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Case Laws
Showing 301 to 320 of 590 Records
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2011 (10) TMI 481
Whether Interest on FDRs eligible for deduction under 80HHC - AO contended FDRs have been taken in earlier years and renewed in subsequent AYs for their Cash Credit accounts - no nexus with export business - Held That:- Order of AO is cryptic and does not give any detail - contention that FDRs have been made out of surplus fund is without any finding - He has not even dealt with and examined the assessee contention that the FDRs were given as security for availing cash credit limit. Such interest has “immediate nexus” with the export business - Decided in favor of assessee.
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2011 (10) TMI 480
Assessment u/s 143(3) made without issue of notice u/s 143(2) after receipt of return in response to a notice u/s 148 - Revenue contended that order in question is a best judgment assessment passed u/s 144, for which no notice u/s 143(2) is contemplated under law - Held That:-When an order of assessment is made u/s 144 on the ground that the assessee having made a return failed to comply with all the terms of the notice issued u/s 143(2), when no such notice is issued, even if that order is said to have been passed u/s 144 is void ab initio as being contrary to the aforesaid the statutory requirement. On alternative contention of Revenue that return was filed beyond time it is held that When AO has passed the order taking into account the return filed thus it is too late for revenue to contend that order passed u/s 144 ignoring the return in which event no notice u/s 143(2) is required - Decided in favor of assessee.
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2011 (10) TMI 479
Exemption under 10(29) denied on following category on incomes :fumigation, disinfestations charges, supervisory charges and other misc income on ground that they are not related to warehouse activity - Held That:- When income is derived from letting out of godowns or warehouses to facilitate marketing of commodities and as a consequence of such letting out if the assessee incurs expenditure for facilitating commodities to be marketed by fumigation, disinfestations or for supervision, that income is included u/s 10(29). Thus, order of Tribunal is set aside and exemption u/s 10(29) is granted to assessee. See CIT v. Rajasthan State Warehousing Corpn (1993 -TMI - 19898 - RAJASTHAN High Court) - Decided in favor of assessee.
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2011 (10) TMI 477
Unaccounted investment in land - Search and seizure - CIT(A) deleted addition - Held that: Tribunal rightly deleted the addition upholding the version of CIT(A)that papers were not seized from the premises of the assessee but that of his father who had no business connection with the assessee and investment in land was not by an individual assessee but by the Non- Trading Corporation.
Firstly on the settled law that no addition could be made on the basis of statement of the 3rd party. Secondly, material on record reveals that investment in the land was made by the NTCs and NTCs and the assessee both are different persons in the eyes of law. Thirdly, unless onus is duly discharged by the Revenue that the papers belonged to the assessee assurance could not be saddled with the liability of any addition in his income - Decided in favor of the assessee
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2011 (10) TMI 476
Dis-allowance u/s 40A(3) - cash payments made by the assessee to various diaries/societies as well as other milk vendors - there was high sounding names given to the collection centers but, in fact, it was a camouflage - Held that:- Tribunal noted that there was sufficient explanation furnished by the assessee both before the A.O. and CIT(A). These payments were made to the farmers and villagers and they were covered u/s 40A(3) read with Income Tax Rules 6DDF with substantive materials on record, and therefore dis-allowance was not proper. No infirmity found in the order - Decided in favor of assessee.
Rejection of books of account u/s 145 - Addition - AO rejected books of account on ground of variation of gross profit rate also - Held that: Tribunal held that there was no defect in the books of account maintained by the assessee and the gross profit of the assessee for the year under consideration was better than the earlier years. Since Tribunal has given cogent reasons and there being absolutely no infirmity in the findings arrived at for not sustaining the orders of both the authorities, this issue requires no further consideration - Appeal is dismissed.
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2011 (10) TMI 475
Whether revision u/s 263 is possible for block assessment order when the same has been passed with previous approval of Commissioner - search conducted on 12.12.1995 - Held That:- When commissioner has looked into record, applied his mind and agreed with the order of the Assessing Authority, this power of revision under Section 263 is not available to him after according approval to such order. therefore. Tribunal was justified in holding that Commissioner had no jurisdiction to exercise his power u/s 263 in respect of searches initiated prior to 1st day of January 1997 - Decided against Revenue.
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2011 (10) TMI 474
Power of Tribunal to amend order u/s 254 - Whether Tribunal can recall an order passed u/s 254(1), on an application filed by either of the party u/s 254(2) - Held that:- In the orders passed u/s 254(1), if either of the party to the order u/s 254(1) makes an application for such rectification of mistakes apparent from the record, the Tribunal is vested with the power to amend the order passed under sub-section (1), if it is satisfied that there is a mistake in the order which it has passed u/s 254(1). The only limitation imposed on the Tribunal is that the mistake to be rectified is a mistake borne from the record. By no stretch of imagination the said power could be exercised to review the earlier order passed. See ACIT v. C.N. Ananthram [2003 - TMI - 11343 - KARNATAKA High Court - Income Tax] - Decided in favor of the assessee
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2011 (10) TMI 473
TDS u/s 195 - payment for royalty - assessee contended that payment is akin to making a subscription for a journal or magazine of a foreign publisher or payment for subscription for a journal or magazine of a foreign publisher and cannot be held as royalty - Held that:- Mere fact that in the instant case, the issue do not pertain to shrink wrapped software or off-the-shelf software and access to database maintained by M/s. Gartner is granted online, would not make any difference in the reasoning assigned by us to hold that such right to access would amount to transfer of right to use the copyright held by M/s. Gartner and the payment made by the respondent to M/s. Gartner in that behalf is for the licence to use the said database maintained by M/s. Gartner and such payment is to be treated as royalty' - Decided against the assessee
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2011 (10) TMI 472
Power to transfer cases - CIT, Bikaner u/s 127 transferred assessment proceedings of the petitioner's case from ITO Ward-2, Sriganganagar to D.C.I.T. (Central), Bikaner - Revenue contended that even name of petitioner-Trust was mentioned in the search warrants, therefore, it cannot be said that there was no reasons for transfer of the proceedings - Held that:- Under the said order, all the proceedings of all the family members of person searched u/s 132 including, the petitioner-Trust, whose name was mentioned in such warrants u/s 132 also and, therefore, all connected cases were transferred from Sriganganagar to Bikaner to one Assessing Authority, for coordinated investigation and administrative convenience. It is not in dispute that said Commissioner had power to transfer the proceedings of assessment from one range to another under his charge as per the provisions of Section 127. Therefore, the said order u/s 127 is found to be perfectly valid and legal.
Validity of Notice issued u/s 153A - assessee instead of complying with the notice, challenged the same before this Court - Held that:- In the present case, nothing invokes the good conscience of this Court for exercising its wide discretionary powers under Articles 226 and 227 of the Constitution of India for quashing of the impugned notice u/s 153A. In considered opinion of this Court, it would be premature to quash such a notice at this stage specially when objections of the assessee in this regard are yet to be decided and the petitioner has made a prayer to this effect also in the writ petition. The interest of justice would be served by now directing the respondents to decide the objections of the petitioner-Trust within one month from today and allow the assessee-Trust to proceed further in the matter - Petition dismissed.
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2011 (10) TMI 471
Registration/ Cancellation of Trust - Trust registered dated 4.11.1982 Director exemption sought cancellation issued a notice on 15.4.2010 - Held That:- By virtue of amendment effected in sub-section (3) of sec. 12AA Commissioner can cancel registration with effect from 01.06.10. In the given case notice was issued on 15.4.10 he was not having any power to cancel such registration. Therefore, the very foundation to initiate proceedings against the assessee for cancellation of the registration is erroneous.
Returned loss - Advance for purchase of income treated as Application of income - AO argued S.K Aggarwal individual falling within 13(3) exemption under 11 & 12 not applicable - Held That:- S.K Aggarwal is the chair person of the institute. Advance of Rs 1,18,05,316 was not used for the purpose of society rather for personal purpose thus benefit of Sec 11,12 not applicable.
Taxation as AOP after applying Maximum marginal rate of tax - Held That:- CIT(Appeals) has not considered these issues on account of non co-operation from assessee. thus we remand the matter back for fresh perusal.
Validity of Interest under 234A 234B - Held That:- Charging of interest mandatory.
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2011 (10) TMI 470
Admissibility of appeal u/s 260A - substantial question of law - rejection of book of accounts - determination of Gross Profit rate to be applied on particular yearly turnover of the assessee - Held that:- It is a matter of discretion to be exercised on settled practice applicable to business standards and which is prevalent in commercial world. Once the Tribunal accepted the factual explanation of assessee and accordingly, deleted the additions in question made by A.O. in exercise of its appellate discretionary powers, then it would not involve any substantial issue of law as such. In other words, this Court in its appellate jurisdiction u/s 260-A ibid, would not again de novo hold yet another factual inquiry - Appeal dismissed.
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2011 (10) TMI 469
Validity of Reassessment proceedings u/s 147 - Agricultural land or short-term capital asset - Revenue contended it to be capital asset and its sale transaction constituting to be ‘an adventure in the nature of trade’ - Held that:- It is a settled legal proposition that, when the claim of exemption/deduction is made, the onus is on the assessee to demonstrate the genuineness of such claim. In present case, location of the land, proximity to the residential zone, fact that assessee sold the property of Rs 1.43 lakhs worth for the sum of Rs 11.11 lakhs in the gap of 27 months of holding period tells about worth of land to earn commercial profits, all goes against the assessee. Further, there is no direct evidence and convincing evidence to demonstrate the existence of agricultural activity on the said land during the holding period. Therefore, CIT(A) rightly held it to be capital asset and moreover short term capital asset on the basis of its holding period.
Regarding validity - AO formed an opinion that the “assessee is carrying on the business of purchase and sale of agricultural land and therefore the activity is an adventure in the nature of trade or business and income from the same is taxable as business income - Held that:- AO has rightly formed requisite believe or reason to believe that the income has escaped assessment for the A.Y. 2000-01 - Decided in favor of the revenue
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2011 (10) TMI 468
Appeal against rectification order passed by Assessing Officer (suo- moto) u/s 154 - assessee contended that very purpose of invoking Section 154 would be lost if further details are called for from the assessee - Held that:- The very fact that the AO called upon the assessee to furnish the details of Rs. 28,10,000/- towards the payments made by them to the Sales Tax Department to substantiate their claim would indicate they expected reply and further enquiry into the matter to know whether the assessee was entitled for such allowance or not. This is nothing but the authorities concerned were accepting the long drawn litigation to arrive at the conclusion after obtaining the details from the respondent-assessee, which is very much against the Provision of Section 154 as laid down in the case of T.S. Balaram, ITO v. Volkart Brothers [1971 -TMI - 6255 - SUPREME Court]. Therefore, there was no obvious and patent mistake on the face of record, which compelled the AO to initiate the proceedings u/s 154 - Decided in favor of the assessee
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2011 (10) TMI 467
Difference in the amount of consideration between the agreement of sale and sale deed - agreement to sale mentions consideration of Rs 58.50 lacs whereas consideration mentioned in the sale deed is Rs. 27 lacs - consideration of Rs 58.50 lacs also supported by Valuation report - Held That:- Once there is an agreement of sale which gives the correct valuation to which the assessee is a party which is confirmed by the valuation of an approved valuer, nothing more is required to come to the conclusion that the consideration for the sale is Rs. 58,50,000. That consideration is not mentioned in the sale deed and what is mentioned is not the true consideration. addition sustained - Decided against assessee.
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2011 (10) TMI 466
Levy of Penalty - unexplained payments stand explained out of unaccounted donations - educational institutions collected donations- 60% are shown as income and 40% not disclosed - "undisclosed income is utilized either for giving advances to builders which is also undisclosed or used for personal use of trustees or their relatives”. - Held that:- the mere fact that the quantum additions have been confirmed per se does not imply that this explanation cannot be treated as acceptable for the penalty purposes either. Thus penalty was not levied.
Tax effect does not exceed CBDT instructions - Revenue authorities not justified to appeal
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2011 (10) TMI 465
Proceedings emanating from the revision order u/s 263 - Whether Tribunal is justified in allowing appeal of the Income-tax Department against the order of the CIT(Appeals) which has become non est and infructuous in law - Held That:- Once the orders u/s 263 passed by the CIT have been set aside by the Tribunal, it could not have allowed the appeal of the Revenue arising out of the order of the CIT. The entire proceedings, after quashing the order under section 263 were infructuous - Decided in favor of assessee.
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2011 (10) TMI 464
Reopening of assessment - Validity of notice u/s 148 - Held that:- The reopening of the assessment in the present case is beyond the period of four years of the end of the relevant assessment year but the reasons disclosed by the AO do not refer to any failure on the part of the assessee to disclose material facts, nor is there any allegation of suppression on the part of the assessee.
AO has relied upon Note 3 (e) of Schedule P to the notes forming part of the accounts whereas the assessee had clearly disclosed therein that as a result of the restructuring by the lenders, finance cost to the tune of Rs.20.58 Crores was waived/foregone and that the payment of the balance was to be made in accordance with the settlement terms. Thus the condition precedent to the invocation of the jurisdiction is clearly absent - in favour of assessee.
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2011 (10) TMI 463
Deduction on payment basis - Bonus paid beyond the extended period determined under 43B - Held That:- When the time has been specifically determined under the act
remitting the matter to the Assessing Authority will not serve any useful purpose when the dates are admitted.
Tribunal had deleted the disallowance made out of rent paid - Revenue unable to controvert the said positon - Held That:- Question answered in favour of assessee.
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2011 (10) TMI 462
Bad Debt - dis-allowance - appellant, agent of non resident shipping company - Held That:- Tribunal has correctly considered that the assessee, being the agent of the non-resident tax payer, when it had paid the tax, the same cannot be claimed as a bad debt. The tax itself has been recovered lawfully in accordance with the provision of Section 173. See Abdullabhai Abdulkadar (1960 - TMI - 49539 - SUPREME Court), Indian Aluminum Co.(1971 - TMI - 6229 - SUPREME Court) - Decided in favor of Revenue
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2011 (10) TMI 461
Order of the block assessment - challenge on the assumption of jurisdiction and on the point of limitation - Held That:- The steps were taken to bring the assessee's case under Section 158BD was right.
The date of service was 28.11.1996 and the assessment was to be completed on or before 30.11.1997. The date of the order of the High Court for stay was 19.11.1997 and the stay was vacated on 12.1.2001. Therefore, the stay period works out to 1536 days whereas the total available period including the stay is 1536 days and hence the assessment order since passed within 1535 days, it is in order and in time. Even otherwise, the High Court's order vacating the stay was received in the Commissioner's office on 1.2.2001. The limitation for passing the block assessment expires on 12.2.2001. Hence, the assessment was completed on that date - against assessee.
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9911796707
