|
Advanced Search Options
Case Laws
Showing 181 to 200 of 1288 Records
-
2014 (9) TMI 1114
Reopening of assessment - Held that:- We need not set out all the arguments in detail. It would suffice to say that the said notices do not meet the requirements of law. Consequently, the notices under Section 148 dated 31.05.2012 and 28.03.2013 are set aside and all proceedings pursuant thereto are quashed.
Quashing of the notices dated 31.05.2012 and 28.03.2013, however, does not preclude the Assessing Officer from issuing a fresh notice under Section 148 in relation to the assessment year 2008-09, if the Assessing Officer has reason to believe that income chargeable to tax has escaped assessment, having regard to the first proviso to Section 147 and other applicable provisions of the said Act. We are also making it clear that we have not expressed any opinion on the merits of the matter which includes the question as to whether there was mere change of opinion and / or no fresh material has surfaced after the completion of the assessment under Section 143(3).
-
2014 (9) TMI 1113
CENVAT credit - inputs - whether the Hon’ble Tribunal is correct in allowing the clearance of inputs as such which are procured from other manufacturers by the respondent to 100% EOU without payment of duty or without reversal of CENVAT credit availed on said inputs contrary to the condition of the N/N. 22/2003-C.E., dated 31-3-2003 requiring the 100% EOU to procure the excisable goods directly from factory of manufacture - Held that: - the assessee is entitled to relief under the statutory rules viz., Rule 19(2) of the CER - The Tribunal went beyond the order passed by the Commissioner (Appeals) and held in favour of the assessee insofar as the issue of limitation was concerned - appeal dismissed - decided against appellant.
-
2014 (9) TMI 1112
Reopening of assessment - reassessment proceedings initiated on the basis of the audit objection - non application of independent mind by AO - Held that:- The original assessment was framed u/s. 143(3) of the Act all the material was available on the record and the Assessing Officer applied his mind by making a deep scrutiny while framing the assessment u/s. 143(3) of the Act. The reassessment proceedings were initiated on the basis of the audit objection which cannot form the basis for the Assessing Officer to reopen the closed assessment.
Thus the notice issued by the Assessing Officer on the basis of the audit party was not valid and accordingly, reassessment framed u/s. 147 read with sec. 143(3), on the basis of the aforesaid notice issued u/s. 148 of the Act is quashed. - Decided in favour of assessee.
-
2014 (9) TMI 1111
Disallowance u/s 14A r.w.r. 8D - Held that:- The computation of income reveals that the assessee had disclosed the income from business or profession at ₹ 1,16,12,455/- against which the expenditure of only ₹ 11,73,198/- had been claimed. It cannot be, under any circumstances, said that the assessee did not incur any expenditure for earning of taxable income in crores. Since the assessee had a net positive interest income, under such circumstances, it cannot be said that the assessee had incurred interest expenditure for earning of exempt income.
So far the remaining amount on account of administrative expenses is concerned, it is too meager as compared to the taxable income of the assessee. However, keeping in view the fact that the assessee had earned dividend income, it might have incurred some expenses for the said purpose, we restrict the disallowance under section 14A, to 10% of the total administrative expenses of ₹ 7,31,006/-. - Decided partly in favour of assessee.
-
2014 (9) TMI 1110
Disallowance u/s 14A r.w.r. 8D - Held that:- A perusal of the profit and loss account of the assessee reveals that the assessee had a net positive interest income, under such circumstances, it cannot be said that the assessee had incurred interest expenditure for earning of exempt income.
For the remaining amount of expenditure on account of common administrative expenses is concerned, the disallowance of ₹ 8,61,509/- u/s 14A seems to be excessive, considering the taxable income of the assessee of ₹ 3,20,54,051/-. Moreover, the mechanical application of rule 8D in this case is not warranted, considering the submissions of the assessee that major part of the investment was in unquoted shares of the group companies, the capital gains income from which was not exempt and even no dividend income was received from such investments. Thus as the assessee has earned dividend income, it might have incurred some expenses for the said purpose, in our view, the interest of justice will be well served if the disallowance u/s 14A is restricted to 10% of the remaining/common administrative expenses of ₹ 16,60,983/-. - Decided partly in favour of assessee
-
2014 (9) TMI 1109
Unexplained loan - Held that:- If the addition was to be made that might have been made in the hands of Shri Anand Mohan Shukla, but certainly, not in the hands of the assessee. When it is so, then we accept the loan advance by Anand Mohan Shukla for a sum of ₹ 1,13,000/- as genuine loan. Remaining loan amount is very meager so the same is also accepted as genuine.
In view of the above, we accept the loan of ₹ 1,70,000/- as a genuine and accordingly, delete the addition. For the purpose, all the impugned orders are hereby set aside.The answer to the substantial question of law is in favour of the assessee and against the Department.
-
2014 (9) TMI 1108
Penalty u/s 271(1)(c) - treatment of interest income on deposits made during the construction period - Held that:- The assessee followed the decision of “Indian Oil Panipat Power Consortium Limited vs. ITO” (2009 (2) TMI 32 - DELHI HIGH COURT) wherein, it was held that where funds are infused specifically for purposes of construction or setting up of the plant, interest earned on temporary deposit of funds not immediately required for such purposes would be regarded as inextricably linked to setting up of plant and would, therefore, go to reduce the project cost. It was on the basis of the said decision that the assessee revised its return and claimed that interest income, which had been set off against the project cost in its books of account, was not chargeable to tax as “income from other sources”. The factum of the deposits having been made shortterm nowhere stands challenged. Thus, on this score also, the assessee has a prima facie good case.
Turning to the issue of taxability of interest accrued from deposits of ₹ 7.50 crores made with the District Court, Bathinda arguments of the Ld. that since the deposit was made under the direction of the Hon’ble Supreme Court, it needs to be treated as capital receipt, to be set off against the cost of the project and accordingly after considering the arguments of the parties, we find there is prima facie case in favour of the assessee
As regards the legal claim with reference to disclosure with regard thereto had been made, it was argued that since the matter was litigated there were two possible views and in such cases concealment of penalty is not leviable. Further, the AO nowhere specified the concealment of particulars of income alleged to have been concealed by the assessee. On this score too, the assessee has a prima facie case and the balance of convenience is in favour of the assessee.
The purpose of taking into consideration the period of limitation for filing the appeal before the Tribunal is, as to whether the assessee is pressing/going to press for stay. Obviously, when such a remedy has been prescribed by the statute, it cannot be taken away at the will of the department. It is only because it is reasonably expected that the stay applications would be filed alongwith application by the end of the limitation period, that such period is to be taken into consideration. So far as the present cases are concerned, the appeals italicize been filed within limitation. - Decided in favour of assessee.
-
2014 (9) TMI 1107
Natural justice - Misdeclaration of imported goods - cut and polished diamonds - the adjudicating authority has come to the conclusion that the 997.09 carats of diamonds seized are substituted diamonds and not the original diamonds imported by the appellants - Held that: - the seized goods are still available with the department and, therefore, the request of the appellant for re-testing of the diamonds should have been allowed - The appellant is also seeking re-test by a member of the panel approved by the department and this request is a reasonable one. Therefore, rejection of the request for retesting tantamount to violation of principles of natural justice.
The department also maintains records of imports undertaken by the various importers and, therefore, the department should have verified from their own records, before rejecting the documents submitted by the appellants. If it is found on such verification that the details given by the appellants are incorrect, a specific finding to that effect should have been recorded. This has not been done in the present case. This also constitutes another violation of the principles of natural justice.
The seized goods which are available with the department shall be re-tested by any member of the approved panel from the departments list so as to establish the identity of the seized diamonds with respect to cut, clarity and caratage - appeal allowed by way of remand.
-
2014 (9) TMI 1106
Matter adjourned - Since we are informed by Mr. Khaitan, learned Senior Advocate for the respondent that Mr. Ananda Sen is the Advocate-on-Record for the respondent assessee, learned Central Government Advocate is directed to serve a copy of the Application and Memorandum of Appeal on Mr. Sen within 5th September, 2014 and file Affidavit-of-Service. Mr. Sen will his file vakalatname on or before the adjourned date.
-
2014 (9) TMI 1105
Depreciation on Point of Sale (POS) systems - Held that:- POS in itself functions like a computer as against any peripheral devices. This ground of appeal is accordingly decided in favour of the appellant in the aforesaid terms and the assessing officer is directed to allow deprecation @ 60% on such POS wherein issue in dispute has been decided in favor of the assessee and against the Revenue, no interference is called for in the valid and reasoned order passed by the Ld. First Appellate. See Commissioner of Income Tax vs. Rajdhani Powers Ltd. [2015 (11) TMI 927 - ITAT DELHI]
-
2014 (9) TMI 1104
Penalty levied u/s.271(1)(c) - ITAT deleted the penalty - Held that:- We find from the orders of the assessing officer or the CIT that there is no allegation against the assessee for concealment of particulars of income or had furnished inaccurate particulars of such income, we are of the view that the learned Tribunal was justified in passing the order under challenge. Therefore, the application and appeal are dismissed.- Decided against revenue
-
2014 (9) TMI 1103
Rental income earned from letting out building - “Income from Business” OR “Income from House Property” - Held that:- This Court had an occasion to consider the said question of law in the case of COMMISSIONER OF INCOME TAX-III vs. VELANKANI INFORMATION SYSTEMS (P.) LTD [2013 (8) TMI 113 - KARNATAKA HIGH COURT] held that firstly what is the intention behind the lease and secondly what are the facilities given along with the buildings and documents executed in respect of each of them is to be seen. Thirdly it is to be found out whether it is inseparable or not. If they are inseparable and the intention is to carry on the business of letting out the commercial property and carrying at complex commercial activity and getting rental income therefrom, then such a rental income falls under the heading of profits and gains of business or profession. In fact, any other interpretation would defeat the very object of introduction of Section 80-IA as well as the scheme which is framed by the Government for development of industrial parks in the country. Thus the rental income earned by the assessee should be brought under the head of “Income from Business” and not under the head “Income from House Property”. - Decided against revenue
-
2014 (9) TMI 1102
Cancelling/withdrawing the registration granted to the assessee Trust invoking the provisions of Section 12AA(3) - proof of non charitable activities - Held that:- We are of the opinion that the DIT(E) could cancel the registration granted u/s.12A of the Act by invoking the provisions of section 12AA(3) of the Act only if he was satisfied that the activities of the trust were not genuine or the activities of the trust were not being carried out in accordance with the objects of the trust, that section 12AA(3) of the Act did not authorise the DIT-E to cancel registration u/s.12A, if he was of the opinion that the activities of the assessee trust involved the carrying on of any activity in the nature of trade, commerce or business, that DIT-E had failed to bring out any fact that the activities of the assessee trust were not genuine or were not carried out as per the objects of the trust.
Receipt of ₹ 50.12 lakhs from four caterers can be subject matter of the assessment order to be passed by the AO. But, same cannot be, in any condition, the basis for invoking provisions of section 12AA(3). Circular issued by the CBDT on 06.04.2011 clearly mentions that amendment would be applicable from the AY.2011-12 and subsequent assessment years.
In this case registration was granted in 1981 and was withdrawn for the AY.2009-10 i.e. before the AY. 2011-12. As the cancellation is against the provisions of law, so same cannot be endorsed. Here, we would also like to mention the case of Maharashtra Housing and Area Development Authority (2013 (11) TMI 516 - ITAT MUMBAI), DIT-E, Mumbai had withdrawn the registration granted to the assessee on the similar grounds. While deciding the appeal in favour of the assessee, Tribunal held that even though the objects of the institutions were no longer towards a charitable purpose in view of the amended law, registration u/s.12A could not be reviewed or withdrawn in absence of stipulation in section 12AA(3)regarding continuing satisfaction. - Decided in favour of the assessee-trust.
-
2014 (9) TMI 1101
Grant of registration to assessee trust - whether the assessee trust is generating wealth by accumulating huge surpluses over the years in guise of a charitable trust? - ITAT directing to grant registration - Held that:- Apart from the fact that the question so raised is a question of fact, the mere fact that the assessee generated wealth by accumulating surpluses from donations, which are said to be doubtful etc. cannot be a ground to deny registration as a Charitable Trust. The charitable nature of an institution depends upon its activities. It is not denied that the respondent runs three different educational institutions. Thus, the mere fact that the Trust may have received donations, which as per the revenue are doubtful, though without referring to any material much less prima facie material cannot be a ground to reject registration, as a Charitable Trust. - Decided against revenue
-
2014 (9) TMI 1100
Disallowance of depreciation on plant and machinery - some of the units of the assessee are closed - Held that:- As relying on CIT Vs. Bharat Alumunium Co.Ltd [2009 (10) TMI 505 - DELHI HIGH COURT ] even if some of the units of the assessee are closed, other units are certainly working and the depreciation is to be allowed on the entire block of assets of the plant & machinery and not only individual plant and machinery of each unit of the assessee. When some of the units are closed and some of the units are working, then, the depreciation on the entire block of assets would be allowed. - Decided in favour of assessee.
Disallowance of quarry development expenses - Held that:- Admittedly, by removing the overburden of the mines, the assessee has not acquired any asset. It was also explained that removal of the soil, stones etc. in order to reach the deposits of cement grade lime stones is a continuous process and the expenditure is required to be incurred year after year. It was also explained that in the earlier year, such expenditure was always allowed. While allowing the relief, the CIT(A) has relied upon case of Alembic Chemicals Works Co.Ltd. Vs. CIT, Gujarat - [1989 (3) TMI 5 - SUPREME Court], CIT Vs. Associated Cement Company Ltd. - [1988 (5) TMI 2 - SUPREME Court] and Empire Jute Co.Ltd. Vs. CIT - [1980 (5) TMI 1 - SUPREME Court ] . CIT(A) rightly held that the quarry development expenses need to be allowed as a revenue expenditure - Decided in favour of assessee.
-
2014 (9) TMI 1099
Addition made u/s 14A read with Rule 8-D - CIT-A deleted the addition - Held that:- Admittedly, the A.O. has computed the disallowance u/s 14A read with Rule 8-D. It is a settled law that Rule 8-D is applicable from A.Y. 2008-09, hence, not applicable for the year as held in the case of Godrej and Boyce Mfg. Co. Ltd. Vs. DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT ] - Decided against revenue
Attribution of in-direct and direct expenditure for earning the exempt income - Held that:- We find that the total investment made during the year were at ₹ 9.39 crores. We also find that the assessee had profit on sale of investment at ₹ 21.55 crores, net profit during the year at ₹ 48.15 lacs and funds available on account of sale of investment during the year at ₹ 38.31 crores. In our considered opinion, the assessee was having sufficient own funds for making the investment of ₹ 9.39 crores. As own funds are found to be far in excess of the investment, we do not find any reason for making the disallowance at ₹ 50 lacs. We, accordingly, set aside the findings of the ld. CIT(A) and direct the A.O. to delete the additions sustained by the ld. CIT(A). - Decided against revenue
Restricting the disallowance on account of administrative and managerial expenditure at 5% of the exempt income - Held that:- We have carefully perused the order of the Tribunal in assesse’s own case [2010 (10) TMI 214 - ITAT MUMBAI]wherein ITAT has confirmed the disallowance on account of administrative and managerial expenses u/s 14A of the Act to the extent of 5% of the total exempt income. Respectfully following the findings of the Tribunal, the ld. CIT(A) has restricted the disallowance. We, therefore, do not find any reason to interfere with the findings of the ld. CIT(A).- Decided against revenue
Disallowance of interest expenditure - Held that:- Total own funds available with the assessee was at ₹ 98.15 crores. The assessee has purchased fixed assets of ₹ 37.02 crores which is out of loan funds taken during the year thereby leaving the assessee net own funds of ₹ 98.14 crores. The investment made during the year is at ₹ 103.69 crores which means that ₹ 5.55 crores have been invested not out of own funds. Taking average rate of interest as taken by the ld. CIT(A) at para 9 of his order which is 4.35%. The total disallowance on account interest comes to ₹ 24 lacs approximately. Considering the above factual facts and figure, we direct the A.O. to restrict the disallowance to ₹ 24 lacs on this account.
-
2014 (9) TMI 1098
Justification in proceeding under section 153C - exemptions u/s 11 denied - Held that:- The Tribunal examined the scope of section 153C of the Income Tax Act, 1961 (the I.T. Act) and observed that the provision cannot be resorted unless the authorities find any material which is incriminating in nature. In the facts of this case, there was no justification in proceeding under section 153C of the I.T. Act and, therefore, we find that the Tribunal's view was justified in the facts and circumstances peculiar to the assessee. No documents were found at the premises of the assessee. - Decided in favour of assessee
-
2014 (9) TMI 1097
Scope of Rectification or review petition - Held that:- We find that in the MAs. filed by the Revenue, no point or argument has been mentioned, which may have been argued on behalf of the Revenue at the time of hearing of the appeals of the Revenue, by the Tribunal. In these facts of the case, and in view of the fact that at the time of hearing of these MAs., the Revenue could not point out any argument which was made at the time of hearing of these appeals of the Revenue before the Tribunal, and on which it has been claimed by the Revenue that no findings were recorded by the Tribunal. Likewise there is no mention of any arguments on a point, which may have been argued before the Tribunal at the time of hearing of the appeals in the present MAs. preferred by the Tribunal. It is well settled that the Tribunal has no power to review its own order and it has limited jurisdiction to rectify any mistake in the order of the Tribunal, which could be said to be apparent from the record. In the facts of the present case, no mistake could be pointed out in the appellate order of the Tribunal dated 7.9.2012 (2012 (9) TMI 1093 - ITAT AHMEDABAD), which could be said to be a mistake apparent from record, and accordingly, the present MAs. preferred by the Revenue are devoid of any merit, and are accordingly dismissed.
-
2014 (9) TMI 1096
Maintainability of appeal - levy of duty - whether this appeal is maintainable before the High Court u/s 35G or appeal will be maintainable before the Supreme Court u/s 35L of the CEA, 1944? - Held that: - The said legal issue/question was examined in detail in the case of Commissioner of Service Tax v. Ernst and Young Pvt. Ltd. [], where it has been held that the expression “rate of duty” would include “levy of duty”. By Finance (No. 2) Act, 2014, amendments have been made to stipulate that “rate of duty” would include question of “levy of duty.” - appeals are accordingly returned without answering the question, for want of jurisdiction - decided against appellant.
-
2014 (9) TMI 1095
Validity of settlement proceedings - what is the specified date as defined and provided under Section 245HA? - Held that:- In the present case the application for settlement under Section 245C was filed on 28.5.2007, it means before the 1st June 2007. In such circumstances in accordance with Sub section 4A of Section 245D of the Income Tax Act the specified date would be 31.3.2008 and if the period from 28.5.2007 to 31.3.2008 be excluded, which comes to 10 months and three days, then the assessment has to be completed up to 31.10.2009.4. Thus initiation of the proceeding and issuance of notices dt.19.8.2010 are beyond the period of limitation. It means that the revenue had no power and authority to continue the assessment proceeding beyond the statutory period of limitation.Consequently, the petition filed by the petitioner is allowed. The impugned notices dt.19.8.2010 (Annexure P/1-A) and continuation of assessment proceedings are hereby quashed.
............
|
9911796707
