Home Case Index All Cases Income Tax Section Wise 2012 2012 (2) This

Law	-- All -- GST Income Tax Benami Property Customs Corporate Laws Securities / SEBI Insolvency & Bankruptcy FEMA Law of Competition PMLA Service Tax Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws
Court	-- Any -- Supreme Court SC Orders / Highlights High Court Appellate Tribunal Tribunal Appellate authority for Advance Ruling Advance Ruling Authority National Financial Reporting Authority Competition Commission of India ANTI-PROFITEERING AUTHORITY Commission Central Government Board DISTRICT/ SESSIONS Court Commissioner / Appellate Authority Other
Citation	--Year-- 2025 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1976 1975 1974 1973 1972 1971 1970 1969 1968 1967 1966 1965 1964 1963 1962 1961 1960 1959 1958 1957 1956 1955 1954 1953 1952 1951 1950 Upto 1949 - -Volume- 1 2 3 4 5 6 7 8 9 10 11 12 -
Landmark	Nil - N/A Referred in >= 2 Cases Referred in >= 4 Cases Referred in >= 5 Cases Referred in >= 10 Cases Referred in >= 15 Cases Referred in >= 25 Cases Referred in >= 50 Cases Referred in >= 100 Cases
Order by	TMI Citation Date of Decision

Advanced Search Options

Case Laws

Showing 141 to 160 of 558 Records

• 2012 (2) TMI 601
  

  Levy of duty on the basis of shore tank quantity - Held that: - reliance placed in the case of CC & CE, VISAKHAPATNAM Versus RUCHI INFRASTRUCTURE LTD. [2007 (11) TMI 210 - CESTAT, BANGALORE], where it was held that refund can’t be denied by stating that assessee hadn’t challenged assessment - appeal dismissed.

  ---

• 2012 (2) TMI 600
  
  The Appellate Tribunal ITAT Ahmedabad allowed the Revenue's miscellaneous application for rectification of an order regarding the assessment year 2002-03. The Tribunal recalled the order to adjudicate on a ground raised by the Revenue related to ad-hoc disallowance of housekeeping charges. The case will be posted for a hearing, and both parties will be informed.

  ---

• 2012 (2) TMI 599
  
  Issues Involved:
  1. Whether the rejection of the application for renewal of exemption u/s 80G of the Income Tax Act, 1961, was beyond the jurisdiction due to the delay in passing the order.
  2. Whether the activities of the Trust are charitable within the meaning of Section 2(15) of the Income Tax Act, 1961, and whether the Trust satisfies the conditions laid out u/s 80G(5) of the Income Tax Act, 1961.
  
  Summary:
  
  Issue 1: Jurisdiction and Delay in Passing the Order
  - Ground Not Pressed: The appellant did not press the ground regarding the delay in passing the order for renewal of exemption u/s 80G beyond the stipulated six months, and thus, it was rejected as not pressed.
  
  Issue 2: Charitable Nature of Activities and Compliance with Section 80G(5)
  - Application and Show Cause Notice: The assessee filed an application on 5.11.09 seeking renewal of exemption u/s 80G. The DIT(E) issued a show cause notice asking for various documents and explanations regarding payments made to Career Launcher (India) Ltd. and Career Launcher Education Infrastructure & Services Ltd., among other details.
  
  - DIT(E)'s Observations: The DIT(E) rejected the application, noting that the Trust's activities were commercial and profit-oriented, contrary to its charitable aims. The DIT(E) highlighted that the Trust was running an unrecognized business school, charging high fees, and that the main trustees were the main beneficiaries of the Trust's income.
  
  - Assessee's Contentions: The assessee argued that it is a Trust established for educational purposes, registered u/s 12A, and previously granted approval u/s 80G. It contended that the activities of the Trust are charitable, focusing on education and skill development, and that the payments made were for services essential for running the educational institution.
  
  - Tribunal's Findings:
  - Aims and Objects of the Trust: The Tribunal noted that the Trust's main object is to provide education and related services, which is a charitable purpose u/s 2(15) of the Act. The Trust deed explicitly prohibits the distribution of income among its members and mandates that surplus funds be transferred to another similar trust upon dissolution.
  
  - Registration u/s 12A: The Tribunal emphasized that once registration u/s 12A is granted, the charitable nature of the Trust's activities cannot be questioned unless the registration is withdrawn. The DIT(E) did not initiate any proceedings to withdraw the registration.
  
  - Proviso to Section 2(15): The Tribunal held that the proviso to section 2(15) is not applicable to the Trust, as its main object is education, not the advancement of any other object of public utility. The fees charged by the Trust do not convert its activities into commercial ones.
  
  - Payments to Specified Persons: The Tribunal found that the payments made to Career Launcher (India) Ltd. and Career Launcher Education Infrastructure & Services Ltd. were for services rendered and were at arm's length. The mere fact that payments were made to specified persons does not violate section 13(3) of the Act, as long as they are commensurate with the services provided.
  
  - Conclusion: The Tribunal concluded that the DIT(E) erred in rejecting the application for renewal of exemption u/s 80G. The order was deemed illegal, arbitrary, and unsustainable. The Tribunal directed the DIT(E) to grant the approval u/s 80G to the assessee.
  
  Order Pronounced: The appeal of the assessee was partly allowed, and the order was pronounced in the open court on 10.02.2012.

  ---

• 2012 (2) TMI 598
  

  Bogus purchases - Held that:- We have been informed that the malpractice of bogus purchase is mainly to save 10% sales tax etc. It has also been informed that in this industry about 2.5% is the profit margin.

  Therefore, we hereby direct that the disallowance is required to be sustained at 12.5% of the purchases from those parties. With these directions, we hereby decide. The grounds of the rival parties which are partly allowed.

  ---

• 2012 (2) TMI 597
  
  Issues involved: Admissibility of appeal based on previous judgments and unchallenged decisions, consideration of specific question u/s guest house expenses.
  
  Admissibility of appeal based on previous judgments: The High Court refused to admit the appeal as the Tribunal did not commit any error by relying on previous judgments related to Assessment Years 2002-03 and 2003-04, which remained unchallenged. The Court noted that appeals for those years were dismissed earlier by the Court, justifying the dismissal of the current appeal. The Court emphasized that since the issue had already been dealt with and no appeal was preferred against the previous judgment, there was no need to admit the appeal solely on this ground.
  
  Consideration of specific question u/s guest house expenses: The appellant argued that the appeal should be admitted based on the ground that a specific question regarding the deletion of additions on account of guest house expenses had not been addressed previously. However, upon reviewing the Tribunal's judgment, it was found that the issue had been considered in favor of the assessee based on previous decisions. The Court observed that since no appeal had been filed against the Tribunal's judgment on this specific point, there was no justification for admitting the appeal solely on this ground.
  
  Conclusion: The Court refused to admit the appeal based on the reliance on previous judgments and unchallenged decisions, as well as the specific question regarding guest house expenses, ultimately upholding the Tribunal's decision in the matter.

  ---

• 2012 (2) TMI 596
  
  Issues Involved:
  1. Legality of assumption of jurisdiction u/s 263 of the Act by the CIT.
  2. Validity of the show-cause notice issued by the ITO (Technical).
  3. Examination of the assessment order's errors and its prejudicial nature to the interest of the Revenue.
  
  Summary:
  
  1. Legality of Assumption of Jurisdiction u/s 263:
  The assessee challenged the legality of the assumption of jurisdiction u/s 263 of the Act by the CIT, arguing that the show-cause notice dated 12.3.2010 was issued and signed by the ITO (Technical) and not by the CIT himself. The Tribunal noted that the powers of revisional jurisdiction lie with the Commissioner and not with the ITO (Technical). The satisfaction of the Commissioner is necessary before invoking revisional jurisdiction, and only the Commissioner is authorized by the Act to call for and examine the record of any proceedings. The Tribunal concluded that the jurisdiction was wrongly assumed by the CIT as the show-cause notice was issued by the ITO (Technical).
  
  2. Validity of the Show-Cause Notice:
  The Tribunal observed that the show-cause notice was issued by the ITO (Technical) and not by the CIT. The Tribunal referred to various judicial pronouncements, including Nandprakash & Co. vs. ITO, Satish Kumar Kesari vs. ITO, and Jheendu Ram vs. CIT, which supported the view that the assumption of jurisdiction was invalid if the notice was not issued by the Commissioner himself. The Tribunal held that the notice issued by the ITO (Technical) was invalid, and thus, the jurisdiction was wrongly assumed.
  
  3. Examination of the Assessment Order's Errors:
  The Tribunal noted that the assessment order was framed in a hurried manner without detailed discussion, and the Assessing Officer did not examine the issue of capital gain properly. However, since the Tribunal found the assumption of jurisdiction itself void-ab-initio, it refrained from dealing with the issue on merit. The Tribunal emphasized that the satisfaction of the Commissioner is necessary for invoking revisional jurisdiction u/s 263, and the Commissioner must state in what manner the order of the Assessing Officer was erroneous and prejudicial to the interest of the Revenue.
  
  Conclusion:
  The Tribunal allowed the appeal of the assessee, concluding that the jurisdiction was wrongly assumed by the CIT as the show-cause notice was issued by the ITO (Technical) and not by the Commissioner himself. The Tribunal refrained from dealing with the merits of the case due to the invalid assumption of jurisdiction. The appeal of the assessee was allowed, and the order was pronounced in the open Court on 28.2.2012.

  ---

• 2012 (2) TMI 595
  
  Issues involved: Clarification of order regarding Value Added Tax imposition by State of U.P. on goods being transported.
  
  Summary:
  The Supreme Court clarified an order passed on 23rd January, 2012, in response to an application filed by the respondent No.1 seeking clarification. The order had recorded submissions made on behalf of the State of U.P. and customers regarding the burden of Value Added Tax. It was mentioned that the determination of whether Value Added Tax was payable in respect of goods being transported through the State of U.P. was pending before the High Court. The Court directed the deletion of a specific sentence from the order and disposed of the pending applications without any costs being imposed.

  ---

• 2012 (2) TMI 594
  
  Issues Involved:
  1. Nature of Compensation Received
  2. Disallowance of Expenditure on Gifts and Presentation Articles
  3. Disallowance of Sales Commission
  4. Disallowance of Telephone Expenses
  5. Disallowance of Vehicle Expenses
  6. Additional Grounds on Profit on Sale of Operating Assets and Capital Gains on Transfer of Trademark
  7. Validity of Reopening of Assessment
  8. Exclusion of Sales Tax, Excise Duty, Rent, Miscellaneous Receipt, and Exchange Fluctuation Receipt from Total Turnover for Deduction u/s 80HHC
  
  Summary of the Judgment:
  
  Issue 1: Nature of Compensation Received
  The Tribunal addressed whether the compensation of Rs. 4,53,86,124 received by the assessee under a settlement with AIK Germany was a capital receipt not liable to income tax. The Tribunal noted that the compensation was awarded due to non-fulfillment of contractual obligations by AIK, which prevented the assessee from implementing its project. The Tribunal concluded that the compensation was a capital receipt, as it was for the sterilization of the profit-earning source of the assessee. The Tribunal relied on several judicial pronouncements, including CIT Vs. Bombay Burmah Trading Corporation and CIT Vs. Barium Chemicals Ltd., to support its decision.
  
  Issue 2: Disallowance of Expenditure on Gifts and Presentation Articles
  The assessee's claim of Rs. 46,040 as expenditure on gifts and presentation articles was disallowed by the A.O. and upheld by the CIT(A) due to lack of proper distribution records. The Tribunal upheld the disallowance, noting that the assessee failed to provide sufficient evidence to support the claim.
  
  Issue 3: Disallowance of Sales Commission
  The A.O. disallowed Rs. 6,92,595 out of the sales commission due to lack of documentary evidence. The CIT(A) upheld this disallowance. The Tribunal found that the assessee failed to discharge its onus to establish the genuineness of the claim and upheld the disallowance.
  
  Issue 4: Disallowance of Telephone Expenses
  The A.O. disallowed Rs. 11,829 out of telephone expenses, which was upheld by the CIT(A). The Tribunal found no reason to interfere with the disallowance, as the assessee could not improve its case before the Tribunal.
  
  Issue 5: Disallowance of Vehicle Expenses
  The assessee raised an additional ground regarding the disallowance of Rs. 65,854 out of vehicle expenses, which was not entertained by the CIT(A). The Tribunal did not entertain the contention as the assessee failed to show when this prayer was raised as an additional ground before the CIT(A).
  
  Issue 6: Additional Grounds on Profit on Sale of Operating Assets and Capital Gains on Transfer of Trademark
  The Tribunal allowed the additional grounds for adjudication, noting that the issues were legal in nature and did not require fresh material outside the record. The CIT(A) had directed the assessment of profit on the sale value of Rs. 19,40,000 of operating assets u/s 41(2) and taxed the capital gains on the transfer of the trademark. The Tribunal upheld the CIT(A)'s decision on capital gains but directed the A.O. to verify the claim regarding the sale value being lesser than the WDV of the block.
  
  Issue 7: Validity of Reopening of Assessment
  The Tribunal upheld the validity of reopening the assessment proceedings u/s 147 by issuing notice u/s 148. The Tribunal found that the A.O. had reasonable belief that income chargeable to tax had escaped assessment, justifying the initiation of reopening proceedings.
  
  Issue 8: Exclusion of Sales Tax, Excise Duty, Rent, Miscellaneous Receipt, and Exchange Fluctuation Receipt from Total Turnover for Deduction u/s 80HHC
  The Tribunal upheld the CIT(A)'s decision to exclude sales tax, excise duty, rent, miscellaneous receipt, and exchange fluctuation receipt from the total turnover for the purpose of calculating deduction u/s 80HHC. The Tribunal relied on the decision of the Hon'ble Supreme Court in CIT Vs. Laxmi Machine Works, which held that excise duty and sales tax cannot form part of turnover as they do not emanate from such turnover.
  
  Conclusion:
  The Tribunal allowed the appeal partly in favor of the assessee on certain grounds while dismissing other grounds and the appeal preferred by the revenue. The Tribunal upheld the CIT(A)'s decisions on various issues and provided directions to the A.O. for verification and reassessment where necessary.

  ---

• 2012 (2) TMI 593
  
  Issues involved: Appeal against order of CIT(A) deleting disallowance u/s. 40(a)(ia) for failure to deduct TDS u/s. 194C.
  
  Summary:
  The appeal by revenue challenged the CIT(A)'s deletion of disallowance u/s. 40(a)(ia) for failure to deduct TDS u/s. 194C. The Assessing Officer observed that the assessee, a contractor, made payments exceeding Rs. 50,000 to seven parties for labour charges without deducting TDS as required u/s. 194C. The AO disallowed Rs. 22,39,414 under section 40(a)(ia) as TDS was deducted in March 2007 for payments made throughout the year. The CIT(A) allowed the claim based on the amendment by Finance Act, 2008, stating that if TDS is deducted in the last month of the previous year and paid before the due date for filing return u/s. 139(1), no disallowance u/s. 40(a)(ia) can be made. The High Court's decision in CIT V Virgin Creations supported the retrospective application of the amendment in section 40(a)(ia), allowing deduction if TDS is paid before the due date of filing return. The Tribunal upheld the CIT(A)'s order, dismissing the revenue's appeal.
  
  In conclusion, the Tribunal dismissed the revenue's appeal, confirming the CIT(A)'s order regarding the disallowance u/s. 40(a)(ia) for failure to deduct TDS u/s. 194C.

  ---

• 2012 (2) TMI 592
  
  Issues Involved:
  1. Delay in filing the appeal.
  2. Disallowance of Rs. 1.53 lakhs out of interest.
  3. Addition of Rs. 2,37,032/- as excess of assets over liabilities.
  4. Addition of Rs. 69,643/-.
  5. Disallowance of Rs. 15,000/- for want of vouchers towards maintenance of vehicle.
  6. Disallowance of Rs. 21,618/- u/s 40A(3) of the Act.
  
  Summary:
  
  1. Delay in Filing the Appeal:
  The appeal was delayed by 26 days due to the appellant attending to his wife suffering from cancer. The Tribunal condoned the delay, considering it a reasonable cause.
  
  2. Disallowance of Rs. 1.53 Lakhs of Interest:
  The AO disallowed Rs. 1.53 lakhs out of Rs. 1.78 lakhs interest claimed, stating that the assessee advanced interest-free loans to sister concerns while paying interest on an overdraft account. The CIT (A) upheld the disallowance, noting the diversion of funds for non-business purposes. The Tribunal remitted the issue back to the AO to verify if the loans were advanced from surplus funds or borrowings.
  
  3. Addition of Rs. 2,37,032/- as Excess of Assets over Liabilities:
  The AO added Rs. 2.37 lakhs, finding discrepancies in credit balances shown by the assessee. The CIT (A) upheld the addition, and the Tribunal found no infirmity in the CIT (A)'s decision, sustaining the addition.
  
  4. Addition of Rs. 69,643/-:
  The AO added Rs. 69,643/- as undisclosed income based on bills found during a survey. The CIT (A) confirmed the addition, and the Tribunal upheld this decision, noting the assessee failed to provide documentary proof to refute the Revenue's claim.
  
  5. Disallowance of Rs. 15,000/- for Vehicle Maintenance:
  The AO disallowed Rs. 15,000/- due to the absence of vouchers for vehicle maintenance expenses. The CIT (A) confirmed the disallowance, and the Tribunal upheld this decision, agreeing with the authorities' reasoning.
  
  6. Disallowance of Rs. 21,618/- u/s 40A(3) of the Act:
  The AO disallowed Rs. 21,618/- for cash payments exceeding Rs. 20,000/-, contravening section 40A(3). The CIT (A) confirmed the disallowance. However, the Tribunal, considering the exceptional circumstances under which the payments were made, ruled that the authorities were not justified in invoking section 40A(3) and allowed this part of the appeal.
  
  Conclusion:
  The assessee's appeal was partly allowed, with the Tribunal remitting the issue of interest disallowance back to the AO and overturning the disallowance u/s 40A(3). Other additions and disallowances were upheld.

  ---

• 2012 (2) TMI 591
  
  The Appellate Tribunal ITAT Mumbai allowed the Miscellaneous Application filed by the assessee to recall the order of dismissing the appeal for non-prosecution. The appeal is now fixed for hearing on 22nd March 2012 without issuing separate notices to the parties. The order was pronounced on 24th Feb 2012.

  ---

• 2012 (2) TMI 590
  

  Disallowance of interest expenditure - Held that:- Short mistake pointed out is that while disallowing the amount of Interest paid of ₹ 5,41,838/-, the Tribunal has not granted the netting of interest earned of ₹ 35,203/-, which was an alternate plea of the counsel of the assessee. In support , during the hearing, an assessment order for A.Y. 2009-10 is placed for due consideration.

  Admittedly this factual aspect remained for adjudication while deciding Ground No.1 of the above referred appeal, hence for this limited purpose we hereby recall that ground and direct the registry to fix the appeal as per law

  ---

• 2012 (2) TMI 589
  
  Issues Involved:
  1. Deletion of disallowance of interest u/s 36(1)(iii) and Section 14A.
  2. Direction to allow set off of loss against capital gain, and whether the share transaction resulting in the loss was a sham transaction.
  
  Summary:
  
  Issue 1: Deletion of Disallowance of Interest u/s 36(1)(iii) and Section 14A

  During the assessment proceedings, the AO noted that the assessee had paid interest and received interest and finance charges. The AO issued a show cause notice regarding the disallowance of interest u/s 36(1)(iii) and Section 14A due to interest-free advances. The AO calculated the availability of funds and disallowed proportionate interest of Rs. 7,62,693 and Rs. 1,81,246 u/s 14A. The CIT(A) found that the AO had incorrectly calculated the availability of funds and determined that sufficient interest-free funds were available, thus deleting the disallowance of interest and Section 14A disallowance. The Tribunal upheld the CIT(A)'s decision, noting that the total funds available were Rs. 13,73,22,719 and interest-free funds were Rs. 9,00,57,465, which covered the interest-free advances of Rs. 8,32,34,434. Consequently, no disallowance was warranted u/s 36(1)(iii) and Section 14A, except for a reasonable expenditure of Rs. 2,000 for earning exempt income.

  Issue 2: Set Off of Loss Against Capital Gain and Sham Transaction Allegation

  During the assessment, the AO observed that the assessee had sold shares and booked short-term capital losses, which were set off against capital gains. The AO suspected the transactions were sham as the shares were sold to relatives of the director without proper share transfer evidence. The assessee argued that the transactions were genuine, supported by documentary evidence, and the shares were transferred as per legal norms. The CIT(A) accepted the assessee's explanation, noting that the transactions were executed in a normal business manner and were not sham. However, the CIT(A) reduced the cost of shares of Plus Channel to Rs. 58 per share, determining the loss at Rs. 1,15,00,000 instead of Rs. 2,15,00,000. The Tribunal upheld the CIT(A)'s decision, stating that the transactions were genuine and could not be considered sham merely because the shares were sold to relatives. The Tribunal also noted that the transactions were in line with tax planning, as upheld by the Supreme Court in the case of Walfort Share Brokers P. Ltd.

  Conclusion:

  The Tribunal partly allowed the Revenue's appeal, confirming the deletion of disallowance of interest and Section 14A disallowance, and upheld the CIT(A)'s decision regarding the genuineness of the share transactions and the resultant capital loss set off.

  Order pronounced in the open Court on this day of 3/2/2012.

  ---

• 2012 (2) TMI 588
  
  Issues involved: Challenge to order disallowing waiver of predeposit pending appeal u/s 114 of the Customs Act 1962.
  
  Summary:
  The petitioner challenged the order disallowing waiver of predeposit pending appeal u/s 114 of the Customs Act 1962, passed by the Commissioner (Appeals) on 8th November 2011. The customs authorities alleged willful avoidance of duty and imposed a penalty of &8377; 4 lakhs on the petitioner. The petitioner appealed against the order and requested waiver of predeposit citing lack of cross-examination of witnesses and retraction of his confessional statement. The Commissioner, in a common order, did not waive any part of the penalty, leading the petitioner to approach the High Court.
  
  Upon hearing both sides, the Court found that the petitioner had a prima facie case with arguable issues and financial hardship. The Court allowed the petitioner to deposit 25% of the penalty within four weeks, after which the appeal would be entertained by the Commissioner on merits with a stay till disposal. The Court emphasized that such intervention was exceptional and not routine, made based on the facts of the case.
  
  The Court did not examine the other prayers of the petitioner, leaving them for the Appellate Authority to consider. The rule was made absolute, and the Civil Application was disposed of accordingly.

  ---

• 2012 (2) TMI 587
  
  Issues Involved:
  1. Whether the land sold by the assessee constitutes a capital asset u/s 2(14) of the IT Act.
  2. Whether the capital gains arising from the sale of the land are taxable.
  3. Whether the CIT(A) erred in not adjudicating all grounds raised by the assessee.
  
  Summary:
  
  Issue 1: Whether the land sold by the assessee constitutes a capital asset u/s 2(14) of the IT Act.

  The Assessing Officer (AO) determined that the land sold by the assessee was within eight kilometers from the limits of the Hyderabad Municipal Corporation, thus qualifying as a capital asset u/s 2(14) of the IT Act. The CIT(A) admitted an additional ground raised by the assessee, arguing that the jurisdictional municipality was Rajendra Nagar Municipality, which was not notified by the Central Government. The CIT(A) held that the agricultural land sold did not constitute a capital asset within the meaning of section 2(14) of the Act, and thus, no tax u/s 45 of the Act was applicable.

  Issue 2: Whether the capital gains arising from the sale of the land are taxable.

  The AO rejected the assessee's claim of exemption u/s 54B and 54F in the individual return and assessed the total sale consideration of Rs. 5,28,75,000/- for 47 guntas of land as taxable. The CIT(A) deleted the addition made towards long-term capital gains, following the judicial proposition laid down by the Tribunal, Hyderabad. However, the Tribunal, referencing the case of CIT vs. Bola Ramaiah, held that the land in question was urban land and thus a capital asset liable for capital gains tax. The Tribunal allowed the ground raised by the Revenue, holding that the land transferred is a capital asset liable for capital gain.

  Issue 3: Whether the CIT(A) erred in not adjudicating all grounds raised by the assessee.

  The Tribunal noted that the CIT(A) had only decided on the additional ground regarding the application of section 2(14)(iii)(b) and had not adjudicated the other grounds of appeal raised by the assessee. The Tribunal, citing the case of CIT Vs Assam Shipping & Travels and Linklaters LLP Vs. ITO International Taxation, remitted the issue back to the CIT(A) to pass an order adjudicating on the other grounds raised by the assessee.

  Conclusion:

  The Tribunal allowed the appeals of the Revenue for statistical purposes, holding that the land transferred by the assessee is a capital asset liable for capital gain and remitted the issue back to the CIT(A) for adjudication on the other grounds raised by the assessee.

  Order pronounced in the open court on: 10.2.2012

  ---

• 2012 (2) TMI 586
  
  Issues Involved:
  1. Disallowance of short-term capital loss.
  2. Treatment of loss as speculative loss u/s 73.
  
  Summary:
  
  1. Disallowance of short-term capital loss:
  
  The assessee filed a return of income for AY 2002-03, showing a short-term capital loss of Rs. 58,29,228/- from the sale of shares. The AO disallowed this claim, stating that the transactions were not genuine and were conducted to create artificial losses. The AO noted that the transactions were not done through a recognized stock exchange, lacked transaction ID and time stamp, and involved in-house deals with brokers, which were not reported to the stock exchange. Furthermore, no delivery of shares was made to or from the assessee's demat account. The AO concluded that these transactions were a colorable device to avoid tax.
  
  The CIT(A) upheld the AO's decision, emphasizing that the assessee had not engaged in share trading in previous years and that all transactions resulted in losses, indicating a deliberate attempt to offset capital gains. The CIT(A) also noted that the transactions were off-market and lacked actual delivery of shares, thus treating them as speculative.
  
  2. Treatment of loss as speculative loss u/s 73:
  
  The CIT(A) further held that the loss should be treated as speculative loss u/s 73, as the assessee was not in the business of banking or granting loans and advances. The explanation to section 73 deems the purchase and sale of shares by a company as speculative business, and thus the loss could not be set off against capital gains.
  
  Tribunal's Decision:
  
  The Tribunal examined the transactions with M/s. Thakkar Share Brokers Pvt. Ltd. and found sufficient evidence to prove that the transactions were genuine. The broker had confirmed the transactions and provided relevant documents, including the demat account statement and Sauda Bahi. The Tribunal held that off-market transactions are not illegal and that the assessee's transactions with Thakkar Share Brokers were genuine. Therefore, the Tribunal allowed the set-off of short-term capital losses against the gains for transactions conducted through Thakkar Share Brokers.
  
  However, for transactions with M/s. Labh Investments, the Tribunal noted that the assessee failed to provide essential documents such as the demat account statement and Sauda Bahi. In the absence of these documents, the Tribunal upheld the disallowance of the loss by the authorities below.
  
  Conclusion:
  
  The appeal was partly allowed. The Tribunal permitted the set-off of short-term capital losses for transactions conducted through M/s. Thakkar Share Brokers Pvt. Ltd., but upheld the disallowance for transactions with M/s. Labh Investments.

  ---

• 2012 (2) TMI 585
  
  Issues involved: Prayer for retesting of imported Split Cassia samples, reliability of testing reports, direction to draw fresh samples and carry out testing.
  
  In the present case, the petitioner sought a direction for retesting of imported Split Cassia samples covered by a specific Bill of Entry. The petitioner argued that the testing reports were divergent and unreliable, emphasizing the need for fresh testing by a government-recognized laboratory. On the other hand, the respondents opposed the prayer for retesting, citing the failed tests on both counts as a reason to deny the request.
  
  After hearing arguments from both parties and evaluating the circumstances, the High Court directed the Authorized Officer of the Food Safety and Standard Authority of India to draw fresh samples of the articles within 48 hours and send them to the Export Inspection Agency for analysis. The analysis by the Export Inspection Agency was to be completed within fifteen days, with a clear stipulation that the test conducted pursuant to this order would be considered final. The Court made no ruling on costs, and all parties were instructed to act in accordance with the order provided.

  ---

• 2012 (2) TMI 584
  
  Issues involved:
  The issues involved in the judgment are related to the import of Crude Palm Oil (Edible Grade) and the standards laid down under the Food Safety and Standards Act, 2006.
  
  Summary:
  
  Issue 1: Appeal against the order passed by the Hon'ble Calcutta High Court
  
  The Revenue did not prefer any appeal against the order passed by the Hon'ble Calcutta High Court in the matter of Gokul Refoils and Solvents Limited v. Union of India and others. The order passed by the Commissioner of Customs (Appeals) in the case of Gokul Refoils and Solvents Limited is not binding upon the Commissioner of Customs, Kandla. However, the order in Appeal No. KOL/CUS/CKP/213/2011 has been accepted by the Committee of Commissioners where the same issue involved in this application has been decided against the Revenue.
  
  Issue 2: Prima facie case for an interim order
  
  The petitioner has made a strong prima facie case to have an interim order to clear the imported consignment of Crude Palm Oil (Edible Grade) under specific Bills of Entry to conform to the standards laid down under the Food Safety and Standards Act, 2006. The court orders to permit clearance of the consignment within one month and grants an order of injunction restraining the respondent from causing any delay in allowing the petitioner to process the imported consignment to meet the required standards.
  
  Issue 3: Final hearing and directions
  
  The court schedules the matter for final hearing on a specific date and permits direct service. The petitioner is required to give an undertaking to deposit the claimed amount before the Revenue authority in case of failure in the Special Civil Application.
  
  This judgment addresses the issues related to the appeal against the order passed by the Hon'ble Calcutta High Court, the grant of an interim order for clearance of imported consignment, and the final hearing date with specific directions for the petitioner.

  ---

• 2012 (2) TMI 583
  

  Admission of additional evidence - Held that:- We find that the first appellate authority has indeed relied on certain averments made during the course of hearing, and written submissions filed before him,and the Commissioner of Income-tax based his conclusion on the averments made in this petition, without appreciating that the same have not attained finality, having been not accepted by the judicial authority before which the same have been made. This action of the CIT(A), in this behalf, in our opinion, is bad in law. Further, the assessing officer has no occasion to go through these averments, and offer his comments thereon. In the circumstances, we are of the view that it would be in the interests of justice to set aside the order of the CIT(A) and restore the entire issue to the file of the assessing officer, to re-examine the same and redecide the issue in accordance with law after giving reasonable opportunity of hearing to the assessee.

  Levy of surcharge - Held that:- We find that issue is covered in favour of the Revenue by the decision of the Apex Court in the case of CIT V/s. Suresh N.Gupta (2008 (1) TMI 396 - SUPREME Court ), wherein it has been held that amendment to the proviso to S.113, though came into operation with effect from 1.6.2002, the same being clarificatory in nature, is applicable even in respect of searches conducted prior to 1.6.2002, and as such the assessing officer was justified in levying surcharge. We accordingly, set aside the order of the CIT(A) on this aspect, allowing this ground of the Revenue.

  Cancellation of penalty levied by the assessing officer under S.158BFA - Held that:- As we have set aside the order of the CIT(A) and restored the matter to the file of the assessing officer for redeciding the issue and reframing the assessment, this penalty appeal has become infructuous, and on that ground it is liable to be dismissed. We do so, accordingly. We however, hasten to add that while reframing the assessment in accordance with law in pursuance of our directions hereinabove, the assessing officer would be at liberty to initiate fresh proceedings in terms of S.158BFA of the Act, if deemed fit.

  ---

• 2012 (2) TMI 582
  
  Issues involved: Appeal against CIT(A)'s order for A.Y. 2006-07 - Disallowance of filing fee to ROC and disallowance of expenses on moulds & dies used for manufacturing of goods.
  
  Disallowance of filing fee to ROC:
  The filing fee paid towards increasing authorized capital was disallowed by CIT(A) based on the nature of the expense. The Tribunal upheld this decision citing relevant case laws such as Brooke Bond India Ltd. Vs. CIT and CIT Vs. Kodak India Ltd. The Tribunal found the filing fee to be on capital account and dismissed the assessee's claim.
  
  Disallowance of expenses on moulds & dies:
  The assessee, involved in manufacturing plastic containers, incurred expenses on moulds and dies essential for product quality. Two types of moulds were purchased - one capitalized as "plant & machinery" for depreciation claims, and the other debited to P&L A/c as renewable items. The assessee sought to submit additional evidence regarding the nature of these expenses, which was not furnished before the AO. The Tribunal, considering similar past cases, admitted the additional evidence and remanded the issue back to CIT(A) for decision in accordance with the law and previous orders. The appeal was partly allowed for statistical purposes.
  
  Separate Judgement: None.

  ---

1 ....456789101112........ 28