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Showing 381 to 400 of 1266 Records

• 2012 (10) TMI 896
  

  Expenditure on account of foreign visits - held that:- . We also fail to understand on what basis the Commissioner of Income Tax (Appeals) has allowed 50% we think it was completely guess work and it appears as if just because the Commissioner of Income Tax (Appeals) thinks that the aforesaid expenditure of disallowance should be granted and it was granted.

  Disallowance of depreciation - lease hold property – Held that:- There was no document to show whether it was a leasehold interest or otherwise - assessee is not the owner and the lessee - assessee is entitled to depreciation only on that portion of capital expenditure on construction of any structure brought about by the assessee and uses for the parties on business as it is clearly written under Explanation I to Section 32(1) - Since no agreement has been produced to substantiate that the assessee holds lease for more than 12 years therefore, the claim made by the assessee is not sustainable

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• 2012 (10) TMI 895
  

  Denial of registration u/s.12A of the Act – alleged that the objects of the Assessee are not for the benefit of general public but for specific members – Held that:- Primary purpose for which the assessee was established was to promote commerce and trade in art silk, silk yarn - promotion of commerce and trade in art silk, etc., was an object of public utility not involving the carrying on of any activity for profit within the meaning of s. 2(15) of the Act

  Holding of conferences abroad would not make the activities of the Assessee being carried out outside India. The benefits of such conference will ultimate go to Assessee and its members. It cannot be said that the activities of the Assessee were carried on outside India - none of the reasons assigned by the DIT for rejecting the claim for registration can be sustained - appeal of the Assessee is allowed

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• 2012 (10) TMI 894
  

  Survey u/s 133A - Addition on account of books of account of the assessee were found incomplete - appellant submitted that though the cash in hand was found to be Rs.30,40,000/- whereas unaccounted cash was to the tune of Rs.3,23,999/- only – Held that:- during the course of survey, the assessee was not able to offer any plausible explanation for the sum of Rs.30,40,000/- which was surrendered by the assessee. Further, during the course of survey, it was found that certain sale invoices were either not recorded in the books of account or were under invoiced. The assessee had also admitted certain notings in the diary and note books to be on account of sales which were unaccounted. In the light of the aforesaid findings, the contention of the assessee that the amount of Rs. 27,16,001/- could not be included as unaccounted cash and it was Rs.3,23,999/- only does not carry any weight and the plea of the assessee has rightly been dispelled by the authorities below. – against assessee

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• 2012 (10) TMI 893
  

  Search and seizure operation u/s 132(1) – Rejection of books – gross profit rate – alleged that assessee has shown low gross profit – Held that:- Assessing Officer applied gross profit rate at 30% on the turnover resulting into addition as has been mentioned in the assessment order - books of accounts of the assessee were also not found reliable and the same were rightly rejected u/s 145(3) of the Act - it appropriate to apply the gross profit rate at 10% - appeals of the assessee are allowed in part

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• 2012 (10) TMI 892
  

  Revenue or capital - expenditure incurred on installation of laser upgradation kit – AO observed that in respect of the claim of assessee that it is only current repairs, it is held that as there was no replacement to any existing spare parts, therefore, it cannot be claimed as current repairs and disallowed the claim of the expenditure of assessee. - Held that:- Expenditure incurred by the assessee by purchasing of upgradation kit was to carry out precision eye surgery by using advanced technology, which was the need of the time in the line of the business of the assessee - revenue in nature - decided in favor of assessee.

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• 2012 (10) TMI 891
  

  Calculation of deduction under Section 80HHC of Income-tax Act - A.O. while calculating deduction under Section 80HHC of the Act, had excluded 90% of the job receipts from the eligible profits relying on Explanation (baa) - As per the assessee, expenses incurred for the purpose of earning such receipts should be deducted and only 90% of the balance ought to be excluded for the purpose of calculation of deduction under Section 80HHC of the Act – Held that:- Expenses incurred by the assessee for earning income of the type mentioned in Explanation (baa) to Section 80HHC of the Act, had to be set off and 90% of the balance alone could be considered for exclusion, while working out the deduction under Section 80HHC of the Act - issue requires re-working and a re-look by the A.O – matter remanded to the A.O.

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• 2012 (10) TMI 890
  

  Disallowance u/s. 14A read with Rule 8D of the Act – alleged that borrowed funds utilized for investment in shares -contention of the assessee is that in the earlier Assessment Year 2006-07 where no dividend income was received by the assessee, no disallowance of expenditure can be made u/s. 14A of the Act - Held that:- Even in a year where no exempt income was earned or received by the assessee, disallowance u/s. 14A can be made – in favor of revenue

  Arm's length price - assessee has entered into international transaction with its associated enterprises, India Telecom Holdings Ltd., Mauritius by way of granting a loan – Held that:- it LIBOR rate which has to be considered while determining the arm's length interest rate in respect of the transaction between the assessee and the Associate Enterprises. As it is noticed that the average of the LIBOR rate for 1.4.05 to 31.3.06 is 4.42% and the assessee has charged interest at 6% which is higher than the LIBOR rate, we are of the view that no addition on this count is liable to be made in the hands of the assessee. In the circumstances, the addition as made by the Assessing Officer on this count is deleted

  Disallowance of TDS credit – Held that:- DRP has observed that in the submissions assessee has not given any basis for TDS claim made by it - TDS credit was not given for defective certificates - DRP directed the Assessing Officer to consider the claim as per law with respect to the claim of TDS – matter remanded to AO

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• 2012 (10) TMI 889
  

  Denial of accumulation under section 11(2) of the Act – assessee Society is running educational institute - alleged that assessee did not specify the purpose of accumulation in Form 10B - Held that:- Assessee has accumulated income for the specific purpose and for which the funds have been used accordingly in subsequent years - assessee has applied the accumulation of funds as specified which were in accordance with the object of the trust – disallowance set aside – in favor of assessee

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• 2012 (10) TMI 888
  

  Rejection of books of accounts - Disallowance u/s 40(a)(ia) for non deduction of TDS – on account of material purchases made from M/s Radhey Shyam Gupta India (P) Ltd. (RSGIPL) - Held that:- The work has been by converting into self execution work by an act of splitting of work into a transaction of purchase and sale. The provisions of law cannot be interpreted in such a manner to convert a possible task into impossible task by such interpretation. Once the books are held to be camouflaged and not representing the assessee's proper income, in that case the proper course is to reject the books of a/c and estimate the income. The action of the lower authorities has resulted into an impossible situation i.e. holding the entire road contract receipts as the income of the assessee.

  It will be arbitrary and unjust to hold assessee's entire receipts as income. Since the books of accounts are not reliable, they deserve to be rejected and in that case a reasonable estimate of income has to be made.

  In our view, ends of justice will be met if a fair and reasonable estimate is made in place of technicalities of applicability of sec. 40(a)(ia); the debate about words 'paid and payable' and the debate about revenue having not proceeded against the assessee u/s 201(1). To put rest to these technical debates, it will be in the interest of justice to make a reasonable estimate of assessee's income, when its work execution has not been questioned. - Income estimated at 6% i.e. 8% minus 2% for subletting. - Decided partly in favor of assessee.

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• 2012 (10) TMI 887
  

  Failure to collect tax at source (TCS) u/s 206C - Proper notice - wrong mention of provision in the notice – Held that:- Details were called for from the assessee, but the assessee instead of giving complete details filed an evasive reply and adopted delaying tactics - In both the letters/notices referred to by the ld. counsel for the assessee, the AO proposed to take action against the assessee u/s. 206 C of the Act for not collecting the taxes as per the above provisions for the purpose of granting parking lots to various contractors - assessee attended the proceedings before the AO and was aware of the proceedings u/s. 206C being taken against him. Therefore, quoting wrong provision in the notice would be of no consequences and such contentions of the ld. counsel for the assessee have no merits and are liable to be rejected.

  Whether the assessee is liable for failure to collect tax at source – Held that:- Since the assessee failed to collect the taxes as per law, therefore, the assessee would be responsible to pay tax as per law along with interest - appeals of the assessee are dismissed

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• 2012 (10) TMI 886
  

  Royalty payment – revenue or capital – lump sum payment - Held that:- assessee has acquired only a licence to use the brand name and trademarks of the foreign collaborator. A mere lience to use the other party's patent and knowledge have been considered as permissible revenue expenditure by the Apex Court in the I.A.E.C (Pumps) case [232 ITR 316]. However, at the same time, a portion of such expenses would also be in the nature of a capital expenditure to the extent that such expenses were to protect the advantage of using the foreign collaborator's brand name and trademarks. - 25% held as capital in nature and 75% held as revenue in nature.

  Disallowance u/s 14A read with Rule 8D - held that: - Assessing Officer directed to not to apply Rule 8D in the present case since the assessment year under appeal is 2005-06 and Rule 8D is applicable only from the assessment year 2008-09 – matter remanded

  Deduction under section 43B in respect of employees contribution to Provident Fund - Held that:- Omission of second proviso to section 43B of the Income Tax Act, 1961 by the Finance Act, 2003 operated retrospectively from 01.04.1988 and not prospectively from 01.04.2004 - Assessing Officer directed to verify as to whether this contribution paid by the assessee before the due date for filing of return - If the payments were made before the due date for filing of return, such contributions are to be allowed as deduction - issue is allowed for statistical purpose

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• 2012 (10) TMI 884
  

  Transfer pricing – ALP – computation - TNMM method - selection of comparable - Held that:- there is no dispute that the transaction between the Assessee and its group companies in Germany whereby the Assessee provided services in the form of contract testing and research services was an international transaction attracting the provisions of Sec.92 of the Act

  Comparables chosen by the assessee on the basis of the contemporaneous data for A.Y 2006-07 gives an arithmetic mean of 18.97% which we have already mentioned. This is the highest arithmetic mean of the comparable chosen by the assessee - TPO has not given any reason whatsoever for rejecting these comparables - if TPO does not reject a comparable on the ground of functional incomparability then neither the AO or the revenue can take a plea of functional incomparability of the comparables chosen by the assessee in its TP Study - assessee's operative margin has to be held as within the range of 5% of the arithmetic mean of 18.97% of comparable companies and the same has to be accepted as ALP - addition made by the AO and confirmed by the DRP is directed to be deleted - the reasons given by the TPO does not anywhere mentioned as to how the comparables selected by the assessee were not functionally comparable. - decided in favor of assessee.

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• 2012 (10) TMI 883
  

  Rejection of revision application u/s 264 - Notice - Penal interest under Sections 215 and 139(8) of the Act - On completion of the assessment of M/s K. and Company where the petitioner's share was determined assessee moved an application dated 16.7.1988 to respondent No.2 for passing the rectification order under Sections 154/155 of the Act – Held that:- Rectification order has been passed on an application of the assessee. He cannot complain against the order by reason only of the fact that there was no notice to him for levying the interest - assessee had himself filed the application and interest under Sections 215 and 139(8) of the Act for default in paying advance tax is mandatory and is imposable where the assessee is liable to pay advance tax - no separate notice under sub-section (3) of Section 154 of the Act was, thus, required to be issued and no benefit can be derived by him on that count. To conclude, the assessee could not escape from the liability to pay interest and no fault could be noticed in the order of the Commissioner rejecting the petition of the assessee filed under Section 264 of the Act - petition dismissed

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• 2012 (10) TMI 882
  

  Disallowance u/s 14A – new issue in remand proceedings - held that:- there is no dispute that the issue raised by the ld. CIT(A) for disallowing the claim of exemption u/s 10 is a new issue which neither emanates from the assessment order nor from the order of the Tribunal, therefore, the ld. CIT(A) has not only crossed his jurisdiction but has also passed the order against the provisions of section 251 of the Act as he cannot go beyond the direction of the Tribunal to find out a new issue i.e. new source of income which had not been considered by the AO at all. - CIT(A) was not justified in enhancing the income by discovering a new source of income not considered by the AO. - Decided in favor of assessee.

  Section 14A versus Section 44 - overriding effect - Insurance business - Held that:- Sec. 44 creates a specific exception to the applicability of ss. 28 to 43B. Therefore, the purpose, object and purview of s. 14A has no applicability to the profits and gains of an insurance business. - in favour of the assessee

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• 2012 (10) TMI 881
  

  Review petition as Union of India was not duly served with the notice of the proceedings in any of the petition for special leave to appeal which were subsequently converted into civil appeals - Held that:- Union of India was not given an opportunity to represent its case due to mistake on the part of the Registry. Applying the well settled principles governing a review petition and giving anxious and careful consideration to the facts and circumstances of this case the review petition filed by the Union of India should be admitted - review petitions filed by JSW Steel Ltd, M/s Kalyani Steels Ltd, M/s Kalyani Steel Mills Ltd. and the State of Karnataka are concerned, no order has been passed until the review petition of the Union of India is heard.

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• 2012 (10) TMI 880
  

  Writ petition for payment of dues in installments and remission/waiver of interest - Held that:- Amount of Rs.5,169/- crores towards principal amount of the dues be paid by the appellant with interest at the rate of 10% p.a. effective from 17th January, 2012 (the date of the judgment of this Court) in eight equal quarterly installments, the first of such quarterly installment being payable on 2nd January, 2013, and the remaining installments being payable every quarter on the 2nd day of the concerned month (i.e. after expiry of the quarter or three months) and interest of 10% p.a. would be calculated on the reducing balance remaining payable by the appellants to the State Government - appeal is allowed with no order as to costs.

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• 2012 (10) TMI 879
  

  CENVAT Credit of Service Tax - canteen services - Held that:- As decided in CCE, Nagpur Versus Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] CENVAT Credit would be admissible to the full extent only if the full expenditure of canteen services is borne by the assessee. If any amount has been recovered for providing the food/canteen facilities from the employees, CENVAT Credit of Service Tax paid proportionate to the amount will have to be deducted for availment of credit.

  Remit the matter for the limited purpose of verification as to whether the canteen services were provided free of cost or any amount was recovered - in favour of assessee as directed.

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• 2012 (10) TMI 878
  

  Input service - input services used for obtaining export incentives - Professional and Liaison fees – Held that:- Obtaining export incentives is directly relatable to manufacture. Manufacturer while manufacturing goods for export and for working out the cost takes into account the export incentives - service tax incurred in respect of services for obtaining export incentives can be definitely related to manufacturing activity - respondent is eligible for cenvat credit - in favor of assessee.

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• 2012 (10) TMI 877
  

  Demand and penalty - Whether non-obtaining of Registration by the respondent amounts to suppression – limitation - Outdoor catering services - respondents contested the notice on merits as also on limitation - Commissioner (Appeals) held in favour of the respondents on the ground that for the period June, 2005 to March, 2006, benefit of Notification No. 21/04, dtd. 10.09.04 is available to the respondents – Held that:- Difference of opinion between members regarding following issues - Whether the Revenue's appeal is required to be allowed in respect of service tax only and part of the order vide which penalty stand set aside by Commissioner(Appeals) is required to be upheld - referred to third member.

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• 2012 (10) TMI 876
  

  Scheme of Amalgamation - Held that:- In view of the written consent / NOC given, the requirement of convening meetings of Shareholders of the Applicant Company / Transferor Company no. 1 is dispensed with.

  Separate meeting of Un-Secured Creditors of the Applicant Company / Transferor Company no. 1 is proposed to be held under the supervision of this court on 22.12.2012 ( Saturday ) at 10.30 a.m. at D-26, Medico House, Janakpuri Institutional Area, Janakpuri New Delhi - 110058 - appointment of Chairperson & Alternate Chairperson for the meeting has been done - Transferor Company no. 1 is also directed to publish advance notice of the aforesaid proposed meeting in ‘Business Standards’ ( English, Delhi Edition ) and ‘Jansatta’ (Hindi, Delhi Edition ) minimum 21 days in advance before the scheduled date of meeting & Individual notices sent by ordinary post minimum 21 days in advance - if the quorum is not present the meeting would be adjourned for 30 minutes and the persons present in the meeting would be treated as proper quorum with Voting and proxy permitted - Chairman/Alternate Chairman shall file their reports within 2 weeks of the conclusion of the meeting.

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