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Showing 141 to 160 of 1439 Records
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2015 (7) TMI 1306
Refund of TDS - reopening of assessment - process of issue of refund has been initiated on receipt of TDS verification from the Land Acquisition Officer - rectification order under Section 154 - Held that:- The right to refund, therefore, in each of the matters is established. The respondents, however, have initiated proceedings for reassessment under Sections 147 and 148 of the Act in respect of the same assessment year. The respondents are entitled to set off the refund against any amounts that may be payable pursuant to these proceedings. It will, however, be unfair to withhold the refund indefinitely.
The ends of justice would be served by directing the respondents to complete reassessment proceedings by 31.08.2015. In the event of there remaining any refund payable to the petitioners, the same be shall be paid within four weeks of the conclusion of the reassessment proceedings. It is clarified that all other issues including regarding the quantum of interest are kept open.
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2015 (7) TMI 1305
Reopening of the case u/s 148 - Undisclosed investment - non independent application of mind by the Assessing Officer - Held that:- Investigation Wing provided the information that during the financial year 2001-02 relevant to assessment year 2002-03, the assessee had received bogus accommodation entries - details were also submitted to the Assessing Officer. In my opinion, on the basis of above information, the AO was justified in forming a prima facie opinion or belief that income has escaped assessment in the hands of the assessee. The material before the Assessing Officer was relevant and afforded a live link or nexus to the formation of the belief. The information, so received by the AO, was credible and not a mere gossip. - Decided against assessee
Addition u/s 68 - genuineness of the transactions and the creditworthiness of the creditors - Held that:- Neither any bank account statements of S/Shri Vipin Kumar and Ashok Kumar Vindal, nor any proof regarding identity of these persons was furnished. The assessee also failed to produce his bank account statement for assessment year 2002-03. Also in agreement with this observation of the learned CIT (Appeals) that although the assessee has submitted certain documents (not relevant to assessment year 2002-03), he has not been able to establish the genuineness of the transactions and creditworthiness of the creditors. CIT (Appeals) has correctly observed that by merely claiming that the credits were unsecured loans and by submitting confirmations from so called creditors, the genuineness of the transactions cannot be proved. In the instant case, the assessee has miserably failed to prove the creditworthiness of the alleged creditors as well as the genuineness of the transactions. There is no evidence on record to prove the above ingredients of cash credits - decided against assessee.
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2015 (7) TMI 1304
Correct head of income - characterization of income - bogus LTCG - Income on sale and purchase of shares - income assessable under the head income from other sources OR long term capital gain - Held that:- In the case of the assessee as well as in the case of Jagdish H. Shah(2012 (9) TMI 1154 - ITAT MUMBAI) the shares were purchased from the same broker namely DPS Shares and Securities Pvt. Ltd.
AO carried out a verification exercise which involved recording of statement of one Shri Raj Kumar Masalia, Principal Officer of DPS Shares & Securities Ltd.; similar action was taken in the case of Jagdish H. Shah (supra) also. It is quite clear that the stand of the Revenue as well as the assessee in the present case is on similar footing to their respective stands in the case of Jagdish H. Shah (supra).
Having regard to the aforesaid similarities, which are not controverted by the Revenue, we deem it fit and proper to rely upon the reasoning taken by the Co-ordinate Bench in the case of Jagdish H. Shah(supra) and hold that the income tax authorities have erred in treating the sale consideration on the sale of shares of Robinson Worldwide Trade Ltd. as an income from undisclosed sources - decided in favour of assessee.
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2015 (7) TMI 1303
TDS u/s 194C - assessee’s receipts were below audit limit u/s 44AB - tds liability - Held that:- Because the provisions of section 194C as it stood prior to 01.06.2008 provided that in case of individual or HUF whose total sales, gross receipts or turnover from business or profession does not exist monetary limits specified u/s 44AB during the financial year immediately preceding the financial year in which such sums is credited or paid then he has no liability to deduct income tax u/s 194C(2). It is has not been rebutted that assessee’s turnover in the immediately preceding financial year had not exceeded monetary limit specified u/s 44AB and this fact also gets strengthen by the order of the Tribunal as relied by the Ld. Counsel. Accordingly, the assessee was not liable to deduct TDS, therefore, no disallowance u/s 40(a)(ia) can be made. Thus Ground no. 1, as raised by the assessee is allowed.
Ad-hoc disallowance on account of salary and various other expenses - Held that:- We find that disallowances has been made on ad-hoc basis whereby 50% of the salary has been disallowed. The assessee in the paper book has filed details of employees giving their designations and addresses to whom the salary was paid during the year. If such details are on record which has not been rebutted, then no ad-hoc disallowance on account of salary can be made. Accordingly, the disallowance under the head salary stands deleted.
Disallowance of depreciation - Held that:- Disallowance made by the Assessing Officer and confirmed by the CIT(A) are slightly excessive looking to the nature of expenses, therefore, we restrict the disallowance at 10%. The assessee will get part relief on this score. 10. Regarding disallowance on depreciation on computers, we find that the same was made on the ground that computers were put to use after September, 2006 therefore, disallowance have been made for half of the year instead and full year as claimed by the assessee. This finding of fact as recorded by CIT(A) and AO has not been rebutted because, therefore, such a finding of the CIT(A) confirming the said disallowance is affirmed.
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2015 (7) TMI 1302
Disallowance of deduction u/s 80 IB(10) - proportionate deduction - out of 122 dwelling units constructed by the Respondent Assessee in one block 50 units exceeded the maximum limit and in the other project 26 units violated the maximum limit - claim of the assessee on “pro rata” basis - Held that:- The interpretation placed on sub-clause (c) of clause (10) by the CIT (A) and affirmed by the ITAT is plausible. The provision is capable of being construed in a manner that is beneficial to the Assessee by allowing the deduction pro rata the number of residential units that have complied with the requirement in Section 80 1B(10)(c) viz., that the maximum build up area should not exceed 1000 sq.ft. It is not in dispute that as far as the units in the two blocks constructed by the Assessee all other requirements of Section 80 IB (10) (c) stand fulfilled. No substantial question of law
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2015 (7) TMI 1301
Levy of penalty u/s 272A(2)(k) - person responsible’ had failed to file quarterly TDS returns in Form No.24Q, 26Q and 27Q for the 4t h quarter by due date - reasonable cause for failure to comply with the provisions of law - Held that:- TDS returns were not filed within time prescribed by law. Section 273B of the Act provides exception to the rule if the assessee is able to prove to the satisfaction of the authorities below that there was a reasonable cause for failure to comply with the provisions of law.
The assessee has not been able to prove if there was any reasonable cause for failure to comply with the provisions of law. The assessee merely explained that since the consultant was traveling out of country, the TDS returns could not be filed on time. However, it is not specified at what time the consultant was traveling out of country and why no other arrangement was made and whatever plea was taken was not supported by any evidence, would clearly reveal that the assessee has no reasonable cause for failure to comply with the provisions of law - Decided against assessee
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2015 (7) TMI 1300
The appeal is admitted on the following substantial question of law: Whether the penalty under Section 77 of the Finance Act, 1994 could have been imposed when the Government of India, Ministry of Finance had a doubt till the issuance of Circular, dated 29/10/2006 whether service tax was leviable on the services of site formation?
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2015 (7) TMI 1299
Capital gain computed on the amount which the assessee actually received - addition on the basis of deeming provision of section 50C - Held that:- The assessee sold/given development right of the same property which was owned by it. The assessee was unable to sale more than the land which was not owned by the assessee. The assessee can be taxed only on the gain which is oozing out from the sale consideration, thus, no adverse inference can be drawn while invoking the provision of section 50C of the Act.
No evidence has been produced by the Revenue at any stage that the assessee actually received the value which was adopted by the stamp valuation authority. Even the development agreement clearly mention the area and the assessee is not the owner of the TDR, thus, cannot be saddled with the value adopted by the stamp duty purposes as the assessee is only the owner of 3872 sq. mts. for which he received the consideration of ₹ 2,51,00,000/-, thus, the capital gain has to be computed on the amount which the assessee actually received, consequently, we are in agreement with the finding of the ld. Commissioner of Income Tax (Appeals) that on the basis of deeming provision of section 50C, no addition can be made. We affirm the stand of the ld. Commissioner of Income Tax (Appeals), thus, appeal of the Revenue is dismissed.
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2015 (7) TMI 1298
Assessment u/s 153A - disallowance of sales tax incentive - capital receipt or revenue receipt - Held that:- Assessee was justified in its claim that the sales-tax incentives received in terms of the Government scheme constituted the “capital receipt” and therefore, not to be taken into account in computation of total income. Since a view has been taken in respect of this very scheme by the respected Special Bench then we have no reason to take any other view but to follow the view already expressed in this precedent.
In respect of subsidy in the shape of entertainment duty in the case of Chaphalkar Brothers [2013 (6) TMI 73 - BOMBAY HIGH COURT] has opined that the object of the subsidy was to promote construction of multiplex theatre complexes. Such receipt of subsidy was held on “capital account”. If object of subsidy scheme was to enable the assessee to run business more profitability, then receipt was to be considered as on “revenue account”. But if object of assistance under subsidy scheme was to enable the assessee to set up new unit, then receipt of subsidy is to be considered on “capital account”. In the said case it was found by the Hon’ble Bombay High Court that under the incentive package offered by the State Government was for the purpose of setting up a new industry in the State. The assessee had applied for such special capital incentive from SICOM.
We are of the view that considering the scheme of the State Government, the assessee is entitled for the exemption of the sales-tax incentive being a capital receipt in the hands of the assessee and that the claim being lawful in nature ought to have been entertained by the Assessing Officer while completing the assessment under section 153A of I.T. Act. - Decided in favour of the assessee.
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2015 (7) TMI 1297
Whether under the facts and in the circumstances of the case, the Commercial Tax Tribunal was legally justified in deleting, the levy of penalty u/s 34(8) of the Act by the assessing authority?
Held that:- The Tribunal has examined the matter at length and has recorded finding that the entire tax which was payable was deposited by the assessee along with interest and no prejudice has been caused to the department. Therefore, the penalty imposed under Section 34(8) of the Act has been deleted.
Revision dismissed.
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2015 (7) TMI 1296
Validity of notice issued u/s.158BD - block assessment - requisite conditions for such notice were not satisfied - addition u/s 68 and 69C - Held that:- There is no proof with the Department that money was given by the assessee to M/s. Maheshwari Financiers for obtaining the cheques or that after the loans were obtained cash was withdrawn and given to M/s. Maheswari Financiers. Merely on the basis of statement of the Accountant and without any corroborative evidence the addition made by the AO in a block assessment passed u/s.158BD r.w.s. 158BC which has been upheld by the CIT(A), in our opinion, is not correct and proper.
Also the block assessment order passed in the case of the searched person has been set aside by the CIT u/s.263 on 23-03-2006. Subsequent to the order passed u/s.263 the AO completed the assessment of the searched persons on 29-12-2006 by making addition u/s.69A amounting to ₹ 1,63,77,713/- as money lent to third parties, a statement made by the Ld. Counsel for the assessee at the bar and not controverted by the Ld. Departmental Representative. Therefore, we find merit in the submission of the Ld. Counsel for the assessee that when the order passed u/s.263 is in force in case of the searched person, there was no question of making addition in the hands of the assessee
Since in the instant case the block assessment of the searched persons were completed on 24-12-2003 and since the notice u/s.158BD was issued on 10-02-2006, i.e. after a gap of 26 months, therefore, in view of the decision of the Hon’ble Delhi High Court in the case of Bharat Bhushan Jain [2015 (1) TMI 705 - DELHI HIGH COURT]) the notices issued u/s.158BD are not in conformity with the requirements of section 158BD which were unduly delayed. Therefore, the notice issued u/s.158BD has to be held as invalid and void. - Decided in favour of assessee.
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2015 (7) TMI 1295
Levy of Additional Excise Duty u/s 7 of the Sugar Export Promotion Act, 1958 - duty on quantity not exported or dispatched to Sugar Export Corporation - Held that:- The condition precedent prescribed under Rule 5 of the Sugar Export Promotion Rules, 1973, i.e. the intimation to Department from the Export Agency is required for initiating action by the Central Excise Department, is not available as it is nowhere referred in the show cause notice or in the impugned order - the whole proceedings are ab initio void - appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1294
Disallowance u/s 40 (a)(ia) - non deduction of TDS from ‘Wheeling charges’ - failure to deduct tax at source on the payment of wheeling charges - Held that:- In the light of the order of CIT(Appeals) dated 04.11.2009 which is followed by ld. CIT(Appeals) for earlier years for the purpose of deleting the addition, we do not find any merit in the departmental appeal because the order of the ld. CIT(Appeals) dated 04.11.2009 is ultimately confirmed by the Tribunal vide order dated 28.05.2010 in which it was held that assessee was not required to deduct tax at source in respect of the payments by way of wheeling charges and SLDC charges. The issue is therefore, covered in favour of the assessee.
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2015 (7) TMI 1293
Additions on account of royalty paid to Director - treatment as capital expenditure - Held that:- Identical issue was adjudicated by the Tribunal in assessee’s own case for assessment year 2006-07, 2007-08, 2008-09 [2014 (10) TMI 988 - ITAT CHANDIGARH] as held that the assessee-company has paid royalty for the particular invention which belonged to phoneytunes.com and therefore in our opinion, the claim for payment of royalty deserves to be allowed. Therefore we set aside the order of Ld. CIT(A) and direct the Assessing officer to allow claim for royalty. - Decided in favour of assessee.
Disallowance of Copyright fees - nature of expenditure - revenue or capital - AO was of the opinion that these expenses were of capital nature because copyright come within the purview of intangible assets - Held that:- The assessee has merely acquired right to use the copyright. The perusal of the agreement with M/s Phonographic Performance Ltd shows that license has been granted only for usage of the copyright. License was only for usage of copyright held by the licensor. The assessee has not become the owner of the license. Therefore, clearly the payment is of Revenue nature. Case of VRV. BREWERIES & BOTTLING INDUSTRIES LTD. [2011 (8) TMI 485 - DELHI HIGH COURT] to be followed - once license is taken only for usage of copyright then such payments would constitute Revenue expenditure - decided in favour of assessee
Disallowance of GRRS/SMS testing expenses @ 20% - Held that:- After considering the rival submissions we find since no evidence was furnished before Assessing Officer or even before us, therefore, estimated 20% disallowance is justified.
Depreciation @ 60% on computers - Held that:- We find force in the submissions of Ld. Counsel for the assessee because computer Kiosks is an assembly of computer with touch screen, Bluetooth and other computer parts loaded with software. In this background Ld. CIT(A) has correctly held the same to be part of the computer, and therefore, we find nothing wrong with the order of Ld. CIT(A)a nd confirm the same.
Depreciation on IVR card - @ 60% OR 15% - Held that:- We find that once IVR card is loaded with software which allows the computer to interact with humans through the voice and DTMF, keypads inputs. This technical jargon has not been denied by the Revenue. Once IVR card is interacting with the humans through software obviously the same would form part of the computer and hence entitled for 60% depreciation. Therefore, we find nothing wrong with the order of Ld. CIT(A) and we confirm the same. - Revenue appeal dismissed.
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2015 (7) TMI 1292
Addition u/s 40(a)(ia) - assessee has not paid the TDS and deposited to the govt. account before the due date of filing of return of income u/s. 139(1) - Held that:- As relying on COMMISSIONER OF INCOME TAX, KOL-XI, KOL VERSUS VIRGIN CREATIONS [2011 (11) TMI 348 - CALCUTTA HIGH COURT] the issue stands covered in favour of the assessee and against the revenue we direct the AO to allow the deduction of commission payments because the assessee has paid the TDS and deposited to the govt. account before the due date of filing of return of income u/s. 139(1) of the Act i.e. on 14.07.2009. Accordingly this issue of assessee's appeal is allowed.
TDS u/s. 194H - non deduction of tds on commission payment - invoking the provision of section 40(a)(ia) - Held that:- According to the assessee, this is not commission but incentive on collection of money from different places by various persons as per the direction of the team employed by the assessee company. This incentive includes travelling allowance also. We find that this incentive is not given at a fixed rate for payments which is known in the trade as incentive for actual collection and this incentive is in the nature of discount and not commission. Once this is in the nature of discount or can be called as incentive but not commission then the assessee is not liable to deduct TDS on this and accordingly we direct the AO to delete the disallowance. - Decided in favour of assessee
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2015 (7) TMI 1290
Levy of penalty u/s 271(1)(c) - excess claim of brought forward MAT credit - Held that:- The concealment of particulars of income/furnishing inaccurate particulars of income for the purpose of levy of penalty has to be with respect to the return already filed. The Income tax Act, in any case, does not contain any provision which requires the assessee to rectify its return to account for adjustments made in assessment proceedings. There is therefore no concealment of income or furnishing inaccurate particulars of income in this case because the assessee furnishing inaccurate particulars of income in this case because the assessee filed return of income on the basis of MAT disclosed in earlier years return of income. Therefore it is held that penalty imposed under section 271(1)(c) qua revised MAT Credit be hereby deleted.
Disallowance of expenses incurred on earning exempt income - Held that:- The assessee has disclosed both the figures of expenses as well as income in its P&L account filed along with return of income and produced before us. There is no question of concealing or furnishing inaccurate particulars of income. The AO on part of deduction u/s 80IC on same facts has already dropped the penalty proceedings. The case of the assessee is squarely covered by the decision of the Apex Court in Reliance Petroproducts (P.) Ltd.'s case [2010 (3) TMI 80 - SUPREME COURT]. The penalty imposed is therefore hereby deleted. - Decided in favour of assessee.
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2015 (7) TMI 1289
Interpretation of Statute - Scope of the term 'Dealer' - Section (2) sub-section (8) of the MVAT Act,2002 - Held that:- The dealer includes and at least with effect from 1.4.2005 an auctioneer who sells or auctions goods whether acting as an agent or otherwise or, who organises the sale of goods or conducts the auction of goods whether or not he has the authority to sell the goods. Thus, the bracketed words were brought in by the Maharashtra Act 14 of 2005 with effect from 1.4.2005 - By the very Act the explanation below the subclauses came to be amended and by insertion of clause (iva) with effect from the same date. Now the deeming fiction would make a person like the appellant, even if it is a public charitable Trust, be a dealer.
The reasons that are assigned by the Commissioner for refusing to give prospective effect to his determination order, have not been found to be suffering from any error of law apparent on the face of the record or perversity warranting interference in the appellate jurisdiction of the Tribunal.
The appeal, therefore, does not raise any substantial question of law, as the concurrent orders do not suffer from a serious legal infirmity or perversity - appeal dismissed.
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2015 (7) TMI 1288
Addition on account of determination of Arms Length Price (ALP) of the interest charged from its Associated Enterprise(AE) - computation of income arising from an international transaction entered into by the assessee with its Associated Enterprise - assessee company had charged interest from its AE @ LIBOR + 300 bps - Held that:- The interest rates payable on currency specific loans were found to be significantly universal and globally applicable. Since the loan in question before the in foreign currency i.e. US $ and it was also to be repaid in the same currency, the interest rate applicable to the rupee loans would not be a relevant comparable. Therefore, the PLR applied by the TPO was found to be untenable.
Following the ratio of the decision Hon’ble Delhi High Court in the case of Cotton Naturals Ltd. (2015 (3) TMI 1031 - DELHI HIGH COURT), in the present case we find no reason to uphold the application of SBL PLR on rupee loan as a benchmark to compare the interest rate on loan advanced by the assessee to its Associated Enterprise in foreign currency. As the loan in the instant case has also been given in foreign currency i.e. US $, therefore, we find no infirmity in the assertions of the assessee that the interest rate charged at LIBOR + 300 bps is liable to be considered as an Arm’s Length rate of interest. As a consequence no further transfer pricing adjustment is required to be made in order to compute the Arm’s Length Price of the interest earned by the assessee on loan advanced to its Associated Enterprise i.e. Synergy Corpn. USA. Therefore, the addition made by the AO is directed to be deleted - decided in favour of assessee
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2015 (7) TMI 1287
Allowability to deduction to the assessee u/s 80P(2)(a)(i) - Held that:- Commissioner of Income Tax(Appeals) has allowed the claim of deduction under sec. 80P(2)(a)(i) of the Act by following the decisions of the Hon‘ble Karnataka High Court in the case of Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha (2015 (1) TMI 821 - KARNATAKA HIGH COURT) and in the case of General Insurance Employees Cooperative Credit Society Ltd. (2014 (6) TMI 912 - KARNATAKA HIGH COURT). No contrary decision could be cited by the Departmental Representative. We, therefore, do not find any good and justifiable reason to interfere with the orders of the Commissioner of Income Tax (Appeals), which are confirmed and the ground of appeal of the Revenue is dismissed.
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2015 (7) TMI 1286
Transponder fee paid by the assessee to MEASAT Malaysia - whether was in the nature of royalty under the treaty as well as under the Income Tax Act? - Held that:- Respectfully following the findings of the Tribunal in assessee's own case [2014 (4) TMI 737 - ITAT MUMBAI] we hold that the transponder fee paid by the assessee to MEASAT Malaysia was in the nature of royalty under the treaty as well as under the Income Tax Act. - Decided against the assessee and in favour of the Revenue.
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