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Case Laws
Showing 461 to 480 of 558 Records
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2012 (2) TMI 188
Principle of mutuality - Assessee co-operative society running Gymkhana, received deposit - Interest Income assessable as business Income - Held That:- In view of Effluent Treatment Plant (2010 - TMI - 76801 - BOMBAY HIGH COURT),principle of mutuality is not applicable. - As regards the claim u/s 80P is concerned, if any income by way of interest or dividend derived by the cooperative society from its investment with any other cooperative societies, then deduction u/s 80P is allowable in respect of the said income. - case remanded back to verify the deposits.
Transfer fee upto 25,000 covered under mutuality - Amount not received under coercion or under pressure - Held That:- In view of Sind Cooperative Hsg Ltd (2009 -TMI - 34176 - BOMBAY HIGH COURT), claim of assessee allowed.
Amount received for additional FSI under TDR rules - AO: amount charged per sq.ft is higher than rate charged by local authority - Held That:- When there is no profit motive or business by collecting such fund by the assessee society, then only because of the rate charged by the assessee society from its members is higher than the rate of local body cannot be a ground for rejecting the principle of mutuality.
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2012 (2) TMI 187
Deduction under 10A - Conditions unfulfilled - transfer of more than 20% of the plant and machinery from the old unit to the new unit - Held That:- We remit the issue of deduction u/s 10A of the Income-tax Act to the Assessing Officer with a direction to verify if the plant and machinery transferred from the Rajajinagar unit to the Whitefield unit is less than 20% as demonstrated by the assessee and also to verify as to whether the assessee satisfies the conditions under the CBDT Circular No. 1 of 2005. Allowed for statistical purposes.
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2012 (2) TMI 179
Clearing & Forwarding Agent Services - determination of assessable value including incidental and ancillary expenses connected with and integral to the taxable service provided – Held that:- The issue of inclusion is no more in res integra in view of decision in the case of Sri Bhagavathy Traders vs. C.C.E., Cochin (2011 -TMI - 206710 - CESTAT, BANGALORE). Further, it may not be improper to grant waiver of penalty imposed u/s 76 of Finance Act, 1994 since the determination of assessable value was in debatable stage at the inception of law. However penalty imposed u/s 77 of the said Act is confirmed – Decided partly in favor of assessee.
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2012 (2) TMI 177
Condonation of delay of 570 days – appeal filed against order passed by Appellate Tribunal constituted under the FEMA, 1999 – appeal filed to Appellate Tribunal against an order of adjudication passed on 30.10.2003 by the Special Director of Enforcement, after the repeal of the FERA, 1973 – Held that:- An appeal against the order of the Appellate Tribunal would be governed by the provisions of Section 35 of the FEMA, 1999. This Court does not have any jurisdiction to condone a delay in excess of sixty days beyond the period of sixty days prescribed for the filing of an appeal – Decided against the petitioner.
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2012 (2) TMI 176
Quantification of reversal of credit – electricity - credit reversed @ 10% of the value of the electricity - no separate records are maintained in respect of Cenvat Credit on the common inputs used in the manufacture of dutiable as well as exempted goods - Held that:- In as much as the issue relates to the correct quantification of reversal of credit which can only be decided at the original adjudicating authority level, we set aside the impugned order and remand the matter to Commissioner(Appeals) for quantifying the credit amount required to be reversed. See Maize Products vs CCE (2008 - TMI - 48307 - High Court Of Gujarat At Ahmedabad)
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2012 (2) TMI 173
Indo-French DTAA – French Company entered into an IT Agreement with the applicant to provide support services in the area of IT - whether royalty or FTS – whether payment would fall under the provisions of Article 13 of the Indo France DTAA in view of the Fact that foreign company does not have a PE in India – assessee contending such payment to be reimbursement of expenses - Held that:- Services provided under the IT agreement are in the nature of Fees for Technical Services and taxable under the DTAA as well as under the Act. It is also clarified that payment under the proposed agreement does not represent reimbursement of cost and is taxable in India. Article 5 of India France DTAA states that even existence of a computer server amounts to existence of a PE within a jurisdiction. In such circumstances, Areva T&D SAS France has a PE in India, the payment to it would not fall under the provision of Article 13 of the DTAC. As the Applicant has a PE in India, the income by way of FTS will be taxed under Section 44DA and at the rate provided under the Finance Act for the relevant year and tax withheld accordingly.
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2012 (2) TMI 172
Transfer pricing - What is the data to be considered by the TPO at the time of determining ALP - Whether the appellant should have been given an opportunity to refute the material sought to be utilized by the TPO – Turnover filter – deduction u/s 10A - Held that:-By providing a specified date in the Act, the obligation is cast upon the assessee to keep and maintain the documents for that period. But, it does not restrict the TPO from making enquiries thereafter for determining the correct ALP. TPO shall take into consideration the contemporaneous data. TPO need not inform the assessee about the process used by him for issuing the notices u/s 133(6) nor is he under any obligation to furnish the entire information to the assessee. However, principles of natural justice requires that appellant has to be given a reasonable opportunity of hearing on that material. In present case, TPO had furnished all the information to the appellant, to which appellant has raised objections. Non- consideration of objections would be an error of judgment, but, not violation of principles of natural justice. Turnover Filter - TPO considered turnover range of ₹ 1 crore to ₹ 200 crores and ₹ 1 crore to ₹ 500 crores – Held that:- Turnover of the company is in the range of 24 crores, therefore, the companies, which have turnover of ₹ 1.00 crores to 200 crores alone should be taken into consideration for the purpose of making TP study. Therefore, this issue requires to be remitted back to the file of the TPO for fresh consideration with directions in this regard. Deduction u/s 10A - Held that:- While computing the exemption u/s 10A, if the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded in computing the export turnover as a component of total turnover in the denominator. See CIT v. Gem Plus Jewellery India Ltd.(2010 - TMI - 76903 - Bombay High Court ) - Decided partly in favor of assessee for statistical purposes.
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2012 (2) TMI 171
Waiver of penalty u/s 271(1)(c) – dis-allowance of bad debts – assessee funished records & confirmations during penalty proceedings – non-examination of documents by A.O./CIT(A) – Held that:- Tribunal went into the details, examined the records and the confirmations which were furnished by the assessee and has come to the conclusion that the levy of penalty u/s 271(1)(c) was not justified. In the present case, A.O. and the CIT(A) failed to consider/examine the veracity and correctness of the said papers without any reason. Revenue is unable to show what and where the tribunal has made a factual error or mistake – Decided against the Revenue.
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2012 (2) TMI 170
Foreign travel expenditure - Son of partner, technical person - AO disallowed expense being personal in nature - CIT(A) affirmed AO - Held That:- Merely stating that the assessee has booked a stall and the sons of the partners were attending is not sufficient. The circumstances exhibits that the sons of partners were taken as those were in close relationship of partners and nothing to do with the business of the firm. Decided against assesee.
Repair on rental building - Capital OR Revenue Expenditure - Held That:- In view of Madras Auto Service (P.) Ltd. (1998 - TMI - 5686 - SUPREME Court), repairing expenses carried out on a rental building are revenue in nature.
Payment for Labour Charges - job work for sister concern - Held That:- Job work done is almost 5 times than the actual production. This clearly shows that the alleged job work charges have been paid to sister concerns merely with a view to avoid payment of legitimate taxes. Thus provisions of 40(A)(2) are clearly applicable.
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2012 (2) TMI 169
Sale/Purchase of Shares - "Capital Gain" OR "Business Income" - One share of Jubilant Organosys Limited held as long Term - Investment in (JOL) under Special resolution - Motive to earn dividend - Shown as Investment In B/ST - Held That:- Taxable under head Capital Gains.
Shares held for small period of time - motive to earn profit - Held That:- Short term capital gain assessable under Business Income.
Expennditure in relation to exempt Income - Held That:- In view of Godrej Boyce Mfg. Co.(Mumbai High Court). Appeal allowed for statistical purposes.
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2012 (2) TMI 163
Modvat Credit of duty paid on the cleanflow, welding electrodes and various iron and steel items – Held that:- As regards Cleanflow, issue already stands decided in the appellants own case, thereby, held to be eligible Modvatable input and credit is allowed in respect of same. Steel items – Following the decision in case of Jaypee Bela Plant vs CCE (2011 - TMI - 210276 - CESTAT, DELHI), we remand the matter to original adjudicating authority for examining the availability of credit in respect of various steel items, depending upon actual use of the same. Welding electrodes – Held that:-Original adjudicating authority would also re-decide the issue of availability of credit on welding electrodes in the light of decision in case of Ambuja Cements Eastern Ltd. vs. CCE, Raipur (2010 - TMI - 77888 - Chhaitisgarh High Court).
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2012 (2) TMI 162
Determination of relationship - principal to principal or agent and principal - assessee engaged in the blending and packing of Glucon D' for M/s Heinz India Pvt. Ltd – excise duty paid at aggregate of cost of raw material, packing material and their job work charges – Revenue seeking to levy duty on wholesale price of the product - Tribunal quashed additional excise duty levied – Held that:- Neither Tribunal addressed the aspect that whether the relationship between the Assessee and Heinz was one of principal to principal or that of an agent and principal, nor did it consider whether the Assessee and Heinz are related persons. It based its decision solely on the observation made by the Adjudicating Authority that assessee status is of hired labour. Therefore, matter is remanded back to the Tribunal. If the Tribunal finds that the Assessee and Heinz are related, it shall remit the matter to the Adjudicating Authority for fresh determination of the assessable value of the goods in question in accordance with law - Decided in favor of revenue for statistical purposes.
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2012 (2) TMI 161
Acquittal of accused from the charges u/s 135(1)(b) of the Customs Act, 1962 - seizure of recovery (gold biscuits and Indian currency) from accused – petitioner(prosection) challenging the same – Held that:- Trial Judge observed that Prosecution failed to examine independent witnesses without any sufficient reasons. It was a very material lacuna in the case of the prosecution which cast a very strong doubt over the seizure memo/punchnama dated 01.11.1990. Benefit of doubt goes in favour of the accused. Therefore, Trial judge has acquitted the accused not only on the ground argued but also considered the other evidence also – Decided against the petitioner.
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2012 (2) TMI 160
Power of Commissioner u/s 12AA(3) to cancel the registration granted u/s 12A – Charitable society – Tribunal revoked cancellation of Registration by Commissioner – Held that:- Section 12AA(3) stipulates specific finding by the Commissioner that the activities of the trust or institution are not genuine or not being carried out in accordance with the objects of the trust. In present case, the only reason given by Commissioner is that the activities of the trust were not charitable. Therefore, Tribunal was justified in holding that none of the conditions u/s 12AA(3) were violated and registration granted to the assessee u/s 12A(a) would hold good – Decided against the Revenue.
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2012 (2) TMI 159
Charitable Trust – CIT rejected application of registration on ground that objects of the Trust are both charitable and religious in nature – Held that:-Section 11(1)(a) and 12AA is applicable to both the Trusts established with the object of charitable as well as religious purposes. Even if the Trust is not created with both the objects, law does not make any disqualification for the trust to make an application for registration. Accordingly, the order passed by the Tribunal holding that the assessee trust is entitled to registration u/s 12AA is confirmed – Decided against the Revenue.
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2012 (2) TMI 158
Validity of notice issued u/s 148 beyond a period of four years from the end of the relevant A.Y. - manufacturer of jewellery in a SEZ – deduction u/s 10A - assessment order for A.Y. 05-06 framed u/s 143(3) – reopening sought on the basis of the findings contained in the assessment order for A.Y. 07-08 - Held that:-A.O. having failed to establish that there was a failure on the part of the assessee to disclose fully and truly all material facts for A.Y. 05-06, the reopening beyond a period of four years is clearly not valid. There was a finding of fact by the A.O. in the assessment order for A.Y. 2005-06 that the business activity of the assessee is manufacturing of jewellery in a Special Economic Zone entitling deduction u/s 10A – Decided in favor of assessee.
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2012 (2) TMI 157
Validity of re-opening of assessment beyond a period of four years from the end of the relevant A.Y. - assessee authorized vide order issued u/s 195(2) to reimburse expenditure incurred by foreign principal company for providing support services, without TDS - reasons set out for re-opening that certificate u/s 197 is valid only for payment or credits made after the date on which a certificate had been issued – assessee had credited the amount before obtaining certificate – Held that:- A.O. has not even indicated that there was any failure on part of assessee to disclose fully and truly all material facts. Further, certificate, as a matter of fact, was issued on an application that was filed u/s 195(2) and not under section 197. Moreover, A.O. also, made no reference at all to whether the payment which was effected to the foreign principal represented income chargeable under the provisions of the Act. Therefore, jurisdictional condition for reopening of the assessment has not been fulfilled - Decided in favor of assessee.
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2012 (2) TMI 156
Period of limitation – search & seizure conducted – special audit u/s 142(2A) – writ petition filed against the order u/s 142(2A) – stay granted - High court held that time schedule fixed u/s 153B shall apply if the special audit was ordered - time spent in prosecuting the petition shall be excluded for the purpose of computing the time for completion of assessment – assessee contending that A.O. had already availed the period of 60 days in view of the stay order passed by the court – Held that:- In the present case, because of the stay order passed, the period during which the stay order was in operation in the High Court has to be excluded. In terms of proviso to the Explanation to Section 153B(1), A.O. had the extended period to complete the assessment proceedings – Decided in favor of Revenue.
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2012 (2) TMI 155
Calculation of Profits - GP of preceding assessment year vis a vis average of last two assessment year - Held That:- In the case of Best Judgment assessment OR rejection of books, the estimates of income must be honest and fair and should not be arbitrary, although some element of guess work is necessary. There being no material to suggest that the GP rate applied by the CIT(A) was not reasonable or was without any basis, we uphold the order of the CIT(A) and the ground of the Revenue is dismissed.
Additions on account of unverifiable purchases and unverifiable consumption - Held That:- When CIT has upheld the action of AO in rejecting books of account and applied GP rate there is no justification for making any addition on the basis of same rejected account books on account of the defects in the account books.
Payment of PF & ESI before date of filing of return - Held That:- In view of Sai Consulting Engineers P. Ltd (Ahmedabad bench), deduction allowed under 43B.
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2012 (2) TMI 154
Calculation of Profit - CIT relied on GP rate - Assessee carrying other business - - Books of account rejected - After considering additional income GP rate comes to 17.5% - Held That:- Once the books of accounts of the assessee are rejected and a flat rate of GP is to be applied, some element of estimate is inevitable. In this case, there is no material on record to suggest that the GP rate of 17.5% was not justified.
Unexplained Investments in sales outside the books - Held That:- During the course of search no unaccounted sale bills, purchase bills and unaccounted value of debtors or creditors were found which could suggest that unaccounted working capital was utilised by the assessee for carrying out unaccounted turnover. - Thus CIT(A) rightly deleted the additions.
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9911796707
