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Showing 441 to 460 of 1251 Records
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2012 (12) TMI 812
Written off of Losses on amalgamation Held that:- The assessee conceded that paper books giving details of the assets written off were not supplied to the AO and for the first time these details were given to the CIT(A), and no plausible reason was given for not submitting these documents to the AO. The judgments relied on by the assessee do not come to the rescue of assessee. In favour of revenue
Calculation of book profit u/s 115JB AO reduce the book profits by inventories written off, advances written off, discarded assets and bad debts written off Held that:- As per the provisions of Sec. 115JB and has rightly observed in his order that he book profit cannot be adjusted except for the items specified in the section. Therefore, the deduction claimed by the assessee in the book profit has rightly been disallowed by the AO. In favour of revenue
Inventories written off as obsolete stock - Assessee had acquired the business of the demerged company as a going concern Held that:- assessee has not placed on record any document to show that the assessee had taken over the amalgamating companies as a going concern. Moreover, it is not the case of the assessee that the inventories are being written off for being obsolete alone. The assessee has stated before the AO that it could not receive the amounts from various parties and when it has become bad, the same was written off. The assessee was unable to show how and why the inventories have become obsolete. The assessee failed to tender any evidence before the AO. In favour of revenue
Write off the losses Capital or revenue nature - Incurred in acquiring the assets and liabilities of the amalgamating companies Held that:- In the present case, there was amalgamation of four companies into the assessee company. The assessee intends to write off the losses incurred by the assessee in acquiring the assets and liabilities of the amalgamating companies, which is capital in nature. In favour of revenue
Bad debts Assessee had not written off the debts in the books of account - Held that:- Assessee is claiming write off of bad debts in violation of the provisions of section 36(2)(i). The assessee has not placed on record the scheme of amalgamation either before the lower authorities or before the Tribunal. Therefore, claim of bad debts, inventories etc. of the assessee has rightly been disallowed by the AO. In favour of revenue
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2012 (12) TMI 811
Transfer Pricing Arm length price determined by TPO u/s 92CA (3) Assessee argued that Comparable company is in the business of Exploration of oil and natural gas whereas the assessee is in the business of manufacture of lubricants - Held that:- As concluding from the facts of the case, the order is set aside and the matter of transfer pricing for determining the ALP in respect of exports by the assessee to their AEs, to the file of the TPO for giving a reasoned order as to how the domestic prices are comparable in all respects to the exports made by the assessee to their AEs in terms of Rule 10B. Issue remand back to AO
Disallowance of Capital Loss - AO disallowed advanced to one of the subsidiaries which was stated to have become sick and incurring loss Held that:- From the order of AO & CIT(A) it is not clear as to the purpose of loan and the line of the business subsidiary. Therefore restore the issue of write off to the file of the Assessing Officer for considering de-novo in accordance with law. Issue remand back to AO
Disallowance u/s 14A - Interest expense in relation to earning income u/s 10 Held that:- Once the profit and loss account of the floriculture division has been accepted and the net profit(loss) excluded from the total income there is no question of further estimating disallowance of interest. Prior to insertion of sub-section 2 & 3 to Sec 14A, the AO has no power to artificially allocate certain expenditure as having been incurred in relation to earning the income which does not form part of the total income. In absence of any finding that some expenditure were definitely incurred in relation to earning dividend income no artificial allocation can be made so as to disallow the same. Delete the estimated addition of notional interest on borrowed funds deemed to have been utilized for floriculture division. In favour of assessee
Deduction in respect of certain inter-corporate dividends AO restrict the deduction u/s 80M - Assessee contended that the balance non-corporate dividend should also be considered as deemed dividend for the purpose of deduction u/s 80M Held that:- Since this aspect has not been adjudicated by either by the AO or by CIT(A), we restore this issue to the file of the AO for considering the issue de-novo in accordance with law after providing reasonable opportunity of being heard to the assessee. Issue remand back to AO
Computation of book profits u/s 115JB Treatment of provision for doubtful debts Held that:- In view of the amendments to Sec. 115JB introduced by the Finance (No.2) Act of 2009 inserting clause (i) to Explanation (1) to sub-section (2) to Sec. 115JB with respective effect from 01/04/2001, any amount set aside towards diminution in the value of assets should be added back to the book profits computed in accordance with part II & III of schedule VI to the Companies Act. It has been held that the provision for bad and doubtful debts is a provision for diminution in the value of assets as decided in case of HCL Comnet Systems & Services Ltd. (2008 (9) TMI 18 - SUPREME COURT). In favour of revenue
Levy of interest u/s 234D Applicability of Sec. 234D Held that:- Following the decision in case of Ekta Promoters (2008 (7) TMI 452 - ITAT DELHI-E) wherein it has been held that section 234 has been inserted by the Taxation Laws (Amendment) Act, 2003 with effect from 01.06.2003 applicable from AY 2004-05. Since the assessees case falls in AY 2003-04, we direct the AO to delete the levy of interest. In favour of assessee
Credit of TDS - Interest income received from UTI was taxed in the A.Y 2003-04 - TDS certificates for the taxes deducted by UTI were filed along with the return for A.Y 2004-05 because the TDS certificates were belatedly sent by UTI Held that:- The TDS certificates have been filed in original and full particulars have been furnished, credit for TDS has not been given. Hence, AO is directed to give credit of TDS for AY 2003-04. In favour of assessee
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2012 (12) TMI 810
Rectification of mistake - section 254 - order of tribunal - held that:- Tribunal has no jurisdiction to re-appreciate the contentions as well as evidence in the proceedings under section 254(2). It is a settled proposition of law that the scope of sec. 254(2) is very limited and circumscribed. A mistake apparent from record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning which can be rectified u/s. 254(2). For exercising the jurisdiction u/s. 254(2), it is mandatory that a mistake should be wide apparent, manifest and patent and not a point which would involve serious circumstances of dispute of question of fact or law which requires investigation and verification of facts.
Regarding rectification of mistake on account of disallowance of depreciation while calculating MAT (u/s 115JB) - held that:- in view of the settled proposition of law the Tribunal has no jurisdiction to re-appreciate the contentions as well as evidence in the proceedings under section 254(2). Once the finding has been given on merit than under the proceedings of 254 (2), the same cannot be reversed. - In favour of revenue
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2012 (12) TMI 809
Validity of Block Assessment - plea for rectification of mistake - Held that:- As decided in ITAT Versus V. K. Agarwal And Another [1998 (11) TMI 126 - SUPREME COURT] in accordance with section 254(1) is only when order bears the signature of both the Members and communicated to the parties. The rule 34 of ITAT Rules 1963 also provides that the order of Bench shall be in writing and shall be signed and dated by the Members constituting the Bench.
Thus in the light of above law laid the so-called claim by the assessee that order has been pronounced in the open Court is not the order of I.T.A.T. under section 254(1) of the Act. When there is no order of I.T.A.T. in accordance with law under section 254(1), there is no question of amending the order under section 254(2). That according to rule 34(4) the orders are to be pronounced in the Court but on perusal of records, it is noticed that there is no such pronouncement, rather the case/appeal was kept for order as per the order sheet dated 6.10.2008. Also that for such pronouncement in the open Court, the rules (4) & (5) of rule 34 of has been inserted by the Income Tax (Appellate Tribunal) (Amendment) Rules 2009 w.e.f. 01.05.2009. In the light of the facts, the contention of the assessee is rejected as such are not mistakes which are rectifiable under section 254(2).
The contention raised in the Miscellaneous Application itself shows that the assessee wants a second order after recalling the original order. The I.T.A.T. has no power to review its earlier order. The power under section 254(2) is only to amend the order with a view to rectify any mistake apparent from record. The so-called mistakes pointed out in the Miscellaneous Application discussed above are not mistake apparent on record. Therefore, the same is not covered under section 254(2) - against assessee.
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2012 (12) TMI 808
Rejection of method of accounting Project completion method Assessee consistently following the project completion method - AO notice that the project was not completed before 31st March 2008 - Sale of flats as well as construction work were less than 30% - Held that:- As concluding from the facts of the case AO accepted this fact that on completion of project, the assessee has offered the income to tax after claiming the deduction u/s 80 IB(10). Therefore when the assessee offered the income to tax from the entire project for the A.Y 2008-09 which has been adopted by the AO for estimation of the income for the year under consideration, then this fact goes to prove that there is no difference in the rate of profit declared by the assessee for the A.Y 2008-09 and the rate adopted by the assessing officer for the year under consideration. Thus there is no revenue effect and the income offered by the assessee on completion of the project is revenue neutral. In favour of assessee
Deduction u/s 80IB(10) - More than one approval obtained from the local authorities - First approval dated 12.9.2003 was obtained by the earlier owner for the project -
Due to substantial change in the housing project assessee obtained another from local authorities on 28.9.2005 Held that:- When the project in question was sanction after 1.4.2004, then as per clause (a) (ii) of sec 80IB(10), it is required to be completed within four years from the end of the F.Y in which it is approved by the local authorities. Since the project in question was sanctioned on 28.9.2005; therefore, the same was required to be completed on or before 31.3.2010. Accordingly, we hold that the assessee has complied with the conditions of completion within four years from the end of the financial year 2005-06. In favour of assessee
Deduction u/s 80IB(10) Correct measurement of size of plot on which project developed - Discrepancy in the records of the Government agencies with regard to the actual size of the plot of land Held that:- If it is ultimately found that the area of plot is more than one acre, then deduction u/s 80IB cannot be denied on the basis of the area of plot shown in the 7/12 extract as less than one acre. This factual aspect is required to be verified physically either by the competent revenue authorities or by the AO through some agencies. The assessee is also directed to get the demarcation and correct measurement by the competent authority. Issue remand back to AO.
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2012 (12) TMI 807
Jurisdiction power u/s 263 by CIT(A) - claim of depreciation on car against salary and interest from the firm Held that:- The AO made an addition of Rs.17,533/-, treating the same as monetary perquisite, being interest free loan as the tax on the same as not exempt u/s 10(10CC) of the Act. The addition was made by the AO, on perusal of form No. 16A and on the basis of explanation, filed by the assessee.
It is evident that the AO, has taken a legally permissible view, in the matter, in terms of the provisions of Section 10(10CC). The CIT has computed the income of Rs.18,339/- in respect of interest paid by the employer, as is evident from findings of the CIT. The issue, in question has been dealt with and considered by the AO, after application of mind and making requisite enquiries. Therefore, CIT is not competent u/s 263 to substitute his opinion, in place of the view taken by the AO. The impugned order of the CIT, falls beyond the statutory pale of Section 263 view further supported by the decision of the Apex Court n the case of Malabar Industrial Co. Ltd.V CIT [2000 (2) TMI 10 - SUPREME COURT] - in favour of assessee.
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2012 (12) TMI 806
Disallowance of Premium paid for Keyman Insurance Policy Held that:- The object and purpose of a keyman insurance policy is to protect the business against a financial set back which may occur, as a result of a premature death, to the business or professional organization. There is no rational basis to confine the allowability of the expenditure incurred on the premium paid towards such a policy only to a situation where the policy is in respect of the life of an employee. It safeguard the firm against a disruption of the business that may result due to the premature death of a partner. Therefore, the expenditure which is laid out for the payment of premium on such a policy is incurred wholly and exclusively for the purposes of business - Disallowance made by the AO is directed to be deleted - in favour of assessee.
Foreign Traveling Expenditure - Held that:- Entire Expenditure on foreign traveling was on account of business exigencies and the countries traveled i.e. USA and Canada represent 80% of the turnover of the assessee firm and same countries have been visited on a continuous basis year after year to maintain the business relation and to expand the same. It was further submitted that the fringe benefit tax (FBT) @ 5% on entire expenditure on foreign traveling had been paid separately to take care of any possible personal use of the funds of the firm while on foreign tour and the partners have traveled individually and not alongwith their families so as to suggest personal use of funds of the firms. Any disallowance in addition to fringe benefit tax has to be based on concrete evidence available with the AO and in case of estimation specific reasons need to be brought on record like an unusual increase in foreign traveling expenses especially the unvouched expenses vis-avis last year/years - appeal of the Revenue is dismissed.
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2012 (12) TMI 805
Reopening of Assessment report of the DVO in respect of construction of the building by the assessee - Held that:- As decided in ACIT Vs. Dhariya Constructions Co. [2010 (2) TMI 612 - SUPREME COURT OF INDIA] mere opinion of the DVO in relation to the cost of construction of the building owned by the assessee, in the absence of any other information collected against the assessee is not an information and reopening of assessment by way of proceedings under section 147/148 are invalid and are hereby cancelled. Consequently, the assessment order passed under section 143(3) r.w.s. 147 in the present case is hereby cancelled - all the four appeals relating to assessment years 2001-02 to 2005-06 filed by the assessee are allowed - against revenue.
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2012 (12) TMI 804
Visa Charges and Others Whether liable to FBT Held that:-The incurring of visa charges may result in tour and travel of employees but the objective and purpose of incurring these and other related expenditure is for the carrying on of business outside India. Further, visa charges are a statutory payment. It is a legitimate business expenditure incurred by the assessee and is neither paid to the employees as a consideration for employment, nor are they incurred for the benefit of the employees of the assessee company.
As decided in M/s. Toyota Kirloskar Motor P. Ltd. Vs. Addl. CIT (LTU), Bangalore [2012 (6) TMI 484 - ITAT, BANGALORE] legitimate business expenditure which does not result in any benefit to employees is not liable to FBT - Thus the findings of CIT(A) in concluding that the expenses under the head Visa Charges and Others are not liable for FBT are correct - in favour of assessee.
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2012 (12) TMI 803
Detention on goods on account of alleged hazardous qualities - demanding Release of seized 96.74 Metric Tonnes of Copper Concentrate as could be processed and disposed of in accordance with the Hazardous Wastes (Maintenance and Handling) Rules, 1989 - Held that:- In the guidelines for expeditious clearance/provisional release under Customs Manual paragraph 2.2. (c) it has been written for dispute case pending investigation wherever importer or exporter is willing, he should be allowed provisional clearance of the goods by furnishing a bond for full value of the goods supported by adequate bank guarantee as may be determined by the proper officer. The value of bank guarantee shall not exceed twice the amdunt of duty. The provisional clearance should be allowed as a rule and not as an exception
As respondents submits that they undertake to abide by the said provisions I.A. is disposed of with a direction upon the appellant, Customs Authorities, to release the goods in question to the respondents, subject to compliance with the provisions of Chapter 15 of the Customs Manual, 2011.
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2012 (12) TMI 802
Tax defaulter - former director in the company - government dues under the Customs Act, 1962 - Held that:- Considering the provisions of section 142 & Relevant Rules it is only the defaulter against whom steps may be taken under Rules. The defaulter is the person from whom dues are recoverable under the Act, which in the present case undoubtedly is the company. There is no averment that the company has been or is being wound up. In that case, there cannot be any question about the separate juristic personality of an existing company and its former director, the dues recoverable from the former cannot, in the absence of a statutory provision, be recovered from the latter.
There is no provision in the Customs Act, 1962 corresponding to Section 179 of the Income Tax Act, 1961 or Section 18 of the Central Sales Tax, 1956 which enable the revenue authorities to proceed against directors of companies or such like third parties who are not defaulters - As decided in UOI vs. M.D. Lotlikar [1987 (11) TMI 24 - BOMBAY HIGH COURT] the directors of any company, whether public limited or private, are not personally liable for the debts of the company unless the Company Court finds them guilty of any misfeasance or wrongs - Thus the impugned notices and action of the Customs authorities in the present case is at once in utter violation of Article 265 of the Constitution, as it seeks to recover tax dues of one from another, without authority of law. It also amounts to illegal deprivation of the petitioners property, without authority of law, under Article 300-A of the Constitution of India - Writ allowed.
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2012 (12) TMI 801
Scheme of Amalgamation - Held that:- The requirement of convening meetings of Shareholders & un-secured creditors in view of the written consents/NOC given by all the Shareholders of the Transferor Company and the Transferee Company are dispensed with - Report of Official Liquidator stating that he has not received any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Transferor Company do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public interest.
Application for compounding of the contravention of provisions of FEMA forwarded and the Compounding Authority of the Reserve Bank of India was pleased to compound the contraventions in accordance with the Foreign Exchange (Compounding Proceeding) Rules 2000.
No objection has been received to the Scheme of Amalgamation from any other party there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation - The petitioner companies will comply with the statutory requirements in accordance with law with filing certified copy of the formal order with the ROC within 30 days - the whole or part of the undertaking, the property, rights and powers with all the liabilities and duties of the Transferor Company be transferred to and vest in the Transferee Company without any further act or deed - this order will not be construed as an order granting exemption from payment of stamp duty or any other charges - Petitioner Companies would voluntarily deposit a sum of Rs. 1 Lac in the Common Pool fund of the Official Liquidator within three weeks from today.
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2012 (12) TMI 800
Scheme of Arrangement for de-merger - Held that:- The proposed Scheme has been approved by the Board of Directors of both the Applicant Companies.
In view of the written consents/NOC given, the requirement of convening meetings of Shareholders of the Demerged Company and the Resultant Company are dispensed with.
As that the Un-secured Creditors of both the Applicant Companies have given their written consents/NOC to the proposed Scheme. Accordingly, the requirement of convening meeting of their meeting is also dispensed with. There is no requirement of convening the meetings of the Secured Creditors of the Applicant Companies as they do not have any - application of demerger so allowed.
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2012 (12) TMI 799
Scheme of Arrangement - Held that:- The requirement of convening meetings of Equity Shareholders, Secured and Unsecured Creditors of the Petitioner Companies is dispensed with - Affidavit of service and publication of notice has been filed by the petitioners showing compliance regarding service of the petition on the Regional Director, Northern Region and the Official Liquidator.
Report of Official liquidator that he has not received any complaint against the proposed Scheme from any person/ party interested in the Scheme - approval accorded by the Shareholders and Creditors of the petitioner Companies, representations/ reports filed by the Regional Director, Northern Region and the official liquidator to the proposed scheme of Arrangement, there appears to be no impediment to the grant of sanction to the Scheme of Arrangement - The petitioner companies will comply with the statutory requirements in accordance with law with filing certified copy of the formal order with the ROC within 30 days - this order will not be construed as an order granting exemption from payment of stamp duty or any other charges - Petitioner Companies would voluntarily deposit a sum of Rs. 1 Lac in the Common Pool fund of the Official Liquidator within three weeks from today.
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2012 (12) TMI 798
Refund claim for the excise duty - denial of claim - Held that:- Purchaser being the defence organisation of Government of India, the question of passing on the excise duty to any other person does not arise and ordnance depot not being a manufacturer of any goods, could not have taken Cenvat Credit - Refund claim of respondent accepted - against Revenue.
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2012 (12) TMI 797
Carry forward and set-off of underutilized cenvat credit - change of status due to amalgamation - Held that:- Merger causes diminishing of the status of amalgamating companies after amalgamation. No Right existing before amalgamation cannot be claimed to be a right existing amalgamation - Carry forward and Set-off of unutilised cenvat credit in the hands of amalgamated company is denied - in favour of Revenue.
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2012 (12) TMI 796
Reversal of Credit proportionate to the inputs used in or in relation to the manufacture of the exempted goods - Held that:- The applicants are procuring iron ore and metallurgical coke and only screening the same and during the process of screening the iron ore fine and coke breeze come into existence which is not fit for use in the manufacture of pig iron and the same are being cleared without payment of duty. As the provisions of Rule 6 of the Cenvat Credit Rules are amended retrospectively and the manufacture has to reverse the credit proportionate to the inputs used in or in relation to the manufacture of the exempted goods, the applicants are directed to deposit Rs. 8,00,000/- within six weeks.
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2012 (12) TMI 795
Breakage of glass bottles during the manufacture of aerated beverages - denial of credit relying on Boards circular dated 9.7.2010 - Held that:- The period of demand in the present case is November 2009 to June 2010 i.e. prior to the issue of the circular dated 9.7.2010 to be treated as prospective in nature and cannot be held to be retrospective.
During the period in dispute, there was a Board circular dated 17.9.1975 which clarifies that the breakage of bottles in the manufacture of aerated beverages upto 0.5% is condonable and manufacturer is not liable to reverse the credit - in favour of Appellant.
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2012 (12) TMI 794
Condonation of Delay of 388 days - Held that:- The delay has consciously occurred in the hands of the appellant. The huge gaps between two actions like sending the order to the Circle office, advise of the advocate, subsequent visit of the Accounts Officer and handing over of papers to the advocate, reflects upon very casual approach adopted by the appellant which cannot be considered to be reasonable. As such no reason to condone the huge delay of 388 days - stay petition and appeal dismissed as barred by limitation.
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2012 (12) TMI 793
Refund of input service tax credit for the activities undertaken within the SEZs - Business Auxiliary Services - Held that:- As clarified by the Board in the Circular no. 105/8/2008 dated 16.09.2008 it is for the jurisdictional Excise/Service Tax authorities to deal with the refund claims filed by the SEZ units. Therefore, it is very clear that the appellant is eligible for refund of service tax paid which was not required to be paid under section 11B of the Act itself, provided that the appellant has filed the refund claim within the prescribed time-limit and the bar of unjust enrichment does not apply.
As the appellant has exported the output service the principle of unjust enrichment does not apply - remand the case back to the original adjudicating authority to examine the claim with respect to the time-limit involved and if the refund claim is in time, to sanction it - in favour of assessee by way of remand.
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9911796707
