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Showing 161 to 180 of 1187 Records
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2011 (3) TMI 1678 - ITAT MUMBAI
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... ... ..... ure in question is therefore of revenue nature and hence allowable as a deduction. The Assessing Officer is therefore directed to allow this expenditure of Rs. 1,25,124/-. This ground of appeal is decided in favour of the appellant.” 21. Therefore he followed the decision of Hon'ble Karnataka High Court in the case of HMT Limited (supra) and directed the Assessing Officer to allow the amount on the ground that this is nothing but advance rent paid. Senior counsel pointing out that this expenditure was claimed in all the previous years by the assessee and that the revenue has been consistently allowing the same and that on the principles of consistency, the amount should be allowed. We accept this submission on the issue of consistency and we uphold the findings of the learned CIT(A) and dismiss this ground of the revenue. 22. In the result, both the appeals of the assessee as well as revenue are allowed in part. Order has been pronounced on 30th Day of March, 2011.
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2011 (3) TMI 1677 - ITAT AHMEDABAD
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... ... ..... ssee before the AO came to the conclusion that the assessee had transactions with those parties in the immediately preceding years. Payments have also been made to these parties in the preceding years. Therefore, there was no evidence on record with regard to cessation of liability in the name of aforesaid five creditors. We find that the AO had not brought on record any evidence to establish that the liability has ceased. Merely because the assessee could not produce the confirmation of the creditors, which were old balances, section 41(1) would not be applicable. The findings of the CIT(A) that the very basic condition of cessation of liability was not satisfied has not been controverted by the Revenue. In view of this, we do not find any justification to interfere with the order of the CIT(A), the same is sustained. 13. In the result, assessee’s appeal is partly allowed while the Revenue’s appeal is dismissed. Order pronounced in Open Court on 18th March, 2011
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2011 (3) TMI 1676 - ITAT AHMEDABAD
Assessment u/s 153A - Papers found in search u/s.132 - Addition of ‘on-money’ - calculation of year wise ‘on money’ receipt based on loose papers - relevance of statement recorded u/s.132(4) -the search was conducted and the statement was recorded not only on the date of the search and but later on several statements were recorded u/s.131 - also Affidavit which was sworn however placed before the Revenue authorities later those statements were retracted.
HELD THAT:- The admitted factual position is that consequence upon the search u/s.132 of the Act conducted on 18/06/2003 no unaccounted cash, no unaccounted asset, no unaccounted jewellery or incriminating material of like nature was seized.
The question of incriminating material has also been addressed by ld. AR. In the present case, the incriminating material on which the Revenue has placed reliance are three loose papers
In the present case, the AO has proceeded to extrapolate the ‘on-money’ of ₹ 180/- for rest of the flats in respective years. But there was no material in his possession to conclusively demonstrate that in respect of the other flats the assessee had in fact charged ‘on-money’ from the customers. Once the Revenue Department has taken the extreme step of conducting a raid on this assessee, then it is expected to unearth every penny of unrecorded money, but the fact is that neither any unaccounted money was recovered nor any such document was found in possession of the assessee through which it could be held that the assessee was in the practice of charging on-money on other facts as well.
As far as the general principle is concerned,an admission can be said to be an extremely important piece of evident, if made as per the prescribed law. But such an admission cannot be said to be conclusive.
It is open for the assessee to show that the said admission was incorrect. The said retrieval is termed as“retraction”in legal terminology.A retraction is admissible but it must be within a reasonable time and the onus is on that person to establish that the impugned admission was incorrect. He has to place convincing reason or evidence to show that the earlier admission was not the correct position of fact but the correct position was as per the retracted statement.as far as the present case is concerned, since the statement is not by the partner of the firm and moreover the same was retracted by filing an affidavit, coupled with the fact that no incriminating material was found, therefore, the view taken by the AO could not said to be permissible in the eyes of law. Therefore, we hereby hold that the extrapolation was incorrect. The AO is empowered to confine himself on the incriminating material found during the course of search and material is to be treated as true and correct. Meaning thereby the AO is expected to confine himself in respect of the sale transaction of Flat No.A/204, alleged to be purchased by one Smt. Saralaben M.Patel. Therefore, we are not of the opinion that no addition at all is warranted in respect of all the flats.
We are not with the view taken by the ld.CIT(A) that the entire addition is to be deleted. We, therefore, direct AO to reinvestigate the transaction in respect of Flat No.A/204, purchased by Smt. Saralaben and if the explanation offered by the assessee is found unsatisfactory, then the consequential action can be taken as per law but only in respect of that solitary transaction. With the result, rest of the addition pertaining to other flats as deleted by Ld. CIT(A) is hereby affirmed. For this year the said ground of the Revenue is partly allowed.
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2011 (3) TMI 1675 - ITAT AHMEDABAD
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... ... ..... d 21.11.2008 in ITA no.300/Ahd./2008 for the AY 2004-05 & order dated 26.3.2009 in ITA no.256/Ahd./2009 for the AY 2005-06 and the Revenue have not placed before us any material ITA No.2500/Ahd/2010 controverting the aforesaid findings of the ld. CIT(A) nor brought to our notice any contrary decision and did not even inform the fate of the set aside matters for the AYs2004-05 & 2005-06. In these circumstances, especially when the ld. CIT(A) merely followed the decisions of the ITAT in the case of M/s Shakti Corporation(supra) & M/s Radhe Developers(supra) while there is no material before us to take a different view in the matter, we are not inclined to interfere. Therefore, ground nos. 1 & 2 raised by the Revenue in this appeal are dismissed. 8. No additional ground having been raised in terms of residuary ground no.3 in the appeal, accordingly, this ground is dismissed. 9. In the result, appeal is dismissed. Order pronounced in the court today on 31-03-2011
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2011 (3) TMI 1674 - ITAT DELHI
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... ... ..... he assessee, the CIT(A) observed that the AO should have of his own account carried out the rectification now and allow the claim of deduction u/s 80IB(10) of the Act. 8. In the course of hearing, the learned DR submitted that this certificate was not fully examined and verified by the AO. The learned counsel for the assessee, on the other hand, submitted that he has no objection if AO is directed to examine and verify the certificate for the purpose of allowing deduction u/s 80IB(10) of the Act. We, therefore, restore this matter back to the file of the AO for a limited purpose to examine the completion certificate dated 21.3.2009 furnished by the assessee and then to decide the assessee’s claim of deduction u/s 80IB accordingly. The AO shall provide reasonable opportunity of being heard to the assessee. 9. In the result, the appeal filed by the Revenue is treated to be partly allowed for statistical purposes. Decision pronounced in the open Court on 11th March, 2011.
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2011 (3) TMI 1673 - ITAT MUMBAI
Long term capital gain Computation - Reference to DVO u/s 55A - Determination of FMV - assessee transferring property has adopted FMV of property as on 1/4/81 - whether reference made by the AO to the DVO under section 55A of the for determining the FMV as on 1/4/1981 was legally valid? - CIT(A) held such reference made to DVO is invalid - HELD THAT:- Section 55A could be invoked only if the Ld. Assessing Officer is of the opinion that the value declared by the assessee is less than the fair market value of the asset. In the assessee’s case, the ld. AO has made this reference because he felt that the value of the property as on 1/4/1981 declared by the assessee is more than the fair market value. Thus, the condition of clause (a) of section 55A is not satisfied. Respectfully following the decision of the Tribunal referred to above we uphold the order of the CIT(A) and dismiss the appeal by the revenue.
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2011 (3) TMI 1672 - SC ORDER
Valuation - Clearance to sister concerns at less rates as compared to price charged to independent buyers - the decision in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI Versus SPECIAL STEEL LTD. [2010 (8) TMI 779 - CESTAT-MUMBAI] contested - Held that: - appeal dismissed.
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2011 (3) TMI 1671 - PUNJAB AND HARYANA HIGH COURT
Interest component in MACT Award to be treated as Taxable income or as part of compensation which being in the nature of capital receipt is not Taxable - Assessee failed to deduct tax at source out of interest income received by the claimants as per awards by MACT, the assessee was held to be assessee in default
HELD THAT:- In our view, interest component is a part of compensation which being in the nature of capital receipt is not taxable. Admittedly, compensation under the award of MACT is not income. The expression ‘income’ used in Entry 82 of List I of Seventh Schedule to the Constitution can be given widest meaning. Under Section 2(24), inclusive and not exhaustive definition has been given. In absence of an express provision to the contrary, income can be held to refer to something earned. What is received as compensation for loss in one or the other form may not be income.
In SENAIRAM DOONGARMALL VERSUS COMMISSIONER OF INCOME-TAX, ASSAM [1961 (3) TMI 7 - SUPREME COURT], the question was whether compensation received from military authority on account of loss of earning of tea estate was income or capital receipt. It was observed that quality of payment was decisive of the character of income and compensation received was not income.
In the context of compensation received under the Motor Vehicle Act, the compensation is either on account of loss of earning capacity on account of death or injury or on account of pain and suffering. Such receipt is not by way of earning or profit. Award of compensation is on the principle of restitution to place the claimant in the same position in which he would have been had the loss of life or injury not been suffered.
In GOBALD MOTOR SERVICE LTD. & ANOTHER VERSUS R.M.K. VELUSWAMI & OTHERS. [1961 (4) TMI 100 - SUPREME COURT] "The claim for damages falls under two separate heads. First, if the deceased had not been killed, but had eked out the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family"
Having regard to nature of receipt of compensation as per award under the M.V.Act, compensation is in the nature of capital receipt for death or injury and cannot be held to be in the nature of income. It appears to be for this reason that the said receipt is not sought to be treated as income.
Interest on account of delay in adjudication - Part of compensation or a separate component of income?- Receipt of interest after amount has been received by the claimant u/s 194A(3)(ix) - HELD THAT:- In context of compensation under the provisions of Land Acquisition Act, 1894, the Hon'ble Supreme Court in COMMISSIONER OF INCOME-TAX, FARIDABAD VERSUS GHANSHYAM (HUF) [2009 (7) TMI 12 - SUPREME COURT], held that interest paid by the Collector was part of compensation and was treated to be at par with the compensation for purposes of taxability. The principle in Ghanshyam applies to award of interest from the date of claim to the date of receipt of the awarded amount under the Land Acquisition Act.
The apex Court in TUTICORIN ALKALI CHEMICALS & FERTILIZERS LTD VERSUS COMMISSIONER OF INCOME-TAX [1997 (7) TMI 4 - SUPREME COURT] had noted that ordinarily, the interest received is income but it would not be of revenue nature where it is received by way of damages or compensation.
In view of the above, the interest component in compensation awarded by MACT is part of compensation and has to be treated as capital receipt and not income till the claimant received the amount in pursuance of award. However, different consideration will prevail for interest earned by the claimant on the amount so received, after the receipt thereof.
Section 194A(3)(ix) refers to the provision of receipt of interest after amount has been received by the claimant in pursuance of the award. We are, thus, of the opinion that question of law raised on behalf of the assessee has to be answered in its favour. The view of the Tribunal that interest allowed by the MACT in an accident case was income from interest and, thus, revenue in nature, is not sustainable - Decision in favour of Assesee
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2011 (3) TMI 1670 - BOMBAY HIGH COURT
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... ... ..... als is covered by the decision of this Court in Commissioner of Income Tax Vs.Brahma Associates in Income Tax Appeal No.1194/2010 dated 22/2/2011. In this view of the matter, the appeals are dismissed. No costs.
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2011 (3) TMI 1669 - BOMBAY HIGH COURT
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... ... ..... er, which order was confirmed by this Court and all Misc. applications filed before several authorities were rejected and confirmed by this Court as also the Supreme Court and restoration application was rejected by CESTAT vide order dated 10-6-2008?” 2. Mr. Jetly, counsel for the Revenue seeks Interim relief in terms of prayer clause (b). Counsel for the respondents seeks time to take instructions. 3. S.O. to 16-3-2011. 4. In the meanwhile, there shall be ad interim relief in terms for prayer clause (b).
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2011 (3) TMI 1668 - CESTAT NEW DELHI
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... ... ..... ted 02.05.2008 and submitted that the authority below having considered the matter from all the angles, there is no case for total waiver of the amount demanded under the impugned. 5. For the reasons stated in the order passed today in Excise Stay Application No. 1421-1422 of 2010 in the matter of A-One Laminators & Delhi Laminators Pvt. Ltd, and in the facts and circumstances disclosed from the record of the case, we do not find prima-facie case having been made out for total waiver of the duty demanded under the impugned order. We, therefore, direct the appellants to deposit 60 of the amount demanded under the impugned order while waiving the interest amount till the disposal of the appeal. The amount shall be deposited within eight (8) weeks. For compliance on 27.06.2011. The Excise stay application No. 1570 of 2010 should be listed alongwith Excise Stay Application Nos. 1421-1422 of 2010 in E/A No. 1388-1389 of 2010 for compliance report as well as for final hearing.
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2011 (3) TMI 1667 - ITAT AHMEDABAD
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... ... ..... et profit for the purposes of section 80IB. Accordingly, this ground of Revenue is allowed. 22.7 Other two grounds are academic in nature and hence they are rejected. 23. Appeal filed by the Revenue is partly allowed and partly allowed for statistical purposes. 24. In the result - ITA No.4523/Ahd/2007 Asst. Year 2000-01 (Revenue’s appeal) is dismissed. ITA No.4524/Ahd/2007 Asst. Year 2001-02 (Revenue’s appeal) is dismissed. ITA No.4525/Ahd/2007 Asst. Year 2002-03 (Revenue’s appeal) is dismissed. ITA No.4526/Ahd/2007 Asst. Year 2003-04 (Revenue’s appeal) is dismissed. ITA No.4527/Ahd/2007 Asst. Year 2004-05 (Revenue’s appeal) is dismissed. ITA No.2339/Ahd/2008 Asst. Year 2005-06 (Revenue’s appeal) is partly allowed and partly allowed for statistical purposes. CO No.171 in ITA No.2339/Ahd/2007 Asst. Year 2005-06 (Assessee’s CO) is partly allowed and partly allowed for statistical purposes. Order was pronounced in open Court on 25/3/11.
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2011 (3) TMI 1666 - ITAT LUCKNOW
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... ... ..... ted that the issue was not raised in earlier proceedings, then also the assessee has every right to raise the legal issue at any stage as per the ratio laid down by the Hon'ble Supreme Court in the case of National Thermal Power Co. 229 ITR 383 (SC). Since while deciding the legal issue of the assessee we have held that the assessment framed was illegal, therefore, the remaining grounds raised by the assessee are not being adjudicated.” 8.2 Respectfully following the order of the Tribunal passed in the case of Shri Sanjeev Agarwal in I.T.A. No.495/Luc/09 relating to assessment year 2002-2003 dated 19/03/2010 (supra), we annul the assessment order dated 30/03/2005 passed u/s 143(3) of the Act. 9. Since we have annulled the assessment, therefore, we do not think it necessary to discuss and decide the remaining grounds of appeal, which are on merits. 10. In the result, the appeal is allowed as indicated above. (The order was pronounced in the open court on 07/03/2011)
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2011 (3) TMI 1665 - ITAT AHMEDABAD
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... ... ..... e AO which have been examined by the AO and the AO took one of the possible views under law and that complete details were furnished before the learned Commissioner of Income Tax on which no finding has been given by him would show that the learned Commissioner of Income Tax without any justification quashed the impugned order u/s 263 of the IT Act just for the purpose of making routine inquiry with regard to the matters in issue which had already been concluded by the AO. In view of the above, the order of the learned Commissioner of Income Tax cannot be sustained under law. 9. Considering the facts and circumstances of the case as noted above in the light of the above discussions, we find that the impugned order is not sustainable in law. We accordingly, set aside the impugned order u/s 263 of the IT Act and restore the order of the AO dated 20-12-2007 passed u/s 143 (3) of the IT Act. 10. In the result, the appeal of the assessee is allowed. Order pronounced on 25-03-2011
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2011 (3) TMI 1664 - ITAT DELHI
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... ... ..... t the details are as per annexure-V which is annexed to tax audit report and is available on page No.25 of the paper book. o p /o p As per this out of total amount of ₹ 89,1347/-, ₹ 81,360/- is paid to four clubs towards annual membership fees and the balance amount of ₹ 7787/- has been paid towards expenses on snacks etc. In the case of OTIS Elevator Co. (India) Ltd. v. CIT as reported in 195 ITR 682, it was held that club fee is allowable expenditure. Since the major amount was towards annual membership fees and very small amount was incurred towards expenditure on club, we are of the considered opinion, that no disallowance is called for in view of this decision of the Hon'ble Bombay High Court and hence, we delete the same. This ground of the assessee is allowed. o p /o p 9. In the result, the appeal filed by the assessee is allowed in the terms as indicated above. o p /o p 10. Order pronounced in the open court on the day 18th March, 2011. o p /o p
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2011 (3) TMI 1663 - ITAT KOLKATA
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... ... ..... e and is applicable from assessment year 2008-09. The ld. A/R submitted that the issue could be restored to the ld. C.I.T.(A) to redecide the same after giving opportunity of hearing and considering such evidences as may be filed by the assessee. The ld. Departmental Representative has no objection to restore the said issue to the ld. C.I.T.(A). We, therefore, set aside the orders of the authorities below on this issue and restore the matter to the file of ld. C.I.T.(A), who is directed to readjudicate the issue in terms of decision of Hon’ble Bombay High Court in the case of Godrej Boyce Mfg. Co. Ltd. (supra) after affording reasonable opportunity of being heard to the assessee and according to law. The cross-objection of the assessee is, therefore, allowed for statistical purposes. 11. In the result, the appeal of the Department is dismissed and the cross-objection of the assessee is allowed for statistical purposes. Order Pronounced in the Open Court on 11.03. 2011.
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2011 (3) TMI 1662 - ITAT AHMEDABAD
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... ... ..... ,03,462/-. Therefore, by making debit entries and credit entries towards stock at ₹ 12,03,462/- has not made any difference. The appellant’s disclosed income which was made during survey operation is not nullified since the additional income offered towards excessive stock at ₹ 12,03,462/- is very much available in the trading account. Therefore, after verifying the facts and circumstances of the case I am inclined to delete the addition made by the A.O at ₹ 12,03,462/-. Therefore, this ground of appeal is allowed.” Since the above finding of Ld. CIT(A) is based upon the entries passed by assessee in its books of account clearly showing that additional income offered towards excessive stock at ₹ 12,03,462/-has been truly and correctly disclosed by assessee, we find no infirmity in the order passed by Ld. CIT(A) and same is therefore upheld. 5. In the result, Revenue’s appeal is dismissed. Order pronounced in Open Court on 15/03/2011.
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2011 (3) TMI 1661 - ITAT CHENNAI
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... ... ..... has relied on the ITAT Delhi Special Bench decision in the case of ITO vs Ekta Promoters Pvt. Ltd, 305 ITR (AT) 1, and that of Hon'ble Delhi High Court in the case of Jacabs Civil Incorcoprated in I.T.A.No. 491/2008, unreported order dated 30.8.2010, a copy of which has been placed before us. 18. After considering the rival submissions, we find that there are divergent decisions of High Courts in this regard whereas the Special Bench decision of ITAT is in favour of the assessee. Therefore, by respectfully following the Special Bench decision and the Chennai Bench decision, we confirm the finding of the ld. CIT(A) in this regard and do not find any legal force in the submissions of the Revenue. 19. In the result, the appeal of the Revenue stands dismissed. 20. To summarize the result, the appeal of the assessee is partly allowed and partly allowed for statistical purposes whereas the appeal of the Revenue is dismissed. The order pronounced in the open court on 18.3.2011.
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2011 (3) TMI 1660 - CALCUTTA HIGH COURT
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... ... ..... done. The petitioners shall till disposal of the appeals before the Tribunal and subject to further orders, if any, of the Tribunal continue to submit monthly statements and make payment of 50 of duty in cash and furnish bank guarantees, securing the balance 50 of the duty thereon as per the directions contained in the order dated 2nd March, 2007. It is made clear that all bank guarantees furnished pursuant to the orders of this Court shall be kept renewed. The bank guarantees shall be renewed at least one month before expiry thereof, upon notice to the respondent no.1, failing which the concerned bank guarantees might be invoked. Needless to mention that the bank guarantees as also the cash deposit shall abide by the result of the appeals pending before the Tribunal. Affidavits not having been called for, the allegations in the writ petition shall be deemed not to have been admitted. All parties are to act on a signed photostat copy of this order on the usual undertakings.
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2011 (3) TMI 1659 - ITAT DELHI
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... ... ..... wise, reliance by the Department on CBDT Guide-lines issued vide Office Memorandum dated 13.12.2005, which have also been considered by the AO, is misplaced too. The Guide-lines are on tests for distinction between shares held as stock-in-trade and shares held as investment. The assessee’s case nowhere falls within the treatment of shares as stock-in-trade, as deliberated upon hereinabove. 35. For the above discussion, we do not find any error in the orders of the ld. CIT(A). It has been correctly directed to treat the income as short term capital gain instead of income from business. That being so, the grounds raised by the Department carry no force and are rejected. 36. It may be reiterated here that the facts in both the appeals are exactly similar. Therefore, our above observations shall apply equally, mutatis mutandis, to both the appeals. 37. In the result, both the appeals filed by the Department stand dismissed. Order pronounced in the open court on 31.03.2011.
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