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Showing 241 to 260 of 1167 Records
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2012 (7) TMI 935
Photography services – value of printing paper & chemicals used into preparation of photo prints - Held that:- Appeal dismissed.
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2012 (7) TMI 934
Issues:
1. Taxability of amount received by the assessee on retirement from a partnership firm as long term capital gain.
Analysis:
The appeal before the Appellate Tribunal ITAT Pune involved the question of whether an amount received by the assessee on retirement from a partnership firm should be taxed as long term capital gain. The assessee, a partner in various firms, retired from a partnership firm and received a sum of Rs. 54,59,083 over and above the balance in his capital account. The Assessing Officer taxed this amount as long term capital gain, citing a decision of the Pune Bench of the Tribunal. However, the assessee claimed it as capital receipts not liable to tax. The Commissioner of Income-tax (Appeals) relied on a decision of a co-ordinate Bench in a similar case and deleted the addition made by the Assessing Officer.
The Revenue contended that the additional consideration received by the assessee was due to the relinquishment of his rights in the partnership firm and should be treated as capital gain. On the other hand, the respondent-assessee argued that the amount received on retirement should be exempt from capital gains tax, referring to the decision of a co-ordinate Bench in a similar case. The Tribunal examined the contentions and referred to various legal precedents, including judgments of the Supreme Court and High Courts, to support its decision.
The Tribunal observed that when a partner retires from a partnership firm and receives a share of the net partnership assets, including goodwill, there is no transfer of interest in the goodwill. It cited judgments that clarified that such amounts received by a retiring partner are not taxable as capital gains. The Tribunal upheld the decision of the Commissioner of Income-tax (Appeals) based on the legal position established by the precedents cited. Consequently, the appeal of the Revenue was dismissed, affirming the order of the Commissioner of Income-tax (Appeals).
In conclusion, the Appellate Tribunal ITAT Pune ruled in favor of the assessee, holding that the amount received on retirement from the partnership firm was not liable to be taxed as long term capital gain. The decision was based on legal precedents and established principles regarding the taxability of amounts received by a partner on retirement.
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2012 (7) TMI 933
Issues Involved:
The appeal challenges the order of the Commissioner of Income Tax (Appeals) relating to assessment year 2008-09 under section 143(3) of the Income Tax Act, 1961.
Deduction under section 80IC:
The assessee claimed deduction under section 80IC of the Act for income earned from manufacturing activities, job work, and other sources. The Assessing Officer disallowed the deduction on job work and other income, but allowed it for manufacturing activities. The Tribunal had previously allowed similar claims in the assessee's earlier cases.
Manufacturing Activities Deduction:
The Tribunal upheld the assessee's claim for deduction under section 80IC for income from manufacturing activities, as it had been allowed in previous years and there were no changes in the facts. The order of the CIT (Appeals) was supported in this regard.
Job Work Deduction:
The Tribunal found no issue with the deduction claimed for profits earned from manufacturing activities carried out on a job work basis, as it had been allowed in previous years based on the Tribunal's orders in the assessee's earlier cases.
Other Income Deduction:
The CIT (Appeals) allowed the deduction under section 80IC for other income, including writing back credit balances, insurance claim received, and income from sale of scrap. This decision was consistent with previous Tribunal rulings in the assessee's cases for assessment years 2005-06 and 2007-08. The Tribunal upheld the CIT (Appeals) decision in this regard, dismissing the Revenue's grounds of appeal.
Conclusion:
The appeal of the Revenue challenging the order of the Commissioner of Income Tax (Appeals) was dismissed by the Appellate Tribunal ITAT CHANDIGARH. The Tribunal upheld the deductions under section 80IC for manufacturing activities, job work, and other income, based on previous rulings and the absence of changes in the facts. The order was pronounced on July 30, 2012.
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2012 (7) TMI 932
Computation of deduction u/s 10B - Held that:- When excess provision written back, the same cannot be said to be income derived from export turnover of article or thing or computer software. The misc. income which is consisting of recovery of notice period, writing off provision of internet expenses and refund for CST from STP1 requires further examination to determine whether these are derived from the exports of article or things or computer software by the undertaking. Such amount may be income in the conceptual sense under the Income-tax Act, 1961 but for working out the deduction u/s 10A it has to be the receipt derived from the exports of article or things or computer software by the undertaking in free trade zone. In view of these facts, we restore the issue to the file of Assessing Officer for fresh adjudication. The cross objection of the assessee is partly allowed for statistical purposes.
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2012 (7) TMI 931
Disallowance of interest - Held that:- In view of the fact that the interest free funds advanced by the assessee to its subsidiary company are much less than the interest free funds available with it in the shape of Share capital along with Reserve and surplus, in our considered opinion there can be no question of sustaining any addition in this regard. We, therefore, uphold the impugned order but from a different angle. This ground is not allowed.
Disallowance made u/s 14A to 5% of exempt income - Held that:- CIT (A) overlooked the factual scenario prevailing in the present case in applying the ratio of the Tribunal order in the case of M/s. VIP Industries [2010 (9) TMI 1097 - ITAT MUMBAI ], which restricted disallowance to 5% of exempt income only towards administrative expenses and not interest. In such a situation, we are not inclined to uphold the impugned order on this issue. The conclusion drawn by the Ld. CIT (A) on this issue is set aside and matter is restored to his file for taking a fresh decision on computation of disallowance u/s 14A as per law after allowing a reasonable opportunity of being heard to the assessee.
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2012 (7) TMI 930
Issues:
1. Calculation of rebate under section 88E of the Income Tax Act, 1961.
Analysis:
The appeal was filed by the Revenue against the order of the Commissioner (Appeals) regarding the calculation of rebate under section 88E for the assessment year 2007-08. The main contention was whether the Assessing Officer correctly restricted the rebate to the amount claimed in the return of income or if the Commissioner (Appeals) was justified in directing a recalculation based on a higher amount of share trading income. The assessee argued that the Assessing Officer did not consider the scientific method of expenditure allocation and the impact of additions made during assessment. The Commissioner (Appeals) reviewed the calculations and determined the rebate to be higher than initially claimed by the assessee.
During the proceedings, the Departmental Representative supported the Assessing Officer's decision to restrict the rebate to the initial claim, while the assessee's Counsel argued that the difference in rebate calculation was due to the allocation of expenditure. The assessee claimed to have consistently followed a scientific method for expenditure allocation, which was accepted by the Revenue. The Commissioner (Appeals) examined the allocation of expenditure and concluded that the higher rebate amount was allowable to the assessee under section 88E.
After considering the arguments from both sides and examining the facts and documents, the Tribunal declined to interfere with the relief granted by the Commissioner (Appeals). The Tribunal found no merit in the Revenue's appeal and dismissed it. The decision was pronounced in open court on 18/07/2012.
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2012 (7) TMI 929
Addition on account of not allowing relief of the DTAA - Held that:- From the material documents allowed to be produced, the assessee could satisfy the Commissioner (Appeals) that the place of effective management of its enterprises was situated at Netherlands and thus, the requirement of condition in Article 8A of DTA agreement was met with. Tribunal has rightly confirmed the decision of the Appellate Commissioner holding the assessee to be eligible for benefits of DTAA. While confirming the findings of the Commissioner, the Tribunal also observed that Revenue had failed to point out any contrary material either from the record or at the time of hearing before it.
Commissioner (Appeals) as well as the Tribunal, have concurrently arrived at the findings that the assessee is eligible for the benefit. The finding arrived at by the Tribunal is based on material before it and was based on the reading of the documents submitted by assessee whereby it was pointed out that necessary requirement about place of effective management under the relevant clause of agreement was satisfied. No substantial question of law.
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2012 (7) TMI 928
Revision u/s 263 - Held that:- A.O. had not given any finding in assessment order for stock found by the police department in its raid. Further, the appellant has not able to show any evidence that this issue has been considered by the A.O. by any query letter from the A.O. Ld. A.O. did not consider this aspect before completing the assessment u/s 143(3) of the IT Act. Therefore, we upheld the order of the CIT dated 18.02.2010. Assessee’s appeal dismissed.
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2012 (7) TMI 927
The Supreme Court dismissed the appeal against the decision of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi in Custom Appeal Nos. 791-792 of 2008-Cus.
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2012 (7) TMI 926
Stay of collection of outstanding demand tax together with interest - Held that:- As the corresponding appeal of the assessee is posted for hearing on 17th October, 2012, we are of the opinion that this is a fit case for grant of conditional stay. Accordingly, we direct the applicant to pay an amount of ₹ 50,00,000/- on or before 30 th of each month starting from August'2012 till the disposal of connected appeal
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2012 (7) TMI 925
Issues Involved:1. Action u/s 263 by the CIT. 2. Eligibility for exemption u/s 10BA of the IT Act. Summary:1. Action u/s 263 by the CIT:The assessee filed a return declaring an income of Rs. Nil, and the assessment was framed u/s 143(3) of the IT Act, 1961. The AO allowed a deduction u/s 10BA, considering the assessee's business as manufacturing and trading of handmade articles. The CIT exercised powers u/s 263, observing that the assessee was engaged in trading activities, which disqualified it from exemption u/s 10BA. The CIT issued a show-cause notice and, after considering the assessee's reply, concluded that the AO's order was erroneous and prejudicial to the interest of Revenue. The CIT set aside the AO's order and directed a reassessment. 2. Eligibility for exemption u/s 10BA of the IT Act:The assessee contended that it was engaged in manufacturing and processing activities, not trading, and fulfilled the conditions of s. 10BA. The assessee provided evidence of manufacturing activities and argued that the AO had thoroughly examined the case before allowing the deduction. The Tribunal noted that the AO had taken a possible view, supported by similar cases and legal precedents. The Tribunal referenced the Supreme Court's ruling in CIT v. Max India Ltd., which stated that an AO's order cannot be considered erroneous if it is one of the possible views permissible in law. Consequently, the Tribunal set aside the CIT's order, ruling that the AO's assessment was neither erroneous nor prejudicial to the interest of Revenue. Conclusion:The appeal was allowed, and the CIT's order u/s 263 was set aside, affirming the AO's original assessment and deduction u/s 10BA.
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2012 (7) TMI 924
Nature of transaction - deduction of tax at source - transfer of right to use or not? - contract of providing cranes for hire to the ONGC - Held that: - It is clear from the recital that the scope of work is mentioned as the work for which the cranes were hired; (e) Clause 2.1 shows that the cranes are at the disposal of the ONGC and per day hire charges are paid for all days, except maintenance days; (f) services of staff and maintenance are incidental to the hiring of the cranes. Liability to the third party is on account of the fact that in spite of hiring of the cranes by the ONGC, the employees operating the cranes are provided by the assessee - the transaction clearly involved transaction of right to use.
Appeal allowed - decided in favor of appellant.
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2012 (7) TMI 923
Whether the petitioner’s prayer for review should be entertained by ignoring the dismissal of similar petitions by this Court?
Whether the petitioner has succeeded in making out a case for review?
Whether the petitioner has succeeded in making out a case for exercise of power by this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC?
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2012 (7) TMI 922
Issues involved: Challenge to communication for provisional release of imported goods, applicability of Customs Act provisions, availability of alternative remedy under section 128 of the Customs Act.
Challenge to communication for provisional release of imported goods: The petitioner challenged a communication stipulating conditions for the provisional release of goods imported by them, contending that the conditions were harsh and contrary to previous court dicta and CBEC instructions. The petitioner argued for the application of principles from previous judgments and Customs Regulation 2011 for release of goods pending adjudication, highlighting a lacuna in the Customs Act regarding the need for a pending adjudication or show cause notice.
Applicability of Customs Act provisions: The respondent opposed the relief sought by the petitioner, suggesting that the petitioner should pursue an appeal to the Commissioner Customs (Appeals) under section 128 of the Customs Act. The respondent maintained that the goods in question were mis-declared and could only be released based on the conditions specified in the impugned communication.
Availability of alternative remedy under section 128 of the Customs Act: The court directed the petitioner to pursue an appeal to the Commissioner of Customs (Appeals) for adjudication, balancing the petitioner's interest with the need for an alternate remedy. The Commissioner was instructed to treat the writ petition as an appeal and decide on the release of goods within two weeks. The respondent acknowledged a previous representation by the petitioner but agreed that it should not hinder the fresh adjudication process.
This judgment addressed the challenge to conditions for provisional release of imported goods, clarified the applicability of Customs Act provisions, and directed the petitioner to seek an alternative remedy under section 128 of the Customs Act through an appeal to the Commissioner of Customs (Appeals) for timely adjudication.
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2012 (7) TMI 921
The Supreme Court ordered the High Court to expedite the hearing and disposal of Writ Tax No.418 of 2010 within six weeks. The High Court should decide the matter independently, regardless of the pending special leave petition. No opinion on the case's merits was expressed, and all arguments remain open. The special leave petition was adjourned for eight weeks.
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2012 (7) TMI 920
Issues involved: Service tax demand under the Finance Act, 1994 for manpower recruitment agency services and business auxiliary service.
Summary:
Issue 1: Service Tax Liability
The appellant's service tax demand of Rs. 62,86,329/- for the period 1-3-2003 to 31-3-2007 under manpower recruitment agency services and business auxiliary service was confirmed. The appellant contended that since their service receivers and recruited persons are located outside India, the service performance and recipient are also outside India, making it an export of service. The Tribunal acknowledged the appellant's argument, stating that the service qualifies as an export of service, and therefore, the appellant is not liable to pay service tax.
Decision:
The Tribunal waived the requirement of pre-deposit of the entire demand of service tax, interest, and penalties under the Finance Act, 1994. Recovery of the amount was stayed during the pendency of the appeal.
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2012 (7) TMI 919
The High Court of Allahabad heard a revision filed under section 58 of the U.P. Value Added Tax Act, 2008 against an order by the Commercial Tax Tribunal. The Tribunal had stayed 80% of the demand, and the remaining 20% was brought before the Court. The Court directed the First Appellate Authority to decide the appeal within two months, with the status quo maintained until then. The revision was disposed of accordingly.
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2012 (7) TMI 918
Issues Involved:
1. Inclusion of sales tax in the total turnover for computing deduction u/s 80HHC.
2. Inclusion of turnover discount in the total turnover for computing deduction u/s 80HHC.
Summary:
Issue 1: Inclusion of Sales Tax in Total Turnover
The first issue was whether sales tax collected by the assessee and paid to the Government should form part of the total turnover while computing the deduction u/s 80HHC of the Income Tax Act, 1961. The court referred to the decision of the Apex Court in Commissioner of Income Tax Vs. Lakshmi Machine Works, where it was held that excise duty and sales tax cannot form part of "turnover" u/s 80HHC(3) of the Act. The Apex Court observed that excise duty and sales tax are indirect taxes recovered by the assessee on behalf of the Government and do not have any element of turnover. Therefore, the court concluded that sales tax should not be included in the total turnover for the purpose of computing deduction u/s 80HHC.
Issue 2: Inclusion of Turnover Discount in Total Turnover
The second issue was whether the turnover discount offered by the assessee to its dealers should form part of the total turnover for the purpose of computing deduction u/s 80HHC of the Act. The assessee argued that the turnover discount, which was never received from the dealers, should not form part of the total turnover. The Tribunal, however, did not accept this contention, stating that sales take place at the first instance and discount is given at a later stage. The Tribunal held that the term "total turnover" should be understood with respect to the amount shown on the sale bills, and the subsequent discount allowed can only be treated as an item to be debited to the P & L A/c.
The court examined the discount scheme framed by the assessee, which provided that the dealers would receive a certain incentive calculated on the basis of the total turnover achieved by them. The discount was directly proportionate to the sales effected by the concerned dealer and was contingent upon prompt payment of bills. The court referred to the definition of "turnover" under the Central Sales Tax Act, 1956, and noted that turnover is the aggregate of the sale prices received and receivable by the dealer. The court also referred to the decision in The Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Vs. M/s. Advani Coorlikon (P.) Ltd., where it was held that trade discount cannot form part of the total turnover since the net amount that the dealer receives is the sale price.
The court concluded that the turnover discount offered by the assessee should not form part of the total turnover for the purpose of computing deduction u/s 80HHC. The Tribunal's decision was reversed, and the question was answered in the negative, in favor of the assessee and against the revenue.
Conclusion:
The appeal was allowed, and the judgment of the Tribunal was reversed to the extent that trade discount should not form part of the total turnover for computing deduction u/s 80HHC of the Act.
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2012 (7) TMI 917
Issues Involved:
1. Deletion of addition on account of short term capital gains.
2. Deletion of addition on account of Income from House Property.
3. Additional grounds regarding the sale of property and treatment of received amount as a gift.
Summary:
Issue 1: Deletion of Addition on Account of Short Term Capital Gains
The revenue challenged the deletion of Rs. 1,07,25,000/- added by the Assessing Officer (AO) as short term capital gains. The assessee received Rs. 1,05,00,000/- from her brother as per their father's will, which directed that 30% of the sale proceeds of a specific land be given to the assessee. The AO treated this as short term capital gains and denied exemption u/s 54EC. The CIT(A) held that the issue should be examined in A.Y. 2005-06 and deleted the addition. The Tribunal upheld the CIT(A)'s decision, stating that the right to receive money was not a capital asset and could not be transferred. The Tribunal found support from the Delhi High Court's decision in CIT Vs. J. Dalmia, concluding that the AO was not justified in making the addition as short term capital gains.
Issue 2: Deletion of Addition on Account of Income from House Property
The AO estimated the annual value of vacant properties u/s 23(1)(a) at Rs. 14,21,082/- against the declared notional income of Rs. 7,48,172/-. The CIT(A) granted relief based on a similar decision in A.Y. 2005-06. The Tribunal upheld the CIT(A)'s decision, emphasizing the rule of consistency and rejecting the revenue's ground.
Additional Grounds:
Ground (i): Sale of Property Relates Back to Date When Assessee's Father Was Alive
The revenue argued that the CIT(A) erred in holding that the sale of the property relates back to the date when the assessee's father was alive. The Tribunal found this observation irrelevant for deciding the validity of the addition of Rs. 1,07,25,000/- and set it aside.
Ground (ii): Treatment of Amount Received as a Gift
The revenue contended that the amount received by the assessee from her brother should not be treated as a gift u/s 56(2)(v). The Tribunal upheld the CIT(A)'s decision, noting that the amount was received as per the will and the brother qualifies as a "relative" under the Explanation below Section 56(2)(v). The Tribunal concluded that the assessee is entitled to the benefit u/s 56(2)(v).
Conclusion:
The Tribunal partly allowed the appeal, rejecting the revenue's grounds on short term capital gains and income from house property, while setting aside the CIT(A)'s observation on the sale date relating back to the father's lifetime. The order was pronounced on 19/07/2012.
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2012 (7) TMI 916
Issues involved: Department's appeal against the order of Customs Excise and Service Tax Appellate Tribunal, questions on Cenvat credit availability, error in Tribunal's decision, non-imposition of penalty and interest.
Cenvat credit availability: The Department appealed against the Tribunal's order on whether Cenvat credit is available on inputs used in manufacturing exempted goods in violation of Rules 57AD of the Central Excise Rules, 1944. The Department raised this issue along with another question regarding the Tribunal's reliance on a decision of the Larger Bench of the Tribunal, for which the Department had filed a Special Leave Petition (SLP) that was granted. The appellant also added an additional question in the appeal memorandum regarding the Tribunal's failure to decide on the non-imposition of penalty and interest on the respondent.
Judgment and remand: The Division Bench of the High Court dismissed the Tax Appeal filed by the Department, citing a previous decision of the Supreme Court. Subsequently, the respondent filed a review application, which was disposed of by another Division Bench of the High Court. The Court observed that the issue required fresh consideration by the Tribunal, as the decision relied upon by the Tribunal had been reversed by the Supreme Court. The case was remanded to the Customs Excise and Service Tax Appellate Tribunal for fresh consideration in accordance with the law, after hearing both sides. The High Court directed that the proceedings should be connected with the matter remanded by the Division Bench's previous order. The appeal was disposed of with these directions.
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