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Showing 141 to 160 of 2855 Records
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2015 (10) TMI 2726
Punishment and penalty imposed on petition - it was alleged that petitioner was responsible for misappropriation of cash and that the petitioner has failed to perform his duties as Drawing and Disbursing Officer (DDO) in terms of Rule 13 of the Central Government Accounts (Receipts of Payments) Rules, 1983 - The contention of the petitioner is that Mr. Simon was an administrative Officer of his equivalent rank, and was involved in similar offence but punishment on Simon is meager as compared to him.
Held that:- It is no doubt true that one Mr. Simon was also held responsible for such misappropriation. Separate enquiry was conducted against him and he was also punished Merely because, the lesser punishment is imposed on him, it cannot be said that the Disciplinary Authority ought to have imposed the same punishment on the petitioner also. The punishment depends on the gravity of the proved charge. Since, it is found that the petitioner has not maintained a separate account for non-Government money related to recovery from salary of the staff not verified the daily balance; not recovered cash and as such he did not keep the cash in safe custody on day to day basis, the Disciplinary Authority has rightly concluded that the petitioner is liable for punishment as imposed by it.
The Disciplinary Authority has also concluded that Simon being the Cashier, he was also jointly responsible, but the gravity of misconduct committed by the petitioner is on the higher side as compared to Simon's misconduct.
Since, we find that the sentence imposed on the petitioner is just and proper and as the said order is rightly confirmed by the central Appellate Tribunal, Bangalore, no interference is called for - petition dismissed.
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2015 (10) TMI 2725
Reopening of assessment - undisclosed investments u/s. 69 - Held that:- No doubt the assessee contended before the Tribunal that the notices were issued without mentioning the reason for reopening and though it was submitted that some of the shares mentioned by Mr. Mukesh Choksi were not purchased by the assessees-herein but the fact remains that no material whatsoever was furnished before the Tribunal to cross verify the statement of assessees-herein. No other alternative except to uphold the orders passed by learned CIT(A). - Decided against assessee.
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2015 (10) TMI 2724
Maintainability of appeal - parallel remedy sought against same cause of action - Appellant explains that against the appellate order appellant is also before Hon'ble High Court of Madras in CMA - Held that:- Law being well settled that parallel remedy cannot be sought against same cause of action, both the appeals are dismissed.
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2015 (10) TMI 2723
Disallowance u/s 43B in respect of contribution to PF - Held that:- For the AY 2002-2003 in the assessee‟s own case, wherein the Tribunal adjudicated the identical issue and allowed the assessee‟s claim u/s 43B of the Act. On perusal of the said decision of the Tribunal for the AY 2002-03 in the assessee‟s own case we direct the AO to examine and apply the ratio laid down in the said Tribunal‟s order.
Disallowance of prior period expenses - Held that:- As submitted that forfeiture of customs duty / lapse of duty drawback are allowable expenditure under section 37 of the Act. In support of this, he relied on various precedents. On hearing both the parties and on perusal of the relevant material placed before us, we find this matter should be remanded to the file of the AO with a direction to examine and adjudicate the issue afresh after affording a reasonable opportunity of being heard to the assessee. Accordingly, Ground no.2 is allowed for statistical purposes.
Disallowance of unreconciled sundry creditors - Held that:- AR submitted that even after repeated requests, the Revenue Authorities have not provided the relevant material filed by the creditors in response to the notice issued u/s 133(6) of the Act as well as the basis on which „the amount debited by the assessee‟ has been arrived to determined the shortfall. As well, the Revenue Authorities also have not provided sufficient opportunity to furnish the reconciliation which is against the principle of natural justice. Considering the above, Ld AR requested to remand the matter to the file of the AO for fresh consideration and decision in the matter.
Disallowance of travelling expenses for sales team - Held that:- AR relied on the Apex Court judgment in the case of Calcutta Co Ltd [1959 (5) TMI 3 - SUPREME COURT] wherein it has been held that any sum representing the estimated expenditure which had to be incurred by the assessee in discharging a liability. Alternatively, it is the submission of the assessee that since the expenses are actually incurred during the FY 2003-2004, the expenses should be allowed for AY 2004-05 corresponding to the FY 2003-2004 - this matter should also be remanded to the file of the AO to adjudicate the issue afresh
Disallowance of expenses under the head advertisement and sales promotion - Held that:- AR submitted that since, the assessee is method of accounting is mercantile system the treatment given by the assessee is correct and no disallowance is called for. After hearing Ld Representatives of both the parties, we find it relevant to remand the matter to the file of the AO to examine and adjudicate the issue after granting a reasonable opportunity of being heard to the assessee.
Disallowance of travelling and conveyance expenses - Held that:- In assessee's own case for the AY 2002-2003 wherein the identical issue was adjudicated by the Tribunal and restored the matter to the file of the AO with a direction to verify whether the plant and machinery were used for other than the manufacturing purpose, and directed to grant depreciation in case such plant and machinery were used. Therefore, it is prayed that considering the commonality of the issue, the matter may be decided in the same lines.
Transfer Pricing adjustment made in respect of the international transaction related to import of finished goods - Held that:- We remand this issue of most appropriate method to the file of the CIT (A) to decide the same after hearing the assessee and in the light of the order of the Tribunal for the AY 2002-2003. CIT (A) is also directed to pass a speaking order on the other aspects of benchmarking events i.e selection of comparables.
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2015 (10) TMI 2722
Depreciation claim u/s 32 - asset used by directors of the Assessee company - claim of foreign Assessee company in relation to certain vehicles registered under its name, but given to its employees for their use - Held that:- As relied upon the decision of Sayaji Iron and Engineering Company v. CIT [2001 (7) TMI 70 - GUJARAT HIGH COURT] where it was held that once the directors of the Assessee company are entitled to use the vehicles of the company for their personal use as per the terms and conditions of their appointment, it cannot be said that the same was a personal expenditure. In other words, it continues to be business expenditure and is not disallowable as such. The Court is not persuaded to hold a different view in the matter - decided in favour of assessee.
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2015 (10) TMI 2721
Reassessment - validity of notice issued u/s 148 - Assessment is in pursuance of an order on appeal u/s 150 - Held that:- an appellate or revisional authority cannot give a direction for assessment or reassessment which goes to the extent of conferring jurisdiction upon the AO if his jurisdiction had ceased due to the bar of limitation - if the issuing of a notice had become time-barred at the time of the order, which was the subject-matter of the appeal, then section 150 (1) cannot be invoked for making an assessment or reassessment - hence the proceedings initiated u/s 147 for the AY 2002-03 are impermissible and, therefore, the AO is not empowered to reopen the same u/s 150(1), considering the restriction placed by section 150 (2) - appeal by revenue is dismissed.
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2015 (10) TMI 2720
Long term capital gains - selection of year for assessment - year of transfer of asset - Held that:- From a perusal of the order of the first appellate authority as well as of the Tribunal, we find that the registered sale agreement was executed on 27th January, 2005 and the sale consideration was paid on 10th January, 2005 and 31st March, 2005. Possession was also handed over to the buyer.
In view of the aforesaid, the "transfer" was complete as per the provision of Section 2(47)(6) of the Act. Explanation 2, which was added by Finance Act, 2012 with retrospective effect from 1st April, 1962 is clearly applicable in the instant case. The long term capital gains could only be computed in the year when the property was transferred, namely, in the financial year 2004-05 that is (3) assessment year 2005-06.
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2015 (10) TMI 2719
Disallowance being deposits written off - busniss loss or capital l0ss - Held that:- Hon’ble Supreme Court in the case of CIT Vs Mysore Sugar Co. Ltd [1962 (5) TMI 3 - SUPREME Court] for what was the money laid out? Was it to “ acquire an asset of an enduring nature for the benefit of the business, or was it an outgoing in the doing of the business? If money be lost in the first circumstance, it is a loss of capital, but if lost in the second circumstance, it is a revenue loss. In the first, it bears the character of an investment, but in the second, to use a commonly understood phrase, it bears the character of current expenses.”
Also in the case of I.B. M World Trade Corpn.(1988 (12) TMI 23 - BOMBAY High Court) that the moneys advanced by the assessee in pursuance of these agreements to the landlord for the purposes of and in connection with the acquisition of the premises on lease were for the purpose of business. Naturally, therefore, when such advances are lost to the assessee, the loss would be a business loss and not a capital loss - Decided against revenue
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2015 (10) TMI 2718
Disallowance of finance charges - utilization of loans taken - nexus of interest expenditure with the income earned - Held that:- The income of the assessee consisted of consultancy fee, royalty income, trade mark fee, share of profit& interest on capital from firm, dividend income etc. A.R also fairly admitted that the funds were taken from Vithal Kamat (HUF) over the years in many instalments and they have been utilized for all the purposes. Thus, the exact utilization of loans taken from Vithal Kamat (HUF) could not be proved at this stage. Hence, as submitted by Ld D.R, the nexus of interest expenditure with the income earned by the assessee could not be established by the assessee. Thus the Ld CIT(A) was justified in confirming the disallowance of interest expenditure. - Decided in favour of revenue
Disallowance u/s 14A - Held that:- The finance charges was disallowed u/s 36(1)(iii) and hence the same has already been excluded by the Ld CIT(A). The remaining expenses, in our view, could not be linked to the dividend income. Hence we agree with the contentions of Ld A.R that no disallowance of expenditure is called for in terms of Rule 8D(2)(iii) of the I.T Rules. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the AO to delete the disallowance of expenses confirmed by Ld CIT(A) u/s 14A - Decided in favour of assessee
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2015 (10) TMI 2717
Extension of time for furnishing performance bank guarantee - validity of LOI issued by PNGRB in favour of IOAGPL - disqualification of IOAGPL is sought alongwith a declaration that the petitioner (SSL) be declared as the successful bidder.
Held that: - A higher performance bank guarantee was in public interest as it was a much greater 'guarantee' that the gas network for Ernakulam would get set-up in time and as per the stipulated parameters. Furthermore, the second option of cancelling the tender would set back the project in time which would also not be in public interest - the PNGRB cannot be faulted in going by the first option as it was in public interest and was also not in contravention of the tender conditions.
PNGRB has the option to cancel the proposed authorization in case the Performance Bond / Bank Guarantee is not furnished within the specified time. But, the other side of the coin is that PNGRB need not cancel the proposed authorization and may extend the time for furnishing the Performance Bank Guarantee. Thus, extension of time for furnishing the Performance Bank Guarantee is not contrary to the tender terms but is, in fact, an option available to PNGRB. It chose that option in public interest and therefore the grant of extension of time cannot be faulted and the petitioner cannot claim any right to seek quashing of this action on the part of PNGRB, particularly when the petitioner lost the race at the LOI stage and there was nothing in the tender terms barring the grant of extension of time to the successful entity - IOAGPL.
The PNGRB is free to accept the Performance Bank Guarantee for ₹ 4248 crores submitted by IOAGPL and to grant the authorization in its favour in terms of the 2008 Regulations and the tender conditions - petition dismissed.
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2015 (10) TMI 2716
Transfer pricing addition - comparable selection criteria - functional similarity - Held that:- The assessee is into software design and development services thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Deduction u/s 10A - data link charges being excluded from the export turnover - Held that:- By virtue of definition of export turnover given Explanation-2(iv) to Sec.10A of the IT Act, 1961, interpretation sought by the assessee cannot be accepted. However, its alternative contention for exclusion of such amount from the total turnover also, while calculating deduction u/s 10A of the IT Act, 1961 is reasonable in view of case of CIT Vs M/s Tata Elxsi Ltd., (2011 (8) TMI 782 - KARNATAKA HIGH COURT)
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2015 (10) TMI 2715
Registration of trust u/s 12AA - whether the objects are not covered u/s 2(15) and that the activities and objects are not charitable? - Held that:- What needs to be examined is that where an object of general public utility is not merely a mask to hide the true purpose or rendering of any service in relation thereto, and where such services are being rendered as purely incidental to or as subservient to the main objective of "general public utility", whether the carrying on of bona fide activities in furtherance of such objectives of "general public utility" will also be hit by the proviso to section 2(15) of the Act.
In the instant case, the matter therefore, requires detailed examination in terms of main objects of Urban Improvement Trust, the relevant governing legislation / Notification under which Urban Improvement Trust was established as well as activities of the trust in order to decide whether trust is eligible for registration u/s 12AA of the Act. Thus, in the light of the above, the matter is set aside to the file of the ld. CIT to decide afresh in light of Board Circular No. 11 of 2008 dated 19-12-2008 by providing reasonable opportunity of being heard to the assessee. The assessee is also directed to cooperate in the proceedings. Thus, the appeal of the assessee is allowed for statistical purposes.
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2015 (10) TMI 2714
Penalty u/s 271(1)(c) - tax was levied under the provisions of MAT under section 115JB on assessee - Held that:- As decided in the case of CIT Vs. M/s Vardhman Acrylics Limited [2014 (8) TMI 1144 - PUNJAB & HARYANA HIGH COURT] the assessment having been made under the provisions of MAT under section 115JB of the Act, penalty under section 271(1)(c) of the Act cannot be levied on additions and disallowances made in regular income.
Since there were brought forward losses and depreciation, the return was filed declaring the income under the MAT and even after appeal effect, the income assessed under section 115JB of the Act, we find that the assessee being assessed under section 115JB of the Act, the penalty under section 271(1)(c) of the Act cannot be levied. - Decided in favour of assessee
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2015 (10) TMI 2713
Valuation - annual capacity based production - pinion stand found was 195 mm. and not 157 mm. as declared earlier by the appellant - demand of differential duty - Held that: - It is a fact that the change of parameter was noticed only on surprise check by the officers - It is also a fact that the appellants had declared gearbox of 195 mm. in their earlier declaration on 26.08.97. When the Annual Capacity was fixed by the Commissioner based on the declarations made by the appellant, it is not open to the appellant to change some of the parameters without intimation and later on to claim that it is only a temporary change.
Since there is no evidence of the exact date of the change in the parameter submitted by appellant, we are in agreement that the capacity of production as fixed by the Commissioner based on 195mm. is sustainable.
Appeal dismissed - decided against appellant.
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2015 (10) TMI 2712
Interest income from banks - busniss income or income from other sources - Held that:- None of the judgments cited by the learned AR of the assessee is rendering any help to the assessee. Hence, respectfully following the judgment of Hon’ble Jurisdictional High Court rendered in the case of CIT vs. Indo Gulf Fertilizer & Chemical Corporation Ltd. (2005 (8) TMI 45 - ALLAHABAD High Court) we hold that interest income from bank is taxable as income from other sources except interest income of ₹ 17,70,413/- earned in course of public issue of shares as per Ground No. 5.1 raised by the assessee. In our considered opinion, this income should be set off against public issue expenses because interest earned was inextricably linked with raising of share capital and was thus adjustable towards the expenditures involved for the share issue.
We direct the A.O. that to the extent of expenses incurred for public issue of shares, the amount of interest income of ₹ 17,70,413/- earned in course of public issue of shares should be set off against such expenses but if the amount of interest income on share application money is more than the expenses incurred for public issue of shares, then such excess interest income should be taxed as income from other sources. Decided in favour of assessee for statistical purposes.
Disallowance of depreciation - Held that:- Since business was not in existence, depreciation is not allowable because as per section 32, depreciation is allowable on assets used for business. He has also relied on the judgment of Hon’ble apex court rendered in the case of Bokaro Steel Ltd (1998 (12) TMI 4 - SUPREME Court) and held that if the asset is used in construction of project, depreciation has to be capitalized and not allowable as revenue expenditure. As it is noted by CIT (A) that no submission was made on this issue. We find no infirmity in the assessment order on this issue and therefore, this ground is rejected.
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2015 (10) TMI 2711
Grant of registration under Section 12AA - Held that:- Application dated 1.4.2003 moved by petitioners for grant of registration under Section 12AA of Income Tax Act, 1961 shall be decided by competent authorities within period of three moths from today.
The issue pertaining to conduct of assessee in treating itself as deemed registered is kept open and can be considered thereafter. Said conduct or its impact on other appeals can also be examined after such adjudication. Parties are given the liberty accordingly to raise all relevant challenges after such adjudication.
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2015 (10) TMI 2710
Compounding fee - whether the petitioner can escape from his liability to pay the compounding fee demanded in Ext.P8 order by placing reliance on a subsequent declaration of law by this court? - Held that: - Having obtained the statutory benefits flowing from the composition of the offence, the petitioner cannot now turn around and question the very proposal for imposition of penalty, based on a subsequent judgment of this Court. The conduct of the petitioner wood estop him from attempting such a course of action. The challenge in the writ petition, against Ext.P8 order of the 1st respondent, on the aforesaid ground is therefore rejected.
Whether in the event of the petitioner having to pay the compounding fee demanded in Ext.P8 order, he can claim a reduction in the fee payable by invoking the provisions of the proviso to S. 74 (1)(a) of the KVAT Act? - Held that: - when the legislative history of the said provision clearly indicates that while there were two amendments, that enhanced the compounding fee payable under S.74 (1)(a), in 2009 and 2011, on both those occasions the amending body did not deem it necessary to amend the proviso to the said provision - Thus, the proviso has to be read as it stands in the statute book, and when so read, Ext.P8 order of the 1st respondent, to the extent it fixes the compounding fee payable by the petitioner @ ₹ 8 Lakhs cannot be legally sustained.
Petition allowed in part.
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2015 (10) TMI 2709
Disallowance u/s. 14A r.w. Rule 8D - computation of deduction - allowance of interest on net or gross amount - Held that:- FAA had rightly held that while making disallowance u/s.14A of the Act,the AO should have considered only net interest. See Maxopp Investment Ltd. [2011 (11) TMI 267 - Delhi High Court ]. Effective ground of appeal is decided against revenue
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2015 (10) TMI 2708
Penalty under section 271(1)(c) - addition on account of service tax liability - Held that:- Addition on the basis of which penalty was imposed under section 271(1)(c) of the Act, has been deleted by the Tribunal while deciding assessee’s quantum appeal [2014 (6) TMI 1006 - ITAT MUMBAI], the very basis for imposition of penalty no more survives. Therefore, we have no hesitation in deleting the penalty imposed under section 271(1)(c) of the Act. - Decided in favour of assessee.
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2015 (10) TMI 2707
Whether the Courts below were right in decreeing the Summary Suit without granting the relief of leave to defend to the defendant/appellant as envisaged under Order 37 Rule 3 C.P.C.?
Held that: - in cases where the defendant has raised a triable issue or a reasonable defence, the defendant is entitled to unconditional leave to defend. Leave is granted to defend even in cases where the defendant upon disclosing a fact, though lacks the defence but makes a positive impression that at the trial the defence would be established to the plaintiff’s claim. Only in the cases where the defence set up is illusory or sham or practically moonshine, the plaintiff is entitled to leave to sign judgment.
Insofar as the question of maintainability of the Suit in question under Order 37, CPC is concerned, this Court has in Neebha Kapoori Vs. Jayantilal Khandwala, [2008 (1) TMI 961 - SUPREME COURT OF INDIA] observed that where the applicability of Order 37 itself is in question, grant of leave to defend may be permissible. The Court before passing a decree is entitled to take into consideration the consequences therefor.
In the case on hand, we have perused the material on record including the FIR dated 9th August, 1999 registered by the CBI at the instance of Chief Vigilance Officer, SBH and also the Charge Sheet filed by the CBI. The charge sheet indicated the involvement of Mr. Sudhir Behra, Chief Manager of the appellant Bank at Burra Bazar Branch, Calcutta. Acting at the requests of representatives from the Indian clients of the respondent’s constituent, the Chief Manager had induced some officers of the appellant Bank who were In-charge of Foreign Exchange Department to issue tested telex messages of co-acceptance - the defendant/appellant has made out a prima facie case of triable issues in the Suit which needs to be adjudicated. Therefore, the defendant is entitled to grant of unconditional leave to defend the Suit.
The appellant/defendant is granted unconditional leave to defend the Summons for Judgment in Summary Suit No. 1586 of 2001 - appeal allowed.
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