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Showing 301 to 320 of 1247 Records
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2012 (9) TMI 957
Issues involved: Appeal u/s 260A of the Income Tax Act, 1961 challenging the cancellation of penalty u/s 271(1)(c) by the Income Tax Appellate Tribunal for Assessment Year 2004-2005.
Summary:
Issue 1:
The appellant raised the question of whether the Appellate Tribunal was correct in canceling the penalty of Rs. 2,17,52,430/- levied by the Assessing Officer u/s 271(1)(c).
The assessment for the respondent-assessee for Assessment Year 2004-2005 was finalized, determining the total income and disallowing excess claim of deduction under Sec. 80-IA. The Assessing Officer imposed a penalty of Rs. 2,17,52,430/- u/s 271(1)(c), which was later deleted by the Commissioner of Income Tax (Appeals). The Revenue appealed to the Income Tax Appellate Tribunal, which observed that the quantum appeal of the assessee was pending and ultimately allowed, leading to the deletion of the additions made. The Tribunal held that penalty u/s 271(1)(c) was not leviable based on the Supreme Court's decision in Reliance Petrol Products Pvt. Ltd.
The Tribunal's reliance on the Supreme Court's decision was deemed correct, as making an incorrect claim does not necessarily constitute concealment of income. With the quantum appeal being allowed and the additions deleted, the basis for imposing the penalty ceased to exist, leading to the dismissal of the appeal.
Conclusion:
The appeal was dismissed as it did not raise any substantial question of law in light of the facts presented and the Tribunal's decision.
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2012 (9) TMI 956
Penalty u/s 271(l)(c) - income declared in the returns of income filed in response to notice under s. 153A - Held that:- No addition is made by the AO over and above the income declared in the returns of income filed in response to notice under s. 153A as the expression "tax sought to be evaded" appearing in cl. (c) to s. 271(1) is to be understood as a difference between the income declared by the assessee in the return of income and the income finally assessed. After introduction of s. 153A w.e.f. 1st June, 2003, there is no specific penalty provision to deal with the assessments framed in consequence of search and seizure action under s. 132 of the Act. In the present case, as the returned income and income assessed are the same, otherwise also, no penalty can be levied. We, therefore, hold that in all the appeals before us, the AO was not justified in levying the penalty under s. 271(l)(c) of the Act. We accordingly, delete the penalties levied by the AO in all the appeals for the abovementioned reasons. - Decided in favour of assessee.
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2012 (9) TMI 955
The appellant appealed the denial of input service credit on mobile phones given to employees. The Tribunal allowed the appeal citing a High Court decision that any service related to business activity qualifies as "input service" under CENVAT Credit Rules, 2004. The appeal was allowed without pre-deposit of dues, and the stay application was disposed of accordingly.
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2012 (9) TMI 954
Exemption u/s 11 - franchisee fees received by the DPS Society from different satellite schools which are running under the name and logo Delhi Public School having different management than the DPS Society - denial of depreciation to assessee trust
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2012 (9) TMI 953
Issues Involved:
1. Rejection of Books of Accounts.
2. Addition on Account of Gross Profit (GP).
3. Addition on Account of Freight Liability.
4. Addition u/s 68 for Unexplained Deposits.
5. Disallowance of Noor and Jakat Expenses.
Summary:
Issue 1: Rejection of Books of Accounts
The assessee's appeal contested the rejection of its books of accounts by the Assessing Officer (AO) u/s 145(2). The AO noted discrepancies in freight liabilities and cash transactions, deeming the books unreliable. The ITAT found that the AO did not provide sufficient evidence to justify the rejection, as the assessee consistently followed its accounting methods and no significant defects were pointed out. The Tribunal held that the rejection of books was not proper and allowed the assessee's appeal on this ground.
Issue 2: Addition on Account of Gross Profit (GP)
The AO made an addition of Rs. 12,27,096 by estimating a GP rate of 17%. The ITAT noted that the assessee's GP rates for various items were consistent with previous years and no specific defects were pointed out in the trading results. The Tribunal concluded that the GP addition was not justified and allowed the assessee's appeal on this ground.
Issue 3: Addition on Account of Freight Liability
The AO added Rs. 12,66,045, alleging that part of the freight liability shown by the assessee was fictitious. The ITAT found that the AO's basis for this addition was not supported by concrete evidence. The Tribunal held that the freight liability was not bogus and deleted the addition, allowing the assessee's appeal on this ground.
Issue 4: Addition u/s 68 for Unexplained Deposits
The AO made additions for unexplained deposits from various parties. The ITAT examined the confirmations and evidence provided by the assessee. For some deposits, the Tribunal found the explanations satisfactory and deleted the additions, while for others, where confirmations were not provided, the additions were upheld. The appeal was partly allowed on this issue.
Issue 5: Disallowance of Noor and Jakat Expenses
The AO disallowed 10% of Noor and Jakat expenses, amounting to Rs. 2,02,840, due to lack of complete details. The ITAT noted that the AO did not specify what details were missing and that no actual addition was made in the computation of income. The Tribunal found the ad-hoc disallowance unjustified and deleted it, allowing the assessee's appeal on this ground.
Revenue's Appeal
The revenue appealed against the deletion of various additions by the CIT(A). The ITAT upheld the CIT(A)'s order, finding no reason to interfere with the deletions made, and dismissed the revenue's appeal.
Conclusion
The assessee's appeals for the assessment years 2005-06 and 2006-07 were partly allowed and allowed respectively, while the revenue's appeals were dismissed.
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2012 (9) TMI 952
Addition being interest on unexplained investment - Held that:- A careful perusal of the orders on record would suggest that except for the impounded document and statement of partner, there was no further evidence with the Revenue to make addition. In fact document itself only suggested entry of Rs . 3,12,159/-. It was on the strength of the statement of the partner during the survey that the Revenue inflated such figure 10 times by adding zero. Statement of partner also suggested that it was his personal income and not that of firm. Thus entire statement was also not taken in its entirety. Further other than such statement, there was no further material available on record. In fact, the Tribunal recorded that from the document there was nothing to suggest that the entries pertained to loan and advances.
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2012 (9) TMI 951
Whether subsequent purchaser can challenge the acquisition proceedings?
Whether a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor’s title?
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2012 (9) TMI 950
Addition u/s 68 - Cash Credit - Unexplained share application money - assessee has not been able to give satisfactory explanation in respect of certain expenditure or where any sum is found credited in the books of accounts, the AO can treat the same as undisclosed income and add to the income of the assessee.
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2012 (9) TMI 949
Issues involved: Breach of provisions of the Customs Act, 1962 regarding export of goods without Let Export Order (LEO) and imposition of penalty under Sections 113(g) and 114(iii) of the Customs Act.
Summary:
1. The appeals and stay applications were filed against an Order-in-Original passed by the Commissioner of Customs (Export), Nhava Sheva, regarding the export of goods without obtaining the Let Export Order (LEO) from the customs authority.
2. The appellants, a shipping agency and an exporter, exported goods without the LEO, resulting in a notice for breach of Customs Act provisions. The goods were held liable for confiscation under Section 113(g) and penalties were imposed under Section 114(iii). The appellants contended that the loading was done early due to the goods being over dimensional, and they were not responsible for the sailing of the vessel before LEO was granted.
3. The Customs Act imposes responsibilities on exporters and their agents to ensure completion of export formalities before goods are exported. The vessel sailed before LEO was granted, leading to a breach of Customs Act provisions. The penalties imposed on the appellants were deemed justified as any act or omission making goods liable for confiscation attracts penalty under Section 114(iii).
4. The Tribunal upheld the confiscation of goods and imposition of penalties, citing precedents where actions leading to goods being exported without LEO rendered them liable for confiscation and penalties. The only consideration was whether the penalties imposed were excessive. The penalty amounts were reduced to &8377; 1.4 lakhs for the exporter and &8377; 1.6 lakhs for the shipping agency, while upholding the lower authority's order. Stay applications were also disposed of.
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2012 (9) TMI 948
Issues involved: Revenue's appeal against the order of ld.CIT(A)-Central-I, Kolkata for A.Yrs. 2004-05, 2005-06, and 2007-08 regarding the treatment of properties as being used for commercial purpose and their taxability under the Wealth Tax Act.
Treatment of properties for commercial purpose:
The AO included amounts under the net wealth of the assessee for the years ending 31.03.2004, 31.03.2005, and 31.03.2007, based on the properties being leased out and not used for the assessee's own business purposes. The ld. CIT(A) deleted these additions, stating that the nature and purpose of the use of the property by the assessee are crucial under the Wealth Tax Act, regardless of whether the property is used for the assessee's business. The revenue appealed this decision.
Legal interpretation and decision:
The ld. DR argued that since the assessee did not use the property for its commercial purposes, the AO's view should be upheld. However, the ld. Counsel for the assessee contended that section 2(ea) does not mandate the assessee's personal use of the property for commercial purposes. Upon reviewing the provisions of section 2(ea)(5) of the Wealth Tax Act, the tribunal found no requirement for the assessee to use the property personally to qualify for exemption. Consequently, the tribunal upheld the ld. CIT(A)'s decision to delete the additions, dismissing the revenue's appeal.
Conclusion:
The tribunal confirmed the decision of the ld. CIT(A) regarding the taxability of the properties under the Wealth Tax Act, dismissing the revenue's appeals. The order was pronounced on 10.09.2012.
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2012 (9) TMI 947
Issues Involved:1. Whether the institution is 100% educational. 2. Whether the institution is substantially financed by the Government for the purpose of exemption u/s 10(23C)(iiiab). Summary:Issue 1: Whether the institution is 100% educationalThe assessee submitted that the institution is set up specifically for imparting education in social science, and activities like Extra Mural Studies and Child Guidance Clinic are integral to the educational activities. The Delhi High Court in Jaypee Institute of Information Technology Society vs. D.G. of Income (Exemption) supported this view. The CIT(A) agreed with the assessee's contention that the institution is 100% educational. Issue 2: Whether the institution is substantially financed by the GovernmentThe AO denied the exemption u/s 10(23C)(iiiab) on the grounds that the Government grant of Rs. 12,79,13,233/- was less than 75% of the total expenditure of Rs. 22,49,72,584/-. The CIT(A) disagreed, interpreting "substantially financed" to mean 50% or more, relying on judicial pronouncements including the Karnataka High Court's decisions in National Education Society and CIT vs. Indian Institute of Management, which accepted grants of 36.42% as substantial. The CIT(A) held that the assessee, with a grant of 56.86%, was substantially financed by the Government and allowed the exemption. ITAT's Decision:The ITAT upheld the CIT(A)'s decision, rejecting the AO's reliance on section 14(1) of the Comptroller and Auditor General's Act, 1971, which defines "substantially financed" as not less than 75%. The ITAT noted that the Karnataka High Court had accepted 36.42% as substantial finance. In this case, the grant was 56.86%, thus qualifying as substantial finance. The ITAT dismissed the Revenue's appeal, affirming the exemption u/s 10(23C)(iiiab). Conclusion:The appeal filed by the Revenue was dismissed, and the exemption u/s 10(23C)(iiiab) was upheld for the assessee. Order pronounced in the open court on this day of 26th September, 2012.
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2012 (9) TMI 946
Issues involved: Penalty proceedings u/s 67 of KVAT Act; Allegation of denial of opportunity to cross-examine witnesses.
In the present case, the petitioners are facing penalty proceedings initiated against them u/s 67 of the KVAT Act. The main grievance raised by the petitioners is that the 2nd respondent is proceeding with the adjudication proceedings and is proposing to pass final orders without allowing them to cross-examine the eight witnesses listed by them. The learned Special Government Pleader representing the respondents argues that the petitioners have already cross-examined five witnesses, and the seven additional witnesses requested by the petitioners are irrelevant and unnecessary to the dispute at hand. The respondents justify their decision to proceed without examining these seven witnesses based on the lack of relevance of their evidence to the ongoing adjudication.
The court notes that the adjudication process is still pending, and final orders have not yet been passed. It is emphasized that if the evidence of the seven witnesses requested by the petitioners is deemed essential and the matter is concluded without granting them the opportunity to cross-examine these witnesses, it could potentially amount to a violation of the principles of natural justice. However, the court clarifies that the petitioners can raise such a plea only after the 2nd respondent issues the final order upon the completion of the adjudication process currently under consideration. Therefore, the court deems the writ petition premature at this stage, and the petitioners are advised to await the final orders to be passed by the 2nd respondent before pursuing further legal action.
In conclusion, the writ petition filed by the petitioners is dismissed by the court.
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2012 (9) TMI 945
Depreciation on sale and lease back contracts and lease contracts disallowed - Held that:- In the absence of proof of suppliers and there being no attempt on the part of the assessee to establish the said fact that there was in fact a sale in its favour, rightly, the authorities rejected the case of the assessee. Mere production of lease agreement and copies of invoices indicating alleged sale in favour of the assessee would not be a sufficient ground to grant the relief. A perusal of the documents relied on by the assessee clearly show that the assessee could not in any manner substantiate its case that there had been purchase of machineries for the purpose of effecting lease in favour of the lessees. As rightly pointed out by the authorities below, the transactions were purely financial transactions and they were given the name of the lease transactions through the lease agreements. There being no error in the reasoning given by the Tribunal, we have no hesitation in rejecting the case of the assessee, thereby confirming the order of the Tribunal.
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2012 (9) TMI 944
Maintainability of petition - appeals are permitted in respect of the impugned orders - Section 35(g) of CEA - Held that: - petitions are not maintainable as appeals are permitted - Writ Petitions are accordingly disposed of with liberty to file appeals - petition dismissed.
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2012 (9) TMI 943
Issues Involved:
The issues involved in this case are the release of an imported generator and the requirement of an import license.
The petitioner approached the Court seeking a direction to release the generator imported and for a further direction to the fourth respondent to pass appropriate orders on the application seeking to issue an import license. The petitioner purchased a Diesel Power Generator Set from a Chinese Company and imported it for their use at their office. The petitioner claimed that no import license is required as it is not for resale.
The respondents informed that adjudication proceedings are pending, and orders are yet to be passed. The Central Pollution Control Board is identified as the authority responsible, and the State Pollution Control Board clarified that it is not authorized to issue a Type Approval Certificate. The question of emission and assessment arises only after installation and use of the generator. The Ministry of Commerce and Industry issued a communication reflecting a decision regarding import authorization for the generator.
The Court directed the petitioner to produce the communication before the adjudicating authority for consideration and passing appropriate orders expeditiously. The writ petition was disposed of with no costs incurred.
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2012 (9) TMI 942
Issues involved: Revenue's appeal against the orders of ld. CIT(A)-XV I, Ahmedabad dated 25.03.2010 and 28.04.2011 regarding deletion of addition made on account of Advertisement Expenses.
Issue 1 - Advertisement Expenses Disallowance:
The Assessing Officer (A.O.) disallowed 30% of the advertisement expenses claimed by the assessee, totaling to Rs. 35,64,277, based on earlier assessment orders. The assessee argued that the expenses were fully allowable as they were for the business needs and interest over the brand. The A.O. initiated penalty proceedings u/s 271(1)(c) for furnishing inaccurate particulars of income. However, the ld. CIT(A) deleted the addition citing previous appellate orders in favor of the appellant for similar issues in earlier assessment years.
Issue 2 - Judicial Precedent and Decision:
The ld. CIT(A) and the parties agreed that the issue was already decided in favor of the assessee by the Hon'ble ITAT, Ahmedabad Bench in the appellant's own case for the Asst. Years 2004-05, 2005-06, and 2006-07. Consequently, the Revenue's appeals for both years were dismissed, upholding the decision in favor of the assessee.
In conclusion, the appeals by Revenue were dismissed based on the precedent set by earlier appellate orders and the decision of the Hon'ble ITAT, Ahmedabad Bench.
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2012 (9) TMI 941
Taxability - loading, unloading and shifting of sugar bags from the floor of the mill house to the godown and from one godown to another godown - whether the service comes within the ambit of service tax under 'Cargo Handling Service' or not? - Held that: - In common parlance 'cargo' means load, which is to be carried by ship, aeroplane, rail or truck. The handling of transportation of goods, by itself unless it is an organised activity, which is connected with carrying cargo (load) by ship, aeroplane, rail or truck is involved would not fall within the definition of cargo handling service. The definition specifically excludes handling of export cargo or passenger baggage or mere transportation of goods
In the present case, the transportation of goods namely the sugar bags is within the factory. The respondent firm was engaged for loading, unloading, packing, unpacking, stacking, re-stacking and shifting of bags from floor of mills, from godowns and from one godown to another. The firm with its partners and other labourers handled bags of sugar under a contract, within the factory premises. The sugar bags were not to be loaded or unloaded for any movement outside the factory on public roads, on any ships, airplane or trucks for onward movement to any destination. The activities will fall within the meaning of transportation of goods, and would certainly not be included in the definition of 'Cargo Handling Service', which is the service exigible to service tax.
Appeal dismissed - decided against Revenue.
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2012 (9) TMI 940
Issues involved: Calculation of book profit for remuneration to partners by deducting interest income on FDR.
Summary:
The appeal was filed by the assessee against the order of Ld. CIT(A) for the assessment year 2004-05. The main ground raised was regarding the calculation of book profit for remuneration to partners by deducting interest income on FDR, resulting in excess remuneration to partners. The assessee, engaged in raw cotton ginning and sale of finished cotton and cotton seeds, had filed its return of income declaring total income. The assessment was finalized by the A.O., but due to audit objection, the case was reopened u/s 147 as the book profit for remuneration to partners was calculated without deducting interest income on FDR. The A.O. observed that income under certain heads should be deducted to arrive at only those receipts directly related to the business. The excess remuneration was disallowed accordingly.
Aggrieved by the A.O.'s action, the assessee approached the CIT(A), who upheld the A.O.'s order. The CIT(A) noted that the interest income from FDR was not directly related to the business and confirmed the disallowance of excess remuneration. The assessee then appealed to the ITAT, arguing that since the interest income was accepted as business income in previous assessments, it should be considered for calculating remuneration to partners. The ITAT, after considering relevant decisions, held that the interest income included in the net profit should not be excluded for calculating remuneration payable to partners u/s 40(b). Citing precedents, the ITAT ruled in favor of the assessee, deleting the addition made by the A.O. and allowing the appeal.
In conclusion, the ITAT allowed the appeal of the assessee, emphasizing that the interest income included in the net profit and taxed as business income should be reduced for calculating remuneration payable to partners u/s 40(b.
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2012 (9) TMI 939
Restriction on operation of Bank Account - Duty Drawback - Held that: - Section 121 of the Customs Act on which reliance was placed by Mr. Dey provides that where any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation - The section can only be invoked on a specific finding that smuggled goods have been sold. Operations can only be prevented in respect of the sale proceeds of smuggled goods.
In this case there is admittedly no adjudication as yet.
The petitioner be allowed to operate his bank accounts - application disposed off.
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2012 (9) TMI 938
Refund claim - Whether the Modvat credit availed by the parties on replaced old CPT’s with new one should not be recovered along with interest? - penalties - Held that: - until it is found that repaired and defective colour picture tubes received from the company were not replaced and that new colour pictures were cleared from the same factory without payment of duty, refund could not be refused - appeal dismissed - decided against Revenue.
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