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Case Laws
Showing 61 to 80 of 1946 Records
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2014 (1) TMI 1889 - ITAT CHENNAI
Rectification u/s 254 - whilst upholding the disallowance made by AO and affirmed by the CIT(A) pertaining to ex-gratia payments made to its employees, the ‘tribunal’ did not consider the case laws pleaded in the grounds - HELD THAT:- It emanates to us that whilst deciding the assessee’s appeal for assessment year 2006-07, we had confirmed the impugned disallowance by holding that the payments in question are nothing but bonus which is only an appropriation of the profits. A perusal of the pleadings raised by the assessee in its grounds reveals that it had also quoted various case laws in support of the arguments. Admittedly, the same have nowhere been taken up in the order sought to be modified/rectified. Accordingly, to this limited extent, we recall our order to re-examine the assessee’s contentions on merits.
Disallowance on merits, the only reason stated right from Assessing Officer till the ‘tribunal’ has been that the payment of ex-gratia amounts to bonus in the nature of appropriation of profits. From the case law quoted by the assessee in CIT vs National Engineering Industries Ltd. [1993 (7) TMI 40 - CALCUTTA HIGH COURT] it turns out that such a payment is allowable as expenditure. Therefore, the assessee’s corresponding ground in the appeal is decided against the Revenue and the disallowance in question is deleted. MP allowed.
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2014 (1) TMI 1888 - ITAT MUMBAI
Depreciation on UPS - @ 60% OR 15% - Whether UPS is an electrical appliance for temporary supply of electricity therefore is in nature of plant and machinery? - Depreciation on ATM - @ 60% OR 15% - ATM is a cash dispensing machine with a projector and therefore is in nature of plant and machinery - depreciation on software - HELD THAT:- As decided in M/S. SARASWAT INFOTECH LTD. [2013 (1) TMI 861 - BOMBAY HIGH COURT] UPS was held to be the part of the computer system and depreciation at 60% was allowed.
Similarly, so far as ATMs are concerned, the Tribunal on finding of fact concluded that ATM cannot function without the help of computer and would be a part of the computer used in the banking industry.ATM was a computer equipment and depreciation © 60% was allowed.
So far as the use of software is concerned, the Tribunal records a fact that the evidence of the use of the software on 31/3/2008 was produced before the Tribunal. Thus, the Tribunal held that depreciation @ 30% on software was rightly claimed. - Decided against revenue.
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2014 (1) TMI 1887 - ITAT MUMBAI
Rectification u/s 254 - decisions relied upon by the Ld. AR have escaped consideration - HELD THAT:- It is apparent from the finding of the Tribunal in para 37 that the decisions relied upon by the Ld. AR have escaped consideration, accordingly we are of the view that to that extent there is an apparent error in the impugn order of the Tribunal which requires to be rectified u/s 254(2) of the Income Tax Act. Since these issues were raised for the first time and remitted to the record of the AO for examination and adjudication we modify our finding on the additional grounds no. 1-3.
Since the issue has not been examined by the AO, therefore, in the interest of justice we remit these grounds to the record of the Assessing Officer for fresh examination and adjudication after considering the decisions relied upon by the assessee as well as after giving opportunity of hearing to the assessee. Miscellaneous application of the assessee is allowed as impugned order is modified above.
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2014 (1) TMI 1886 - ITAT JAIPUR
Computation of Long Term Capital Gain - CIT-A taking the fair market value of land as on 01/04/1981 at ₹ 200/- per sq. yards as against ₹ 1,400/- per sq. yards claimed by assessee - HELD THAT:- In the present case, it appears that the comparable case cited by the assessee was either not brought to the notice of the authorities below or due to oversight it was not considered by the AO/Ld. CIT(A). We, therefore, deem it appropriate to restore this issue back to the file of the AO to be decided afresh in accordance with law after providing due and reasonable opportunity of being heard. The legal heirs of the deceased-assessee are also free to adduce any evidence in support of their claim. - Appeal of the assessee is allowed for statistical purpose.
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2014 (1) TMI 1885 - ITAT MUMBAI
TDS u/s 194C or 194J - disallowance can be made u/s 40(a)(ia)of the Act on account of short deduction of TDS - HELD THAT:- Provisions of section 40(a)(ia) can be invoked only in event of non-deduction of tax source but not for lesser deduction of tax. Decision of the Tribunal in the case of Cinetek Telefilms [2013 (6) TMI 460 - ITAT MUMBAI] relied on by the assessee is also relevant for the proposition that short deduction of tax at source cannot lead to disallowance u/s 40(a)(ia).
We are of the opinion that there is no infirmity in the order of the CIT (A) and the decision taken by him is fair and reasonable and it does not call for any interference. Accordingly, grounds raised by the Revenue are dismissed.
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2014 (1) TMI 1884 - ITAT MUMBAI
Disallowance u/s 14A - Reasonable allocation of expenditure - As argued by assessee entire expenditure debited by assessee in its profits and loss account could not be said to have been incurred only for earning exempt income under the Act - HELD THAT:- Reasonable allocation of expenditure has to be made which can be attributed to the income which is chargeable to tax particularly bank interest income of ₹ 33.80 crores as against dividend income of ₹ 12.07 crores (approximately).
Expenditure of ₹ 4,77,890/- as worked out by assessee, the details of which are mentioned by AO at page 2 of the assessment order, is reasonable to make disallowance u/s 14A with Rule 8D. Accordingly, we restrict the disallowance to ₹ 4,77,890/- by reversing the orders of authorities below and thus, allow the grounds of appeal taken by assessee.
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2014 (1) TMI 1883 - ITAT CHANDIGARH
Addition u/s 36(1)(iii) - advances made to Unit No. II at Baddi - interest attributable to such interest free advances made by the assessee to its own exempt unit - HELD THAT:- In the Chandigarh office, debit balance of ₹ 33,17,606/- is reflected which admittedly is nothing but working capital of the assessee for running the Unit No. II at Baddi and it also includes the profit declared by the Baddi Unit. The assessee in the Chandigarh Unit had shown a capital of ₹ 49,34,981/- and had also shown debit balance in the name of B.K. Raman & Co. Unit II ₹ 37,17,608/-.
In the first instance, the said ₹ 37,17,608/- includes the profit earned by B.K.Raman & Co. Unit II, Baddi which is not to be considered for computing the advances, if any. Further, the assessee in its Chandigarh office had raised certain loans on which it was paying interest and on the other hand, it had advanced money to the Unit No. II at Baddi which was an exempt unit - we hold that the interest attributable to such interest free advances made by the assessee to its own exempt unit is to be disallowed following the ratio laid down in CIT Vs Abhishek Industries [2006 (8) TMI 123 - PUNJAB AND HARYANA HIGH COURT] - we find merit in the contention of the assessee that in addition to the said interest bearing loans, it had certain interest free loans and the average cost ratio of the interest expenditure is to be considered for computing the disallowance of interest expenditure in the hands of the assessee.
Accordingly, we direct the Assessing Officer to compute disallowance of interest expenditure attributable to the advances made to Unit No. II at Baddi by applying average cost ratio.
Second advance considered by the Assessing Officer was to M/s B.K.Varun &Co. no merit in the order of the Assessing Officer in charging any interest on the debit balances as the net balance available with the assessee is to be considered for making any disallowance under section 36(1)(iii) - the said aspect, whether the assessee has credit balance throughout the year, has not been verified by the Assessing Officer and in order to adjudicate the issue, we deem it fit to restore this issue back to the file of Assessing Officer who shall verify the stand of the assessee in this regard and in case the assessee has net credit balance from month to month, then no disallowance is to be made in the hands of the assessee. However, where the assessee has debit balance in the account of M/s B.K.Varun & Co. in any of the months, then the disallowance of interest is to be worked out on average cost ratio.
Third interest free advance made by the assessee to M/s Singal Polymer against whom there is a debit balance of ₹ 370,627/- in the books of account of the assessee. Though the said concern is a business associate of the assessee i.e. to whom goods have been sold by the assessee but that does not justify the advancement of interest free loan to the said concern. Accordingly, we hold that interest relatable to such interest free advance is to be disallowed in view of the provisions of section 36(1)(iii) of the Act. However, the rate of interest to be applied in such case is to be on the basis of average cost ratio i.e. taking into consideration the interest free advances available to the assessee and the interest bearing advances available with the assessee.
Before the Commissioner of Income Tax (Appeals), the assessee had submitted that the average rate of interest is not 18% which has been applied by the Assessing Officer to work out the disallowance under section 36(1)(iii) of the Act. The Assessing Officer is thus, directed to apply average cost ratio in order to compute the disallowance under section 36(1)(iii) of the Act in respect of the advance of ₹ 370,627/- made to M/s Singal Polymer. The ground No. 1 raised by the revenue is thus, partly allowed.
Addition on account of disallowance under section 80IC pertaining to Unit No. II, Baddi - whether the assessee is carrying on any manufacturing activities? - HELD THAT:- We hold that once assessee is engaged in an activity of manufacture, which is not prohibited under the 13 th Schedule of the Income Tax Act, then it cannot be said that the assessee was not engaged in any manufacturing. The assessee has declared income from carrying on of such activity and in addition the assessee had carried on the said activity on job work basis. The assessee is thus, entitled to the claim of deduction under section 80IC of the Act on profits arising from its own manufacturing activity and also the activity carried on, on job work basis. We find support from the ratio laid down in CIT Vs Impel Forge & Allied Industries Ltd. [2008 (12) TMI 370 - PUNJAB & HARYANA HIGH COURT] wherein it has been held that where the assessee is engaged in any manufacturing activity and in addition carries on the same activity on job work basis, the assessee is eligible for the claim of deduction under section 80IB of the Act. Following the same parity of reasoning, we hold that the assessee is entitled to the claim of deduction under section 80IC of the Act on its total profits.
Assessee has not incurred any expenditure for carrying out the said manufacturing activity - Assessee during the course of hearing was directed to produce the electricity bills and some of the bills have been produced which relate to the Baddi Unit II i.e. manufacturing unit. Merely because the entries have not been correctly posted in the manufacturing account but have been debited to the Profit & Loss Account by the assessee does not disentitle the assessee to the claim of deduction under section 80IC of the Act. We find no merit in the order of the Assessing Officer in this regard. The Commissioner of Income Tax (Appeals) has allowed the claim of the assessee in view of the order passed for the preceding year, against which the department has not filed any appeal. However, we have adjudicated the claim of the assessee vis-à-vis the deduction claimed under section 80IC of the Act in paras above, and accordingly, we uphold the order of Commissioner of Income Tax (Appeals) in granting the deduction under section 80IC of the Act, though on different basis. The ground No. 2 raised by the revenue is thus, dismissed.
Allocation of expenses to the exempt unit which have been debited to the Chandigarh trading unit of the assessee - The expenses had been found to be in relation to the Baddi manufacturing unit and some of the common expenses have been attributed to the Baddi manufacturing unit. Admittedly, the unit at Baddi is exempt from tax and profits of the Chandigarh unit are taxable. In the entirety of the facts and circumstances, and the elaborate discussions made by the Assessing Officer and by the Commissioner of Income Tax (Appeals), we are in conformity with the order of the authorities below in allocating the common expenditure and also the particular expenditure of the Baddi unit to the exempt unit. Accordingly, we find no merit in the ground No. 2 raised by the assessee in its Cross Objection.
Deduction under section 54F - assessee had deposited a sum of ₹ 1,94,000/- within the stipulated period as initial payment and the balance had to be paid in installments - HELD THAT:- Where the assessee has deposited the said sum of ₹ 1,94,000/- within the stipulated time, as provided under section 54F of the Act, we find no merit in the addition to that extent. As against the claim of ₹ 12,96,000/-, we direct the Assessing Officer to allow deduction under section 54F of the Act in the hands of the assessee to the extent of ₹ 1,94,000/-. The ground No. 1 raised by the assessee in the Cross Objection is thus, partly allowed.
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2014 (1) TMI 1882 - KARNATAKA HIGH COURT
Deduction u/s 10A - Interest earned on margin money and bank guarantee deposits - whether can be treated as profits and against as are derived by the assessee from the export of computer software within the meaning of Section 10A? - HELD THAT:- As decided in M/S. Motorola India Electronics Private Limited [2013 (12) TMI 1702 - KARNATAKA HIGH COURT] profits of the business of the undertaking includes the profits and gains from export of the articles as well as all other incidental incomes derived from the business of the undertaking - what is exempted is not merely the profits and gains from the export of articles but also the income from the business of the undertaking - thus, the Tribunal was justified in extending the benefit to the amounts also – there was no merit in these appeals – Decided against Revenue.
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2014 (1) TMI 1881 - ITAT MUMBAI
Capitalization towards cost of advertisement film library - capitalization of such revenue expenditure in the balance sheet and its consequent amortization over a period - claim of deferred revenue expenditure made by the assessee - HELD THAT:- The assessee in the business of sky teleshopping, it is but natural that it will develop programmes for Television to market its products. The expenses as incurred, therefore, are clearly for the development of marketing products, to be sold through television programmes.
The preparation of account as per Companies Act envisages the concept of deferred revenue expenditure but as per IncomeTax Act, expenditure is either in revenue field or in the capital field.
The fact, that the assessee offered back the amount amortized in the computation of income in order to claim a total deduction u/s 37(1) of the I T Act 1961 is acceptable as the expenditure is, in respect of an ongoing business and so the decision of Jurisdictional High Court in the case of CIT vs Geoffrey Manner & Company Ltd [2009 (2) TMI 13 - BOMBAY HIGH COURT] is binding. The above judgment, as noted, has held that the expenditure incurred by the assessee, on production of film by way of advertisement for promoting and marketing of products manufactured by it in respect of ongoing business is allowable as revenue expenditure. - Decided against revenue
Disallowance towards input Service Tax - as per CIT-A expenditure has been claimed only once and that in the year it has incurred. The addition made by the Assessing Officer is, therefore, deleted - HELD THAT:- CIT(A) appreciated the factual aspect and gave a finding on facts, which in our opinion does not deserve to be disturbed. We, therefore, sustain the view of the CIT(A), thereby, rejecting the ground of appeal, as raised by the department.
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2014 (1) TMI 1880 - ITAT JAIPUR
Rejection of books of accounts u/s 145 - NP estimation - HELD THAT:- Nothing new is brought on record, therefore we confirm the view taken by the CIT(A) for rejection of the books of accounts u/s 145(3) of the Act. In such circumstances, when the books of accounts are rejected the only way to worked out the income is the estimation by considering the past history of the assessee or any comparable case having similar facts.
In the instant case, the profit shown by the assessee at 5.38% is higher than the net profit rate of 5% approved by the ITAT in the preceding assessment years but, at the same time, the AO pointed out certain shortcomings in the maintenance of books of accounts etc. Therefore, certain addition was required to take care of possible leakage of income/profit of the assessee. In our opinion, the addition sustained by the Ld. CIT(A) at ₹ 10 Lac is on higher side. We, therefore, to meet the ends of justice and considering the peculiar facts of this case, deem it appropriate to sustain the addition of ₹ 5 Lac which will take care of possible leakage of income/profit of the assessee (if any) on account of shortcomings pointed out by the AO. - Decided partly in favour of assessee
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2014 (1) TMI 1879 - ITAT KOLKATA
Delayed payment of employees contribution to PF & ESI - violation of section 2(24)(x) read with section 36(I)(va) - CIT-A deleted the addition - HELD THAT:- As it is noticed that the assessee had made the payments in respect of the employees contribution to PF and ESI before the due date of filing the return as is apparent from Tax Audit Report we are of the view that the issue is squarely covered by the decision of M/S. ALOM EXTRUSIONS LIMITED [2009 (11) TMI 27 - SUPREME COURT] Consequently the finding of the ld. CIT(A) on this issue stands confirmed.
Disallowance u/s 14A - HELD THAT:- As it is noticed that the issue of disallowance under Rule 8D has been consistently being held by the Coordinate Bench of this Tribunal at 1% of the dividend income for the Assessment years before A.Yr. 2008-09, we are of the view that the finding of ld. CIT(A) on this issue is on a right footing and does not call for any interference.
Allowance of deduction u/s 80-IA(4) - HELD THAT:- As it is noticed that the issue is squarely covered by the decision of the Coordinate Bench of this Tribunal in the case of assessee’s sister concern [2013 (6) TMI 813 - ITAT KOLKATA] as also on account of the fact that it is noticed that assessee has been paying VAT on the turn over in respect of various projects. The projects which have been undertaken by the assessee in West Bengal and Bihar are also such projects which are assessable under the relevant states VAT Laws In the circumstances we are of the view that the assessee is entitled to the benefit of deduction u;/s 80IA(4) as claimed. In the circumstances the AO is directed to grant the assessee benefit of deduction u/s 80IA of the Act as claimed.
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2014 (1) TMI 1877 - ITAT CHENNAI
TDS u/s 195 - disallowance u/s 40(a)(i) in respect of the amounts paid by the assessee to M/s Abaqus In the case of, without deduction of tax at source - CIT-A deleted addition treating the same as not taxable in India under Section 9(1)(vi) - assessing authority has treated the payments in the nature of royalty as against payments towards purchase consideration, as argued by the assessee - HELD THAT:- This issue has already been decided by the ITAT, Chennai B-Bench in the case of Dassault Systems Simulia P. Ltd. (formerly known as Abacus Engineering Pvt. Ltd.) [2011 (9) TMI 207 - ITAT, CHENNAI] . After considering the issue and following the decision of Motorala Inc. v. DCIT [2005 (6) TMI 226 - ITAT DELHI-A] the Tribunal has held that the payment is not in the nature of income arising or accruing in India within the meaning of Section 9(1)(vi) and therefore, no taxability arises in India on such payments. The Tribunal held that it is a case of outright purchase and no income arises in India.
In these circumstances, we follow the said order of the Tribunal and hold that the disputed payments are not assessable to tax in India - Decided in favour of assessee.
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2014 (1) TMI 1876 - SC ORDER
Demand and Penalty- A show cause notice came to be served on the petitioners under Section 124 read with Section 28 of the Customs Act, 1962 - HELD THAT:- Leave granted.
Hearing expedited.
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2014 (1) TMI 1875 - ITAT CHANDIGARH
Payment of EPF and Administrative Expenses - disallowance u/s 43B - HELD THAT:- We find that Hon'ble Punjab and Haryana High Court in case of CIT Vs. Rai Agro Industries Ltd. [2010 (11) TMI 386 - PUNJAB AND HARYANA HIGH COURT] has held Tribunal was right in allowing the claim of the assessee in respect of payments made for ESI contributions and it could not be disallowed u/s 43B of the Act.
Following the decision of Hon'ble Punjab and Haryana High Court that if the payment has been made within the due date of filing of return in respect of Provident Fund dues etc. then same has to be allowed. Respectfully following this decision we decide this issue in favour of the assessee.
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2014 (1) TMI 1874 - ANDHRA PRADESH HIGH COURT
Penalty u/s 271D - whether transactions through journal entry do not attract the provisions of Section 269SS ? - ITAT deleted penalty - HELD THAT:- We have read the reasoning rendered in the previous judgment [2013 (7) TMI 952 - ITAT HYDERABAD] . It appears that the assessee challenged the penalty proceedings initiated under Section 271D of the Income Tax Act, 1961 on the ground of illegal borrowings in contravention of Section 269SS of the Act. The learned Tribunal on an earlier occasion found that there is no proof of receipt of such loan from the records and they were only found to be journal entries. The learned Tribunal, in our view, correctly observed that relying on an entry in the journal, no penalty proceedings can be initiated. Hence, it was sent for clarification whether actual flow of money did take place. Therefore, the matter was remanded and no decision was taken on merit.
We find that the learned Tribunal has correctly decided the same
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2014 (1) TMI 1873 - BOMBAY HIGH COURT
Accrual of income to the AOP - HELD THAT:- No income accrued to the assessee - AOP (Association of Persons) before the Tribunal. The Tribunal has relied upon its earlier orders and to the effect that when no income accrues to the AOP but to the respective constituents of the AOP, who were to do specified portion of a contract at their own risks and in their individual capacities, then the AOP is not liable to be taxed. This view is consistent with the materials placed on record. Since it is in the peculiar facts of the case before the Tribunal and the Commissioner of Income Tax (Appeals), we do not feet that any substantial question of law arises for determination and consideration in these appeals.
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2014 (1) TMI 1872 - ITAT PUNE
Reopening of assessment u/s 148 - sales tax evaded as per the Sales tax department - HELD THAT:- Sales tax is sub judicious before concerned sales tax tribunal. AO has not justified in making addition based on account of evasion sales tax while the concerned documents were with the CBI. DR did not dispute the fact that the issue of additions based on sales tax evasion is sub judicious before the concerned sales tax department and documents were with the CBI at the relevant point of time.
Assessee has not been provided due opportunity of hearing because he was not having the benefit of books of account at relevant point of time as the same were with the CBI at that time. Moreover, the issue of addition based on sales tax evasion is sub judicious before the concerned Sales Tax Tribunal. We are of the view that the assessee has not been provided due opportunity of hearing before making various additions against him on various counts, which is violation of principles of natural justice.
CIT(A) and restore the issue to the AO with a direction to decide the same as per fact and law. The assessee will be at liberty to have the benefit of documents claimed to have been seized by the CBI at the relevant point of time and the AO is also at liberty to look into the relevant findings of sales tax department touching the issue before him. The assessee is also directed to cooperate in the proceedings before the AO, so that, the proper adjudication of the matter may be done. Since we are restoring the issue to the AO on a preliminary issue, we are refraining from commenting on the merit of the issue at hand. As a result, the appeal filed by the assessee is allowed for statistical purposes.
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2014 (1) TMI 1871 - SC ORDER
Whether the investment made by the assessee are in terms of the notifications 32/99-CE, 33/99-CE, 8/2004 and 28/2004 r/w Section 72 of the Finance Act, 2011?- HELD THAT:- There is no reason to interfere with the impugned order - The Investment Appraisal Committee shall conclude its work within three months from today and shall give its findings. If the findings of the Investment Appraisal Committee are against the concerned units, which have been given the incentive, the amount of incentive so given shall be recovered within six months thereafter in accordance with law - SLP disposed off.
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2014 (1) TMI 1870 - DELHI HIGH COURT
Power to discharge accused at summon stage / framing notice - Complaint of defamation against the petitioners - Sections 500 and 501 read with Sections 34 and 120B of IPC - aggrieved person within the meaning of Section 199(1) Cr.P.C. or not - HELD THAT:- The Courts have no power to do justice or redress a wrong merely because no express provision of the Code can be found to meet the requirements of a case. All Courts, whether civil or criminal, possess, in the absence of express provision in the Code for that purpose, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. This is based on the principle, embodied in the maxim “quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest' - when the law gives a person anything, it gives him that, without which, it cannot exist. The High Court has, in addition thereto, and in view of its general jurisdiction over all the criminal Courts subordinate to it, inherent power to give effect to any order of any such Court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice.
The power under Section 482 Cr.P.C. is in its nature extraordinary and is to be exercised “ex debito justitae‟ to do the real and substantial justice for the administration of which alone Courts exist. The Court, therefore, has to be careful to see that its decision is based on sound general principles of criminal jurisprudence and is not in conflict with the statutory provisions. This provision cannot be invoked to override an express provision of law or when there is another remedy available - The present case does not fall within the aforesaid limitations as there is neither any express provision nor any express bar in the Code of Criminal Procedure for discharge of the accused at the stage of framing of notice under Section 251 Cr.P.C. if no prima facie case is made out against him.
This Court is satisfied that ends of justice are higher than the ends of mere law and therefore, this case warrants the issuance of appropriate directions in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to enable the Magistrate to discharge the accused at the stage of notice under Section 251 Cr.P.C. if no prima facie offence is made out - petition disposed off.
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2014 (1) TMI 1869 - SUPREME COURT
Storage or warehouse keeper – recipient of service from foreign party i.e. PROSAFE - HELD THAT:- Appeal admitted.
Counter affidavit, if any, be filed in two weeks’ time.
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