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Showing 421 to 440 of 558 Records

• 2012 (2) TMI 259
  

  Long term capital gains – period of holding – property sold was transferred to trust on 05.01.1996 – acquired by previous owner prior to 01.04.1981 – Revenue contending indexed cost of acquisition from 05.01.1996 – Held that:- The expression “held by the assessee” used in Explanation (iii) to Section 48 has to be understood in the context and harmoniously with other Sections. The cost of acquisition stipulated in Section 49 means the cost for which the previous owner had acquired the property. The term “held by the assessee” should be interpreted to include the period during which the property was held by the previous owner. See CIT v. Manjula J.Shah [2011 (10) TMI 406 - BOMBAY HIGH COURT] – Decided against the Revenue.

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• 2012 (2) TMI 258
  

  DTAA with Australia – Australian company entered into distribution agreement with Indian Company(IMI Ltd) for the distribution and sale of its software and hardware products in India - sale and collection of software product is made through the distributor - no physical delivery of the product is made to the distributor - taxability of the payments made by distributor for the software product, and for the right to downloand/receive version updates for the software products of the applicant – applicant submitted that payment received are for sale of copyrighted article - Held that:-In the Income-tax Act, royalty is defined as consideration for the transfer of all or any rights (including the grant of license) in respect of any Copyright. Article 12 of the India-Australia DTAC defines royalties to mean payment made as consideration for the use of or the right to use any copyright, patent, design or model, plan, secret formula or process, trademark or other like property or right. The definition in article is seen to be wider than the one contained in the Income-tax Act. Therefore, payments concerned would be royalty as defined in Article 12 of the DTAA between India and Australia and u/s 9(1)(vi) of the Income-tax Act.

  Payment received by way of Subscription for the updates would also be royalty and not 'FTS' under DTAC & Income Tax Act.

  Applicant contention about non-existence of PE in India – Held that:- Since payment received is royalty, the amount is liable to be taxed in India under Article 12.2 of the DTAC.

  Further, distributor IMI Ltd is required to withhold taxes in India in terms of Section 195 of the Income-tax Act at the rate of 10% of the gross amount of royalty, as provided under Article 12.2 of the DTAC.

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• 2012 (2) TMI 257
  

  Maintainability of application before Advance Rulings – Return of Income filed for A.Y. 2009-10 - application filed on 17.05.2010 raising the identical questions – Held that:- Date of filing of the return is the relevant date to consider the applicability of the proviso to section 245R(2), and that the filing of the return of income generates questions including the ones raised before this Authority, the jurisdiction to give a ruling in the present application has to be held to be barred. We, therefore, reject the application as being barred by clause (i) of the proviso to section 245R(2). See SEPCO III Electric Power Corporation (2011 - TMI - 207237 - Authority For Advance Rulings)

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• 2012 (2) TMI 256
  

  Maintainability of application before Advance Rulings - transaction based on which Rulings on various questions are sought, was entered into on 1.10.2006 - assessments for the A.Y. 2007-2008 have been completed - Held that:- Date of filing of the return is the relevant date to consider the applicability of the proviso to section 245R(2) , and that the filing of the return of income generates questions including the ones raised before this Authority, the jurisdiction to give a ruling in the present application has to be held to be barred by clause (i) of the proviso to section 245R(2) of the Act. See SEPCO III Electric Power Corporation (2011 - TMI - 207237 - Authority For Advance Rulings) – Application dismissed.

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• 2012 (2) TMI 255
  

  Maintainability of application before Advance Rulings – Return of Income filed u/s 139(1) on 31.03.2010 - transaction based on which Rulings on various questions are sought, was entered into on 26.4.2008 and 26.11.2008 – application filed on 17.6.2010 – Held that:- Date of filing of the return is the relevant date to consider the applicability of the proviso to section 245R(2), and that the filing of the return of income generates questions including the ones raised before this Authority, the jurisdiction to give a ruling in the present application has to be held to be barred. We, therefore, reject the application as being barred by clause (i) of the proviso to section 245R(2). See SEPCO III Electric Power Corporation (2011 - TMI - 207237 - Authority For Advance Rulings)

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• 2012 (2) TMI 253
  

  Maintainability of application before Advance Rulings – Return of Income filed u/s 139(1) on 31.03.2010 - transaction based on which Rulings on various questions are sought, was entered into on 31.10.2007 – application filed on 06.07.2010 – Held that:- Date of filing of the return is the relevant date to consider the applicability of the proviso to section 245R(2), and that the filing of the return of income generates questions including the ones raised before this Authority, the jurisdiction to give a ruling in the present application has to be held to be barred. We, therefore, reject the application as being barred by clause (i) of the proviso to section 245R(2). See SEPCO III Electric Power Corporation (2011 - TMI - 207237 - Authority For Advance Rulings).

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• 2012 (2) TMI 252
  

  Proprietor firm converted into partnership - Cost of acquisition - Asset acquired by succession - "Book Value OR Fair Market Value" - Held That:- AO had not examined as to whether the cost value given by the assessee firm is correct or otherwise, We remand the matter back to AO with a specific direction to examine as to whether the value [FMV] shown by the assessee firm is correct as on 1.4.1981 and to take appropriate action in accordance with the provisions of the Act at that relevant period. - Reliance placed on Sunil Siddharthbhai vs CIT (1985 -TMI - 5909 - SUPREME Court)

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• 2012 (2) TMI 242
  

  Classification of 'Electronic Automatic Regulators' - Revenue classified it under Chapter sub-heading 8543.89 – Central Government vide Notification dated 01.03.2002 classified it under Chapter sub-heading 9032.89 - Held that:- For the period after 01.03.2002, in view of the Notification issued by the Central Government, the goods, namely Electronic Automatic Regulators would fall under Chapter sub-heading 9032.89 – Decided in favor of assessee.

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• 2012 (2) TMI 240
  

  Period of Limitation – Petition filed u/s 433(e) & 433(f) of Companies Act, 1956 seeking to wind up the Respondent-Company – non-payment of salary of the petitioner (part-time employee) for period March 2002 to June 2002 – Held that:- Period of limitation for claiming salary is 3 years and u/s 18 of Limitation Act, acknowledgment of liability should be before the expiry of period of limitation. In present case, limitation starts from 1.7.2002 and ends on 30.06.2005. However, the first letter had been addressed on 22.9.2007 which itself is beyond the period of said three years.

  Therefore, documents of alleged acknowledgment of liability dated 25.09.07 onwards produced do not constitute an acknowledgment of liability. Hence, no debt is enforceable against the Respondent and consequently no ground u/s 433 of the Companies Act, 1956 – Decided against the petitioner.

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• 2012 (2) TMI 238
  

  Valuation of Closing Stock - AO made additions as "Excise Duty" not included in stock - Held That:- In view of Asst.CIT vs. Narmada Chematur Petrochemicals Ltd. (2010 - TMI - 202159 - Gujarat High Court), duty to be included only at the time of sale since goods not cleared additions not justified.

  TDS - Delivery of gas to be made from buyer to seller at the outlet station - Held That:- Its a contract of sale/ purchase and not of work thus no liability to deduct TDS under 194C.

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• 2012 (2) TMI 237
  

  Best Judgment - Yield of paddy reflected at 63% AO adopted at 65% - Held That:- Additional evidences in support of yield and trading results were filed as revenue could not confront the same. - Decided in favour of assessee.

  Cash Credits - Unsecured Loan - Balance confirmed by Ram Prasad Rawat - Held That:- No infirmity in CIT(A) order. Appeal of revenue rejected.

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• 2012 (2) TMI 236
  

  Registration under Trust - Object encouraging "Religious Discourses" - Held That:- encouraging religious discourses without mentioning any religion cannot per se be considered as benefiting any particular religious community even if considered as religious in nature it is only a part of many number of object clauses, all of which are charitable and hence cannot be considered as of a nature which is wholly or substantially wholly religious.

  Whether Fees from Apprentices convert trust into commercial venture - Held That:- Fee received from apprentices who were studying in the institution or establishment by the Trust could not be ‘per se’ be a commercial activity. possibility of a future contingency with a remote probability will not make the Trust itself a commercial venture

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• 2012 (2) TMI 235
  

  Penalty - Search - Block assessment - Jewelery worth RS 12,77,635 added as Undisclosed Income - CIT(A) deleted entire additions - Tribunal: duplicate bills were neither found at the time of search nor were produced before the Investigating Authority - AO on tribunal findings levied penalty - Held That:- It is not the case of Department that the duplicate bills produced by the assessee were false or the parties who issued those bills were not existent parties. Minor variation in the description cannot be conclusive proof for coming to the conclusion that the bills were not genuine. Therefore, it cannot be said that the assessee’s explanation was, in any case, malafide. Penalty un-justified.

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• 2012 (2) TMI 234
  

  Trust - Transfer versus Donation - Held That:- Transfer of assets for consideration, from one society to another, which has been received by way of book entries and cannot be a donation - Taxable as "Capital Gain".

  RE-assessment under 147 - reasons to believe - Capital Gain not charged to tax - Held That:- The re-opening of the assessment for bringing the capital gains to tax which was omitted earlier does not amount to change of opinion. The omission to apply the provisions of the Act and later on applying them is a valid ground for invoking notice under 148.

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• 2012 (2) TMI 233
  

  Estimation of profit on cash portion - 15% on cheque and 10% on cash margin - Held That:- Assessee only pressed for one issue of application of profit rate on the cash portion during the course of arguments which have been considered and decided on merit, therefore, both the Misc. Applications of the assessee are not maintainable.

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• 2012 (2) TMI 232
  
  Issues:
  Penalty imposition under section 271(1)(c) of the IT Act based on the difference in stock valuation between trading account and bank statement.
  
  Analysis:
  The appeal was against the penalty imposed by the Ld. Commissioner of Income Tax (Appeals) under section 271(1)(c) of the IT Act, 1961. The Assessing Officer discovered a significant difference in the valuation of the assessee's stock between the trading account and the bank statement, leading to the initiation of penalty proceedings. The Ld. Commissioner of Income Tax (Appeals) reduced the addition made by the Assessing Officer but confirmed the penalty. The Department's appeal against the reduction was dismissed by the ITAT. The penalty was computed at Rs. 92,505 and imposed on the assessee. The Ld. Commissioner of Income Tax (Appeals) upheld the penalty, noting that the Assessing Officer had directed the initiation of penalty proceedings in the assessment order under section 143(3).
  
  The Ld. Commissioner of Income Tax (Appeals) observed that the difference in stock valuation had been confirmed and accepted by the assessee. The explanation provided by the assessee was deemed not bona fide, as the discrepancy was discovered only after the Assessing Officer's investigation. The Ld. Commissioner of Income Tax (Appeals) relied on legal precedents to uphold the penalty, emphasizing the assessee's failure to disclose accurate particulars. The Tribunal, after considering the submissions, upheld the penalty, stating that the difference in stock valuation was accepted by the assessee and that there was clear evidence of inaccurate particulars and concealment of income. The Tribunal found no merit in the argument that there was no satisfaction for the penalty imposition and concluded that the penalty was rightly sustained by the Ld. Commissioner of Income Tax (Appeals).
  
  In conclusion, the Tribunal dismissed the appeal filed by the assessee, upholding the penalty imposed under section 271(1)(c) of the IT Act. The decision was based on the significant difference in stock valuation, the assessee's acceptance of the discrepancy, and the failure to prove accurate particulars, leading to the penalty imposition being deemed appropriate.

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• 2012 (2) TMI 231
  

  Expenses incurred on Car driving and security of director on foreign tour personal in nature - Held That:- No material to establish foreign visit to Bangladesh of the employees of the assessee was directly or distinctly related to the business of the company. We upheld the order of CIT(A). Decided against assessee.

  TDS - Payment for "Technical Retainer-ship" Fee - Amount deposited on 7.10.05 - Held That:- Finance Act 2008, as retrospectively amended the law enabling payments made before the due date of filing will be allowed as deduction. Decided in favour of assessee.

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• 2012 (2) TMI 230
  

  Validity of Block Assessments - Period of limitation - Search on 27.07.99 - Delay more than 3 years while issuing Notice under 158BD - Search completed after Seven from the date of Search - Held That:- Issue of notice u/s 158BD after three years from the date of completion of the assessment in respect of the person against whom search was carried out is barred by limitation. Reliance placed on (Khandubhai Vasanji Desai & Ors vs DCIT (1998 - TMI - 16365 - GUJARAT High Court)) and Shri P Venkata Ramana (Hyderabad Bench Tribunal).

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• 2012 (2) TMI 229
  

  Search - Document seized indicated investments in Partnership firm - AO made additions on the basis of loose sheets found - Held That:- When document talks at full length the "Total Cost Involved". The cost also mentions about the bar licence fee stock and purchase cost. The seized document itself thus mentions about the initial contribution to be made by the partner at Rs. 1,50,000 and additional contribution of Rs 4,20,000. Reliance also placed on CIT vs Durga Das (1971 -TMI - 6269 - SUPREME Court), Decided against assessee.

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• 2012 (2) TMI 222
  

  Revision petition filed u/s 397 r/w 401 of the CrPC against order of discharge u/s 245CrPC - smuggling of ball bearing - respondents challenging maintainability of the present revision petition – validity of the sanction and also non-examination of the sanctioning authority - Held that:- The petitioner had the concurrent option of filing revision before the Sessions Court or this Court hence, present revision petition is certainly maintainable.

  Validity of sanction - The sanction order fully sets out the material facts and the offences disclosed by those facts. Moreover, Officer signing the sanction order is not required to state that he had personally scrutinized the file and had arrived at the required satisfaction.

  The non-availability or non-association of independent witness cannot be a ground for discharge or acquittal in all cases. Therefore, petition is allowed and the impugned order is set aside. The matter is remanded back to the court of learned ACMM, New Delhi.

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