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Showing 201 to 220 of 1760 Records
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2015 (9) TMI 1568
Misuse of exemption granted under Section 12A - Held that:- The petitioner submitted a representation dated 30.06.2015 and the same is yet to be considered.
Respondents would submit that the representation dated 30.06.2015 was sent on 08.08.2015 and received by the respondents on 11.08.2015 only and also submitted that the same will be disposed of on merits and in accordance with law. The said submission made by the learned counsel for the respondents is recorded.
Considering the limited relief sought for by the petitioner, without going into the merits of the case, the respondents are directed to consider the representation of the petitioner dated 30.06.2015 and pass appropriate orders on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order.
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2015 (9) TMI 1567
Power to make appointments - seniority - Held that:- In the present case, it is not in dispute that the applicant in OA 3672/2011 was appointed as direct recruit ahead of respondent Nos. 3 to 6. Merely because her appointment was made in relaxation of the rules, the candidates appointed subsequent before her appointment cannot question her right to fixation of seniority in accordance with the existent instructions. As far as the claim of the applicants in OA 4299/2012 and 2064/2012 for fixation of their seniority with reference to their position in the select list is concerned the position is regulated by the provisions contained in para 2.1 of DOP&T OM dated 3.7.1986 (ibid). Once there was no delay on part of the applicants in the said OAs in joining the service, they cannot be denied the benefit of seniority with reference to their position in the select panel.
In the light of the above discussion, we direct that the Applicants would be eligible for appointment to the post of Medical Officer (Ayurvedic) from the date three other persons selected alongwith the Applicants were appointed. They will not be entitled for back wages but the period will not counted for increments and their pay will be fixed at the time of joining by adding the increment they would have earned, had they joined their service from the retrospective date. It would also count towards seniority of the Applicants. The Applicants would be entitled to be placed in the pension scheme, which was applicable in 2003, i.e. the pension scheme of 1972. The aforesaid directions would be complied with within four months from the date of receipt of a certified copy of this order.
The applicant in OA 3672/2011 (Ms. Sunita Rao) would be entitled to seniority above all those who were directly recruited/promoted as School Inspector (General) (F) after her joining/ appointment.
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2015 (9) TMI 1566
Calculation of disallowance as per Rule- 8D sec 14A - Held that:- We are of the opinion that the disallowance confirmed by the CIT (A) is proper but the same is subjected to the correctness of the calculations as per clause-(ii) & (iii) of Rule-8D(2). AO may examine the correctness before restricting the disallowance as held by the CIT (A). In this regard, we confirm the order of the CIT (A) in substance and therefore, it does not call for any interference. Accordingly, ground raised by the Revenue are dismissed
Nature of income - treating interest earned on money lending operation under the head Profit and Gains from Business and Profession or Income from Other Sources - Hel that:- CIT (A)’s decision, in treating the interest income earned on money lending operation as Profits & Gains of Business or Profession’, is reasonable and it does not call for any interference. In this regard, we have considered ‘object clause’ authorizing the assessee to conduct the business of money lending and the entries in the books of accounts and the bank accounts. Accordingly, ground raised by the Revenue is dismissed
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2015 (9) TMI 1565
Clandestine removal - penalty - Doctrine of Merger - Held that: - Since the statement dated 02.09.2003 and 12.09.2003 were never retracted by the appellant, the charges of clandestine removal, in my considered opinion, cannot be dropped.
Though the Commissioner (Appeals) has not specifically dealt with the issue in hand, but the said aspect has been dealt with by the original authority at great length. Since the adjudication order has merged with the appellate order passed by the Commissioner (Appeals) and in the former order, the issue has been adequately discussed, I am of the view that the stand taken by the respondent in the Cross-Objection will not merit consideration.
Appeal allowed - decided partly in favor of Revenue.
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2015 (9) TMI 1564
Condonation of delay - Admissibility of Cenvat credit - the decision in the case of M/s Dwarikesh Sugar Industries Ltd. Versus Commissioner, Centra Excise, Meerut [2015 (2) TMI 1154 - ALLAHABAD HIGH COURT] contested - Held that: - delay condoned - appeal allowed.
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2015 (9) TMI 1563
Application under section 80G(5)(vi) rejected - the assessee has received anonymous donations - whether Commissioner of Income Tax (Exemption) cannot refuse to grant registration under section 80G of the Act only on the pretext that the particulars of the donors are not provided by it? - Held that:- While granting the approval under section 80G, the only provision as per these rules is that the rejection can only be made if one or more conditions as laid down in clauses (i) to (v) of sub-section (5) of section 80G of the Act are not fulfilled. It is quite clear that the rules have given the instances of rejection of the said application in the form of non-compliance of provision of section 80G(5) clauses (i) to (v).
Coming to the provision of section 80G(5) we see on reading of clauses (i) to (v), there is no clause which says that the said approval be rejected if any institution or fund accepts anonymous donation. In the present case, this was the only reason given by the learned Commissioner of Income Tax for rejection of said registration. The provisions of section 115BBC of the Act are not relevant for granting approval under section 80G of the Act. There is no mention of this section 115BBC or even of anonymous donation in any of the provision of section 80G of the Act or rules made for the purposes of this section. The taxability of anonymous donations under section 115BBC of the Act can always be taken care at the time of assessment by the Assessing Officer and are not relevant for granting registration under section 80G of the Act. Thus e direct the learned Commissioner of Income Tax to grant registration to the society under section 80G of the Act. - Decided in favour of assessee.
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2015 (9) TMI 1562
Rental income earned from leased premises - assessed as income from ‘House property’ or as ‘Business income’- Held that:- The assessee’s objects are not in respect of letting of any particular property, but it has the main objects of acquiring, constructing, operating and maintaining of the multiplexes, business center, I.T. Parks, software zones, commercial & residential complexes and to grant the same on lease/license also. The very object is the commercially exploitation of the properties. Besides that the assessee is also providing hosts of amenities and facilities, as discussed above, which amounts to composite business activity.
We therefore hold that the income/loss from the multiplex is liable to be assessed as ‘business income/loss and not as income from house property. The assessee consequently is also entitled to the claim of deductions in respect of expenditure incurred and depreciation on assets etc. in relation to such income. Hence, we do not find any reason to deviate from the findings recorded by the Ld. CIT(A) on this issue. - Decided in favour of assessee.
Interest on fixed deposits kept with bank - treated as business receipts or income from other sources - Held that:- Admittedly, the interest was earned from the bank receipts. The Ld. A.R. could not convince us as to how the interest earned on fixed deposits can be said to be business activity of the assessee. We do not agree with the finding of the Ld. CIT(A) that since the income from the letting out of the commercial complex has been treated as business income then the interest from FDRs is also to be treated as business income. The interest on FDRs has no relation with the business of letting out of the property of the assessee. This issue is accordingly decided against the assessee and in favour of the Revenue.
Treatment of interest income - whether be assessed as ‘business income’ or ‘income from other sources’ - Held that:- As per the proposition of law laid down by the Hon’ble Jurisdictional High Court in the case of “Reliance Utilities and Power Ltd.” [2009 (1) TMI 4 - BOMBAY HIGH COURT] wherein it has been held that “if there be interest free funds available to an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from the interest free funds available.” The assessee had sufficient own funds and as per the law laid down by the Hon’ble Jurisdictional High Court (supra) the presumption will be that the advances were given out of the own funds. Considering the above submission of the assessee, we restore this issue to the file of the AO to examine whether the assessee was having sufficient own funds to meet the advances given to sister concerns, if the contention of the assessee is found to be correct then no disallowance would be attracted
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2015 (9) TMI 1561
N.P. rate determination - AO applying the net profit rate @ 12% instead of 7% on the gross receipts as declared by the appellant - Held that:- CIT(A) has stated that in the nature of assessee’s business, the number of persons employed could not be large because otherwise the assessee would have been required to file statements to various State agencies administering various labour welfare laws. No muster roll was maintained. The assessee did not furnish information regarding number of persons employed and the name of the parties from whom consumables were purchased. In our considered view, the authorities below were fully justified in applying the net profit rate of 12% on gross receipts which is in consonance with the judgement in the case of CIT v M/s Prabhat Kumar (2008 (11) TMI 356 - PUNJAB & HARYANA HIGH COURT) relied on by the Assessing officer.
In case of estimation, if the CIT(A) has passed an order by giving cogent reasons, the Tribunal in an appeal either by Revenue or assessee is required to apply its mind and consider the reasons given by CIT(A). CIT(A) has passed a well reasoned order and, therefore, we do not see any ground to interfere with the order of CIT(A). Considering the nature of assessee’s business, net profit rate of 12% on gross receipts is reasonable. Accordingly, we uphold the order of CIT(A) and dismiss the appeal of the assessee.
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2015 (9) TMI 1560
Adoption of amount of sale consideration - long term capital gain - valuation report of an approved valuer - Held that:- It is an admitted fact that the properties sold by the assessee are tenanted properties having 52 tenants on both the properties and the assessee is not in possession of single square foot of land. At page 5 of the sale deed it has been clearly mentioned that “the entire building and the said property is in vacant and peaceful possession of the party of the first part”.
From the sale instances given by the assessee, we find the tenanted property fetches lesser consideration which is apparent from the 4 sale instances given by the DVO. From the various details furnished by the assessee, we find the sq.ft rate of property at survey No.139 was ₹ 19,934/- and selling rate of property situated at survey No.540 was at ₹ 18,100/- whereas the property at survey No.273 which has been sold at ₹ 15,126/- per sq.ft. This shows that a tenanted property fetches lesser rate than a property free from any encumbrance and having vacant possession by the owner. Therefore, we find merit in the arguments of the assessee that when a property having 8 tenants fetches lesser price than a property free from encumbrance, the property having 52 tenants will definitely fetch lesser price than the property having 8 tenants. Therefore, the 4 instances taken by the DVO are not comparable instances.
DVO has increased the valuation of the property of comparable instances on account of time gap and locational advantage. So far as the locational advantage is concerned we find all the properties are situated in the heart of the city and therefore benefit of locational advantage cannot be a factor for increasing the value of the property sold by the assessee. So far as the time gap is concerned, we find the DVO has not considered the cost inflation index published by the income tax department. Further the DVO has given reduction @25% on account of factors like size of the property, undivided share and occupation by the tenants etc. on presumption basis. There is no finding by the AO or material in his possession that the assessee has received any extra amount other than what is declared as sale consideration. The purchaser has also not given any evidence or stated before the AO that he has paid more than what is mentioned in the sale deed.
Thus considering the objections raised by the assessee from the very beginning, i.e., before the DVO/AO and the CIT(A) that the valuation made by the DVO is not correct, we are of the considered opinion that the value determined by the DVO cannot be accepted. At the same time when the value adopted by the registered valuer appointed by the assessee herself has valued the property at Survey No.1157 & 1158 at ₹ 1,19,77,000/- the contention of the Ld. Counsel for adoption of ₹ 85,34,700/- as sale consideration also cannot be accepted since the registered valuer has considered all aspects as argued by the Ld. Counsel for the assessee. We accordingly hold that while the value of the property at Survey No.1157 & 1158 be held at ₹ 1,19,77,000/-, the value of the property at Survey No.990 be taken at ₹ 17,00,000/- as declared by the assessee. The AO is directed to recompute the capital gain accordingly.
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2015 (9) TMI 1559
Gain earned on investments in shares and mutual funds - capital gain or business income - magnitude of transaction - Held that:- The assessment for A.Y. 2004-05, 2005- 06, 2006-07 and 2009-10 have been made u/s. 143(3) of the Act. In all these scrutiny assessments, we find that the assessee’s main source of income is from speculation income, Short Term Capital gains and income from other sources. Rule of consistency says that on same set of facts, the Revenue authorities should not take a different view. There has to be uniformity in treatment and consistency when the facts and circumstances are identical particularly in the case of the assessee. Our view is fortified by the decision of the Hon’ble Bomby High Court in the case of Gopal Purohit (2010 (1) TMI 7 - BOMBAY HIGH COURT ). We also find that the findings of the Ld. CIT(A) is heavily based on the fact that the assessee is indulged in intra-day trading of shares. We find that the assessee has shown the same as business income. Therefore, there is no merit in the findings of Ld. CIT(A).
Respectfully following the above , we set aside the findings of the Ld. CIT(A) and direct the AO to treat the Short term Capital Gain as Short term capital gain. - Decided in favour of assessee.
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2015 (9) TMI 1558
Permission to be accompanied by his lawyer when petitioner goes to the DRI Office for interrogation under Section 108 of CA, 1962 - Held that: - The petitioner would be permitted to be accompanied by his counsel to DRI Office when he next goes there for being interrogated under Section 108 of the Customs Act, 1962. The counsel accompanying the petitioner would be allowed to be present at the time of interrogation but only within the visible distance but beyond the range of audibility - Petition allowed - decided in favor of petitioner.
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2015 (9) TMI 1557
Valuation - pan masala - closure of factory - case of Revenue is that the appellant were required to pay duty on 5th day of the month if at all, the machines being closed for more than 15 days - Held that: - the appellant is not required to first pay duty for whole of the month and then make claim of abatement. The appellant is required to pay duty for the days for which the machines were operating and only interest for the period from due date to the day on which the adjusted duty chargeable was paid would be leviable.
Liability of interest - Held that: - Reliance was placed in the case of Steel Industries of Hindustan [2013 (10) TMI 172 - ALLAHABAD HIGH COURT], wherein the Hon'ble High Court held that claiming the abatement for closure period depositing the duty for the whole month was not a pre-condition under Rule 96ZB of the CER, 1944 - the appellant has paid duty correctly but they are liable to pay interest for the period from the due date to the date they adjusted duty chargeable was paid.
Penalty - Held that: - penalties are set aside.
Appeal allowed - decided partly in favor of appellant-assessee.
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2015 (9) TMI 1556
Eligibility to deduction under Section 80P(2)(a)(i) - though the appellant was said to be a Co-operative Society, it was in fact a co-operative bank, within the meaning as assigned to such bank under Part V of the BR Act - Held that:- there is a seriously disputed question of fact which the Authorities under the IT Act have taken upon themselves to interpret in the face of the BR Act prescribing that in the event of a dispute as to the primary object or principal business of any co-operative society referred to in clauses (cciv), (ccv) and (ccvi) of Section 56 of the BR Act, a determination thereof by the Reserve Bank shall be final, would require the dispute to be resolved by the Reserve Bank of India, before the authorities could term the assessee as a co-operative bank, for purposes of Section 80 P of the IT Act.
Any opinion expressed therefore is tentative and is not final. The view expressed by this court in CIT v. Bangalore Commercial Transport Credit Co-operative Society Limited [2014 (6) TMI 913 - KARNATAKA HIGH COURT] however, as to the assessee being a co-operative society and not a co-operative bank in terms of Section 80P (4) of the IT Act, shall hold the field and shall bind the authorities unless held otherwise by the Reserve Bank of India. - Decided in favour of assessee.
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2015 (9) TMI 1555
Revision u/s 263 - unexplained cash deposits - Held that:- As seen from the data slips received by the AO from the bank, it refers to the same bank account and the transaction amount but the details were sent twice, as assessee’s account is a joint account with his wife. In fact AO issued a show cause notice letter dt. 04-02-2013, for which assessee replied on 25-02-2013. Ld. Pr.CIT was not correct in stating that AO has not examined vide the notice U/s. 142(1) dt. 03-07- 2012. He simply ignored the subsequent notice available on record and therefore, we are of the opinion that the opinion expressed by the Pr.CIT that AO has not examined second bank account is not correct, both on facts and/or on law. Since the issue was examined by the AO in the course of scrutiny proceedings and has concluded that there is only one account which was already accounted by assessee, no prejudice is caused to Revenue, at least in assessee’s case. Therefore, Pr.CIT is not correct in exercising jurisdiction on this issue.
Excess credit - Held that:- AO had examined the turnover in this year and reduced the mobilization advance and also the turnover considered twice for deduction of tax by M/s. Megha Engineering & Infra and accordingly determined the gross receipts. He also concluded the assessee accounted the turnover in later AY. 2011-12 and gave credit for the taxes accordingly. Since this issue was also examined and determined by the AO, we do not find any reason to hold that order is erroneous. Pr.CIT himself has taken the excess credit as turnover, directed to be added as escaped turnover, which in our view is not correct. Moreover, an issue which was already examined by the AO and application of mind by the AO before passing the assessment order cannot be re-examined by Pr.CIT in the course of proceedings U/s. 263. - Assessee appeal allowed.
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2015 (9) TMI 1554
TPA - selection of comparable - Held that:- The orders of the TPO the DRP as well as the ITAT, this Court is not persuaded that the impugned order of the ITAT suffers from any illegality. The view taken by the ITAT that markets in the US and the India were fundamentally different and, that the results of the Indian segment of the US operations of Goldstone Technologies constituted an inappropriate a comparable cannot be said to be perverse. The view of the ITAT that basis of allocation of costs and, therefore, the working of the profits was also not clear, is another aspect on which the Court is unable to hold that the impugned order of the ITAT is perverse. The ITAT has passed the impugned order after examining all the relevant materials. No substantial question of law
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2015 (9) TMI 1553
TPA - selection of comparable - Held that:- Transfer pricing was an evolving area and therefore an assessee, just because it had included certain comparables in its own list, could not be held back from seeking exclusion of such comparables, once proper reasons for seeking such exclusion were shown by it. Accordingly we are inclined to admit the additional grounds.
Assessee offers a wide range of professional software development services and IT services through 4 distinct service offerings, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
Exclusion of expenditure incurred in foreign currency expenditure while working out the eligible relief u/s.10A - Held that:- As for the contention of the assessee foreign currency expenditure ought not to be excluded from the export turnover, we are unable to accede to. This is because of the definition of ‘export turnover’ given in Explanation 2 (iv) to Section 10A does not warrant such an interpretation. However in respect of parity between the export turnover and total turnover, in view of the decision of the Hon’ble jurisdictional High Court in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] assessee has to succeed. We direct the AO / TPO to exclude what has been excluded from the export turnover from the total turnover also while computing deduction u/s.10A
Deduction / exemption given u/s.10A has to be considered independently without setting off of loss incurred in other undertakings of the assessee. See CIT (LTU) v. Yokogawa India Ltd [2011 (8) TMI 845 - Karnataka High Court ]
Depreciation on computer software - Held that:- Assessee has not been able to establish that computer software and related hardware acquired by it did not give it the benefit of enduring nature. However we are of the opinion that once it was treated as a part of computer, assessee was eligible for depreciation at 60%. Ordered accordingly, Grounds treated as partly allowed.
Interest income earned - income from other sources OR profits and gains from business or profession - Held that:- Assessee in our opinion has not been able to show the nexus of its interest income with its business activities. Unless nexus with business is shown by the assessee, interest income will always fall under the head ‘income from other sources’. We do not find any reason to interfere with the orders of lower authorities in this aspect.
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2015 (9) TMI 1552
Reopening of assessment - absence of reason to believe - Held that:- It is clearly evident from the reasons recorded by the Assessing Officer that there was actually no reason for him to have formed a belief about the escapement of any income of the assessee from the assessment, but the assessment was reopened by him to verify or examine certain particulars furnished by the assessee in the return of income, which according to the Assessing Officer, might have possibly involved introduction of her unaccounted money by the assessee. It is thus clear that the assessment was reopened by the Assessing Officer on the basis of suspicion and in order to make fishing and roaming enquiries, which, in my opinion, is not permissible. It is a settled position of law that the assessment can be reopened under section 147/148 on the basis of ‘reason to believe’ and not ‘reason to suspect’. - Decided in favour of assessee.
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2015 (9) TMI 1551
TDS u/s 194B - payments made to horse owners as “stake money” - assessee in default - Held that:- AO has applied the provisions of section 194B to the payments made to horse owners as “stake money” on the ground that by insertion of words ‘or card game and other game of any sort’ w.e.f. 1.6.2001, the horse racing income comes under the ambit of ‘other game of any sort’, we find that this issue had arisen in the case of Bangalore Turf Club Ltd. Vs. Union of India and others [2014 (12) TMI 843 - KARNATAKA HIGH COURT] has dealt with this issue at length and has held that the amended provision of section 194B do not apply to horse racing. Amendment brought about by Finance Act of 2001 to Section 2(24) and 194B would have no bearing on the income earned from 'owning and maintaining horses'. - Decided in favour of assessee
Deletion of the demand raised by the AO u/s 201 (1) and 201(1A) of the Act by applying the threshold limit of ₹ 2500 on each payment for making TDS u/s 194BB - grievance of the Revenue is that the basic limit is on the aggregate payment made in a year and not on each payment - Held that:- CIT (A) had followed the order of this Tribunal in assessee’s own case for A.Ys 2002-03 to 2008-09 in granting relief to the assessee. Since the CIT (A) had followed the precedent on the issue and the Revenue has not been able to rebut this finding with any evidence or decision to the contrary, we see no reason to interfere with the same. Therefore, ground No.3 of the Revenue is also rejected. We find that in the A.Ys 2011-12 to 2013-14, the only issue is about the applicability of section 194B of the Act to the assessee. For the detailed reasoning given for the A.Y 2009-10 and 2010-11 respectively as above, the sole ground of appeal in all these years is rejected.- Decided against revenue
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2015 (9) TMI 1550
Cancelling registration granted U/s 12A - effect of amendment U/s 12AA(3) made by the Finance Act - 2010 - Held that:- CIT-II, Jalandhar passed order U/s 12AA of the Act on 24/10/2013 w.e.f. A.Y. 2004-05 but in Section 12AA(3), the amendment was made by the Finance Act, 2010, which was effective prospectively as clarified by the CBDT as well as various ITATs. The case laws relied by the AR of the assessee also support the case of the assessee, therefore, from A.Y. 2004-05, the cancellation is out of jurisdiction. The Hon'ble Delhi High Court in the case of Director of Income Tax (Exemption) Vs. Mool Chand Khairati Ram Trust (2011 (4) TMI 563 - DELHI HIGH COURT )339 ITR 622 (Delhi) has held that power of cancellation of registration obtained U/s 12A came to be incorporated by way of amendment introduced in Section 12AA(3) by the Finance Act, 2010 w.e.f. 1st June, 2010. The Director of the Income Tax was, therefore, no justified in cancelling the registration U/s 12AA(3) w.e.f. December 2002-03 vide his order dated 30th June, 2009. - Decided in favour of assessee.
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2015 (9) TMI 1549
CENVAT Credit of CVD - credit availed on the basis of photocopy of courier bill of entry - whether courier bill of entry is a valid document for clearance of any imported goods u/r 9 of CCR, 2004? - Held that: - when the courier agency has been permitted to file common bill of entry on behalf of several importers, obviously all such importers cannot be given original documents, and as such, production of photocopies of bill of entry cannot be denied with the benefit of cenvat credit - appeal rejected - decided against Revenue.
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