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2010 (11) TMI 972 - ITAT DELHI
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... ... ..... r of the assessee. In view thereof, it was mentioned that the AO should allow the assessee to furnish his argument against the working of disallowance done by him in the assessment order. Thereafter, a speaking order should be passed in respect of disallowance as may be considered necessary in view of the provisions of section 14A. We find that two more decisions are available in this matter. These are in the case of Godrej & Boyce Manufacturing Co. Ltd. Vs. DCIT 2010-TIOL-564-HC-MUM-IT dated 12.8.2010 and CIT Vs. Chemical & Metalurgical Co. Ltd. in ITA No. 803 of 2008 dated 15.7.2008 (Del). 2.2 Having considered the decision of the Tribunal in assessee’s own case, we think it fit to restore the matter to the file of the AO to pass a fresh order taking into account the facts of the case and various cases mentioned above. 3. In the result, the appeal is treated as allowed for statistical purposes. This order was pronounced in the open court on 19 November, 2010.
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2010 (11) TMI 971 - CESTAT CHENNAI
Predeposit - clinkers manufactured as an intermediate product - captive consumption - N/N. 67/95-CE dt. 16.3.95 - Held that: - identical issue in the case of same assessees had come up for consideration before the Tribunal and vide Stay Order No. No.651, 652/09 dt. 10.7.09, predeposit has been waived and recovery stayed - we grant the prayer for waiver and stay recovery of the amounts in question during pendency of the appeal - appeal allowed - decided in favor of appellant.
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2010 (11) TMI 970 - ITAT DELHI
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... ... ..... dhoc disallowance for the reasons that details of expenses with bills and vouchers were not produced before him. The same were produced before the Ld. Commissioner of Income Tax (Appeals) and the same were sent to the Assessing Officer. The Assessing Officer had not made any comment in this regard. Under the circumstances, the vouchers etc. are now available and Assessing Officer’s disallowance solely based on lack of evidence cannot be sustained. Hence, we do not find any infirmity in the order of the Ld. Commissioner of Income Tax (Appeals) on this account and we affirm the same. In the result, revenue’s appeal is dismissed. ASSESSEE’S CROSS OBJECTION 12. Before us ld. counsel of the assessee submitted that he shall not be pressing the Cross Objection, as such the cross objection is dismissed as not pressed. 13. In the result, the appeal by the revenue and the cross objection by the assessee are dismissed. Order pronounced in the open court on 12/11/2010.
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2010 (11) TMI 969 - ITAT AHMEDABAD
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... ... ..... n was entered. Similarly, the buills of Rajesh N Zevari are enclosed at paper book at page 8-9. It is allegation of the Revenue that these documents were not' produced before the Assessing Officer at the stage of assessment, accordingly, these documents require verification. Even the assessee could not furnish the correct address of the Broker to confirm these transactions. In view of these facts and in the interest of justice we are of the view that the entire issue requires re-verification at the level of the Assessing Officer, without any embargo, hence, this issue in entirety is set aside to the file of Assessing Officer. Similar are the facts in ITA No.3323/Ahd/2008, where the assessee’s wife has entered into similar transactions, the facts being exactly identical, this appeal also requires setting aside to the file of Assessing Officer. 6. In the result, Revenue’s appeals are allowed for statistical purposes. Order pronounced in Open Court on 11/11/2010
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2010 (11) TMI 968 - ITAT MUMBAI
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... ... ..... still the principles of mutuality would apply. The relevant observations of the Court in this regard were as follows “Apart from that even assuming that these Government Notifications were applicable if the society could not have charged excess amount it will have to be refunded to the members. A member is not prohibited from gifting any amount to the society for the objects of the society. The principle of mutuality would not cease on account of these aspect. At the highest, authorities under the Co-operative Societies Act and Rules if any action is taken may direct an additional amount to be refunded. In our opinion, therefore, contribution by way of non occupancy charges, principle of mutuality would apply and consequently,” In view of the aforesaid decisions, we do not find any merit in this appeal by the revenue and the same is dismissed. 6. In the result, the appeal of the revenue is dismissed. Order pronounced in the open court on the 19thday of Nov 2010.
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2010 (11) TMI 967 - SUPREME COURT
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... ... ..... ourt to consider and take a decision one way or other as per the mandate of the said provision. 14) For the reasons aforesaid, the impugned judgment of the High Court is set aside. We make it clear that we have not gone into the merits as to whether application for reception of additional evidence under Order 41 Rule 27 of the CPC should be allowed or not, which shall be decided by the High Court in accordance with law. We also make it clear that we have not gone into the merits of the claim made by both parties except the reasons indicated in the earlier paragraphs. Considering the facts and circumstances of the case, more particularly, the issue is pending from 1975, we request the High Court to restore MFA No. 537 of 1995 and Cross Appeal on its file and dispose of the same at an early date preferably within a period of six months from the date of receipt of copy of this judgment. Civil Appeals are allowed to the extent indicated above, however, with no order as to costs.
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2010 (11) TMI 966 - ITAT DELHI
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... ... ..... as been stated above, we hold that salary income of ₹ 56,000/- which accrued to the assessee outside India should be excluded from his total income. 8. We have carefully considered the submissions and perused the records. we find that it is undisputed that assessee is an NRI and he had received income from foreign company for the services rendered outside India. Just merely because he has instructed the salary to be transferred to his FCNR account maintained with the HSBC account, Barakhamba Road, Connaught Place, New Delhi can not bring the amount to taxation under the Indian Income Tax Act. This view is clearly supported by the tribunal’s decision as above. Hence, respectfully following the precedent as above, we uphold the order of the Ld. Commissioner of Income Tax (Appeals) and decide the issue in favour of the assessee and against the revenue. 9. In the result, the appeal filed by the revenue is dismissed. (Order pronounced in the open court on 30.11.2010.)
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2010 (11) TMI 965 - ITAT LUCKNOW
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... ... ..... le of the Assessing Officer for fresh adjudication in accordance with law. 8. We have considered the rival submissions and carefully gone through the material available on the record. In the present case, it is noticed that the Assessing Officer did not consider the claim of the assessee for exemption u/s 10(34) and 10(38) of the Act. It also appears that the learned CIT (A) did not provide opportunity of being heard to the Assessing Officer while deciding the issue relating to the exemption u/s 11 of the Act in favour of the assessee. We, therefore, considering the totality of the facts, deem it appropriate to set aside the impugned order passed by the learned CIT (A) and remand the case back to the file of the Assessing Officer for fresh adjudication in accordance with law after providing due and reasonable opportunity of being heard to the assessee. 9. In the result, both the appeals are allowed for statistical purposes. (Order pronounced in the open court on 23/11/2010 )
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2010 (11) TMI 964 - ITAT AHMEDABAD
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... ... ..... essee is as regards to the order of CIT(A) confirming the disallowance of expense at 20 . For this, assessee has raised the following ground No.4 - “4. On the facts and in the circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of the Assessing Officer in making disallowance of ₹ 32,910/- being 20 of other expenses.” 13. We have heard the rival contentions and going through the facts and circumstances of the case. We find that the Assessing Officer disallowed 20 out of other expenses on account of personal in nature. Before the CIT(A) assessee has not pressed this issue and now before us the same has not been pressed by assessee. Accordingly, this issue of assessee’s appeal is dismissed. 14. In the result, Revenue’s appeal is dismissed and that of assessee’s appeal is partly allowed for statistical purposes. Order pronounced in Open Court on 19/11/2010
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2010 (11) TMI 963 - ITAT MUMBAI
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... ... ..... or tax deducted at source or penalty, interest shall be payable for the period starting from the date of payment of such tax or penalty and ending on the date of grant of the refund. The Hon’ble Madras High court in the case of Cholamandalam Investment & Finance Co. Ltd., 166 Taxman 132 (Mad.), on which reliance placed by the assessee before the CIT(A), held that whenever the assessee is entitled to refund, there is statutory liability upon the revenue to pay the interest on such refund on general principles and to pay interest on sum wrongfully retained. The CIT(A) after considering all the statutory requirements, as mentioned above only, directed the AO to allow interest u/s 244A to the assessee. Therefore, we find no infirmity in the order of CIT(A) and the same is hereby upheld on this issue and we dismiss the ground raised by the revenue. 6. In the result, the appeal of the revenue is dismissed. Pronounced in the open court on this 12th day of November, 2010.
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2010 (11) TMI 961 - ITAT AHMEDABAD
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... ... ..... ITA No.1808/Ahd/2007) 15. Apropos ground No.1, regarding freight & octroi, on identical facts a view has already been taken in favour of the assessee by rejecting the Revenue’s ground in the past, therefore, we have no reason to take any other view but to follow the same for the Assessment Year 2002-03 (Revenue’s appeal-supra). Consequently, for this year as well Revenue’s ground is hereby dismissed. 16. Apropos ground No.2, regarding the issue of suppressed conversion charges, the same is covered by our decision containing in paragraph No.10 supra i.e. Revenue’s appeal on ground No.4 for Assessment Year 2002-03 and the decision of the Tribunal for A.Y. 2003-04 order dated 31.12.2009 already cited above, therefore restored back, hence to be treated as partly allowed for statistical purposes. 17. In the result, both the appeals of the Revenue are partly allowed in the terms indicated. Order signed, dated and pronounced in the Court on 19/ 11 /2010.
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2010 (11) TMI 960 - ITAT BANGALORE
Disallowance of bad debts/irrecoverable balance written off - allowable business expenditure or not? - As contended that these are expenses incurred in the normal course of business and the same is allowable as bad debts or alternatively, as business expenditure - suppliers did not refund the advance paid to them and the amount could not be recovered as they have failed in the business or have closed shutters - HELD THAT:- All the above payments are made in the ordinary course of its business. Normal business of the assessee involves many such risks and expenditure which are unavoidable and has to be incurred by all businessmen in their business. All such expenditure is allowable under section 28 (i) of the IT Act - From the reading of the provisions of Section 28, it is very clear that what law envisages to tax is only the profits or gains of the business. In arriving at the profits or gains of the business, all legitimate and normal expenditure of the business are to be deducted unless otherwise specifically provided in the IT Act - the order of the CIT (A) is in accordance with law and no interference is called for.
The Hon’ble Supreme Court in HASIMARA INDUSTRIES LTD.[1998 (5) TMI 7 - SUPREME COURT] held that assessee’s business was of manufacture and sale of tea and it was not engaged in cotton manufacturing business at all; that while it intended to enter into cotton manufacturing business it did not set up a cotton mill, but obtained operating rights from another company under the leave and licence agreement for the purpose of acquiring the profit making apparatus for a duration of 3 years or a little more; that the amount of advance in a sum of ₹ 20 lakhs was given not for its own purpose by way of business expenditure for modernizing the mill, but as capital to the lessor who in turn had to modernize the mill. In the resolutions made by the board of directors it was clear that the transaction entered into was not in the nature of a loan transaction or money-lending transaction and thus the loss suffered by the assessee was a capital loss and hence, the amount could not be deducted from the assessee’s income as business loss (decision thus relied on by the learned DR is distinguishable on the facts) - both the grounds dismissed.
Disallowance of bonus paid to shareholders - Whether against the provisions of section 36 (1) (ii) of the Act? - HELD THAT:- One of the conditions mentioned in section 36 (1) (ii) is that the amount payable to employees as bonus or commission should not otherwise have been payable to them as profit or dividend. The plain reading of the clause means that the profits of a business will not be allowed to be dwindled by merely describing the payment as bonus or commission, if the payment is in lieu of dividend or profits. This is provided to check the employer from avoiding tax by distributing his/its profits by way of bonus among the member employees of his/its concern, instead of distributing the sum as dividend or profits. However, the sum paid as bonus or commission is not affected by this condition, if the same is not otherwise payable as profit or dividend - the bonus will not be allowed only if such sum paid to him or her is otherwise payable to him or her as profits or dividends. In the present case, the bonus is paid for the services of the working directors and the same cannot be disallowed just because they hold a few shares in the assessee company. They will not be entitled to such sum in entirety as dividends or profits in case such sum is not paid as bonus to them. Whatever dividend if any, payable to them will be only a fraction of such sum - this ground also dismissed.
Appeal filed by Revenue dismissed.
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2010 (11) TMI 959 - ITAT AHMEDABAD
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... ... ..... nery, was also not debited in the profit and loss account. No disallowance thereof can be made even if no TDS is made. 12. The next addition is u/s 40A(3) of ₹ 26,404/- being cash payment made to C & F agent. The fact that no payment is above ₹ 20,000/-, addition has been incorrectly made. Therefore, addition is deleted.. 13. Ground No.4 relates to claim of depreciation. Provisions of Sec.32(iia) relating to addition depreciation has come in the statute w.e.f. 1.4.2005. Since the assessee is entitled for depreciation in Asst. Year 2004-05 meaning thereby that plant and machinery was installed and put to use in Asst. Year 2004-05 i.e. prior to 31.3.2005 then assessee will not be entitled for additional depreciation. This ground is rejected. Accordingly, the appeal of assessee is partly allowed. 14. In the result, the appeal for Asst. Year 2004-05 is allowed and the appeal for Asst. Year 2005-06 is partly allowed. Order was pronounced in open Court on 12.11.10.
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2010 (11) TMI 958 - KERALA HIGH COURT
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... ... ..... im, even if the lease deeds amount to transfer attracting capital gains as found by us, the same is not assessable for the assessment year 1993-94. However, this contention was objected by the learned Standing Counsel for the Revenue by contending that the possession was given based on the original lease deeds and consideration by way of allotment of shares to partners also made in the year 1992-93, and therefore assessment has to be made for the assessment year 1993-94. Since we have not seen copies of the original lease deeds or revised lease deeds, it is for the Assessing Officer to examine as to whether leases have taken effect based on the original lease deeds and if so, he should make assessment for 1993-94, and on the other hand, if subsequent lease deeds were the real transactions, which could be treated as transfer of the immovable property, then to assess the same for the assessment year relevant for the previous year during which revised lease deeds were executed.
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2010 (11) TMI 957 - ITAT DELHI
Deduction u/s 80IC - Eco-Tourism - denial on the ground that hotel of the assessee being simple hotel is not covered by Item No.15 of Schedule XIV of the Act and therefore, not eligible for such deduction - HELD THAT:- From the Section 80IC, and Item No.15 of Part C of the Fourteenth Schedule, it can be observed that what is eligible for deduction is eco-tourism which include inter alia hotels. It has been the contention of the assessee that his hotel is approved by the Government. The hotel cannot be approved by the Government without obtaining No Objection from the Pollution Department. There is no material on record to show that Pollution Department of the Government has not given no Objection to the assessee. If it is so, then, it cannot be said that the assessee is running a hotel which is outside the norms prescribed by the Pollution Department.
If a plain reading is given to Item No.15 reproduced above, then, eco-tourism inter alia include hotels. No material has been brought on record to show that “eco-tourism” status has been granted to any other hotel and which status assessee does not have. If the logic applied by the AO and CIT (A) is made applicable, then, the hotels which are not having the alleged “eco-tourism” status cannot be held to be entitled to deduction u/s 80-IC. If none of the hotels can be granted deduction u/s 80-IC, then, the Item No.15 of Part C of the Fourteenth Schedule will be redundant.
In the absence of definition of “eco-tourism” the hotel as added into the Item No.15 of Part C is to be construed to be hotel situated in the State of Himachal Pradesh or the State of Uttaranchal having a valid licence on the basis of No Objection from Pollution Department which can be treated to be a hotel eligible for deduction u/s 80IC as per provisions of Section 80IC. Therefore, the claim of deduction u/s 80-IC to the assessee is allowed.
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2010 (11) TMI 956 - ITAT CHENNAI
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... ... ..... ered into by assessee’s foreign holding company outside India, the assessee could not produce the entire script of the contract. But the assessee has placed before us the relevant extracts of the contract as communicated by its holding company M/s. Alstom Holdings, France. Those extracts are available at pages 86 to 94 of Vol. II of paper book filed before us. We have considered those extracts while hearing the case. Likewise the ld. standing counsel appearing for the Revenue has relied on the ruling of the Authority for Advance Rulings reported in 238 ITR 296 to buttress his argument that the payments made by the assessee were for technical services. But we find that the said ruling is not applicable to the present case as the said ruling was given in a different context. 12. Now to sum up, we confirm the order of the C.I.T.(Appeals) on the question of TDS and dismiss the appeal filed by the Revenue. 19th. Order pronounced on Friday, the of November, 2010, at Chennai.
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2010 (11) TMI 955 - ITAT MUMBAI
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... ... ..... of trades without submission of PAN card by the clients, non-submission of unique client code details, inspection, execution of option trades, short delivery, margin violation fees. From the very nature of the amounts paid it is palpable that there is no infraction of law by the assessee as contemplated in Explanation to sec. 37(1). It is only a case of certain irregularities committed while carrying on the business in normal course. Various benches of the tribunal have consistently taken view in assessee’s favour in such circumstances. The ld. AR has placed on record copies of such order in Goldcrest Capital Markets Ltd. Vs. ITO (2010) 130 TTJ 446 (Bom.) and Master Capital Services Ltd. Vs. DCIT (2007) 108 TTJ 0389 (Chd.) , etc. In our considered opinion, the learned CIT(A) was justified in ordering for the deletion of this addition. We, therefore, uphold the impugned order. 4. In the result, the appeal is dismissed. Order pronounced on this 4th day of November, 2010.
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2010 (11) TMI 954 - CESTAT CHENNAI
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... ... ..... o make the payment of service tax in time for almost three years from May,1997 to March, 2000. The Ld. Counsel for the assessees pleads financial hardship and also submits that the assessees paid the service tax soon after the partnership firm became proprietorship concern. However, due to belated payment and the absence of sufficient ground to extend protection from imposition of penalty under Section 80 of the Finance Act, 1994, I see no reason to interfere with the impugned order and dismiss the appeal. (Order dictated and pronounced in the open Court)
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2010 (11) TMI 953 - ITAT MUMBAI
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... ... ..... ITR 01 (Del)(SB)/113 ITD 719 & CIT Vs Bajaj Hindustan Ltd in ITA No. 198 of 2009. 19. We find that before the Bombay High Court the following question of law has been raised “Whether in the facts and circumstances of the case and in law the ITAT was right in holding that the interest u/s. 234D cannot be charged in respect of refunds granted prior to 1.6.2003? 20. The Bombay High Court has held as follows “So far as the last question in concerned, kit is seen that the subject provision came on statute book w.e.f. 1.6.2003. If that be so, the said provision does not have retrospective effect. In this view of the matter, we do not see appeal giving rise to any substantial question of law. Appeal is, therefore, dismissed in limini with no order as to costs.” Respectfully following the above, we allow this ground raised by the assessee. 21. In the result, the appeal filed by the assessee is partly allowed. Order pronounced on this 24th day of November, 2010
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2010 (11) TMI 952 - BOMBAY HIGH COURT
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... ... ..... mmissioner of Central Excise, Nagpur v/s. Ultratech Cement Ltd. in Central Excise Appeal No.7 of 2010 decided on 25th October 2010. 4 In the light of the aforesaid decision, the present Appeal is allowed, the impugned order passed by the CESTAT dated 6th November 2008 is quashed and set aside and the matter is restored to the file of CESTAT who will decide the questions raised in this Appeal in accordance with the decision of this Court in the case of Ultratech Cement Ltd. (Supra). 5 The Appeal is disposed of accordingly with no order as to costs.
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