|
Advanced Search Options
Case Laws
Showing 61 to 80 of 1477 Records
-
2016 (4) TMI 1418
Disallowance u/s 14A r.w.r. 8D - Quantum of disallowance - AO noticed by the AO that the assessee has earned dividend income on investment made and the same is claimed to be exempt from tax - assessee disputed the quantum of disallowance worked out by the AO as per rule 8D by submitting that only the investment on which the exempt income was actually earned by the assessee during the year under consideration should be taken into consideration and not the entire investment as done by the AO - HELD THAT:- As per decision of REI Agro Ltd. [2013 (9) TMI 156 - ITAT KOLKATA] wherein it was held that for computation of disallowance section 14A by applying Rule 8D(2)(ii), only those investments shall be considered which earn exempt income and not the total investment appearing in the balance-sheet. Respectfully following the said decision we direct the AO to recompute the disallowance to be made under section 14A by applying Rule 8D after taking into consideration only the investment which actually earned the exempt income and not the entire investment. Appeal filed by the assessee is partly allowed.
:-
-
2016 (4) TMI 1417
Classification of imported goods - Lubricant Oil-Open Gear - classifiable under tariff item No. 2710 1980 of Customs Tariff Act, 1985 or not - HELD THAT:- Without expressing any opinion on the merits of the case, as the petitioner claims that it is a live consignment, it is deemed appropriate to direct the concerned Authority to adjudicate the show cause notice within two months from the date of receipt of certified copy of this order by passing a speaking order and after affording an opportunity of hearing to the petitioner in accordance with law.
Application disposed off.
-
2016 (4) TMI 1416
TP Adjustment - comparable selection - exclusion of one comparable i.e. ICC International Agencies Ltd. (Seg.) - HELD THAT:- As in the case of Logica (P) Ltd. vs. ACIT [2015 (3) TMI 401 - ITAT BANGALORE], that assessee company was engaged in the business of rendering software development services and support services to its AE. In the present case also, the assessee company is rendering market support services to its AE. Learned DR of the revenue also could not point out any difference in facts in the present case and in the case of Logica (P) Ltd. vs. ACIT (Supra). In this case i.e. in the case of Logica (P) Ltd. vs. ACIT (Supra), it was held by the tribunal that keeping in mind the functions and risk analysis, it is not possible to compare that assessee with ICC International Agencies Ltd.
Correct margin of two companies i.e. Priya International Ltd. and Access Global Solutions Ltd. and adjustment on account of depreciation - These adjustments are approved because the margin of the comparable has to be correctly adopted and adjustment on account of depreciation is also justified if excess/lesser depreciation is charged by the assessee because of adopting a different method of charging depreciation as compared to method of charging depreciation by the comparables. But for factual verification of the correct margin of two companies i.e. Priya International Ltd. and Access Global Solutions Ltd. and adjustment required on account of depreciation, the matter is restored back to Assessing Officer/TPO. Needless to say, before passing the order, adequate opportunity of being heard should be provided to the assessee.
Disallowance of expatriate cost - HELD THAT:- A clear finding is given by DRP that the liability has been imposed by the HO and the assessee company has agreed to discharge this liability because of non – business consideration and learned AR of the assessee could not controvert this categorical finding of DRP. Regarding the argument of commercial expediency, we find that although this contention was raised but the AR of the assessee could not establish the commercial expediency for discharging this liability of the HO and hence, this contention and reliance on the judgment of Hon’ble apex court rendered in the case of S. A. Builders [2006 (12) TMI 82 - SUPREME COURT] are without any merit since commercial expediency is not established. Regarding the alternative plea of exclusion from cost for TP study also, we find no infirmity in the order of DRP. Accordingly, this ground is also rejected.
Disallowance of creditor’s outstanding balance - HELD THAT:- The basis of the figure noted by the A.O. is available and for this reason, it is not required to restore the matter to the A.O. However, we find that the matter should be restored to the file of the A.O. to consider and decide about various explanations given by the assessee in respect of these differences. We, therefore, restore this matter to the A.O. to decide the issue afresh after giving a finding about various explanations of the assessee after affording reasonable opportunity of being heard to the assessee. This ground is allowed for statistical purposes.
-
2016 (4) TMI 1415
Addition u/s 69A - undisclosed credit balance of DDs - DDs purchased from disclosed CC A/c, but not reflected in financial statement or bank A/c though these DDs were in the hands of the assessee - whether DDs made by the assessee from his CC account amounts to unexplained money? - CIT-A deleted the addition - HELD THAT:- These DDs were made from the disclosed bank account of the assessee and were transferred to his saving bank account. It is also nowhere mentioned that this account of the assessee wasn’t disclosed in the return of income. We also observe from the finding of the AO that these DDs were made out of the CC account of the assessee. As per the provisions of Section 69A of the Act unexplained money can be brought to tax if it is not recorded in the books of accounts and assessee offers no explanation about the nature and source of acquisition of money. In the present case, the sources of the DDs have not been doubted. Accordingly, in our considered view that there is no infirmity in the order of the Ld CIT(A) and we uphold the same. Hence this ground of appeal of Revenue is dismissed.
Undisclosed money in credit - HELD THAT:- We find that the sourc has not been doubted as it was withdrawn from the bank so the transaction of making the payment of ₹ 7.13 lakhs is out of the purview of Section 69A of the Act. As per the provisions of Section 69A of the Act unexplained money can be brought to tax if it is not recorded in the books of accounts and assessee offers no explanation about the nature and source of acquisition of money. In this case the source of the payment has not been doubted. Accordingly, in our considered view that there is no infirmity in the order of the Ld CIT(A) and we uphold the same. Hence this ground of appeal of Revenue is dismissed.
-
2016 (4) TMI 1414
Principles of natural justice - validity of assessment order - petitioner was not given an opportunity to file their objections - HELD THAT:- An opportunity can be given to the petitioner to file their objections before the 1st respondent. In view of the same, the impugned orders dated 09.11.2015 are set aside and the matter is remanded to the 1st respondent for fresh consideration.
The petitioner is directed to file their objections within a period of two weeks from the date of receipt of a copy of this order and the 1st respondent is directed to decide the matter afresh, on merits and in accordance with law, after taking into consideration the objections to be filed by the petitioner and after affording due opportunity of personal hearing to the petitioner.
Petition allowed by way of remand.
-
2016 (4) TMI 1413
Scheme of arrangement - section 230-232 of Companies Act - HELD THAT:- Various directions regarding holding and convening of various meetings issued - various directions regarding issuance of various notices also issued.
The scheme is approved - application allowed.
-
2016 (4) TMI 1412
Reopening of assessment u/s 147 - Addition u/s 68 - unexplained source of share application and share premium money - HELD THAT:- We are of the view that the facts dealt in the case of M/s Pankaj Enka P. Ltd. vs. DCIT [2015 (5) TMI 1227 - ITAT AHMEDABAD] are similar to the facts of the case of assessee, and therefore, in our opinion that assessee has been able to explain the source of share application and share premium money - Also we allow the grounds of assessee and quash the assessment framed u/s 143(3) r.w.s. 147. - Decided in favour of assessee.
-
2016 (4) TMI 1411
Appealable Order or not - correspondences between the jurisdictional Assistant Commissioner and the Superintendent Central Excise, Jamnagar - exclusion of Single Buoy Mooring area from the ground plan, without assigning any reason - HELD THAT:- The matter is remanded to the original authority who is the proper officer under the law for grant of Central Excise registration to reconsider the issue afresh and record reasons while disposing the Application for registration in any manner, after giving an opportunity of personal hearing to the Appellant/Assessee.
Appeal allowed by way of remand.
-
2016 (4) TMI 1410
Deduction u/s 35ABB - license fee paid by the Assessee on the basis of the amount fixed at the time of acquiring the licence - telecommunication service providers were required to pay a fixed percentage of revenues earned as the licence fee - HELD THAT:- Tribunal found that the controversy of identical nature on facts and in law was before the Bench of the Tribunal at New Delhi and in the case of telecommunication service providers themselves.
Tribunal has also noted in the Assessee's own case for the Assessment Year 2001-02 the identical issue was raised and which was decided in favour of the Assessee - Tribunal reproduced the finding of fact and held that since the matter was decided in favour of the service providers and against the Revenue in the case of very Assessee before it for the previous Assessment Year, there is no reason to deviate or differ from those views. It found that the controversy is entirely identical to the one dealt with earlier. The Tribunal did not interfere with the order of the First Appellate Authority and dismissed the Revenue's Appeal on 20th November, 2012.
We are not in agreement with Mr.Malhotra that the question framed at page 6 is a substantial question of law. It being identical and covered by the Tribunal's own order in the case of identical service provider, we do not think that a different view was possible. The Tribunal's view cannot be said to be perverse or vitiated by any error of law apparent on the face of the record. We find and as pointed out in Bharti Hexacom Ltd . and Commissioner of Income Tax Vs. Bharti Cellular Ltd [2013 (12) TMI 1115 - DELHI HIGH COURT] has dismissed the Revenue's appeal.
-
2016 (4) TMI 1409
Manufacture - production of PVC insulated winding wires amounts to manufacture or not - It was held by CESTAT that no manufacture is involved if the wire of higher cross-dimension is drawn into the wire of lesser cross-dimension - HELD THAT:- The civil appeal is dismissed.
-
2016 (4) TMI 1408
Approval of scheme of amalgamation - section 230 to 232 of Companies Act - HELD THAT:- In view of the approval accorded to the scheme by the shareholders and creditors (i.e. secured and unsecured) of the petitioners and, given the fact, that the RD and the OL, have not articulated any objections to the scheme, as indicated above, in my opinion, there appears to be no impediment in the grant of sanction to the scheme. Consequently, sanction is granted to the scheme in terms of Section 391 and 394 of the Act.
Application allowed.
-
2016 (4) TMI 1407
Simultaneous execution petitions - validity of filing two execution petitions for realizing or recovering the decretal amount due from two judgment debtors, which relates to same transaction - HELD THAT:- Under Order 21 Rule 11 CPC, a decree holder would be entitled to proceed simultaneously against the different judgment debtors in execution of his decree as already discussed herein above. There is nothing in the Code of Civil Procedure or in any other law which lays down positively that several applications for execution of a decree cannot be filed simultaneously. The rules of procedure are hand made of justice. Order 21 Rule 11 (2)(e) CPC mandates that the decree holder has to indicate in the execution petition as to “whether any, and (if any), what payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree” and not the amount for which the decree holder has filed any other execution petition which is pending. However, under Order 21 Rule 2(f) CPC, the decree holder has to state “whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and the results Thus, it would indicate that Order 21 Rule 11 CPC does not bar simultaneous executions.
However, in case of two execution petitions being filed namely, (1) for arrest of judgment debtor and other execution petition is filed to proceed against the property of same judgment debtor, then in such a situation, Executing Court may refuse execution against the person and property of said judgment debtor at the same time as indicated in Order 21 Rule 30 CPC.
A decree holder would be entitled to file two execution petitions for realizing or recovering the decretal amount due from two judgment debtors, when judgment and decree passed against them is joint and several.
Simultaneous execution petitions having been filed by decree holder for realization of amounts due from the Judgment debtors which decree is joint and several executing Court was not justified in dismissing the execution petitions - Petition allowed.
-
2016 (4) TMI 1406
Expenditure relatable to R & D grants - nature of expenditure - revenue or capital expenditure - contention of the assessee was that its expenditure relatable to the grant received was incurred for design and development of weaponary for aircraft, combat aircrafts, avionics for combat aircrafts, development of light utility helicopter and for developing a fifth generation fighter aircraft to replace the aging jaguar and MIG 29 - alternate pleading of the assessee that it had to have been allowed deduction under Section 35(1)(iv) - HELD THAT:- As admitted by the assessee that expenditure incurred out of the grants received from the government would result in acquisition by the assessee of a capital asset in the form of indigenous and self-reliant technology for the manufacture of LCH / LCA, which were required for the defence of the country. Conditions of the Grant required the assessee to utilise it for the R & D of the LCA and LCH and related technology. Thus the expenditure incurred by the assessee using such grant which were debited to its profit and loss account were such that it would result in acquisition of a capital asset in the nature of indigenous self-reliant technology for manufacture of combat aircrafts and helicopter. As noted by the lower authorities such expenditure would be a part of the capital workin- progress, and could not have been claimed by the assessee as revenue outgo. Before the AO, assessee itself has stated that once the LCA was developed and certified, it would be commercially produced and at that time revenue would be offered to tax. Thus there is an indirect admission by the assessee that expenditure incurred out of the grant resulted in acquisition of a capital asset. Once it is considered so, in our opinion, assessee could not claim such expenditure as revenue out go.
Eligibility for deduction u/s.35(1)(iv) - Assessee having claimed the expenditure as part of revenue outgo through its P & L account, when the AO found that such claim was not allowable considering it to be a capital out go, in our opinion, he ought have allowed a deduction as mandated u/s.35(1) of the Act. Section says assessee which satisfies the conditions set out therein shall be allowed and there is no condition therein which disentitles an assessee from getting this benefit for want of a specific claim. Nevertheless we find that CIT (A) has given a finding that assessee was not doing any scientific research, but only R & D. We are unable to appreciate this finding of the CIT (A). Development of avionics for modern LC air-craft and helicopter, radar systems for fighter aircrafts, requires considerable scientific research and cannot be considered as mere R & D expenditure.
As question as to what could be the amount of scientific research expenditure on which assessee is eligible for claim of deduction u/s.35(1) of the Act, require verification since it need not be equal to the grant amount received by the assessee. It could be either more or less. This aspect, in our opinion, requires a fresh look by the lower authorities. Thus, though assessee's claim that expenditure against government grant were wholly allowable as Revenue outgo is incorrect, it cannot be denied deduction available to it under section 35(1)(iv) of the Act, if it can show that other conditions set out therein are satisfied. Thus we uphold the order of the lower authorities, in so far as disallowance of expenditure is considered. However, vis-a-vis claim of the assessee it ought have been given deduction u/s.35(1)(iv) of the Act, to the extent it was eligible, we set aside the orders of the lower authorities and remit it back to the file of AO for consideration afresh in accordance with law. Ground 2 of the assessee is dismissed, whereas ground 3 is allowed for statistical purpose,
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- For the assessee to say that no expenditure was incurred even when it was holding substantial investments was prima facie incorrect. What we note is that AO had made disallowance under Rule 8D(2)(iii) of the IT Rules, only for indirect expenditure. Argument of the assessee that the investments were for strategic purpose has not been substantiated and even if true, it cannot be disputed that it had earned substantial dividend during the relevant year.
We are alive to the judgment of the Hon’ble Delhi High Court in the case of Maxopp Investments Ltd [2011 (11) TMI 267 - DELHI HIGH COURT] where it was held that AO necessarily had to express his dissatisfaction on the inadequacy of the expenditure disallowed suo motu, by the assessee before invoking Section 14A of the Act. However this judgment cannot be stretched to include in its fold cases where no expenditure was claimed to have been incurred despite substantial holdings in investment, despite substantial change in investments and despite earning of substantial dividend income. We are therefore of the opinion that disallowance of 0.5% the average investments made under Rule 8D(2)(iii) of the Rules, was justified.
-
2016 (4) TMI 1405
Disallowance made u/s. 14A r.w.r Rule 8D - assessee argued that investment in shares had been made out of non interest bearing funds - HELD THAT:- We find that the assessee had share capital of ₹ 60,48,00,000/-and reserves & surplus stood at ₹ 1,74,67,67,552/-,whereas the investment was at ₹ 2,06,66,62,442/-,that out of the said investment the assessee had made investment in properties also,that the fresh investment in the shares was not very huge,that it had made strategic invesment,that there was no evidence to prove that borrowed funds were utilised for making investment in shares.
In our opinion,the settled position of law stipulate that the if the assessee has sufficient own funds then it should be presumed that investment was not made from borrowed funds. Considering the availability of funds we are of the opinion that the AO was not justified in disallowing interest expenditure.Similarly, disallowance as per the provisions of section 14A r.w.rule 8D of the Rules cannot be made in a mechanical manner.Thirdly,the disallowance cannot be more than the expenditure claimed by an assessee. See K. RAHEJA CORPN. (P) LTD. [2011 (8) TMI 148 - BOMBAY HIGH COURT] - Decided in favour of assessee.
-
2016 (4) TMI 1404
Legality of power of attorney, which was admittedly executed in Bangladesh, in India - authority to file an application under Section 47 of IBC - whether this Court can recognize a notarial act, which took place before a notary public at Bangladesh? - HELD THAT:- The Indian Evidence Act was enacted in 1872 and thereafter Notary Act was enacted. Therefore, provision of Section 85 of the Indian Evidence Act cannot be mechanically applied here, without considering Section 14 of the Notary Act, 1952 - Section 85 of the Indian Evidence Act cannot be read in isolation and it is to be considered along with Section 14 of the Notary Act 1952.
In the case in hand, the opposite party has produced the notarial certificate before the Court below but that is not authenticated by Indian Embassy. Learned Counsel appearing on behalf of the opposite party could not furnish any notification published by the Central Government in the official gazette that the notarial acts lawfully done by the notaries of Bangladesh shall be recognized within India for all purposes or as the case may be for such limited purposes as may be specified in the notification. Therefore, learned Court below's order is demonstrably unsustainable.
The instant revisional application is a prematured one. Accordingly, it is dismissed at this stage.
-
2016 (4) TMI 1403
Income chargeable to tax in India - Royalty Income - Whether fees received can be treated as royalty as defined under section 9(l)(vi) of the Income-tax Act, 1961, and under Article 12 of the applicable DTAA? - HELD THAT:- As conceded the questions which arise for consideration are already answered by the decision of this Court in the case of Commissioner of Income Tax Vs. Synopsis International Old Ltd.[2013 (2) TMI 448 - KARNATAKA HIGH COURT]. However, she submitted that the matter is carried before the Apex Court.
When the issues are already covered by the above referred decision of this Court, we do not find that any substantial question of law would arise for consideration.
-
2016 (4) TMI 1402
Issuance of Summons u/s 108 of Customs Act - requirement of petitioner to present himself in person before the Senior Intelligence Officer, DRI , DZU, New Delhi - HELD THAT:- The summons in original has been placed on record by the petitioner. A perusal thereof reveals that the summons under Section 108 of the said Act is completely bereft of all necessary and material particulars. It does not even specify the inquiry/investigation in relation to which the petitioner has been summoned. It is also evident that the impugned summons is completely silent in respect of any case being registered against the petitioner as well as absent of any information as to why he has been called.
The impugned summons is ex facie unsustainable. Consequently, the summons dated 19.03.2016 is set aside and quashed - Petition disposed off.
-
2016 (4) TMI 1401
Benefit u/s 10(23BBA) - Benefit not available to the assessee as the Bade Mathureshji Temple Board created u/s 92 of the CPC, 1908 was not registered - HELD THAT:- In our opinion section 10(23BBA) of the Act applies to a body or authority (whether or not a body corporate or corporation sole) established, constituted or appointed by or under any Central, State or Provincial Act which provides for administration of any public, religious or charitable trusts or endowments etc.
In the instant case, the Board was constituted by the District Judge under s. 92 CPC for administration of a public religious charitable trust. In view of above, we find that the Board was established under the Central Act, that too, for administration of a public religious charitable trust.
In view of above u/s 10(23BBA) of the Act of 1961 has rightly been applied by the Tribunal. Sec. 11 and 12 apply where a body or authority is not created in the manner given u/s 10(23BBA) of the Act but the case in hand is not covered by ss. 11 and 12 of the Act of 1961.
We find that the learned Tribunal has rightly decided the issue and the present appeal against the said order does not involve any substantial question of law so as to entertain it.
-
2016 (4) TMI 1400
Denial of deduction u/s 11, 12 and 13 - applicability of mutuality clause to Bank interest income on deposits made out of the funds contributed by members of society - HELD THAT:- As decided in own case [2012 (2) TMI 700 - ITAT DELHI] principle of mutuality applies to interest income derived by the assessee from deposits made out of contributions made by members of the society. Therefore, ground raised by the Revenue in relation to applicability of principle of mutuality to interest income is dismissed.
When the assessee is registered charitable trust its income cannot be computed on the principal of mutuality but is required to be computed u/s 11, 12 and 13 - Decided in favour of assessee.
-
2016 (4) TMI 1399
Levy of VAT - purchases is required to be excluded for computing “taxable turnover of purchases” - purchases on which value added tax is neither claimed nor granted are required to be excluded for computing “taxable turnover of purchases” - section 11(3)(b) of Gujarat VAT Act - HELD THAT:- Section 11(3)(b) of the GVAT Act provides that notwithstanding anything contained in the section, the amount of tax credit in respect of a dealer shall be reduced by the amount of tax calculated at the rate of four per cent on the taxable turnover of purchases within the State - (i) of taxable goods consigned or dispatched for branch transfer or to his agent outside the State, or (ii) of taxable goods which are used as raw materials in the manufacture, or in the packing of goods which are dispatched outside the State in the course of branch transfer or consignment or to his agent outside the State, (iii) of fuels used for the manufacture of goods. Thus, the amount of tax credit in respect of a dealer is required to be reduced by the amount of tax calculated at the rate of four per cent on taxable turnover of purchases within the State. The controversy involved in the present case is as regards the taxable turnover of the purchases made by the petitioner.
It would, therefore, be germane to refer to the definition of “taxable turnover” as defined under section 2(30) of the GVAT Act which provides that “taxable turnover” means the turnover of all sales or purchases of a dealer during the prescribed period in any year after deducting therefrom, the matters enumerated thereunder. Sub-section (32) of section 2 defines “taxable turnover of purchases” to mean the aggregate of the amounts of purchase price paid or payable by a dealer in respect of any purchase of goods made by him during a given period after deducting the amount of purchase price, if any, refunded to the dealer by the seller in respect of any goods purchased from the seller and returned to him within the prescribed period. Thus, turnover of purchases is the aggregate of the amount of purchase price paid or payable by a dealer in respect of purchases made by him.
When the word “includes” is used in a definition as in the case of section 2(18) of the GVAT Act, it is clear that the legislature does not intend to restrict the definition; it makes the definition enumerative and not exhaustive, that is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within the term certain matters which in its ordinary meaning it may or may not comprise. Inclusion of the words “duties levied or leviable under the Central Excise Tariff Act, 1985 or the Customs Act, 1962” is an inherent indicator of the legislative intent to include only those duties/taxes within the purview of the expression “purchase price”. Therefore, the intention of the legislature to exclude value added tax from the ambit of purchase price is clear, as otherwise, the same would also have found place in the categories - the view adopted by the Tribunal is in consonance with the construction of section 2(18). Since the interpretation of “purchase price” as defined under section 2(18) of the Act is the foundation for interpretation of the expressions “turnover of purchases” and “taxable turnover”, once it is held that the purchase price does not include the value added tax component, it follows that calculation of input tax credit under section 11(3)(b) of the GVAT Act is also required to be made by excluding the value added tax component from the total turnover of the dealer.
It is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to any question of law, much less, a substantial question of law - Appeal dismissed.
........
|
9911796707
