|
Advanced Search Options
Case Laws
Showing 141 to 160 of 1428 Records
-
2015 (7) TMI 1295 - CESTAT MUMBAI
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.
-
2015 (7) TMI 1294 - ITAT CHANDIGARH
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.
-
2015 (7) TMI 1293 - ITAT CHANDIGARH
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.
-
2015 (7) TMI 1292 - ITAT KOLKATA
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
-
2015 (7) TMI 1290 - ITAT CHANDIGARH
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.
-
2015 (7) TMI 1289 - BOMBAY HIGH COURT
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.
-
2015 (7) TMI 1288 - ITAT MUMBAI
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
-
2015 (7) TMI 1287 - ITAT PANAJI
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.
-
2015 (7) TMI 1286 - ITAT MUMBAI
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.
-
2015 (7) TMI 1285 - MADRAS HIGH COURT
CENVAT Credit - Capital goods - Whether the order of the learned Tribunal inasmuch as it gives effect to the notification No.16/09 prior to 7.7.2009 overlooking the fact that the same is made expressly effective only from the aforesaid date?
Held that:- The principles laid down in the case of Commissioner of Central Excise Jaipur V. Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA] applies to the present case, where it was held that Applying the "user test" on the facts in hand, we have no hesitation in holding that the steel plates and M.S. Channels, used in the fabrication of chimney would fall within the ambit of "capital goods" as contemplated in Rule 57Q.
Appeal allowed - decided in favor of appellant.
-
2015 (7) TMI 1284 - ITAT DELHI
Reopening of assessment - assessee as accommodation entry beneficiary - Held that:- As decided in Signature Hotels P. Ltd. vs. Income Tax Officer [2011 (7) TMI 361 - DELHI HIGH COURT] case according to the information, the amount received from a company, was nothing but an accommodation entry and the assessee was the beneficiary. The reasons did not satisfy the requirements of Section 147 of the Act. There was no reference to any document or statement, except the annexure. The annexure could not be regarded as a material or evidence that prima facie showed or established nexus or link which disclosed escapement of income.
The annexure was not a pointer and did not indicate escapement of income. Further, the Assessing Officer did not apply his own mind to the information and examine the basis and material of the information. There was no dispute that the company, had a paid-up capital of ₹ 90 lakhs and was incorporated on January 4, 1989, and was also allotted a permanent account number in September, 2001. Thus, it could not be held to be a fictitious person. The reassessment proceedings were not valid and were lliable to be quashed. - Decided in favour of assessee
-
2015 (7) TMI 1283 - ITAT RAIPUR
Addition u/s 40A - assessee has purchased land from the parties and made payments exceeding ₹ 20,000/- - Held that:- Business compulsion of the assessee that the assessee had to accept the insistence of the villagers as the assessee has purchased a large chunk of land and wanted to acquire the adjacent land in vicinity for launch of its project. It had to agree to some of the villagers in their demand of cash payments although the assessee was able to make major purchases by cheque. Moreover it is also on record that photos of sellers duly signed by them are recorded on the sale deed which was registered before the Sub Registrar. Thus reasonable cause for the assessee’s failure to make payment otherwise than by crossed cheques
Payees in this case also are illiterate villagers who wanted some of the payments to be done in cash. There is no dispute regarding identity of the payees and genuineness of the transaction. Moreover the above observations of the Tribunal in case of Saraswati Housing and Developers [2013 (12) TMI 1114 - ITAT DELHI] are squarely applicable on the facts of the case. - decided in favour of assessee.
-
2015 (7) TMI 1282 - ITAT MUMBAI
TPA - DRP rejecting the entity level TNMM adopted by the TPO and directed to compute the adjustment at transaction level only Held that:- The undisputed fact is that the TP adjustments have to be made only for the transaction with the Associated Enterprises. A similar view was taken by the Tribunal in the case of Ratilal Becharlal & Sons [2012 (11) TMI 988 - ITAT MUMBAI ] wherein the Tribunal at para-13 of its order has held that “ adjustment arising out of ALP cannot be made on the entire turnover and the same has to be restricted to the International transaction with the AE.” Thus the ALP has to be at International Transaction and not in relation to assessee’s entire sales/turnover. - No error in the directions of the DRP. Appeal filed by the Revenue is accordingly dismissed.
Not allowing the benefit of the proviso to Sec. 92C - Held that:- A perusal of the assessment order shows that following the directions of the DRP, the AO has made TP adjustment of ₹ 3,16,022/-. We find force in the contention of the Ld. Counsel that the benefit of proviso i.e. the difference is within the range of +/ - 5% should be allowed to the assessee. We direct the AO to verify this contention of the assessee and decide the issue as per the provisions of the law.
Disallowance being loan written off - Held that:- Firstly the assessee lended money to MST knowing fully well that MST is not in a position to carry on the work of the assessee as it does not possess the necessary facilities. Yet the assessee advanced money to MST. The recovery of machinery from MST was nothing but recovery on account of adjustment of loan since the assessee has grossly failed to establish any commercial expediency in giving advance to MST, we do not find any reason to allow the write off as expenditure. We, therefore confirm the findings of the DRP.
Brought forward losses - Held that:- This issue has to be relooked as we have confirmed the findings of the DRP in so far as Transfer Pricing adjustments is concerned in Revenue’s appeal. The AO is directed to decide this issue afresh as per provisions of the law.
-
2015 (7) TMI 1281 - GUJARAT HIGH COURT
Reopening of the assessment u/s 147 - suppression of sales - Held that:- Entire sale transaction cannot be taken as income. By the impugned notice though the department has subjected GP at the rate of 26.10% on the suppressed sale transaction, now, the entire suppressed sale transaction is sought to be brought under the net of income tax, which is not permissible.
In view of this settled legal propositions, we are of the opinion that the respondent could not have issued impugned notice to the petitioner subject to suppressed sale transaction to income. In our opinion, impugned notice is inherently illegal and invalid and, therefore, it cannot be sustained for the aforesaid reasons - Decided in favour of assessee.
-
2015 (7) TMI 1280 - ITAT KOLKATA
Deduction u/s 36(1)(viia) - whether deduction be calculated considering the loans and advances made during the year only by rural branches and not on the cumulative balances of loans and advances of the bank over the years? - Held that:- For the purpose of section 36(1)(viia), the aggregate average advances made by the rural branches of a scheduled bank shall be computed by taking the amounts of advances made by each rural branch as outstanding at the end of the last day of each month comprised in the previous year has to be aggregated separately.
CIT(A) instead of giving the direction to the AO to take the amount of advances as outstanding at the end of the last day of each month in the previous year di rec ted the Assessing Officer to take loans and advances made during the year only. We, therefore, set aside the order of CIT(Appeals) on this issue and amend the direction of the CIT(Appeals) and direct the Assessing Officer to compute 10% of the aggregate monthly average advances made by the rural branch of such Bank by taking the amount of advances by each rural branch as outstanding at the end of the last day of each month comprised in the previous year and aggregate the same separately as given under Rule 6ABA of the Income Tax Rules, 1962. - Decided in favour of assessee for statistical purposes.
-
2015 (7) TMI 1279 - ITAT MUMBAI
Genuineness of the expenditure claimed - Held that:- We find that as per the agreement dated 04.05.2007 the assessee had to perform certain functions and for that purpose it had incurred expenditure. AO has not doubted the genuineness of the expenditure. The FAA has given a finding of fact that AO had made the disallowance merely on presumption.The DR was not able to controvert the assertion made by the FAA. The assessee had furnished the details of the expenditure. We are of the opinion that the order of the FAA does not require any interference from our side. So, confirming his order we decide ground no.1 against the AO.
Prior period expenditure - assessee follows mercantile system of accounting - Held that:- It is found that the assessee had not produced any documentary evidence in support of its claim,that during the appellate proceedings it furnished bill/vouchers and the FAA considering those documents granted relief to the assessee.But,as per the provisions of Rule 46A of the Income-tax Rules,1962 the FAA is required to forward the new evidences to the AO or has to admit the same under sub rule 4 of the Rules. We do find that the FAA has not followed any of the sub section of the Rule 46A and has decided the matter without calling for remand report from the AO. In the interest of justice,we are remitting back the matter to the file of the AO for limited purpose of verification of the bills/vouchers not produced before him and furnished to the FAA for the first time.- Decided partly in favour of revenue
TDS u/s 194J OR 194C - Disallowance being expenses on account of mixing supervision and packing supervision - TDS liability - Held that:- We find that the AO had made the disallowance as he was of the opinion that mixing supervision and packing supervision fell in the category of fees for technical services.He invoked the provisions of section 9(1)(vii)r.w.s.194J and 40(a)(ia). We find that he has not elaborated as to how the mixing and packing supervision can be termed fees for technical services-a term having its definite meaning.In our opinion,the FAA has rightly held that it was a pure and simple labour contract and was covered by the provisions of section 194C. - Decided against AO
TDS u/s 194C - Disallowance of loading and unloading expenses u/s.40(a)(ia) - Held that:- AO had made the disallowance as he was of the opinion that the loading and unloading charges were covered by the provisions of section 194C and that the assessee was liable to deduct tax for such payments.The assessee had made payments for loading and unloading to the unskilled daily labourers and there was no contract between the two parties.It had produced the necessary documents along with the vouchers before the AO. There was no justification in holding that the payments were covered by Section 194C of the Act and the assessee had to deduct tax at source. Therefore, in our opinion,the order of the FAA does not suffer from any legal or factual infirmity
-
2015 (7) TMI 1278 - DELHI HIGH COURT
The matter is set down for final hearing on 2nd September 2015. It is however, clarified that both the parties will have to address arguments on the question whether the interest paid on borrowings for the purposes of investment by the Assessee could be treated as business expenditure.
-
2015 (7) TMI 1277 - ITAT MUMBAI
Disallowance u/s.14A by applying rule 8D - Held that:- No disallowance is to be made when there is no exempt income. No merit in the order of lower authorities for making disallowance u/s.14A r.w.r.8D, when there is no exempt income earned by the assessee.
-
2015 (7) TMI 1276 - ITAT BANGALORE
Transfer pricing addition - comparable selection criteria - functional similarity - Held that:- The assessee is engaged in the business of developing and providing custom Ebusiness applications, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Computation of deduction u/s 10A - Held that:- Direction to reduce the expenses both from export turnover as well as total turnover for computation of deduction u/s 10A of the Act as relying on case of Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT ]
Disallowance of interest amount paid on delayed remittance of tax - assessee submitted that interest amount paid on delayed remittance of tax is compensatory in nature and is not penal in nature and therefore it is not disallowable u/s 37(1) - Held that:- We agree with the contention of the assessee that interest paid on delayed deposit of TDS amount into Government account cannot be held to be penal in nature. See case of CIT Vs. Mahalakshmi Sugar Mills(1980 (4) TMI 1 - SUPREME Court) - Thus we direct the AO to allow the said expenditure in the hands of the assessee.
TDS u/s 194C or 194I - Non-deduction of tax at source on rent paid towards service apartments - Held that:- These payments made are of ₹ 95,000/- each to three of the employees and not to the owner of the service apartments. Nothing has been brought on record by the AO that there is any contract between the assessee and the service apartment owner for rendering of any regular service during the relevant previous year. The services rendered by service apartments are similar to service rendered by Hotels and therefore clearly provisions of sec.194C are not applicable. Also even if it is exigible to tax as rent under section 194- I, the limit fixed for such application of the provision is ₹ 1,20,000/- for the relevant assessment year and therefore provisions of sec.194-I are also not applicable. - Decided in favour of assessee.
-
2015 (7) TMI 1275 - ITAT BANGALORE
TPA - comparable selection criteria - Held that:- The assessee a domestic private limited company is engaged in the provision of software development services to its Associated Enterprises ('AEs'), thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Computation of Deduction under Section 10A - Held that:- Taking into consideration the decision rendered by the Hon'ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] we are of the view that it would be just and appropriate to direct the Assessing Officer that travel, interest charges - MPLS, etc incurred in foreign currency are to be excluded from both export turnover as well as total turnover while computing the deduction under Section 10A of the Act, as has been prayed by the assessee in its alternate plea at Ground raised at No.2.
Computation of deduction under Section 10A - Held that:- We find that the DRP had confirmed the Assessing Officer's finding on the ground that the assessee failed to adduce any evidence to support its claim. Considering the submissions made that the assessee was not afforded any opportunity of being heard in the matter and that the DRP dismissed its claim for lack of evidence being adduced, we deem it fit to remand the matter to the file of the Assessing Officer for de novo consideration of this issue and to decide thereon after affording the assessee adequate opportunity of being heard and to file details/evidence to support its claim in the matter.
Interest under Section 234B - Held that:- The assessee denied itself liable to be charged interest under Section 234B of the Act. The charging of interest is consequential and mandatory and the Assessing Officer has no discretion in the matter. This proposition has been upheld by the Hon'ble Apex Court in the case of CIT v. Anjum M.H. Ghaswala [2001 (10) TMI 4 - SUPREME Court] and we, therefore, uphold the action of the Assessing Officer in charging the said interest. The Assessing Officer is, however, directed to recompute the interest chargeable u/s. 234B and 234C of the Act, if any, while giving effect to this order.
............
|
