|
Advanced Search Options
Case Laws
Showing 221 to 240 of 1439 Records
-
2015 (7) TMI 1224
Loss suffered on account of share trading as share broker - whether not a business loss or speculative loss as per Explanation to Section 73 and as per Explanation 2 to Section 28 and set off against the income from the business of brokerage was not allowed - Held that:- come Tax Appellate Tribunal, after going through the relevant provisions of Sections 43(5)(d) and 73(1) and Explanation to Section 73 of the Act and after examining as to why Explanation to Section 73 was inserted by the Act with effect from 1.4.1997, i.e., in order to have effective check on the dealings in shares of the company controlled by business houses controlling groups of companies as tax avoidance device correctly answered the same in favour of the assessee.
The loss suffered by the assessee on account of misdeals or purchase and sale of shares by actual delivery, or trading in derivatives in a recognised stock exchange cannot be considered to be loss on account of speculation. Conversely it has to be treated as the business loss of the assessee. More over it is pertinent to mention that misdeals happen involuntary during the course of the assessee's business activities which is beyond the control of the assessee. Purchase and sale of shares is not the business of the assessee. Purchase and sale of shares is not the business of the assessee company because all such purchase and sale of shares are made on behalf of the clients of the assessee company earning brokerage towards the same. - Decided against revenue
Deduction claimed for the expenditure incurred towards fixing false ceiling, painting, electrical cabling and certain civil works in the rented premises - Held that:- Tribunal correctly by relying on the decisions of our High court reported in (i)CIT v. Ayesha Hospitals Pvt. Ltd., (2006 (10) TMI 117 - MADRAS High Court) and (ii)Thiru Arooran Sugars Ltd. V. Dy. CIT (2013) [2013 (2) TMI 450 - Madras High Court] held the expenses incurred as revenue expenditure and accordingly allowed deduction on account of the same - Decided against revenue
-
2015 (7) TMI 1223
Arbitration petition - injunction - winding up procedure - Held that:- CDR package is the final CDR package approved by the Corporate Debt Restructuring Cell; there is a huge debt which is being restructured; such restructuring involves substantial financial sacrifice on the part of the secured creditors; it also envisages infusion of substantial funds into the company by the secured creditors so as to bring the ailing company back on rails; and it is not advisable, in the premises, to rock the boat at this critical and sensitive juncture by admitting the winding up petition against the company. An admission order at this juncture is neither in the interest of the company and its workmen nor in the interest of its creditors including even the petitioning creditor. The need to allow the CDR scheme to have a full play in the interest of all stakeholders far outweighs the private interest of the Petitioner, who is, as noted above, not without a security and whose interests are also sought to be protected to the extent possible in the accompanying arbitration petition, to have the company wound up.
(a)Arbitration Petition is disposed of by directing State Bank of India – the Monitoring Institution under the CDR Package – to allow the Petitioner to participate in the CDR package if it so chooses, by amending the provisions and terms of the package appropriately. In the event the Petitioner does not choose to so participate, State Bank of India is directed to keep the Petitioner informed from time to time about the progress of the implementation of the CDR Scheme and not allow any disposal of assets of the Respondent Company without intimation to the Petitioner. The Petitioner will be at liberty to apply for appropriate reliefs with respect to the disposal, if any, of the assets as and when such intimation is given to it, with a view to protect its interests consistently with the other creditors including the CDR lenders.
(b) The Court Receiver appointed as receiver in respect of hypothecated assets described in the Schedule to the Deed of Hypothecation dated 13 July 2010 (Exhibit – H to the petition) in the order dated 26 November 2014, which is continued as an adinterim arrangement in terms of the order passed by the Appeal Court on 9 December 2014, shall stand vacated.
(c) The injunction granted by the order passed on the Arbitration Petition on 26 November 2014 and continued by way of an adinterim arrangement by the order of the Appeal Court dated 9 December 2014, shall also stand vacated but only with effect from the expiry of the period of 3 weeks from today.
-
2015 (7) TMI 1222
Engineering Consultancy - recovery of tax for the year 1999 - the decision in the case of SAME ENGINES INDIA PVT. LTD. Versus COMMISSIONER OF C. EX., CHENNAI [2005 (3) TMI 558 - CESTAT, CHENNAI] contested - Held that: - the provision of law authorising levy of Service Tax on service recipients came into force on 16-8-2002 without giving any retrospective effect to the said provision. Since the period of dispute is in respect of the year 1999, much prior to the aforesaid date of 16-8-2002, the CESTAT has rightly set aside the demand of Service Tax - appeal dismissed - decided against Revenue.
-
2015 (7) TMI 1221
CENVAT credit - The appellant avails cenvat credit of service tax paid on various services used for both providing of output services as well as for selling of vehicles - Held that: - Rule 3 ibid is the enabling provision, which entitles the service provider to take cenvat credit of service tax paid on any input service received by the provider of output services. Since the appellant is providing the taxable service as well as selling vehicles, had entertained the view that selling vehicles since is not an exempted service, the appellant is entitled for cenvat credit in terms of rule 3 of the said rules.
Since the appellant had reversed the cenvat credit attributable to the trading activity i.e. selling of vehicles alongwith interest, the legislative intent behind framing of cenvat credit rules, in my opinion, have been duly complied with. However, since the statement calculating the service tax amount and the interest thereon was submitted for the first time before this Tribunal, I am of the view that the same is required to be verified by the original authority.
Appeal allowed by way of remand.
-
2015 (7) TMI 1220
Transfer pricing adjustment - comparability - Held that:- As it is clear from the business profile of the assessee recorded by the TPO that the international transactions in the ITES pertaining to data processing and in the nature back end service support to the AE group of Co's, thus companies functionality dissmilar with that of assessee need to be deselected from final list of comparable.
In view of the statement and plea of the learned AR we direct the AO/TPO to re-compute the ALP after excluding the above two Co. namely M/s Eclerx and M/s Mold Tek (Supra) and then determine the adjustment, if any after giving the benefit of tolerance range of +=5%.
Computation of deduction u/s 10A - Held that:- The communication expenses are excluded from the export turnover then, the same should also be excluded from the total turnover in view of the judgment in the case of CIT v. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] for the assessment year 2003-04.
-
2015 (7) TMI 1219
TDS u/s 194C - non deduction of tds - AO rejected the books of account of the assessee - Held that:- Hon'ble Allahabad High Court in the case of CIT vs. Banwari Lal Bansidhar ( 1997 (5) TMI 37 - ALLAHABAD High Court ) has taken a view that once the books of account are rejected then no other disallowances can be made which is a fact in this case. Besides, the assessee has demonstrated that taxes on the impugned job work charges were either paid by payees or they were not taxable in their hands. Therefore, there is no loss to the Revenue, this fact has not been disputed.
Thus no disallowance is justified u/s 40(a)(ia) of the Act in this case of the assessee. Hence, the ground of the assessee is allowed.
-
2015 (7) TMI 1218
Disallowance of depreciation - ingenuity of claim - Held that:- Revenue authorities have failed to demonstrate that the claim of depreciation is bogus. Further, the documentary evidences submitted by the assessee have not been rebutted by the Ld. CIT(A). In the light of the above we failed to persuade ourselves to give one more opportunity to the Revenue as in our opinion that would cause unnecessary hardship on the assessee when the main Director has since deceased. In the interest of justice and fair play, we set aside the order of the Ld. CIT(A) and direct the AO to delete the impugned addition made on account of the disallowance of depreciation. - Decided in favour of assessee.
-
2015 (7) TMI 1217
Deduction u/s. 80IA - income from sale of Certified Emission Reduction (CER) - income earned by the assessee on sale of CERs or Carbon Credits - Held that:- The income received on sale of excess Carbon Credits is liable to be assessed as a capital receipt not chargeable to tax. The Ground of appeal no. 1 relating to claim of exemption u/s. 80IA of the Act on the income from sale of Carbon Credits is rendered academic
Determination of ‘Book Profits’ for the purpose of section 115JB - admission of additional ground - Held that:- The assessee cannot be prevented from raising the Additional Ground of appeal no. 2 relating to relating to assessment of its correct tax liability in the course of application of section 115JB of the Act. It is also quite clear that the factual contours of the claim would not require any fresh investigation of facts but merely an appraisal of those facts which are already available on record.
-
2015 (7) TMI 1216
Capital gain computation - FMV determination - reference to DVO - Held that:- The assessee filed report of Registered Valuer in support of the market value as on 01.04.1981. The Assessing Officer was not having any evidence or material before him to contradict the report of the Registered Valuer. The Assessing Officer, if was not satisfied with the report of the Registered Valuer, could have made a reference to the Departmental Valuation Officer under section 55A of the Act for the purpose of computing income from capital gains.
AO has thus, not acted in accordance with law and without any basis or evidence in his possession, did not accept report of the Registered Valuer. In the absence of any material on record, Assessing Officer should not have made his own calculation for the purpose of computing the capital gains. The orders of the authorities below, thus, cannot be sustained in law. We, accordingly, set aside the orders of authorities below and direct Assessing Officer to accept valuation reported by the assessee as per report of the Registered Valuer as on 01.04.1981 and accept the computation filed by the assessee. - Decided in favour of assessee.
-
2015 (7) TMI 1215
Change of counsel - Held that:- Additional Commissioner of Income Tax (ACIT), is present in the Court. He assures that if there is a change of the counsel for the Department, the files will be furnished to such counsel well in advance of the next date of hearing in the matter. He also assures the Court that the Department will obtain a soft copy of all the appeals pending on the Board of this Court from the Court Master. It has been made clear to the ACIT that the Court will not hereafter entertain a request for adjournment made on behalf of the Department on the ground of change of counsel.
-
2015 (7) TMI 1214
Works contract - whether the works contract entered into between the revisionist Company and a customer is a sale contract or a works contract? - Held that - From a perusal of Rule 9, it will be seen that under Clause (e) of Rule 9 (1) all amounts representing the value of goods in which property has been transferred in the execution of works contract as a result of sale in the course of inter-state trade or commerce and under Clause (f) sale in the course of import of goods into the territory of India shall be liable to be excluded
In the facts of the present case it is noticed that the Company has an office in U.P. as well as outside U.P. for which works contract was executed by the revisionist at its Head Office in Mumbai. The activity of manufacturing of parts/components of lifts/elevators is carried out by the revisionist at its factory in Karnataka and in terms of works contract executed for the said periods, the goods and parts are then sent to the customer's site for installation of lifts/elevators. The goods are received by way of stock transfer in U.P. from the office of the assessee situate outside U.P. and are used in the execution of the works contract and this transaction has resulted in the movement of goods from one state to another.
It is not necessary for this Court to enter into the merits of the matter or examine the nature of the contract as the appeal filed by the revisionist before the Additional Commissioner (Appeals) is still pending.
Appellate Authority directed to decide the appeal of the revisionist expeditiously in accordance with law within a period of two months from the date of receipt of the certified copy of this order - appeal allowed by way of remand.
-
2015 (7) TMI 1213
Addition u/s 14A - assessee’s contention is that the A.O. has not recorded satisfaction as required u/s 14A - Held that:- We find that the A.O. at para 3 has recorded such satisfaction. It is not specified in the Act as to how a satisfaction should be recorded. Thus, this ground is without merit.
Expenditure incurred for purpose of earning dividend - Held that:- Assessee has no other business and its entire income earned is from dividend and the expenditure in question is relatable and was incurred for the purpose of earning dividend.
Appeal filed by assessee dismissed
-
2015 (7) TMI 1212
State Human Rights Commissions setup for Union territories - Held that:- 1. The States of Delhi, Himachal Pradesh, Mizoram, Arunachal Pradesh, Meghalaya, Tripura and Nagaland shall within a period of six months from today set up State Human Rights Commissions for their respective territories with or without resort to provisions of Section 21(6) of the Protection of Human Rights Act, 1993.
2. All vacancies, for the post of Chairperson or the Member of SHRC wherever they exist at present shall be filled up by the State Governments concerned within a period of three months from today.
3. Vacancies occurring against the post of Chairperson or the Members of the SHRC in future shall be filled up as expeditiously as possible but not later than three months from the date such vacancy occurs.
4. The State Governments shall take appropriate action in terms of Section 30 of the Protection of Human Rights Act, 1993, in regard to setting up/specifying Human Rights Courts.
5. The State Governments shall take steps to install CCTV cameras in all the prisons in their respective States, within a period of one year from today but not later than two years.
6. The State Governments shall also consider installation of CCTV cameras in police stations in a phased manner depending upon the incidents of human rights violation reported in such stations.
7. The State Governments shall consider appointment of non-official visitors to prisons and police stations in terms of the relevant provisions of the Act wherever they exist in the Jail Manuals or the relevant Rules and Regulations.
8. The State Governments shall launch in all cases where an enquiry establishes culpability of the persons in whose custody the victim has suffered death or injury, an appropriate prosecution for the commission of offences disclosed by such enquiry report and/or investigation in accordance with law.
9. The State Governments shall consider deployment of at least two women constables in each police station wherever such deployment is considered necessary having regard to the number of women taken for custodial interrogation or interrogation for other purposes over the past two years.
-
2015 (7) TMI 1211
Condonation of delay - Demand of service tax - Tour operator service - the decision in the case of M/s Cox & Kings India Ltd., M/s Travel Corporation of India Ltd. and M/s Swagatam Tours Pvt. Limited Versus CST, New Delhi [2013 (12) TMI 1024 - CESTAT NEW DELHI] contested - Held that: - There is a delay of 377 days in filing the appeals for which no satisfactory explanation has been given - appeals dismissed on the ground of delay.
-
2015 (7) TMI 1210
Claim of deprecation on intangible assets - Held that:- Notably in the past years, assessee had purchased Inter Trade Division of Mahindra & Mahindra Ltd. on a going concern basis and the excess of purchase consideration over the book value of the assets and liabilities taken over was considered as cost acquisition of various intangibles. The depreciation claimed on the acquisition of such intangibles was denied by the Tribunal vide its order for the assessment year 2000-01. Following the aforesaid precedent, in this year also the claim of depreciation of ₹ 8,92,714/- on the intangible asset is hereby rejected.
Disallowance u/s 14A on clause (iii) of Rule 8D(2) of the Rules - Held that:- Notably, the assessee was found to have made investments, which yielded exempted dividend income to the tune of ₹ 1,42,73,000/-. The AO invoked the provisions of section 14A of the Act and disallowed a sum of ₹ 10,31,252/- being administrative expenses relatable to the earning of exempt income; and, such disallowance was worked out by the application of clause (iii) of Rule 8D(2). Ld. CIT(A) has also sustained the disallowance by noticing that assesse has not brought any material on record to show as to how the disallowance was not reasonable.Before us, the inability of the assessee to prove unreasonableness of the disallowance continues, as noticed by the Ld. CIT(A); and, therefore, we hereby affirm the disallowance of ₹ 10,51,252/- as above. Thus, on this aspect also the assessee fails.
Liability towards post retirement medical claim for the employees - Held that:- Assessee fairly conceded that similar issue came before the Tribunal in the case of the group concern M/s. Mahindra &Mahindra Ltd. for assessment year 2007-08 similar liability has been held to be an unascertained liability which was not allowable as a deduction under section 37(1) of the Act. Following the aforesaid precedent, we hereby affirm the stand of the Lower Authorities in deciding the issue against the assessee. Thus, on this aspect also assessee fails.
Addition on account of discrepancy in the AIR report - Held that:- CIT(A) has directed the AO to give further opportunity to the assessee and thereafter decide the issue afresh. We find no reason for any grievance on the part of the assessee as the Ld. CIT(A) has directed the AO to give opportunity to the assessee of being heard and thereafter pass an order afresh. The said direction to the AO is hereby affirmed and accordingly the said ground is disposed of.
Grant of short credit for the TDS - Held that:- We find that the Ld. CIT(A) has directed the AO to grant credit for TDS under section 199 of the Act in accordance with law. We find no infirmity in the said direction of Ld. CIT(A), which is hereby affirmed.
Addition under section 14A on the basis of clause (ii) of Rule 8D(2) - Held that:- Assessee has furnished the audited financial statement for the relevant period which clearly supports the inference drawn by the Ld. CIT(A). On the basis of the balance sheet as on 31/3/2009, it is quite clear that the loan funds in this year have substantially decreased than the preceding year. Further, the entire investment which yielded exempt income has been made during the year under consideration. Further the assessee has earned profit after tax of ₹ 4471.11 lacs and the share capital plus reserves and surplus of the assessee company stand at ₹ 13332.50 lacs. The aforesaid analysis of the financial statement clearly supports the inference of the Ld. CIT(A) that the ratio of judgment of Hon'ble Bombay High Court in the case of Reliance Utilities & Power Ltd.(2009 (1) TMI 4 - BOMBAY HIGH COURT ) is applicable. The interest free funds available with the assessee are sufficient to cover impugned investments and, therefore, it could be presumed that the investments have been made out of interest free funds. DR has not brought out any cogent reasoning or material which would enable us to take a view different than of the Ld. CIT(A). Therefore, we hereby affirm the order of Ld. CIT(A) on this aspect.
-
2015 (7) TMI 1209
Scope of Rectification or review petition - Held that:- As against the M.As. which was dismissed by Tribunal, Revenue has again preferred the present M.As. which are on the same set of facts and through which the Revenue wants us to recall the appellate order on the alleged premise, that there was an error apparent in the order. We find that while disposing of the M.As. vide order dated 26.09.2014 [2014 (9) TMI 1097 - ITAT AHMEDABAD] it was concluded by the Tribunal that there was no mistake apparent in the order of the Tribunal and in such a situation, we are of the view that it is not open to Tribunal to entertain the second application on the same set of facts .
We draw support from the decision in the case of CIT vs. Chemical and Allied Products (2006 (11) TMI 175 - ALLAHABAD High Court) where the Hon’ble High Court has held that when Tribunal having rejected the first application filed under section 254(2) on the ground that there was no mistake apparent on the face of record in the order of Tribunal, it was not open to the Tribunal to entertain the second application which was filed on the same set of facts and recall its appellate order on the alleged premise that there was an error apparent in the order. The Hon’ble High Court has further held that the Assessee cannot be allowed to be permitted to reopen and reargue the whole matter in the garb of rectification under section 254(2). - Decided against revenue
-
2015 (7) TMI 1208
Revision u/s 263 - CIT-A directed the Assessing Officer to apply the provisions of section 10B(7) r.w.s. 80IA(10)with respect to the profit margins reflected in the Transfer Pricing Study Report - Held that:- Provisions of section 10B are pari-materia to the provisions of section 10A of the Act. The assessee had shown profits from export of propeller shaft components and light axle components earned by EOUs at 38% and 34% as against the average profit mark-up range of 8.4% to 10.77% in case of propeller shaft components and 4.2% to 7.5% in case of axle components of external overseas comparables, which was accepted by the TPO in his report under section 92CA(4) of the Act. In the above said circumstances, where the profit margins declared by the assessee have been accepted to be at arm's length by the TPO, no curtailment of deduction under section 10B can be made by invoking the provisions of section 10B(7) r.w.s. 80IA(8) and 80IA(10) of the Act, relying on the ratio laid down by the Tribunal in M/s Honeywell Automation India Limited vs. DCIT (2015 (3) TMI 494 - ITAT PUNE).
The onus was upon the Department to prove that an arrangement existed between the assessee and its AEs to earn more than ordinary profits and in the absence of the said onus having been discharged by the Department we find no merit in the order of the Commissioner passed under section 263 of the Act in this regard.
Earning more than ordinary profits - Held that:- Assessee had consistently earned higher profit margins right from start of its business even before EOUs were set up and where similar trend has shown in the hands of the assessee which, in turn, had been accepted by the TPO, while determining the arm's length price of the international transactions between the assessee and its AEs, then there is no merit in invoking of jurisdiction by the Commissioner under section 263 of the Act. Further, it is to be noted that there was justification for earning higher profit margins due to substantial cost savings i.e. locational advantage, lower infrastructure cost, savings in tooling cost, no cost of investment and know-how/IPR being a restricted scope supplier of components. Where the assessee is getting the designs and the know-how from its AEs and was supplying the components, in turn, to its AEs i.e. where the assessee was a limited scope manufacturer, then we find no merit in the observations of the Commissioner in this regard that the assessee had earned more than ordinary profits, which in any case have been justifiably explained.
Royalty of 2.85% not payable on export of components supplied to the AE and warranty not borne by the assessee - As per the Commissioner, the same reflected the intention of the assessee to show higher profits from the 10B units - Held that:- In the present case, where the assessee was restricted scope and limited risk manufacturer of components exported to its AE, where the licensed know-how and designs owned by the AE were made available to the assessee only for it use itself reflects that in such circumstances question of royalty payment to AE does not arise and in the absence of any agreement between the parties for payment of royalty, we find no merit in the observation of the Commissioner in this regard. Further, where the assessee was only exporting components of propeller shaft and axles and the finished products were assembled by the AE, there is no scope for providing warranty on export of such components. The finding of the Commissioner in this regard that the assessee had shown higher profits to claim deduction under 10B units is thus misplaced. No merit in the order of the Commissioner passed under section 263 - Decided in favour of assessee
-
2015 (7) TMI 1207
Reversal of CENVAT credit - It has been alleged that the appellants were having loose stock inputs of finished products as on 1-3-2005 on which they have availed Cenvat credit, but they have cleared subject goods at nil rate of duty without reversing the Modvat credit availed by them - Held that: - the input credit legally taken and utilized on the dutiable final products need not be reversed on the final product becoming exempt subsequently with effect from 1-3-2005 - credit allowed - penalty set aside - appeal allowed - decided in favor of assessee.
-
2015 (7) TMI 1206
Claim of depreciation by assessee trust - Held that:- The assessee was entitled for the claim of depreciation. The assessee has been getting the benefit of depreciation in all previous years and therefore, as a matter of principle of consistency, the assessee should be eligible to get the benefit of depreciation in this year as well and for this purpose, derive support from the judgment of Hon’ble Supreme Court in the case of CIT v. Excel Industries Pvt. Ltd. [2013 (10) TMI 324 - SUPREME COURT ]
Provisions of the benefit of carry forward of deficit - Held that:- The issue of excess application of earlier years to be carried forward is decided in favour of the appellant in the decision of the higher judicial forums as referred and relied by the appellant. Therefore, respectfully following the decisions relied upon by the appellant and applicable under the facts and circumstances of the case, Ground No.4 is allowed. However, the AO is directed to verify the claim of C/f. of earlier year deficits that such amounts are part of excess expenditure of earlier years’ and such amounts are liable to be considered as part of application of income in the respective years. It may further be verified that such excess expenditure of earlier years claimed is out of income of the respective years.
-
2015 (7) TMI 1205
Levy of CST instead of Jharkhand VAT - petitioner's case is that petitioner is e-auction purchaser of coal within the State of Jharkhand. He is a registered dealer within the State of Jharkhand - the decision in the case of M/s. Amit Enterprises Versus CENTRAL COALFIELDS LIMITED [2015 (1) TMI 1330 - JHARKHAND HIGH COURT] contested - it was held in the case that the CST, levied at the rate of 5% by respondent no.6 is impermissible in the eyes of law. Instead of that, it should have been VAT under the Jharkhand Value Added Tax Act, 2005 - appeal dismissed - decided against Revenue.
............
|
9911796707
