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Showing 281 to 300 of 1967 Records
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2014 (1) TMI 1689
Exemption u/s 80 IC - interpretation of the term “initial assessment year - Held that:- On a plain reading of the section and interpretation of the term initial Assessment Year, we conclude that the claim of the assessee is admissible. Even if a view is taken that there is some ambiguity in the language of the section, then, being an incentive provisions, the ratio of the decisions of the Hon’ble Supreme Court in the case of Bajaj Tempo (1992 (4) TMI 4 - SUPREME Court ), Gwalior Rayon Silks Mfg.Co.Ltd.(1992 (4) TMI 3 - SUPREME Court ) have to be followed and benefit given to the assessee - Decided in favour of assessee
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2014 (1) TMI 1688
Penalty levied under Section 271(1)(b) - non-compliance of the notice under Section 142(1)/143(2) - Held that:- We find that assessee has been given only 8-9 days to make compliance. The reason for non-compliance has been given to be occupation of the concerned consultants. We find that no other notice was given. In our considered opinion, this cannot be treated as willful default. Accordingly, the penalty is cancelled. - Decided in favour of assessee.
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2014 (1) TMI 1687
Penalty levied under Section 271(1)(b) - non-compliance of the notice under Section 142(1)/143(2) - Held that:- The penalty had been levied by the Assessing Officer for non-compliance of the notice dated 8.11.2010. From the assessment order, it is evident that the notice under Section 142(1)/143(2) dated 8.11.2010 alongwith the detailed questionnaire was issued fixing the case for 18.11.2010. These details have been mentioned by the Assessing Officer in paragraph 2 page 1 of the assessment order. Thus, total ten days’ time was allowed from the date of issue of the notice. In the assessment order, the Assessing Officer has not mentioned the date on which such notice was served upon the assessee. Therefore, in our opinion, the time of less than ten days allowed by the Assessing Officer for complying with the detailed questionnaire cannot be said to be a sufficient time being allowed to the assessee and, therefore, failure of the assessee to comply with such notice cannot be said to be a default which may justify the levy of penalty under Section 271(1)(b) of the Act. Accordingly, the same is cancelled. - Decided in favour of assessee.
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2014 (1) TMI 1686
Disallowance of interest paid by the assessee to sister concern Intersil Semiconductors Pvt. Ltd. - Held that:- It is pertinent to mention that the disallowance/addition has been made/confirmed on the ground that the assessee has borrowed funds on which interest has been paid whereas the assessee has advanced interest free loan and made investments. In this context, the perusal of the balance sheet available at page 1 of the paper book indicates that the assessee has sufficient own funds to make loans and investments. When the fact being so, the ratio laid down by the Hon’ble Bombay High Court in the case of Reliance Utilities and Power Ltd (2009 (1) TMI 4 - BOMBAY HIGH COURT) is applicable in the case of the assessee to support the proposition that the assessee has made the loans and investments out of the surplus funds. Also, it is not disputed that the borrowed funds on which the interest paid to the sister concern is utilized for the purpose of business. Therefore, there need not be any doubt about the allowability of the interest expenditure claimed by the assessee u/s 36(1) (iii) of the Act. In view of that matter, the disallowance/addition made on account of interest on this count is deleted - Decided in favour of assessee.
Disallowance of being 50% of the repairs & maintenance expenditure - Held that:- The AO disallowed the impugned claim of the assessee as the nature of repair in respect are not clear and the assessee has not provided any break up of expenditure despite the fact that the details have been produced before him whereas the Ld.CIT(A) confirmed the disallowance of 50% on a different reasoning that the said expenditure is capital in nature. Considering the totality of facts and after observing that similar claims of the assessee has been allowed by the Tribunal in the assessee’s own case for the assessment year 2004-05, wherein it has been held that the expenditure incurred on this account has to be allowed as normal revenue expenditure, we, following the said order, delete the addition made/confirmed by the AO/CIT(A). - Decided in favour of assessee.
Disallowance of reduction/writing off of stock in trade - Held that:- It is pertinent to mention that the assessee has claimed the impugned written off in respect of the stock as the business has become obsolete and the said stocks have been destroyed. The perusal of the orders of the authorities below indicates that the said claim of the assessee has not been properly verified while making/confirming the said disallowance. Considering the facts in toto, we are of the view that it is just and proper to set aside the issue to the file of the AO to verify the claim of the assessee whether the stock has become obsolete/destroyed. On confirming the same, the AO may accordingly decide the issue in accordance with law after providing due opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purpose.
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2014 (1) TMI 1685
Nature of donations received - whether donation received were ‘corpus donations’? - whether the assessee had dual status, one being his Professional Status as a Religious Preacher/Katha Vachak and other as a Caretaker/Mukh Sewadar of “Dera Sant Amir Singh Ji” a Taksal under the aegis of Guru Gobind Singh Ji? - CIT(A) treating the “Voluntary Contributions” made by the general public/devotees to “Dera Sant Amir Singh” as “Professional Income” of the assessee - registration u/s 12AA not taken - Held that:- There is no dispute to the fact that the assessee has not produced any Trust- Deed before any of the authorities below or even before us and the assessee has admitted before the authorities below that it is an unregistered institution. Though, it is 100 years old but not even registered as Registered Society or not registered as charitable or religious trust under section 12AA of the Income Tax Act, 1961. There is no certificate under section 10(23C)(iv) before any of the authorities below or even before us. The accounts have been admitted, not to have been audited under any law. No 80G(5) approval from the prescribed authority has been taken and has not been placed on record.
We concur with the findings of the ld. CIT(A) that the entire collections of Dera are solely managed and controlled by one Mukh Sewadar according to his own will and wish and even the collection certificates are stereo-typed without bearing any authentication, complete particulars like PAN etc. No attempt has been made to produce any of the so-called donors confirming the donations. The pertinent point which is on record before both the authorities below and as pointed out by the Ld. DR that various bank accounts are in the sole name of Mukh Sewadar, Mr, Makhan Singh, without indicating any adverse eventuality and even the nominations are executed in favour of his own son by Mr. Makhan Singh leading to the clear indication and safe presumption that due to any unforeseen unpleasant mishap with the assessee, the credit balance balances will go to assessee’s own son being legal successor and not to the DERA.
Nothing has been brought on record and nothing has been proved before any of the authorities below or even before us that the Dera so claimed as Trust i.e. Charitable Trust is functioning for the charitable purpose and no activities as prescribed under section 2(15) of the Act are being carried on by the assessee, has been placed on record. The Dera or Trust as claimed is not affiliated to any charitable institution.
It is pertinent to mention, as mentioned in the orders of the authorities below that the funds of the Dera are being diverted for meeting out the personal expenses of Mukh Sewadar as is evident from the numerous personal withdrawals. The furnishing of pedictree history of the Dera has failed to furnish any order of the Income Tax Authority whereby the Dera has ever been allowed exemption under the Income Tax Act, 1961. The purchasing of LIC, gas connection, cylinders etc. clearly indicate that the funds of the so-claimed trust are being diverted for meeting out the personal expenses of the assessee. The AO time and again has given sufficient opportunities of being heard to the assessee and therefore, there cannot be any case of the assessee for not providing any opportunity. The Ld. CIT(A) has therefore, rightly confirmed various disallowances made by the A.O. on account of capital expenditure, under section 40(a)(ia) for no deduction of TDS u/s 194C and being donations not forming part of business expenses.
We also confirm the action of the AO in not allowing set off of declared loss accordingly. The Ld. CIT(A) is further justified and has passed a reasonable order due to undenying personal element, who has rightly restricted the disallowance to 1/6th as claimed by the assessee on account of telephone, vehicle and traveling expenses. The AO has rightly been directed to allow deduction under section 80C under Chapter VI of the Act.
As regards the arguments made and the written submissions of the assessee keeping into consideration the arguments made by the Ld. DR and written submissions submitted by the Ld. DR, we are convinced with the arguments made by the Ld. DR that the assessee has not produced any document being appointed as ‘Mukh Sewadar’ of the said Dera and therefore, the claim of the assessee in dual capacity remained wholly unsubstantiated. As mentioned hereinabove, no charitable activity has been substantiated by the assessee and there is no registration u/s 12AA, u/s 10 and u/s 80G or any other provisions of the Act. It has not been substantiated before any of the authorities below or even before us that these bank accounts in the name of the assessee were, in fact, the bank accounts of Dera Sant Amir Singh Ji or these were opened on the basis of some documents of Gaddi Nashin. The Bank accounts clearly show that the same have been opened in the personal name of the assessee. Moreover, the ld. counsel for the assessee throughout the arguments has not made any submission as to why the son of the assessee has been appointed as the nominee in the Bank account opened in the name of the assessee. Simply arguing that the Bank account is being operated to undertake and perform the duty of the Dera as Care-taker will not suffice and cannot prove the dual status of the assessee, as claimed. As regards the explanation to section 2(24)(iia) regarding ‘deemed trust’ under a legal obligation , the assessee has not proved any of its claim. - Decided against assessee
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2014 (1) TMI 1684
Assessment u/s 153A - addition towards undisclosed income - Held that:- Provisions of section 153A that the income of the assessee in case of a person where search is initiated u/s. 132, the books of account or other documents or any assets are requisitioned u/s. 132A, the Assessing Officer after issue of a notice to furnish income of the assessee in respect of each assessment year falling within 6 assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition made, the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such 6 assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisitioned, as the case may be, on bringing on record the material to show that there is undisclosed income of the assessee. In other words, there should be material on record to show that the income is assessed on the basis of material/ evidence in hands of the Assessing Officer.
Being so, in our opinion, guess work is not possible in case of search assessment framed u/s. 143(3) or u/s. 153A of the Act without any proper material. The AO shall have the basis for assuming that the expenditure incurred by the assessee is out of undisclosed income. It is not permissible to assess the undisclosed income in the absence of any other evidence on arbitrary basis. The unsubstantiated loose sheets cannot be considered as a conclusive evidence to make any addition towards undisclosed income.
In the present case, the seized material (two note books) marked as KBR/A/02 and KBR/A/04 wherein certain entries are found recording various transactions pertaining to the assessee. These entries in the notebook are unsubstantiated and on that basis the AO reached to the conclusion that the figures mentioned therein are to be read by adding 3 zeros and thereby he came to conclude that there is undisclosed income in these 6 assessment years. In our opinion, the document recovered during the course of search was a dumb document and led nowhere. The CIT(A) rightly came to the conclusion that it cannot be acted upon and deleted the addition. - Decided in favour of assessee
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2014 (1) TMI 1683
Penalty under s. 271D - whether the assessee has contravened the provisions of s. 269SS - whether the money has been received in current account - Held that:- If transaction was bona fide and default was of technical nature, then the penalty should not be justified. In the case before us. there is no default because the share application money or deposit in the current account cannot be included in the definition of deposit but in any case even if it is assumed otherwise then the defect is only of technical nature and there was a bona fide belief on the part of the assessee that this is not in contravention of provisions of the Act, therefore, it is of technical nature and does not call for levy of penalty. In any case, a reasonable cause was also explained that assessee company was constructing a hotel for which bank loans were not sanctioned and, therefore, directors had to contribute the money towards construction of the hotel. The payment was generally required for labour payments and other cash items, therefore, it is a reasonable cause for accepting the cash from directors and relatives and even on this basis also penalty is not leviable.
We set aside the order of learned CIT(A) and delete the penalties levied under s. 271D in all the years - Decided in favour of assessee.
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2014 (1) TMI 1682
Penalty under section 271(1)(c) - Held that:- A.O. has not recorded any satisfaction in the assessment order about the concealment nor followed the procedure under section 274 with reference to the grounds mentioned in section 271(1)(c) whether the notice issued is for the concealment of income or for furnishing of inaccurate particulars. Having deleted appropriate paras in the notice, sending a printed form particularly deleting the relevant columns, would not satisfy the requirement of law. Moreover, since the grounds on which assessee has to reply have not been specified, the principles of natural justice has been offended. On the basis of such proceedings, no penalty could be imposed on the assessee. Not only that the assessment order indicates that there is no difference between assessed income and returned income. What has been added in the assessment is not the subject matter of penalty. Even though the assessee has filed originally a return, revised return filed by the assessee before the scrutiny proceedings have been conducted, gives rise to a presumption that assessee has bonafidely admitted higher income. Even though found in the course of survey proceedings, A.O. have not stated how the amount was quantified and why the amount has to be considered as concealment of income. It cannot be stated that the amount offered by the assessee can be considered as concealed income in the light of facts of the case.
Penalty under section 271(1)(c) is not imposable on the facts of the case. Even otherwise, assessee having given bonafide explanation that he has offered higher income even though that much income is not taxable, this contention of the assessee was not rebutted. As briefly stated above in the facts, A.O. has neither brought any calculations on record nor mentioned how the amount was quantified. In these set of circumstances, assessee’s contention that it had unexplained expenditure in earning that gross receipts cannot be rejected. Therefore, even the provisions of Explanation 1 to section 271(1)(c) come into operation as the assessee’s explanation has not been disproved. Therefore, the conditions for imposing penalty does not satisfy. In view of the various factors discussed above, we have no hesitation in cancelling the penalty. - Decided in favour of assessee.
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2014 (1) TMI 1681
Capital gain - whether there is no transfer within the meaning of sec. 2(47) when a partner received his share in the partnership business? - retirement of partners - CIT (A) deleted the addition by holding that there is no ‘transfer’ - Held that:- A reading of clause 4 of the deed of retirement makes it clear that the amount of ₹ 1.25 cores was paid to the assessee towards his share capital and not for relinquishing or extinguishing his rights over any assets of the firm. The term ‘goodwill,’ in our view has been loosely used in the aforesaid clause. Furthermore, a plain reading of the clause 4 will not in any manner indicate that payment of ₹ 25 lakhs was towards transfer of goodwill as suggested by the Assessing Officer. Therefore, considering totality of facts and the circumstances of the case and applying the ratio laid down by the Hon’ble jurisdictional High Court in the case of Chalasani Venkatesara Rao (2012 (9) TMI 12 - Andhra Pradesh High Court), which is binding on us, we are of the view that the order passed by the CIT (A) needs to be upheld - Decided in favour of assessee.
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2014 (1) TMI 1680
‘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:- We are of the opinion that the decision taken by CIT (A) by holding that the loss incurred on restatement of pending forward contract agreements at the year-end is an allowable business loss is fair and reasonable and it does not call for any interference. - Decided in favour of the assessee.
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2014 (1) TMI 1679
Academic issue raised in the appeal - Ld. Counsel does not explain whether the issue involved in the appeal has affected the interest of appellant. For no reply, we do not consider the appeal to be disposed for academic exercise since the Tribunal is not Advance Ruling Authority. Accordingly, appeal is dismissed.
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2014 (1) TMI 1678
Condonation of delay - Delay of 109 days - Held that:- Applicant had not stated the reasons for delay in their application in detail. It is noticed that the applicant had not stated how they have procured the order and where it was misplaced. The Tribunal in the case of Rajalakshmi (2013 (5) TMI 429 - CESTAT MUMBAI) held that the concerned clerk kept the impugned order in the file and did not bring it to the knowledge of the management as the negligence of the employee and is not sufficient cause for not filing the appeal within the normal period of limitation. In the case of (2001 (9) TMI 693 - CEGAT, NEW DELHI), it is held that delay due to leaving of the job by the dealing clerk in excise matter is not sufficient cause for condoning the delay of appeal filed beyond the normal period - delay was caused due to the concerned clerk leaving the applicant-company which cannot be sufficient reason for the delay in filing appeal - Condonation denied.
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2014 (1) TMI 1677
Condonation of delay - Held that:- Appellants had received the Order in Original on or around 15.10.2012 but had not filed the appeal within time and there is a delay of 100 days in filing the appeal. The justification given by the appellants / applicants seems to be that the peon who received the Order in Original did not hand it over to the Managing Director and handed over the same belatedly and the Managing Director was suffering from Diabetes, Hypertension, and other old age related diseases and hence could not attend to the same. We find no evidence in support of such a claims made in the application nor there is any affidavit in support of such a claim. In the absence of any evidence to justify the delay in filing the appeal before the bench, we are unable to accept the grounds taken in the application for condonation of delay - Condonation denied.
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2014 (1) TMI 1676
Condonation of delay - Inordinate delay of 221 days - Delay in receipt of order - Held that:- When the Department produced a letter along with the delivery slip, from the GPO, Kolkata, the Applicant disputed the said delivery slip by contending that it was neither received for on behalf of the firm nor any one employed in the firm. Consequently, after making necessary investigation, it was established by the Department that the signature mentioned in the delivery slip is one, Mr.Subhas Chandra Ghosh, partner of CHA firm. We find that the plea taken by the Applicant all along during the course of hearing of miscellaneous application, is not bonafide. Thus, we are of the view that since the Applicant has been communicated with the order on 21st May, 2012, which has also evident from the fact that they have filed a Writ Petition before the Hon’ble Calcutta High Court, challenging the impugned order along with the main notice, but choose not to file the appeal before this Tribunal along with the appeal thereafter, filed by the main Applicant, the claim that they have not been communicated with the order, therefore, the appeal could not be filed in time, is devoid of merit. We also find that the approach of the Applicant is not bonafide all along and also they could not show sufficient cause warranting condonation of the delay. - Condonation denied.
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2014 (1) TMI 1675
Forfeiture of CHA License - Vicarious liability - Whether appellant should not be held responsible for all acts and omissions of its employee in regard to employment, in terms of Regulation 19(8) of the Customs House Agents Licensing Regulation, 2004 - Essential qualifications - Held that:- Regulation also enjoins that the minimum educational qualification of a person intended to be so employed shall be 10+2 or equivalent. In the absence of any requirement enjoined on the CHA to conduct an inquiry into the genuineness of the educational certificates produced by a person intending to be employed with the CHA for assisting it, we find no requirement of any such due diligence by the CHA - impugned order is unsustainable - Decided in favour of appellant.
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2014 (1) TMI 1674
Conversion from duty drawback to DEPB scheme shipping bills - Held that:- It is seen that prior to the export itself, the appellant had intimated the Revenue about their interest in export under DEPB scheme and non-acceptance of the request of higher rate by the EDI system. The Commissioner has observed that the appellant could have done the manual amendments for claiming the benefit of DEPB higher rate. However, it is not understood as to when the appellant has clearly intimated the Revenue about their intention to avail DEPB benefit and the fact of non-acceptance by EDI system, why the Revenue did not guide the appellant to do the changes by a manual process. The observations of the Commissioner that the exporter on their own had opted for the duty drawback scheme at the rate of 4% incentive, cannot be appreciated inasmuch as the exporter had, prior to the exports intimated the Revenue about filing of shipping bills under protest and to subsequently claim their conversion under DEPB scheme. - appellant’s request for conversion from duty drawback to DEPB scheme shipping bills is proper and fair - Decided in favour of assessee.
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2014 (1) TMI 1673
RTI application - Held that:- In the light of the provisions contained in Section 2(f) and 2(j) of the Act, the stand taken by the respondent that the Act does not contemplate issue of certified copies of documents or records cannot be sustained. Likewise also find no merit or force in the contention of the respondents that grant of certified copies may give authenticity to the documents which may not be genuine or even fabricated. In the event of an applicant’s request for information being granted all that the Public Information Officer would have to do is to certify that the copy is one issued under the Right to Information Act, 2005. He is not called upon to certify that it is a copy of a genuine document. Therefore, find no reason why the first relief prayed for by the petitioner cannot be granted.
Accordingly allow the writ petition and direct the first respondent to issue a fresh set of documents sought for in Ext.P1 application other than the No Objection Certificate issued by the Fire and Rescue Services Department on the petitioner paying the requisite fees and to certify the copies as copies issued under the Right to Information Act, 2005. The needful in the matter shall be done and copies of documents issued within one month from the date of receipt of a copy of this judgment.
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2014 (1) TMI 1672
Revocation of CHA license – Contravention of Regulation 13 – Vide impugned order adjudicating authority revoked CHA licence of appellant and ordered forfeiture of entire amount of security deposit made by appellant – Commissioner held that charges imputed against CHA stood proved and, therefore, revocation is justified – Held that:- Admittedly appellant being CHA failed to discharge his duties thereby contravening Regulation 13 – During enquiry partner of appellant-firm admitted to all charges imputed against his firm – Thus, from records it is seen that charges stood admitted – Settled position in law that admitted charges need not be proved – High Court of Bombay in case of Worldwide Cargo Movers [2006 (11) TMI 281 - BOMBAY HIGH COURT] held that if principles of natural justice are followed and findings are justified from material on record contravention of Regulation 13 is valid reason for revoking CHA license – No merit found in appeal and is accordingly dismissed – Decided against Assesse.
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2014 (1) TMI 1671
Issues Involved:
1. Jurisdiction of Mandi Samiti to levy mandi fee on inter-State sale of bamboo and wood.
2. Liability of petitioner to pay mandi fee under section 17(iii)(b)(3) of the U. P. Krishi Utpadan Mandi Adhiniyam, 1964.
3. Application of notification dated November 11, 1998, regarding exemption from mandi fee.
Summary:
Jurisdiction of Mandi Samiti to levy mandi fee on inter-State sale of bamboo and wood:
The petitioner, a manufacturer of paper, challenged the imposition of mandi fee by the Krishi Utpadan Mandi Samiti on the purchase of wood and bamboo, claiming that the transactions were inter-State sales completed outside the State of U.P. The petitioner argued that the sale was completed at the seller's location, with the transporter acting as the petitioner's agent for delivery. Various purchase orders and transport agreements were cited to support this claim. The petitioner contended that the sale was inter-State as the goods moved from Maharashtra and Haryana to Saharanpur, U.P., and cited several Supreme Court judgments to support this argument.
Liability of petitioner to pay mandi fee under section 17(iii)(b)(3) of the U. P. Krishi Utpadan Mandi Adhiniyam, 1964:
The petitioner argued that even if the sale took place within the market area of Saharanpur, the liability to pay mandi fee should fall on the seller as per section 17(iii)(b)(3) of the U. P. Krishi Utpadan Mandi Adhiniyam, 1964. The petitioner cited previous judgments where it was held that the selling trader is liable to pay the mandi fee. The respondents countered that the sale was completed at the petitioner's mill gate within the market area of Saharanpur, as the final payment and verification of goods were done at the mill. The revisional authority found that the sale took place within the market area, making the petitioner liable to pay the mandi fee.
Application of notification dated November 11, 1998, regarding exemption from mandi fee:
The petitioner claimed exemption from mandi fee under a notification dated November 11, 1998, which exempts goods used for producing non-agricultural commodities from mandi fee. The revisional authority held that this notification applies only when the processed goods are non-agricultural produce, which was not the case here as the petitioner was using agricultural produce (wood/bamboo) to manufacture paper. Therefore, the notification did not apply.
Conclusion:
The court concluded that the sale was completed within the market area of Saharanpur, and the petitioner was liable to pay the mandi fee as per section 17(iii)(b)(4) of the U. P. Krishi Utpadan Mandi Adhiniyam, 1964. The petitioner's claim for exemption under the notification dated November 11, 1998, was also rejected. The writ petition was dismissed, upholding the revisional authority's order.
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2014 (1) TMI 1670
Issues involved: Refund of SAD (VAT) under Maharashtra VAT Act and Central Sales Tax Act, submission of evidence of payment of VAT, jurisdiction of Customs Officer in sanctioning refund.
Summary:
The appellant was allowed a refund of SAD (VAT) by an order-in-original, but the Revenue appealed the decision on the grounds that the essential challan of payment of VAT was not annexed to the refund claim at the time of filing. The Appellate Commissioner upheld the appeal, stating that there was no evidence to show that VAT was paid before the filing of the refund claim. However, the Tribunal found that the documents evidencing payment of VAT must be available to the adjudicating authority at the time of considering the refund. The Tribunal noted that the payment of VAT was made within the due date, even though it was paid four days after the filing of the refund claim. Therefore, the appeal was allowed, the impugned order was set aside, and the order-in-original was upheld. The stay application was also disposed of.
The Tribunal referred to Notification No. 102/2007, which requires the importer to provide evidence of payment of appropriate sales tax or VAT at the time of filing the refund claim. The jurisdictional Customs Officer is responsible for sanctioning the refund by ensuring the conditions are met. The Tribunal emphasized the importance of submitting documents showing the payment of VAT to the adjudicating authority when considering the refund. The Tribunal found no discrepancy in the order-in-original as the payment of VAT was considered within the due date, despite being paid after the filing of the refund claim.
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9911796707
