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Showing 181 to 200 of 1319 Records
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2012 (11) TMI 1146 - ITAT VISAKHAPATNAM
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... ... ..... rse of assessment proceeding. 8. The third defect pointed out by the Assessing Officer is regarding accumulation of funds u/s 11(5) of the Act. We are of the view that the Assessing Officer may consider this issue also afresh, since we have already set aside the issue relating to the examination of “Purpose of accumulation” to the file of the Assessing Officer. 9. In view of the foregoing discussions, in our view, the issue of accumulation of income as per the provisions of sec.11(2) requires fresh examination at the end of the Assessing Officer. Accordingly, we set aside the orders of Learned CIT(A) on this issue and restore the same to the file of the Assessing Officer with the direction to examine this issue afresh after affording necessary opportunity of being heard and decide the same in accordance with law. 10. In the result, the appeals filed by the assessees are treated as partly allowed for statistical purposes. Pronounced in the open Court on 08.11.2012
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2012 (11) TMI 1145 - ITAT COCHIN
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... ... ..... ay that there was furnishing of inaccurate particulars. This issue was elaborately considered by the Apex Court in the case of Reliance Petroproducts (supra) 322 ITR 158 (SC) and found that in such a case there cannot be a case of furnishing of inaccurate particulars. It is not in dispute that the fringe benefit taxed was computed on the basis of the information furnished by the taxpayer. Therefore, there is no question of furnishing any inaccurate particulars. A mere claim of non taxability with regard to certain expenditure cannot be considered as furnishing of inaccurate particulars. This Tribunal is of the considered opinion that the Commissioner of Income-tax(A) has rightly deleted the penalty levied by the assessing authority. We do not find any infirmity in the order of the Commissioner of Income-tax(A). Accordingly, the same is confirmed. 8. In the result, both the appeals of the revenue stand dismissed. Order pronounced in the open court on this 16th November, 2012.
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2012 (11) TMI 1144 - ITAT DELHI
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... ... ..... of general public utility. Thus from the definition itself, it is clear that imparting of education is a charitable purpose. The facts and circumstances of the case law relating to Beer Shiva Society are not similar to the facts and circumstances of the present cases. Therefore, the rejection of claim u/s 11 was not justified. Moreover, the Hon'ble Tribunal in the assessment year 1998-99 and 2001-02 placed at pages 7 to 17 of paper book in the assessee’s own case has held that assessee was engaged in imparting education and was not for the purpose of profit and was eligible for exemption u/s 10(22) of the Act as well as section 11 & 12 of the Act. Respectfully following the above, we hold that assessee was eligible for exemption u/s 11 and therefore Ld CIT(A) had rightly allowed the exemption u/s 11 of the Income Tax Act, 1961 . 11. In the result, the appeals filed by the revenue are dismissed. 12. Order pronounced in the open court on 7th day of Decmber, 2012.
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2012 (11) TMI 1143 - ITAT MUMBAI
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... ... ..... assessee has to be followed. 8.3. We find that while deciding the appeal for the subsequent year Pune Bench overlooked that the decision followed by it; in assessee’s own case for the earlier year; was rendered relying on the decision of the Hon’ble Bombay High Court in the case of Shakuntala Kantilal (supra) which has been subsequently held to be not a good law by the Hon’ble Bombay High Court in the case of Roshanbabu Mohammed Hussein Merchant (supra). In these circumstances we are of the opinion that in the case under consideration, it will be appropriate to follow the decisions of the Bombay Benches delivered in the cases of Devendra Motilal Kothari (supra), Pradeep Kumar Harlalka (supra) and Homi K Bhabha (supra). Respectfully following the decisions of the coordinating benches we dismiss the cross objections filed by the assessee company. Cross-objection filed by the assessee stands dismissed. Order pronounced in the open court on 7th November, 2012.
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2012 (11) TMI 1142 - UTTARAKHAND HIGH COURT
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... ... ..... income computed by applying deemed provisions of Section 44BB? Section 44BB does not talk about set off. It only talks about reduction of the deemed profit, in the event of maintaining accounts and showing in the accounts that the profit was less than what has been contemplated in Section 44BB of the Act and that such accounts have been audited and the audit report is submitted. In the instant case, the accounts were maintained and they were audited and also submitted, as is provided for in Sub-Section (3) of Section 44BB. In the accounts, unabsorbed depreciation was carried forward to the next year. It could not be pointed out that the same was done contrary to any accounting principle. That being the situation, the question is answered in favour of the assessee and against the appellants, inasmuch as, in the accounts, it has been shown that the profit, in fact earned, was less than the deemed profit mentioned in Section 44BB of the Act. 3. The appeal is, thus, disposed of.
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2012 (11) TMI 1141 - ITAT CHENNAI
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... ... ..... aw of Cherukuri Ramesh, the assessee had prepared a lay-out plan within four years after purchase and waited for another three years to get a better price. We observe that facts of the case laws cited by the Revenue are altogether distinguishable from those involved in the instant issue. Faced with this situation and after placing reliance on various case laws decided by the Hon’ble jurisdictional High Court referred herein above, we hold that the consideration money received by the assessee declared as ‘ long term capital gains’ has been wrongly held to be ‘business income’ by the A.O for all Assessment Years and by CIT(A) for Assessment Years 2007-08 & 2008-09. Therefore, we decide this issue also in favour of the assessee and against the Revenue. 16. To sum up, ITA Nos. 238 to 240/Mds/12 filed by the assessee are allowed and ITA No.219/Mds./12 by the Revenue stands dismissed. Order pronounced on Monday, the 26th November, 2012 at Chennai.
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2012 (11) TMI 1140 - ITAT COCHIN
Registration and Cancellation of institution u/s 12AA- Charitable Purpose u/s 2(15) - Administrative Commissioner withdrew the registration u/s 12AA on the ground that the institution's aggregate value of the receipt from the charitable activities exceeds ₹4 crore which is beyond the limit as mentioned in s. 2(15), therefore, the taxpayer is not charitable institution.
HELD THAT:- If the aggregate contract receipts exceed ₹ 10 lakhs in any of the years, at the best, the assessing officer may deny exemption at the time of assessment proceedings. In view of the above, this Tribunal is of the considered opinion that the subsequent amendment to section 2(15) of the Act by introducing Proviso fixing the monetary limit in respect of public utility services cannot be a reason to cancel the registration.
The Commissioner cannot go beyond the conditions provided in section 12AA(3) for cancelling the registration that are - (1) when the activity of the trust or institution is not genuine; (2) when the activity is not being carried out in accordance with the object of the trust / institution. In other words, the registration can be cancelled only if the Commissioner is satisfied that the object of the trust is not genuine or the activity of the taxpayer society was not carried out in accordance with the object.
Decision in favour of assessee.
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2012 (11) TMI 1139 - ITAT CHANDIGARH
Levy of penalty u/s 272B - non quoting/wrong quoting of PANs in the TDS Return 24Q - Held that:- As per section 272B(1) of the Act If a person failed to comply with the provision of section 139A, the Assessing Officer may direct that such person shall pay, by way of penalty a sum of ₹ 10,000/. thus the penalty u/s 272B of the Act at is restricted to ₹ 10,000/- appeal of the Revenue is dismissed.
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2012 (11) TMI 1138 - BOMBAY HIGH COURT
Allowing the interest expenses and general administration expenses by holding that the new project was a part of the existing business - Held that:- Expenses incurred by the assessee were in respect of the existing business and similarly interest and miscellaneous receipts were part of the existing business which had already commenced and hence liable to be treated as business receipts. Since the decision of the Tribunal in allowing the expenditure as business expenditure and treating the receipts as business receipts is based on facts of the case and there is no infirmity in it, we see no reason to entertain the question.
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2012 (11) TMI 1137 - ITAT DELHI
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... ... ..... c) of the Act on merits in respect of the addition of provision for warranty, though the identical issue of the penalty on provision for warranty was deleted by the CIT(A) and Hon’ble ITAT for assessment year 2002-03. 2. That on the facts and in the circumstances of the case and in law the ld. CIT(A) erred in not deleting the penalty under section 271(1)(c) of the Act on merits of the case in respect of the addition of advances written off as the same was bonafide claim and the addition is merely based on difference of opinion.” 13. Since main ground no. 1 of main appeal of the Revenue has been decided in favour of the assessee and consequently the appeal of the Revenue has been held not allowable, therefore, grounds no. 1 and 2 of cross objection become academic and do not survive for adjudication and we dismiss the same. 14. In the result, the appeal of the Revenue and cross objection of the assessee are dismissed. Order pronounced in open court on 16.11.2012.
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2012 (11) TMI 1136 - ITAT ALLAHABAD
Assessment u/s 153A - addition u/s 68 - Held that:- Authorities below could have presumed that the assessee has spent the difference of amount in question somewhere as per cash in hand as per books of account and lesser cash as per seized documents, but that would also not suffice to make addition under any of the above provisions because every person is at liberty to spend their own amount anywhere as per his choice because the assessee has not claimed any deduction in this case. Examining the case of the assessee from every possible angle, we find the addition of ₹ 37,30,710/- wholly unjustified.
Purchase of potatoes unexplained - Held that:- In the absence of any incriminating material or evidence against the assessee, we are of the view that the huge addition made against the assessee was merely based on presumption and assumptions of facts, which cannot take place of legal proof. No evidence of purchase, sales or unaccounted stock belonging to the assessee during the course of search or survey was found or established. Thus, the assessee has been able to prove that the assessee acted only as a bailee and earned rental income. Thus, the authorities below have acted against the assessee in haste in making substantive addition without any basis and without considering entire seized material. We, therefore, do not find any justification for the authorities below to make or confirm the addition of the aforesaid nature. We accordingly, set aside the orders of the authorities below and delete the addition.
Addition under the head ‘diesel expenses’ - Held that:- The diesel is used in generator, which is necessary for running of cold storage due to frequent failure of electricity in the State of U.P. Therefore, it was necessary component/expense for running the cold storage. Considering the above, it would be reasonable and appropriate to restrict the addition by disallowing 5% of the expenses instead of 10% confirmed by the authorities below.
Disallowance of petrol expenses and disallowance under the head depreciation on car for personal user - Held that:- Addition appears to be excessive in nature We, accordingly, modify the orders of the authorities below and restrict the disallowance to 5% of the expenses on both these disallowances of expenses. The AO is directed to disallow 5% of expenses instead of 20%. These grounds of appeal of the assessee are partly allowed.
Addition on account of addition under the head ‘building’- Held that:- There were no reasons to discard the books of account merely because the same were not found during the course of survey. The AO should have verified each and every entry from the books of account of the assessee on this issue before making reference to the DVO. However, no such findings have been given and the AO merely because the assessee did not produce bills and vouchers referred the matter to the DVO for estimating cost of construction - restore the matter to the file of the AO with direction to re-decide the issue by considering the books of account produced by the assessee
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2012 (11) TMI 1135 - ITAT AHMEDABAD
Deduction u/s.80IB(10) - fulfillment of mandatory condition of commercial area - Claim allowed in favour of assessee
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2012 (11) TMI 1134 - ITAT MUMBAI
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... ... ..... revealed that assessee company did not consider direct expenses while computing value of closing stock. According to AO raw material was required to be loaded with the direct expenses like freight, storage etc. incurred on account of the same. In absence of details he estimated direct expenses to the tune of 2 of the total value of the closing stock of raw material and accordingly addition of ₹ 6,81,25,800/- was made which has been deleted by Ld. CIT(A) as mentioned above. 6. We have heard both the parties on this issue. The facts being identical to A.Y 2007-08, therefore, respectfully following the decision of Coordinate Bench in assessee’s own case, we find no infirmity in the relief given by the Ld. CIT(A). Ground No.2 of the revenue is dismissed. 7. No other issue was argued before us, therefore, appeal filed by the revenue is dismissed. 8. In the result, appeal filed by the revenue is dismissed. Order pronounced in the open court on the 9th day of Nov. 2012.
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2012 (11) TMI 1133 - ITAT MUMBAI
Eligible deduction u/s.35ABB - variable license fees - Held that:- The variable revenue share licence fee paid pursuant to the migration of the assessee to the New Telecom Policy is liable to be allowed as revenue expenditure- Appeal filed by AO stands dismissed - Decided in the favor of assessee.
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2012 (11) TMI 1132 - CESTAT NEW DELHI
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... ... ..... factual position. Learned Advocate has drawn my attention to the observations made by the Revenue authority accepting the appellant’s stand that goods were used for repair and maintenance but disallowed the credit on the legal issue On the other hand, Commissioner (Appeals) has not accepted the appellant’s stand on the factual position. Reliance stand placed by the appellants on the statement of Shri Subhash Kaushal, General Manager of the appellant disclosing that the said items were used for maintenance and repair. 6. Inasmuch as the dispute relates to the factual aspect, I deem it fit to set aside the impugned order and remand the matter to original adjudicating authority who would decide the same afresh after taking into consideration the said statement of General Manager as also the other records maintained by the appellants during the course of their regular business. 7. The appeal is thus allowed in the above terms. (Pronounced in the open Court)
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2012 (11) TMI 1131 - ITAT COCHIN
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... ... ..... ) has also proceeded on the ground that the land in question is actively used for agricultural purpose. Both the authorities below have failed to consider whether the land in question falls within 8 kms limits of Cochin Municipality. Therefore, this Tribunal is of the opinion that the matter needs to be reconsidered in the light of the notification issued by Government of India and judgment of the Apex Court in the case of G.M. Omer Khan (supra). Accordingly the orders of lower authorities are set aside and the issue is set aside to the file of the assessing officer. The assessing officer shall re-consider the issue afresh in the light of law laid down by the Apex Court in the case of G.M. Omer Khan (supra) and decide the issue afresh in accordance with law after giving reasonable opportunity of hearing to the taxpayer. 7. With the above observations, the appeal of the revenue is allowed for statistical purpose. Order pronounced in the open court on this 16th November, 2012.
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2012 (11) TMI 1130 - ITAT HYDERABAD
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... ... ..... present assessment y ears before us are similar to that was considered by this Tribu nal in earlier assessment years. This ground of the assessee is allowed in all the three appeals i.e., ITA Nos. 937 to 939/Hyd/201 2, Now coming to the second ground that the Assessing Officer erred in taxing the assessee in respect of income derived from the project started before 1.4.2003 at 20 as against the rate applicable at 15 , this ground is also adjudi cated in the earlier order of the Tribunal in assessee’s own cas e in ITA No. 1250/Hyd/2011 dated 25 th October, 2011 for assessment year 2006-07 wherein it was held that the fee for techni cal services falls under Article 12 of DTAA and not under articl e 7 of DTAA and tax has to be levied at 15 . Respectfully foll owing the above order of the Tribunal for A.Y. 2006-07, we ar e inclined to allow the ground taken by the assessee. In the result, appeals of the assessee are allowed. Order pronounced in the open court on 2/11/2012.
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2012 (11) TMI 1129 - ITAT MUMBAI
Disallowance of expenditure on software by treating the same as capital in nature - addition due to valuation of closing stock on account of Modvat - disallowance u/s 40(a)(i)- TDS u/s 195 - payments are in the nature of fee for technical services or managerial services as per the provisions of Article 12 of Indo Switzerland DTAA - disallowance of interest capitalised in the books of account - exemption u/s 10B - addition u/s 14A - exclusion of excise duty from the total turnover for the purpose of computing the deduction u/s 80HHC - Foreign exchange gains - valuation of closing stock on account of Modvat - reducing of 100% profits eligible for deduction u/s 80HHE while computing the eligible profits u/s 80HHC.
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2012 (11) TMI 1128 - ITAT MUMBAI
Transfer Pricing Adjustment - whether under the TNMM analysis, adjustment is required to be made on total transactions entered as the analysis is on entity level? - Held that:- CIT (A) order is in tune with the provisions of the Act as interpreted by the above orders of the ITAT. Since the arms length price has to be determined only with reference to the international transactions, whatever be the method followed or adopted for arriving at the ALP, the ALP can only be considered on the value of international transactions alone and not on the entire turnover of assessee. If this sort of adjustment is permitted this will result in increasing the profit of assessee on the entire non-AE sales also, which is not according to the provisions of Transfer Pricing mandated by the Act for the impugned assessment year. Therefore, the Revenue grounds on this are rejected.
Non applying the safe harbor provisions of +/- 5% - Held that:- As seen from the order of the CIT (A) he has arrived at the difference in ALP at 1.86% and on the AE transactions he confirmed only an amount of ₹ 8,39,245/-. This amount is certainly within the +/-5% range as provided under section 92CA(4) of the Income Tax Act. Not only that as submitted by the learned Counsel, the difference in price (operating profits/ sales) the A L P as per the TPO comes to ₹ 4,60,50,228/-. 105% of ALP (+5% range) on this is at ₹ 4,83,52,739/-. 95% of the ALP determined (-5% range) is at ₹ 4,37,47,717/-. Therefore, the sales to AE at ₹ 4,51,20,741/- is within the safe harbor range. The difference in price (operating profits/ Total costs) ie.the second table, the A L P as per the TPO comes to ₹ 61,9930,280/-. The operating cost considered by TPO in TP report was ₹ 59,09,72,622. 105% of this (+5% range) is at ₹ 65,09,26,794/-. 95% of this (-5% range) is at ₹ 58,89,33,766/-. Therefore, the operating cost at ₹ 59,09,72,622 is within the safe harbor range.
Therefore, there is no need to make any addition under the provisions of the Transfer Pricing.
Allocation of Expenses - Held that:- As rightly pointed out by the CIT (A) since no evidence was furnished for the argument that most of the expenditure pertains to Mr. Mihir Bhansali was booked in another related firm, the contention of assessee cannot be accepted. No evidence was also placed before us. Since this issue was decided on factual basis, in the absence of justification of expenditure allocated disproportionately, there is no other option than to allocate on prorata basis. Therefore, the order of the CIT (A) is confirmed and assessee’s contention on this is rejected.
With reference to the miscellaneous expenses, we confirm the order of the CIT (A) as he has considered the issue on factual basis and also on the reason that the allocation to jewellery unit is very meager and there could be booking of expenditure in the unit not eligible for deduction. For these reasons, we upheld the order of the CIT (A) and reject assessee’s contentions. With reference to the donations the CIT (A) examined this issue gave relief as it may result in double disallowance. Nothing was brought on record to counter the findings of the CIT (A), therefore, Revenue ground on this issue is rejected.
Audit fees - Held that:- As rightly pointed out by the CIT (A) assessee has not allocated a single paisa to the jewellery unit, though it claimed both the units are audited separately. The CIT(A) upheld the allocation of audit fees to the jewellery unit as well, as was done by the AO in the same ratio of sales. For these reasons, we uphold the order of the CIT (A) on the above issues and reject the grounds raised by the Revenue.
Addition u/s 14A - Held that:- Whether they are made with own funds or with borrowed funds and whether there is any expenditure incurred or not was not examined by AO and disallowed amount u/s 14A, invoking Rule 8D. As Rule 8D is not applicable for the impugned assessment year, the matter is restored to the file of AO for examination of the issue afresh and determining the reasonable amount as per the principles laid down by the Hon’ble High court or Hon’ble Supreme Court if any, after giving due opportunity to assessee. Additional ground is restored to the file of AO.
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2012 (11) TMI 1127 - ITAT VISAKHAPATNAM
Validity of re-opening of assessment - assessment of deemed dividend u/s 2(22)(e) - Held that:- We notice that the assessee has furnished a copy of the Loan account of the assessee as available in the books of the company in Page 8 of the paper book. On the perusal of the said account, we notice that the dividend amount of ₹ 31,25,100/- was adjusted by the company against the said loan amount.
Thus, the observation made by Ld CIT(A) appears to be against the facts available on record. There cannot be any dispute that the dividend amount so set off shall have to be deducted from the deemed dividend amount computed above. However, the observations made by Ld CIT(A) show that the tax authorities have not examined this aspect properly. Hence, the factual aspect on this matter, in our view, requires verification preferably at the end of the assessing officer.
The foregoing discussions show that the views entertained by the tax authorities on the matter of “accumulated profits” and “deemed dividend” are not in accordance with the settled position of the law. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the Assessing Officer with the direction to carry out due verification of the computations made with regard to the accumulated profits and also determine the amount of ‘deemed dividend’, if any, accordingly after verifying the record with regard to the amount to be deducted as per clause (iii) of sec. 2(22)(e) of the Act, which was discussed in the preceding paragraph. Appeal of the assessee is treated as partly allowed for statistical purposes.
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