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Showing 441 to 460 of 920 Records
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2010 (7) TMI 796
Voluntary retirement payments - claim u/s 10(10C) - The facts of the case are that assessee is a Deputy Manager in SBI and has taken VRS under exit option scheme introduced by the Bank of India. The assessee received salary and pension (including ex gratia). On examination of Form No. 16 the AO noticed that assessee received ex gratia of Rs. 3,07,236 on VRS. He claimed exemption u/s10(10C). The AO disallowed the claim by following Circular No. Chief CIT, Baroda letter BRD/Chief CIT/Tech/MICS/10(10C)/2009-10.
HELD THAT:- In the case of SAIL DSP VR Employees Association 1998 v. UOI [2003 (2) TMI 46 - CALCUTTA HIGH COURT] held as under Sums paid on voluntary retirement to the extent of rupees five lakhs are exempted from being charged to tax by reason of section 10(10C). Even if the payment is stretched over a period of years, the same would not become chargeable to tax in any subsequent assessment year. They have also held that provision of section 10(10C) should be interpreted in a manner beneficial to the optee for voluntary retirement. Similarly, In the case of CIT v. P. Surendra Prabhu[2005 (9) TMI 67 - KARNATAKA HIGH COURT] held that the assessee, employee of the respondent bank was not only entitled to the benefit of exemption u/s 10(10C) to the extent prescribed in the provision itself but for any amount over and above the prescribed limit; under the aforesaid provision, the assessee was also entitled to relief u/s 89(1) r/w rule 21A.
Respectfully following the above decision of the Tribunal, we allow the claim of assessee. In the result, appeal of the assessee is allowed.
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2010 (7) TMI 795
Issues:
1. Deduction under section 10A claimed by the assessee.
2. Deduction on account of bad debts written off.
3. Adjustment on account of arm's length price in transactions with overseas associated enterprises.
Issue 1: Deduction under section 10A claimed by the assessee:
The assessee, a software company, claimed a deduction under section 10A in its return of income. The Assessing Officer disallowed the claim due to lack of evidence. The ld. CIT(A) allowed the deduction, citing previous year's allowance and judicial precedents. The Tribunal upheld the ld. CIT(A)'s decision, emphasizing the importance of consistency in granting deductions unless specific reasons exist to withdraw them.
Issue 2: Deduction on account of bad debts written off:
The ld. CIT(A) found that the conditions for claiming deduction on account of bad debts written off were met by the assessee. The Revenue's appeal on this ground was dismissed as the ld. CIT(A)'s findings were not rebutted. The Tribunal upheld the decision, as there was no valid reason to interfere.
Issue 3: Adjustment on account of arm's length price in transactions with overseas associated enterprises:
The TPO's report required an adjustment of Rs. 7,07,66,474 in transactions with overseas associated enterprises. The assessee pointed out mistakes in the TPO's report, and after corrections, the difference in prices was less than 5%. The ld. CIT(A) deleted the addition based on the proviso to section 92C(2), which allows a 5% variance. The Tribunal upheld this decision, as the price difference was within the permissible limit, and no adjustment was required.
In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the ld. CIT(A)'s decision on all issues raised.
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2010 (7) TMI 794
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Revision u/s 263 - Whether the CIT was justified in invoking the provisions of section 263 and directing the AO to re-compute the book profit u/s 115JB by considering the P&L account prepared in accordance with Parts II and III of Schedule VI to the Companies Act, 1956 on account of gains arising out of the transfer of assets to wholly-owned subsidiary as part of book profit without considering the provisions of section 47(iv)? - facts of the case are that, the assessee is a company filed return of income for the AY 2004-05 declaring a loss and assessment was completed u/s 143(3) determining the total loss after making an addition towards deferred revenue expenditure.
HELD THAT:- Even declaration of dividend is not a must for application of section 115JB. The purpose of this section is to tax companies which were making profits but not paying taxes due to so many exemptions and deductions. The reference to the declaration of dividend in the context of section 115JB by the Finance Minister or by the Circulars are merely explanations to the kind of malaise that the section sought to address. For invoking this section, there is no pre-requisite condition that the company should have declared dividend to the shareholders.
Long-term capital gain is to be included in the net profit prepared under the Companies Act and the same is not deductible from the net profit for the purpose of computing book profit u/s 115JB. We further hold that merely because the long-term capital gain is exempt u/s 47(iv) under the normal provision of the Act, it is not correct to say that it is also to be reduced from the net profit for the purpose of computing book profit u/s 115JB when the Explanation to section 115JB does not provide for any deduction in terms of section 47(iv). In other words, we hold that section 47(iv) of the Act has no application in the computation of book profit under section 115JB of the Act.
In fact only because the Government felt that companies availing of various deductions permitted under the Income-tax Act showed a low income for the purpose of income-tax but was able to show healthy profits as per books on the basis of which dividends were distributed and to tax these types of companies that tax on book profits were introduced. By again importing deductions allowed under the normal provisions of income-tax into computation of book profits, we will be negating the very purpose for which these sections were introduced. To sum up, we hold that in the absence of any provision for exclusion of capital gains exempted in the computation of book profit under the provisions contained in Explanation to section 115JB, the assessee is not entitled to the exclusion thereof as claimed.
In the result, we answer the question as against the assessee.
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2010 (7) TMI 793
Issues Involved:1. Applicability of Article 8A of the DTAA between India and Netherlands. 2. Existence of a Permanent Establishment (PE) in India for the assessee. Summary:Issue 1: Applicability of Article 8A of the DTAA between India and NetherlandsThe assessee, a non-resident company incorporated in the Netherlands, claimed its freight income as non-taxable under the DTAA with the Netherlands. The Assessing Officer (AO) rejected this claim, noting that the assessee was engaged only in the hiring of containers and not in the operation of ships. Therefore, the profits derived from the use, maintenance, or rental of containers were not incidental to the operation of ships, making the assessee ineligible for exemption under Article 8A. The CIT(A) upheld this view, stating that the hiring of containers could not be considered incidental to the operation of ships. The Tribunal agreed, stating, "the benefit of Article 8A could not be extended to income derived from freight through providing containers." Issue 2: Existence of a Permanent Establishment (PE) in IndiaThe CIT(A) held that the assessee did not have a PE in India as it operated through an agent of independent status, Forbes Gokak Ltd., and thus, no income could be allocated under Article 7 of the DTAA. The department contended that the containers maintained in India constituted a fixed place of business, thus creating a PE. The Tribunal noted that the AO had not given a finding on the PE issue and that the CIT(A) had only considered Article 5(6). The Tribunal decided to restore the matter to the AO for a fresh examination, stating, "it is necessary that all the relevant Articles dealing with this issue are considered by the lower authorities before arriving at any conclusion." Conclusion:The appeal filed by the revenue is allowed for statistical purposes, and the cross objection filed by the assessee is dismissed. The matter is remanded to the AO for a de novo adjudication on the existence of a PE in India and the applicability of Article 7 of the DTAA.
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2010 (7) TMI 792
Issues Involved:
1. Disallowance of fees for technical services under Section 40(a)(i) due to non-deduction of tax at source.
2. Applicability of Double Taxation Avoidance Agreement (DTAA) between India and Austria.
3. Relevance of Section 195 and Section 195(2) of the Income Tax Act.
4. Determination of the applicable DTAA between India and Austria for the assessment year 2002-03.
Detailed Analysis:
1. Disallowance of Fees for Technical Services:
The assessee contested the disallowance of fees for technical services amounting to Rs. 1,15,36,306 under Section 40(a)(i) of the Income Tax Act, arguing that the payment was made to an Austrian company for services rendered in Austria, and thus, no tax was deductible at source.
2. Applicability of DTAA between India and Austria:
The assessee argued that the DTAA entered into between India and Austria in April 1963 was applicable for the assessment year 2002-03. According to Article 7 of this treaty, fees for technical services paid by an Indian company to an Austrian company were not liable to tax in India unless the services were performed in India. The new DTAA signed in September 2001 would only be applicable from the assessment year 2003-04 onwards.
3. Relevance of Section 195 and Section 195(2):
The Revenue contended that the assessee was required to deduct tax at source under Section 195. However, the Tribunal noted that Section 195 applies only if the sum paid is chargeable under the Income Tax Act. Given that the DTAA between India and Austria (1963) exempted the technical service fees from Indian taxation, the provisions of Section 195 and consequently Section 195(2) were not applicable.
4. Determination of the Applicable DTAA:
The Tribunal confirmed that the DTAA entered into in April 1963 was applicable for the assessment year 2002-03. Under Article 7 of this treaty, the fees for technical services provided by the Austrian company, which were rendered entirely in Austria, were not taxable in India. Therefore, no tax was deductible at source, and the provisions of Section 40(a)(i) could not be invoked to disallow the expenditure.
Conclusion:
The Tribunal concluded that the payment made for technical services to the Austrian company was not taxable in India under the applicable DTAA for the assessment year 2002-03. Consequently, the provisions of Section 195 did not apply, and the requirement to obtain a certificate under Section 195(2) did not arise. The disallowance made by the Assessing Officer and upheld by the Commissioner of Income Tax (Appeals) was deleted, and the appeal of the assessee was allowed.
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2010 (7) TMI 791
Issues Involved:
1. Disallowance of Head Office expenses.
2. Disallowance of penal interest paid to RBI.
3. Disallowance of expenses for solicitation of deposits from NRIs.
4. Disallowance of various expenses under Rule 6B, Rule 6-D, Section 43-B, entertainment expenses, and guest house expenses.
5. Disallowance of expenses pertaining to the house in Delhi.
6. Disallowance of irrecoverable transfer charges under section 36(1)(vii) read with section 36(2).
7. Disallowance of losses in ready forward transactions.
8. Disallowance of losses in securities transactions without physical delivery.
9. Disallowance of brokerage expenses.
10. Disallowance of public issue expenses.
11. Disallowance of holiday home expenses.
12. Disallowance of club expenses.
13. Disallowance of architect charges.
14. Addition due to difference between contract and delivery rates.
15. Allowance of set-off of loss in transactions without physical delivery.
16. Disallowance of provision for loss and damages.
17. Disallowance of customary gift expenses.
18. Disallowance of broken period interest.
19. Disallowance of penal interest for shortfall in maintaining Cash Reserve Ratio (CRR).
Detailed Analysis:
1. Disallowance of Head Office Expenses:
The Tribunal deleted the disallowance of Rs. 83,38,502 made by the Assessing Officer and confirmed by the CIT(A) based on the decision in the assessee's own case for AY 1992-93, where it was held that direct expenses incurred at the Head Office on behalf of the Indian branches are governed by section 37 and not section 44-C.
2. Disallowance of Penal Interest Paid to RBI:
The Tribunal deleted the disallowance of Rs. 13,82,967 for AY 1993-94, Rs. 198,622 for AY 1994-95, and Rs. 3,108,429 for AY 1995-96, confirming that penal interest paid to RBI for shortfall in maintaining SLR was compensatory in nature and allowable as deduction, following the decision in Prakash Cotton Mills (P.) Ltd. v. CIT.
3. Disallowance of Expenses for Solicitation of Deposits from NRIs:
The Tribunal deleted the disallowance of Rs. 5,65,69,014 for AY 1993-94, Rs. 3,24,211,381 for AY 1994-95, and Rs. 8,861,988 for AY 1995-96, holding that these expenses were incurred to mobilize NRI deposits for Indian branches and were allowable under section 37.
4. Disallowance of Various Expenses:
The Tribunal deleted the disallowance of various expenses under Rule 6B, Rule 6-D, section 43-B, entertainment expenses, and guest house expenses, relying on Article 111(3) of the DTAA between India and France, as decided in the case of Bank Indosuez.
5. Disallowance of Expenses Pertaining to the House in Delhi:
The Tribunal upheld the disallowance of Rs. 5,98,324, as the assessee failed to provide evidence that 2/3rd portion of the guest house was used as a residence by its Regional Head.
6. Disallowance of Irrecoverable Transfer Charges:
The Tribunal restored the issue to the Assessing Officer to verify the alternative claim of the assessee for deduction on account of irrecoverable transfer charges as business loss.
7. Disallowance of Losses in Ready Forward Transactions:
The Tribunal allowed the assessee's claim for losses in ready forward transactions, following the decision in the case of Bank of America and the assessee's own case for AY 1992-93.
8. Disallowance of Losses in Securities Transactions Without Physical Delivery:
The Tribunal directed the Assessing Officer to allow the set-off of loss suffered by the assessee from transactions without physical delivery against profits earned from similar transactions after verifying the relevant figures.
9. Disallowance of Brokerage Expenses:
The Tribunal deleted the disallowance of Rs. 3 lacs, allowing the brokerage paid to M/s. Darashaw & Co. as deduction since the assessee made a profit from the transactions.
10. Disallowance of Public Issue Expenses:
The Tribunal upheld the CIT(A)'s deletion of the disallowance, confirming that acting as Manager or underwriter to the public issue is part of banking activity and the related expenses are allowable as business expenditure.
11. Disallowance of Holiday Home Expenses:
The Tribunal upheld the CIT(A)'s deletion of the disallowance, confirming that no disallowance under section 37(4) could be made for expenses incurred on holiday homes maintained for employees.
12. Disallowance of Club Expenses:
The Tribunal upheld the deletion of disallowance, confirming that club expenses are revenue expenses incurred in connection with the assessee's business and no disallowance on account of entertainment expenses can be made due to amendments in the Income-tax Act.
13. Disallowance of Architect Charges:
The Tribunal restored the matter to the Assessing Officer for verification as the relevant details of the expenses were not furnished by the assessee.
14. Addition Due to Difference Between Contract and Delivery Rates:
The Tribunal upheld the CIT(A)'s deletion of the addition, confirming that the cost price includes brokerage and no addition was warranted.
15. Allowance of Set-off of Loss in Transactions Without Physical Delivery:
The Tribunal upheld the CIT(A)'s decision, confirming that the set-off of loss against profits from similar transactions is allowable.
16. Disallowance of Provision for Loss and Damages:
The Tribunal restored the matter to the Assessing Officer to verify the claim that the amounts written off were related to the assessee's business and actually incurred in the year under consideration.
17. Disallowance of Customary Gift Expenses:
The Tribunal upheld the CIT(A)'s deletion of the disallowance, confirming that customary gifts are business expenses allowable under section 37(1).
18. Disallowance of Broken Period Interest:
The Tribunal restored the issue to the Assessing Officer for fresh adjudication in accordance with the guidelines laid down in the assessee's own case for AY 1990-91.
19. Disallowance of Penal Interest for Shortfall in Maintaining CRR:
The Tribunal deleted the disallowance of Rs. 146,231,886 and Rs. 4,905,792, confirming that penal interest paid to RBI for shortfall in maintaining CRR is compensatory in nature and allowable as deduction.
Conclusion:
The Tribunal's decisions were largely in favor of the assessee for most of the issues, with several disallowances being deleted based on prior decisions and judicial pronouncements. Some issues were restored to the Assessing Officer for fresh adjudication. Appeals of the assessee were mostly allowed, while appeals of the revenue were dismissed.
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2010 (7) TMI 790
Issues:
1. Entitlement to relief under Article 9 of the DTAA between India and France.
2. Inland haulage charges as part of the profit from the operation of ships or not.
Issue 1: Entitlement to relief under Article 9 of the DTAA between India and France.
The Appellate Tribunal noted that the issue of entitlement to relief under Article 9 of the DTAA had been previously decided by the CIT(A) and the Tribunal for the assessment year 2001-02. The Tribunal highlighted that the benefit of Article 9 would not be available solely based on global shipping business engagement. The Tribunal emphasized the importance of establishing a link between the transportation of cargo by feeder vessels and mother vessels owned, leased, or chartered by the assessee. Since the assessee failed to provide complete evidence before the Assessing Officer, the Tribunal remanded the issue back to the CIT(A) for fresh adjudication, emphasizing the need for proper verification and evidence to establish the linkage between vessels. The Tribunal directed the CIT(A) to provide the assessee with another opportunity to substantiate the connection between feeder and mother vessels for a fair decision.
Issue 2: Inland haulage charges as part of the profit from the operation of ships or not.
Regarding the classification of inland haulage charges, the Tribunal referred to a previous decision related to the treatment of such charges as part of the "profits from the operation of ships." The Tribunal highlighted that the treatment of haulage charges would depend on the treatment of freight related to the voyage by feeder vessels. If the freight attributable to feeder vessels falls under Article 9(1), then the haulage charges would also fall under the same article. However, if the freight is not covered under Article 9(1), the charges would be considered as business profits under Article 7 of the DTAA. The Tribunal instructed the CIT(A) to pass an appropriate order based on the previous decision. Additionally, the Tribunal directed the CIT(A) to adjudicate on the tax rate applicable if a portion of the profit earned by the assessee is not exempt under Article 9, providing the assessee with a fair opportunity to present their case.
In conclusion, the Appellate Tribunal remitted both issues back to the CIT(A) for fresh adjudication, emphasizing the importance of providing complete evidence and ensuring a fair opportunity for the assessee to present their case for a just decision.
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2010 (7) TMI 789
Issues Involved:
1. Set off of unabsorbed depreciation for the assessment year 2002-03.
2. Addition of Rs. 4,29,600 as a balancing charge under section 41(2) of the Income-tax Act.
3. Addition of Rs. 30,000 under section 68 of the Income-tax Act.
Issue-wise Detailed Analysis:
1. Set off of Unabsorbed Depreciation for Assessment Year 2002-03:
The assessee challenged the disallowance of set off of unabsorbed depreciation of Rs. 31,64,143 for the assessment year 2002-03. The Assessing Officer (AO) noted that the revised returns for the assessment years 2002-03 and 2003-04 were filed beyond the prescribed time-limit under section 139(5) of the Income-tax Act, rendering them invalid. Consequently, the AO remarked that unabsorbed depreciation could only be allowed if it was determined as a result of a valid assessment, which was not the case here since no depreciation was claimed in the valid return for the assessment year 2002-03. The learned CIT(A) upheld the AO's decision, noting that the revised returns were invalid and that no business income or depreciation was declared in the original return for the assessment year 2002-03. Therefore, there was no question of carrying forward unabsorbed depreciation to the subsequent year. The Tribunal confirmed the findings of the authorities below, stating that section 32(2) of the Income-tax Act, which deals with the carry forward of unabsorbed depreciation, would not apply since no business income or depreciation was declared in the assessment year 2002-03.
2. Addition of Rs. 4,29,600 as a Balancing Charge under Section 41(2):
The assessee also contested the addition of Rs. 4,29,600, which the AO disallowed as a loss on the sale of vehicles, treating it as a capital loss already included in the short-term capital loss allowed to be carried forward. The CIT(A) upheld this addition, noting that the AO had correctly computed the short-term capital loss and that the revised returns filed by the assessee were invalid. The Tribunal agreed with the CIT(A)'s findings, noting that the assessee's claim for set off of unabsorbed depreciation was invalid due to the invalid revised returns and the absence of any business income or depreciation claim in the original return for the assessment year 2002-03.
3. Addition of Rs. 30,000 under Section 68:
The AO made an addition of Rs. 30,000 under section 68 of the Income-tax Act, noting that the assessee had taken loans in cash from two persons without providing sufficient details to establish their creditworthiness. The CIT(A) confirmed this addition, stating that the amounts were given in cash, the depositors were not assessed to tax, and no source of income was established. The Tribunal upheld the authorities' findings, stating that the assessee had failed to discharge the onus of proving the genuineness of the credits by not providing evidence of the creditors' creditworthiness or source of income.
Conclusion:
The Tribunal dismissed the appeal of the assessee, confirming the findings of the authorities below on all grounds. The set off of unabsorbed depreciation was disallowed due to invalid revised returns and the absence of business income or depreciation claim in the original return for the assessment year 2002-03. The addition of Rs. 4,29,600 as a balancing charge and the addition of Rs. 30,000 under section 68 were also upheld due to the lack of evidence supporting the assessee's claims.
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2010 (7) TMI 788
Cenvat credit - Whether credit can be allowed on the basis of debit entry in the cenvat credit account – Held that:- payment of service tax was not made through challan instead the payment was made through debit entry in the cenvat credit account and the debit entry in the cenvat credit account was made on the basis of LR i.e. Lorry receipt received by the respondents from the transporter. LR has all the details showing the name of consignor and consignee, serial number and in the note below it is stated that the service tax to be paid by the consignee. Therefore, the details mentioned in the LR provided all the required information. Departmental appeal is dismissed.
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2010 (7) TMI 787
Deletion of unexplained cash credit and unexplained investment - CIT(A) and ITAT deleted the addition - held that:- Revenue made strenuous efforts to persuade this Court to re-appreciate the evidence and record fresh conclusion on the basis thereof. But the counsel could not point out any mis-reading or mis-appreciation of evidence on the basis of which it could be recorded that the findings of CIT (A), which were approved by the Tribunal, were erroneous or perverse in any manner. The view taken by the authorities below is plausible view based on appreciation of evidence available on record. No exception can, therefore, be taken to said findings.
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2010 (7) TMI 786
Whether Tribunal was right in law in upholding the order of the first appellate authority deleting the addition made as income from undisclosed sources on account of difference between the cost of construction declared by the assessee and that estimated by the DVO - Departmental Valuation Officer (in short "the DVO") estimated the cost of construction at Rs. 8,89,540. The assessee also got the services of a registered valuer who estimated the cost at Rs.4,56,900 but the Assessing Officer adopted the valuation made by the DVO - Revenue submitted that even incomplete construction had the valuation and, therefore, the Tribunal was not justified in holding that in case of incomplete construction, the reference to the DVO was premature – Held that:- According to sub-section (3), the Assessing Officer on receipt of report from the Valuation Officer may take the same into consideration while making assessment or reassessment after providing an opportunity of being heard to the assessee. However, a proviso has been added, according to which this section shall not apply in respect of an assessment made on or before September 30, 2004, where such assessment has become final and conclusive on or before that date except in cases where a reassessment is required to be made in accordance with the provisions of section 153A.
Section 142A of the Act is not attracted to the facts of the present addition sought to be made on the basis of report of the DVO cannot legally be done. decision against the Revenue and in favour of the assessee.
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2010 (7) TMI 785
Share dealing transactions - Addition on account of unaccounted commission earned by the assessee on share dealing transactions - Claim of the assessee that it was receiving only 1.50% commission on long term transactions and 0.30% commission on total transactions was duly considered – Held that:- assessee itself surrendered additional income was also taken into account which fact itself shows that the initial declaration of income of the assessee was not genuine. In absence of genuineness of the stand of the assessee, the Tribunal held that rate of 0.75% to the gross turnover would be a fair assessment, appeal is dismissed
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2010 (7) TMI 784
Whether ITAT was justified in adopting the rate of land at Rs. 70/- per sq. yd. being the basic allotment rate by the Housing Board as against the rate of Rs. 1260/- per sq. yd. as adopted by Registered Valuer - plea of the assessee was that the cost of acquisition should be calculated at the rate of Rs. 1260/- per square yard as against Rs. 70/- per square yard applied by the Assessing Officer. The assessee relied upon the valuation report from a registered valuer and submitted that the allotment rate does not reflect the fair market value – Held that:- It was not incumbent upon the Assessing Officer or the appellate authorities to have accepted the report of the registered valuer merely because there was no other evidence to rebut the report of the registered valuer, No specific instances were produced by the assessee, finding of the CIT(A) as well as the Tribunal, against the assessee cannot be held to be a perverse finding, appeal is dismissed
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2010 (7) TMI 783
Concessional rate of sales tax - goods - The Assistant Commissioner, Commercial Tax came to the conclusion that the concession has been extended to non-taxable goods also and formed an opinion that the concession is applicable only to "goods" and newspaper was not a "goods" within the meaning of section 2 of the Act. - Kerala General Sales Tax Act, 1963 - held that:- The matter is remanded to the High Court for consideration afresh in accordance with law on both the aforesaid submissions while leaving all the contentions of the assessee and the Department open for the year 2000-01, in relation to imposition of penalty under section 45A of the Act.
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2010 (7) TMI 782
Whether Tribunal was right in law in allowing depreciation on foreign cars in view of the provisions of section 32(1)(ii) – Held that:- purpose of exclusion by way of proviso of claims for depreciation of imported cars incorporated by the second proviso to Section 32 (1)(ii) of the Act was not to deny depreciation on foreign cars used in foreign countries for business abroad. It cannot be denied that cars used for business abroad at a foreign site is eligible for claiming depreciation, but for the proviso. There is no justification to read the proviso as excluding the said benefit which is otherwise a legitimate claim, claim of the assessee for depreciation on foreign cars used at foreign sites for its business is clearly admissible. decision against the revenue and in favour of the assessee Whether Tribunal was right in law holding the construction business as industrial undertaking and allowing deductions u/s 80J & 80-HH when the different courts have held contrary to that – Held that:- activity of the assessee, as already mentioned above, is construction and fabrication of mechanized houses, which cannot be equated to manufacture and production of articles or things, questions referred have to be answered in favour of the revenue and against the assessee. The assessee was not entitled to deduction under Sections 80J and 80HH of the Act
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2010 (7) TMI 781
Extension of period of retaining Books of account - Assessing Officer can retain the books of account only for 15 days. The outer limit can be crossed with the prior approval of the higher authority and for relevant reasons and for reasonable period and not for indefinite period. The reasonable period that can constitute an outer limit is 15 days and, therefore, the extended period can supplement the normal 15 days period statutorily fixed by a few more days and not by a few months or a few more years - Held that:- learned single judge was justified in entertaining the writ petition, issuing a direction to return the books of account, appeal is dismissed
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2010 (7) TMI 780
Winding up - huge amount is due from the respondent, since the respondent-company had stopped the manufacturing process – Held that:- agreements entered into with the approval of the secured creditors, the manufacturing process of the respondent-company was allowed to commence on supply of materials by the applicant with the main intention that the applicant which is one of the creditors has to receive large amounts from the respondent and therefore, not only public interest is involved in the said agreements, but the agreements also work for the betterment of the respondent-company and its creditors, particularly, the secured creditors since the agreements gave scope for revival of the respondent-company and ultimately, in that event, it would result in the dismissal of the company petition itself, application stands allowed
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2010 (7) TMI 778
Whether Tribunal onus was on the assessee to establish the source of receipt shown to have been received as sales proceeds and in upholding its assessment as assessee's income from the undisclosed sources - Assessing Officer took the view that M/s Sandeep Wire Industries is not traceable and a non-existing entity, therefore, no sale was made to the said firm – Held that:- assessee had taken this specific plea, in the alternative i.e. without prejudice to his contention that the sales were actually made and the receipt should not have been received as income from undisclosed sources before the CIT(A) as well as Income Tax Appellate Tribunal, plea was rejected by both these authorities observing that in order to accept this plea further evidence was required to be produced which was in the knowledge of the assessee, assessee was maintaining that it had actually made the sales, Assessing Officer did not deal with the issue from this angle at all and such a reasoning adopted by the CIT(A) and ITAT was based on surmises and imagination, Reference in favour of the assessee and against the Revenue
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2010 (7) TMI 776
Revival/restructuring of company - meetings of inter-corporate depositors ('ICDs') and staff creditors were held and the scheme was approved by the staff creditors unanimously and by ICDs by a majority of more than 3/4ths - three persons filed their objections, namely, S.K. Modi Group, Malanpur Steel Ltd. and Paradise Credit (P.) Ltd - objection of the Malanpur was that it is a decree-holder and is, thus, wrongly classified as ICD and it should have been classified as a decree-holder and the decretal amount should have been treated at the principal amount - contention of Malanpur that it was a secured creditor of the company and, therefore, it had right to get the entire decretal amount - Other objection of Malanpur, that as per the scheme even the payment of first instalment had been made upon conditional withdrawal of suits and other criminal complaints filed under section 138 of Negotiable Instruments Act, 1881 ('NI Act') and undertaking from respective creditors to support reorganisation in the capital structure of the company - Merely because certain shares were pledged with the Malanpur, would not make it a secured creditor - whether a decree-holder stands at the same footing as that of an unsecured creditor when the matter is before the company court for sanction of a scheme filed by a company - decree-holder in the light of the said section 390(c) of 1956 Act also stands on the same footing as that of an unsecured creditor and it has to be accepted that even after obtaining a decree against the appellant/petitioner by the decree-holder, the respondent herein, shall be deemed to be of the same class as that of other unsecured creditors under the said section - payment would be made to Malanpur Steels Ltd. as per the sanctioned Scheme and once the entire payment is made, Malanpur shall withdraw the proceedings under section 138 of the NI Act which were filed by it alleging non-payment of dues in the form of dishonour of the cheques, review petition bereft of any merit, dismissed
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2010 (7) TMI 774
Demand of service tax and penalty - Air Travel Agent’ service - SCN, alleging that the petitioner-assessee had short-paid service tax - petitioner-assessee had paid service tax voluntarily before the issuance of show cause notice - Benefit of proviso to Section 78 - person, liable to pay such service tax or erroneous refund, as determined under sub-section (2) of section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice, the amount of service tax so not levied or paid or short-levied or short-paid or erroneously refunded - Provided that where such service tax as determined under sub-section (2) of section 73, and the interest, payable thereon under section 75, is paid within thirty days from the date of communication of order of the Central Excise Office determining such service tax, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the service tax so determined, assessee claims to have paid service tax much prior to the determination of its tax liability under sub-section (2) of Section 73 - Matter remanded to Adjudicating Authority and directed to consider the question whether or not the petitioner-assessee has discharged its tax liability in terms of the first proviso to Section 78 of the Act. On proper and correct quantification of tax liability under the Act with relevant dates of payments, if the Adjudicating Authority comes to the conclusion that the petitioner-assessee is entitled to the benefit of the first proviso to Section 78, the Adjudicating Authority shall grant the benefit to the petitioner-assessee while quantifying its tax liability, appeal is dismissed
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