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2012 (12) TMI 772
Scheme of Amalgamation - Held that:- Upon sanction of the Scheme, all the employees of the Transferor entity shall become the employees of the Transferee Company without any break or interruption in their services - all the property, rights and powers & liabilities and duties of the Transferor Company be transferred to and vest in the Transferee Company without any further act or deed.
Once the exchange ratio of the shares have been worked out by the Chartered Accountants, who are expert in the field of valuation and if no mistake is pointed out in the said valuation, it is not for the court to substitute is exchange ratio, especially when it has been accepted without demur unanimously by all the shareholders of the two companies, thus objection raised by the Official Liquidator that the valuation report is not on the basis of Book Value of shares is without merit.
Thus in view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation filed by the Regional Director, Northern Region and no objection by the Official Liquidator, the proposed Scheme of Amalgamation, 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 - 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 771
Extension of bid payment period - Winner of bid did not pay sale consideration even during time for which he was seeking extension, sale was to be cancelled and earnest money seized - whether the appellant in whose favour a sale came to be confirmed by order dated 22.02.2006 on certain terms and conditions as provided in the tender having committed default -
Held that:- The applicant having failed to comply with the payment time-table then filed Company Application wherein it is clear from the prayer made in the Judges' Summons and the affidavit filed in support of the Judges' Summons that what was prayed was extension of time only up to 31.08.2006 and the reason set out for seeking such extension wherein it was stated that, "on account of serious sickness in the family of one of its active partners and also on account of other reasons beyond its control". This Court has an additional reason to deny the prayer /relief to the appellant-applicant because the prayer for extension of time stood granted in favour of the applicant as extension was granted up to 15.09.2006. It will not be inappropriate to remind oneself that extension sought for was only up to 31.08.2006, whereas the Court granted extension up to 15.09.2006 and therefore, on that short ground, the appellant-appellant must fail in getting any relief from this Court.
The submission made by applicant that he could not act within the period extended because there was OJ Appeal No.43 of 2005 pending and it was decided that Company Application No.327 of 2006 (praying for extension) will be considered after OJ Appeal No.43 of 2005 is decided, which came to be decided only on 01.08.2008, this makes the case of the appellant-applicant no better, because if the bonafides of the appellant-applicant are to be tested, it has not been placed on record that between 11.06.2006, which was the last date for payment as per the sale confirmation order and 15.09.2006, till which date the extension was granted, any substantial payment was made by the applicant, except making an application to permit him to make payment.
No right is created in favour of the appellant-applicant after 20.06.2011. Whatever rights the applicant is having, are flowing from order dated 22.02.2006. The question which is required to be answered by this Court is whether in light of the clear terms and conditions prescribed in the tender and prescribed order dated 22.02.2006, any right of the applicant survived and the answer of this Court is, 'NO' - no relief can be granted to the appellant-applicant, thus the appeal fails and dismissed.
Directs the Official Liquidator to refund the amount deposited by the appellant-applicant towards sale consideration. The Court makes it further clear that the appellant-applicant will not be entitled to refund of Earnest Money Deposit. It is also made clear that this refund will be without any interest payable thereon. The amount shall be refunded only after the property is put to sale and the sale price is realized by the Official Liquidator.
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2012 (12) TMI 770
Invoking extended period of Limitation - Suppression of facts – Held that:- As decided in HYDERABAD POLYMERS (P) LTD. Versus COMMISSIONER OF C. EX., HYDERABAD [2004 (3) TMI 66 - SUPREME COURT OF INDIA] once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there is any suppression. The extended period of limitation would thus not be available.
As in the present case department had issued a show cause notice dated 28.08.2008 demanding duty for the period from April 2004 to June 2008 invoking extended period under proviso to Section 11A(1) on the ground that the process undertaken by the appellant amounts to manufacture and they had suppressed the relevant facts from the department. On the basis of the same facts the department has issued show cause notice for subsequent period from July 2008 to 4.12.2008 on 6.7.2010 again invoking the extended period, which in view of the Apex Court's judgement in the case of Nizam Sugar Factory (2006 (4) TMI 127 - SUPREME COURT OF INDIA) is not permissible - in favour of assessee.
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2012 (12) TMI 769
Cenvat credit denied - ISD has availed cenvat credit of the invoices issued by the service provider - Waiver of the pre-deposit of Duty, Interest and Penalty - Held that:- The provisions of Service Tax Rules cannot be invoked for denying the cenvat credit of the input services which were availed by the ISD and distributed. It is undisputed that the ISD has received the services and taken the credit and distributed services to various locations, including current appellant. Thus the appellants have made out a prima-facie case for the waiver of the pre-deposit of the amounts involved.
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2012 (12) TMI 768
SSI Notification No.8/2003-CE – denial as use of others Brand Name/Trade Name – Penalty - Held that:- As per the provisions of SSE Notification No.8/2003-CE & as decided in CCE, TRICHY Versus GRASIM INDUSTRIES LTD. [2005 (4) TMI 64 - SUPREME COURT OF INDIA] if the goods are manufactured with the brand name which resembles to the brand name registered with the other person, the manufacturer is not entitled for the benefit of the Small Scale Exemption Notification
Admittedly, the brand name PYRO ELECTRIC is registered with M/s. Pyro Electric Instruments Goa Pvt. Ltd. and the applicants are manufacturing goods with the brand name by adding the word INSTRUMENTS the manufacturer assessee is not entitled for the benefit of Notification - the applicants failed to make out a case for total waiver of duty, thus directed to deposit Rs.25,00,000/- within a period of eight weeks & report Compliance.
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2012 (12) TMI 767
Clandestine clearances of M.S. Ingots - Duty Evasion - Penalty u/s 11AC – Held that:- Duty evasion of Rs. 2,49,079/- is based on shortage of 77 M.T. of M.S. scrap vis-a-vis the balance recorded in the RG-23A register. The stock taking had been conducted in presence of Shri S.P. Gupta who accepted the shortage and had even debited an amount of Rs. 1,20,551/- representing the Cenvat credit availed on this quantity. In view of this, the appellant's plea that shortage was not real shortage is difficult to accept. Therefore, the duty demand of Rs. 2,49,079/- based on the presumption that the 77 M.T. of M.S. scrap found short had been used for manufacture of M.S. ingots which were cleared clandestinely without payment of duty appears to be on strong footing.
The appellant have not shown the purchase of scrap/sponge iron valued at Rs. 4,43,89,566/- during November 2008 - January 2009 period is their books of account. Therefore, the department justified in presuming that this scrap/sponge iron was used in unaccounted manufacture of M.S. ingots which were cleared without payment of duty and without issue of invoicing. The fact that the appellant had declared an unaccounted income of Rs.85 lakhs for 2007-2008 to Income tax authorities also indicates that they were having substantial unaccounted sales. The presence of a truck fully loaded with scrap, found in the appellant's factory also indicated that they were purchasing M.S. scrap their principal raw material without any invoices - not a case for total waiver - directed to deposit the balance amount of duty demand i.e. Rs. 70,42,769/- alongwith interest and Shri Jiwan Singla, Director of the appellant company an amount of Rs.4,00,000/- within a period of eight weeks from the date of this order.
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2012 (12) TMI 766
Repair and Maintenance Service of Government buildings and public roads - seeking waiver of pre-deposit of the Service Tax, interest and penalty - Held that:- In respect of maintenance and repair of public roads and Government buildings are exempted from Service Tax with retrospective amendment made by section 97 and 98 of the Finance Act, 2012.
In respect of the demand of commercial construction, the construction is of administrative block of Municipal Corporation of Chandrapur and out of which certain area is used for commercial purpose and in respect of other demands such as Survey and Map Making services, site formation and clearance, excavation and earth moving and demolition services,this is not a case for complete waiver of pre-deposit. Thus the applicant is directed to deposit Rs.10 lakhs apart from the amount already paid within a period of six weeks & pre-deposit of the remaining amount of Service Tax, interest and penalty shall stand waived and recovery of the same is stayed during pendency of appeal.
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2012 (12) TMI 765
Rent-a-cab service - Waiver of pre deposit and stay of recovery - Held that: From the terms and conditions of the agreements, it appears that the buses did not fit in the definition of "cab" under Section 65(20) and the transactions between the Corporation on the one hand and the appellants on the other are not to be considered as squarely falling within the ambit of "rent-a-cab" service. Certain factors emerging from the nature of transactions appear to be incompatible with the features of the rent-a-cab scheme - Waiver of predeposit and stay of recovery in respect of the adjudged dues in all these appeals is granted.
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2012 (12) TMI 764
Waiver of pre-deposit towards Input Service Credit - CIT(A) remanded the matter back to verify as to where the impugned Capital Goods were used and who paid for the same - Held that:- As decided by in the case of Commissioner vs. Orient Crafts Ltd. (2010 (11) TMI 178 - CESTAT, DELHI) Commissioner (Appeals) dealing with an appeal in relation to Service Tax, is not empowered to remand any matter, but he has to decide the matter by himself, thus Commissioner (Appeals') Order in the present case remanding the matter to the lower Adjudicating Authority is not sustainable, therefore need to be set aside - remanded back to Commissioner (Appeals) to the decide the matter afresh providing a reasonable opportunity of hearing to the Appellant - in favour of assessee by way of remand.
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2012 (12) TMI 763
Re opening of assessment - BAH India as an agent of the USA entity - fees for technical services - Held that:- Although the amount payable by BAH India to the USA entity was debited by BAH India to the profit & loss account and was also claimed as expenses, no RBI approval was obtained for remitting the said amount in foreign exchange as required by relevant provisions of Foreign Exchange Regulation Act during the year under consideration.
As claimed the said amount did not constitute income of the year under consideration for want of the RBI approval as no income chargeable to tax in India could be said to have accrued in the absence of the required approval from RBI reliance placed on the decision of in the case of Kirloskar Tractors Ltd. (1998 (2) TMI 117 - BOMBAY HIGH COURT) wherein held that the approval of RBI having been received in the subsequent years and the relevant amounts also having remitted during those years, liability could be said to accrue or arise in such subsequent years though the same pertained to the earlier years. Reliance has also been placed on another decision of Hon'ble Bombay High Court in the case of Dorr-Oliver (India) Ltd. v. CIT [1998 (1) TMI 42 - BOMBAY HIGH COURT] wherein it was held that collaboration agreement being subject to Government approval, deduction of sum paid as compensation and fees under collaboration agreement was allowable only upto the date till the agreement enjoyed approval by Government of India and not for any subsequent year.
Thus the judicial pronouncements discussed above clearly support the stand of the assessee that income on account of the amount payable by BAH India to the USA entity could be said to have accrued to the said entity only on receipt of the required approval from RBI and there being no such approval received during the year under consideration, the same could not be taxed as income in that year. The decision of the Hon'ble Supreme Court in the case of LIC v. Escorts Ltd. (1985 (12) TMI 289 - SUPREME COURT OF INDIA) thus was rendered in a different context and in a different set of facts and the same cannot support the stand of the Revenue in the present case - delete the additions made on this count by the AO - in favour of assessee.
Method of accounting - royalty and fees for technical services - Held that:- Keeping in view the language so employed in the case of Seamens Aktiengesellschaft (2012 (12) TMI 737 - BOMBAY HIGH COURT) & CSC Technology Singapore Pte. Ltd. (2012 (4) TMI 189 - ITAT DELHI) considering the relevant provisions of DTAA between India and Germany royalty and fees for technical services should be reckoned for taxation only when it is actually received by the assessee and not otherwise - royalty/FTS which had accrued as income to a foreign company, could not be taxed in the source country (being India) unless this amount had been received by the foreign company - thus the amount payable by BAH India to the USA entity could not be brought to tax in India during the year under consideration as fees for technical services as per the relevant provisions of the DTAAs since the same had not been paid to the said entity - in favour of assessee.
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2012 (12) TMI 762
Unexplained income u/s 68 - CIT(A) deleted the addition - Held that:- An assessee’s duty to establish that the amounts which the AO proposes to add back, u/s 68 are properly sourced, does not cease by merely furnishing the names, addresses and PAN particulars, or relying on entries in a Registrar of Companies website. One must remember that in all such cases, more often than not, the company is a private one, and share applicants are known to it, since they are issued on private placement, or even request basis. If the assessee has access to the share applicant’s PAN particulars, or bank account statement, surely its relationship is closer than arm’s length. Its request to such concerns to participate in income tax proceedings, would, viewed from a pragmatic perspective, be quite strong, because the next possible step for the tax administrators could well be reopening of such investor’s proceedings.
That apart, the concept of “shifting onus” does not mean that once certain facts are provided, the assesse’s duties are over. If on verification, or during proceedings, the AO cannot contact the share applicants, or that the information becomes unverifiable, or there are further doubts in the pursuit of such details, the onus shifts back to the assessee. At that stage, if it falters, the consequence may well be an addition under Section 68.
As decided in A. Govindarajulu Mudaliar v CIT, (1958 (9) TMI 3 - SUPREME COURT) whether a receipt is to be treated as income or not, must depend very largely on the facts and circumstances of each case. There is ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amount of cash received during the accounting year, the Income-tax Officer is entitled to draw the inference that the receipt are of an assessable nature - Having regard to the totality of facts and circumstances, particularly the remand report, which was not considered by the CIT (A) and the ITAT in its proper perspective, this Court is of the opinion that the question of law requires to be answered in favour of the revenue.
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2012 (12) TMI 761
Non deduction of TDS - shooting of films held outside India - payments made in foreign exchange to overseas services providers - application u/s 195(2) - India - U.K. DTAA - Held that:- This issue is squarely covered in favour of the assessee by the decision of in the case of GE India Technology Centre P. Ltd. v. CIT [2010 (9) TMI 7 - SUPREME COURT OF INDIA] wherein held that if the relevant payment does not contain the element of income taxable in India, the payer cannot be made liable to make an application u/s 195(2).
Merely because some managerial skill is required to render the services, it would not make the services to be managerial services as envisaged in Explanation 2 to section 9(1)(vii). Keeping in view the nature of services rendered by the overseas service providers to the assessee the said services cannot be treated as technical services within the meaning given in Explanation 2 to section 9(1)(vii).
As in agreement with the CIT(Appeal's) that the said services rendered outside India by the overseas service providers in connection with making logistic arrangement are in the nature of commercial services and the amount received by them from the assessee for such services constitutes their business profit which is not chargeable to tax in India in the absence of any PE in India of the said service providers. The requirement of knowledge of local laws on the part of the service providers to render the services such as obtaining the permissions for shooting from the local authorities or for arranging insurance of the crew members and shooting equipments would not change the basic nature of the services which otherwise are commercial services. The assessee, therefore, was not liable to deduct tax at source from the said payments and the AO was not justified in treating the assessee as in default u/s 201 - in favour of assessee.
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2012 (12) TMI 760
Deduction under section 80IA - CIT(A) deleted the additions on account of disallowances u/s 153A - infrastructure projects where the assessee is merely a work contractor or developer - Held that:- According to sub-clause (a), clause (i) of sub-section (4) of section 80-IA, the word 'it' denotes the enterprise carrying on the business. The word 'it' cannot be related to the infrastructure facility, particularly in view of the fact that infrastructure facility includes Rail system, Highway project, Water treatment system, Irrigation project, a Port, an Airport or an Inland port which cannot be owned by any one. Even otherwise, the word 'it' is used to denote an enterprise. Therefore, there is no requirement that the assessee should have been the owner of the infrastructure facility.
The assessee utilizes its funds, its expertise, its employees and takes the responsibility of developing the infrastructure facility. The losses suffered either by the Government or the people in the process of such development would be that of the assessee. The assessee hands over the developed infrastructure facility to the Government on completion of the development. Thereafter, the assessee has to undertake maintenance of the said infrastructure for a period of 12 to 24 months. During this period, if any damages are occurred, it shall be the responsibility of the assessee. Further, during this period, the entire infrastructure shall have to be maintained by the assessee alone without hindrance to the regular traffic. Therefore, it is clear that from an undeveloped area, infrastructure is developed and handed over to the Government and as explained by the CBDT vide its Circular, dated 18-5-2010, such activity is eligible for deduction under section 80-IA(4). This cannot be considered as a mere works contract but has to be considered as a development of infrastructure facility. Therefore, the assessee is a developer and not a works contractor as presumed by the revenue. The circular issued by the Board clearly indicate that the assessee is eligible for deduction under section 80-IA(4). The department is not correct in holding that the assessee is a mere contractor of the work and not a developer.
Nothing either on facts or in law, which distinguishes, the already existing position as on the date of search and in the proceedings under section 153A read with 143(3), which substantiates the denial. Accept for the interpretation, as made out by the AO, there is nothing, which could substantiate the disallowance. In the entire proceedings upto the hearing before us, the department has not even said that there was either no agreement between the assessee and the state government or there is any change in the agreement entered into by the assessee and the government department. In fact the DPB filed by the department there are letters exchanged, written by the assessee and various government departments, which indicate that the assessee was awarded the job, wherein the assessee had placed the bank guarantee for ₹ 2,61,62,400, against the tendered cost. This proves beyond doubt that the assessee, itself was doing the development of infrastructure facility, on behalf of the government, besides placing its own funds at risk and peril - thus no disallowance u/s 80IA(4)warranted - in favour of assessee.
Deduction u/s 80IA on the amounts written back under section 41(1) - Held that:- It is not the case of the department that these liabilities were non business. When the liabilities which have been written back/offered to tax by the assessee pertains to the business, then it has to be added back as a business income. CIT(A) has also taken note of the fact that the assessee was having two types of projects, i.e., which qualify for deduction under section 80IA and which do not qualify. But here, in the instant case, we are concerned with domestic projects, and the ceased liabilities are emanating from the normal course of business of the assessee. Hence the liabilities written back would be added to the claim of deduction under section 80IA. Since the assessee also has non-80IA projects and it has been accepted by the assessee that these written back liabilities would also pertain to non 80IA projects, in these circumstances, the assessee and the CIT(A) were very reasonable in allocating the income offered under section 132(4) on account of cessation of liabilities under section 41(1) in proportion of the turnover of 80IA project and non 80IA projects - no reason to deviate from the finding reached by the CIT(A) to direct the AO to add the proportion of offered amount of ₹ 1.95 crores to the income eligible for deduction under section 80IA for assessment year 2005-06.
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2012 (12) TMI 759
Deduction u/s 80IA - whether the amount of loss suffered in the Avitech Division was rightly set off against the profits from the eligible vaccine unit - Held that:- A fair and objective reading of the record would reveal that the assessee’s claim was inadmissible under Section-80IA because the second Unit was located within the same premises and could not, therefore, be characterised as a “separate undertaking”. Once the assessee decided to open the separate division in the same premises, he cannot claim the benefit of Section 80IA as far as that activity is concerned.
In none of the orders of AO or CIT (A) no such contention that the Avitech undertaking was located within the same premises as the other poultry vaccine division or undertaking was raised before the Tribunal. Certainly, the grounds recorded by the Tribunal do not reflect this. Being a pure question of fact, this Court would not interfere with the conclusions of the authorities below on this aspect. As far as the legality of the conclusions are concerned, the Court notices that the Tribunal and the CIT (A) relied upon the ruling of the Supreme Court in CIT v. Canara Workshops [1986 (7) TMI 5 - SUPREME COURT] assessee is entitled to a deduction on the entire profits of one priority industry without deducting loss in the other priority industry - no substantial question of law arise.
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2012 (12) TMI 758
Short Notice Pay for Termination of Toll Manufacturing Agreement – Capital vs Revenue Expenditure – Held that:- The test of commercial expediency cannot be reduced to the shape of a ritualistic formula, nor can it be put in a water-tight compartment. All that the law requires is that the expenditure should not be in the nature of capital expenditure or personal expenditure of the assessee and it should be wholly and exclusively laid out for the purposes of the business. It is well-settled that items of expenditure are to be considered from the point of view of a normal, prudent businessman. Business expediency was not established by the assessee at any stage of hearing, including hearing before us, for making payment to CCL in violation of the agreement. If sanctity of agreement can be ignored for the sake of argument, even then the vital question of establishing business expediency remains unanswered.
In the case under consideration there is neither any danger of dent to the goodwill of the assessee nor adverse affect was looming large over the business carried on by the assessee-breach of agreement was not by the assessee. If CCL without giving stipulated notice terminated the agreement, then goodwill of the CCL would have been at stake. If any step for maintaining confidence had to be taken then that step had to be of CCL. In these circumstances we are of the opinion that if the AO could not find nexus between the expenditure incurred and the purpose of the business in the said transaction, he was justified.
Business expediency was not established by the assessee at any stage of hearing, including hearing before us, for making payment to CCL in violation of the agreement. If sanctity of agreement can be ignored for the sake of argument, even then the vital question of establishing business expediency remains unanswered. - order of AO is upheld – Appeal by assessee is dismissed.
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2012 (12) TMI 757
Unexplained Expenditure u/s 69C – Shortage of Cash – Held that:- The appellant’s books has been obtained and it transpires that all the payments have been made through Bank of India and there is apparently no correlation with any of the amount appearing in the seized papers - addition made is hereby deleted.
Difference in Stock – Held that:- Impugned addition made by the Assessing Officer merely on the presumption that the assessee kept changing his version about difference in stock and no justifiable reason was adduced in the assessment order for making the addition, therefore, the CIT(A) rightly deleted the same.
Unexplained Purchase of goods – Held that:- Additions made on the plea that bill no. 4 dated 19.1.2007 of M/s Guru Nanak Traders for an amount of Rs. 3,55,000/- was found at the business premises of the assessee. The assessee tendered in his statement that the goods mentioned in the bills have not been delivered till date and were transported through Sanjay Transport Company of Jabalpur on 20.1.2007 only. Identically bill bearing no. 76 dated 20.1.2007 of M/s Jeetu Steels for Rs.1,20,365/- was found which was issued in the name of Shreenath Traders. The assessee claimed that he did not purchase the goods appearing in the bill. On perusal of the observations the explanation offered by the assessee justification in the conclusion of the CIT(A) exists - appeal of the revenue having no merit therefore, dismissed.
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2012 (12) TMI 756
Unexplained Addition u/s 69 – mis match of dates as mentioned in the bokiyam agreements and in the statements recorded from the tenants - Held that:- It remains a fact that each of the persons, who were examined had confirmed the payment of bokiyam there is a fair chance that when statements were recorded, concerned tenant could have made a mistake as to the exact dates of payments. None of the authorities sought any explanation from the assessee for the mismatch of dates. None of the authorities sought any explanation from the assessee for the mismatch of dates. Assessee had produced affidavits, which was not considered by the Commissioner of Income Tax(Appeals).
Assessee has to be given a chance for explaining the mismatch of dates and justify how the bokiyam receipts could be considered as a source of investment for the supri street property - in favour of assessee for statistical purposes.
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2012 (12) TMI 755
Disallowance of electricity expense - apartment in a building by the name `Heera Panna’ - Held that:- As the assessee could not evidence the said claim that the apartment, belonging to a close relative, is being used as a conference room, i.e., for meeting the patients, etc. the disallowance stood restricted to Rs. 16,497/-, on the assessee leading evidence to the effect that the actual expenditure qua the said apartment had been wrongly assumed by the AO, and was in fact only at the said amount
Liability becomes due for payment by the year-end or not? - Held that:- This is as undisputedly all the bills in the present case stand raised only in the month of April, 2007. In fact, the amount does not become due for payment immediately on the raising of the bill, as certain time lag is necessary for its communication to the payer, besides allowance of certain time period for effecting the payment is also necessary. The due date, which represents the last date for payment, though not clarified, would only be subsequent to the raising of the bill, which itself is in the second week of April, 2007 - in favour of assessee.
Non deduction of TDS - technical services covered u/s. 194J – Held that:- With regard to the application of section 194J, i.e., qua technical services payment made to under-graduate students, undergoing three-year diploma in Ophthalmology, leading to the qualification of an Ophthalmology Assistant, paid during third (final) year of their course. The students are enrolled for the program after passing Class 12. It is only after the successful completion of this program that they would qualify as professionals, capable of rendering either professional or technical services. The same is only an allowance to an apprentice or an intern, rightly termed as a stipend, which is defined as a sum of money paid to the students for living expenses. As regards the balance payment (of Rs. 7,79,740/-) to the doctors undergoing post graduation, rather super-specialty courses, the same are highly technical courses, admission to which it is severely restricted and regulated, and only upon meeting high standards of professional competence prescribed for the purpose and is not covered under the provisions of sec.194J.
Following the decision of in case of Merilyn Shipping and Transports vs. Addl. CIT 2012 (4) TMI 290 - ITAT VISAKHAPATNAM ] provisions of section 40(a)(ia) would apply only to the amount outstanding as at the year-end. The assessee’s alternate ground is also to be allowed, even as no amount of stipend is liable for disallowance u/s. 40(a)(ia) of the Act - assessee succeeds.
Disallowance of various expenses in part – Held that:- Onus to prove the expenditure to the satisfaction of the AO is on the assessee. Besides, the expenditure claimed is u/s. 37(1), which, therefore, has necessarily to be proved as having been actually incurred and, further, wholly and exclusively of the purpose of the assessee's business. When the factum of the expenditure is not proved, which can only be on the basis of some reliable evidences/ materials, which have been found missing in the present case, a part disallowance by the Revenue cannot be faulted with - Disallowance of expense is restricted to 10%, as against 20% by the Revenue to meet the ends of justice.
Disallowance of Discount - Held that:- Addition of Rs. 1 lakh to cover the leakage of Income is not on account of enhancement in income, as stated by the AO, who in fact has disallowed the discount presumed to have been allowed by the assessee on his receipts. No basis whatsoever, including the absence of the patient register, to infer the assessee as having allowed the discount against every bill raised by it and, secondly, of the same being not genuine - no merit in his sustenance of the said disallowance by CIT(A) and is therefore deleted - In the result, assessee's appeal is partly allowed.
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2012 (12) TMI 754
Setting Aside of Assessment u/s 263 – Held that:- Appeals filed by the assessee for both the years were on substantially different issues, vis-à-vis the issues for which proceedings under Section 263 were initiated and completed by the Commissioner of Income Tax, therefore CIT(Appeals) was obliged under law to deal with the grounds taken by assessee for the respective Assessment Years, since orders under Section.263 did not cover these aspects.
Set aside the orders of the CIT(Appeals) for both the Assessment Years and remit the matter back to him for re consideration - appeals of the assessee for both the years allowed for statistical purposes.
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2012 (12) TMI 753
Statutory exemption u/s 10(10C) – disallowance as VRS Benefit exceeding T.D.S. certificate amount - Held that:- Decided in favour of assessee relying on Sail Dsp Vr Employees Association 1998 Versus Union of India And Others.[2003 (2) TMI 46 - CALCUTTA HIGH COURT] wherein held that it is a deferred payment of the benefit receivable under the voluntary retirement scheme. Therefore, it would not be payment of salary outside the scope of section 10(10C). The characteristic cannot be changed because of stretching over the period of payment of dues under the scheme - against revenue.
Claim u/s 10(10AA) as well as relief u/s 89(1) – disallowance for want of evidence - Held that:- CIT(A) not justified in refusing the claim of assessee by simply stating that the revised computation was filed on 30.10.2006 and the time limit for filing revised return was available upto 31.03.2005. It is further observed that in order to claim relief u/s 89(1) of the IT Act the assessee is supposed to furnish the details in the prescribed form. Therefore, in the interest of justice we set aside both the issues to the file of AO to decide the same after giving a reasonable opportunity of being heard to assessee.
Charging of Interest u/s 234D – Held that:- AO is directed to re-compute the same after giving effect to this order - appeal of assessee is partly allowed for statistical purposes.
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9911796707
