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Showing 501 to 520 of 1478 Records
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2016 (3) TMI 984
Whether the raw material imported by the appellant from their parent concern needs to be loaded with the value of royalty paid by them to parent concern - Import of raw materials from their collaborator - Held that:- the agreement is titled as a technical know-how agreement. The entire agreement is in respect of the finished goods to be manufactured by the appellant in their factory from the technical know-how received from parent concern. The said agreement does not talk about or restrict the appellant to purchase or procure raw materials only from the parent concern. The findings of adjudicating authority are correct. The first appellate authority has not brought on record any evidence to indicate that there was restriction imposed on the appellant to procure the raw materials only from the parent concern. In the absence of any such evidence, we are of the considered view that the loading of the value of by the amount of royalty paid by appellant is not in consonance with the law settled by the higher judicial fora. - Decided in favour of appellant
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2016 (3) TMI 983
Validity of order passed ex parte in violation of natural justice - Petitioner unable to represent its case on medical ground - Input Tax Credit - Held that:- in view of the decision of Hon'ble Apex Court in the case of Canara Bank v. V.K. Awasthy [2005 (3) TMI 476 - SUPREME COURT OF INDIA], the order passed is in violation of the principles of natural justice as per the law. Therefore, liable to be set aside. - Decided in favour of appellant
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2016 (3) TMI 982
Validity of order - Violation of principles of natural justice - Order passed without taken in to consideration of sum paid by the appellant and without following the provisions of the Sections 6(2) and 6(3) of the Act and no opportunity of personal hearing before passing an order provided - Held that:- the petitioner should be given an opportunity to putforth their case before the respondents and that the respondents should consider the objections raised by the petitioner and pass fresh orders on merits and in accordance with law. Accordingly, the impugned order is set aside. - Decided in favour of appellant
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2016 (3) TMI 980
Sustainability of Tribunal order - Appeal dismissed for want of pre-deposit of 25% of the additional demand - Held that:- the issue involved in this appeal stands concluded by the decision of this Court in Punjab State Power Corporation Limited v. The State of Punjab and others [2016 (2) TMI 245 - PUNJAB AND HARYANA HIGH COURT]. Therefore, by following this, the orders passed by the Tribunal are set aside. - Appeal disposed of
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2016 (3) TMI 979
Scheme of Amalgamation - Held that:- As it appears that the requirements of the provisions of sections 391 to 394 of the Companies Act, 1956 are satisfied. The Scheme appears to be genuinely in the interest of the shareholders and creditors. This Court, therefore, allows the Company Petitions and sanctions the Scheme. The prayers made in the respective Company Petitions are granted.
The petitions are allowed, accordingly.
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2016 (3) TMI 978
Disallowance u/s 14A of the Act read with Rule 8D(2)(ii) and (iii) of the Rules - Held that:- The relevant assessment year under appeal is 2005-06 at which point of time, the provisions of Rule 8D was not in force and the same was made applicable only from Asst Year 2008-09 as decided in the decision of Godrej & Boyce Manufacturing [2010 (8) TMI 77 - BOMBAY HIGH COURT ]. However, it is not in dispute that the assessee had derived taxable income as well as tax free income and incurred expenditure for deriving both the incomes and hence disallowance is definitely warranted in terms of section 14A which is brought in the statute book with retrospective effect from 1.4.1962. The disallowance had to be made only on an estimated basis with regard to the expenditure incurred for the purpose of earning tax free income. Thus we direct the Learned AO to disallow 1% of exempt income under this issue - Decided partly in favour of assessee
Transactions of frequent purchase and sale of shares in a systematic and organized manner - assessed as capital gains OR business income - Held that:- There is no material brought in by the revenue to show that separate accounts of two portfolios are only a smokescreen and there is no real distinction between two types of holdings. This could have been done by showing that there is intermingling of shares and transactions and the distinction sought to be created between two types of portfolios is not real but only artificial and arbitrary. Therefore, in absence of any material to the contrary, and on appreciation of cumulative effect of several factors present as culled out above , we hold that the surplus is chargeable to capital gains only and assessee is not to be treated as trader in respect of sale and purchase of shares in investment portfolio - Decided against revenue
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2016 (3) TMI 977
Revision u/s 264 in favor of assessee - Commissioner has rejected the revision petition u/s 264 on the ground of that the Petitioner did not comply with the mandatory requirement of payment of prescribed fees - Held that:- It is an admitted position that the requisite fee was paid during the pendency of the revision petition. The rejection of the application on the technical ground of non payment of would be taking a hyper technical view. The condition requiring the payment of fees prior to the filing of the revision application would be directory in nature. From a reading of the provisions of Section 264 of the Act, it cannot be gathered that the non payment of the prescribed fee prior to the institution of the application for revision would be fatal. The non payment of the requisite fee would be a mere irregularity which could be cured at a later stage. The applicant can always be called upon to pay the requisite fee and make good the deficiency. If the deficiency is cured, the irregularity would be rectified. In the present case, the petitioner paid the requisite fee, though belatedly and thus cured the irregularity. The finding returned by the commissioner that the application was not maintainable on this account cannot be sustained and is accordingly set aside
The other ground for rejection was that the assessing officer was not at fault as there was no material on the basis of which period of holding shares by the petitioner could be calculated, by taking the date of acquisition as the year 1987 or 2005 and no fault could be found with the action of the Assessing Officer in the processing/rectification under section 143(1)/154 of the Act.
Tax gains arising on sale of shares - STCG OR LTCG - Held that:- In the present case, as per the Petitioner, in his return of income, he has erroneously offered to tax gains arising on sale of shares as short term capital gains instead of same being long term capital gains exempt from tax. Subsequently, the petitioner on 14.01.2011 filed the application under section 154 of the Act. The assessing officer on 21.02.2011 partly rectified the intimation and computed the tax on capital gains @ 10% as against 30% computed in the intimation issued under section 143(1) of the Act. The assessing officer, however refused to accept the application under section 154 filed by the petitioner. When the assessing officer could rectify the intimation on 21.02.2011, he could also consider the prayer of the petitioner made in the rectification application under section 154 of the Act, which was already pending before him on that date.
When the commissioner was called upon to examine the revision application under section 264 of the Act, all the relevant material was already available on the record of the assessing officer. The commissioner instead of merely examining whether the intimation was correct based on the material then available should have examined the material in the light of the Circular No. 14(XL-35) of 1955, dated 11.4.1955 and Article 265 of the Constitution of India. The commissioner has erred in not doing so and in failing to exercise the jurisdiction vested in him on mere technical grounds. - Decided in favour of assessee
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2016 (3) TMI 976
Assessment u/s 153A - Held that:- As far as TGJ s concerned, there is no denial of the fact that no search took place in its premises. Only a survey was undertaken. Consequently, the Court considers it to be a waste of time to require the Petitioners to now go before the AO.
For the search to be undertaken under Section 132 of the Act, there had to be a recording of reasons to believe that the information that may be unearthed cannot otherwise be gathered through a regular enquiry. It appears that the entire search proceeding as far as Mr Jolly was concerned was unnecessary as the information provided by the Petitioners could have been easily gathered without resorting to a search. Additionally, it is plain that no incriminating material qua the Petitioners was found during the search operation. Thus no hesitation in quashing the impugned notices under Section 153 A (1) - Decided in favour of assessee
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2016 (3) TMI 975
Deduction of interest expenditure - nature of the business of the assessee is share broking and not of financing - whether the claim of expenditure of interest was inadmissible under Section 37(1)? Held that:- Appeal admitted on first substantial question of law
Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in allowing as a deduction interest expenditure of ₹ 21,92,68,519/to the assessee even though the nature of the business of the assessee is share broking and not of financing and the claim of expenditure of interest was inadmissible under Section 37(1) of the I.T. Act, 1961?
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2016 (3) TMI 974
Reopening of assessment - non-charging of interest from SPPL on the sum advanced - Held that:- Petitioner did disclose all the material facts necessary for the assessment. Apart from the fact that the return was picked up for scrutiny, a detailed questionnaire was issued, in which specific questions touching upon the said loan to SPPL were raised. The Petitioner replied to the said letter disclosing all the necessary information. Consequently, as far as the first ground for reopening of the assessment is concerned, the Court is satisfied that the precondition of the first proviso to Section 147 regarding failure on the part of the Assessee to fully and truly disclose the material facts, is not fulfilled. The mere fact that the assessment order may itself not advert to the fact that a questionnaire was issued and a reply was filed thereto by the Assessee would not ipso facto lead to an inference that the AO did not apply his mind and form an opinion on that ground. - Decided in favour of assessee
Share capital received by the Assessee during the AY - Held that:- Even if the records are now to be produced before the Court and perused by it, it is not open for the Court to gather from the records the material/information which would support the reasons as communicated to the Petitioner by the DCIT. The court is therefore satisfied, that even in respect of the second reason for reopening the assessment, the mandatory requirement of the AO having to form a prima facie view regarding failure on the part of the Assessee to fully and truly disclose all the material facts is not fulfilled. - Decided in favour of assessee
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2016 (3) TMI 973
Rectification of mistake - grievance of the Petitioner is that the impugned order does not consider various issues raised by the petitioner in its rectification application - Held that:- We find that the impugned order passed by the Tribunal clearly exhibits a flaw in the decision making process. There is no mention in the impugned order as to what was the basis for revising the grounds of appeal filed by the Revenue in rectification application filed by the Petitioner. The Tribunal was concerned only with regards to the Petitioner's application for rectification. Thus, the Petitioner was not given any opportunity to deal with the revised grounds of appeal and it is not clear as to whether the revised grounds of appeal were at all filed by the Revenue. Nothing has been placed by the Revenue on record that any application has been filed by them, seeking revision of its grounds of appeal before or after the order dated 17.4.2015.
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2016 (3) TMI 972
Reopening of assessment - failure to consider the objections filed by the Assessees - Held that:- Revenue's contention that the AO is not required to apply his mind to the facts in relation to the escapement of income at the stage of considering objections is wholly without merit. Whilst, the AO is not expected to finally decide whether income of an assessee has escaped assessment at the stage of considering the objections he, nonetheless, has to consider the facts presented in support of the objections in a meaningful manner and at least to consider whether his reason to believe that income escaped assessment is justified or is without sufficient basis. Since in the present case, the AO has failed to consider the objections filed by the Assessees, the order dated 11th September 2015 passed by the AO rejecting the objections raised cannot be sustained. Reopening set aside -Decided in favour of assessee
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2016 (3) TMI 971
Validity of reopening of assessment - accommodation entries - Held that:- We find that the reasons in support of the impugned notice indicates that the Assessing Officer has received definite information that one Mr. Praveen Kumar Jain and the companies controlled by him was in the business of providing accommodation entries. On receipt of the aforesaid information, the Assessing Officer called for the necessary information in regard to the accommodation entries made in respect of the assessees in his jurisdiction. Consequent thereto, the Assessing Officer found that the information received indicated that the eight companies mentioned in the reasons belonged to Mr. Praveen Kumar Jain group and formed the basis of his reasonable belief. At this stage the Assessing Officer has merely to establish that there is justification for him to form a reasonable belief that income chargeable to tax had escaped assessment and not conclusively prove the same
In these facts, we see no reason to exercise our extraordinary writ jurisdiction and interdict the Revenue from proceeding further with the reassessment proceedings. Needless to state that during the reassessment proceedings, the petitioner would have occasion to establish that the loans taken from the eight entities referred to in the reasons were genuine loans before the Assessing Officer and also before the appellate authorities under the Act. - Decided against assessee
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2016 (3) TMI 970
Entitlement to the benefit under Section 10(22A) - whether private limited company cannot come within the purview of the word "Institution", used in section 10(22A)? - Held that:- Even a private limited company can get the benefit of section 25 of the Companies Act, 1956. The benefit is to have the word "Limited" or the words "Private Limited" dropped. On the basis of this sub-section, one cannot say that a private limited company cannot come within the purview of the word "Institution", used in section 10(22A) of the Act. When the legislature has not restricted the meaning of the word "Institution", there is no reason why any restriction should be put to the word by the Court. No further submission was advanced by Mr. Agarwal. We find no substance in the submission, which, he already advanced and, therefore, the is answered in the affirmative in favour of assessee
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2016 (3) TMI 969
Registration under section 12A (a) cancelled - Held that:- CIT(E) has not brought out any allegation to show that the receipt/income of the assessee's trust was not used for the educational purposes and the same was used for other purposes beyond the objectives of the applicant trust. CIT dismissed application of the assessee for grant of registration under section 12A of the Act by recording incorrect and irrelevant facts and circumstances and the assessee successfully established that it was created for the charitable purposes including education activity and it used its funds for the purpose of educational activities and therefore the applicant trust is eligible for registration under section 12A of the Act.
During the assessment proceedings while considering such claim of assessee the AO is fully empowered to examine and verify these facts that whether the assessee/applicant has applied its receipts towards its charitable objects and the AO is also empowered to verify as to whether the applicant assessee is conducting any activity in the name of charitable which is actually in the nature of trade commerce or business. These sovereign powers of the tax authorities are perpetual which cannot be taken away only by grant of registration under section 12A of the Act. It is also relevant to mention that the grant of registration under section 12A of the Act merely a pre-qualification for claiming exemption under section 11 and other relevant provisions of the Act, which should be granted by recording satisfaction as required under the said provision.
Thus we hold that the CIT dismissed application for registration without any justified reason and by considering incorrect and irrelevant facts and the ld. CIT(A) has not brought any adverse finding on record to show that the objects of the Trust are not charitable or non genuine. - Decided in favour of assessee
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2016 (3) TMI 968
Penalty under Sec.271(1)(c) - surrender of income in revised return - Held that:- The assessee filed revised return in time offering the additional income voluntarily in good faith to purchase peace with the Department, though in the course of investigation and to avoid protracted litigation. Thus, we see that it is a case of simply accepting the additional income by the assessee in the course of investigation and filing the revised return in time and to avoid protracted litigation as to in whose hands the addition is to be made whether assessee or the AOP and in which the case, the ratio of the decision of Hon’ble Supreme Court Zin the case of CIT Vs. Suresh Chandra Mittal reported in [ 2001 (6) TMI 63 - SUPREME Court] will apply. Thus following the said decision, we hold that there is no concealment of income. Thus we direct the ld. Assessing Officer to delete the penalty levied under Sec.271(1)(c) of the Act.- Decided in favour of assessee
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2016 (3) TMI 967
TDS u/s 194C - Disallowance made u/s. 40(a)(ia) - assessee has not deducted tax at source on the payments made to the constituents of J.V. - AOP status - Held that:- As decided in the preceding assessment year i.e. assessment year 2009-10 CIT(A) deleted the disallowance u/s. 40(a)(ia) as CIT(A) was justified in holding that in absence of any contract or sub-contract work by joint venture to its member companies, provisions of section 194C were not applicable for the purpose of TDS. The two corporate entities forming joint venture were already being assessed since A.Y. 2000-01 onwards on their respective shares and TDS apportionment certificates were also issued by the Assessing Officer every year for these eight years including the current assessment year to enable them to claim the same in their own cases. Moreover, there was no Profit and Loss Account in the assessee’s case and there was no claim of any expenditure. Therefore, there was no question of any disallowance under the provisions of section 40(a)(ia) of the Act. Moreover, disallowance u/s. 40(a)(ia) made by the Assessing Officer cannot be sustained. In effect, the method adopted by the Assessing Officer will also result in double taxation of the same contract revenue which is in violation of case Commissioner Of Income-Tax Versus Manjunatha Motor Service And Canara Public Conveyances [1991 (6) TMI 23 - KARNATAKA High Court ] - Decided in favour of assessee
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2016 (3) TMI 966
TDS u/s 194C - whether the assessee Joint Venture was in full control of the contract, responsible for its completion, submitting bills, receiving payments and making those payments to its members towards sub contract on which tax was deductible u/s.194C? - Held that:- AOP status - Held that:- As decided in the preceding assessment year in absence of any contract or sub-contract work by joint venture to its member companies, provisions of section 194C were not applicable for the purpose of TDS. The two corporate entities forming joint venture were already being assessed since A.Y. 2000-01 onwards on their respective shares and TDS apportionment certificates were also issued by the Assessing Officer every year for these eight years including the current assessment year to enable them to claim the same in their own cases. Moreover, there was no Profit and Loss Account in the assessee’s case and there was no claim of any expenditure. Therefore, there was no question of any disallowance under the provisions of section 40(a)(ia) of the Act. Moreover, disallowance u/s. 40(a)(ia) made by the Assessing Officer cannot be sustained. In effect, the method adopted by the Assessing Officer will also result in double taxation of the same contract revenue which is in violation of case Commissioner Of Income-Tax Versus Manjunatha Motor Service And Canara Public Conveyances [1991 (6) TMI 23 - KARNATAKA High Court ] - Decided in favour of assessee
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2016 (3) TMI 965
Deemed dividend u/s.2(22)(e)- CIT(A) allowed part relief - Held that:- CIT(A) after considering the ledger account of the assessee in the books of the company sustained an amount of ₹ 3,44,689/- being the amount outstanding against the assessee out of the addition of ₹ 13,96,057/- made by the AO and deleted the balance amount of ₹ 10,51,368/-. The Revenue is not in appeal before us for the relief granted by the CIT(A). We find the CIT(A) had rejected the contention of the assessee that the advance given by the company to the assessee was for the purpose of business in absence of any evidence given by the assessee. Before us also the Ld. Counsel for the assessee could not justify that the advance given by the company to the assessee is for business purposes. Under these circumstances and in absence of any contrary material brought to our notice by the Ld. Counsel for the assessee against the order of the CIT(A), we find no infirmity in the order of the CIT(A). In our opinion, the order of the CIT(A) is justified under the facts and circumstances of the case since the maximum amount advanced by the company to the assessee which is outstanding at any time during the year is ₹ 3,44,689/-. - Decided against assessee
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2016 (3) TMI 964
Taxing receipts for Management Services to be in the nature of ‘Fees for Technical Services’ (‘FTS’) DTAA between India and Sweden - Held that:- Identical issue arose before the Tribunal in assessee’s own case in assessment year 2007-08 and 2008-09 wherein held on the principle of most favoured nation clause, that the payment received by the assessee company from its Indian subsidiaries could not be brought to tax. - Decided in favour of assessee
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