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Showing 421 to 440 of 1678 Records
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2016 (9) TMI 1263
Rectification of mistake under Section 12AA - correction of AY - Held that:- This is communicated by a letter dated 19.08.2016 wherein it is stated that inadvertently the year from which the benefit of registration was written as “Assessment Year 2015-16” instead of “Assessment year 2009- 10”. The same was accordingly rectified. A copy of the letter together with the enclosure is taken on record as marked 'X'.
The petitioner's grievance so far as, this writ petition is concerned stands redressed. The consequential effect would have to be given in accordance with law. An appeal is pending before the CIT (Appeals) and before ITAT. The order of rectification shall be considered by the CIT (Appeals) and the Tribunal while disposing of the appeals. We would request the expeditiously disposal of the appeals. The petitioner shall be entitled to appear before the CIT (Appeals) and the Tribunal to invite their attention to a copy of this order.
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2016 (9) TMI 1262
Exemption u/s 11 denied - charging of fees for carrying activities - Held that:- Mere charging of fees for carrying activities will not loose the character of charity and in this case, the department has already granted registration treating the activities as charitable but has not declared under which activity whether under education or general public utility.
The assessee has carried on the activities of imparting training to the bottom line employees and there is no element of profit in the said activity as the surplus generated out of the activities is again applied for the charitable activity only. Moreover, the assessee quoted various case laws in support of its claim that they are in the field of education. When analysed closely, all the institutions i.e. Ahmadabad Management Assocation, ICAI, Peter’s education society, are educating people more on structured manner and acknowledging by issuing proper certificates. In the present case, we are not sure if such activities are being carried on by the assessee. We are not inclined to adjudicate whether they fall into education activities in the absence of relevant material before us. However, assessee is imparting training to the bottom like employees, which may be similar to education. Hence, in our view, the assessee is involved in carrying on of charitable activities and not in any commercial activities as held by the AO. Thus, AO cannot deny the benefit u/s 11 of the Act. - Decided in favour of assessee
Disallowance of 20% of expenditure due to the observation of the AO that assessee had not maintained proper books of account - Held that:- From the records, the books of the assessee was audited gives the impression that there exists books of account and we are in agreement with CIT(A) that because of books of account are audited, the AO has also a right to review the books of account. There is no dispute that the books of account was audited since, the assessee has submitted audited financial statement. Since the books are audited, there exists books of account. Considering the above, we find it appropriate to remit this issue back to the file of the AO to verify the books. We direct assessee to submit the books before the AO so that AO can verify the genuineness of the transactions and vouchers. We direct the AO to verify the books as per law and complete the assessment after giving proper opportunity to assessee in this regard instead of resorting to disallow on adhoc basis. Accordingly, ground raised by the assessee is allowed for statistical purposes.
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2016 (9) TMI 1261
Disallowance of option for payment of tax at compounded rate - levy of tax at appropriate rate u/s 5 of the TNVAT Act - construction of Reinforced Earth Walls for the approach roads leading to bridges and flyovers - Held that: - The power given to the Assessing Officer under section 84 of the TNVAT Act, is a power to be exercised in accordance with law and merely stating that there is no mistake apparent on the face of the record, would not be sufficient, especially when the petitioner points out that there are difference in the figures leading to a wrong calculation of the Taxable Turnover. Therefore, the least that the second respondent is expected to do is to examine as to whether the factual discrepancy pointed by the petitioner is correct, if in the opinion of the second respondent, the same is incorrect, then he should record reasons as to why he has come to a conclusion that it is incorrect. Those basic requirements are absent in the orders passed by the second respondent.
Levy of interest - Held that: - It is no doubt true that the petitioner was not represented by his Counsel. If that be so, then the Revision Petitions should be dismissed for default, but the authority chose to give brief reasons for rejection. The reasons do not deal with the factual position nor deal with the contentions raised by the petitioner - the orders rejecting the Revision Petitions with regard to levy of interest is held to be a non-speaking order.
Since the matter has been prolonging for a long period of time and the balance amount of interest payable is ₹ 27,14,101/-, this Court is inclined to impose some conditions on the petitioner to be entitled to one more opportunity to go before the Revisional Authority.
Petition allowed - decided in favor of petitioner.
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2016 (9) TMI 1260
Disallowance of claim of deduction u/s 80IB(10) -‘built up area’ of the Villas constructed by the assessee is 1772.81 sq. ft. that exceeds the limit of 1500 sq. ft. - inclusion of terrace area - Held that:- There is no dispute with regard to the fact that the AO rejected the claim of deduction under section 80IB(10) only on the ground that a terrace is an entirely open and large space on the top most level of a building, whereas balconies are relatively smaller areas affixed to a room of the house. He further observed that balconies are accessible only through the room that they are attached with and terraces will usually have independent entrances. The assessee has demonstrated from the pictures of the building that the area is a terrace as it is completely open and is a roof of a room underneath. Merely because the first floor rooms of villa has an opening on the terrace, in our considered view would not make the terrace as a balcony as the balcony normally is attached with the rooms and covered by enclosure but it is not supported by the walls of the room underneath.
When a Local Authority, endowed with the jurisdiction to grant the approval is guided in its approval by Regulation as to what constitutes the plinth area, which is the built-up area, it is difficult for us to agree with the contention of the Revenue as well as the reasoning of the Tribunal that for the purpose of considering the claim under section 80-IB, the built-up area would be different from what has been given approval by the Local Authority, on a building project. Given the fact that during 2003-04 there was no definition at all on what a built-up area is, the understanding of the Revenue, which is evidently contrary to the approval of the Local Authority based on the Rules and Regulations could not be sustained. Consequently, we have no hesitation in agreeing with the assessee's contention that open terrace area, even if be private terrace cannot form part of the built-up area. See M/s. Ashina Amar Developers vs. ITO [2016 (3) TMI 84 - ITAT KOLKATA] - Decided in favour of assessee
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2016 (9) TMI 1259
Reopning of assessment - Capital gain computation - addition to the sale consideration for the purpose of computing capital gains under section 50C - Section 50C retrospective effect - Held that:- Provisos to Section 50C being effective from 1st April 2003. This is precisely what the learned counsel has prayed for. In his detailed written submissions, he has made out of a strong case for the amendment to Section 50C being treated as retrospective and with effect from 1st April 2003. The plea of the assessee is indeed well taken and deserves acceptance. What follows is this. The matter will now go back to the Assessing Officer. In case he finds that a registered agreement to sell, as claimed by the assessee, was actually executed on 29.6.2005 and the partial sale consideration was received through banking channels, the Assessing Officer, so far as computation of capital gains is concerned, will adopt stamp duty valuation, as on 29.6.2005, of the property sold as it existed at that point of time.
In case the assessee is not content with this value being adopted under section 50C, he will be at liberty to seek the matter being referred to the DVO for valuation, again as on 29.6.2005, of the said property. As a corollary thereto, the subsequent developments in respect of the property sold (e.g. the conversion of use of land) are to be ignored. It is on this basis that the capital gains will be recomputed. With these directions, the matter stands restored to the file of the Assessing Officer for adjudication de novo, after giving an opportunity of hearing to the assessee and by way of a speaking order
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2016 (9) TMI 1258
The impugned orders dated 12th July, 2016 and 2nd August, 2016 passed by the High Court set aside - until the final decision of the writ petitions, the goods be not released and the auction (if any) will not take place without the leave of the Court - appeal disposed off.
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2016 (9) TMI 1257
Alternate remedy - Held that:- As the petitioner has an efficacious alternate remedy, we find that interference of this Court in the present Writ Petition under Articles 226 and 227 of the Constitution of the India would not at all be justified. Reserving the right of the petitioner to avail of such alternate remedy in the light of the observations made herein above, we disposed off the above petition.
At this stage, the learned counsel appearing for the petitioner submits that the petitioner be granted interim protection, as according to him, the petitioner is called upon to deposit an amount in term of the subject assessment by tomorrow. Ms. A. Desai, learned Counsel appearing for the respondents/revenue however submits that in the peculiar facts and circumstances of the case, the respondents/revenue shall not take coercive action until Monday.
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2016 (9) TMI 1256
Imposition of ADD - soda ash - Rule 16 Disclosure of information - principles of natural justice - Held that: - there is still some time left for the authorities to record its final finding and as authority is under obligation to record its finding after following principles of natural justice - The authorities be permitted to go on with the inquiry and petitioners may also shall place on record with the authorities their submissions, but the final findings may not be rendered without there being sufficient opportunity and supply of material legitimately admissible to the petitioners, as the Disclosure Statements, as on date, clearly indicates that there are vital information, which has gone into consideration by the authorities without they being available to the petitioners, as many columns have been containing asterisk marks, and figures have been withheld from the interested parties - Notice returnable on 17.10.2016 - petition allowed.
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2016 (9) TMI 1255
Lease rental - nature of business - assessee in business of warehousing, cold storage and refrigeration - ‘income from house property’ OR ‘business income’- Held that:- The main objects of the assessee company is to carry on the business of warehousing, cold storage and refrigeration, to provide facilities and godowns for proper and safe storing of valuable agricultural and horticultural produce and to provide godowns and warehousing facilities for goods of all description of agricultural and allied products. Similarly, the other objects of the assessee company also provide to let on lease or hire the whole or any part of the real and personal property of the assessee company. We, therefore, hold that the lease income received by the assessee on account of let out of the warehouses/godowns as ‘profits and gains from business or profession’. See M/s. Rayala Corporation Pvt. Ltd. Versus Assistant Commissioner of Income Tax [2016 (8) TMI 522 - SUPREME COURT ].
Reopening of assessment - Held that:- Since all material facts were already there on record and no tangible material was available before the AO, therefore we hold that the reassessment proceedings initiated by the AO are bad in law.
Disallowing the service charges made to Shri Industrial Services by invoking the provision of section 40A(2)(b) - Held that:- Since the Director of the assessee company is also the proprietor of Shri Industrial Suppliers and he is the key person for both the concerns, therefore, diversion of income of the assessee company to the proprietary concern of the Director is clearly visible and therefore the same in our opinion comes within the purview of section 40A(2)(b) of the I.T. Act. We therefore hold that the AO was justified in disallowing 50% of such payment as excess payment to the relatives as per provisions of section 40A(2)(b). However, the CIT(A) in our opinion is not justified in enhancing the same to ₹ 23,27,592/- in the instant case only on the ground that Mr. Navlakha has incurred meager expenditure of ₹ 3,40,371 out of the total receipt of ₹ 27,02,000/-. There may be so many reasons for incurring of less expenditure by the Director. Thus disallowance of 50% of the expenses as done by the AO in the instant case was the correct approach. We accordingly hold that disallowance of ₹ 13,51,000/- u/s.40A(2)(b) is justified under the facts and circumstances of the case. Ground raised by the assessee is accordingly partly allowed.
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2016 (9) TMI 1254
Assessment u/s 153A - addition to income - evidentiary value of photocopies of the documents - Held that:- It is not in dispute that survey was conducted at the premises of Chandigarh Overseas Private Limited and its sister concerns and during the course of survey, certain loose papers including copies of agreement to sell in question were impounded. Thus, no agreement to sell or any incriminating documents were found from the possession of the assessee. There is no recovery of any incriminating document from the power and possession of the assessee. The Assessing Officer has not brought any material on record to prove any connection of the assessee with these documents/agreement to sell. The Assessing Officer wanted to rely upon the photocopies of the agreement to sell in question. Therefore, the onus would be upon the Assessing Officer to prove that the documents found during the course of survey from third party, belonged to the assessee. The original of the photocopies were never recovered in survey proceedings or in post survey proceedings. The documents found are only photocopies and no original documents were found. Therefore, photocopies of the documents would have little evidentiary value.
No material have been brought on record if the assessee was connected with any deal as alleged in the photocopies of the agreement to sell. No details of any sale consideration or actual amount received or paid by the assessee have been brought on record. No evidence have been brought on record if agreements to sell in question were acted upon by the parties. The agreement to sell dated 29.1.2005 is not on any stamp paper. The Hon'ble Delhi High Court in the case of CIT Vs. Murti Devi (2010 (9) TMI 1208 - DELHI HIGH COURT) while dismissing departmental appeal referred to the findings of the Tribunal in which it was held that the photocopies of the documents have very little evidentiary value and in the absence of original documents, photocopies of the documents are not admissible and cannot be the basis for making addition. - Decided in favour of assessee
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2016 (9) TMI 1253
Eligibility to deduction u/s 80P(2)(a)(i) - whether the interest and dividend earned on deposits kept with other banks is deductible uls.80P(2)(d)? - Held that:- As per Section 2(19) of the Act, a co-operative society means a co-operative society registered under the Co-operative Societies Act, 1912, or under any law for the time being in force in any State for the registration of co-operative societies. The provisions of the IT Act, 1961, either in Section 2(19) or u/s.80P, do not make any discrimination between co-operative societies carrying on banking business and other co-operative societies. Co-operative banks are primarily ‘co-operative societies’ by constitution and “banks” by the nature of business.
The interest income and dividend earned on deposits and investments made with other cooperative banks/society are fully deductible under section 80P(2)(d) from the income liable to tax. See Quepem Urban Co-operative Credit Society Ltd. Versus Assistant Commissioner of Income-tax, Circle-1, Margoa [2015 (6) TMI 573 - BOMBAY HIGH COURT] - Decided in favour of assessee
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2016 (9) TMI 1252
Demand - principles of natural justice - Held that: - It is the specific submission of the appellant, as per paragraph No.4 of the affidavit filed in support of the Writ Petition, that as against the notice dated 13.10.2015 issued by the third respondent, the appellant submitted his response on 19.10.2015 in person and informed the third respondent that he had already paid the tax along with the returns. However, it is the stand of the respondents that despite being afforded opportunity, the appellant did not avail of the same. In this connection, it is pertinent to point out that as per the Circular No.7/2014, BB1/3589/2014, dated 03.02.2014, as regards the revision of assessment before passing the revision order, the dealer should be given reasonable opportunity, if required so and no order of revision should be made without affording an opportunity to the dealer as provided under Sections 22,25,27 of the Act. In the light of the defence taken by the appellant and also the Circular, this Court is of the considered view that the appellant should be afforded to one more opportunity to sustain his plea as to the payment of tax along with the returns - appeal allowed - matter on remand.
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2016 (9) TMI 1251
Deduction u/s 80 HHC - Interest received - nature of income - income from other sources v/s business income - Held that:- From the record, as interest is not the business income, in that view of the matter, the discretion of the Division Bench which was sought by counsel for the appellant is not applicable to the facts of the present case.
The appellant was not in position to establish that before AO or CIT (Appeals) or Tribunal he has attempted to show this as business income.
Appellant has taken us through the finding recorded by AO and CIT (A) as well as oral and documentary evidence on record on the point of interest and business income. The income involved is not a business income, therefore, naturally they will not be entitled to benefit under Section 80HHC and view taken by the Tribunal is required to be upheld and for the same, the issue is answered in favour of Department and against the assessee.
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2016 (9) TMI 1250
TDS u/s 194C - non TDS on course of plying, hiring and leasing of goods carriages - demand raised u/s 201/201(lA) deleted by CIT(A) - Held that:- TDS is not to be deducted from the payment made to transporters who furnished PAN. The Assessing Officer has wrongly interpreted that this provision is applicable to tax deducted by assessee who are engaged in transport business. This in my considered opinion is an erroneous interpretation not sustainable in law. In my considered opinion learned CIT(Appeals) has correctly appreciated the law and the facts of the case and the same does not need any interference.
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2016 (9) TMI 1249
Question of law - use of declared goods, iron and steel, in the execution of works contract - rate of tax - whether the Karnataka Appellate Tribunal is right in holding that the turnover of iron and steel is transferred in the same form or in different forms? - Held that:- Tribunal has followed the decision of Division Bench of this Court [2013 (12) TMI 1586 - KARNATAKA HIGH COURT] and hence, it cannot be said that any question of l aw would arise for consideration, the fact would further remain that the very decision of Division Bench of this Court has not been interfered with and is affirmed by the Apex Court in the above referred decision. Under the circumstances, in any case, when two questions are already covered by the decision of the highest Court of the law, no question of law would arise for consideration in the present petitions. - Petition dismissed - Decided against the revenue.
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2016 (9) TMI 1248
Refund of the excess tax which has been collected for the Assessment years 2009-10 to 2012-13 - order of assessment already passed granting refund, refund vouchers pending - Held that: - This Court would wish to point out that the zeal of the Department in collecting the tax should also apply to cases where the refunds are to be granted. When the order of Assessment has resulted in a positive order in favour of the assessee as a result of which, whatever excess taxes collected or adjusted should be refunded, the Authority should be prompt in effecting refund. Therefore, it appears that there is no valid reason for the respondents to keep the petitioner's requests dated 23.09.2015 and 05.11.2015, for refund vouchers pending for almost one year.
There will be a direction to the first respondent to consider the petitioner's representation dated 16.08.2016 and pass orders on merits and in accordance with law, within a period of four week - petition dismissed - decided in favor of petitioner-assessee.
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2016 (9) TMI 1246
Rectification of mistakes apparent from record in the "Statement of case" - Held that:- We notice that the amendment in sec. 214 of the Act has been brought by Direct Tax Laws (Amendment) Act 1984 only and hence the mistake pointed out by the assessee needs to be rectified. Accordingly the words "Direct Tax Laws (Amendment) Act, 1987", where ever it occurs shall be replaced by the words "Direct Tax Laws (Amendment) Act, 1984."
The assessee has also sought rectification of the order by substituting the new name of the assessee in the order, i.e., the order passed by the Tribunal in the name of "Tata Press Limited", which has since been changed into "Infomedia Press Limited". The Ld A.R furnished copies of Certificate of Incorporation to show the change of name. We notice that the name of the company has been changed several times subsequent to passing of the order by the Tribunal and we notice that the order has been passed in the name, in which the petition was filed. Hence, in our considered view, the prayer of the assessee may Infomedia Press Ltd.not constitute mistake apparent from record warranting rectification of order. Accordingly we reject this plea of the assessee. - Decided partly in favour of assessee
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2016 (9) TMI 1245
TDS u/s 194C - Non deduction of TDS on labour charges - addition u/s. 40(a)(ia) - Held that:- AO has called the labour contractors by issuing summons u/s. 131 of the Act and their statements were duly recorded. The AO failed to bring anything on record that the labour charges were paid in pursuance of contract either in writing or the oral with the labour sardar. The AO has held that the assessee has not complied the provision of Sec. 194C r.w.s. 40(a)(ia) of the Act on the presumption and surmise. There is no evidence that the payments have been made to the contractors. We do not find any merit in the arguments placed by Ld. DR in this connection.
AO himself is not sure and forming the opinion on his own surmise and conjecture. Assessee has produced the muster roll. In this regard, Ld. DR failed to bring any defect / information from the muster roll which suggested that the labour charges paid by assessee are subject to TDS. Since no cogent material has been brought on record, in our considered opinion, AO was not justified in invoking the provision of Sec. 194C r.w.s. 40(a)(ia) of the Act. - Decided in favour of assessee
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2016 (9) TMI 1244
Seeking of return of remaining cheques - advance tax payment - Enforcement Wing Officers are entitled to collect cheques from the dealers? - Held that: - this Court has held that the Enforcement Wing Officers are not entitled to collect cheques from the dealers, as if it is an advance tax payment. Therefore, wherever such collection is made and handed over to the Assessing Officer, directions have been issued for return of the cheques seized by the Enforcement Wing Officers - reliance placed on the decision of the case of M/s Astek Electricals and Controls Vs. A.C.(CT), Ranipet, Vellore District [2013 (5) TMI 757 - MADRAS HIGH COURT].
The writ petition is disposed of by directing respondents to return the cheques bearing Nos.130613 to 130616 to the petitioner, within a period of one week from the date of receipt of a copy of this order and within such time, they are not entitled to present the cheques for encashment.
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2016 (9) TMI 1243
Determination/estimation of commission income u/s. 144 r.w.s. 148 and 145 - Held that:- Assessee had already offered the same for taxation purpose but with rider of allowability of certain expense against same. Hence, the rate of 6% adopted by Assessing Officer was highly one. Hence, the commission income was to be taken @ 0.6% of sales turnover
Allowability of the deduction of rebate u/s.88 - additional ground - Held that:- According to assessee, as per Section 88, assessee being individual is eligible for claiming the deduction @ 20% of contribution made in PPF & LIC premium and other. Assessing Officer while computing total income escaped the said rebate without any comment. Hence, requested that the rebate claimed by assessee required to be allowed as per law. Lower authorities had no occasion to adjudicate this issue being taken as additional ground. In the interest of justice, this issue is restored to Assessing Officer with direction to allow the same as per fact and law.
Allowability of deduction u/s.24(b) of the Act on account of interest paid on housing loan - Held that:- This issue has been raised by way of addition ground before us. As stated above, this issue was taken before Assessing Officer who escaped the above deduction while computing the total income of assessee and even not given any comment for the same on merit. Being legal issue, it can be raised before us. It is maintainable, so, same is entertained at this stage. Since on facts there is no finding of lower authorities, so, this issue is restored to Assessing Officer with direction to decide the same as per fact and law after giving opportunity of hearing to assessee.
Nature of loss - business v/s capital loss - Held that:- The Explanation to section 37 of the Act has really nothing to do with the instant case as it was not a case of business expenditure, but of business loss. Business losses were allowable on ordinary commercial principles in computing profits. Once it was found that heroin seized formed part of stock-in-trade of assessee, it followed that the seizure and confiscation of such stock-in-trade had to be allowed as a business loss. Loss of stock-in-trade has to be considered as a trading loss. Thus we hold that addition is unjustified. Same should be allowed as business loss
Disallowance of long term capital gain - Held that:- Revenue authorities held that assessee failed to file the details. Hence, Assessing Officer treated gain as trading business income. In this regard, the stand of assessee has been that all details were submitted before Assessing Officer and long term capital gain cannot be treated as share trading activity. During year, assessee earned long term capital gain. Assessee has not given details, so, Revenue authorities were justified in disallowing the claim of assessee.
Treating the speculative income as normal income and accordingly not giving the set off of carry forward speculation loss - Held that:- Assessing Officer held that assessee failed to file the details. So, he treated the speculative income as normal income. During year, assessee earned the speculative profit of ₹ 10,073/-. Assessee has not given details, so, Revenue authorities were justified in disallowing the claim of assessee
Not allowing the short term capital loss - Held that:- Assessee filed the details. Assessee stated that loss was taken place which is not in dispute, but, Assessing Officer got confused whether it is a short term capital loss or trading loss or speculative loss. But, Assessing Officer failed to consider that shares were always shown by assessee as investment and assessed in past also as investment activity. Hence, gain is required to be allowed as short term capital loss. According to assessee, Assessing Officer cannot deny the loss because of confusion. Now, as per CBDT Circular No.6 of 2016 dated 29.02.2016 investment in short term capital gain be assessed as short term capital gain. Being legal issue raised before us in the light of CBDT Circular, we admit this ground and restore this issue to the file of Assessing Officer to decide the same as per fact and law
Addition on account of claim of housing loan interest - Held that:- Assessee claimed interest on house loan u/s.24(b) which is already disallowed by Assessing Officer, hence, by disallowing the interest debited in capital account lead to double taxation which is against the law of taxation. Hence, requested that disallowance made by Assessing Officer be deleted. According to the contention of assessee, when expenses were not claimed at all, then same could not be disallowed. Agreeing to the contentions of assessee we do not find that addition in question is not justified. Same is directed to be deleted.
Treating the dividend income as taxable income - Held that:- In present case, Assessing Officer has not disputed that the income was dividend. He just wants the details which were already in his possession. According to Revenue authorities, one thing is clear that assessee had invested in shares and securities which were not in dispute and all the shares were listed shares of company. Hence, it cannot be imagined that dividend received from Indian company was taxable. Therefore, it was requested to allow the exemption u/s.10(33) of the Act and treated the dividend income as exempt.In this background, we are of the view that this issue needs to be analysed in the facts of the case as prayed by assessee
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