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Showing 181 to 200 of 1429 Records
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2014 (2) TMI 1252 - SUPREME COURT
Arbitration and Conciliation - High Court has appointed/nominated an Arbitrator on behalf of the appellant herein on the ground that in spite of notice by the respondent in this behalf, the appellant had failed to nominate its Arbitrator in terms of Clause 25 of the Agreement entered into between the parties - Held that:- Setting aside the order of the High Court, we would like to give the following directions, in order to balance the equities:
(1) It shall be ensured by the appellant that final bill is settled by SCOPE within two months from the date of receiving the copy of this order. For this purpose, this order shall be brought to the notice of SCOPE as well so that SCOPE acts swiftly for settling the bill.
(2) In case there are certain claims of the respondent which are not agreed to while passing the final bill and disputes remain, those will be taken up by the appellant with SCOPE immediately thereafter by invoking arbitration between the appellant and SCOPE as per the arbitration agreement between the appellant and SCOPE. In raising such disputes the appellant and the respondent shall act in unison as per the understanding arrived at between them vide supplementary agreements. In that event, arbitral tribunal shall be constituted within 2 months thereof.
(3) In case the appellant is satisfied with the final bill and chooses not to raise the claims with SCOPE but the respondent feels that their claims are legitimate then it would be treated as dispute between the appellant and the respondent. In that event, arbitral tribunal shall be constituted as per Clause 25 of the agreement dated 3.3.1998 between the parties within a period of two months of that event.
(4) In either of the aforesaid arbitrations, the arbitral tribunal shall endeavour to render its award within six months from the date of the constitution of the arbitral tribunal.
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2014 (2) TMI 1251 - ITAT MUMBAI
Penalty u/s. 271(1)(c) - addition of income u/s. 2(22)(e) on deemed dividend - Held that:- Facts on record show that on the date of taking these advances, there was no approved plan of phase-II. The assessee could not furnish copy of plan of Phase-II put up for approval before the competent authority. Since no approved plan was available, there cannot be any question of allotting commercial space to these three companies. These facts were very much in the knowledge of the assessee yet the assessee chose to show these advances under the head 'current liability' as advances for commercial space. In our considered view, this conduct of the assessee clearly establishes the concealment of facts and filing of inaccurate particulars.
The assessee has concealed the true facts thereby filed inaccurate particulars. Therefore, we do not find any error or infirmity in the findings of the Ld. CIT(A). The penalty u/s. 271(1)(c) is leviable on the facts of the case - Decided against assessee
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2014 (2) TMI 1250 - KERALA HIGH COURT
Permission to pursue the statutory remedy by way of appeal - Held that:- The law has already been declared by a Division Bench of Madras High Court exactly on similar circumstance as per the decision in Metal Weld Electrodes v. CESTAT, Chennai (2013 (11) TMI 240 - MADRAS HIGH COURT), that statutory remedy by way of appeal is maintainable. It is stated by the learned Standing Counsel that, similar decision has been taken by this Court as well.
The learned Senior Counsel for the petitioner submits that, in the light of the law as aforesaid, the petitioner may be permitted to pursue the statutory remedy by way of appeal.-
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2014 (2) TMI 1249 - GUJARAT HIGH COURT
Disallowance of depreciation on assets of sale & lease back transaction - CIT(A) deleted the disallowance - Held that:- For claiming higher rate of depreciation, there is no requirement under the Act of usage of the assets by the assessee himself. The vehicles were purchased by the assessee from manufacturer and leased out to customers. Such vehicles were used in the course of leasing business. See M/s ICDS. LTD. Versus COMMISSIONER OF INCOME TAX. MYSORE & ANR. [2013 (1) TMI 344 - SUPREME COURT] - Decided in favour of assessee
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2014 (2) TMI 1248 - MADRAS HIGH COURT
Reversal of input-tax credit - Manufacture of wheels and air-suspension automobile components - Petitioner selling the goods in the course of inter-State trade or commerce, under section 8(1) of the Central Sales Tax Act, 1956 for which the assessing authority took a position that case would fall under clause (v) of sub-section (2) of section 19 and therefore, the proviso inserted by the amendment would apply to them and called upon the petitioner to claim the input-tax credit in excess of three per cent. and reverse the credit up to three per cent but petitioner contended that they would fall under clause (ii) of sub-section (2) of section 19 - Held that:- clause (ii) deals with purchase of goods used as input in manufacturing and processing of goods in the State but clause (v) deals with sale in the course of inter-State trade or commerce. Interestingly, clause (ii) uses the expression "manufacturing or processing", but not the expression "sale in the course of inter- State trade or commerce". On the contrary, clause (v) uses the expression "sale in the course of inter-State trade or commerce", but not the expression "manufacturing or processing".
If at least the expression "sale" had been used in clause (ii), one can conclude that clause (ii) applies only to manufacture and sale within the State. Alternatively, if at least the expression "manufacture" had been used in clause (v), one can conclude that clause (v) covers the manufacture and sale in the course of inter-State trade or commerce and not manufacture and sale within the State. But, both these clauses omit the expressions essential for the interpretation that the parties want to view to the proviso to clause (v). While the petitioner wants to read into clause (ii), the expression "sale", the respondent wants to read into clause (v), the expression "manufacture". Therefore, if one is wrong, the other is also wrong and if one is right, the other should also be right. So, to come up from this confusion, the application has to be made to Advance Ruling Authority which the appellant has already and rightly made and the respondent ought to have waited for the decision of Advance Ruling Authority. Since the respondent did not wait, the petitioner is justified in coming up before this court.Therefore, the impugned orders suffer from non application of mind and are liable to be set aside. - Matter remitted back
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2014 (2) TMI 1247 - ITAT PUNE
Deduction u/s.10B - denial of claim on the ground that the assessee company is not a 100% EOU since it is not approved by the Board appointed in this behalf by the Central Government u/s.14 of the Industries (Development and Regulation) Act, 1951 - Held that:- no approval / ratification of STPI approval is required from BOA formed by Ministry of Commerce u/s 14 of Industries (Development & Regulation) Act, 1951. For the above reason, the Tribunals have found that the decision of Infotech Enterprises Ltd., (2002 (5) TMI 217 - ITAT HYDERABAD-B) will not be applicable after 2006. In view of the discussions made above, from which it is apparent that the overwhelming view of the Tribunals have been to treat the approval granted by the STPI to be enough for the fulfillment of condition prescribed in sec. 10B for approval of the EOU unit under sec. 14 of Industries (Development & Regulation) Act, 1951 and on this ground the benefit cannot be denied has to be accepted despite the fact that the sec. 10B specifically talks of only registration u/s.14 of Industries (Development & Regulation) Act, 1951. Since the Assessing Officer in this case has only raised this issue, the same has to be not allowed in view of the discussions made above. Ground No. 1 therefore, is allowed. The Tribunal in the above relied cases have also allowed the benefit on the 'principle of consistency', which is applicable in this case also. It was demonstrated by the AR that similar benefit u/s 10B was allowed by AO in earlier assessment years and no action to J withdraw the same has been taken. - Decided in favour of assessee
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2014 (2) TMI 1246 - ITAT MUMBAI
Validity of reopening of the assessment - Held that:- In the instant case, we have already noticed that the return of income has been processed only u/s 143(1) of the Act. Hence, in our view, the decision rendered by Hon’ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers (2007 (5) TMI 197 - SUPREME Court ) squarely applies in the instant case. The Ld A.R placed reliance on the decision of Co-ordinate Mumbai bench in the case of Aipitia Marketing (P) Ltd [
2007 (8) TMI 488 - ITAT MUMBAI] to contend that the re-opening of assessment is not valid, even if the return had been processed u/s 143(1) of the Ace, if there is no fresh material before the AO. In our view, the said decision is not applicable in the instant case, since the reassessment is warranted due to the retrospective amendment brought in the Act. Hence, we do not find any infirmity in the decision of the ld CIT(A) in upholding the reopening of the assessment. Accordingly, we uphold his order on this issue.
MAT computation - Addition of “Provision for bad and doubtful debts” in computing the “Book Profit” - Held that:- In the instant case, we are concerned with the provisions of sec. 115JB, wherein the book profit is required to be computed from the audited accounts prepared under the provisions of the Companies Act. Under the accounting principles, on the basis of which the accounts are prepared under the Companies Act, the terms “Bad debts” and the “Provision for bad and doubtful debts” have distinct meaning and has got different accounting treatment. Hence, in our view, the decision rendered by Hon’ble Supreme Court in the case of Vijaya Bank (2010 (4) TMI 46 - SUPREME COURT ) under the normal provisions of Income tax Act, cannot be applied to the provisions of sec. 115JB of the Act. We notice that the Co-ordinate bench in the case of Tainwala Chemicals & Plastics India Ltd. [2011 (4) TMI 840 - ITAT MUMBAI ] , did not consider the applicability of the Companies Act to the book profit computed under sec. 115JB Act. In view of the foregoing, in our view, the Ld CIT was justified in upholding the addition of “Provision for bad and doubtful debts” to the book profit.
Computation of interest u/s 234B and 234C - Held that:- We set aside the order of Ld CIT(A) on this issue and restore the same to the file of the AO with the direction to compute the interest u/s 234B and 234C of the Act by excluding the addition relating to “Provision for bad and doubtful debts” from the amount of book profit.
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2014 (2) TMI 1245 - GUJARAT HIGH COURT
Disallowance u/s 14A r.w.r 8D - Whether Tribunal was right in law in not deciding the matter and instead sending the matter back to the Assessing Officer for fresh decision? - Held that:- Rule 8D formula could not be applied to the case which arose prior to the introduction of said rule. Nevertheless and more so, therefore, a need would arise to ascertain the disallowance of expenditure, if any, and if so, to what extent be made for the assessee to earn tax exempt income. Since this exercise was not done previously, the Tribunal was within its right to require the Assessing Officer to do so. It is true that in a given case the Tribunal could also either on the basis of the materials already on record or when need be, after calling remand report, itself undertakes such an exercise within the parameters of law. Nevertheless, even in the facts of the case, the Tribunal found it more appropriate and convenient to require the Assessing Officer to do so. - Decided against assessee
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2014 (2) TMI 1244 - ITAT HYDERABAD
Taxability of interest income on principles of mutuality - Held that:- The Hon’ble jurisdictional High Court in assessee’s own case (1975 (12) TMI 6 - ANDHRA PRADESH High Court ) has decided the issue against the assessee by holding that interest income earned from deposits with member banks is taxable in the hands of the assessee. Considering such submissions of the assessee and going through the decision of the Hon’ble High Court in assessee’s own case we uphold the order of the CIT (A) by dismissing the ground raised by assessee.
Set off of operational loss against income assessed - Held that:- On a careful reading of sec. 71 of the Act, we are of the view that the aforesaid section allows set off of loss under any head of income, other than capital gains, against income assessable for that assessment year under any other head. Only restriction being, there should not be any income under the head capital gains. Therefore, if the assessee has sustained loss under any head, except capital gains, and the assessee has no income from capital gains during the year, then loss can be set off against income assessable under any other head. However, it appears from the record that assessee has not raised this issue before the first appellate authority. That apart, full facts relating to this issue have not been brought on record. It is also submitted by the learned AR that similar issue pertaining to asst. year 1996-97 and asst. years 1998-99 to 2003-04 are pending before the CIT (A) having been remitted by the Income-tax Appellate Tribunal. Considering the totality of facts and circumstances of the case, we deem it appropriate to remit this issue to the file of CIT (A) for deciding afresh - Decided in favour of assessee for statistical purposes.
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2014 (2) TMI 1243 - ITAT KOLKATA
Addition u/s 40A(3) - whether payments are all covered by the exception to rule 6DD of the I.T.Rule’62, and as such the addition may please be deleted - cash payments made by the assessee for the purchase of country liquor from the Government authorised dealers - Held that:- The issue in the assessee’s case is in respect of the payments made under the rules framed by the Government and such payment was required to be made in legal tender. A perusal of the Government Notification issued by the Govt. of West Bengal clearly shows that the dealers are agents of the Government and the payments made are to the Government. It also makes it categorically required that the payment is to be made before lifting of the country spirit. Consequently we are of the view that the issue is squarely covered by the decision of the Coordinate Bench of this Tribunal in the case of M/s.Amrai Pachwai & C.S.Shop [2014 (2) TMI 979 - ITAT KOLKATA] wherein held the provisions of Rule 6DD(b) of the I.T.Rules, 1962 which clearly spells out that the payment made to the government in legal tender under the rules framed by the Government, is exempted from the rigours of section 40A(3) of the Act. Here, it is noticed that the payments made by the assesee for purchase of country spirit and country liquor is to the government as per the notification issued by the government and is in legal tender specified by the notification. In the circumstances, we are of the view that the payment made by the assessee for the purchase of country liquor and country spirit from the territorial licensee bottling plant, IFB Agro Industries Ltd., City Centre, Durgapur is protected by the exemption in terms of Rule 6DD(b) of the I.T.Rules 1962. In the circumstances, the addition as made by the AO and as confirmed by the ld. CIT(A) by invoking the provisions of section 40A(3) of the I.T.Act 1961 stands deleted. - Decided in favour of assessee
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2014 (2) TMI 1242 - HIGH COURT OF RAJASTHAN
Validity of revision order u/s 263 - as per CIT(A) addition ought to have been towards undisclosed income of AOP instead of being taxed under the head 'income from business' - Held that:- In the present case, it is more than apparent that the learned Commissioner has proceeded to invoke his jurisdiction under s. 263 of the Act only on his own opinion as to how the amount of the income concerned ought to have been treated. We may observe that so far this amount of ₹ 38,17,000 is concerned, it was not the case that the assessee had not disclosed the same at all. It is different matter that the same was treated by the AO to be part of income of business after consideration of the record and with the finding that the same was to be treated as profit from the business of sale of agricultural land.
In the given set of facts and circumstances of the case, particularly when the said income has been duly added to the income of the assessee, neither the order of the AO on this ground could have been considered as erroneous nor it could have been treated as operating prejudicial to the interest of Revenue.
Thus when we find that the order passed by the Tribunal is in consonance with the law applicable and cannot be said to be legally unjustified, the formulated question in this case is required to be answered in the affirmative i.e., against the Revenue and in favour of the assessee.
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2014 (2) TMI 1241 - ITAT AHMEDABAD
Disallowance under 14A - Held that:- Assessee has earned tax free income to the extent of ₹ 24.92 lacs against which the disallowance. of ₹ 10 lacs under 14A has been sustained by CIT(A). Considering the totality of facts, we find that the disallowance that has been sustained by CIT(A) is on higher side and the ends of justice shall be met if the disallowance is restricted to ₹ 5 lacs. We thus direct accordingly. - Decided partly in favour of revenue
Disallowance made on account of sundry debit balances written off - Held that:- We find that CIT(A) has given a finding the Assessee has written off net debit balance and has followed the decision of Hon. Apex Court in the case of TRF Ltd. reported at [2010 (2) TMI 211 - SUPREME COURT ] where it was held that after the amendment of Section 36(2) effective from 01.04.1989 by Finance Act, 1987, once the Assessee has written of the debts in the books, it is not necessary to prove that the debt has become bad for the purpose of allowing claim of bad debts. - Decided in favour of assessee
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2014 (2) TMI 1240 - GUJARAT HIGH COURT
Direction to constitute the Bench - Held that:- Without going into merits of the matter, at the request of learned advocate for the petitioner and petitioner himself, this Court is inclined to dispose of the matter with a direction to respondent no. 1 & 2 to re-constitute the Special Bench for deciding the Reference aforesaid within a period of three months from the date of receipt of the writ of this order. Meaning thereby the entire exercise of reconstituting Special Bench and hearing of the Reference and disposing of the same shall be completed within three months from the date of receipt of this order. Shri Shah the petitioner, in view of above directions does not press this petition.
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2014 (2) TMI 1239 - CESTAT MUMBAI
Imposition of Anti-dumping duty under Section 9A of Customs Tariff Act, 1975- Import of Viscose Filament Yarn from the People’s Republic of China for which bills of entry submitted shows Shanghai and goods of China Origin- Liability to pay anti-dumping duty as provided under Serial No. 5. which read “any country of export except China PR”- Held that: there is no dispute that the goods were imported from the People’s Republic of China and country of origin is also the People’s Republic of China. Therefore the imposition of anti-dumping duty as provided under Serial No. 5 of the Notification, which is in respect of any goods imported from any other country except People’s Republic of China, is not sustainable. - Decided in favour of Appellant
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2014 (2) TMI 1238 - GUJARAT HIGH COURT
Tax Appeal is admitted for consideration of following substantial question of law :
“Whether the Appellate Tribunal has substantially erred in upholding the order of the CIT [A] in deleting addition made by the Assessing Officer on account of unutilized CENVAT/MODVAT credit of ₹ 33,25,541/=?
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2014 (2) TMI 1237 - DELHI HIGH COURT
Revision under Section 263 - Held that:- This Court has considered the Tribunal’s determination made on the basis of a detailed scrutiny of the material available to the assessing officer, which had been enquired into at the stage of assessment. In our opinion, the Tribunal’s finding with regard to the proprietary of the Commissioner’s exercise power under Section 263 of the Income Tax Act cannot be termed as erroneous.
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2014 (2) TMI 1236 - ITAT MUMBAI
Assessment of business profits - income declared during survey and consequent disallowance of business expenses - Held that:- Disallowance of business expenses is covered by the decision of the Tribunal in the case of other group concern in the case of Shrreshay Engg. Pvt. Ltd. [2014 (1) TMI 876 - ITAT MUMBAI] wherein the Tribunal has held that the expenses are to be allowed by AO after verification as AO and the Ld.CIT(A), however, misconceived the claim of the assessee for the said expenses as that of against the additional income declared during the course of survey and made disallowance of the said expenses on the basis of this misconception without considering or examining the said claim on merit being the claim for regular business expenses of post survey period against regular business income.
Allowability of set off of the brought forward business losses and unabsorbed depreciation of the earlier years - Held that:- The present assessee has moved an application u/s 154 before the AO for considering the said claim, which is not disputed by the Revenue, we, following the aforementioned decision of the earlier years being assessment years 2005-06 and 2006-07, direct the AO to dispose of the application filed by the assessee u/s 154 expeditiously without any further delay
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2014 (2) TMI 1235 - ITAT AHMEDABAD
Lvy of penalty u/s 158BFA - assessee had earned business income outside its books, which had not been disclosed in the return of income but was disguised as agricultural income - Held that:- We find that with respect to undisclosed agriculture income, CIT(A) while deleting the addition on agriculture income has noted that Assessee had claimed to have earned agricultural income of ₹ 35,72,353/- but in appellate proceedings the income of ₹ 23,11,092/- was accepted. He has further noted that during the course of penalty proceedings, Assessee had furnished evidences in the form of confirmations but the same were not considered by A.O. He has further noted that A.O. had disallowed the agriculture income by treating it as business income but for which no evidence during the search or otherwise was found to show that Assessee had earned business income outside it books and has not been disclosed in the return of income but was disguised as agriculture income. With respect to disallowance of professional fees, CIT(A) has given a finding that Assessee was engaged on 31.03.1999 and ₹ 4.50 lacs was also paid subsequently to him. The issue that whether the liability of professional fees accrued as on 31.03.1999 was a debatable issue and therefore penalty cannot be sustained on debatable issue. With respect to gross profit, he has noted that G.P. addition was made on the basis of estimate and therefore no penalty was leviable. Before us, the Revenue could not controvert the findings of CIT(A) by bringing any contrary material on record.
We also do not agree with the submission of Revenue that penalty u/s. 158BFA is mandatory in view of the decision of Rajasthan High Court in the case of CIT vs. Satyendara Kumar Dosi (2009 (1) TMI 240 - RAJASTHAN HIGH COURT) where the Hon’ble High Court has held that levy of penalty u/s. 158BFA(2) is discretionary and not mandatary. - Decided in favour of assessee
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2014 (2) TMI 1234 - ITAT MUMBAI
Disallowance of interest made u/s 14A - CIT(A) deleted the disallowance on the reasoning that the assessee did not incur any interest expenditure for earning tax free dividend - Held that:- The interest income has been received from bank deposit, while interest payment is made to directors and not against any bank loan. Hence, in our view, the question of netting off interest will not arise. In view of the foregoing discussions, in our view, the AO was justified in making disallowance of part of interest expenditure in terms of Rule 8D(2)(ii) of the Income tax Rules read with section 14A of the Act. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the addition made by the assessing officer.
Disallowance u/s 36(1)(iii) - CIT(A) deleted the addition - Held that:- There is no dispute that the assessee was required to invest a sum of ₹ 3.70 crore as per the above said agreement. Further the terms of the agreement also show that the assessee was selected as a turnkey contractor for executing the project. According to the assessee, a special purpose vehicle, viz., M/s Hassan Biomass Power Company Private Ltd was formed and the assessee has contributed a sum of ₹ 3.25 crores towards its share capital. According to the Ld A.R, the other share holder was M/s Nucon Energy Group, Mauritius. We notice that these factual aspects have not been examined by the assessing officer. However, the factual position narrated by the Ld A.R would show that the assessee was having a commercial interest and also obligation in making investment of ₹ 3.25 crores, referred above. Besides the above, the assessee has also supplied the materials to M/s Hassan Biomass power company Pvt Ltd. We notice that the said investment has been made in the earlier years, i.e., it is reflected in the Balance sheet as at 31.3.2005. Under these set of facts, the Ld CIT(A) has expressed the view that the investment of ₹ 3.25 crores cannot be said to be for non-business purposes. In view of the foregoing discussions, we are also inclined to accept the view expressed by Ld CIT(A). Accordingly, we uphold his view on this issue.
Sale of shares - "Income from business" OR "Capital gains" - Held that:- The tax authorities have reached their own conclusions without properly appreciating the facts surrounding the issue, particularly the clarificatory letter issued by the tax auditor, the frequency of transactions etc. Hence, in our view, this issue requires fresh examination at the end of the assessing officer. Accordingly, we set aside this order of ld CIT (A) on this issue and restore the same to the file of the AO with the direction to examine the issue afresh by duly considering all the materials that may be produced by the assessee and also the facts surrounding the issue and take appropriate decision in accordance with the law.
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2014 (2) TMI 1233 - CESTAT AHMEDABAD
Denial of principles of natural justice - Utilization of procured raw materials and bogus exports shown with respect to goods shown to have been made out of non duty paid raw materials - delaying of adjudication proceedings - stay proceeding - Held that:- It is observed from the case records that Advocate of the appellant vide letter dated 19/4/2006 asked for copies of certain documents from DGCEI before filing reply to the Show Cause Notice dated 31/1/2006. Though a copy of this letter was marked to Adjudicating Authority but the relied upon document copies were never asked from the adjudicating authorityfor more than seven years appellant slept and did not care to remind the adjudicating authority that certain documents are required and that that appellant has some duty towards filing of a written reply to the Show Cause Notice. Appellant also did not bother to intimate the field formations or the Adjudicating Authority regarding change in address for communication. It appears that appellant has indulged in delaying of adjudication proceedings
As main appellant M/s Waghbakriwala Rayons is required to be put to certain conditions in order to ensure that appellant co-operate with the Adjudication proceedings. It is accordingly ordered that main appellant shall deposit an amount of ₹ 20 lacs (Rupees twenty lacs only) within a period of 8 weeks and report compliance to the Adjudicating Authority. On verification of the payment of above deposit, Adjudicating Authority will decide the case afresh in denovo adjudicating, after giving all the relied upon documents to the appellants and after extending them opportunity of personal hearing. It is clarified that this Bench has not expressed any opinion on merits and has kept all the issues open.
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