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Showing 141 to 160 of 1585 Records
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2015 (8) TMI 1454
Disallowance u/s 14A - no exemption was claimed by the assessee under section 10(2A) - Held that:- In the instant year no exemption has been claimed by the assessee under section 10(2A) of the Act as there was no tax free income and, therefore, the provisions of section 14A of the Act are not applicable. See CIT VERSUS M/S. DELITE ENTERPRISES [2009 (2) TMI 498 - BOMBAY HIGH COURT]
Direction of CIT(A) to verify and allow the assessee’s claim for carry forward of the business loss pertaining to A.Y 2008-09 - Held that:- On this aspect, we find no merit in the grievance of the Revenue in as much as the CIT(A) has directed the Assessing Officer to verify the fact-situation and allow the claim as per law. Quite clearly, the Assessing Officer had denied the claim for carry forward of the business loss without giving any cogent reasons. The order of the CIT(A) on this aspect is also affirmed.
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2015 (8) TMI 1453
Personal Jurisdiction - whether this Court has personal jurisdiction over the Defendant is a question of fact which cannot be determined purely on the basis of whether the Defendant is residing outside the jurisdiction? - revocation of leave already granted.
Held that:- In the present case the dispute is between the two Indian parties viz., the Plaintiff and the Second Defendant and therefore, this Court can exercise the jurisdiction. The Defendants are trying to confuse the issue, while considering the Application under Clause 12 of the Letters Patent by raising points under Section 45 of the Mediation and Conciliation Act. Both are to be considered in a different perspective at different stage and not to be confused as one having the controlling power over the other. In other words, foreign laws issues involved in this case is to be decided as questions of fact initiating a trial - Since the determination of the validity of the Arbitration Agreement involves number of questions of law, which has to be proved as questions of fact, the Plaintiff cannot be non-suited at this juncture. Revocation of leave is a drastic remedy, which can be granted only in exceptional circumstances.
The crux of the issue in the main Suit is as to whether the Settlement Agreement dated 30.03.2013, in effect stipulates for resolving disputes between the parties to such Agreement through Arbitration proceedings and whether the recitals of such Agreement in an unequivocal terms and without any ambiguity make the parties for such reference with certainty. Certainly, consideration of such issue is possible only after conducting the trial, as it involves not only the interpretation of several clauses relating to the present dispute in all the three Agreements and also the appreciation of the actual intention of the parties while entering into those Agreements through their oral testimonies. Therefore, it requires a trial and consequently, the merits and contentions raised by both parties in respect of the disputed reference to the Arbitration under the Settlement Agreement dated 30.03.2013, cannot be gone into at this juncture.
A clear or specific indication regarding the Arbitration Agreement between the parties must be made available in an Agreement itself. On the other hand, if such an Arbitration Agreement is to be inferred by reference from the earlier Agreements, such inference cannot be made as a matter of course automatically, as the burden is on the party who seeks for such inference, which he has to discharge and establish the same before the Court by adducing evidence in support of such claim.
This Court finds that the Defendants have not made out a case for revoking the leave already granted - application dismissed.
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2015 (8) TMI 1452
Suit for Specific Performance - Whether the opinion recorded by the trial Court that the suit agreement being unregistered document, relief of specific performance cannot be granted to the plaintiff, is correct?
Held that:- The plaintiff has been non-suited only on the ground that the suit agreement being unregistered document was inadmissible in evidence and, therefore, decree of specific performance on the basis of such agreement cannot be granted. This view taken by the Trial Court is in the teeth of the exposition of the Supreme Court in the case of S. Kaladevi Vs. V. R. Somasundaram and others [2010 (4) TMI 1184 - SUPREME COURT], where it was held that when an unregistered document is tendered in evidence, not as evidence of a completed sale, but as proof of an agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the Act of 1908 - the said opinion of the trial Court reversed and as a necessary corollary decree the suit in its entirety by granting relief of specific performance to the appellant as prayed.
Whether the respondents/ defendants can be permitted to question the finding of fact recorded by the trial Court on other issues? - Held that:- In absence of challenge to the said findings, it is not necessary for us to examine the matter any further. In any case, the finding of fact recorded by the trial Court on the said two crucial issues, is founded on cogent evidence as analyzed by the trial Court including the defendants having questioned the agreement only on the quantum mentioned therein and not on any other count. Accordingly, those findings will have to be affirmed and it will have to be held that those issues have been correctly answered by the trial Court.
The suit deserves to be decreed in its entirety by granting relief of specific performance as claimed by the appellant/plaintiff - the impugned judgment and decree passed by the trial Court is quashed and set aside.
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2015 (8) TMI 1451
Additions u/s 43B - Employee’s Contribution to Provident Fund - deposit of the contribution beyond the due date of filing of return - Held that:- the issues stand covered by the judgment of the jurisdictional Court in C.I.T. vs. Vijay Shree [2011 (4) TMI 63 - ITAT KOLKATA] and [2011 (9) TMI 30 - CALCUTTA HIGH COURT] - Decided in favor of assessee.
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2015 (8) TMI 1450
Deduction u/s 80P(2)(a)(i) - rejection of claim on the ground that the assessee was a cooperative bank, and hence, not entitled to claim deduction by virtue of sec. 80P(4) - Held that:- AO could not point out any specific error in the above quoted orders of the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) has allowed the claim of deduction under sec. 80P(2)(a)(i) of the Act by following the decisions 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 hereby confirmed and the ground of appeal of the Revenue is dismissed.
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2015 (8) TMI 1449
Personal and official bias - the allegation against the petitioners and others is that they along with other people unauthorizedly entered into the railway station, squatted on the tracks causing detention for 15 minutes by shouting slogans in support of their demands, such as to repair the railway route as announced in the Budget and non plying of trains between Nagercoil and Coimbatore - whether there would occur a real likelihood or reasonable suspicion of it when an officer, who registers the case, proceed to investigate the case?
Held that:- Section 145 of Railways Act, 1989 deals with nuisance, for which punishment of a fine of ₹ 100/- has been prescribed. Section 147 deals with trespass, which prescribes a punishment of imprisonment for a term which may extend to six months or fine of ₹ 1,000/- or both has been prescribed. As per the proviso, there shall not be any punishment less than ₹ 500/- except for special and adequate reasons - Similarly, Section 174 deals with the obstructing the running of a train for the said offence. For the said offence a maximum punishment of 2 years has been prescribed. Under Section 179 of the Railways Act, 1989, for the offences as mentioned above, an authorised officer can arrest a person concerned even without warrant.
Though the learned counsel appearing for the petitioners submitted that there is an element of bias, this Court, on facts, does not find the submission warranting acceptance. Admittedly, the respondent, who gave the complaint, is the authorised officer, who did the investigation. He merely received the statements from the officials and filed the complaint. He is not an eye witness to the occurrence alleged. The earlier complaint was closed only for the offence under Section 151 Cr.P.C. Therefore, this court does not find any double jeopardy or bias, more so, when the power is available to the respondent to initiate action.
However, this Court finds considerable force in the other submission made. The authorised officer merely recorded the statement of few railway officials. What was required was an inquiry into the alleged offence. The said inquiry is for the purpose of the authorised officer being satisfied that an offence has been committed. Admittedly, neither the petitioners nor the other accused have been called for inquiry. Such a power is very much available to the respondent, including the power of arrest under Section 180 and further inquiry under Section 180-B of the Act. Unfortunately, no such attempt has been made.
This Court is of the view that in the interest of justice, the proceedings pending on the file of the learned Judicial Magistrate No.1, Nagercoil, is required to be quashed - Petition allowed.
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2015 (8) TMI 1448
TPA - selection of comparable - Held that:- The assessee is a resident private limited company as engaged in the business of providing software development services to its AEs thus companies functionally thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Foreign exchange gain on realization of consideration for rendering software development services is to be regarded as part of operating revenues. Assessing Officer/TPO are directed to verify this aspect as to whether the foreign exchange gain is on account of realisation of consideration and if that is so, to then consider the same as operating in nature.
Working Capital Adjustment - Held that:- We deem it fit to remand the matter back to the file of the TPO to examine and verify the assessee's claim that the amount of receivables and payables have been taken incorrectly in computing the working capital adjustment and to recompute the working capital adjustment accordingly, if so required, after affording the assessee adequate opportunity of being heard and to file details/submissions required in this regard.
Risk Adjustment - Held that:- the assessee has raised the issue of grant of market risk adjustment. However, during the proceedings before us, it was admitted that the assessee apart from putting forth this claim has not quantified the adjustment to be granted in this regard. In view of this, this plea of the assessee is hypothetical in nature and not maintainable and is accordingly dismissed.
Grant of benefit of deduction of 5% in computing the ALP of the Transactions - Held that:- The new section 92C(2A) of the Act mandates that if the AM price falls beyond +/- 5% from the price charged in the international transactions, then the assessee does not have any option as referred to in Section 92C(2) of the Act. Thus, as per the above amendment, it is clear that +/- 5% variation is allowed to justify the price charged in the international transactions and not for adjustment purposes. The aforesaid amendment has settled the issue and accordingly the 5% benefit is not available to the assessee. Consequently, Ground No.2 raised by the assessee is dismissed.
Charging of Interest u/s.234B - Held that:- The charging of interest The charging of interest is consequential and mandatory and the Assessing Officer has no discretion in the matter. This proposition has been upheld in the case of CIT v. Anjum 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.
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2015 (8) TMI 1447
Computing deduction u/s. 10A - Exclusion of internet charges and travelling expenses incurred in foreign currency from export turnover without reducing the same from the total turnover - Held that:- CIT(Appeals) correctly following the decision of the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd.[2011 (8) TMI 782 - KARNATAKA HIGH COURT ] held that whatever is excluded from the export turnover, has also to be excluded from the total turnover.
TPA - ALP determination - comparable selection - Held that:- Exclusion of companies unmatched with assessee's transaction of rendering software development services.
Advertisement expenses apportioned - provision of marketing support services by the Bangalore Non-STP unit to NVIDIA Singapore - Held that:- Non-STP unit of the assessee rendered services exclusively to NVIDIA Singapore and none of the other STP-units had the benefit of those services. This aspect has not been considered by the CIT(A) at all. On the other hand, the CIT(A) as well as the AO proceeded on the assumption that non-STP unit as well as STP units in India would benefit from the advertisement done for NVIDIA Singapore. It is seen that NVIDIA Singapore has acknowledged that software products and advertisement is attributable to those products. Non-STP units of assessee are engaged in software development activities and do not engage in sales or marketing activities or software product. In these circumstances, we find merit in the contention of assessee that advertisement expenses apportioned by the AO and confirmed by the CIT(A) was without any basis. The said addition is accordingly directed to be deleted.
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2015 (8) TMI 1446
Deduction u/s 80IA denied - the assessee had acted only as a contractor - Held that:- According to us the Revenue Department is expected to examine few things to ascertain whether the assessee is a developer or a contractor such as the utilization of funds, development of project, the nature of venture, the substance of the transaction etc.
The provisions of section 80IA also require a finding to the effect that whether the assessee as an enterprise carried out the business of developing a project or the assessee has developed, maintain and also operating the project. The provisions are applicable in respect of the project which is related to development of infrastructure facility. One of the primary requirement is that an assessee is entitled for the claim of deduction if he has developed the project.
The assessee is expected to shoulder out the investment and also subjected to technical risk in respect of the work executed. Such a developer is liable for liquidated damages if failed to fulfill the obligation laid down in the agreement. To keep brevity in mind it is not advisable to discuss all the parameters in this regard but to leave it to the Revenue authorities to examine the issue in its entirety so as to arrive at the correct judicial decision. It is also worth to mention that the guidelines enumerated in the case of ABG Heavy Industries Ltd. (2010 (2) TMI 108 - BOMBAY HIGH COURT) are required to be followed while deciding this issue.
Revision u/s 263 - this is not the case of the assessee that on one hand the Assessing Officer has rightly granted the deduction under section 80IA(4) of I.T. Act and on the other hand there was a change of opinion of learned Commissioner while passing the order under section 263 of I.T. Act. Therefore, after recording these reasons, we are of the conscientious view that the issue should be re-examined by the Assessing Officer - Decided in favour of assessee for statistical purposes
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2015 (8) TMI 1445
Addition on account of interest payment on borrowed funds - Allowable busniss expenditure - deduction of the interest paid on borrowings u/s 57(iii) - Held that:- CIT(A) had passed the order in line with the settled principle of law that the Assessing Officer cannot step into shoes of the assessee and decide as to how which of the expenditure can be incurred. Once the expenditure has been incurred wholly or exclusively for the business purposes, no disallowance can be made. The ld. Departmental Representative had not filed any material contradicting the findings reached by the CIT(A). Further, we notice that no such additions were made either in the immediate preceding year or succeeding year by the Assessing Officer. In these circumstances, we uphold the order of CIT(A) and dismiss the appeal filed by the Revenue.
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2015 (8) TMI 1444
Channel payment fees paid to cable TV operators/DTH providers - addition u/s.40(a)(ia) - whether TDS to be deducted u/s 194C or u/s 194J - Held that:- The issue of channel payment fees paid to cable TV operators/DTH providers has been decided by the Tribunal in the case of NGC Networks(I)(P) Ltd.[2014 (11) TMI 484 - ITAT MUMBAI] amount not taxable in India in the hands of SSA either u/s.9(1)(vi) or 9(1)(vii) as per the legal position prevalent at the relevant time and the assessee therefore was not liable to deduct tax at source from the said amount paid to M/s. SSA and there was no question of disallowing the said amount by invoking the provisions of sec.40(a)(i) - law can not compel a person to do something which is impossible to perform.
It is not the case of the Revenue that the issue of applicability of section 194J was already considered in the case of the Assessee. Therefore, when the Assessee has deducted the tax as per provisions of Section 194C which is a bonafide decision of assessee keeping in view the nature of payments and facts of the case, then, the Assessee was not supposed to foresee the subsequent retrospective amendment in the statute to be held liable to tax deduction at source under the provisions of section 194J - Decided in favor of assessee.
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2015 (8) TMI 1443
Exemption from Union Taxation - Entitlement for registration u/s 12A - status of ‘ADDA’ being constituted under section 11 of the West Bengal Town and Country (Planning & Development) Act, 1979, could “either be a Local Authority or a Government Department or Agency” or it was not a ‘corporate body’ - Held that:- We find that the Assessing Officer has relied on the decision of the Hon’ble Supreme Court in the case of Adityapur Industrial Area Development Authority –vs.- Union of India [2006 (5) TMI 61 - SUPREME COURT] wherein held that the assessee could not claim exemption from Union Taxation under Article 289(1) of the Constitution of India nor it was possible to hold that the income derived by the assessee was the income of the State Government
Thus observing that the circumstances were similar in the present cases, but he has not considered the above noted relevant statutory requirement s applicable in the case of assessee. We, therefore, set aside the order of ld. CIT(Appeals) for all the three years and restore the matter back to the file of Assessing Officer for de novo consideration of the entire issues - Decided in favour of assessee for statistical purposes.
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2015 (8) TMI 1442
Revision u/s 263 - scope of revision - fresh proceedings under section 143(3) - Held that:- When the order passed by the AO under section 143(3) is set aside by the Ld. CIT by exercising the power under section 263 with a direction to the AO to re-do the assessment afresh, the scope of such set aside proceedings is limited to the issues directed to be considered by the Ld. CIT in his order under section 263.
AO thus is required to consider in the fresh proceedings under section 143(3) read with section 263 only such issues over and above the issues already considered in the original assessment which continues to subsist to the extent of income as determined by the AO in the original assessment.
Since the appeal filed by the assessee before the Ld. CIT(A) against the order originally passed by the AO under section 143(3) was in respect of its grievance as arising from the income determined in the said assessment, the same, in our opinion, had not become infructuous as a result of order passed by the CIT u/d 263 and the Ld. CIT(A) ought to have disposed of the same on merit. - set aside the impugned order of the Ld. CIT(A) and remit the matter back to him with a direction to dispose of the appeal of the assessee filed against the order of the AO dated 31.12.2010 passed under section 143(3) on merit after giving the assessee a proper and sufficient opportunity of being heard - Appeal of the assessee is treated as allowed.
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2015 (8) TMI 1441
Revision u/s 263 - unexplained deposits of the assessee u/s 69 - Held that:- Assessee has not filed any evidence to the fact that the assessee was carrying on retail business in steel. When asked by the Bench, he expressed his inability to do so. In absence of the same, source of deposits in the bank account could not be established by the assessee to be out of carrying on retail business in steel by bringing any material on record, the Principal Commissioner of Income Tax was fully justified in treating the entire deposits made in cash as unexplained deposits of the assessee under sec. 69
It is not the case of the Authorized Representative of the assessee that while making the deposits in the bank, the assessee had utilized the withdrawals made on earlier occasions. Therefore, we find no good reason to interfere with the order of the Principal Commissioner of Income Tax - Decided against assessee.
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2015 (8) TMI 1440
Levy of Penalty u/s 271(1)(c) - non specification of charge - Held that:- The assessee has made an agreement for no penalty, and at the same time given an explanation for the same which is duly substantiated by the Report of the Inspector of the Department itself. Therefore even by the admission / standards of the CIT(A) also, it is not a fit case for levy of penalty.
In the instant case there is no material on record to show that the assessee had concealed the income or had furnished inaccurate particulars of his income. Decision in the case of Careers Education & Infotech (P) Ltd.'s case (2011 (3) TMI 602 - PUNJAB AND HARYANA HIGH COURT)is squarely applicable to the facts of present case. Considering the entire facts and circumstances of the present case, hold that it is not a fit case for levy of penalty u/s 271(1)(c) - Decided in favour of assessee
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2015 (8) TMI 1439
Maintainability of petition - Jurisdiction of respondent to issue summons - Prevention of Money-Laundering Act, 2002 - Held that: - The appellant has no case that the respondent is not a statutory authority conferred with the power of investigation under the provisions of Prevention of Money-Laundering Act, 2002. His only objection is that the facts of the case would not attract the provisions of Prevention of Money-Laundering Act as it stood originally.
The matter involves a core question as to whether the relevant date is the date of acquisition of illicit money or the date on which such money is being processed for projecting it untainted. The question cannot be decided merely on the basis of the affidavit filed by the appellant. The respondent should be permitted to conduct investigation to arrive at a definite finding. The jurisdiction in a case of this nature is a mixed question of law and fact and the same cannot be decided on the basis of half baked materials produced by the appellant.
Petition dismissed being not maintainable.
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2015 (8) TMI 1438
Validity of re-opening of assessment u/s 147 - eligible reasons to believe - Held that:- As pointed out rightly by the ITAT in the impugned order, there was no application of mind by the AO when he issued notice under Section 148 - AO was also not aware that the Assessee had filed a return for the AY in question. No satisfaction was also been recorded by the ACIT. In the circumstances, the conclusion of the ITAT suffers from no legal infirmity. No substantial question of law arises.
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2015 (8) TMI 1437
TPA - exclusion of comparables - functional similarity - Held that:- Assessee a company engaged in the business of providing software design and maintenance service and marketing support had operating revenues, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Exclusion of telecommunication and other expenses incurred in foreign currency from total turnover also while computing deduction u/s. 10A - Held that:- The issue regarding parity between total turnover and export turnover stands already resolved by the Hon'ble jurisdictional High Court in the case of CIT v. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT ]
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2015 (8) TMI 1436
Reopening of assessment - assessee had filed the return of income in the ACIT, Kurnool and notice reveals that it has been issued by the DDIT (Exemptions), Hyderabad - Held that:- As decided in assessee's own case once the jurisdiction is vested with the Kurnool Range, there cannot be framing of assessment or issue of notice u/s. 148 or framing assessment by any other authority than the Kurnool Range. The argument made before us by the Department is devoid of merit. There cannot be one authority for levying of penalty on assessment at Kurnool and another authority for framing assessment. Being so, issue of notice u/s. 148 by the Hyderabad Range of the Department is not correct. As the issue of notice itself is bad in law by the Hyderabad Range of the Department, consequent framing of assessment is bad in law. Being so, we quash the reopening of assessment for all the above four assessment years. - Decided in favour of assessee.
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2015 (8) TMI 1435
Permanent injunction restraining the defendants, his servants and agents from disturbing the peaceful possession and enjoyment of the suit schedule property - Held that: - It is not disputed that Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration of title to the already existing relief for grant of permanent injunction.
It is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration of title first arose on 16th May, 1990 when in the very first written statement the defendant had pleaded, in para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with possession over the suit property.
Doctrine of relation back insofar as it applies to amendments made under Order VI Rule 17 of the Code of Civil Procedure - Held that: - It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away.
Appeal dismissed.
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