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Showing 201 to 220 of 1389 Records
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2014 (7) TMI 1192
COD Clearance - Recall of order - Mechanism of obtaining an approval from the Committee on Disputes (COD) for prosecuting the appeals - Held that:- Revenue had not made any application to obtain approval of the COD before it filed its appeal for A.Y.1996-98 to the Tribunal. COD mechanism being very much in force at that time. The recall of its earlier orders in respect of ONGC by the Supreme Court in the case of ELECTRONICS CORPORATION OF INDIA LTD [2011 (2) TMI 3 - Supreme Court ] only does away with the practice in view of the changed circumstances. The necessity of obtaining approval from COD which was in practice at the relevant time cannot be done away with on the ground that the Supreme Court has now held that the practice needs to be discontinued.
In the above facts and circumstances, we see no reason to entertain the present petition. Accordingly, writ petition is dismissed with no order as to costs.
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2014 (7) TMI 1191
Disallowance of hoarding expenses - revenue v/s capital - Held that:- These hoardings were required to be maintained by the assessee and in order to avoid corrosion of the structure and other adverse weathering effects, application of red oxide and painting was regularly required to be done. Similarly, cementing and plastering of foundation was also required to be done regularly in order to maintain the hoarding structures. Keeping in view the nature of business activity carried on by the assessee, we are of the view that the expenditure incurred by the assessee to maintain the structures used for hoardings is of revenue in nature especially when the quantum of expenditure incurred is considered in the light of the fact that there were 15 hoardings which were exposed to climate. It is also relevant to note that such expenditure is a recurring expenditure which is required to be incurred by the assessee regularly and the same therefore cannot be said to have given any enduring benefit to the assessee in capital field. Moreover, even if the hoarding expenditure claimed by the assessee is inclusive of replacement of M.S. Angles etc., as noted by the A.O., the same is in the nature of replacement of parts of the hoarding structure which cannot be treated as capital expenditure.
Assessee is entitled to deduction on account of hoarding expenditure being in the nature of revenue expenditure - Decided in favour of assessee
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2014 (7) TMI 1190
Allowance of depreciation on foundation and other civil work of wind mill - Held that:- There is no infirmity in the order of the Ld. CIT(A) who rightly directed the Assessing Officer to recalculate the depreciation after giving effect to the order of the ITAT [2011 (11) TMI 725 - ITAT JODHPUR], depreciation was changed for the A.Y. 2006-07 which had the impact on the depreciation for the A.Y. 2007-08. The assessee brought forward the unabsorbed depreciation for both the preceding assessment years i.e. A.Y. 2006-07 & 2007-08 which was claimed against the income for the year under consideration and as there was change in actual depreciation which was to be allowed after giving appeal effect of the ITAT order [2011 (11) TMI 725 - ITAT JODHPUR], the Ld. CIT(A) rightly directed the Assessing Officer to allow depreciation after considering the decision of the ITAT and recalculate the allowable depreciation on the wind mill. We do not see any infirmity in the order of the Ld. CIT(A) on this issue. - Decided against revenue
Deduction u/s 80IA from the profit of eligible business - Held that:- The Hon'ble Madras High Court in the case of CIT Vs. Emerald Jewel Industries (P) Ltd. reported in (2010 (8) TMI 648 - Madras High Court) held that the assessee-company is eligible for deduction u/s 80IA of the Act in respect of wind mill installed by it and unabsorbed depreciation of the earlier years could not be reduced from profit for computing the deduction u/s 80IA of the Act. - Decided against revenue
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2014 (7) TMI 1189
Penalty u/s 271(1)(c) - Held that:- Respectfully following the above decisions of Hon’ble Jurisdictional High Court of Delhi in the case of Liquid Investment Ltd. (2010 (10) TMI 1021 - DELHI HIGH COURT ) and other relevant decisions we are inclined to hold that the penalty was imposed on the assessee pertaining to the issue on which a substantial question of law has been framed by Hon’ble High Court and the same has become debatable then no penalty is leviable thereon. Accordingly, we hold that the AO was not justified in imposing penalty and the CIT(A) confirmed the same without any basis and justified ground which is not sustainable in view of foregoing discussions. Resultantly, the sole ground of assessee is allowed.
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2014 (7) TMI 1188
Seeking direction to the 1st respondent-Authority to give effect to the directions contained in the judgment of the Tribunal dated 23.04.2010 - Appellant contended that the position of law which would change or declared by a superior authority would not affect the orders or judgments which have already attained finality - Held that:- the 1 st respondent authority was concerned about the interest of the revenue and therefore, thought that he was bound by the decision of the superior forum i.e. , this court rather than that of the Tribunal, insofar as the petitioner was concerned. It is under a bona fide erroneous impression the impugned orders have been passed. The 1 st Respondent-authority has failed to understood the implication of finality of orders of courts or tribunals and the fact that the subsequent change in the position of law would not affect the orders which have already attained finality. Therefore, the ends of justice would be met in quashing the impugned orders and directing the 1st Respondent-authority to give effect to the directions of the Tribunal in the judgment dated 23.04.2010 de hors the subsequent law that has been declared by this court. Also, the 1st Respondent-authority has to give effect to the directions of the Tribunal for the period 2006-07. - Decided in favour of appellant
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2014 (7) TMI 1187
Invalidation of sales - violation of the condition of non-alienation contained in the assignments - Non-production of the Assignment Registers - Held that:- What this Court is unable to comprehend is the failure of the State to produce the Assignment Registers for the period prior to 1969. As noted above, PW-1 in her evidence stated that these records are kept in old record room. Substantial time was granted to the State to produce the Assignment Registers. Despite availing such time, the State failed to produce these records. The non-production of the Assignment Registers for the earlier periods would give rise to an adverse inference against the State that it has deliberately withheld the record to suppress the fact that the lands were assigned prior to 18-6-1954 and that once again they are being shown as having been assigned from the year 1969 onwards.
The State has got the Darkhast file marked as Ex.A-5 and also produced a few assignment copies in order to fortify their plea that the assignments were made after 18-6- 1954. As observed earlier, Ex.A-5-Register contains several corrections regarding the names of the alleged assignees by rounding off the names originally written and writing fresh names. It is the common case of both the parties that revenue records have been tampered with. As the State has failed to prove that the assignments containing the condition of non-alienation were made for the first time after 18-6-1954, it is not possible for this Court to invalidate the sales purportedly on the ground that such sales are in violation of the condition of non-alienation contained in the assignments.
For the above mentioned reasons, do not find any merit in Company Application
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2014 (7) TMI 1186
Penalty levied u/s.271(1)(c) - assessee has willfully claimed wrong deduction u/s.80IA - Held that:- In Reliance Petro Products Ltd. (2010 (3) TMI 80 - SUPREME COURT ), the Hon'ble Supreme Court emphasized that mere making of a claim of deduction which was not allowable by itself would not amount to furnishing inaccurate particulars of income. In fact, every legal disallowance under the provisions of the Act could not lead to the conclusion that there was furnishing of inaccurate particulars of income on the part of the assessee. We also find in the case of CIT v. Dharampal Premchand Ltd. [2010 (9) TMI 155 - DELHI HIGH COURT ] it was held that merely because the assessee had claimed deduction u/s.80IA and 80IB of the Act which claim was not acceptable to the Revenue, that by itself would not attract the penalty proceedings as the same could not be construed as furnishing inaccurate particulars of income u/s.271(1)(c) of the Act. In view of above factual and legal discussion, the penalty levied by the Assessing Officer was rightly deleted by the CIT(A) - Decided in favour of assessee.
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2014 (7) TMI 1185
Disallowance under section 14A - Held that:- We find that similar issue had come up for consideration before the Tribunal in assessee’s own case for the assessment year 2003–04 and 2004–05, wherein the Tribunal has set aside the issue of disallowance under section 14A, back to the file of the Assessing Officer after observing and holding that there is a drastic change in the disallowance calculated by the assessee bank under the head disallowance made for earning exempt income. We further find that vital factors like availability of share capital / reserve & profits, holding of securities as stock in trade or investment, to decide the issue of proportionate disallowance have not been considered by the AO/ FAA. In our opinion, in the interest of justice matter has to be restored back to the file of the A.O. for fresh adjudication
Disallowance of bad debt written off in relation to non–rural branches - Held that:- We hold that the provisions of ss. 36(1)(vii) and 36(1)(viia) of the Act are distinct and independent items of deduction and operate in their respective fields. The bad debts written off in debts, other than those for which the provision is made under cl. (viia), will be covered under the main part of s. 36(1)(vii), while the proviso will operate in cases under cl. (viia) to limit deduction to the extent of difference between the debt or part thereof written off in the previous year and credit balance in the provision for bad and doubtful debts account made under cl. (viia). The proviso to s. 36(1)(vii) will relate to cases covered under s. 36(1) (viia) and has to be read with s. 36(2)(v) of the Act. Thus, the proviso would not permit benefit of double deduction, operating with reference to rural loans while under s. 36(1)(vii), the assessee would be entitled to general deduction upon an account having become bad debt and being written off as irrecoverable in the accounts of the assessee for the previous year. This, obviously, would be subject to satisfaction of the requirements contemplated under s. 36(2). We hold that the assessee’s claim for bad debt is to be allowed in terms of observations made by the Hon'ble Supreme Court in Vijaya Bank vs. CIT & Anr. [2010 (4) TMI 46 - SUPREME COURT ] subject to satisfaction of requirements contemplated u/s 36(2) wherein held that under the accounting practice, the accounts of the rural branches have to tally with the accounts of the head office.
Exclusion of income earned by the foreign branches - Held that:- The income of the branches of the assessee shall also taxable in India i.e., it would be included in the return of income filed by the assessee in India and whatever taxes have been paid by the Branches in the other contracting States i.e., the source country, credit of such taxes shall be given. - Decided against assessee
Allowance of business expenditure - Held that:- The assessee has claimed actual expenditure incurred on staff welfare to maintain cordial relationship. These expenses cannot be said to be of personal in nature and consistently it has been allowed by the appellate authorities. Thus, following the rule of consistency and also the fact that these expenses are incurred in the normal course of business to maintain healthy relationship with the employees, the same is to be treated as allowable business expenditure under section 37(1) - Decided in favour of assessee
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2014 (7) TMI 1184
Disallowance of interest claimed on personal loan - Held that:- There was no payment of interest on personal account. The interest of ₹ 57,330/- was paid on C.C. Limit utilization for assessee's business. Therefore, the ld. CIT(A) has rightly deleted this addition. - Decided in favour of assessee
Disallowance u/ 40A - payment of interest to unrelated party was at 6% whereas the assessee paid interest @ 18% to the relatives. - Held that:- There is some merit in the arguments of the ld. DR to this effect. The assessee has not disputed in paying interest @ 6% to Shri Bhagat Ram Darak and unrelated party.These borrowings from bank carries rate of interest at 15%.The AO adopted the rate of interest at 15% taking into consideration the higher rate of interest on bank loan. Since the AO has discharged his burden in terms of Section 40A(2)(b) of the Act, we find no infirmity in the order of the AO. Therefore, the rate of interest @ 15% payable to related party is reasonable in terms of Section 40A(20(b) of the Act. Hence, we uphold the order of the AO on this issue and reverse the order of the ld. CIT(A). - Decided in favour of revenue
Addition in respect of paddy yield - Held that:- The AO has recorded a finding that assessee's books are examined on test check basis. When the books are accepted then the yield cannot be estimated without any material. It is a known fact that depending upon the machinery, quality of the seeds, moisture in paddy, monsoons etc. marginal fluctuation in yield is allowable. Therefore in the absence of rejection of books of account, the yield cannot be estimated. Besides, the AO at the most could have considered the addition on account of valuation of stock in case it was found that qualitywise day-to-day production was not maintained by the assessee deliberately. This is not met out by the AO. In view thereof, we find no infirmity in the order of the ld. CIT(A) deleting the addition in respect of paddy yield.- Decided in favour of assessee
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2014 (7) TMI 1183
Assessable value - Whether the technical service fee should be added to the price declared in the pricelists and consequently be included in the assessable value for assessment purposes? - demand pertaining to 4 pricelists effective for the period 30-12-1983 to 7-4-1985 - Held that:- We note that the facts in the above case laws cases are at variance with the present case at hand. It was held in the relied upon cases that the completion of the assessment memorandum in the monthly RT-12 Returns is more or less an arithmetical check. Hence, the enquiry under Rule 173I cannot be extended to enquiries concerning valuation or classification. We are afraid that these judgments have been quoted out of context and are misplaced. In the case of appellants, it is not the Superintendent who sought reopening of pricelists. It is clear that the show cause notice issued to the appellants by Assistant Commissioner was a comprehensive one which sought to revise the pricelists and thereafter only the RT-12 assessments would be finalized under Rule 173I. It is a well settled law that provisional assessments are provisional for all purposes. Once, the basis of wholesale price declared in the pricelists have been challenged in the show cause notice, there would be no bar to finalize the RT 12 assessment in accordance with the revised pricelists. We reject the contention of the appellant. We hold that the Commissioner has correctly ordered to finalize all the pricelists including the revision of prices in pricelists approved earlier which results in confirmation of the entire demand for the period 30-12-1983 to 28-2-1986.
Deduction on account of surcharge on the additional sales tax on the revised prices - if prices are revised as per (i), is to be allowed for arriving at the assessable value for calculation of duty - Held that:- The appellants are not contending that they have paid the surcharge on the additional sales tax. Although, the appellants have already deposited an amount of ₹ 6,96,30,974/- as Central Excise duty, they have not produced any evidence regarding payment of surcharge on additional sales tax for the period 30-12-1983 to 28-12-1986. Therefore, the benefit of deduction on this count from the assessable value cannot be given.
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2014 (7) TMI 1182
Seeking of remission of tax on account of loss suffered in the riots of 1984 - Denial of benefit of Section 25 of the Madhya Pradesh General Sales Tax Act, 1958 - Remission of tax denied on two ground viz., no tax was paid by the petitioner and therefore, the question of granting benefit does not arise as section 25 of the Act is not applicable and even if the petitioner has paid the tax through the dealer, from whom the petitioner has purchased the stocks, then also, the benefit of remission of tax as contemplated under section 25 of the Act cannot be extended to the petitioner as he is not the person who actually remitted the tax - Held that:- the provisions of section 25 of the Act has to be given a liberal interpretation, as ultimately, it is the petitioner, who has suffered the riots and had paid the tax, may be through the registered dealer, from whom the purchases were made, the fact remains that the actual recovery of tax is made from the petitioner through registered dealer and, therefore, the benefit of section 25 of the Act should be extended to the petitioner.
As the State Government has overlooked this aspect of the matter and the action of the State Government to deny the benefit of section 25 of the Act, as done, would frustrate the very purpose, for which the benefit indicated under section 25 of the Act is made, the State Government shall cause an enquiry into the matter with regard to purchases made by the petitioner, the fact with regard to actual payment of tax and further, the fact that the dealer deposited the tax with the Revenue and if it is found that the petitioner has paid the tax, even if through the another dealer, the amount should be refunded back to the petitioner with interest of six per cent per annum from the date of deposit of tax with the Department. Decided in favour of petitioner.
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2014 (7) TMI 1181
Non valid of service of notice - Best Judgment assessment - Held that:- The order of the ld. CIT(A) he has recorded about issuance of notice, but there is no evidence with regard to valid service of notice of hearing upon the assessee. The ld. CIT(A) has heard the appeal ex-parte qua the assessee and dismissed the same. Since the appeal has been disposed of without affording opportunity of being heard to the assessee, we are of the considered view that an opportunity should be afforded to the assessee and the matter may be restored to the file of the ld. CIT(A). Accordingly, we set aside the order of the ld. CIT(A) and restore the matter to his file with a direction to re-adjudicate the appeal afresh on merit after affording opportunity of being heard to the assessee. The assessee is also directed to extend all sort of co-operation to the ld. CIT(A) and to put his appearance as and when desired by the ld. CIT(A). The ld. CIT(A) is also directed to dispose of the appeal within a period of six months from the date of receipt of the order of the Tribunal. - Decided in favour of assessee for statistical purposes.
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2014 (7) TMI 1180
Penalty under section 271(1)(c) - addition made on account of treatment of sales tax subsidy, disallowance of interest advanced to assessee's concerns - Held that:- The assessee is not exigible to levy of penalty on the treatment of sale tax subsidy as revenue receipt in the hands of the assessee and also on the disallowance made under section 36 (1) (iii) of the Act as we find no merit in holding the assessee to have furnished inaccurate particulars of income in respect of such debatable issue - Decided in favour of assessee
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2014 (7) TMI 1179
Reference to DVO - determination of long term capital loss - Held that:- Assessing Officer has no power to make reference to the DVO for the impugned assessment year by invoking provisions u/s.55A of the Income Tax Act for determining the Fair Market Value as on 01-04-1981. In this view of the matter, we hold that the CIT(A) was not justified in not accepting the long term capital loss declared by the assessee. We accordingly set-aside the order of the CIT(A) and direct the Assessing Officer to accept the long term capital loss declared by the assessee. - Decided against revenue
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2014 (7) TMI 1178
Addition made under section 68 - CIT(A) allowed the claim - Held that:- Carefully examined the order of the ld. CIT(A) and we find that except one, all the cash credits are within the range between ₹ 3,881/- and ₹ 50,000/- and the assessee has placed relevant evidence to prove the genuineness of the cash credit and identity of the creditors. Since the ld. CIT(A) has properly examined the cash credits in the light of various judicial pronouncements and also in the light of evidence placed by the assessee, we find no infirmity in the order of the ld. CIT(A). - Decided against revenue
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2014 (7) TMI 1177
Sale of shares - ITAT held that the assessee was a trader in shares in question and not an investorHeld that:- During the course of hearing before us, learned counsel for the appellant has submitted a chart in respect of shares held under investments for less than 366 days. We find, the transactions, i.e. sale and purchase of shares in the assessment year 2006-07 would be around 150 in number, if not more. The Tribunal has rightly observed that the assessee had invested in shares of Dabur Group and had earned dividend income on the said shares. Share of Dabur Group cannot be equated with the shares in question. Keeping in view the factual findings recorded by the authorities and the Tribunal in respect of assessment years 2005-06 and 2006-07, we do not see any reason to interfere that the shares shown as investment in balance sheet, were actually stock in trade. He also observed that shares of five companies were purchased and sold within a span of a few days.
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2014 (7) TMI 1176
Allowability of deduction u/s. 80P(2) and 80P(2)(d) - Held that:- As decided in Kunnamangalam Co-operative Bank case [2014 (10) TMI 350 - ITAT COCHIN ] the deposits accepted are used by the Assessee co-operative society for lending or investment - This fact has not been denied - Even out of the deposits so received, the loans have been given to the members of the society in accordance with the objects - it cannot be said that the Assessee society was not carrying on banking business as it was accepting deposits from the persons who have no voting right - the paid up share capital and reserves in the case of the Assessee is more than ₹ 1 lac - all the three conditions in the case of the assessee for becoming primary cooperative bank stand complied with - the assessee is not entitled for deduction u/s. 80P of the Act on any reasoning – Decided against assessee.
Deduction of 7.5% provision for bad and doubtful debts u/s. 36(1)(viia) - Held that:- Section 5(cci) of Banking Regulation Act though has brought in definition of co-operative bank, virtually every bank which is not a scheduled bank would fall under the definition of non-scheduled bank. Reading of definition of non-schedule bank along with meaning of rural branch under Explanation to Section 36(1) of the Act, clearly indicate that cooperative bank also falls under the category of non-schedule bank for the purpose of this Section. Therefore, reading of entire Section 36(1)(viia)(a) along with explanation would mean two kinds of deductions referred to in the section will be allowed to all those banks only if they satisfy the terms and conditions referred to in the provision.Therefore, we are of the opinion, authorities below were justified in opining that benefit of deduction of 10% of the aggregate average advances is applicable to co-operative bank also provided their rural branches have advanced such amounts.– Decided against assessee.
Disallowance of interest paid without deducting tax to non members u/s. 40(a)(ia) - Held that:- In view of the admitted fact that the taxpayer is maintaining savings account, current account and providing cheque facility to its customers, it is obvious that the taxpayer is engaged itself in the business of banking apart from other trading activities. Exemption u/s. 194A(3)(viia) is applicable only in respect of agricultural cooperative societies. The agricultural cooperative banks are bound to deduct tax. In this case, admittedly, the tax payer is engaged in the banking activity and maintaining savings bank account, current account and providing cheque facility to its customers. Therefore, the taxpayer is bound to deduct tax in respect of interest on the deposits.– Decided against assessee.
Disallowance of contribution to the employees pension fund/gratuity fund - Held that:- A similar issue came up for consideration of this Bench of the Tribunal in the case of Kadachira Service Cooperative Bank [2013 (2) TMI 208 - ITAT COCHIN ] wherein the issue was remitted back to the file of the Assessing officer to offer one more opportunity to the assessee to prove that the payment made to approved gratuity fund or LIC Pension Fund was within the time limit for filing return of income u/s. 139(1) of the Act. On the similar line, we are inclined to remit the issue back to the file of the Assessing officer for fresh examination. - Decided in favour of assessee for statistical purposes.
Disallowance of unrealised interest on overdue loans - Held that:- As we have decided the issue against the assessee which deciding the ground relating to deduction of provision for bad and doubtful debts u/s. 36(1)(viia) of the Act. More so, the judgment of the Delhi High Court in the case of CIT vs. Talangang Co-op Group Housing Society Ltd. [2010 (7) TMI 83 - DELHI HIGH COURT ] is also against the assessee.
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2014 (7) TMI 1175
Taxability of employee stock option - Held that:- The salary paid to the respondent-assessee of ₹ 1,51,07,902/- was duly disclosed by the assessee in the return of income filed for the Assessment Year 2007-08 and tax of ₹ 50,29,219/- was deducted at source. Aforesaid salary including ₹ 8,66,634/-, which was computed as gain on account of difference in market price of the shares in USA allotted to the assessee under the stock option. The actual difference between the market price and the shares allotted upon conversion in Indian rupees was ₹ 32,09,756/-. The assessee had taken to proportionate amount and declared ₹ 8,66,634/- as taxable in India, keeping in view the period/time when he was employed in India with reference to the dates 9th January, 2004 to 1st February, 2007. Thus, proportionately on the basis of the period spent in India, the employee stock option was brought to tax and taxed in India. The assessees in question, as noticed above, was an employee of a company registered and listed in USA. The option which was given to the assessee was pursuant to the respondent-assessee working in the said company way back in January, 2004. At that time he was working in USA. The decision of the tribunal is just and fair and does not require interference7,
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2014 (7) TMI 1174
CESS non inclusion in computing the compounding - Held that:- In the present case, the petitioner points out that another dealer, who was faced with the very same situation had filed an appeal at the stage of interim order,and filed a Writ Petition before this Court, in which a learned single Judge of this Court had interfered with the conditional order finding that there is substance in the case put forth by the said dealer, by Ext.P24. Subsequently, the appeal itself was allowed by Ext.P24. It may not be proper for this Court to hold on the issue raised in the appeal. But still going by the afore cited facts, it is only proper that the appeal itself be disposed of and the recovery be kept in abeyance till such appeal is disposed of. It is so directed.
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2014 (7) TMI 1173
Disallowance of depreciation in respect of sale and leaseback transactions - Held that:- The Tribunal, Mumbai Bench, in the case of L&T (2013 (5) TMI 720 - ITAT MUMBAI) has considered a similar issue followed the findings of the Hon’ble Supreme Court in the case of ICDS (2013 (1) TMI 344 - SUPREME COURT ) and also of the co-ordinate Bench in the case of Development Credit Bank Ltd. (2013 (5) TMI 131 - ITAT MUMBAI ) and allowed the claim of depreciation on sale of lease back assets.Respectfully following the decisions mentioned hereinabove, we direct the AO to allow depreciation. - Decided in favour of assessee
Charging of interest u/s. 234B and 234C - Held that:- Levy of interest u/s. 234B of the Act would be consequential to our findings given for ground No. 1 and in so far as levy of interest u/s. 234C is concerned, we direct the AO to charge interest as per the provisions of law on the returned income of the assessee.
Disallowance of deduction u/s. 35D - Held that:- This issue has been decided against the assessee in A.Y. 1992-93 to 1994-95
No disallowance can be made u/s. 80M
Disallowance of expenses for earning dividend income to be allowed
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