|
Advanced Search Options
Case Laws
Showing 441 to 460 of 848 Records
-
2010 (10) TMI 726
Provision u/s 127B - Import of watch and jewellery - Goods in question were affected by the deluge that took place in Mumbai on 26-7-2005 and the entire baggage was affected by floods and the watches and jewellery had also become wet on account of water seeping through baggage - Therefore, Respondents had pleaded that the applications to be proceeded with under Section 127C(1) of the said Act - The Settlement Commission in the said facts and circumstances, settled the case under Section 127C(1) of the said Act by directing payment of duty with simple interest at 10% p.a. and fine in lieu of confiscation - Held that:-considering the fact that there would be no impact on the duty recoverable from the Respondents in respect of the goods in question merely because exercise of jurisdiction by the Settlement Commission can be said to be debatable, it is not necessary for us to go into the said aspect and reach a conclusion that the order of the Settlement Commission is required to be set aside and the matter is required to be relegated back to the authorities for being dealt with in accordance with law.
-
2010 (10) TMI 724
'Business Exhibition Service' as per Section 65(105)(zzo) - Waiver of pre-deposit - appellant had collected rent from the business exhibitors and as such as rendered, the service under 'Business Exhibition Service' as per Section 65(105)(zzo) of the Finance Act - Decided that seen from the impugned order that the learned Commissioner (Appeals) is recording a factual finding that the exhibitions are not conducted or performed by the appellant on their own, but provided required facilities only - activity which is undertaken by the appellant by hiring out the facilities, prima facie, may not get covered under the definition of 'business exhibition' services - Thus, waiver of pre-deposit of the amounts involved is allowed
-
2010 (10) TMI 722
Disallowance - Under s. 14A r/w r. 8D - the issue is no more res integra in view of the recent judgment dt. 12th Aug., 2010 by the Hon'ble Bombay High Court in Godrej and Boyce Mfg. Co. Ltd. vs. Dy. CIT (2010 (8) TMI 77 - BOMBAY HIGH COURT), wherein, it has been held that while r. 8D has no retrospective application, the provisions of s. 14A are applicable in such circumstances and the disallowance has to be worked out by the AO on some reasonable basis. Under such circumstance, we direct the AO to decide the quantum of disallowance as per the aforenoted judgment, after allowing a reasonable opportunity of being heard to the assessee. Set off of the brought forward business loss of earlier years of Rs. 39,85,596 against the profit realized on sale of business assets - Their Lordships held that as long as the profits and gains are in the nature of business profits and gains, and even if these profits are liable to be taxed under a head other than income from business and profession, the loss carried forward can be set off against such profits of the assessee. In this view of the matter, the objection raised by the authorities below, in our humble understanding, are devoid of any legal substance. Coming to the judicial precedents cited by the CIT(A), we find that in the case of CIT vs. Milling Trading Co. (P) Ltd. (1993 -TMI - 19720 - GUJARAT High Court), their Lordships were concerned with the question whether or not the assessee had option of not setting off the losses incurred against the income from different sources under the head "Business income". The issue was thus confined to the question as to how the total income for a particular assessment year is to be computed.
-
2010 (10) TMI 719
Penalty u/s 18(1)(c) - Tax evasion - Ignorance of law - it will be seen that there is no concealment vis-àvis wealth assessed and wealth returned and only the concealment is confined to non-filing of the return of wealth for the first time as mentioned in explanation 3 of section 18(1) of the Wealth Tax Act - in the light of the provisions contained in Explanation 3 to sec. 18(1)(c), the assessee shall for the purpose of sec. 18(1)(c) of the Act, be deemed to have concealed the particulars of his assets or furnished inaccurate particulars of any assets or debts in respect of the assessment yeas under consideration - It was further submitted by the assessee that it is only with effect from 1.04.1993 that the word company' was added in sec. 3(1) for bringing charge of levy of the wealth-tax on the companies under the Wealth-tax Act, 1957 itself - it is thus clear that the assessee has not been above to prove and establish that the assessee has acted bonafidely, and it was under bona fide belief that it was not required to pay tax in the Assessment Years 1991-92 and 1992-93 - Appeal is allowed
-
2010 (10) TMI 717
Revenue Recognition - AS 9 - capital contribution of this year as well as the next four years as income of the appellant -Regarding membership fees - Held that:- a clear right is given by the assessee-company to the members to utilise its capital facilities for a period of 99 years for discharge of agreed quantities of effluent. - Thus the one-time membership fee is not in fact in return for any obligation or services rendered by the assessee in one year. It is a receipt in advance for an obligation to be rendered in future. Thus it cannot be said that income has actually accrued to the assessee in one year even though it might have received it in one year. Mere receipt does not ensure accrual unless an equivalent part of the agreed services by the receiver is rendered. - Following the above decision of the Special Bench in the case of Asst. CIT v. Mahindra Holidays and Resorts (India) Ltd. (2010 -TMI - 203965 - ITAT, CHENNAI) we hold that the assessee was justified in deferring the revenue for taxation for four years. Accordingly this ground of the assessee is allowed.
-
2010 (10) TMI 715
Application for modification of stay - exemption under notification No. 21/2002-Cus., dated 1-3-2002 - exemption from payment of duty to the aircraft - The letter dated 22-8-08 clearly clarifies that “it may also be added that non-schedule (Charter) permit holder is expected to use his aircraft only for Charter services, whereas non-scheduled (passenger) permit holder is free to use his aircraft for both charter and passenger services” and this explanation clearly goes to the root of the matter. And, therefore, it was certainly expected that such clarification must have been placed before the Bench by the officers of the Customs Department and even if it had not been done so, the moment the said letter had come to the knowledge of the department, it was necessary for the department to come forward with necessary explanation in that regard. Whether this point is considered or not is a totally different issue. Certainly the department could have taken different view for valid reason, if any, but the suppression of that letter is certainly non-appreciable.- Condition of pre-deposit waived.
-
2010 (10) TMI 713
Section 172 - No objection certificate - Applicability of the DTAA - A perusal of the provisions of section 246A(1)(a) are also found to be substantially in pari materia with the provisions of section 246 in so far as the words used are "or to the amount of tax determined - As the assessee has challenged the amount of tax determined under the provisions of section 172(4) - Decided in favour of the assessee Assessee had not placed before the Assessing Officer necessary certificate being the double income-tax relief certificate when filing its return under section 172(2) - A perusal of the provisions of section 172 shows that it is applicable to the profits of non-residents from occasional shipping business - it is also noticed that the necessary double income-tax relief certificate has been issued on February 14, 2007 and March 22, 2007 and the assessment order under section 172(4) has been passed only on May 8, 2007 - In the result, both the Revenue's appeal and the assessee's cross-objection are dismissed
-
2010 (10) TMI 711
Addition on the Basis of Section 40A(2) - Whether Subsidary Company fall within meaning of 40(2)(b) or not - Held that:- the subsidiary company is not a related person of the assessee within the meaning of clause (b) of section 40A(2) of the Act. decided in favour of Assessee.
-
2010 (10) TMI 709
Refund claim - cess on the agricultural products exported - Revenue is not disputing the fact that the amount received by the respondent from the up-country party is less than the FOB value of the shipping bills, the Department called for explanation and assessee through their representative explained to the Adjudicating Authority that the amount being an amount of cess, which was paid but was not payable and hence, did not collect this amount from the foreign purchasers - Find that this explanation was accepted by the Adjudicating Authority and upheld by the ld. Commissioner (Appeals) - Hence, the Revenue has not put forth any evidence to contradict the concurrent factual finding of both the lower authorities - In the absence of any such evidence or submission, an adverse inference has to be drawn against the Revenue.
-
2010 (10) TMI 707
Undervaluation of closing stock - business of construction and development of properties, flats, shops etc - enhancement of rates of sales - Since the method followed by the assessee is an approved method and had been followed consistently, the learned CIT(A) accepted the plea of the assessee that the value of work-in-progress has to be worked out as per the method consistently followed - It is not in dispute that the assessee has followed percentage completion method consistently since inception and has been declaring income/loss from year to year and the same was accepted in earlier years - Despite the AO's stand for the asst. yrs. 1998-99 and 1999-2000, with regard to correctness of the method of accounting followed by the assessee, in the year 2000-01 when the assessee declared profit of more than Rs. 5 crores the AO appears to have accepted the same method to accept the income declared therein which in itself is an indication that the method of accounting followed by the assessee is an approved method of accounting - in the instant case, there is no such finding either by the AO or by the learned CIT(A); AO has not rejected the book results by pointing out any defect in the books maintained by the assessee - Decided in favor of assessee.
-
2010 (10) TMI 705
Disallowance - u/s 14A - Since the decision of the jurisdictional High Court in M/s Godrej Boyce and Mfg Co Ltd vs DCIT (2010 (8) TMI 77 - BOMBAY HIGH COURT) was not available either before the AO or before the CIT(A) therefore, we are of the considered opinion that the matter needs fresh adjudication at the level of the Assessing Officer in the light of the decision of the jurisdictional High Court cited above. The Assessing Officer shall give due opportunity of being heard to the assessee and decide the issue afresh in accordance with law - This ground of the assessee, accordingly allowed for statistical purpose. Deduction u/s 80HHC - In view of the decision of the Hon'ble Supreme Court in the case of K Ravindranath nair (2007 -TMI - 2378 - Supreme Court of India), do not find any infirmity in the order of the CIT(A) denying the benefit of deduction u/s 80HHC on I.T Refund, interest on tax free bonds and other interest income. The ground raised by the assessee is accordingly dismissed. Expenditure for canteen subsidy - provisions of section 40A(9) - do not find any infirmity in the order of the CIT(A), who has followed the decision of his predecessor from Assessment Year 1998-99 to 2002-03 as well as the order for Assessment Year 2003-04. Further, the Tribunal has decided the issue in favour of the assessee in assessee's own case for various years. Therefore, respectfully following the decision of the Tribunal in assessee's own case for different years and in the absence of any contrary material brought to our notice; this ground of the revenue is dismissed. Deduction u/s 8HHC - interest on housing loan - , the CIT(A) held that providing housing loans to employees is part of business exigency and therefore, such interest on housing loans is certainly income from business even though, it is not directly earned from business transactions. According to him, it is certainly includable with the business income and naturally it should be assessed as business income - Decided against the assessee.
-
2010 (10) TMI 703
Business income/ House property - income in the form of License fee and compensation received by the assessee on renting out of a property - assessee was merely let out the property and deriving rental income. He was not carrying on any systematic or organized activity which could be said to be carrying on a business - The fact that in the past the treatment of the income as one from business cannot be a bar to make assessment of the income under the correct head of income in accordance with law - In the case of the assessee there are no facts brought out as to why the income in question has to be considered as income from business - Decided against the assessee Regarding reopening - it was submitted that in the assessment completed in the past, the income has been accepted as income from business and reopening has been done purely on a change of opinion - assessee by claiming the income from letting out the property under the head "business income" was also claiming deduction of expenses which were allowed normally under the head "income from house". By reason of changing of head of income those expenses cannot be allowed as a deduction - Decided against the assessee
-
2010 (10) TMI 701
Dis-allowance under rule 8D(2)(ii) - the gross interest paid at Rs.1,11,43,922/- Rule 8D is not retrospective and hence it cannot be made applicable in the assessment year 2006-07 as in the present case but still disallowance has to be made by the Assessing Officer on reasonable basis - Hence, matter should go back to the file of the Assessing Officer for a fresh decision on this issue in the light of the judgment of Hon'ble Bombay High Court rendered in the case of Godrej Boyce Mfg. Co. (2010 (8) TMI 77 - BOMBAY HIGH COURT) - Therefore, set aside the order of Ld CIT(A) and restore the matter back to the file of the Assessing Officer for a fresh decision in the light of this judgment of Hon'ble Bombay High Court rendered in the case of Godrej Boyce Mfg. Co. (2010 (8) TMI 77 - BOMBAY HIGH COURT). 5% of the technical know-how fees paid by the assessee to SNIC and Co., Japan - the agreement in question dated 11.5.1973 though initially made for a period of four years is still in operation - The renewal agreement, if any, has not been furnished by the assessee - The fresh terms and conditions applicable to the present asstt. years have not been placed on record, nor the ld. Representative for the assessee was in a position to make any comment thereupon - Further, the assessee has not presented its case with reference to Article 7 and 7.2; and also other articles of the agreement except making a reference to article 2 and 3, and had no occasion to give its explanation and comment thereupon - Therefore, restore this issue to the file of AO for his fresh adjudication after deliberating upon all the articles of the agreement taken together and after providing the assessee an opportunity to give its explanation and comment thereupon, in the light of several decisions of the courts - The assessee appeal allowed for statistical purposes.
-
2010 (10) TMI 699
Question of validity of assessment in pursuance of search u/s 132 - Block Assessment - The assessees have not chosen to challenge the validity of assessments on the allegation of the defect or irregularity in the warrant issued either before the Assessing Officer or in the first round of appeals and they have chosen to raise such a contention after remand before the Commissioner of Income-tax (Appeals) for the first time. We are in complete agreement with the finding of the Tri-bunal in their order challenged in I. T. A. No. 76 of 2010 that the Com-missioner of Income-tax (Appeals) has no jurisdiction to entertain such a contention. - Decided against the assessee.
-
2010 (10) TMI 697
Voluntary Retirement Scheme - VRS - Rule 2BA - assessee in default section 201(1) - Assessee claimed that wherever any payment is made in excess of Rs.5 lacs has been made in regard to early bird incentives, the tax has been deducted by the company on such payments and paid to the Govt - This aspect has already been remitted to the Assessing Officer for verification of the veracity of the statement - Thus, it is also not the case of the Assessing Officer that company has failed to deduct and paid the tax for good and sufficient reasons - Assessee has clearly demonstrated that it had good sufficient reasons for non-deduction of tax for payment of VRS upto Rs.5 lacs - As per the decision of Hon'ble Delhi High Court in the case of C.I.T. vs. Nestle India Ltd. (2000 -TMI - 15273 - DELHI High Court) has dismissed the revenue's appeal - Do not find any infirmity in the order of the Ld. Commissioner of Income Tax (Appeals) in this regard and uphold the same - Decided in favour of assessee.
-
2010 (10) TMI 695
Remission of liability - Addition u/s 41 - Held that: assessee’s case is that no amount has been transferred to the profit and loss account. It was merely a book entry whereby sundry debtors amounting to Rs. 1,08,94,578/ and corresponding amount payable to Emery, USA where adjusted while passing a reversal entry in the books of account - Commissioner of Income Tax (Appeals)’s himself agreed that provision of section 41(1) will not apply unless the assessee has been granted an allowance or deduction in respect of liability which has ceased - Thus against the debtors (which were on account of Emery USA) there was corresponding liability towards Emery USA - Consequently, mere book entry of setting off sundry debtors with sundry creditors cannot constitute income - Decided in favor of the assessee Regarding disallowance of communication expense - Royalty - DTAA between India and USA - Assessing Officer observed that the nature of service appeared to be that of fee for technical service on which applicable TDS has not been deducted. He held that this squarely falls under the ambit of section 40(a)(i) - assessee submission is that the payment is being made for reimbursement of communication expenses incurred on behalf of the assessee by Emery USA - The subject of reimbursement are for EMCON connectivity data circuit expenses and not for the use of any industrial, commercial or scientific equipment provided by SITA. Even the amount charged to the assessee is only a part of the total expenses incurred by the Emery USA on behalf of the various concerns - the payment was made merely for availing communication facility for transmitting data without there being any right conferred upon the assessee for use of any secret process or formula - Decided in favor of the assessee Reduction of income in the revised return - AO observed that assessee was given a number of opportunities to explain the nature of system failure reasons why it was not noticed at the time of audit and how was the system error removed and correct income computed - In reply the assessee submitted that error crept into account while revenue data was transferred from the front end server to the back end accounting system recording the revenue - ld. Counsel of the assessee submitted that company is not in a position to reconcile the detail in this regard and submitted that no purpose will be served if the matter is remitted to the files of the AO to give the assessee an opportunity to submit the details required in this regard - Decided against the assessee Regarding interest u/s 234D - Hon’ble Kerala High Court in the case of Kerala Chemicals and Proteins Ltd. in [TMI - 76873 - KERALA HIGH COURT] had held that retrospective operation to substantial provision of law providing for interest cannot be given. It was further held that admittedly section 234D was introduced by Finance Act, 2003 w.e.f. 1.6.2003 - The interest involved would be levied from 1.6.2003 till the date of completion of assessment as held by the Hon’ble Kerala High Court - Appeal is allowed by way of remand to AO
-
2010 (10) TMI 693
Arms length price – Interest u/s 234D - As per the Audit report in Form 3CEB, the assessee has aggregated the above transactions into two heads (i) Trading Functions & (ii) Project Functions - Search is conducted by TPO and as per the search the arithmetical mean was working out to 5.65% - The A.O. also declined to consider the results Mahindra Ashtech Ltd. as in view of the TPO, the results shown by the said company was on account of abnormal circumstances being faced by the company - However, while passing the transfer pricing order, the TPO has not considered this analysis and concluded that the transactions under the project business as not meeting the arm’s length test merely on the fact that the project business of the appellant incurred losses - The order of the TPO u/s.92CA(3) which has been adopted by the A.O. suffers from non-application of mind as well as in gross violation of the principles of natural justice – Matter is remanded back to AO for fresh adjudication - Accordingly, ground nos.2 to 5 are allowed for statistical purpose Regarding interest u/s 234D - in the case of Ekta Promoters (2008 -TMI - 65270 - ITAT DELHI-E) the issue is covered in favor of assessee. – Accordingly, additional ground is allowed
-
2010 (10) TMI 691
Claim of expenditure on account of Rebate of allotment of houses - the assessee had incurred the expenditure of allowing rebate to the Government institutions, who in turn had invested in various properties of the assessee Board, the said expenditure is allowable in the hands of the assessee. The rebate was allowed as one time settlement during the year under consideration pursuant to the meeting of the Board of Directors of the assessee on 18-4-2002 in which it was decided to allow the said rebate - The rebate was allowed as one time settlement and not because of any waiver of interest. The decision to allow rebate by the Board of Directors of the assessee was a commercial decision taken in the circumstances of the case, where rebate was allowed to certain institutional bodies i.e., Insurance Companies, HSIDC, HFC, etc. against advances received during the years 1991 to 2002, wherein increase in the cost, due to delay in construction of houses, was charged to them - appeal of the revenue is dismissed.
-
2010 (10) TMI 690
Exemption u/s 10B - a lease transaction would qualify to be a `transfer’ within the meaning of the term as used in section 10B(2)(iii), which provides that an eligible undertaking under the section should not be formed by the transfer to a new business of plant and machinery that stands previously used for any purpose - This issue or aspect of the matter stands settled, in the context of different provisions, similarly or identically worded, and bearing, as such, the same condition as in section 10B(2)(iii), by the higher courts of law, including the apex court, as in the cases of CIT v. Narang Dairy Products (1996 -TMI - 5505 - SUPREME Court) and Bajaj Tempo Ltd. v. CIT (1992 -TMI - 5372 - ITAT PUNE); the latter being relied upon by the assessee itself - In the facts of the present case, the assessee itself neither disputes, nor possibly could, this aspect of the matter, so that we find no basis, or even the reason, for the ld. CIT(A)’s finding of the said reliance by the AO as being misconceived Assessee’s undertaking could not be formed but for the transfer of plant and machinery, and which, therefore, apart from being much in excess of the statutorily prescribed ratio of 20%, has played a significant role in the setting up of its undertaking, apart from other assets/resources, equally crucial, and similarly transferred or even shared, so that it is not a new undertaking or even a substantially so. Under the circumstances, we, therefore, hold that the assessee’s undertaking does not fulfil the conditions stipulated u/s. 10B(2) and, as such, is not qualified for the benefit conferred by the said section - Decided against the assessee Regarding disallowance of consultancy charges - No doubt, the onus for a disallowance u/s. 40A(2)(a) is on the Revenue, but the same can only be on the basis of the primary details and the information supplied in support by the assessee - The term `consultancy’ is too wide and vague to provide any definite understanding of the services rendered by him, particularly as the assessee has a whole range of professional and, further, who stand paid much less in comparison - In the present case, however, it is just the reverse, with the assessee claiming full tax exemption, while the remuneration allowed to its resident director, being in respect of services rendered in India, is only fully taxable in India - Secondly, if anything, it only goes to show that the arrangement was entered into on purely commercial considerations, and is not tainted by any ulterior motive of tax avoidance - In the result, both the Revenue’s appeal and the assessee’s CO are partly allowed
-
2010 (10) TMI 689
Disallowance -software maintenance - the issue relating to the treatment of expenditure of Rs.17,62,000/- incurred by the assessee towards software expenditure has to go back to the file of the Assessing Officer for fresh adjudication in the light of the decision of the Special Bench of the Tribunal in the case of Amway Enterprises (2008 -TMI - 64346 - ITAT DELHI-C). Accordingly, this issue is restored to the file of the Assessing Officer for fresh adjudication in accordance with law and after giving due opportunity of being heard to the assessee. interest charged u/s 234C - tax can be levied on income which has been received by the assessee or accrued to it. Tax cannot be levied on an assessee on the ground that other person would have paid to bank higher rate of interest. By saving of income by a third party, the assessee, in our opinion, cannot be liable to pay tax. In this view of the matter and in view of acceptance of the order of the CIT(A) by the revenue on this issue in the preceding year, the order of the CIT(A) on this issue is upheld - the appeal filed by the revenue is partly allowed for statistical purpose.
............
|
9911796707
