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Case Laws
Showing 221 to 240 of 686 Records
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2006 (2) TMI 507 - ITAT DELHI
Depreciation ... ... ... ... ..... urnace to M/s. Comecon Overseas (P.) Ltd. Therefore, in view of above facts, this is incorrect to say that this is purchase and lease back transaction entered into by the assessee and M/s. Punjab Potteries. The fact that the assessee has purchased this furnace at the cost of Rs. 10,57,500 is not in dispute nor the fact that the same was leased out to M/s. Punjab Potteries. The reason for not recovering the furnace from M/s. Punjab Potteries after the expiry of lease period has been explained by the ld. counsel which appears to be justified. The leasing of the asset being the business of the assessee. We, therefore, hold that the assessee-company has satisfied the conditions for the purpose of claiming depreciation under section 32 that depreciable assets are owned by the assessee and the same were used for the purpose of assessee rsquo s business. We, therefore, direct to allow the depreciation to the assessee. 24. In the result, the appeal of the assessee-company is allowed.
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2006 (2) TMI 506 - ITAT AHMEDABAD
Depreciation ... ... ... ... ..... ost of repetition we would like to state that depreciation is allowable if an assessee satisfied all the conditions enumerated in section 32 that asset must be owned and same is used for the purpose of business. The finding of the Assessing Officer that both these conditions have not been satisfied by the assessee in this case. The decisions cited by the ld. AR are not of much help to the assessee as they are based on their own facts, for the reasons stated above, we are of the considered view that in absence of complete and correct facts recorded by lower authorities the applicability of those decisions cannot be examined. Under the circumstances and keeping in view the principle of natural justice, we find appropriate to send back this matter to the file of CIT(A) with a direction to decide the matter afresh in accordance with law after providing reasonable opportunity of hearing to both sides. 7. In the result, the appeal of the revenue is allowed for statistical purposes.
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2006 (2) TMI 505 - ITAT COCHIN
Appellate Tribunal ... ... ... ... ..... rridors of the superior courts are choked with huge tendency of cases. In this view of the matter, the Board has rightly taken a decision not to file references if the tax effect is less than Rs. 2 lakhs. The same policy for old matters need to be adopted by the Department. In our view, the Board rsquo s circular dated March 27, 2000, is very much applicable even to the old references which are still undecided. The Department is not justified in proceeding with the old references wherein the tax impact is minimal. Thus, there is no justification to proceed with decades old references having negligible tax effect. 5. We are of the considered opinion that the Circular No. 2/2005 dated 24-10-2005 (Sic Instruction No. 2/2005 dated 24-10-2005) is applicable to pending cases also where the tax effect is less than Rs. 2 lakhs. We therefore dismiss all the appeals of the Revenue on this ground as not maintainable. 6. Order pronounced in the open Court after conclusion of the hearing.
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2006 (2) TMI 504 - ITAT COCHIN
... ...
... ... ..... . The corridors of the superior courts are choked with huge tendency of cases. In this way of the matter, the Board has rightly taken a decision not to file references if the tax effect is less than Rs. 2 lakhs. The same policy for old matters need to be adopted by the Department. In our view, the Board rsquo s circular dated March 27, 2000, is very much applicable even to the old references which are still undecided. The Department is not justified in proceeding with the old references wherein the tax impact is minimal. Thus, there is no justification to proceed with decades old references having negligible tax effect. 25. We are of the considered opinion that the Circular No. 2/2005 dated 24-10-2005 is applicable to pending cases also where the tax effect is less than Rs. 2 lakhs. We therefore dismiss all the appeals of the Revenue on this ground as not maintainable, being appeal numbers, WTA Nos. 59/Coch./2004 to 64/Coch./2004 and WTA Nos. 144/Coch./2004 to 150/Coch./2004.
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2006 (2) TMI 503 - ITAT MUMBAI
Capital gains ... ... ... ... ..... of nexus between the borrowed fund and applied funds. In case, nexus is established between the two i.e., the borrowed fund and the applied fund, interest after netting shall not be allowed as a business deduction. But in case the assessee is able to prove that no nexus existed between the two, no disallowance of interest shall be made in the hands of the assessee. Further, there is no merit in treating the interest income of Rs. 3,88,982 received by the assessee during the year under consideration as income from other sources without establishing that such receipts are not part and parcel of business carried on by the assessee. Therefore, the issue is restored to the file of the Assessing Officer to decide the nexus (a) between the borrowed fund and applied fund (b) nature of the interest income of Rs. 3,88,982 received by the assessee. Hence, these grounds of appeal are set aside for statistical purpose. 18. In the result, the appeal filed by the assessee is partly allowed.
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2006 (2) TMI 502 - ITAT MUMBAI
Business expenditure ... ... ... ... ..... t problem is faced and how he solves them. Such a CA who has acquired MBA degree would be in a better position to guide the clients from the point of view of accountancy and law, how to manage the business. In business, it is now futile to consider accountancy totally divested from management. Both are so integrated that an expert having educational background of the two branches can appreciate how the management appreciate the solution of accounting problems and how the decisions are taken in management which have bearing in accounting and law. In a forward looking commercial society, compartmentalized branches are no longer appreciated. 7. In view of this, we do not find any reason to hold that CA degree has no nexus with MBA degree. In fact, it is a dire necessity of today rsquo s commercial world. In view of this, we uphold the order of the Learned CIT(A) and dismiss the appeal of the Revenue. 8. In the result, appeals of the Revenue are dismissed for all the three years.
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2006 (2) TMI 501 - ITAT MUMBAI
... ...
... ... ..... (b) to Explanation (1) to section 2(ea) of the Act defines urban land which means lsquo land rsquo . The basic condition for including the urban land as wealth of the assessee is the ownership of land. In the facts of the present case, the assessee is not the owner of any land what he has acquired by way of allotment of FSI of 4,000 sq. ft. is only the development rights on the existing plot of land, which is exempt from wealth-tax. The assessee is not the owner of the new plot of land, but has the right to develop the said plot and for the acquisition of such rights, the assessee has paid Rs. 18 lakhs to Marol Co-op. Industrial Estate Ltd. The said sum of Rs. 18 lakhs is not includable in the Wealth of the assessee. Therefore, we confirm the order of the CWT(A) in this regard. In view of our decision, with regard to the definition of urban land, we are not dealing with the alternate plea raised by the assessee. 11. In the result, the appeal filed by the revenue is dismissed.
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2006 (2) TMI 500 - ITAT CHANDIGARH
Deduction of tax at source ... ... ... ... ..... from the context of the question under consideration and treat it to be the complete law declared by the court. The judgment must be read as a whole and the observation of the judgment have to be considered in the light of the questions, which were before the court. A decision of the Supreme Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, court must carefully try to ascertain the true principle laid down by the decision. Therefore, on the basis of judicial pronouncements and the law enshrined in section 194B, we are of the considered view that assessee has conducted lottery scheme in the name of lsquo Tata Sumo Lucky Draw rsquo and assessee was responsible for payment of TDS. Therefore, Assessing Officer has rightly fastened the demand on the assessee and the learned CIT(A) has correctly upheld the order of the Assessing Officer. 11. In the result appeal filed by the assessee is dismissed.
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2006 (2) TMI 499 - ITAT MUMBAI
Capital gains, Expenditure incurred in relation to income not includible in total income ... ... ... ... ..... vestments were made. It was either from the borrowed funds or from personal/own funds. If the assessee had made the investment from a common pool only a corresponding disallowance can be made not the entire interest. We, therefore, are of the view that this issue requires a fresh adjudication by the Assessing Officer. We, therefore, set aside the order of the CIT(A) and restore it to the file of the Assessing Officer with a direction to re-adjudicate the issue. The assessee is also directed to place all relevant evidence before him to establish how the borrowed funds were utilized. Accordingly, this issue is disposed of. 33. Ground No. 5 relating to charging of interest under section 234B. This ground is of consequential nature. As such, no independent adjudication is called for. 34. Ground No. 6 relates to penalty under section 271(1)(c) is not maintainable. We, therefore, dismiss the same. 35. in the result, appeal of the assessee is partly allowed for statistical purposes.
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2006 (2) TMI 498 - ITAT MUMBAI
Speculative transactions, Capital gains ... ... ... ... ..... lakhs. We are not inclined to interfere in the well reasoned finding of the CIT(A). The same is upheld. 5. The next issue is with regard to computation of the interest income of the assessee, exempt under section 10(15)(iv)( h) of the Act by the Assessing Officer at Rs. 6,87,946 after deducting from the interest received, the broken period interest paid on purchase of bonds. The CIT(A) observed that in view of the decision of the Hon rsquo ble Supreme Court in the case of Vijaya Bank. Ltd. ( supra), the action of the Assessing Officer cannot be upheld. The interest income had to be computed at Rs. 27 lakhs less Rs. 1,28,074 (part adjusted towards the loss from the sale of bonds), that is, Rs. 25,71,926 and thereby the same to be exempted from taxation under section 10(15)(iv)( h) of the Act. The CIT(A) is justified in computing interest income at Rs. 25,71,926 after adjusting Rs. 1,28,074. The same is upheld. 6. As a result, both the cross-appeals are disposed of accordingly.
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2006 (2) TMI 497 - ITAT MUMBAI
Revision - Of orders prejudicial to interest of revenue ... ... ... ... ..... of CIT v. Jagadhri Electric Supply and Industrial Co. 1983 140 ITR 498 . 18. In view of the above discussion we are of the view that the deduction under section 80-O was allowed to the assessee after due deliberations and application of his mind and view taken by him is a possible view. The very fact that CIT has a different view does not mean that order passed by the ITO was erroneous insofar as it is prejudicial to the interest of the Revenue. Moreover the view of the CIT that in consideration means in exchange for the use or in lieu of the use and self use cannot be in consideration is an extreme view. We hold that there was no such error committed by the Assessing Officer, as mentioned by CIT in order under section 263 which can term the assessment order as erroneous in so far it is prejudicial to the interest of the Revenue. The order passed by CIT under section 263 for both the assessment years is quashed. 19. In the result, both the appeals of the assessee are allowed.
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2006 (2) TMI 496 - ITAT MUMBAI
Income, Deductions ... ... ... ... ..... ue authorities. 62. Considering the rival submissions, we are of the view that in the light of the decision of the Hon rsquo ble jurisdictional High Court in State Bank of India rsquo s case (supra), the issue has to go in assessee rsquo s favour. In this case the assessee credited certain amount of interest to suspense account, which was held as not taxable, following the decision of the Hon rsquo ble Supreme Court in the case of UCO Bank v. CIT 1999 237 ITR 889 . There is no doubt, in the instant case of the assessee, the interest has not been received and it is the case of the assessee that even the principal amount is not likely to be received. The fact that the assessee has not received it, is not disputed. The decisions relied upon by the revenue authorities are distinguishable on facts. Hence, we are of the view that the appeal of the assessee on this ground (Ground No. 2) is liable to be allowed. It is allowed. 63. In the result, appeal of the assessee stands allowed.
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2006 (2) TMI 495 - ITAT MUMBAI
Expenditure incurred in relation to income not includible in total income ... ... ... ... ..... cipient, the provisions of section 14A would certainly apply and expenditure incurred in earning that non-taxable income will not be allowed to be deducted against the taxable income. If it is permitted it would be a violence to the newly inserted section 14A. In the instant case since the dividend income earned on investment in shares is exempted from tax by virtue of section 10(33), any expenditure incurred to earn the dividend income was not allowable against the taxable income of the assessee. In the instant case, since the interest expenditures are indivisible as the investments in shares and advancement of loan was made out of the common funds, the pro rata interest incurred on funds invested in shares, cannot be allowed against the interest income of the assessee. We, therefore, find no merit in the assessee rsquo s appeal. Accordingly, we confirm the order of the CIT(A) and dismiss the appeal of the assessee. 14. In the result, the appeal of the assessee is dismissed.
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2006 (2) TMI 494 - ITAT MUMBAI
Interest on borrowed capital ... ... ... ... ..... ies 92,051 5.3 A critical look into the above reveals that the appellant company did not have enough cash available to enable it to advance it to the ailing subsidiary. On the other hand, it has been conclusively established that it was the borrowed fund which had been diverted to the furnished and connotes subsidiary, as admitted by the appellant company also from time to time in course of the assessment proceedings/appellate proceedings. In fact, the so-called alternative plea of the loans/advances being out generated surplus funds has been made by way of inward quest adventure , simply to put up a countenance with the hope of may get through scenario . But this, lsquo quest adventure rsquo has proved to be like flapping the wings ineffectually, as is evident from the discussion above. Keeping in view the elaborate discussion of ld. CIT(A) we do not find any merit in the alternative submission of the assessee. 18. In the result, the appeal of the assessee is partly allowed.
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2006 (2) TMI 493 - ITAT LUCKNOW
Deductions - Profits and gains from hotels or industrial undertakings, etc., in backward areas
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2006 (2) TMI 492 - ITAT BANGALORE
Income - Deemed to accrue or arise in India ... ... ... ... ..... peal, the assessee is aggrieved by the order passed by the learned CIT(Appeals), by which interest under section 244A claimed by the assessee on refund was denied. According to the Learned CIT(A), the assessee-company is not an assessee with the meaning of section 244A but deductor of tax. For disallowing the claim of the assessee, reliance was placed on the Circular No. 769 and Circular No. 790. The learned counsel appearing on behalf of assessee made the submissions by filing the written submissions. 12. The Learned Departmental Representative however supported the orders passed by the authorities below. 13. After hearing both the sides, we find force in the submissions made by the assessee. However, since the main issue has already been remitted back to Learned CIT(A), we direct the Learned CIT(A) to consider this issue also in the light of the submission made by the assessee. 14. In the result, all the appeals and the cross-objections are allowed for statistical purposes.
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2006 (2) TMI 491 - ITAT MUMBAI
... ...
... ... ..... ss than ten, it is claimed by the assessee that during the year under consideration it employed 15 workers plus 4 managerial staff which is evidenced by the notings in its application for registration as small scale industries. All these evidences and documents were not produced before the Assessing Officer. We have recorded a categoric finding that assessee is entitled to deduction under section 80-IA of the Act. However, the books of account were not produced before the successor Assessing Officer, we restore this matter back to the file of Assessing Officer with a direction that he may verify as to whether all the mandatory requirements as mentioned in paras hereinabove regarding provisions of section 80-IA of the Act are fulfilled by the assessee. The Assessing Officer shall allow adequate opportunity of hearing to the assessee. This ground of appeal is allowed for statistical purpose. 11. In the result, the appeal filed by the assessee is allowed for statistical purpose.
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2006 (2) TMI 490 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Ice-cream mix - Classification of ... ... ... ... ..... l has also relied on the CBEC rsquo s circular No. 13/2/2001-CX 1, dated 28th May, 2001 wherein it was clarified that ice cream powder/mix would be classifiable under Heading 21.08. From this legal history, it appears to us that classification of the goods in question is highly contentious. The claim of the assessee to get it classified under Heading 21.08 as well as the claim of the department to get it classified under Heading 19.01 are subject matter of appeals before the Apex Court. There is no stay in either of the cases. In the circumstances, for stay purpose, we would appropriately direct the appellants to predeposit 50 of the duty amount, which they shall deposit within 4 weeks and report compliance on 10-4-2006. In the event of due compliance with this direction, there shall be waiver of predeposit and stay of recover in respect of the penalty amount and balance of duty as well as stay of recovery of any interest on duty. (Order dictated and pronounced in open Court)
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2006 (2) TMI 489 - CESTAT, NEW DELHI
Confiscation of the goods - Improperly exported - Penalty u/s 114 - Mis-declaration of value and description of the goods - Custom House Agent required to make any declaration of the value? - HELD THAT:- From the plain reading of section 113, it would be clear that the penalty can be imposed only if there is mis-declaration of value and description of the goods that are sought to be exported. In this case the appellant is only a CHA and he is not required to make any declaration of the value nor is he required, under the law to file description of goods. His role is limited to facilitate the proper filing of the documents as received from the exporter. He is not required to go in to the authenticity of the value of the goods etc. His job is confined to the submissions of the papers as given by the exporter and to identify the exporter to the authorities which he did so when the goods were examined by the authorities. The Exporter was physically present when the authorities examined the goods.
To my mind, in this case the CHA has acted in a responsible way by producing the exporter who had filed the documents for export of goods. No motive could be attributed to the appellants in this for imposition of penalty u/s 114 of the Customs Act, 1962, as there are no specific allegations as to the commission and omissions of the appellant with knowledge.
The issue in this case is squarely covered by the decision of the Division Bench’s order in the case of Vetri Impex v. CC, Tuticorin [2004 (5) TMI 170 - CESTAT, CHENNAI]. Thus, the impugned order is liable to be set aside. I do so and allow the appeal.
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2006 (2) TMI 488 - CESTAT, NEW DELHI
Appeal - Appeal to Appellate Tribunal - Jurisdiction - Anti-dumping ... ... ... ... ..... esident and not less than two members and shall include one judicial member and one technical member. rdquo It is thus evident that an appeal under Section 9C against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article, would lie to this Tribunal before a Bench contemplated by the provision of sub-section (5) of Section 9C. 4. emsp The present appeal has not been preferred against any order of determination regarding the existence, degree and effect of dumping in relation to import of any article. The appeal is therefore preferred rightly under Section 129A(1) of the Customs Act, 1962, since no appeal under Section 9C(1) can lie against the impugned order, in view of the provisions thereof which are self explanatory. The registry is therefore directed to place these matters for hearing before the Division Bench at Kolkata. (Dictated and pronounced in the open Court on 16-2-2006)
............
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