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Showing 201 to 220 of 1288 Records
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2014 (9) TMI 1094
Addition u/s 14A - Disallowance being the administrative expenses and finance charges (interest paid) for the money borrowed on the amount utilized for purchase of shares u/s. 14A - Held that:- CIT vs. Winsome Textile Industries Ltd. (2009 (8) TMI 220 - PUNJAB AND HARYANA HIGH COURT) held that where there is no claim for exemption of income in such situation sec. 14A has no application. In the present appeal also since the Assessee company has not claimed any exempt income during the year, therefore, there is no question of disallowance of expenditure. Respectfully following the aforesaid decisions we delete the disallowance made u/s. 14A. Also see CIT vs. Delite Enterprises [2009 (2) TMI 498 - BOMBAY HIGH COURT ] - Decided in favour of assessee.
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2014 (9) TMI 1093
Indexation on cost of acquisition of the tenancy rights as on 1.4.1981 - capital gain on transfer of capital asset acquired by the assessee from the previous owner - cost of acquisition of tenancy rights acquired by the previous owner i.e., father of the assessee without any cost in the year 1973 is stood itself at Nil to the assessee as on 1.4.1981 - Held that:- We find that there is no infirmity in the finding and the conclusion drawn by the learned Commissioner (Appeals) as now in wake of decision of the Hon'ble Jurisdictional High Court in Manjula J. Shah (2011 (10) TMI 406 - BOMBAY HIGH COURT) it is quite settled that while computing the capital gain arising out of transfer of capital asset acquired by the assessee from the previous owner, the index cost of acquisition has to be computed with reference to the year in which the previous owner first held the asset and not the year in which the assessee became the owner of the asset. Here in this case, it is undisputed fact that the tenancy right was acquired by his father much before 1st April 1981, and the assessee became the owner on distribution of assets on dissolution of the firm in view of section 49(1)(iii)(b), therefore, the cost of acquisition has rightly been held to be adopted from 1st April 1981. Thus, the order of the learned Commissioner (Appeals) is affirmed and the ground raised by the Department is dismissed.
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2014 (9) TMI 1092
Reopening of assessment - Held that:- The proceedings initiated u/s 147 of the Act would not be rendered void on non-supply of such document for which confidentiality is claimed at this stage - assumption of jurisdiction on the part of the AO is based on fresh information, specific and reliable and otherwise sustainable under the law, challenge to reassessment proceedings warrant no interference – Decided against Assessee. hc order confirmed [2014 (7) TMI 391 - GUJARAT HIGH COURT]
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2014 (9) TMI 1091
Waiver of pre-deposit of penalty - in the Stay Order dated 28.04.14, no specific direction to any of the Appellants, was made, as to who would deposit the said amount amongst the Appellants, resulting into confusion and non-compliance with the said Order - Held that: - I direct Shri Dharmendra Kumar Jha to predeposit ₹ 30,000/- (Rupees thirty thousand) and 10% of the penalty imposed against each of the other Appellants, within a period of four weeks from today, and report compliance directly to the ld. Commissioner (Appeals) who, after recording the compliance, would proceed with the appeals for decision on merit, afresh, without insisting any further predeposit - appeal disposed off.
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2014 (9) TMI 1090
CENVAT credit - use of explosives outside the factory premises - whether eligible for CENVAT credit or not? - Held that: - the factory may be compact and in a defined premises. However, if the manufacturing process is a complex one and involves usage of quite large amount of raw material and various processes, it is difficult to treat any particular area as the factory premises. Though the actual processing may take place in an area of few thousand square feet, the processing of raw material or storing thereof may occur in hundreds of acres of land - If explosives are used to procure raw material, which in turn is supplied to the factory, either through surface transport or through conveyor belt, it is difficult to segregate it from the factory premises - credit allowed.
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2014 (9) TMI 1089
MODVAT credit - denial on the ground that the same were covered under ‘compounded levy scheme’ upto 31-3-2000 - credit in question was availed on 28-3-2000 - Held that: - as the respondent unit was under gestation stage, and had not commenced/produced before 2-5-2000, there can be no applicability of Rule 3A provisions - appeal dismissed - decided against Revenue.
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2014 (9) TMI 1088
Addition u/s 36(i)(iii) - Held that:- We have found that the assessee has enough own, interest free, funds to make advances to relatives without charging interest. In A.Yrs. 2006-07, 2007-08, and 2008-09 when CIT(A) deleted similar disallowances, did not file appeal, hence, to maintain consistency, this disallowance is not justified. The A.O. has not invoked the provisions of Section 36(i)(iii) of the Act. Notional interest cannot be charged as has been done in this case. There is no allegation of diversion of funds. It is also noticed that the assessee has also raised interest free loans. This, not being a case of diversion of funds, we cannot interfere in the impugned finding. The deletion made by ld. CIT(A) is quite justified. Therefore, we confirmed the finding of ld. CIT(A) and dismiss this appeal of revenue
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2014 (9) TMI 1087
Disallowance of payment of gratuity - Held that:- A.R. has submitted that it was maintaining gratuity fund with LIC of India in accordance with guidelines of RBI and when the payment was made to LIC of India, Assessee had not claimed the deduction but had claimed the same when the actual payment of gratuity was made to the concerned employee and therefore it is not a case of claim of double deduction. Before us, Revenue has not placed any material on record to controvert the submissions of the Assessee. Further Revenue has also not placed any material on record to show that Assessee has claimed the deduction of expenses when the amount was placed with LIC. In view of the aforesaid facts, we are of the view that the Assessee is entitled to deduction in the year under review and we therefore delete the addition made by the A.O.
Disallowance on depreciation on investment - Held that:- The issue in the present case is with respect to the loss in value of investment in mutual funds arising on account of the difference between the cost of units and the NAV on the last day of the accounting year on account of valuation. Before us the ld. A.R. has submitted that the issue is covered in favour of the Assessee in view of the decisions cited by the ld. A.R. We find that the aforesaid decisions were not before CIT(A) when the issue was decided by him. We therefore feel that the issue needs to be re-looked at his end in view of the various decisions cited by ld. A.R. We therefore remit the issue back to the file of CIT(A) to decide the issue afresh in the light of decisions cited by AR and in accordance with law. Needless to state that CIT(A) shall granted adequate opportunity of hearing to both the parties. In the result, this ground of Assessee is allowed for statistical purposes.
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2014 (9) TMI 1086
Scheme of Amalgamation - Held that:- Upon consideration of the entire material and keeping in view the provisions of Section 391 to 394 of the Companies Act and upon consideration of the reports of the Regional Director to the Northern Region, Ministry of Corporate Affairs, Noida and the Official Liquidator as also the affidavit that there are no investigation or proceedings pending against the constituent Companies to the Scheme on Amalgamation under Section 235 and 251 of the Companies Act, the Scheme of Amalgamation is hereby sanctioned and as a result thereof the assets and liabilities of the Transferor Companies 1, 2, 3 and 4 shall stand vested in the Transferee Company no.2 and the Transferor Companies shall be dissolved without being wound up.
The Scheme shall be binding on the participants Companies and therefore, respective shareholders, creditors and all concerned.
Let a formal order of sanction of the Scheme of Amalgamation be drawn up in accordance with law and a certified copy be filed with the Registrar of Companies within 30 days of the same.
The report of the Regional Director regarding the effective date as per Section 391(3) to be the date when certified copy filed with Registrar of Companies is accepted.
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2014 (9) TMI 1085
Guilty of the offence under Sections 6(4), 6(5) 8(1), 9(1)(a) and 9(1)(f)(i) of Foreign Exchange Regulation Act, 1973 - fine imposed - Held that:- In the first place, it is not clear why, after recording the statements under Section 40 of FERA of the appellant and Mr. Mendiratta in May 1995, the ED waited till the last date of the sunset period, i.e., 30th May, 2002 for issuing the Memorandum. The second feature is that the only relied upon documents in the Memorandum are the statements made by the appellant and Mr. Mendiratta, the letter dated 7th August, 1995 of Mr. Sethi and the statement of account provided by the AMEX Bank. In other words, the ED does not appear to have undertaken any further investigation in the seven years since it recorded the statements. In particular, there was no attempt made to undertake investigation outside India to find out the names of the persons who had made remittances into the NRE Account of Mr. Sethi.
The Court is of the view that the AO dated 24th March, 2004, and the impugned order of the AT to the extent they hold the appellant liable for contravention of Section 8(1) of FERA, cannot be sustained in law.
As regards contravention of Section 9(1)(a) and Section 9(1)(f)(i), the Court is unable to appreciate how the said provisions are at all attracted in the facts and circumstances of the case. The said provisions require a person resident in India having to make “any payment for the credit of any person outside India.” The beneficiary under both the provisions is a person resident outside India. The allegations in the Memorandum do not make out any such case even prima facie. It is not the case of the ED that Mr. Sethi, who in the facts and circumstances was the only person resident outside India, was the beneficiary of any of the transactions in his NRE account. Consequently, the impugned order cannot be sustained even as regards the question of contravention of Section 9(1) of FERA.
Thus AO dated 24th March, 2004 and the impugned order dated 24th December, 2010 of the AT are hereby set aside. Any amount deposited by the appellant pursuant to the AO shall be refunded to him in accordance with law within a period of eight weeks from today
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2014 (9) TMI 1084
Disallowance of claim of deduction u/s 80IB(10) - Held that:- The project approved by PMC on 31.03.2001 consisted of Buildings A,B,C,D & E and the local authority for the purposes of issuing completion certificate for claiming deduction u/s 80IB(10) of the Act is the Gram Panchayat, Keshav Nagar, Mundhwa, Pune. In view of the above fact the claim of deduction u/s 80IB(10) of the Act for the project approved on 31.03.2001 and which comprises of Buildings A to E of 80 flats amounting to ₹ 18,68,951/- was held allowable for A.Y. 2006-07. In view of above, the CIT(A) allowed the claim of deduction u/s.80IB(10) of the Act following the decision of ITAT in A.Y.2006-07 as discussed above.
Nothing contrary has been brought to our knowledge on behalf of the Revenue. Facts being similar, so following the same reasoning, we are not inclined to interfere with the finding of CIT(A), who has allowed the claim of the assessee by following the decision of assessee’s own case by ITAT order for A.Y. 2006-07. - Decided against revenue
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2014 (9) TMI 1083
Penalty u/s 271(1)(c) - addition made by mere change of head of income - assessee considered NCDEX/MCX as a stock exchange within the meaning of section 43(5) of the Act and thereby considered the commodity trade loss as a business loss against speculation loss - Held that:- coordinate Bench of this Tribunal in the case of ACIT vs. Arnav Akshay Mehta (2012 (9) TMI 447 - ITAT MUMBAI) wherein it was held that assessee’s derivative trading through MCX stock exchange in the A.Y. 2007-08 is non-speculation transaction and, therefore, loss incurred is to be treated as normal business loss. The Bench also observed that transactions carried out through MCX stock exchange after 1-4-2006 would be eligible for being treated as nonspeculation within the meaning of section 43(5)(d) of the Act. In the instant case also the assessment year under consideration is A.Y. 2007-08, therefore, as per the proposition laid down by the co-ordinate Bench above the loss incurred by the assessee should be treated as normal business loss. Once such loss is treated as business loss, mere treatment by the A.O. as speculation loss will not be justified to levy penalty u/s 271(1)(c) of the Act.
Thus we hold that addition made by mere change of head of income will not attract penalty u/s 271(1)((c) of the Act. The A.O. is directed to delete the same - Decided in favour of assessee
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2014 (9) TMI 1082
Applicability of Section 40A(3) - aggregation of cash payment in excess specified limit - Held that:- For applicability of Section 40A(3), it is essential that the aggregate payment made to a person on any day should exceed ₹ 20,000/-. Now, in the contention of the assessee as well as remand report, there is no discussion about the aggregate payment in a day. There is only discussion with regard to the payment not exceeding ₹ 20,000/-. We, therefore, set aside this aspect to the file of the Assessing Officer and direct him to verify the aggregate payment made by the assessee on each day and if the payment in a day does not exceed ₹ 20,000/-, then no disallowance under Section 40A(3) would be made. That if assessee makes the payment not exceeding ₹ 20,000/- every day, it cannot be said that the payment has been made to circumvent the provisions of Section 40A(3). Section 40A(3) would be applicable when the assessee makes payment exceeding ₹ 20,000/- in a day. If there is no payment exceeding ₹ 20,000/- in a day, there is no violation of Section 40A(3), so there is no question of any circumvention of the provisions. - Decided in favour of assessee for statistical purposes.
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2014 (9) TMI 1081
Income from sale of shares - capital gain or business income - Held that:- Assessee has been consistently treated as Investor by the department itself while framing scrutiny assessment u/s.143(3) for A.Y.2003-04 & 2005-06. The capital gain so offered was accepted by the department. The Tribunal has also decided the exactly similar issue in assessee’s own case in the immediately preceding assessment year 2006-07 in favour of the assessee
Respectfully following the order of the Tribunal in assessee’s own case as well as the stand taken by the department in assessee’s own case in earlier year, we do not find any merit in the order of CIT(A) for bifurcating the investment so made by the assessee and thereby treating the shares held for more than 60 days as short term capital gains and on sale of shares held for less than 60 days as business income. - Decided in favour of assessee
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2014 (9) TMI 1080
Reopening of assessment - Held that:- The grounds on which the Income Tax Department were purporting to reopen the assessment are mentioned in their letter dated 27th November, 2013, which is annexure P-6 at page 51 of the petition.
All the issues were before the assessing officer and the appellate authorities, in my opinion. Nothing is mentioned in the said letter of the department which can be said to be new and could not be known to them in spite of due diligence at the time of making the assessment. There is no scope of reopening an assessment on a mere change of opinion.On identical facts, the Hon’ble High Court of Gujarat pronounced a similar dictum in Transwind Infrastructure [P] Ltd. vs. Income-tax Officer, Ward-8(1) [2013 (5) TMI 52 - GUJARAT HIGH COURT ] - Decided in favour of assessee
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2014 (9) TMI 1079
Reopening of assessment - ingenuity of gift - Held that:- A perusal of the assessment order clearly shows that the donors had appeared in response to the notice under section 131 and confirmed giving gifts to the assessee’s minor son. This being so as also on account of the fact that the gifts had been given by a/c. payee cheques and the amount of gifts being nominal thus the addition, as made by the AO and confirmed by the ld. CIT(A) in respect of gifts received by the assessee’s minor son for the relevant assessment year from the four donors, stands deleted.
Statutory deduction under section 24(a) of the Act in respect of rental income assessable under the head “Income from house property” - Held that:- We have considered the rival submissions. As it is noticed that the AO has denied the benefit of deduction under section 24(a) on the ground that the assessee has not claimed the benefit in the return filed under section 148 and on the ground that the rent from land is not eligible for deduction under section 24(a), this issue is restored to the file of the AO for re-adjudication. It is noticed that the ld. CIT(A) has also not adjudicated on the issue. In these circumstances, this issue is restored to the file of the AO for re-adjudication. If the assessee is entitled to the benefit of deduction and complies with the statutory requirement, the assessee should be granted benefit of the deduction.
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2014 (9) TMI 1078
Addition on income surrendered - survey under section 133A - Held that:- Once the assessee is unable to offer any plausible explanation for the sum surrendered by the assessee and merely relying on the retraction made on a later date, does not absolve the assessee from its liability. The CIT (Appeals) while upholding the order of the Assessing Officer had given a finding that the surrender was made by the assessee based on the material alleged to be in the possession of the Assessing Officer collected during the course of survey and the said surrender was made voluntarily. The assessee had failed to controvert the said findings of the CIT (Appeals) and merely because it had taken a stand after a considerable gap of time that it withdraws its surrender, is mere after thought and such retraction of surrender cannot be accepted. Further bills and cash were found from the possession of the assessee and supporting documents, which establish the case of the Revenue that the assessee was in possession of assets/cash over and above the asset declared in the books of account against which surrender was made by the assessee. Upholding the order of the CIT (Appeals) we find no merit in the grounds of appeal raised by the assessee in this regard and the said are dismissed.
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2014 (9) TMI 1077
Condonation of delay - Held that: - we find that the First Appellate authority has dismissed the appeal for filing the appeal before him belatedly. Before us also, there was a delay of 140 days for filing the appeal. In our view, since the First Appellate Authority has dismissed the appeal for filing the appeal belatedly beyond the condonable period as provided under the statute we find that the first appellate authority has followed the statute correctly. It is settled law that the First Appellate authority or any other forum has no power to condone the delay for filing the appeal beyond the period as prescribed in the relevant statute, in this case Central Excise Act, 1944 - appeal dismissed - delay not condoned.
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2014 (9) TMI 1076
Credit of TDS denied - Whether the amended Rule as amended by Amendment Rules, 2009 is a beneficial provision mitigating the hardship of the assessee and in turn the same can be declared as retrospective and will apply to all pending matters - Held that:- The provisions of section 199(1) of the Act, the credit for tax deduction could be given to the person from whose income tax has been deducted. The Rule as amended by the Amendment Rules, 2009 w.e.f. 01.04.2009 makes it abundantly clear that the credit will be given based on the information by deductor. The proviso to sub-rule (2) of Rule 37BA of the Rules mitigates the hardship faced by assessee for claiming credit of TDS whereby deductee files a declaration with the deductor and the deductor reports the tax deduction in the name of other person in the information relating to deduction of tax as referred to in sub-rule (1) of Rule 37BA of the Rules. In such provisions of law, the assessee should have been allowed credit for TDS in the given set of facts and circumstances of the case.
Similar issue was dealt in the case of Allied Motors Pvt. Ltd. Vs. CIT ( 1997 (3) TMI 9 - SUPREME Court ), wherein it has been held that “the provisions of the first proviso, which has newly been inserted by the Finance Act, 1987, with effect from 1st April, 1998, to section 43B is remedial in nature, designed to eliminate unintended consequences which may cause undue hardship to the assessee and which made the provision unworkable or unjust in a specific situation, and is of clarificatory nature and, therefore, has to be treated as retrospective with effect from 1st April, 1984, the date on which section 43B has newly been inserted by the Finance Act, 1983.” Similarly, here also the Rule was inserted by the Amendment Rules, 2009 to remove the hardship faced by assessees and to give true meaning to the provision of section 199 of the Act. In such circumstances, I direct the AO to allow the credit of TDS after verifying declaration to be filed by deductee in term of proviso to sub-rule (2) of Rule 37BA of the Rules. - Decided in favour of assessee.
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2014 (9) TMI 1075
Refund of amount deposited under Reverse charge mechanism wrongly on export of services - nature of deposit - Held that: - I hold that as no tax was legally payable, the amount paid is in the nature of deposit. The Hon’ble Kerala High Court in the case of KVR Constructions [2012 (7) TMI 22 - KARNATAKA HIGH COURT] have held, where Service Tax was mistakenly paid on construction service, department not disputing that it was not payable due to exemption notification, and that it was not passed on, the department did not have authority to collect. Mere payment of amount could not authorize the Department to regularize/validate and retain it. It was further held that refund could not be rejected on ground of limitation under Section 11B of Central Excise Act. In the facts herein, the ruling as aforementioned is squarely applicable. The appeal is allowed and the impugned order is set aside. The adjudicating authority is directed to disburse the refund within 30 days - appeal allowed - decided in favor of assessee.
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