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Showing 321 to 340 of 387 Records

• 1999 (5) TMI 69 - ITAT MADRAS-A
  
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  ... ... ..... eturns. Once Austria, partner to the DTAA, has considered the receipt as technical fees under the DTAA, India, the remaining partner cannot view it otherwise because both the parties, namely Austria and India are governed by the same DTAA. 7.10 For all the reason and discussions stated above we are inclined to treat the impugned payments as technical fees paid to AVL by TSL as per DTAA between India and Austria. Once it has been held as technical fees taxable in Austria, the question of TDS by the Indian company does not arise at all. In this connection we are fortified by the direct decision on applicability of section 195 for similar payment made by Tata Yudogawa to an Austrian company of the Patna Bench of this Tribunal in the case of Tata Yudogawa Ltd. 7.11 Having held that the impugned payments are not liable for TDS under section 195, the question of charging of interest under section 201(IA) does not arise as such. 7.12 In the result the assessee s appeals are allowed.

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• 1999 (5) TMI 67 - ITAT JAIPUR
  

  Depreciation

  
  
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  ... ... ..... on dumpers, which are mining machinery in the case of the assessee. This ground of the assessee is, therefore, allowed. 6. Coming to the appeals filed by the Revenue in ITA Nos. 282 and 283/Jp/1996, which are on the following common ground of appeal On the facts and in the circumstances of the case, the learned CIT(A), Ajmer has erred in allowing additional depreciation to the extent of 75 per cent on dumpers treating them mining machinery. 7. We have discussed this ground of appeal while deciding Ground No. 1 of the appeals filed by the assessee. After examining the issue in detail, we have directed to allow 100 per cent additional depreciation and held the disallowance by invoking the provisions of s. 38(2) of the IT Act as wrong and unjustified. Following our decision, this ground of appeal filed by the Revenue is dismissed in both the years. 8. Subject to the above, the appeals filed by the Revenue stand dismissed and the appeals filed by the assessee stand fully allowed.

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• 1999 (5) TMI 66 - ITAT JAIPUR
  

  Income From Undisclosed Sources

  
  
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  ... ... ..... vised return to exclude the sum of Rs. 1,23,544 from the total estimated surrender of Rs. 2,50,000 without prejudice to the right of the assessee to prefer appeal for respective assessment years. If this note is considered, then it is amply clear that assessee surrendered an estimated profit of Rs. 2,50,000 which was rebutted and the stock was determined on the basis of material found and seized. Therefore, as we have already stated that the profit should be adopted as per the documents found and determination made by the Department. With these observations we pass the order accordingly. The AO is further directed to give an opportunity to the assessee for further explanation. This covers ground No. 2 taken by the assessee in its appeal. Ground No. 1 is against the trading addition. We do not find any infirmity in the orders of the authorities below. Therefore, this addition is sustained. 9. In the result, the appeal of the assessee is partly allowed for statistical purposes.

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• 1999 (5) TMI 65 - ITAT HYDERABAD-A
  
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  ... ... ..... ances in which it was constrained to make the repayment of the loans in question in cash. We are satisfied that the assessee was prevented by a reasonable cause from making repayment of these loans by cheque or demand draft. Our finding with regard to existence of a reasonable cause taking away an assessee from the liability to penalty under section 271D holds good even in the context of the impugned penalty under section 271E. In the circumstances, even on facts, we are of the view that this is not a fit case for the levy of penalty under section 271E. 27. Therefore, both on the question of law as well as on facts, we find that imposition of penalty under section 271E is not in order. It is therefore, cancelled. 28. Having considered all the contentions raised in these appeals, we cancel the penalties levied under section 271D and under section 271E. 29. In the result, while the appeals of the assessee are allowed, the appeals of the Revenue are dismissed. Order accordingly.

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• 1999 (5) TMI 64 - ITAT DELHI-E
  

  Dissolved Firm

  
  
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  ... ... ..... s. 142 of the Act, served on Shri Davinder Singh that the assessee asked for inspection of the records and raised an objection in regard to the validity of that proceedings under s. 147. In view of the facts and the legal position, we are of the considered view that as notice under s. 148 of the Act was not served on the assessee, the proceedings under s. 147 cannot be held to be validly initiated. Therefore they are quashed. 7. As regards jurisdiction over the case, while the assessee filed no material to show that vide Notification dt.21st Aug., 1991, there was a change in the jurisdiction over the case, the material lying on records show that when the case was transferred to ITO Ward 4,Faridabad, there were pending cases at the end of the AO. 8. In view of our finding that proceedings under s. 147 having been not validly initiated, we find it unnecessary to adjudicate on the issue of addition made at Rs. 5,68,400 on merits. 9. In the result, the assessment stands annulled.

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• 1999 (5) TMI 63 - ITAT DELHI-E
  
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  ... ... ..... t and remaining two supplied the material in subsequent year which have also been accepted by the Department. Learned CIT(A) will also keep in mind the fact that book results of the assessee in earlier years and subsequent years have been accepted by the Department. The CIT(A) will also record definite findings on each of the plea raised by the assessee as appearing at pp. 110 to 125 of the file of the Tribunal and particularly in reference to the case law referred therein. CIT(A) will also give an opportunity to assessee of being heard and to file the evidence in support of the contentions and also another opportunity to assessee to rebut the material collected by AO in the back of assessee. CIT(A) himself will be summoning the witnesses or other persons if need so arises and to allow an opportunity to assessee to cross-examine such persons and then to decide all the factual and legal position. 20. In the result, the appeal is allowed, as indicated, for statistical purposes.

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• 1999 (5) TMI 62 - ITAT DELHI-C
  
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  ... ... ..... s for non-deduction of such tax and payment thereof, the Revenue would have treated the assessee-company in default and levied penalty under s. 221 of the IT Act. Moreover, the payment of the amount of short tax deduction and interest thereon was a mitigating factor for the taking action under s. 221. When no action has been taken by the Revenue for levy of penalty under s. 221 and delay in payment of tax has been fully compensated by payment of interest no further action is justified under s. 271C of the IT Act, looking to the ratio of the aforecited decision of the Hon rsquo ble jurisdictional Delhi High Court. 8.42. Having regard to all the facts, circumstances discussed and ratio of the decisions cited and considered, the penalty levied under s. 271C for the financial years 1989-90 to 1994-95 in respect of both project office and liaison office is held neither valid nor justified and the same is directed to be cancelled. 9. In the result, assessee s appeals stand allowed.

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• 1999 (5) TMI 61 - ITAT DELHI-A
  
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  ... ... ..... ng regard to the above facts and also keeping in view the later decision of the Hon rsquo ble Delhi High Court in the case of Jindal Photo Films Ltd., the AO cannot be said to be justified in reopening the assessment even under the amended provisions of s. 147 also. Though the AO is clothed with much wider powers to reopen a completed assessment, such power is not unfettered and cannot be exercised by the AO on mere ipse dixit on reappraisal of the same set of facts/ materials. Since the powers of the AO to reopen a completed assessment are circumscribed, the AO cannot on a change of opinion reopen the completed assessment. This view is supported by the decision of the Hon rsquo bleGujaratHigh Court relied upon by the learned counsel of the assessee in the cases earlier cited above. Having regard to the above facts, we are of the view that there appears to be no merit in the appeals of the Revenue. We accordingly dismiss the same. 26. In the result, the appeals are dismissed.

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• 1999 (5) TMI 60 - ITAT DELHI-A
  
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  ... ... ..... h the provisions of law. 17. On the alternative submission, proviso to section 201(1) speaks of penalty u /s 221 and sub-section (1A) to section 201 speaks of penal interest on the shortfall in TDS from the date on which such tax was deductible up to the date on which it was actually paid. The words used are shall be liable to pay . As far as penalty under section 221(1) is concerned, we are not dealing with the same in the present appeals and the assessee may seek relief in those proceedings. The interest under section 201(1A) is mandatory in nature and is attracted as soon as the company is treated as an assessee in default for any violation of TDS provisions. Interest is charged for keeping back Govt. monies and the question of pleading a reasonable cause or bona fide belief is excluded but which can be done in the penalty provisions under section 221(1) as per proviso to section 201(1). 18. In the result, the appeals are treated as partly allowed for statistical purposes.

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• 1999 (5) TMI 59 - ITAT CHANDIGARH
  
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  ... ... ..... e with the provisions of sub-section (3) which in turn speaks of, in clause (a) - an assessment by way of regular assessment and in clause (b) - a provisional assessment and clause (b) of sub-section (5) referring to only a regular assessment. 9. In view of the aforesaid discussion and in the light of specific provisions of law highlighted above, we in the ultimate analysis hold that the CIT(Appeals) was justified in cancelling the penalty for assessment years 1982-83, 1983-84 and 1985-86. We are also in agreement with the CIT(Appeals) in so far as he has taken the view that the assessee is liable to be penalised for assessment year 1986-87 and such decision is also being arrived at with reference to the relevant provisions of law. The levy of penalty at 10 on the amount in default is quite fair and reasonable and requires no modification and this leads to rejection of the alternative submission of the assessee s counsel. 10. In the result, all the four appeals are dismissed.

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• 1999 (5) TMI 58 - ITAT CHANDIGARH
  

  Collection And Recovery Of Tax

  
  
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  ... ... ..... notwithstanding the reduction of his liability by an order of the appellate authority. He also observed that there is only one exception to this rule and that is when the order of assessment is wholly set aside. We feel that the ratio of the said decision, including the dissenting views, of Justice J.C. Shah lead to the conclusion that the Assessing Officer is entitled to pursue the demand of tax in a situation where the tax is reduced in view of the decision of the first appellate authority or the same is increased by such authority. The only question in that case was whether fresh notice of demand was required to be issued or not. Keeping in view the foresaid judgment, we feel that the Assessing Officer was free in these cases to revive the demand in relation to issues which were restored to the file of the ld. CIT(A), as the relief allowed to the assessee stood withdrawn till the issues were decided by the ld. CIT(A) afresh. 4. In the result both the appeals are dismissed.

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• 1999 (5) TMI 57 - ITAT CALCUTTA-E
  

  Business Loss, Allowability of

  
  
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  ... ... ..... a moral plane than honest payment of taxation. In our view, the proper way to construe a taxing statute, while considering a device to avoid tax, is not to ask whether the provision should be construed literally or liberally, not whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax and whether the transaction is such that the judicial process may accord its approval to it. At page 171 of the Report Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to a void the payment of tax by resorting to dubious method. 20. Ground Nos. 3 to 5 pertain to the justification in charging interest under sections 234A, 234B and 234C of the Act. Ld. counsel has not advanced any argument on this ground. We, therefore, reject the ground taken before us and uphold the action of the CIT(A). 21. In the result, the appeal filed by the assessee is dismissed.

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• 1999 (5) TMI 56 - ITAT CALCUTTA-A
  

  Business Expenditure

  
  
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  ... ... ..... ns a sum for which the assessee incurred liability in the previous year even though such sum might not have been payable within that year under the relevant law. It could be seen that the Explanation speaks of the amount payable in the previous year as well as the amount which are not payable within that year. In other words, liability such as excise duty liability which accrues soon after the completion of the production but the liability to pay is postponed, is also covered by the term any sum payable and, therefore, s. 43B is attracted. Such being the case, assessee is entitled to claim deduction of any sum on the basis of actual payment, during the previous year or at any time before the expiry of the time for furnishing the return. We, therefore, do not find any infirmity in the order of the CIT(A). Needless to observe that the assessee is not entitled to claim the same amount in any subsequent year. 22. In the result, the appeals filed by the Revenue are partly allowed.

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• 1999 (5) TMI 55 - ITAT BOMBAY-I
  

  Deduction, Export Turnover

  
  
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  ... ... ..... interference. 7. Before parting with the case, it may be pointed out that the fact that the money remained in the firm is not very relevant as it was only a transfer to partners account and not the money actually withdrawn. What is relevant is the utilisation of the reserve for the purposes of the business. The retention of the reserve is a must. Again the equation of withdrawal of money by the partners to the distribution of dividends by putting both of them at par, in my view, is not a correct proposition. If the reserve is transferred to the capital account of the partners and the money to that extent is withdrawn, it cannot be said to be utilisation for the purposes of the business of the firm and the reliance on the Board s Circular in this regard, which opines that distribution of dividends is a utilisation of the reserve for the purposes of the business, is of no help. 8. In the result, the order of the CIT(A) is upheld and the appeal filed by the revenue is dismissed.

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• 1999 (5) TMI 54 - ITAT BANGALORE
  

  Search And Seizure, Block Assessment

  
  
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  ... ... ..... hat extent. So far as some other portions of the land are concerned, the assessee was yet to make purchase of those portions of land. Taking into considerations all these facts, we must come to the conclusion that the entire contract as a whole is required to be considered for arriving at the ultimate profit/loss, out of the transaction as a whole. The transaction was certainly not completed till the date of search and hence it would not be proper to slice off a portion of the net profit which would ultimately result as pertaining to the block period. We are, therefore, of the opinion that the profit arising our of transaction will have to be considered as a whole at the end of completion of the contract. Hence, in our view, the assessment of the amount of Rs. 10,39,950 as undisclosed income of the assessee for the asst. yr. 1996-97 is not proper. We, therefore, delete this addition. 21. In the result, the appeal filed by the assessee is allowed to the above-mentioned extent.

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• 1999 (5) TMI 53 - ITAT AMRITSAR
  

  Deduction, Exporters, Business Income

  
  
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  ... ... ..... its and (2) the profits of any branch, office, warehouse or any other establishment of the assessee situate outside India This will clear the position further. This clause clearly shows that in case the Assessing Officer has treated brokerage, commission and interest income as income from profits and gains of the business, then w.e.f. 1-4-1992 that income is to be reduced from the total income for the purpose of deduction under section 80HHC. That clearly shows that prior to 1-4-1992 if such income is part of the business income then there is no power available with the Assessing Officer to reduce income from interest and rent for the purpose of allowing deduction under section 80HHC. There is finality to this fact that the Assessing Officer himself in the assessment order has assessed interest and rent as income from business and profession. We, therefore, find no infirmity in the order passed by the learned CIT (A). 14. In the result, the appeal of the revenue is dismissed.

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• 1999 (5) TMI 52 - ITAT AMRITSAR
  
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  ... ... ..... ircumstances of the case the Assessing Officer is not justified in imposing penalty upon such income of the assessee because the same cannot be treated to be the concealed income of the assessee as he disclosed all the material facts and the circumstances before the Assessing Officer prior to the assessment. More so, when the Assessing Officer is not able to bring on record any sufficient material to establish that this amount, treated by him to be the concealed income of the assessee, in fact represented the concealed income of the assessee. In our opinion, the CIT (A) was fully justified in deleting the penalty imposed by the Assessing Officer in respect of the deposits of Rs. 80,000 as well as the amount of the cash credit involved in this case. Hence, we hold that the ground taken by the Revenue has no merits and the same is hereby rejected. 15. In the result, the order of the CIT (A) is upheld and the appeals of the Revenue in ITA Nos. 467 and 468 (ASR)/90 are dismissed.

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• 1999 (5) TMI 51 - ITAT AHMEDABAD-C
  

  Erroneous And Prejudicial Order

  
  
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  ... ... ..... he various case laws cited before us by the learned counsel for the assessee and the learned Departmental Representative. However, it would be pertinent to observe that our conclusion in the present appeal is fortified by the decision of the Jurisdictional High Court in Addl. CIT vs. Mukur Corporation (1978) 111 ITR 312 (Guj) and CIT vs. M.M. Khambhatwala. Since the CIT has only set aside the assessment with a direction to do it afresh no prejudice is caused to the assessee, as stated earlier because in the new assessment proceedings, the assessee is free to argue its case on the basis of evidence already furnished and to furnish any other evidence which it may rely on in response to the queries to be raised by the AO in the light of the CIT s directions. 12. In the light of the foregoing discussions and in view of the legal principles enunciated in various reported decisions, we have no hesitation in upholding the order of the CIT. 13. In the result, the appeal is dismissed.

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• 1999 (5) TMI 50 - ITAT AHMEDABAD-A
  
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  ... ... ..... but were given from time to time and even if any interest is to be disallowed, the calculation of Rs. 6,000 is excessive. (13) The AO erred in charging interest under ss. 215 and 216 and under s. 201(1A). The appellant prays that this Hon ble Tribunal may be pleased to direct the CIT(A) to specifically consider and decide the above grounds of appeal. 17. The assessee s counsel pleads that ground Nos. 8 and 13 raised before the CIT(A) were not considered by him while passing the impugned order and, therefore, the matter may be set aside for consideration by the CIT(A). On perusal of the grounds of appeal before the CIT(A), we find that these points are not covered by the impugned order and, therefore, the assessee s argument merits consideration. We direct the first appellate authority to consider these grounds and dispose of them in accordance with law after giving the assessee an opportunity of being heard in this connection. 18. In the result, the appeal is partly allowed.

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• 1999 (5) TMI 49 - ITAT AHMEDABAD-A
  

  Option Of Assessee

  
  
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  ... ... ..... ed by expressly withdrawing the claim by filing the revised return. After going through the relevant legal provisions before and after the amendment w.e.f. 1st April, 1988, we are convinced that the decision of the Hon ble Gujarat High Court is still applicable to the facts of the present case. The decision of the Hon ble Karnataka High Court also supports this view. Since the CIT(A) has followed the decision of the Jurisdictional High Court in the matter, there is no infirmity in his order. With regard to the argument of the learned Departmental Representative that the decision in the case of McDowell should be applied, we fail to understand how that decision is applicable in the present case, because there is nothing in the assessment order to suggest that the AO has relied on the ratio of the judgment while deciding the issue 6. In the light of the above discussion, no interference is called for in the impugned order of the CIT(A). 7. In the result the appeal is dismissed.

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