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Case Laws
Showing 481 to 500 of 899 Records
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2010 (8) TMI 652
Addition - Unexplained share application money - Identity, creditworthiness and genuineness of the transaction - Held that:- in respect of money introduced by way of share capital, and the assessee-company furnished the names and particulars of shareholders for establishing their identity, the department may proceed to reopen the assessments of all such alleged bogus shareholders whose investment in the share capital is found to be unexplained - As per the the decision of Supreme Court in CIT v. Lovely Exports (P.) Ltd. [2008 -TMI - 76942 - SUPREME COURT OF INDIA], held that the share application money of Rs. 18,00,000 cannot be regarded as undisclosed income of assessee under section 68 of Act, 1961 - Decided in favour of assessee.
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2010 (8) TMI 651
Penalty – Exemption u/s 54 - It is fundamental that both the cases of concealment of income or furnishing of inaccurate particulars of income, eventually lead to evasion of tax, which is intended to be curbed by the penalty provision - It is noticed that both the assessees claimed exemption under section 54 on the ground that they had invested a sum of Rs. 2,25,00,000 each with Sapphire for the purchase of flats for residential purposes – Sapphire is is a closely held company fully controlled by the assessee and his family members - It is interesting to note that but for these two assessees, no other party had booked the flat in such proposed building - The mala fide intention was existing ab initio for lodging a false claim of exemption towards purchase of flats, which was, in fact, never intended - In the result, both the appeals are allowed
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2010 (8) TMI 649
Scrutiny - the finding that the basis of rate of profit exists on record can only be said to be that related to the questions of fact and a matter of appreciation of evidence - A lump sum addition of an amount of Rs.50,000/-in the previous year would have hardly provided a basis to estimate the profit rate for the year in question - Appeal is dismissed
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2010 (8) TMI 648
Deduction under section 80IA - Computation - Unabsorbed depreciation of the earlier years - As per the decision of the Rajasthan High Court in CIT vs. Mewar Oil and General Mills Ltd., the Rajasthan High Court held that it is not at all required that losses or other deductions which have already been set off against the income of the previous year should be reopened again for computation of current income under Section 80-I for the purpose of computing admissible deductions thereunder - Accordingly, this appeal fails and is hereby dismissed with no order as to costs - Decided against of revenue.
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2010 (8) TMI 647
Deduction - Export profit - Tribunal was holding that sales tax and excise duty have to be excluded from the total turnover for the purpose of computing the deduction u/s.80HHC in relation to export profits - As per the decision of the Hon'ble Supreme Court (CIT vs. Lakshmi Machine Works),the question is answered against the appellant-revenue - The appeals fail and the same are dismissed.
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2010 (8) TMI 641
Penalty - Survey - Unaccounted income - Addition - Concealment of income - the basis for levy of penalty is return of income - The omission or commission or contumacious conduct has to be viewed from the return of income and if certain thing is not disclosed or not furnished therein only then it can be said that assessee has concealed the particulars of income or furnished inaccurate particulars of income - But where the AO accepts the income declared in the return of income then assessee cannot be charged for any contumacious conduct - The duty to disclose particulars of income arises at the time when assessee furnishes return of income under section 139 and if in filing his return he conceals the particulars of income or furnishes inaccurate particulars he incurs penalty under section 271(1)(c) - In the case of Patna Guinea House vs. CIT (1999 -TMI - 15241 - PATNA High Court) it is held that there is no case for levy of penalty if income is disclosed in the return of income but assessee has refused to disclose source of income - Accordingly decided in the favour of the assessee
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2010 (8) TMI 640
Search and seizure - Block assessment - Addition - Unexplained cash - In relation to the grounds on which there are concurrent findings by the CIT (A) and the Tribunal, there does not arise any question of law what to say of a substantial one - while questioning the rebate of 15% for conversion from CPWD to PWD rates is worthless - It has only afforded an opportunity to the assessee to place its case before the AO and to get the issues tried in accordance with law - No substantial question of law is made out in this case within the meaning of Section 260-A of the Act - The appeal is dismissed
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2010 (8) TMI 635
Disallowance – Revenue or capital expenditure – Depreciation on R&D – Bad debts – Condonation of delay - In the case of buyback of shares however there is no permanent change in the capital structure of the company - On comparing provisions of Sec 77A and Sec 81 of the Act it is found that many conditions for issue of bonus share are parameteria with provisions relating to buyback of shares - In my considered opinion therefore the expenditure incurred on buyback of shares was not a capital expenditure as there was neither permanent change in the capital structure of the company nor benefit of enduring nature was received by the appellant - The A.O. is therefore directed to deleted the disallowance of Rs.28,21,321 - This ground of revenue is dismissed Regarding depreciation - The AO held that since the assessee was always allowed deduction for capital expenditure towards purchase of R&D assets u/s. 35, the assessee could not be allowed deduction once again in respect of depreciation of these assets as and by way of revenue expenditure - Tribunal by its order dated 9.9.2005 in ITA No. 363/K/2005 for AY 2000-01 – Accordingly this ground of the appeal is dismissed According to the AO, the payment was not permissible because the payments represented penalties paid at check posts for infraction of law - Each local authority has its own set of rules regarding documentation and the truck drivers being semi literate, the deficiencies can be found in the documents - In this view of the matter and also in the absence of any contrary material brought on record by the revenue authorities at the time of hearing - This ground of appeal of the revenue is also dismissed Regarding write off of bad debts - Though the appellant was not in the business of granting of loans, the loan advanced to Marvel was in the course of appellant’s business and therefore it was a trade loan or advance - The A/R explained that the appellant could not take steps for execution of the decree & recover the decretal amount because Marvel was declared as a sick company by BIFR and therefore appellant lost all hopes of recovery of the decretal amount through legal process - the Madhya Pradesh High Court in the case of Mrs. Geeta Sanohi vs. CIT ( 277 ITR 388) - Even though the decree was issued by the Court in 1994 the appellant could not obtain any payment from Marvel for 8 years because no legal proceedings were possible after the debtor was declared sick by BIFR – Decided in the favour of the assessee Regarding short term capital loss - It is a settled legal proposition that a deeming provision of the taxing statue should be strictly construed - The facts of this case were not disputed by the revenue authorities at the time of hearing and since the Ld. CIT(A) has given relief to the assessee by placing reliance on the decision of ITAT on similar facts – Decided in the favour of the assessee Regarding club subscription fees - The terms of appointment of Sri S. K. Alagh, as MD were in conformity with provision of Schedule XIII to the Companies Act 1956 which permitted companies to provide perquisite to the working director; by way of membership fees of upto two clubs - The Madras High Court in the case of CIT Vs. Sundaram Industries Ltd. (1999 -TMI - 15776 - MADRAS High Court) and Bombay High Court in the case of Otis Elevator Co. (India) Ltd. Vs. CIT (1991 -TMI - 21958 - BOMBAY High Court) – Accordingly decided in the favour of the assessee
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2010 (8) TMI 634
Addition - Undisclosed sources - Held that: assessee had produced copies of accounts, bills and contract notes issued by M/s. MKM Finsec Pvt. Ltd., and had been maintaining books of account as per Companies Act - Assessing Officer has simply acted on the information received from the Investigation Wing without verifying the details furnished by the assessee. The assessee has also produced best possible evidence to support its claim - Appeal is dismissed
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2010 (8) TMI 633
Rectification of mistake - The very statutory provision prescribing a prohibition in respect of the deductions in relation to the profits and gains itself, has not specifically included Section 80HHC - Apparently, it therefore would only mean that there was no prohibition for claiming any deduction under Section 80HHC while applying the benefits provided under Section 10A of the Act -In any event, having regard a statutory prescription available for the assessee to claim the benefit under Section 80HHC in respect of the profits earned from Section 10A of the Act, there is absolutely no scope for the Assessing Authority to have invoked Section 154 of the Act - In order to state that, that can be considered as an error apparent, inasmuch as, there was no error at all, much less, apparent error to be rectified by the Assessing Authority - Hence,do not find any scope to entertain this appeal, inasmuch as we do not find any question of law - This appeal fails and the same is dismissed against of revenue.
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2010 (8) TMI 624
Unexplained income - whether the assessees possess any cattle, sheep and goats and they sold them out - The sale price of the cattle, sheep and goats was not disputed at any point of time - In the present appeals as already pointed out, there was absolutely no basis for the Income-tax Appellate Tribunal to reduce the sale price to half of the amount claimed by the assessees - At this length of time, if the matters are remitted to the assessing authority for making fresh assessment, it causes undue hardship and lot of inconvenience to the assessees - In the absence of any criteria to reduce the sale price to half of the amount claimed by the asses-sees - Appeals are allowed
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2010 (8) TMI 623
Reassessment - Deduction u/s 80HHC - assessee raised issues on jurisdiction, which according to him goes to the root of the entire proceedings - It is now well established that the issue of jurisdiction of the authorities is fundamental and is like the root of the proceedings or matter - In a way that issue is always open to challenge even if the round is second or third. As long as the issue had not reached the finality, it is always open to question or challenge in judicial proceedings - Accordingly the said contention does not give any force to deviate from the view that is being expressed - The appeal will now go before the regular Bench for passing the order in conformity with the view of the majority
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2010 (8) TMI 622
Refund - Business Auxiliary Services(BAS) - Notification No. 6/1999-S.T., dated 9-4-1999 - Circular No. 56/5/2003-S.T., dated 25-4-2003 - assessee was not a commission agent of MAPAL, Germany to qualify for exemption from payment of Service Tax for the period 1-7-2003 to 9-7-2004 - there is no dispute that during the material period, the appellant promoted sale of precision tools manufactured by MAPAL, Germany and received consideration in convertible foreign exchange - since the assessee received consideration in foreign exchange, the impugned services continued to be exempt during the period 1-3-2003 to 20-11-2003 - Appeal is allowed
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2010 (8) TMI 617
Addition - Reopening - Time barred - it is apparent that where an assessment under section 143(3) has been made, as in the present case, no action can be taken under section 147 of the Act, 1961 after expiry of four years from the end of the relevant assessment year unless the assessee had omitted or failed either to make a return under section 139 of the Act, 1961 for he year or had failed to respond to a notice under section 142(1) or under section 148 of the Act, 1961 or had failed to disclose fully and truly all the facts necessary for his assessment - in the present case as none of the conditions precedent for invoking the first proviso to section 147 had arisen, the Assessing Officer could not have assumed jurisdiction under section 147 - Appeal is dismissed
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2010 (8) TMI 614
Imposition of export duty - Effective date - On the date of filing of shipping bill, there was no export duty and there was only export cess which had been paid by the respondents - Admittedly, the loading of goods was also commenced much prior to the imposition of export duty - The export duty was introduced only with effect from 1-3-2007 - Under Section 51 of the Act is a composite order permitting clearance and loading of the goods for export and when such an order is passed, the relevant duty in terms of Section 16 is being date of that order, subsequent change in the rate of duty does not render the earlier order invalid - Since the assessment has been made prior to the imposition of export duty i.e. on 1-3-2007, and the same being collected prior to 1-3-2007, subsequent changes in the rate of duty are inconsequential - Decided in favour of assessee.
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2010 (8) TMI 613
Refund - Deposit of supervision charges in excess - provision for the payment of supervision charges has been withdrawn - The refund has been denied to the petitioner on the ground that there is no head for refunding the amount - Held that:- the respondents have illegally withheld the amount refundable and therefore the petitioner is entitled for the interest even in the absence of any specific provision - The respondents are directed to refund the amount along with interest at the rate of 10% from the date of order till the date of actual payment.
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2010 (8) TMI 602
Refund claim - Consulting engineering and maintenance or repair services - Rule 5 of the Cenvat Credit Rules read with Notification No.5/2006-CE (NT) dt.14/3/2006 - the Respondents had taken credit of service tax paid on various input services in accordance with a Board's Circular No.120/1/2010 ST dated 19.1.2010 - They had produced necessary documents to substantiate their claim - Decided in favour of assessee.
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2010 (8) TMI 600
Waiver of pre deposit - Notification No. 8/2003 - Differential duty - there is no dispute relating to the opening balance of kraft paper as on 1-4-2006 and also the quantity of kraft paper procured by the appellants during the entire year which is 6,90,759 kgs - The claim that they were not issuing specific and know quantity for production appears to be an after thought requiring them to work out the quantity issued backwards from the quantity of final products manufactured - The explanation given regarding the figures mentioned in the tally sheet being not authentic is not acceptable. The reliance placed by the department on this figures for demand of duty cannot be faulted In the present case, on perusal of the Show Cause Notice it is found that no such evidence about clandestine removal is being relied upon. Therefore, the penalty equal to the duty demand confirmed may not be warranted - Decided against the assessee
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2010 (8) TMI 598
Import of goods - Concessional rate of duty - “Whether the goods imported in terms of Notification No. 13/97-Cus., dated 1-3-1997 and successor Notification No. 25/99 dated 28-2-1999 can be used in any other factory other than the factory registered under Rule 1996 and as per the procedure set out in these Rules - Since, the assessee was that though the goods were purchased for use in the manufacture of colour picture tubes at their Mohali Unit, but due to closure of that unit, the assessee-company was not able to use the inputs and as such the same were diverted to their unit in Vadodra for the same purpose - This was done after giving proper intimation to the appellant-Department and the latter had never raised any objection to that being so done - Decided in favour of assessee.
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2010 (8) TMI 596
Issues:
- Entitlement to benefit for carry forward of loss even if return of loss is filed beyond prescribed time under section 139(3) of the Income-tax Act, 1961.
Analysis:
The appeal before the Punjab and Haryana High Court concerned the entitlement of the assessee to carry forward a long-term capital loss for the assessment year 1996-97 to be set off in subsequent years, specifically the assessment year 1999-2000. The assessee had declared a long-term capital loss in 1996-97 but filed the return beyond the time prescribed under section 139(1) of the Income-tax Act, 1961. The Assessing Officer disallowed the set off of the loss claimed by the assessee, citing non-compliance with section 80 read with section 139(3) of the Act. The Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal upheld the decision, leading to the appeal before the High Court.
The main contention raised by the appellant was that the Assessing Officer had allowed the carry forward of the loss during the assessment years 1997-98 and 1998-99, implying that it should also be allowed in the subsequent year. The appellant relied on various judgments to support this argument. However, the High Court, after considering the submissions, referred to a previous judgment and held that a business loss cannot be carried forward unless it has been determined in pursuance of a return filed under section 139 of the Act. Since the assessee had not filed a valid return for the assessment year 1996-97 within the prescribed time, they were not entitled to carry forward the loss for set off in subsequent years.
The High Court emphasized that the mere filing of returns for the subsequent years depicting the carry forward of the loss did not entitle the assessee to the benefit without a specific order by the Assessing Officer. The court noted that there was no specific order by the Assessing Officer granting the carry forward benefit for the relevant years. The appellant's argument that the assessment order itself constituted permission for carry forward was deemed against the provisions of the Act. Consequently, the High Court dismissed the appeal, ruling against the assessee and upholding the decision to disallow the set off of the loss claimed for the assessment year 1999-2000.
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