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Showing 161 to 180 of 1817 Records
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2013 (11) TMI 1662
Condonation of delay - the decision in the case of AUTO STORES Versus COMMISSIONER OF CUSTOMS (EXPORT), MUMBAI [2013 (9) TMI 426 - CESTAT MUMBAI] contested upon - Demand of differential duty - notice was issued to re-determine the value of imports in respect of nine Bills of Entry filed and to re-determine the value on the basis of MRP declared by the authorized service centres and to demand differential duty - delay condoned - appeal dismissed.
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2013 (11) TMI 1661
Area under construction, a valid ground for disallowance of the claim of electricity expenses? - Not informing the other Government agencies about actual user of the premises required or not? - HELD THAT -If the premises are being used by the assessee and the assessee is the actual user of the premises and for actual user is paying electricity expenses, then certainly the claim is to be allowed. The premises was being used only for storage purpose, whether it is partly constructed or fully constructed or under construction is insignificant. Merely because the assessee did not inform the other Government agencies about actual user of the premises owned by M/s N.K. Industries is insignificant when one is able to prove that the premises were actually used by the assessee. Decision in favor of assessee.
The assessee had trade transactions with persons to whom advances are made looking to the commercial and business expediency and decide whether to charge interest or not -Interest-free loan to its sister-concern - Interest-free loans have been diverted for giving advantage to related persons/concerns to reduce the income of the assessee - It is an admitted fact that the assessee had received more than ₹ 60 lacs as advance from the customers on which no interest was paid. When to this magnitude on which no interest was payable, the AO was not justified in disallowing interest. HELD THAT - The interest was rightly allowable on the basis of the facts found in the case. Referring the case [2008 (2) TMI 19 - SUPREME COURT], the Tribunal held that the loans given to the sister-concerns were out of the firm's funds and that they were advanced for business purposes. Decision in favor of assessee.
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2013 (11) TMI 1660
Nature of income - business income or capital gain - Held that:- As in the PMS there was no assured guarantee against the loss or degeneration of capital, as per the SEBI guidelines the portfolio manager was authorised to purchase and sale of shares on behalf of the client against the securities after obtaining the written permission, that the portfolio managers were not authorised to undertake purchase/sale of securities that were settled otherwise then by actual delivery of transfer of securities, that they could make investment at their own discretion, that the investment made by the assessee through PMS was meant for maximisation of wealth and not with a view to purchase/sale of shares, that department had not disputed the fact that portfolio managers had the sale and absolute discretion to make investment for and on behalf of the assessee, that assessee had no role to play with regard to making of investment,that the very nature of PMS was that the investment made by the assessee could not be said to be scheme of trading of shares and stock, that the profit was to be assessed under the head Capital Gains.
Considering the above, we are of the opinion that FAA was not justified in holding that share transactions carried out by the assessee through PMS was taxable under the head Business.
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2013 (11) TMI 1659
Issues involved: Challenge to communication directing VAT deduction on gross amount in works contract.
Judgment Summary:
Issue 1: Challenge to communication directing VAT deduction on gross amount
The petitioner challenged a communication directing the deduction of VAT on the gross amount of bills in a works contract. The High Court acknowledged that tax should be paid only on the taxable turnover as per Sections 4 and 5 of the Tripura Value Added Tax. The court quashed the order and directed the assessing officer to assess any tax payable by the petitioner on the value of the property transferred during the works contract execution.
The assessment should align with the observations of the Apex Court in Gannon Dunkerley and Co. Vs. State of Rajasthan and this Court in Biplab Kr. Ghosh Vs. Union of India. The petitioner was instructed to cooperate with the Assessing Officer for timely completion of assessment by 28th February, 2014. Any refundable amount should be refunded with interest as per the provisions of the Tripura Value Added Tax by 30th April, 2013. Both parties were warned to comply with the order promptly, and any delay tactics would result in serious action.
The petitioner was required to appear before the Assessing Authority with a copy of the judgment on 10th December, 2013. The writ petition was disposed of accordingly.
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2013 (11) TMI 1658
Whether the punishment order could be passed by the disciplinary authority in view of the fact that the charge sheet itself has been quashed by the Tribunal on the ground that it had not been approved by the disciplinary authority and in respect of the same, the matter had come to this Court and as explained hereinabove, has impliedly been decided in favor of the respondent vide judgment and order dated 5.9.2013?
Held that: - The order dated 31.7.2012 in our humble opinion is nothing but a nullity being in contravention of the final order of the Tribunal which had attained finality. More so, the issue could not have been re-agitated by virtue of the application of the doctrine of res judicata.
It was not permissible for the appellants to consider the renewal of the suspension order or to pass a fresh order without challenging the order of the Tribunal dated 1.6.2012 and such an attitude tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the court.
It is a settled legal proposition that jurisdiction under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary. Therefore, even if the matter has been admitted, there is no requirement of law that court must decide it on each and every issue. The court can revoke the leave as such jurisdiction is required to be exercised only in suitable cases and very sparingly. The law is to be tempered with equity and the court can pass any equitable order considering the facts of a case. In such a situation, conduct of a party is the most relevant factor and in a given case, the court may even refuse to exercise its discretion under Article 136 of the Constitution for the reason that it is not necessary to exercise such jurisdiction just because it is lawful to do so.
The appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules.
Appeal dismissed - decided against appellant.
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2013 (11) TMI 1657
Issues Involved:
1. Addition of unexplained investment.
2. Deletion of additions by CIT(A).
3. Treatment of income from other sources.
4. Treatment of receipts from civil contract works.
5. Accretion of advances.
6. Unexplained investment in fixed deposits.
7. Unexplained investment in land transactions.
8. Addition based on unsigned MOU.
Summary:
1. Addition of Unexplained Investment:
- ITA No.914/Hyd/2011 (AY 2002-03): The assessee contested the addition of Rs. 25 lakhs as unexplained investment. The ITAT noted the lack of evidence to prove the source of the loan and remitted the issue back to the Assessing Officer (AO) for fresh consideration.
- ITA No.915/Hyd/2011 (AY 2004-05): Similar issue with Rs. 1,27,00,000 and Rs. 22,80,000 added as unexplained investments. The ITAT remitted the issue back to the AO for fresh consideration.
- ITA No.916/Hyd/2011 (AY 2005-06): Rs. 1,46,00,000 added as unexplained investment. The ITAT remitted the issue back to the AO.
- ITA No.1052/Hyd/2011 (AY 2006-07): Rs. 10,24,033 added as unexplained investment. The ITAT upheld the CIT(A)'s decision.
- ITA No.1053/Hyd/2011 (AY 2007-08): Rs. 80 lakhs and Rs. 15,63,500 added as unexplained investments. The ITAT remitted the issue back to the AO for fresh consideration.
2. Deletion of Additions by CIT(A):
- ITA No.900/Hyd/2011 (AY 2003-04): The CIT(A) deleted the addition of Rs. 23,61,130 and Rs. 29,65,279. The ITAT upheld the CIT(A)'s decision.
- ITA No.901/Hyd/2011 (AY 2004-05): The CIT(A) deleted the addition of Rs. 17,35,173. The ITAT upheld the CIT(A)'s decision.
- ITA No.468/Hyd/2012 (AY 2008-09): The CIT(A) deleted the addition of Rs. 13,81,00,000. The ITAT upheld the CIT(A)'s decision.
3. Treatment of Income from Other Sources:
- ITA No.900/Hyd/2011 (AY 2003-04): The AO treated Rs. 32,23,129 as income from other sources. The CIT(A) and ITAT found it to be from civil contract works and upheld the assessee's treatment.
4. Treatment of Receipts from Civil Contract Works:
- ITA No.900/Hyd/2011 (AY 2003-04): The AO treated Rs. 32,23,129 as income from other sources. The CIT(A) and ITAT upheld the assessee's treatment of the amount as receipts from civil contract works.
5. Accretion of Advances:
- ITA No.900/Hyd/2011 (AY 2003-04): The AO added Rs. 23,61,130 as accretion of advances. The CIT(A) deleted the addition, and the ITAT upheld the CIT(A)'s decision.
- ITA No.901/Hyd/2011 (AY 2004-05): Similar issue with Rs. 17,35,173 added as accretion of advances. The CIT(A) deleted the addition, and the ITAT upheld the CIT(A)'s decision.
6. Unexplained Investment in Fixed Deposits:
- ITA No.1052/Hyd/2011 (AY 2006-07): Rs. 1 lakh added as unexplained investment in fixed deposits. The ITAT upheld the CIT(A)'s decision.
7. Unexplained Investment in Land Transactions:
- ITA No.1053/Hyd/2011 (AY 2007-08): Rs. 90 lakhs added as unexplained investment. The ITAT remitted the issue back to the AO for fresh consideration.
8. Addition Based on Unsigned MOU:
- ITA No.468/Hyd/2012 (AY 2008-09): The AO added Rs. 13,81,00,000 based on an unsigned MOU. The CIT(A) deleted the addition, and the ITAT upheld the CIT(A)'s decision.
Conclusion:
- Assessee's appeals for AY 2002-03, 2004-05, 2005-06, and 2007-08 were partly allowed for statistical purposes.
- Revenue's appeals for AY 2003-04, 2004-05, and 2008-09 were dismissed.
- Assessee's appeal for AY 2006-07 was dismissed.
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2013 (11) TMI 1656
Disallowance made under section 14A - Held that:- Since the investments in shares of group concerns are within the course of trading activities and out of commercial expediency and the decision of the Hon’ble Supreme Court in the case of S.A.Builders (2006 (12) TMI 82 - SUPREME COURT ) is applicable to the assessee, the provisions of section 14A are not applicable.
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2013 (11) TMI 1655
Revision u/s 263 - deductions for premium paid on Keyman Insurance Policies - CIT exercising power under Section 263 held that deduction could not be allowed on premium paid to secure the lives of parties. The ITAT has set aside this order - Held that:- Similar issue is allowability of premium paid on lives of partners under Keyman Insurance Policy arose before the Hon’ble Bombay High Court in CIT Vs. B.N. Exports [2010 (3) TMI 186 - BOMBAY HIGH COUR] and the said expenditure has been allowed. In view of the above said judicial precedents on the issue, the order of the Assessing Officer in allowing the claim of the assessee was a plausible view and the said view is not open for review by the CIT by way of invoking the jurisdiction under section 263 of the Act
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2013 (11) TMI 1654
Transaction of share - Nature of income - LTCG or business income - Held that:- When in the earlier assessment order i.e for the Assessment Years 2004-05 and 2005-06 the same were treated as investment in shares and the Assessing Officer accepted the same as investment in shares, no error has been committed by the ITAT as well as the CIT(A) in deleting the addition made by the Assessing Officer in treating it as business income for the purpose of short term capital gain and long term capital gain.
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2013 (11) TMI 1652
Issues involved: Application for waiver of Cenvat credit amount imposed u/r 14 of Cenvat Credit Rules, 2004 read with Section 11A (2) of the Central Excise Act, 1944 along with interest.
Summary:
Issue 1: Waiver of Cenvat credit amount
The applicant filed an application for waiver of Cenvat credit amount of &8377; 71,45,447/- imposed u/r 14 of the Cenvat Credit Rules, 2004 read with Section 11A (2) of the Central Excise Act, 1944 along with interest. The Ld. A.R. for the Revenue reiterated the findings of the Ld. adjudicating authority. The Tribunal, after hearing both sides and perusing the records, noted that the demand was beyond the normal period of limitation. The Tribunal has consistently allowed petitions unconditionally in cases where the demand is for an extended period of limitation and the issue involved is availment of cenvat credit on specific items. In this case, the applicant was directed to make a pre-deposit of 25% of the Cenvat Credit amount within eight weeks. Upon compliance, the balance amount of dues adjudged would be waived, and recovery stayed during the appeal's pendency.
Conclusion:
The Tribunal directed the applicant to make a pre-deposit of 25% of the Cenvat Credit amount within eight weeks and report compliance by a specified date. Upon compliance, the balance amount of dues adjudged would be waived, and recovery stayed during the appeal's pendency.
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2013 (11) TMI 1651
Disbursement of tax deducted at source (for short `TDS') to the decree-holders - Held that:- Perusal of relevant provisions of Land Acquisition Act and Income Tax Act and law laid down in aforesaid judgments, it is clear that no tax is to be deducted at source from compensation awarded in lieu of acquisition of agricultural land. In respect of 'interest' it has to be seen whether interest is a part of compensation. If answer is in affirmative then tax cannot be deducted at source. If,however, it is for delay in making payment it does not form part of compensation and tax may be deducted at source.
Admittedly, in the instant case the land was agricultural land and enhanced compensation and interest was awarded under Section 28. Thus, in view of specific finding of Hon'ble Supreme Court in Ghanshyam's case (2009 (7) TMI 12 - SUPREME COURT) that amount awarded under Section 28 of the Land Acquisition Act is accretion in value of land and interest therein forms part of compensation; income tax cannot be deducted at source since land acquired is agricultural land.
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2013 (11) TMI 1650
Disallowance of interest expenses - Held that:- Rejection/reliability of the books of accounts and the proposed adjudication of the Ld.CIT(A) in view of the said direction may have direct impact on the issue of the impugned liability, we set aside this issue also to the files of the Ld.CIT(A) to adjudicate afresh along with the adjudication of the respective ground pertaining to the rejection/reliability of the books of accounts
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2013 (11) TMI 1648
Penalty u/s 271D - Held that:- In the case of Vinman Finance & Leasing Ltd (2008 (2) TMI 494 - ITAT VISAKHAPATNAM ), it has been held that the genuineness of the loan does not take way the said loan from the sweep of the provisions of sec. 269SS of the Act. Hence, we are unable to agree with the submissions made by Ld A.R in this regard. We have already noticed that the assessee has failed to show that the impugned transaction will fall in the category of transactions prescribed under the proviso to sec. 269SS of the Act. The assessee has also failed to show that there existed a reasonable cause in accepting the impugned loan amount in cash. Hence, we are unable to sustain the decision rendered by Ld CIT(A). Accordingly, we set aside his order and restore the penalty levied by the AO.
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2013 (11) TMI 1647
Deduction u/s 80IB - Held that:- As the evidence brought on record by the Assessing Officer clearly indicates in the first place that the plan approval is not in the name of the assessee and even otherwise, the assessee has not completed the entire housing project comprising of 880 units, which are required to be built by the assessee as per the approved plan, and that too within the time prescribed. Being so, the primary condition laid down in S.80IB(10) is not at all fulfilled by the assessee, by furnishing the prescribed form in 10CCB of the Act, to show that the assessee has complied with the statutory requirements prescribed in S.80IB of the Act. In our opinion, therefore, the Assessing Officer was correct and justified in disallowing the claim of the assessee for deduction under S.80IB of the Act, for the years under appeal. - Decided against assessee.
Disallowance of finance charges - Held that:- As per the provisions of S.40(ba) of the Income-tax Act, any payment by a joint venture to member-constituent under the head interest, salary, bonus, commission and remuneration is not allowable as deduction. Being so, the learned Authorised Representative is not able to controvert the findings of the CIT(A) with regard to applicability of provisions of S.40(ba) of the Act to the facts of the present case. Since the assessee itself has not availed the loan, and it is the constituent of the assessee’s JV which availed the loan, assessee is not eligible for deduction in respect of interest on such loan, even if it was paid by the assessee directly to the AP Statee Finance Corporation. We therefore, find no infirmity in the impugned order of the CIT(A) on this issue. We accordingly uphold the order of the CIT(A), and reject the grounds of the assessee on this issue.
Disallowance of direct and indirect expenditure - Held that:- Considering the quantum and nature of expenditure claimed, which is not verifiable, we agree with the CIT(A) that certain element of inflation and personal nature of expenditure cannot be ruled out. Consequently, disallowance of a portion of the expenditure claimed by the assessee is called for. The approach of the CIT(A) in estimating such disallowable expenditure at 10% of the cash component of direct and indirect expenditure is quite reasonable. We find no infirmity in his action in sustaining disallowance to that extent. We accordingly uphold the order of the CIT(A) on this aspect, and reject the grounds of the assessee on this issue in the appeals for the assessment years 2007-08 and 2008-09.
Suppression of receipts on sale of flats situated in Janapriya Utopia - Held that:- It is also an admitted fact that the assessee has been following mercantile system of accounting. That being so, irrespective of actual receipt or otherwise of an amount, income has to be recognised in the year in relation to which it has arisen or accrued. In the facts of the present case, since the registration of the sale deed has taken place in February, 2008, which falls in the assessment year 2008-09, even though certain amount of consideration is due from the purchaser of the flats as on the date of registration, income in respect of sale of the flats has to be recognized in the year under appeal only, and not in any other year. Any income is assessable only in the relevant year in which it is assessable, as per the method of accounting consistently followed by the assessee. Merely because it was disclosed in a subsequent year, it cannot be said that there is no justification for the addition in the year under appeal. In this view of the matter, we uphold the orders of the Revenue authorities on this issue and reject the grounds of the assessee in this appeal.
Addition u/s 69C - Held that:- We agree with the CIT(A) that before fastening any liability on the assessee, it is necessary for the Assessing Officer to establish some nexus to the contents of the document relied upon and unless the so called unofficial payments or receipts are linked to any land or construction of the project under taken by the assessee, it is difficult to assume that the entries in those documents indicate unexplained expenditure or investment, liable for addition under S.69C of the Act. We do not find any infirmity in the reasoning given by the CIT(A) for deleting this addition in para 29.1 of the impugned order.
Addition u/s 80IA - Held that:- In the case of an assessee engaged in the business of developing industrial park and letting out the same, income from letting out is assessable under the head ’business’. Hence, the income derived from such letting out should be considered as income from business income only, and not otherwise, as envisaged in S.80IA(4)(iv) of the Act. Accordingly, we set aside the impugned order of the CIT(A) on this issue and direct the Assessing Officer to re-examine the claim of the assessee for relief under S.80IA(4)(iv) of the Act, and allow the same, if the assessee is otherwise eligible for the same. He shall of course, re-decide this issue in accordance with law and after giving reasonable opportunity of hearing to the assessee. The grounds of the assessee on this aspect are treated as allowed.
Addition u/s 14A - Held that:- While the Assessing Officer has disallowed only part of the finance charges claimed, in terms of S.14A of the Act, as attributable to the income claimed by the assessee as exempt, the CIT(A) observing that the assessee has diverted its entire borrowed funds to the group entities of the assessee, and not utilised the same in its own business activities. This finding of the CIT(A) could not be controverted by the assessee before us, by bringing on record any cogent evidence on record. In the circumstances, we find no justification to interfere with the order of the CIT(A). We accordingly uphold the same, rejecting the grounds of the assessee on this issue.
Addition towards loan processing charges - Held that:- It is an undisputed fact that the loan of ₹ 5 crores taken by the assessee from APSFC has been transferred to its joint venture partner, Janapriya Engineers Syndicate JV. Since the loan amount has not been utilized by the assessee for its own business purpose, it cannot be said that the expenditure incurred by way of processing charges for securing such a loan, is an expenditure incurred for the pupose of the business of the assessee. That being so, the disallowance made by the Assessing Officer is in order and the CIT(A) in our opinion, was justified in sustaining the same.
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2013 (11) TMI 1646
Deposits in the saving bank account - treated as "Trading Receipts" - Held that:- ITAT have rightly held that the entire amount of ₹ 35,33,414/- cannot be added in the income of the assessee as undisclosed income.
Considering the evidence on record and the total turnover of the assessee which came to be estimated at ₹ 36 lacs, the CIT(A) has worked out the net income of the assessee under Section 44AF to ₹ 1.80 lacs. We have no reason to interfere with the order passed by the learned CIT(A) as well as judgment and order passed by the learned ITAT. No questions of law much less any substantial questions of law arise in the present appeal. Hence, the present appeal deserves to be dismissed and is accordingly dismissed.
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2013 (11) TMI 1645
Opportunity of bearing heard - essence of principles of natural justice - Held that:- CIT(A) has dismissed the appeal of assessee exparte by following ratio of Multiplan India Pvt. Ltd. [1991 (5) TMI 120 - ITAT DELHI-D] which is not justified. According to us, due opportunity of hearing is essence of principles of natural justice which should be given by all administrative, quasi-judicial bodies and judicial bodies. In view of above, we set aside the order of CIT(A) and restore the matter to him with a direction to decide the appeal on facts and law after providing due opportunity of hearing to the assessee. Since, we are restoring the matter to the CIT(A) on preliminary issue, so we are refraining from commenting on the merits of the issue at hand.
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2013 (11) TMI 1644
TDS u/s 194C - Addition made u/s 40(a)(ia) - payment incurred out of transport charges - assessee huf - Held that:- The assessee in the instant case, a HUF and according to clause (k) to section 194C(1) introduced by Finance Act 2007 is applicable to the individual and HUF which states that there is a requirement of deduction of TDS w.e.f 01.06.2007. The specific amendment bringing HUF within the provision of section 194C (1) is made only from the said date and this implies that HUF are excluded from section 194C before 01.06.2007 and the same is not applicable in the case of the assessee during the year under consideration i.e. 2005-06.
Secondly, the ITAT in the case of Nasib Singh (2012 (4) TMI 396 - ITAT CUTTACK) has held that where an assessee who is in the business of transportation engages his own trucks and the trucks owned by the others, provisions of section 194C (1) as to the requirement of deducting tax at source would not apply in respect of payments made to the truck owners whose trucks the assessee has engaged. The said proposition is supported by the decision of the ITAT in the case of Mythri Transport Corporation (2009 (1) TMI 337 - ITAT VISAKHAPATNAM ). In the instant case also the facts are similar to that of the said decision of the ITAT in the case of Mythri Transport Corporation. In view of the fact that the Ld.CIT(A) has correctly relied on the decisions while deleting the disallowance/addition made by the AO, we do not find any justifiable reason to interfere with the impugned decision of the Ld.CIT(A) and therefore the same is upheld. - Decided against revenue
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2013 (11) TMI 1643
Reopening of assessment - exemption u/s 54 - condonation of delay - Held that:- The assessee had a bona-fide belief that reopening of assessment was correct and the assessee is not entitled for deduction u/s. 54(1) of the Act. Being so, in our opinion, the bona-fide belief is a reason for delay in filing the appeal before the CIT(A). If the assessee is otherwise entitled for exemption u/s. 54(1), we direct the CIT(A) to examine the issue afresh and decide the issue in accordance with law. As the appellate authorities are empowered to entertain the claim during the appeal proceedings which was not put before the AO on earlier occasion by the revised return. The judgement of Supreme Court in the case of Goetze (India) Ltd. vs. CIT (2006 (3) TMI 75 - SUPREME Court ) does not prevent the CIT(A) in entertaining this issue. Accordingly, we remit the issue to the CIT(A) for deciding it afresh.
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2013 (11) TMI 1642
Deduction on account of amortization of depreciation claimed on investment in Govt - Held that:- Merely because the Securities are kept under the head till the maturity, the said Security cannot be treated as a purely investment. Law is well settled that the Securities held by the Bank are in the nature of Stock-in-Trade. Nomenclature cannot be decisive for the assessee Bank. We, therefore, hold that the loss on the sale of the Securities is revenue in nature and same is allowable.
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2013 (11) TMI 1641
Deduction u/s 080IB - clause (d),inserted to the section 801B(10) with effect from 01/04/2005, was prospective and not retrospective and hence could not be applied to the period prior to 01/04/2005,that the restriction imposed by the introduction of sub-section(d) to section 801B(10) w. e, f. 1.4.2005 were therefore not applicable to the assessee as his project having commercial area was approved as well as commenced prior to the said date, that deduction u/s. 80IB(10) would be available to the housing projects irrespective of the fact that project was approved as a ‘housing project’ or approved as ‘residential with shopline’,that as long as the housing project was as per the Development Control Regulations of the local authority the assessee could not be denied the deduction u/s. 80 IB(l0)
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