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Showing 81 to 100 of 1287 Records
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2014 (11) TMI 1212
Disallowance on account of belated payment of contributions towards Employees Provident Fund and ESI - HELD THAT:- In the case of CIT V/s. Ghatge Patil Transport Ltd. [2014 (10) TMI 402 - BOMBAY HIGH COURT] after taking into consideration the provisions of S.2(24)(x) read with S.36(1)(va) and S.43B, held that even employees contribution to Provident Fund etc. is allowable as deduction, if the same is deposited before the due date of filing of the return of income for the relevant year. Respectfully following the said decision of the Hon'ble Bombay High Court, we uphold the impugned order of the learned CIT(A) allowing the deduction claimed by the assessee on account of payment of employees’ contribution towards Provident Fund and ESI made by the assessee, after the due dates prescribed in the respective statutes, but before the due date of filing of the return of income for the year under consideration and dismiss the appeal of the Revenue.
TDS u/s 194J - Disallowace u/s 40(a)(ia) - non-deduction of tds on payment made on account of audit fee - HELD THAT:- Restore this issue to the file of the Assessing Officer for the limited purpose of verifying as to whether the assessee company is treated as an assessee in default under S.201(1) of the Act for its failure to deduct tax at source from the payment made on account of audit fee. If it is found on such verification that no order under S.201(1) is passed to this effect, the Assessing Officer is directed to delete the disallowance made under S.40(a)(ia) on account of audit fee. Grounds No.2 and 3 of the assessee’s appeal are accordingly treated as allowed for statistical purposes.
Disallowance on account of depreciation on Xerox copiers, LCD TV, colour copier and LCD screens - assessee has filed a written note explaining the usage or application of the relevant items/assets in support of its case that they form an integral part of the computer/computer systems used by the assessee - HELD THAT:- Referring to note filed by the assessee explaining the usage or application of the relevant items/assets as well as the orders of the authorities below, we find that the submissions explaining the usage or application of the concerned items/assets are being made by the assessee for the first time before the Tribunal, and no such explanation was offered either before the Assessing Officer or before the learned CIT(A). We therefore, consider it fair and proper and in the interests of justice to restore this issue to the file of the Assessing Officer for deciding the same afresh, after taking into consideration the explanation offered by the assessee regarding the usage or application of the concerned items/assets in the light of the judicial pronouncements discussed above. Grounds No.4 to 7 of the assessee’s appeal are accordingly treated as allowed for statistical purposes.
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2014 (11) TMI 1211
TP Adjustment - rejecting comparable companies on the ground of exceptionally large scale of operations - HELD THAT:- Tribunal dealt at length with each of such companies and found on the basis of earlier Tribunal decisions that the companies were not comparable to the assessee. These findings purely turned on fact and no question of law, much less a substantial question of law, arises for consideration.
Deleting Ishir Infotech as comparables ignoring the fact that the said company satisfies the employee cost filter - HELD THAT:- Nothing is placed on record to show that the earlier Tribunal decisions which were relied upon were set at naught. We therefore find no reason to interfere in so far as this issue is concerned.
Tribunal (ITAT) deleting the comparable on functional difference ground ignoring the information obtained u/s 133(6) and also not giving opportunity to Transfer Pricing Officer (TPO) to examine the new facts, brought for the first time before the Hon’ble Tribunal (ITAT) - HELD THAT:- Tribunal relied on the judgment of the High Court in Gemplus Jewellery [2010 (6) TMI 65 - BOMBAY HIGH COURT] and the Special Bench decision of the Income Tax Appellate Tribunal at Chennai in ITO vs. Sac Soft Limited [2009 (3) TMI 243 - ITAT MADRAS-D]
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2014 (11) TMI 1210
Penalty u/s 271D - contravention of the provisions of Section 269 SS - HELD THAT:- The assessee is an educational institution. They had paid the entire amount to KHB to revive the cancelled allotment and they were in tremendous pressure to pay stamp duty and registration charges and in those circumstances they have raised cash loan, deposited the amount in the bank, obtained the demand draft and handed over the same to KHB immediately and they have also arranged for registration of sale deed in the name of the allottee.
We are satisfied even the amount of ₹ 8.08. lakhs raised by the assessee is for the purpose of stamp duty and registration and as there was urgency, they could not have obtained said amount by way of cheque or demand draft or as otherwise the investment they have made in getting lapsed allotment revived would have been in jeopardize. The authorities were not justified in ignoring these admitted facts on record and merely because there is a gap of more than 15 days between the date of revival and date of registration, their understanding that the assessee would have arranged funds by way of Cheques/demand drafts is unacceptable. As on 14th allotment was revived, 15th they were informed, 16th was a Saturday, 17th was a Sunday and 18th they had to make the payment, they have made the payment. Therefore the substantial questions of law are answered in favour of the assessee and against the revenue
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2014 (11) TMI 1208
Penalty u/s 271(1)(b) - no compliance was made by the assessee in response to the notice issued u/s 142(1) - HELD THAT:- AO sought a reply to detailed questions No -34 giving only six days time to the assessee. The record does not show as to when notice issued on 19.11.2012 was actually served upon the assessee as the relevant information is found to be missing in the penalty order. A perusal of the assessment orders further shows that it is not a case of non-cooperation by the assessee with the AO during the assessment proceedings as the assessments are concluded u/s 143(3).
In these circumstances being guided by the precedent laid down by the Co-ordinate Bench in Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust vs ADIT [2007 (8) TMI 386 - ITAT DELHI-G] wherein it was held that in the case where assessments were made u/s 143(3) and not u/s 144, it means that subsequent compliance in assessment proceedings was considered as good compliance and the defaults committed earlier were ignored by the AO which view has been followed by Co-ordinate Benches of the ITAT in the orders relied upon by the assessee and brought to our notice. Considering the peculiar facts and circumstances and being satisfied by the explanation offered impugned orders deserved to be set aside and the penalty orders deserve to be quashed. The said order was pronounced in the open Court at the time of hearing in the presence of the parties. - Decided in favour of assessee.
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2014 (11) TMI 1207
The Allahabad High Court, under Justice Manoj Kumar Gupta, issued an interim order in a case, with the next listing scheduled after three weeks. The citation for the judgment is 2014 (11) TMI 1207 - ALLAHABAD HIGH COURT. Counsel for the applicant was P. Agarwal, and counsel for the opposite party was C.S.C.
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2014 (11) TMI 1206
Suit for cancellation of sale deed - fraud and misrepresentation - agricultural property - HELD THAT:- Learned counsel for the revisionist could not point out any illegality, material irregularity or jurisdictional error in the impugned order so as to warrant interference of this Court.
Revision dismissed.
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2014 (11) TMI 1205
Attack on appellant's house - right of the Appellant herein to lead an independent and peaceful life - HELD THAT:- The law on nuisance is well settled. Nuisance in any form as recognized in the law of Torts-whether private, public or common which results in affecting anyone's personal or/and property rights gives him a cause of action/right to seek remedial measures in Court of law against those who caused such nuisance to him and further gives him a right to obtain necessary reliefs both in the form of preventing committing of nuisance and appropriate damages/compensation for the loss, if sustained by him, due to causing of such nuisance.
The Constitution, inter alia, casts a duty on the State and their authorities to ensure that every citizen's cherished rights guaranteed to him under the Constitution are respected and preserved, and he/she is allowed to enjoy them in letter and spirit subject to reasonable restrictions put on them, as dreamt by the framers of the Constitution. Intervention of the Court is called for at the instance of citizen when these rights are violated by fellow citizens or by any State agency.
Appeal allowed in part.
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2014 (11) TMI 1204
Addition u/s.14A r.w. Rule 8D - HELD THAT:- Since there is a categorical finding by the AO that the assessee company has used funds from the cash credit account for investment in shares, the dividend of which has been shown as exempt, therefore, we find no infirmity in the order of the CIT(A) upholding the action of the AO in disallowing interest u/s.14A r.w. Rule 8D. Accordingly, this ground by the assessee is dismissed.
Disallowance of Cost of Diesel Generator Set - HELD THAT:- We find force in the submission of the assessee that the cost of duration of the procurement and commissioning of a new generator set which is about 10 months would have affected the production schedule of the assessee company. The submission of the assessee before the lower authorities that both the companies are managed by separate Board of Directors has not been disputed.
Since undisputedly both the companies which are listed public companies and are falling in the 30% tax bracket, therefore, the apprehension that such transfer was to reduce the tax liability is also not correct. Further, the AO has also not ascertained the market value of a 10 to 15 years old generator set of similar capacity purchased by the assessee from Kirloskar Oil Engines Ltd. CIT(A) was not justified in upholding the action of the AO in invoking Explanation 3 to section 43(1). We accordingly set-aside the order of the CIT(A) on this issue and direct the AO to allow the depreciation as claimed by the assessee.
Disallowance of commission paid to Non-Executive Director - as per DR since the assessee has not substantiated with evidence the services rendered by the non-executive directors, therefore, the CIT(A) was not justified in deleting the addition - HELD THAT:- The audited accounts of the assessee company show the meetings attended by the non-executive directors in the Board meeting as well as meetings of the Audit committee. Further, similar payments made in the past have not been disallowed. The payment of commission has also been approved by the Board of Directors and within the permissible limit of the Companies Act. No infirmity in the order of the Ld.CIT(A) deleting the disallowance being commission paid to non-executive directors. Accordingly, the same is upheld and the grounds raised by the Revenue are dismissed.
Set off unabsorbed depreciation pertaining to A.Y. 1999-2000 against the income of the current year - HELD THAT:- As decided in GENERAL MOTORS INDIA PVT. LTD VERSUS DEPUTY COMMISSIONER OF INCOME-TAX [2012 (8) TMI 714 - GUJARAT HIGH COURT] there is current depreciation for such succeeding year the unabsorbed depreciation is added to the current depreciation for such succeeding year and is deemed as part thereof. If, however, there is no current depreciation for such succeeding year, the unabsorbed depreciation becomes the depreciation allowance for such succeeding year. We are of the considered opinion that any unabsorbed depreciation available to an assessee on 1st day of April 2002 (A.Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001. And once the Circular No.14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation from A.Y.1997-98 upto the A.Y.2001-02 got carried forward to the assessment year 2002-03 and became part thereof, it came to be governed by the provisions of section 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever. - Decided against revenue
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2014 (11) TMI 1203
Reopening of assessment u/s 147 - HELD THAT:- Assessee has requested in its written submissions before the CIT(A) for copy of reasons recorded by the AO while reopening assessment under section 147 of the Act, and the same were not given to the assessee. In these facts and in the light of the decision of the Hon’ble Gujarat High Court SAHKARI KHAND UDYOG MANDAL LTD. VERSUS ASSTT. COMMISSIONER OF INCOME TAX [2014 (6) TMI 149 - GUJARAT HIGH COURT] relied upon by the assessee, we are of the view that the copy of the reasons recorded while reopening the assessment u/s 147 has to be issued to the assessee, and accordingly, the issue in the grounds of the appeal of the assessee is restored to the file of the AO with direction to frame de novo assessment in accordance with law, after issuing the copy of the reasons recorded while reopening the assessment under section 147, and after allowing the assessee reasonable opportunity of hearing. - Appeal of the assessee is allowed for statistical purpose.
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2014 (11) TMI 1202
Nature of expenditure - Software Expenses allowability - capital or revenue expenses - admission of additional evidence - HELD THAT:- Following this decision of the co-ordinate bench of this Tribunal in the assessee's own case for Assessment Year 2007-08 [2013 (9) TMI 189 - ITAT BANGALORE] , we also deem it proper to restore this issue back to the file of the Assessing Officer to examine and reappraise the additional evidence filed by the assessee in respect of expenditure incurred on purchase of software of ₹ 10 lakhs and above and decide the issue in accordance with the decisions of the Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Motors P. Ltd. [2013 (2) TMI 108 - KARNATAKA HIGH COURT] and Amway India Enterprises [2011 (11) TMI 4 - DELHI HIGH COURT]
Penalty u/s.271(1)( c) - HELD THAT:- This ground of appeal is premature as no order levying penalty u/s.271(1)(c) of the Act has been passed by the Assessing Officer. In this view of the matter, as no cause of action / grievance arises to the assessee by mere issue of the said notice, this ground is not maintainable and is accordingly dismissed.
Deduction claimed u/s.80 JJA - AO disallowed the assessee's claim for deduction under section 80 JJA of the Act as the assessee could not substantiate the claim, particularly with respect to the definition of “workmen” as it appeared in the Industrial Disputes Act, 1947 - HELD THAT:- Following the above referred decision of the co-ordinate bench of this Tribunal in the assessee’s own case for A.Y. 2007-08 (supra), we are of the considered view that it would be just and fair to restore this issue, of deduction u/s. 80 JJA of the Act, back to the file of the A.O. with the direction to re-examine and re-adjudicate this issue by passing a reasoned and speaking order; only after affording the assessee adequate opportunity of being heard and to file required details. The assessee is also hereby directed to co-operate in the matter by producing / filing the details / explanations called for by the A.O. It is ordered accordingly.
Deduction u/s.10A - excluding the expenditure on telecommunication charges and provision of technical services abroad in foreign currency both from export turnover as well as total turnover - HELD THAT:- Issue is covered in favour of the assessee by the decision of the Hon'ble High Court of Karnataka in the case of Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] as held that for the purposes of computing deduction under section 10A of the Act, when the Export Turnover is to be arrived at by excluding expenses incurred on telecommunication charges, etc. incurred in foreign currency, the same expenses should be excluded from total turnover also. Decision cited supra is applicable to the case on hand and accordingly direct the Assessing Officer to recompute the deduction under section 10A of the Act for Assessment Year 2008-09 by accordingly excluding the expenditure on telecommunication charges and provision of technical services abroad in foreign currency both from export turnover as well as total turnover.
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2014 (11) TMI 1201
Oppression and mismanagement - illegal allotment of shares - maintainability of petition - time limitation - lack of qualification in terms of the provisions contained in Section 399 of the Act - HELD THAT:- Respondent Nos. 1 to 8 have failed to discharge their onus to prove the fact that the consideration was paid to the Petitioners for transfer of the shares-in-question, as contended by them. It is further an established law that transfer of shares without consideration is unlawful, ultra vires and void. In addition to the above, it is pertinent to mention here that, the Petitioners have filed a copy of Register of Members of the company as Annexure 'A-6' to the Petition, which clearly shows that the Petitioners' name still exist in the Register of Members of the Company. The Annual Returns filed by the Respondents with the ROC further confirm the said fact. Lastly, non-compliance of Section 108(1) of the Act clearly establishes that the Petitioners never transferred or intended to transfer the shares held by them in the Company - the Petitioners are eligible to file the present petition under Section 397/398 read with Section 402 of the Act in terms of the provisions contained in Section 399 of the Act.
Whether the Petition is barred by law of limitation? - HELD THAT:- According to the Ld. Counsel, to the Respondents did not file the Annual Statement with the ROC timely and as soon as the Petitioners came to know about the wrong doings deliberately committed by the Respondents depriving the Petitioners' right as the shareholders, the Petitioners immediately, without any delay, approached the Court for redressal of their grievances and hence, the questions of in-ordinate delay and laches on their part, do not arise as contended by the Respondents.
It is established that the Respondents actions are harsh, unfair and prejudicial towards the Petitioners. They lack in probity. There are series of acts of oppression as narrated above, the effect of which is still continuing on the rights of the Petitioners being shareholders of the Company. It is an established law that once the CLB gives a finding that the acts of oppression have been established, winding up of the Company on just and equitable grounds becomes automatic and the reliefs sought under Section 402 of the Act could be granted - In the present petition, in view of the proved arts of oppression and mismanagement in the conduct of the affairs of the Company, though it is a fit case for winding up of the Company, the winding up order would clearly prejudice the interest of the Petitioners and the other shareholders.
It is the right of the shareholders to receive notices of General Body Meetings and if a Company deliberately does not sent notices the shareholders have right to complain of oppression and mismanagement. In this case, the complaint of non receipt of notices by the Petitioners, being the shareholder-members of the Company, is a valid complaint, and therefore the Meeting held without notices to the Petitioners has to be declared as invalid, as also the Resolutions passed thereat. In my opinion, the Petitioners are right in contending that the allotment of additional shares was made only with an oblique motive of ensuring the entire control over the affairs of the Company to the exclusion of the Petitioners.
The main allegations of the Petitioners are found to have been established that the EOGM held on 30/5/2005 is invalid on account of non-receipt of the Notices thereof by the Petitioners and consequently the decision to increase the authorized share capital is also invalid. Once the increase in the authorized share capital is invalid, then the consequent allotment of the additional shares is also invalid. It has also been established that the allotment of additional shares was only with a view to push the Petitioners from minority to super-minority and thereafter further transfer of shares to their own persons by the Respondent No. 2 was with a purpose to get majority of members to enable him to make decisions according to his choices, I am, therefore, of the view that the EOGM held on 30/5/2005 and the Resolutions passed thereat deserve to be declared as null and void.
The Petitioners have successfully established their allegations regarding the acts of oppression and mismanagement.
Application disposed off.
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2014 (11) TMI 1200
Treatment of income from manufacturing services as income from other sources - Addition on the ground that there was no involvement of the Appellant in the manufacturing activity - Treatment of lease rental as income from other sources - allowability of the claim of expenditure against the said receipts - HELD THAT:- On perusal of the said orders of the Tribunal [2013 (7) TMI 1130 - ITAT MUMBAI] and [2014 (7) TMI 1300 - ITAT MUMBAI] we find the ITAT adjudicated the identical issues and remanded the grounds to the file of the AO for a fresh adjudication. Respectfully following the orders of the Tribunal (supra) as well as following the principle of consistency, we remand the grounds raised in the present appeal also with identical directions given by the Tribunal in the AYs 2006-2007 and 2007-2008 to the file of the AO for adjudicating them afresh. Accordingly ground raised by the assessee are allowed for statistical purposes.
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2014 (11) TMI 1199
Auction - mortgaged property - sale of the mortgaged property owned by private individuals - Whether the sale of the mortgaged property owned by private individuals can be brought before the learned Company Judge or in Writ Court for scrutiny? - HELD THAT:- Any transfer of assets of the company is effected in violation of Sections 531 & 531A is void altogether incurably, but it is void under Section 537 if it is done without leave of the Company Court - Here, admittedly, no leave of the Company Court was obtained. In this context, we examine the contentions of the learned Senior Counsel Mr. S. Ravi that no leave is required, as jurisdiction of Company Court is ousted in view of the provisions of Sections 13, 37 & 35 of the SARFAESI Act.
Whether the Company Court can decide the question raised with regard to the invalidity of sale in view of provisions of the SARFAESI Act read with Recovery of Debts due to Banks and Financial Institutions Act, 1993? - HELD THAT:- It is true that Section 34 mentioned the words Civil Court (not apparently company court), but after winding up order is passed by virtue of the provisions of Section 446 (2) of the Companies Act, the Company Court exercises jurisdiction of the civil court. So, essentially, the company court becomes civil court. What is important is not the nomenclature of the Court, but power and functions exercised by that Court. In view of discussions above, accepting argument of Mr. S. Ravi and rejecting contention of the learned counsel for the respondent and Official Liquidator, we hold that the company court has no jurisdiction to deal with the issues arising out of action of secured creditor under Section 13 of SARFAESI Act.
Whether the provisions of Sections 531, 531A & 537 of the Companies Act, 1956 have any manner of application with regard to sale of securities conducted under the SARFAESI Act? - HELD THAT:- It will appear from Section 13(1), as quoted above, it clearly provides that without intervention of the Court or Tribunal action can be taken for sale of securities, whereas the provisions of Section 537 of Companies Act requires leave of Company Court - this is apparent inconsistency in two competing provisions in two different Acts on the same subject - no leave is required under Section 537 of the Companies Act, moreover jurisdiction of the Company Court is also ousted.
Whether the provisions of Section 531 & 531A of the Companies Act will be applied or not in this case? - HELD THAT:- It is clear from sub-section (6) the moment action taken under sub-section (4) by the secured creditor or any manager on his behalf of the secured creditor for transfer all rights shall vest in the transferee in relation to the secured assets. In other words, if action taken under Section 13(4) is found to be lawful and valid in accordance with SARFAESI Act, no other legal provision can invalidate it. Whereas Sections 531 & 531A provide otherwise if any transfer including sale is effected in violation thereof the same is invalid and void. Thus it appears that there has been glaring inconsistency naturally, we are constrained to hold that the provisions of Sections 531 & 531A have no manner of application and the same do not apply in case of valid sale undertaken under the SARFAESI Act and the Rules framed thereunder.
Whether the sale can be held invalid because of the alleged non-compliance of the mandatory provisions of the Rules framed under the SARFAESI Act? - HELD THAT:- All materials namely advertisement, conditions of sale and other things are not produced before us also. Therefore we do not like to decide this issue conclusively nor do we accept such decision of the learned Trial Judge in absence of such materials and also for the reasons stated hereunder.
Thus, granting relief to the auction purchaser as prayed for in the writ petition is not sustainable under the law - petition dismissed.
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2014 (11) TMI 1198
Urban land chargeable to wealth tax - Tribunal held that agricultural land within the municipality are subjectable to Wealth Tax being a part of the assets as defined under Section 2(ea) of the Wealth Tax Act - Whether "urban land" would not include land, on which construction of a building is not permissible under any law for the time being in force in the area ? - HELD THAT:- The land of the assessee is agricultural land though situated in the municipal limits of M.C. Shimla. No construction is permissible in the forest land without the permission of the Municipal Corporation Building Bye-laws and Town and Country Planning Act.
The intention of the legislature appears to be that the land which falls within this exception would have to be excluded from the ambit and scope of the expression "urban land".
Thus, the land owned and possessed by the assessee would not fall within ambit of the Section 2(ea)(b) and the learned Authorities were also not right in coming to the conclusion that the construction was possible on the lands covered by the trees. The land on which the trees are standing cannot be treated at par for the purpose of market value with the land on which the construction is possible. The land on which the trees are standing, construction is not possible without seeking permission from the competent authorities and thus the market value of this land would be lower. The substantial questions of law are answered accordingly.
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2014 (11) TMI 1197
Disallowance u/s 40(a)(ia) for non deduction of TDS - Assessee paid interest on the deposits - as per assessee once the recipient entities are entitled for exemption u/s 10(23C) the assessee is not liable to deduct tax - HELD THAT:- The contention of the assessee that provisions of section 40(a)(ia) is applicable only in respect of the amounts remains to be paid as on the last day of the financial year is not accceptable. This Tribunal had an occasion to examine an identical set of facts in Shri Thomas George Muthoot & Ors [2015 (9) TMI 323 - ITAT COCHIN] Section 40(a)(ia) would cover not only to the amounts which are payable as on 31st March of a particular year but also which are payable at any time during the year. Of course, as long as the other requirement of the said provision exist.
Judgments of the Calcutta High Court in Crescent Export Syndicate (supra) and the Gujarat High Court in Sikandarkhan N Tunvar (supra) are squarely applicable to the facts of the case. We do not see any infirmity in the orders of the lower authorities. Accordingly, the orders of the lower authorities are confirmed. - Decided against assessee.
Payment was paid to the fund which was approved u/s 10(23C)(iv) - HELD THAT:- The recipient entities are required to file the returns of income even though they are approved u/s 10(23C) by the concerned Chief Commissioner wherever the income exceeds the taxable limit without giving effect to provisions of section 10(23C) of the Act. Therefore, for computation of total income, the recipient entity may exclude the income which is applied for charitable purpose as per the object of the fund / institution and the conditions imposed by the Chief Commissioner. Hence, it is a matter factually to be verified in each and every case and there cannot be a total exemption.
In the case before us, only in respect of one recipient, viz. Kerala Building & Other Constructions Workers Welfare Board the assessee has filed copy of the approval received from the Chief Commissioner. In respect of other recipient funds / board the copies of the approval are not filed. Therefore, it needs to be verified. Accordingly, the orders of lower authorities are set aside only for the limited purpose of examining whether the recipient concerns / boards are approved u/s 10(23C)(iv) of the Act by the Chief Commissioner / DIT. Thereafter, the assessing officer shall find out whether the interest is taxable in the hands of the recipient funds / board or not and then decide the issue in accordance with law after giving reasonable opportunity of hearing to the assessee.
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2014 (11) TMI 1196
Penalty u/s 271(1)(c) - short term capital gains earned by the assessee on the sale of land was not disclosed in the original return of income but was declared by the assessee in the revised return of income - HELD THAT:- Assessment case of the assessee is different from the penalty imposed on account of concealment of income or filing inaccurate particulars of income and that certain disallowance/addition could legally be made in the assessment proceeding on the preponderance of probabilities, but no penalty could be imposed u/s 27l(1)(c) on the preponderance of probabilities and Revenue has to prove that the claim by the assessee was not genuine or was inflated to reduce its tax liability.
Before us, no material has been brought on record by the Revenue to demonstrate that the explanations and submissions made by the assessee were false. Before us, Revenue has also not brought on record any binding contrary decision in its support. We are of the view that in the present case no penalty u/s 271(1)(c) is leviable and therefore we direct its deletion. Thus this ground of Assessee is allowed and in the result the appeal of the Assessee is allowed.
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2014 (11) TMI 1195
Addition u/s 68 - benefit of peak credit automatically granted to the assessee - HELD THAT:- This court in the case of Commissioner of Income Tax Vs. Tyaryamal Balchand [1986 (4) TMI 14 - RAJASTHAN HIGH COURT] after relying on several judgments, also upheld the finding about peak credit theory. This Court in CIT Vs. Ishwardas Mutha [2002 (4) TMI 9 - RAJASTHAN HIGH COURT] also accepted the contention to take into account, the peak credit. When any amount is paid, later withdrawn from the books, would be available for recycling and rotation, unless otherwise established as invested elsewhere by the Revenue.
We hold the assessee was entitled to the benefit of peak credit which ought to have been allowed instead of making separate addition of entire amount. However, we may observe that the Assessing Officer has to come to a definite finding that the amount withdrawn was used by the assessee in any other expenditure or investment. If the Assessing Officer comes to a finding that withdrawn amount was used or spent by the assessee for any other investment or expenditure than the benefit of peak of such credit, in such circumstances, may not be available. - Decided in favour of assessee.
Addition u/s 69 - all unexplained expenditure has to be added to the income of the assessee for such financial year - HELD THAT:- As assessee does not press the question quoted above and thus this question is decided against the assessee.
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2014 (11) TMI 1194
Transfer pricing adjustment - difference between the ALP at which the equity shares had to be issued and the prices at which the equity shares have actually been issued - income chargeable to tax - Whether issue of shares at a premium by the Petitioner to its non-resident holding company gave rise to any income from an admitted International Transaction? - HELD THAT:- The issue arising in the present Petition stands concluded in favour of the Petitioner by virtue of Vodafone IV. [2014 (10) TMI 278 - BOMBAY HIGH COURT] stating neither the capital receipts received on issue of equity shares to its holding company, a non-resident entity, nor the short-fall between the so called fair market price of its equity shares and the issue price of the equity shares can be considered as income within the meaning of the expression as defined under the Act.
We set aside the order of TPO to the extent it seeks to bring to tax the shortfall in the consideration received on issue of shares when compared to the ALP at which the shares ought to have been issued and the consequent deemed interest on the alleged shortfall, is quashed and set aside. As a consequence, Draft Assessment Order is also set aside to the extent the order of TPO is set aside. - Decided in favour of assessee.
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2014 (11) TMI 1193
Rejection of books of accounts - Held that:- Tribunal in assessment year 2008-09, being the year of search, did not agree with the view entertained by AO and accordingly deleted the income estimated by rejecting the books of account. A.R submitted that the additions made in all the three cases under consideration in AY 2008-09 has been deleted by the Tribunal on identical reasoning. The year under consideration is the year succeeding the year of search. AO has not brought any other material on record except placing reliance on the assessment orders passed in AY 2008-09, which has since been reversed by the Tribunal. AO was not justified in rejecting the books of account and estimating the income. Accordingly, we confirm the action of the CIT(A) in all the three cases.
Disallowance u/s 40(a)(ii) - assessee submitted that the assessee have already made disallowance u/s 40(a)(ii) in their respective returned incomes and hence no further disallowance is called for - Held that:- We do not find any merit in the ground raised by the revenue in this regard. However, if the AO finds that any of the assessee did not make the said disallowance in the returned income, the AO is free to make the said disallowance after affording the opportunity of being heard to the Assessee. - Appeals filed by the revenue are dismissed.
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2014 (11) TMI 1192
Entitlement to claim a deduction under Section 36(1)(vii) in respect of bad debts written off - Held that:- Assessing Authority has not disputed the fact that the assessee’s claim for bad debt under Section 36(1)(vii) does not represent those debt in which deduction has been claimed under Section 36(1)(vii) out of the provision for bad and doubtful debts. The law laid down by the Apex Court in the case of the assessee itself (2014 (11) TMI 179 - KARNATAKA HIGH COURT) is attracted and the first substantial question of law is to be answered in favour of the assessee and against the revenue as rightly held by the Tribunal. - Decided in favour of the assessee and against the revenue.
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9911796707
