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Showing 341 to 360 of 1967 Records
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2014 (1) TMI 1629
Disallowance u/s 68 - share application money - Held that:- There is a dazzling line drawn between the cases in which addition u/s 68 on account of share application money etc. can and cannot be made. Where the AO properly enquires into the matter and reaches the conclusion on appreciation of the evidence adduced by the assessee that the transactions were not genuine, the addition is called for. If on the other hand, the AO simply brushes aside the assessee’s explanation without any cogent reason and makes the addition in a mechanical manner, no addition is warranted. In our considered opinion, the extant case falls under the second category. Here also, the Assessing Officer did not make any effort to enquire into the matter. No summons u/s 131 were issued to the share applicants. No enquiry worth the name was conducted, but the addition was made in a routine manner. Respectfully following the judgment in Fair Finvest Ltd. (2012 (12) TMI 170 - DELHI HIGH COURT), we hold that the ld. CIT(A) was fully justified in deleting this addition.
Initiation of the re-assessment proceedings - Assessing Officer received information from DI (Investigation) about the accommodation entries received by the assessee. Initially, it was argued by the ld. AR that all the necessary details in this regard were furnished to the Assessing Officer who examined the issue at length before passing the order u/s 143(3). On being called upon to invite our attention towards such original order passed u/s 143(3), the ld. AR expressed his inability by stating that he did not have a copy of such order. It can be seen from our file also that no copy of such assessment order has been filed. In such a situation, we are left with no option but to presume that either no assessment order u/s 143(3) was originally passed or if at all any such assessment order was passed, no enquiry about such share application money was conducted. This brings us to a position that the Assessing Officer initiated the present reassessment proceedings on the basis of specific information received from DI(Inv.) about the assessee receiving accommodation entries. In such circumstances, there can be no fetters on the power of the Assessing Officer to initiate re-assessment proceedings. - Decided partly in favour of Revenue.
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2014 (1) TMI 1628
Penalty u/s 271(1)(c) - Disallowance of bad debts - Held that:- voluntary disclosure does not release the assessee from the mischief of penal proceedings. The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he has to be absolved from penalty - assessee has not brought anything on record to establish that the wrong claim in the return of income is actuated by any bona fide act or arises out of debatable issue and therefore the decision of the hon'ble apex court in the case of CIT v. Reliance Petroproducts Pvt. Ltd. [2010 (3) TMI 80 - SUPREME COURT ] is not applicable in the case of the assessee - consequence would be that the persons who make claims of this nature would otherwise get away without paying the tax legally payable by them, if their cases are not picked up for scrutiny. In view of the aforementioned discussion, we are of the view that the assessee's case attracts the provision of section 271(1)(c) of the Act and we do not find any justifiable reason to interfere with the decision of the learned Commissioner of Income-tax (Appeals) confirming the penalty levied by the Assessing Officer - Order of CIT(A) upheld - Decided against assessee.
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2014 (1) TMI 1627
Penalty u/s 271(1)(c) - assessee company suo moto disallowed u/s 14A - Assessing Officer held that the assessee has tried to retrieve the situation but the claim does not appear to be bonafide - Held that:- assessee himself disallowed some amount of interest u/s 14A of the Act. Rule 8D was made applicable for the Assessment Year 2008-09. This was the first year of applicability of Rule 8D. The CIT (A) has deleted the addition relying on the decision of Hon'ble Delhi High Court in the case of CIT vs. Nalwa Sons Investments Ltd. – [2010 (8) TMI 40 - DELHI HIGH COURT] - no merits in the appeal of the revenue - Decided against Revenue.
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2014 (1) TMI 1626
Penalty u/s 271(1)(c) - Addition u/s 68 - Held that:- Addition made by the Assessing Officer for which penalty is imposed is the addition on account of two unsecured loans and the addition was made under section 68 of the Act. We also find that both the persons have given confirmation, which is available in the paper book. It is true that the unsecured loan, claimed to have been received by the assessee, was not accepted by the Revenue, but present proceedings are penalty proceedings and therefore, we have to see as to whether there is possibility of concealment or furnishing of inaccurate particulars of income or not. - assessee could not prove ingredients of section 68 in respect of these two loans but the explanation of the assessee could not be disproved also by the Revenue. Under these facts, we are of the considered opinion that although the addition is finalised but penalty is not justified because the assessee has submitted explanation regarding these cash credits and the same could not be established to be not bona fide and therefore, in our considered opinion, the penalty is not justified - Decided against Assessee.
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2014 (1) TMI 1625
Valuation of property u/s 50C - determination of capital gain on sale of land and building -CIT(A) has taken in to account circle rate which is ₹ 24,00,000/- and not the rate adopted by the parties at ₹ 64,10,000/- - Held that:- Section 50C is a deeming provision and ostensibly involve creation of an additional tax liability on the assessee and, therefore, notwithstanding the presence of the expression ‘may’ in section 50C(2)(a), the AO in this case ought to have referred the matter to the valuation officer for ascertaining the value of the capital asset in question. The order of the Commissioner (Appeals) was thus held to be set aside and the AO was directed to adopt the course mentioned in section 50C(2)(a) and thereafter proceed to determine capital gain on sale of land and building. Respectfully following this decision of K.K. Nag Ltd. vs. ACIT [2012 (6) TMI 184 - ITAT PUNE ] on an identical issue under almost similar facts, we while setting aside the orders of the authorities below on the issue direct the AO to adopt the course mentioned in section 50C(2)(a) and thereafter, proceed to determine capital gain on sale of the properties in question after affording opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes.
Penalty u/s 271(1)(C) - CIT(A) deleted the penalty - Held that:- Valuation of property for stamp duty purposes was rebuttable issue hence in order to prove concealment or furnishing of inaccurate particulars, AO had to establish that “on money” had changed hands or that substantial evidence / material was available to prove that the assessee had filed inaccurate particulars of income. It is an established proposition of law that before invocation of penal provisions laid down u/s 271(1)(c) of the Act, the AO had to establish beyond doubt that there was concealment of particulars of income or furnishing inaccurate particulars thereof on the part of the assessee while claiming the turned down relief resulting in the above addition on the basis of which penal proceedings have been initiated. Also because the addition on which penalty in question has been imposed has been set aside in the above appeal to the file of the AO for fresh consideration in view of the provisions laid down u/s 50C of the Act, the present penalty does not stand. - Decided against revenue.
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2014 (1) TMI 1624
Undisclosed income for block period - Held that:- A.O. made these additions on the basis of statement recorded u/s.132(4) of the IT Act of Shri Mahendra H Shah who admitted in his statement dated 09.12.1999 that he was in business of giving cheque to anyone against receiving cash after deducting his commission. He did not make any purchase of scrap from any ship breakers. He had given only loan entries or issued cheque after receiving cash, which has been retracted by Shri Mahendra H Shah before the DDIT, Bhavnagar within few days from the date of search. No material has been placed before them indicating that the concern managed by Shri Mahendra H Shah and his associates had issued cheque by way of loan to the tax payer in lieu of cash. The ld. A.O. made addition in suspicion without bringing any material on record to show that assessee had given cash and received back the cheque and had been channelized the unaccounted income through accommodation entry. The assessee had shown these loans in the regular books of account paid the interest on it and deducted TDS accordingly. Therefore, we do not hesitate to reverse the order of the CIT(A). - Decided in favour of assessee.
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2014 (1) TMI 1623
Levy of interest u/s 234B and 234C - minimum alternate tax under section 115JB - Held that:- No fault can be found with the assessee in not depositing the advance tax of minimum alternate tax in view of the decision of the hon'ble Supreme Court as well as various decisions of the hon'ble High Court. The assessee had the bona fide reason to believe that advance tax was not payable in respect of minimum alternate tax under section 115JB as it was a settled law laid down by the hon'ble Supreme Court and the hon'ble High Court which hold good till the subsequent decision of the hon'ble Supreme Court in the case of Joint CIT v. Rolta India Ltd. [2011 (1) TMI 5 - SUPREME COURT OF INDIA]. Therefore, prior to the decision of the hon'ble Supreme Court in the case of Joint CIT v. Rolta India Ltd. [2011 (1) TMI 5 - SUPREME COURT OF INDIA] settled proposition of the law on the point was that no advance tax was payable on minimum alternate tax computed under section 115JB and accordingly, the interest under sections 234B and 234C cannot be levied for non-deposit of advance tax on minimum alternate tax for the year under consideration. Hence, we delete the levy of interest under sections 234B and 234C in this case. - Decided in favour of assessee.
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2014 (1) TMI 1622
Disallowance of expenses section 14A read with rule 8D(2) - Exemption on income from dividend long-term capital gains on equity shares and equity oriented funds - Held that:- expenses incurred at Abu Road, where the manufacturing facilities of the assessee were located, were directly related to marble and granite manufacturing activities of the assessee. However no investment activities were carried out therefrom. As these expenses were not at all related to investment activities of the assessee, they are outside the purview of section 14A - salary of ₹ 1,50,000 paid to the accountant can be termed as indirectly related to exempted income. Other administrative expenses consisted of director's remuneration, paid to Shri Rakesh Agarwal and Shri Rajesh Agarwal who were looking after local sales of marble and granites. Therefore, salary paid to the directors were related to marble and granite manufacturing activities. Motor car expenses incurred by the assessee were directly related to marble and granite manufacturing activities. Out of the telephone expenses of ₹ 3,46,117, ₹ 20,051 related to telephone expenses of Shri Rajesh Agarwal, which could be termed as indirectly related to the exempted income. The assessee has also incurred expenditure on payment of rent relating to director's residence and godown for storing marble and granites. In the assessee's case, all the expenses debited to its profit and loss account have been analysed threadbare - we modify the orders of the lower authorities and direct the Assessing Officer to restrict disallowance under section 14A - Decided partly in favour of assessee.
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2014 (1) TMI 1621
Addition to income - unexplained refundable security deposit received by the assessee from his employees at the time of joining the employment and unexplained loans - Held that:- A perusal of the impugned order juxtaposed with the written submissions filed by the assessee shows that the grievance of the assessee is justified. In the written submissions, the assessee has specifically stated that the employees/persons from whom the earnest money was received, were not employed with the assessee at the time of the hearing before the A.O., as the assessee had closed its business during Assessment Year 2008-09 and the Assessing Officer had not given proper opportunity to the assessee for causing the appearance of these employees/persons. This aspect of the matter has not been gone into by the Ld. CIT (A). The assessee has also submitted that the amounts had been refunded to the employees/persons at the time of full and final settlement and the addition made by the Assessing Officer includes an opening balance of ₹ 4,20,000/- from friends and relatives of the assessee, which does not relate to the year under consideration. It was also stated that the assessee had no balance outstanding of the employees/persons, as all the amount had been refunded to them and no person was, at the relevant time, traceable, having left the employment of the assessee on the closure of its business during the year. This aspect also does not find mention, much less adjudication in the impugned order. The assessee has further stated that all the bills and vouchers and related records were made available before the Assessing Officer for verification purposes. Again, the Ld. CIT (A) makes no comment. Thus remit this matter to the file of the Assessing Officer for decision afresh in accordance with law, on affording due and adequate opportunity of hearing to the assessee - Decided in favour of assessee for statistical purposes
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2014 (1) TMI 1620
Condonation of delay - Held that:- It emerges that the law of limitation has been enacted which is based on public policy so as to prescribe time-limit for availing of legal remedy for redressal of the injury caused. The purpose behind enacting law of limitation is not to destroy the rights of the parties but to see that the uncertainty should not prevail for unlimited period. Under section 5 of the 1963 Act, the courts are empowered to condone the delay where a party approaching the court belatedly shows sufficient cause for not availing of the remedy within the prescribed period. The meaning to be assigned to the expression "sufficient cause" occurring in section 5 of the 1963 Act should be such so as to do substantial justice between the parties. The existence of sufficient cause depends upon facts of each case and no hard and fast rule can be applied in deciding such cases.
The assessee-appellant against the order of the assessing officer preferred an appeal before the Joint Excise and Taxation Commissioners (Appeals), Rohtak (hereinafter referred to as "JETC(A)") after the expiry of more than four years and seven months. It was urged that in view of decision of this court in Gheru Lal Bal Chand's case [2011 (9) TMI 492 - Punjab and Haryana High Court], the order of the assessing officer was sought to be challenged. We do not find any sufficient reason for filing the appeal belatedly before the JETC (A). The subsequent decision of the High Court cannot be a justified reason for filing the appeal belatedly. - Condonation denied.
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2014 (1) TMI 1619
Whether user of diesel purchased by the assessee against form C for cane procurement, i.e., from sugarcane purchasing centre to factory would amount to violation of purpose for which the said diesel was purchased so as to amount violation of section 10(d), attracting penalty under section 10A of the Act, 1956 - Held that:- Sugarcane in its entirety cannot be purchased by sugar factory at its factory premises and under law, it is bound to purchase from the farmers at cane purchase centres. For manufacturing of sugar, crushing of surgarcane is an integral part and for that purpose, sugarcane has to be transported from its place of storage or where it has been purchased to the point of crushing pit where it has to be off-loaded for crushing. To my mind, this is integrally connected part of process of manufacturing of sugar and therefore diesel purchased against form C if used for cane procurement from centres to factory, it would not amount to violation of purpose for which the said diesel was purchased.
Whether user of diesel purchased by the assessee against form C for farm equipments' maintenance and repair would amount to violation of purpose for which the said diesel was purchased so as to amount violation of section 10(d), attracting penalty under section 10A of the Act, 1956 - Held that:- Farm equipments' maintenance and repair are also part of activities with respect to research and development so as to maintain a good quality of sugar and also to find out maximum quantity of sugar from per quintal sugarcane. Research, development, etc., is also integral part of manufacture - Decided in favour of assessee.
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2014 (1) TMI 1618
Whether the revisional power was properly conferred on the DETC or not - Held that:- Under sub section (2) of Section 34, the State Government is empowered to delegate power of revisional jurisdiction on an authority below the Excise and Taxation Commissioner but the officer should not be below the rank of DETC. The appointed date under the Act is 1.4.2003 when it came into operation unless different date is declared by notification in the Official Gazette by the State Government. The question whether the notification issued prior thereto under the provisions of the Act could confer valid jurisdiction on an officer to exercise revisional power or was there any other notification, would require to be adjudicated by hearing the parties after perusing the relevant material. Though this issue was not agitated before the Tribunal, but in view of provisions of Sections 36 (6) and 36(9) of the Act, it can be agitated in this Court as it goes to the root of the case and particularly relating to assumption of jurisdiction by the revisional authority. - Accordingly, in the facts and circumstances of the case, it would be appropriate to set aside the order passed by the Tribunal and refer the matter back to it to adjudicate the same after hearing counsel for the parties in respect of the issues raised in accordance with law - Decided in favour of assessee.
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2014 (1) TMI 1617
Whether this contract by which the petitioners had agreed to transport the goods amounts to sale within the meaning of the TVAT Act or not - Held that:- Transfer of goods is totally different from transportation of goods. It appears that the revenue in the State of Tripura is under the mistaken belief that the word "transfer" in the Act includes transportation of goods. There is no transfer in the property of goods when a person transports those goods on behalf of the consigner or the consignee - phrase "transfer of property in goods" has been expanded in the context of works contract to include those goods which are used in the execution of the works contract. This expansion of the definition can however not bring within its ambit the mere transportation of goods. When a person transports goods on behalf of the consigner or the consignee there is no transfer in the property of goods either directly or by inference. A contract to transport goods from one place to another is not a works contract. The amount which a transporter receives may be included in the sale value for calculating the taxable turnover but by no stretch of imagination can the transporter be held liable to pay tax. We are, therefore, clearly of the view that the deduction of tax on the amount paid to the transporters/petitioners is illegal and is liable to be quashed and the same is accordingly quashed. The tax which has been deducted shall be refunded to the petitioners along with statutory interest within 3 (three) months from today failing which the State shall be liable to pay interest at 12 per cent. per annum. In case there are any taxes due from any of the petitioners the State shall be at liberty to adjust the refundable amount against the taxes due from the petitioners to the State. - Petition disposed of.
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2014 (1) TMI 1616
Suppression of purchase turnover - Claim of ITC - Held that:- The order was passed by the first appellate authority on 21.5.2010 against which the appeal had been filed before the Tribunal who decided the same on 24.9.2010. No satisfactory explanation has been furnished for filing this writ petition belatedly after the expiry of about three years. Further, the liability was fastened on the petitioner on account of suppressed purchase turn over detected at 76,36,401/- and after adding the profit element thereon, taxable turnover was determined at 83,08,404/-, on the basis of which the tax and penalty was determined and liability of 36,12,078/- was created. The Assessing Officer had noticed in his order that the counsel for the assessee had not sought to contest the case on merits but had only prayed for lenient view in penal action. - Decided against assessee.
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2014 (1) TMI 1615
Penalty under section 78(5) of the Rajasthan Sales Tax Act - Form 18A declaration was accompanying the goods in transit even though blank and there was thus no intention to avoid/evade the tax - Held that:- From the facts on record it is apparent that the goods in transit albeit accompanied, inter alia, by a declaration form ST 18A was not compliance in law as the declaration form ST 18A was absolutely blank. The issues of goods in transit with blank/incomplete declaration form ST 18A/18C has been considered by the honourable Supreme Court in the case of Guljag Industries v. Commercial Taxes Officer [2007 (8) TMI 344 - SUPREME Court] wherein it has been held that incomplete forms do not entail compliance with the mandate of section 78(2) of the RST Act and would validly entail a penalty under section 78(5) of the RST Act. The issue in the present petition being covered by the judgment of the honourable Supreme in the case of Guljag Industries v. Commercial Taxes Officer [2007 (8) TMI 344 - SUPREME Court], this petition is without any force - Decided against assessee.
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2014 (1) TMI 1614
Reduction of penalty imposed by the assessing officer - Held that:- while exercising power of imposing and, thereupon, to quantify penalty, the Assessing Officer gave reasons to support exercise of power, but did not utter a single word, why it was imposing the highest penalty awardable under the law. it was obligatory on the part of the Assessing Officer to state the reasons, why he is exercising his discretion of imposing highest penalty permissible. He did not utter a single word in support thereof. First Appellate Authority refused to interfere and the Tribunal reduced the quantum of the penalty. - Decided against Revenue.
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2014 (1) TMI 1613
Provisional assessment under Section 25 (1) of UP Value Added Tax Act, 2008 - Held that:- The provisions of Section 25 (1) (iii) authorise the assessing officer to make provisional assessment on the basis of material available on record with him. Whenever it appears to the assessing authority that the turnover of sale or purchase or both disclosed by the dealer is not worthy of credit, he can make provisional assessment after giving notice to the assessee of such proposed assessment - The petitioner has filed the returns. The assessing officer has not referred to any material in the notice. He has however stated in the last sentence of the second paragraph of the notice that the petitioner has constructed flats and has sold them which amount to deemed sale, on which he has not accepted the liability of payment of tax and has given a show cause notice to the petitioner to appear before him to give a reply.
The assessing authority has not yet exercised jurisdiction to make a provisional assessment under Section 25 (1) of the Act. He has given the notice inviting objection on assumption of facts on which he may exercise his authority. If the petitioner satisfies the assessing authority that he has not sold any flats during the relevant period, the assessing authority may not make any assessment. His satisfaction will depend on the reply to be given by the petitioner. At this stage it cannot be said that there are no jurisdictional fact existing on which the power to make provisional assessment has been initiated - Decided against assessee.
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2014 (1) TMI 1612
Maintainability of appeal - Whether against the impugned judgment and order passed by the learned Appellate Tribunal in revision application, in exercise of powers under section 75 of the Act, present appeal before this Court under section 78 of the Act would be maintainable or not - Held that:- considering Section 75(1)(b) of the Act against the order passed by the Commissioner passed in exercise of suo motu revisional powers only revision application before the learned Appellate Tribunal was maintainable and therefore, as such the learned Appellate Tribunal rightly entertained the revision applications and has rightly passed the impugned judgment and order in exercise of the revisional jurisdiction. That being so considering Section 78(1) of the Act and as the impugned order passed by the learned Appellate Tribunal is passed in revision applications shall not in appeal and therefore, Tax Appeal before this Court under Section 78(1) of the Act would not be maintainable. Considering Section 78(1) of the Act an appeal shall lie to the High Court from every order passed in Appeal by the Tribunal. In view of the above, it is held that the present appeals preferred under Section 78(1) of the Act would not be maintainable - Decided against Revenue.
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2014 (1) TMI 1611
Sale of Reserve Bank of India (RBI) Bonds issued by the RBI - Receipt of brokerage - Held that:- As per notification dated 13/03/2003 issued by the Government, the tax savings bonds have been issued as part of the borrowing programme of the Government from the public. As per the clarification issued by the RBI vide letter dated 28/10/2004, copy of which is available on record, the said bonds issued under Section 2 (2) of Public Debt Act, 1944, constitute a Government security and the bonds were issued by the Government for raising a public loan. Therefore, there is no doubt that the tax savings bonds issued by the RBI and sold by the appellant bank is a Government Security. For this transaction in Government securities, the appellant bank has received a brokerage for sale of the security. From the Circular dated 10/08/2010 issued by the CBE&C, it is clear that there is no service tax liability on underwriting fee or underwriting commission received by the primary dealers for dealing in Government securities; the same logic would apply in respect of brokerage also - sale of RBI bonds would amount to statutory/sovereign function and cannot be subjected to any tax liability - Following decision of Canara Bank Vs. CST, Bangalore [2012 (6) TMI 274 - CESTAT, AHMEDABAD] - Decided in favour of assessee.
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2014 (1) TMI 1610
Penalty u/s 76 - Delay in payment of service tax - Suppression of facts - Held that:- it is difficult to know on what basis the penalty amount of Rs.4 ,58,772 /- has been arrived at. Copy of the worksheet said to have been attached to the show-cause notice has not been submitted by the appellant at all and unfortunately during the course of hearing also the worksheet was not available - during the course of audit of the accounts of the assessee and reconciliation of ST-3 returns with P & L Accounts, it was noticed that appellant has received an amount of Rs.10 ,66,938 /- from M/s. Bharati Airtel during the year 2006-07 on which service tax was not paid - If service tax was collected from M/s. Bharati Airtel and it was not shown in the ST-3 returns and it was found out on going through the P & L accounts of the assessee and comparing the same with ST returns, in my opinion, it would amount to suppression of facts and violation of provisions of law.
However, there were no clear observations on these aspects - Therefore, it is extremely difficult to come to the right conclusion since the facts are not clear, the legal position is not clear. Therefore the impugned order is set aside and the matter is remanded to the original authority.
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