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Showing 401 to 420 of 1442 Records
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2014 (2) TMI 1043
Valuation - construction service - inclusion of free supplies - Held that:- free supplies made by the Customers to the construction service provider would not get added in the gross amount charged for providing construction services. - Following the decision in the case of Bhayana Builders Pvt. Ltd. vs. CST, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI] decided in favor of assessee.
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2014 (2) TMI 1042
Levy of penalty for delayed payment of service tax - works contact service - Held that:- in view of the on going contract which was entered into prior to 10.09.2004 and the levy of tax being a new levy from 10.09.2004 and the appellant was under the bona fide belief that they do not fall under the Service Tax liability and keeping in mind the conduct of the appellant that he has discharged the Service Tax alongwith interest soon after being pointed out, it is a fit case for setting aside the penalty under Section 78
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2014 (2) TMI 1041
Stay application - Demand of service tax - Intellectual property service - Transfer of licence for production of certain aircrafts and equipments and transfer of technology - Held that:- confirmation of demand under IPR category is justified. Similarly, the appellant has not disputed that the engineers of foreign parties came to their premises for giving advice and consultancy for the manufacture of aircrafts. As such, we prima facie agree with the Adjudicating Authority that the demand on the said count is also sustainable - demands stand raised by invoking the longer period of limitation. The Adjudicating Authority has himself extended the benefit of Section 80 in respect of penalties to be imposed on the appellant in terms of various Sections. If that be so, there cannot be any malafide or suppression on the part of the appellant so as to invoke the longer period of limitation - Conditional stay granted.
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2014 (2) TMI 1040
Rectification of mistake - Change in cause title - Held that:- Registry is directed to correct the cause title insofar as the words written ‘Commissioner of Central Excise, Chennai IV Commissionerate’ would be substituted by ‘Commissioner of Service Tax, Chennai’. The assessee is also directed to mention the correct cause title in further proceedings - Rectification made.
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2014 (2) TMI 1039
Demand of service taxes - Benefit of Notification No.24/2004 - Denial of benefit in respect of computer training service - Held that:- Following decision of C.C.E. vs. Sunwin Technosolution P. Ltd. [2010 (9) TMI 71 - SUPREME COURT OF INDIA] - Conditional stay granted.
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2014 (2) TMI 1038
Stay application - Commercial coaching and training service - Recovery of Credit - Imposition of interest and penalty - Held that:- use catering service, photography service, service of repair and maintenance of the motor vehicles and renting of halls and travelling expenses is not disputed. I am of prima facie view that all these services have nexus with the appellant’s activity of providing commercial coaching and training and, as such, the same appear to be covered by the definition of input service as given in Rule 2 (l) of the Cenvat Credit Rules. In view of this, the requirement of pre-deposit of Cenvat credit demand, interest and penalty is waived for hearing of the appeal and the recovery thereof is stayed till the disposal of the appeal - Stay granted.
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2014 (2) TMI 1037
Power to grant stay u/s 254(2A) of the Act – Stay to be granted beyond 365 days – Held that:- The legislative mandate has to be respected and the courts do not legislate but interpret the statute as a legislative edict - The third proviso after amendment, undoubtedly bars and prohibits the tribunal from extending interim stay order beyond 365 days - It stipulates deemed vacation and imposes no fault consequences in strict terms - The language is clear and therefore has to be respected - However, the provision does not bar or prohibit an assessee from approaching the High Court by way of writ petition for continuation, extension or grant of stay.
The High Court in appropriate matters can grant or extend stay even when the tribunal has not been able to dispose of an appeal within 365 days from the date of grant of initial stay - This perhaps appears to be and apparently is the intention of the Parliament - Relying upon Jethmal Faujimal Soni vs. Income Tax Appellate Tribunal [2010 (4) TMI 747 - Bombay High Court ] - Grant of stay by the tribunal is not a matter of right, but is decided by a speaking order, recording prima facie view on merits - In case there is an error or the tribunal has erred in granting stay, Revenue is not without remedy and can approach the High Court in accordance with law – the Revenue is the appellant before the High Court in disproportionately large percentage of cases, being aggrieved by the finding/adjudication by the tribunal on the question of law and fact - Appeals are preferred by the Revenue mostly in cases where the tax demand is ₹ 10 lakhs or above - The figures/data does indicate that in substantial number of matters, Revenue may not have succeeded before the tribunal in sustaining the tax demand.
In view of the third proviso to Section 254(2A) of the Act substituted by Finance Act, 2008 with effect from 1st October, 2008, tribunal cannot extend stay beyond the period of 365 days from the date of first order of stay - In case default and delay is due to lapse on the part of the Revenue, the tribunal is at liberty to conclude hearing and decide the appeal, if there is likelihood that the third proviso to Section 254 (2A) would come into operation.
Third proviso to Section 254 (2A) does not bar or prohibit the Revenue or departmental representative from making a statement that they would not take coercive steps to recover the impugned demand and on such statement being made, it will be open to the tribunal to adjourn the matter at the request of the Revenue - An assessee can file a writ petition in the High Court pleading and asking for stay and the High Court has power and jurisdiction to grant stay and issue directions to the tribunal as may be required - Section 254(2A) does not prohibit/bar the High Court from issuing appropriate directions, including granting stay of recovery.
Determination of Arm’s length price – Held that:- Determination of arm’s length pricing on international transactions and the tax amount involved which includes interest under Section 234B of the Act - By the order dated 4th January, 2013, stay was extended by 180 days or till the disposal of the appeal, whichever occurs first.
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2014 (2) TMI 1036
Recall of order – Opportunity of being heard – Held that:- Assessee contended that the his version could not be put forth with - Order 41 Rule 21 of the Code of Civil Procedure provides that where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal - if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him - the Court has power to exercise the inherent power - The cause shown by the applicant is satisfactory and as such, to secure the ends of justice, it would be apt to recall the judgment and order dated dated 27.8.2013 – thus, all the applications are allowed with a cost - The judgment and order dated 27.8.2013 passed in the aforesaid appeals is recalled subject to payment of the cost – Decided in favour of Assessee.
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2014 (2) TMI 1035
Validity of direction for special audit of accounts u/s 142(2A) of the Act – Transfer pricing adjustments - Held that:- There is no merit in the petition of the assessee - in the petitioner’s letter dated 31.10.2011, addressed to the respondent in response to various notices issued by the latter and with reference to the subsequent discussions held in the course of the hearing which took place on 19.10.2011, the petitioner has submitted an elaborate reply in paragraph 9 of the letter under the caption “show cause as to why special audit under Section 142(2A) of the Act should not be conducted in the instant case” - The paragraph clearly refers to the request made by the respondent on 19.10.2011 to the petitioner to show cause as to why special audit should not be conducted because of the nature and complexity in the financial statements.
The inclusion of the last mile charges in the profit and loss account as a debit, when the capitalised infrastructure cost is eligible also to depreciation, may amount to double deduction - The approval was accorded by the CIT on 23.12.2011 - It cannot be said that the CIT did not apply his mind to the proposal for special audit - The assessing officer referred the matter to the Transfer Pricing Officer under Section 92CA of the Act on which the latter did make an addition on account of transactions with the petitioner’s associated enterprises and it was at that stage the assessing officer made a reference to special audit; the suggestion was that the exercise was uncalled for since the direction of the TPO was binding on the AO in any case - the AO is empowered to refer the accounts to the special auditor “at any stage of the proceedings” S.142(2A) - there is no bar, and there is nothing in the sub-section which makes its provisions subject to the powers of the TPO - The reference to special audit cannot be held to be contrary to law on that score – Decided against Assessee.
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2014 (2) TMI 1034
Nature of Income – sale of land - Business income OR Capital gain – Held that:- CIT(A) held that the activity of business has not been established conclusively - The conduct of the appellant in the previous years, their actions as apparent from the balance sheet of the previous years and their source of income in the previous years, all point to the fact that there was no business activity and the land was sold during the year on which income had been derived could not be considered to be a business activity – thus, the sale of land be treated as capital gain and not business income – Tribunal upheld the decision of CIT(A) - Whether the income arose out of any business activity or out of capital gain is essentially a question of fact or a mixed questions of law and fact - Both the CIT (Appeals) and the learned Tribunal agreed as regards the fact that the income arose out of capital gain - revenue could not point out any infirmity in the view taken by the CIT (Appeals) and the Tribunal – there is no question of law arises in the appeal to be entertained – Decided against Revenue.
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2014 (2) TMI 1033
Power of Commissioner u/s 263 of the Act – Held that:- The decision in MALABAR INDUSTRIAL CO. LIMITED v/s COMMISSIONER OF INCOME TAX [2000 (2) TMI 10 - SUPREME Court] followed – commissioner cannot exercise the power of revision solely on the ground that the order passed is erroneous - He gets jurisdiction only if such erroneous order is prejudicial to the interest of the Revenue - for attracting Section 263, the condition precedent has to be abide - if one of the requirements for satisfaction of taking action under Section 263 of the Act is absent, then recourse cannot be made to Section 263 of the Act - The Commissioner cannot invoke his revisional power to correct each and every type of mistakes committed by the Assessing Officer – Decided against Revenue.
Interpretation of section 13(1)(d) of the Act - Whether the Tribunal is correct in holding that when a part of income is held to be violative of the provisions of Section 13(1)(d) only to the said extent maximum marginal rate of tax is to be levied and not for the whole income more particularly when there is violation of provisions of Section 11(5) of the Act – Held that:- It is only the income from such investment or deposit which has been made in violation of Section 11(5) of the Act that is liable to be taxed and that violation under Section 13(1)(d) does not tantamount to denial of exemption under Section 11 on the total income of the assessee – the decision in Director Of Income-Tax (Exemptions) Versus Sheth Mafatlal Gagalbhai Foundation Trust [2000 (10) TMI 26 - BOMBAY High Court] followed - in case of contravention of Section 13(1)(d), maximum marginal rate of tax under Section 164(2), proviso is applicable only to that part of income of the Trust which has forfeited exemption and not the entire income – thus, the entire income of the respondent-Trust cannot be assessed for the tax – Decided against Revenue.
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2014 (2) TMI 1032
Retrospective effect of Section 14A and Rule 8D of the Act - Disallowance of Expenses - Whether the Tribunal was justified in holding that the provisions of sub-sections (2) and (3) inserted in Section 14A of the Income Tax Act, 1961 with effect from April 1, 2007 and rule 8D inserted in the Income Tax Rules, 1962 on March 24, 2008 were procedural and retrospective and were applicable for the assessment years 2001-02, 2004-05 and 2005-06 – Held that:- Assessee contended that Rule 8D cannot, by any stretch of imagination, be said to be retrospective in nature – Relying upon Godrej and Boyce Mfg. Co. Ltd. Vs. Deputy Commissioner of Income Tax and Anr. [2010 (8) TMI 77 - BOMBAY HIGH COURT] - The provisions of rule 8D of the Income Tax Rules which have been notified with effect from March 24, 2008, shall apply with effect from the assessment year 2008-09 – the Assessing Officer is duty bound to determine the expenditure which has been incurred in relation to income which does not form part of the total income under the Act - the department must be deemed to have accepted the position that Rule 8D is only prospective in nature - the department has to have some consistency in its views and it cannot blow hot and cold at its sweet-will – Decided in favour of Assessee.
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2014 (2) TMI 1031
Order of CIT(A) - Proper examination not done – CIT(A) deleted various additions as opening Capital Balance, Gift from parents & sister, outstanding expenses, unsecured loans, disallowance of expenses and agricultural Income returned - Revenue objected for deleting various additions by CIT(A) without evidence or giving opportunity to the A.O - The matters raised before require re-examination by AO - As seen from the balance sheet placed on record, there are no immovable properties, even the so-called agricultural land purchased in 2005 - As stated by AO no books of accounts or vouchers are furnished - The confirmation of gift letters signed and filed also are devoid of any information about date of gift, mode of gift and amount advanced by each person - Opening capital claimed also require confirmation about sources - CIT(A) without examining this issue, deleted them without proper reasons - Whether assessee has any other Balance Sheet reflecting assets is also not on record - Rule 46A violation is also there – thus, the matter remitted back to the AO for fresh adjudication – Decided in favour of Revenue.
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2014 (2) TMI 1030
Disallowance of foreign exchange loss – Held that:- The assessee has taken FCNR (B) loan from banks on 27.01.2000 and the same was utilized for repayment of 15% Unsecured Redeemable Non-Convertible Debentures of Rs.10 crores - The amount was an actual expenditure incurred by the assessee for the purchase of forward contracts for repayment of FCNR (B) loan – thus, it was not a notional or contingent but actual expenditure - by taking FCNR (B) loan, the assessee has not acquired any fixed asset in foreign currency either in earlier years or in the current years - The provisions of section 43A of the Act could not apply to the facts of the case as the provisions can be invoked only when assets are acquired by raising the FCNR (B) loan by taking the payment in foreign currency on acquisition of capital assets on account of these borrowings – Relying upon Radhasoami Satsang vs CIT [1991 (11) TMI 2 - SUPREME Court] the amount has been utilized for repayment of debentures - The purpose of loan was to swap the costlier loan with the cheaper loan - similar expenditure has been allowed in the preceding and succeeding years – Decided against Revenue.
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2014 (2) TMI 1029
Penalty u/s. 271(1)(c) of the Act - Disallowance of technical know-how expenditure U/s. 35AB of the Act – Held that:- A case for levy of penalty for concealment of income has to be evaluated in terms of provisions of Explanation. 1 to Section. 271(1)(c) - Penalty proceedings are different from assessment proceedings and the findings given in the assessment though it may constitute good evidence but same is not conclusive in the penalty proceedings - merely because additions have been confirmed in appeal it cannot be the sole ground for coming to the conclusion that the assessee had concealed any income - in the absence of complete and convincing corroborative evidence, the Revenue may justify addition, but in the matter of penalty proceedings, the onus lies heavily on the Revenue to prove that the assessee had concealed its income or has filed inaccurate particulars of its income – Relying upon Reliance Petroproducts 2010 (3) TMI 80 - SUPREME COURT] – thus, no penalty is leviable u/s 271(1)(c) – Decided in favour of Assessee.
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2014 (2) TMI 1028
Applicability of Section 50C of the Act - Whether the provisions of section 50C of the Act are applicable or not to the sale of development rights – Held that:- The decision in The decision in ITO Versus SHRI CHANDULAL P PATEL [2013 (12) TMI 946 - ITAT MUMBAI] followed - during the course of assessment proceedings for earlier year i.e. assessment year 2006-07, the AO, himself observed that the assessee was in the business of construction and development rights purchased by the assessee is part of stock in trade - the property was affected with innumerable court proceedings and the assessee could not get possession of the said property till the date the assessee transferred his rights in the property -the assessee was never in possession of the said property.
The assessee has not claimed any benefit of indexation in the cost of acquisition - the assessee has treated the said property as stock in trade - There is no dispute to the fact that if a property is in the nature of stock in trade, the provisions of section 50C are not applicable as it applies only in respect of capital assets being land or building or both - On perusal of above section 50C, shows that the provisions are applicable only in respect of capital asset, being land or building or both and there is no reference that the said provisions is applicable to stock in trade - There is no infirmity in the order of the CIT(A) to hold that the provisions of section 50C are not applicable to the property under consideration - The department has also not brought any material on record that the sale value as per agreement for sale of development rights under the facts and circumstances of the case is not genuine – thus, the order of the CIT(A) upheld – Decided against Revenue.
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2014 (2) TMI 1027
Revenue or capital expenditure - Operate, Maintain, Develop, Design, Construct, Develop, Modernize and Maintain the Airport - nature upfront fees and various other expenses – Held that:- the CIT(A) has rightly held that the payment of upfront fee of Rs.150 crores paid by assessee to “AAI” has created capital assets in the form of license to develop and modernize the Airport and collect charges as per terms and conditions as prescribed under the agreement entered into which is an “intangible assets” to the assessee - Thus assessee is entitled for depreciation – Decided against revenue.
Deletion of Operating and Administrative expenses – Expenses treated as capital expenditure – Held that:- the CIT(A) examined the chart and the details of the expenses item-wise and after considering the same he has held that no disallowance is called for – Revenue has not been able to point out any infirmity in the findings of CIT(A), the order is upheld – Decided against Revenue.
Deletion of disallowance of payments – Payment made to group concerns and sister concern – Held that:- CIT(A) after considering the said details has stated that over all expenditures were reimbursed to GVK and/or the assessee filed the copies of invoices and the details of the transactions with sister concern of the payment made by assessee to substantiate the expenditure – the contention of the assessee is allowed that the disallowance have been made by AO merely on assumptions and without controverting the facts furnished by assessee before the authorities – thus, there is no reason to interfere in the findings of the CIT(A) – Decided against Revenue.
Nature of expenses – Disallowance on expenses incurred on resurfacing of runway, replacement of floors tiles and regularizing storm water drains – Held that:- the assessee is to redesign, upgrade, modernize and also to operate and maintain Airport but the expenditure under consideration has been incurred only to ensure that the existing assets continued to be used for use safely and as per norms to enable assessee to run its activity - the expenditure is incurred to facilitate of carrying on by the assessee its main business for which the assessee has been engaged and pending the expansion of the Airport etc. – thus, expenditure is a revenue in nature and cannot be said to be capital in nature irrespective of the fact that the assessee in its books of account has given treatment of it as capital in nature - the assessee will not be entitled for depreciation as it is held to be revenue in nature – Decided in favour of Assessee.
Restriction of depreciation allowance – Held that:- The decision in The Hon’ble Bombay High Court in the case of CIT V/s Mazagaon Dock Ltd [1991 (3) TMI 114 - BOMBAY High Court] and Commissioner Of Income-Tax Versus Karnataka Power Corporation [2000 (7) TMI 72 - SUPREME Court] followed - dry dock and wet dock created for ships are to be treated as plant and not building - power generating station building is not a simply concrete structure but a specially designed building and is to be treated as part of plant – thus, taxiways and aprons, parking bays cannot be said to be merely concrete structures but are necessary tools for operating/using the Airport –the same are to be considered as part of plant and machinery – thus, assessee is entitled for depreciation at the rate as applicable on plant and machinery in respect of taxiways, aprons, parking bays etc. – Decided in favour of Assessee.
Reduction in amount debited to capital work in progress – Confirmation from the vendor not furnished – Held that:- The CIT(A) itself has mentioned that the assessee filed during the course of appellate proceedings before him forwarding note of running bill for reduced amount and also interalia submitted account for the period 1.4.2006 to 31.3.2007 - the execution of the work by L&T has not been accepted merely because M/s L&T had not sent its reply to the notice issued u/s 133(6) of the Act by AO – thus, the execution of work by L&T for an amount cannot be considered as not genuine merely because there was no reply from M/s L&T in response to notice issued u/s 133(6) of the Act - in the absence of any other evidence on record, the enhancement of the CWIP is directed in respect of the work executed by M/s L&T – Decided in favour of Assessee.
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2014 (2) TMI 1026
Search u/s 132 of the Act – Protective Assessment made - Jurisdiction of AO u/s 153 r.w section 154 of the Act – Held that:- Though the ground was raised before CIT(A) but CIT(A) has not adjudicated it as there is no finding of CIT(A) on the same - the ground needs to be adjudicated by CIT(A) – thus, the matter is remitted back to the CIT(A) for fresh adjudication – Decided in favour of Assessee.
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2014 (2) TMI 1025
TDS u/s 192 - Demand u/s 201(1) of the Act – TDS not deducted on various charges u/s 201(1) and Interest u/s 201(1A) of the Act – Held that:- The assessee was specifically asked whether during the year under appeal any "uniform for the employees was prescribed by the company" and the answer was in negative - any allowance given by the company to its employees in the name of uniform allowance cannot be said to be exempt under Rule 2BB(1)(f) r.w.s 10(14)(i) of the Income Tax Act - tax at source is deductable from payments in the nature of uniform allowance – Decided against Assessee.
Deletion of Demand u/s 201(1) and 201(1A) of the Act – TDS not deducted on various charges u/s 201(1) – Held that:- The decision in assessee’s own case followed - CMRE was actually not a reimbursement and had and had no correlation with actual expenditure on vehicles - Rule 2BB(i)(c) & not Rule 3 would govern taxability of CMRE payments in employee's hands due to CMRE having no correlation with 'actual running & maintenance charges' of motor car which is the condition required to be satisfied for application of Rule 3(2), Table II(2) - due to declaration by employees of having utilized CMRE for official work – the appellant cannot be treated as assessee in default u/s 201(1) even for AY 2010-11 - As far as assessments of employees in A.Y. 2010-11 are concerned, tax liability is to be determined on case to case basis by applying Rule 2BB(l)(c) – thus, appellant cannot be treated as assessee in default u/s.201(1) for non-deduction of tax at source from CMRE payments for A.Y.s when FBT was in force, i.e. 2006-07 to 2009-10 as well as AY 2010-11, when FBT was not in force – the order of the CIT(A) upheld – Decided against Revenue.
Scope of taxable income in addition to the salary u/s. 17(1) (iv) of the Act - Whether the AO was justified in treating assessee as assessee in default u/s. 201(1) for non-deducting tax from the amount of advance disbursed under a Scheme to the employees by considering it to be from salary – Held that:- As per rule 3(7)(vii) of Income Tax rules where employer provides movable assets to its employees for their personal use perquisite value to be taxed as salary is determined @ 10% per annum of the actual cost of asset - the position remained same as envisaged under rule 3(7)(vii)/(viii) of Income Tax Rule, even though instead of assessee-company itself purchasing the goods the same were purchased by the employee in the name of assessee-company out of advance given by the assessee-company - The scheme was designed in accordance with provisions of rule 3(7)(vii)/(viii)of Income Tax Rule and was implemented accordingly by the assessee for the benefit of its employees - The revenue has not brought any material on record to show that the advance was not utilized in accordance with the scheme – thus, the order of the CIT(A) upheld in holding that assessee company was not assessee in default u/s. 201(1) for not deducting tax from the amount of advance given under the scheme to the employees by considering the same to be their salary – Decided against Revenue.
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2014 (2) TMI 1024
Application of Net profit rate - Assessment framed u/s 144 of the Act - Deduction by way of any payment of interest, salary to be allowed or not u/s 185(5) of the Act – Estimation of income in the absence of evidences - Held that:- Even in the remand proceedings before the AO and the CIT(A), the claim has not been substantiated by the assessee - As regards the increase in the cost of building material and fall in net profit, no cogent explanation or supporting evidence has been brought on record before any of the authorities and even in the remand proceedings before the AO and the CIT(A) – Thus, the CIT(A) has rightly has rightly confirmed the provisions of section 145(3) of the Act though that have not been challenged by the assessee either in the cross appeal or in the cross objection – There is great possibility of leakage and therefore, the past history cannot be the guide for application of net profit rate.
The facts and circumstances of the concerned year have to be taken into consideration for estimation of income - The assessee has not produced copies of the bills of the assets purchased by him and has not brought on record whether assets have been put to use for the purpose of business during the year – the AO who has rightly applied net profit rate of 7% on the gross receipts by the assessee - no separate allowance or depreciation is made and the application of net profit rate is inclusive of depreciation and interest and salary to the partners - Once the said estimation has been held to be correctly made and assessment having been made u/s 144 of the Act and with clear provisions of section 184(5), the ld. CIT(A) is not justified in allowing interest and salary to the partners.
Allowability of Depreciation u/s 32 of the Act – Held that:- The assessee has not brought on record that the assets purchased by him have been put to use during the year – the CIT(A) is not justified in allowing depreciation – the order of the CIT(A) set aside and order of the AO is restored – Decided in favour of Revenue.
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