds - Held that:- We direct the AO/TPO to verify the claim of the assessee with regard to the tax deducted at source and allow credit if found correct.
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2015 (9) TMI 1634
Penalty u/s 271(1)(c) - unexplained cash u/s 69A - cash was seized by the Department and ex parte assessment u/s 144 was made - Held that:- As relying on case of T.Kodeswaran v. ITO [2008 (10) TMI 273 - ITAT MADRAS-B] wherein the similar issue had come up and similar facts were there. In that case, the AO has passed the assessment order ex-parte u/s 144 and the AO has levied penalty u/s 271(1)(c) of the Act, which was deleted and Tribunal has deleted the penalty - Decided against revenue.
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2015 (9) TMI 1633
Imposition of penalty - Section 67 of the KVAT Act - misclassification of the product - Held that:- In the instant case, inasmuch as the petitioner was justified in adopting a classification of the product based on the classification adopted by the supplier of the product to the petitioner, the orders passed by the 3rd respondent confirming a penalty on the petitioner, merely because it was the view of the 3rd respondent that a classification of the product ought to have been under a different entry, cannot be legally sustained.
Impugned order set aside - petition allowed.
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2015 (9) TMI 1632
Rectification of mistake u/s 154 - additional depreciation u/s. 32(1)(iia) - whether mistake of incorrect claim is clearly apparent on plain reading of section 32(1)(iia) - Held that:- Additional depreciation is allowable to the assessee to the extent of 20% on the cost of plant & machinery and where the assessee has purchased an asset in the preceding year and has been allowed only 10% of the cost of asset as additional depreciation, the correct position of law is that balance 10% of additional depreciation is to be allowed to the assessee.
Where the AO failed to apply the correct provisions of law, the assessment order passed by the Assessing Officer is amenable to rectification under section 154. We uphold the invoking of provisions of section 154 against the assessee. Further, in view of the concession made by the AR for the assessee, where the assessee was only entitled to 10% of the cost of machinery to be allowed as additional depreciation in the instant assessment year, since the balance 10% of cost of machinery has been allowed as additional depreciation in the preceding year, we reverse the order of CIT(A) and direct the Assessing Officer to allow depreciation @ 10% of the cost of machinery as additional depreciation on plant & machinery purchased by the assessee in the preceding year. - Decided in favour of assessee.
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2015 (9) TMI 1631
Repayment of loan by trust - to be treated as application of income as disallowed “because the loan was never taken as income at the time of receipt” - Held that:- The question that the Revenue seeks to urge in this appeal, and on which notice was issued by this Court on 10th July, 2015 did not arise for consideration before the AO. Since such contention was not raised by the Revenue before the AO, the Respondent Assessee had no occasion to be heard on such issue at the appropriate stage. The Court, therefore, cannot permit the Revenue to urge the said issue at this stage.
Moreover, the Respondent Assessee is stated to have a deficit of ₹ 33,67,78,348 for the AY in question and, therefore, there is no tax effect for the said AY. What is sought to be projected by the Revenue is only a notional tax effect. Appeal dismissed.
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2015 (9) TMI 1630
Adjustment in the arm’s length price(ALP) of international transaction entered into by the Assessee with it’s Associated Enterprise (AE) u/s 92 - Assessee provided Software Development Services to its AE - Comparable selection - Held that:- Assessee providing IT Software development Services thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Excluding Comparable from the list of comparable chosen by the TPO, the arithmetic mean of profit margin of the remaining comparable is directed to be reworked by the TPO/AO after allowing +/- 5% adjustment, if permissible, u/s.92C(2) of the Act. None of the other grounds are adjudicated except comparability of companies chosen by the Assessee, as the exclusion of comparable companies chosen by TPO and confirmed by the DRP would itself result in the price charged in the international transaction to be one at Arm’s Length.
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