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Showing 221 to 240 of 1389 Records
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2014 (7) TMI 1172
Revision u/s 263 - while making the disallowance under section 14A, the provisions of Rule 8D had not been applied - Held that:- As it is noticed that the consequential order has already been passed in respect of the order passed under section 263 and also as it is noticed that the appeal has been filed by the assessee against the said consequential assessment order and the issue is only in relation to the computation of the average value of investment, the income from which does not form any part of the total income, we are of the view that the appeal filed by the assessee against the order passed under section 263 has become infructuous and consequently the same stands dismissed. - Decided against assessee.
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2014 (7) TMI 1171
Operational income (rent) from running and operations “Family Entertainment Centre cum Mall” and service charges recovered - chargeable to tax in the hands of the assessee under the head “profits and gains of business or profession” as per assessee or under the head “income from house property” as held by the A.O. - Held that:- The facts of the present case as borne out from the record clearly shows that the cases of the assessees fall under the latter category as the intention of the assessees clearly was to exploit the commercial property by way of complex commercial activities and it was not a case of letting out the property owned by the assessee companies simpliciter. The rental income was not received by the assessee companies merely because of the ownership of the property but the same was received because of the complex commercial activity carried on by them of operating and running Malls which brought that rental income. The rental income and service charges thus were received by the assessee company as business income during the course of its business carried on by them of operating and running the Malls as a commercial activity and as rightly held by the ld. CIT(A), the said income primarily arising from the exploitation of commercial assets by way of complex commercial activity constituted the business income of the assessee company.
It is observed that the decision of the co-ordinate bench of this Tribunal in the case of M/s Khandelwal Estate P. Ltd. (2014 (2) TMI 1227 - ITAT MUMBAI ) cited by the ld. Counsel for the assessee also supports the case of the assessees. In the said case, the income received by the assesse from the operation of shopping malls in the form of rent and service charges was held to be business income of the assessee by the Tribunal holding that giving space with services and facilities of varied and wide nature would definitely constitute a business and the relationship between the parties in such case is distinguished from that merely of a landlord and tenant relationship. We therefore find no infirmity in the impugned orders of the ld. CIT(A) treating the operational income received by the assessee companies from running of Malls in the form of rent and service charges as their business income and upholding the same on this issue, we dismiss these appeals filed by the Revenue. - Decided in favour of assessee.
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2014 (7) TMI 1170
Computation of deduction u/s 10A - deduction of telecommunication charges and insurance expenses from the Export turnover for computing deduction - Held that:- We agree with the contentions of the assessee and accordingly direct the AO to deduct corresponding amount from total turnover also, if any amount is deducted from the Export turnover. See ITO Vs. Saksoft Ltd (2009 (3) TMI 243 - ITAT MADRAS-D )
Applicability of provisions of sec. 14A of the Act to the computation of “Book Profit” u/s 115JB - Held that:- The issue relating to applicability of provisions of sec. 14A of the Act to the computation of “Book Profit” u/s 115JB of the Act has since been decided against the assessee by Hon’ble Delhi High Court in the case of CIT Vs. Goetze (India) Ltd (2013 (12) TMI 607 - DELHI HIGH COURT ).In view of the above, we dismiss the grounds relating to the above said issue.
Applicability of Rule 8D - Held that:- We are of the view that the AO was not right in applying the provisions of Rule 8D(2)(iii) of the IT rules in the instant case. At the same time, we have noticed that the assessee has carried out investment activities of purchasing, liquidating etc. and has also received dividend income. Hence, the contention of the assessee that it did not incur any expenditure is not acceptable to us also. Hence, we are of the view that it would be proper to make disallowance of a portion of general expenses in terms of of sec. 14A of the Act. Accordingly, we are of the view that a round sum disallowance of ₹ 25,000/- may be made to take care of sec. 14A of the Act and in our view, the same would meet the ends of justice. We order accordingly. The order of Ld CIT(A) stands modified accordingly.
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2014 (7) TMI 1169
Empowerment to Commissioner to dispose of an Appeal by way of remand under Section 35A (3) of the Central Excise Act, 1944 - rebate claim on export of goods - Held that:- There are categorical findings on merits in the Order-in-Original granting refund. Thus, there was no need of any remand by the Commissioner (Appeals). With these observations, I hold that as the issue relates of rebate claim on export of goods, the present appeal is not maintainable before this Tribunal, accordingly the appeal is dismissed.
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2014 (7) TMI 1168
Entitlement to exemption u/s 11 - Held that:- The order granting registration u/s 12A read with section 12AA(1)(v) of the Act on 3rd September,2004 w.e.f. 01/04/2003 is in force. As the registration u/s 12A is in force, the AO is directed to compute the income by granting exemption u/s 11 to the assessee.
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2014 (7) TMI 1167
Disallowance under Section 40(a)(i) - licenses in software acquired by the Respondent-assessee from M/s.GE Network Technologies, Netherlands - whether the licenses are for the use of copyrighted article and the payments would be taxable as royalty? - Indo Netherlands treaty - Held that:- Tribunal on fact found that the supplier has no business operations in India to which the income may be attributed to as required under Explanation 1(a) to Section 9(1)(i) of the Income Tax Act, 1961 (for short ‘the Act’). As this conclusion was arrived at by the Tribunal on appreciation of fact, we do not find any wrong in it. As far as the second issue is concerned, the Tribunal found that the royalty is not payable as required under Section 9(1)(i) of the Act or Article 12 of India-Netherlands DTAA. As it was a case of frequent purchases of software, the question of payment of expenses incurred on account of the import does not arise.
Communication charges - as per ITAT the charges shall not be excluded from Export Turnover though Explanation 2 to Section 10A - Held that:- Tribunal has followed the decision of Coordinate Bench of the learned Tribunal in case of PATNI TELECOM (P) LTD. v. ITO [2012 (8) TMI 641 - ITAT, HYDERABAD]. This decision does not appear to have been upset by higher foram
Foreign exchange fluctuation arisen on account of conversion of funds in EEPC account into Indian Rupees - eligible for deduction under Section 10A as per ITAT - Held that:- As decided by the learned Tribunal following the decision of the Tribunal in case of SANYO LSI TECHNOLOGY INDIA PRIVATE LIMITED v. DEPUTY COMMISSIONER OF INCOME TAX [2014 (1) TMI 1257 - ITAT BANGALORE ] which was decided following Supreme Court decision in case of SUTLEJ COTTON MILLS LIMITED v. CIT. [1978 (9) TMI 1 - SUPREME Court]
Interest ought to be charged at LIBOR + 2% when Indian entity advancing loan to its AE located in United States of America is in the nature of outbound loans effecting rupee loans on which PLR is applicable rather than LIBOR as per ITAT - Held that:- It is legally acceptable discretion of the learned Tribunal, this Court does not think fit to interfere with the same.
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2014 (7) TMI 1166
Entitlement to claim deduction u/s 80IB(10) - Held that:- Regarding the objection of the Assessing Officer in the website of assessee company, the assessee itself has shown shops available in DSK Sundarban project. The issue is not relevant to decide whether the residential and amenity space are separate projects or one and the same. So long as the building plans are independently sanctioned, two projects are separately and accordingly, disallowance was not rightly rejected on this account. Accordingly, the Assessing Officer was not justified in rejecting claim of the assessee under the provisions of section 80IB(10) of the Act in respect of DSK Sundarban. The Assessing Officer is directed accordingly.
In the absence of any definition of housing project, the Assessing Officer and the CIT(A) were not justified in holding that all the buildings sanctioned in the revised plan dated 15.10.2008 constitute the housing project as discussed above. In view of above discussion, the choice is for the assessee to determine which buildings would form part of the housing project and the conditions laid down in Section 80IB(10) of the Act should be checked vis-a-vis those buildings with respect to which the deduction is claimed. Since the assessee has completed all the buildings for which sanction is received for parking + 7 floors and all the conditions laid down in Section 80IB(10) of the Act were complied with, the assessee is entitled for claiming deduction u/s.80IB(10) of the Act. It is settled legal position that beneficial provisions have to be interpreted liberally in favour of assessee. Regarding the contention of the Assessing Officer that the built up area of the row houses exceeded 1500 sq. ft. is not relevant since the row houses do not form part of the eligible housing project. In view of above discussion, the Assessing Officer is directed to allow the assessee’s claim of deduction u/s.80IB(10) of the Act in respect of Parking + 7 floors of DSK Vishwa Phase-V, Meghmalhar Phase-I project as independent project. - Decided in favour of assessee.
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2014 (7) TMI 1165
Disallowance of 67% abatement under Notification No. 1/2006-S.T - re-classification of the services - waiver of impugned demand, interest and penalties and stay recovery thereof - Held that:- On perusal of Notification No. 1/2006 it is evident that for the purposes of 67% abatement, the condition of non-availment of Cenvat credit is prescribed only in respect of inputs and not in respect of input services. Thus Commissioner has completely misread the provisions of said notification to disallow abatement of 67% under the said notification.
As regards re-classification of the services rendered by the appellants after introduction of Works Contract Service, it is trite to say that the service rendered has to be classified as per the provisions applicable on the date of delivery of service. It is not disputed that from 1-6-2007 the service rendered by the appellants categorically fell under the category of Works Contract Service and therefore the re-classification on their part prima facie was as per law.
The appellants would be entitled to 67% abatement under Notification No. 1/2006-S.T. The service tax payable after allowing 67% abatement will reduce to 33% of the amount of demand confirmed. Service Tax @ 4% under the Composition Scheme also works out to approximately in the same range. Further in such a scenario, the sustainability of the allegation of suppression/wilful mis-statement can also, prima facie, be in serious jeopardy. Thus the appellants have made out a good case for waiver of pre-deposit
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2014 (7) TMI 1164
Levying penalty u/s 271(1 )(c) - addition u/s 2(22)(e) - Held that:- Addition on account of deemed dividend no penalty u/s. 271(1)(c) of the Act for concealment or furnishing inaccurate particulars of income is warranted. In the case of Sunil Chandra Vohra Vs. ACIT (2009 (6) TMI 682 - ITAT MUMBAI) wherein the ignorance of the provisions of section 2(22)(e) of the Act was held to be reasonable cause for deleting the penalty. Also see case of Dr. Minati Chakraborty [2010 (7) TMI 1027 - CALCUTTA HIGH COURT] - Decided in favour of assessee
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2014 (7) TMI 1163
Appeal against the order of the tribunal [2013 (11) TMI 1576 - CESTAT NEW DELHI] - If the grievance of the appellant is that a submission in regard to the imposition of the penalty which was urged before the Tribunal has not been considered, the appropriate remedy would be to move the Tribunal itself for such a grievance. - No Reason to entertain the appeal - Decided against the assessee.
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2014 (7) TMI 1162
LTCG or STCG - Gain on sale of shares was declared as long term capital gain - assessee had sold shares, which were acquired by him under Stock Option Plan - High Court [2013 (7) TMI 944 - DELHI HIGH COURT] has remanded back the matter to the tribunal - Apex Court directs that the Tribunal shall not be influenced by the observations made by the High Court in its impugned order and it shall decide the matter on the facts and merits of the case.
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2014 (7) TMI 1160
Withdrawing the status of Charitable Institution given to the appellant-assessee under Section 12AA(1)(b)(i) of the Act - Decision against the assessee confirmed by the Tribunal and the High Court - The Tribunal has reached a categorical conclusion that the assessee-Jammu Development Authority cannot be regarded as an institution or trust which may have been set up to achieve the objects enumerated under Section 2 of the Act particularly in view of the addition of first and second proviso made by the Finance Act, 2008 w.e.f. 01.04.2009 to Section 12 AA of the Act
Apex Court after hearing the matter, dismissed the appeal since the apex court did not find any reason to entertain this petition.
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2014 (7) TMI 1159
Additional depreciation @ 20% on plant and machinery - CIT(A) allowed the claim - Held that:- As held by the Hon’ble Delhi High Court in the case of CIT vs. Delhi Press Patra Prakashan Ltd. [2013 (6) TMI 70 - DELHI HIGH COURT] the assessee is squarely covered by the above decision and printing activity can be considered as manufacturing activity. Accordingly, the granting of additional depreciation by the CIT(A) is justified. - Decided in favour of assessee.
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2014 (7) TMI 1158
Disallowance u/s.14A - whether ITAR was correct in deleting the disallowance u/s.14A of the Act, despite the fact that the Hon'ble ITAT itself held the dividend income as exempt? - Held that:- We do not understand as to how the Assessing Officer can ignore Section 44 of the Income Tax Act, 1961 and the First Schedule.
Time and again, the Court had clarified that the computation of profit and gain from the insurance business is to be made separately from any other business. That is why the provisions have been made in the Income Tax Act, 1961, particularly, bearing in mind the nature of the insurance business.
In these circumstances, the fact that one question raised is common to the other appeals which have been admitted,we would have while dismissing this appeal imposed heavy costs on the Revenue and which costs would have been directed to be borne individually by the officer who had decided to file this appeal. We refrain from doing so simply because Mr. Suresh Kumar brought to our notice the fact that question (c) , which is termed as substantial question of law in this Appeal is common to the pending appeal and from a identical finding in relation to another insurance company. Hence,the appeal is admitted only on the above substantial question of law.
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2014 (7) TMI 1157
Exclusion of receipts from trading of carbon credit and insurance claim while computing the deduction under sec.80IA - Held that:- We are bound to follow the judgment of the Hon’ble Andhra Pradesh High Court in the case of CIT vs. M/s. My Home Power Ltd. [2014 (6) TMI 82] and hold that the receipts in the hands of the assessee generated out of sale of excess carbon credit are in the nature of capital receipts and, therefore, not includible in the computation of taxable income. Once the entire receipts are excluded from the computation of income itself, there is no question of any separate argument of sec.80IA deduction.
As far as carbon credit receipt is concerned, the issue is decided in favour of the assessee. Therefore, the Assessing Officer is directed to exclude the carbon credit receipts from the computation of assessee’s income. - Decided against revenue
First initial assessment year for claiming deduction under sec.80IA - depreciation of earlier years (which already have been absorbed) cannot be notionally carried forward and considered in computing the quantum of deduction under sec.80IA - Held that:- This issue is already covered by the judgment of the Hon’ble Madras High Court rendered in the case of CIT v. Velayuthasamy Spinning Mills [2010 (3) TMI 860 - Madras High Court] and held that Commissioner of Income-tax(Appeals) didn't erred in holding that the assessment year 2005-06 is the first initial assessment year in which the assessee claimed deduction under sec.80IA and, therefore, the depreciation of earlier years (which already have been absorbed) cannot be notionally carried forward and considered in computing the quantum of deduction under sec.80IA. - Decided against revenue
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2014 (7) TMI 1156
Withholding of taxes u/s 195 - whether payment made by the assessee to noresident for purchase of new designs of furniture clearly being transfer of special knowledge? - CIT(A) deleted tds liability - Held that:- The sole basis of ADIT (International Taxation) holding the advertisement as fees for technical services was the vehement reliance on Hon'ble Karnataka High Court judgemnet in the case of CIT vs. Samsung Electronics Co. Ltd. (2009 (9) TMI 526 - KARNATAKA HIGH COURT ). However, the Hon'ble Supreme Court in the case of M/s. GE India Technology Centre (P) Ltd. vs. CIT & Anr.(2010 (9) TMI 7 - SUPREME COURT OF INDIA ) reversed this proposition of Hon'ble Karnataka High Court (supra). Thus, in our considered view, the advertisement payment made to NRI cannot be held as liable to TDS. We further hold that there is no element of rendering any managerial, technical or consultancy services so as to be termed as fees for technical services. - Decided in favour of assessee.
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2014 (7) TMI 1155
Mark to Market’ loss - loss arising on valuation of forward exchange contracts on the closing date of accounting year - whether not a notional loss and therefore, allowable? - Held that:- Assessee having maintained account on mercantile system of accounting, loss claimed by the Assessee on account fluctuation in the rate of foreign exchange as on the date of balance sheet in respect of loans taken for Revenue purpose is allowable as expenditure u/s. 37(1) notwithstanding the fact that liability has not been actually discharged in the year in which the fluctuation rate of foreign exchange is accrued. See ACIT vs. M/s. Rupam Impex [2013 (10) TMI 1364 - ITAT MUMBAI] - Decided in favour of the assessee.
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2014 (7) TMI 1154
Non compliance of direction of High Court to execute bank guarantee in lieu of pre-deposit of amount as ordered by the Tribunal in the stay order - there has been delay of more than four weeks in making compliance with the Order of the Hon’ble High Court - Ld. Consultant for the Appellant submits that they may be given an opportunity to approach the Hon’ble High Court to seek an appropriate Order in this regard. In the interest of justice, accordingly, the matter is adjourned.
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2014 (7) TMI 1153
Interest on income-tax refund and fixed deposits with the bank - whether liable to tax with reference to article 7 read with paragraph (4) of article 11 or paragraph (2) of article 11 of the Indo-Australia Double Taxation Avoidance Agreement - Held that:- The Tribunal [2011 (9) TMI 1006 - ITAT MUMBAI] has assigned cogent and satisfactory reasons as to why the Assessing Officer could not have undertaken the exercise in the limited jurisdiction. Even otherwise, on merits as well, the Tribunal's view cannot be said to be perverse. The Tribunal in the peculiar facts and considering the double taxation avoidance agreement rendered a finding as to the interest on income-tax refund is not effectively connected with permanent establishment either on the basis of asset-test or activity-test. Accordingly it is held that this part of the interest is taxable under para 2 of Article 11. - Decided in favour of assessee.
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2014 (7) TMI 1152
Excess depreciation claimed on wind mill plant - CIT(A) deleted the disallowance - Held that:- The various High Courts as well as Coordinate Bench of ITAT, Jaipur in case of DCIT Vs. Vippy Solvex Products Ltd. [2007 (3) TMI 746 - MADHYA PRADESH HIGH COURT] held that foundation of platform, erection, installation of plant and machinery, preparation of crane platform for wind mill and other civil work carried out for installation are internal part of wind mill, which have not independent use. Thus, we are of the considered view that the assessee is entitled for 80% of depreciation on composite wind mill project including other expenditure for put to use for wind mill. Thus, we confirm the order of learned CIT(A). - Decided in favour of assessee.
TDS u/s 194H - disallowance u/s 40(a)(ia) on non deduction of TDS on commission payment to the bank on credit card - Held that:- The assessee is in the business of hotel and restaurant. During the year under consideration, the assessee provided service to foreign as well as Indian tourists by way of hire charges as well as supply of food and beverages. The customers paid this service through credit cards, which is credited by the bank of credit card holders. The concerned bank transfers this money after charging of fees. It is fact that these services were rendered by the bank of credit card holders not by the bank of assessee. The appellant gets remaining amount after deducting the fees. As relying on case of Gems Paradise Vs. ACIT [2012 (2) TMI 521 - ITAT JAIPUR] wherein held it is not the case that bank has advised the assessee to sell their goods to its customers then he will pay the commission. It is reversed in a situation as bank issued credit cards to the credit card holders on certain fees or whatever the case may be and the card holder purchases material from the market through his credit card without making any payment and that shop keeper presents the bill to the bank against whose credit card the goods were sold and on presentation of bill as stated above the bank makes the payment. Therefore, in our considered view, provisions of section 194H are not attracted in this type of transaction. Therefore, we hold that addition made and confirmed by ld. CIT (A) was not justified - Decided in favour of assessee.
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