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2010 (4) TMI 1158 - ITAT MUMBAI
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... ... ..... ts for which due opportunity should be given to the assessee. We direct accordingly and restore the issue to the file of the Assessing Officer. The appeal of the assessee is thus allowed for statistical purposes. ITA No.7424/Mum/2005 - 7. This is an appeal of the assessee against the penalty of ₹ 1,83,810/- imposed on him under section 271(1)(c) of the Act. The order of penalty shows that it has been imposed consequent to the assessment of ₹ 6,12,711/- being the surplus arising on sale of shares as business income as against the assessee’s claim that it should be assessed as short term capital gains. Since this issue has been restored to the file of the Assessing Officer vide our order in ITA No.18/Mum/2004 (supra), the penalty has no legs to stand and the same is cancelled and the appeal is allowed. 8. To sum up, the ITA No.18/Mum/2004 is allowed for statistical purposes and ITA No.7424/Mum/2005 is allowed. Order pronounced on this 30th day of April, 2010.
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2010 (4) TMI 1157 - ITAT MUMBAI
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... ... ..... 1)(c) amounting to ₹ 2,03,196/- in respect of the Asst. year 2004-05. 10. Briefly stated, the facts of the case are that in view of the order passed by the AO u/s.144, he imposed penalty u/s. 271(1)(c) in respect of the additions made by him. The ld. CIT also upheld the penalty. 11. After considering the rival submissions and perusing the relevant material on record, it is found that the order passed by the AO in the quantum proceedings has been set aside for making a de novo assessment. Consequently, the penalty imposed pursuant to such assessment cannot stand. We, therefore, set aside the impugned order and restore the matter to the file of AO for considering the imposition of penalty pursuant to the fresh assessment. Our view is fortified by the judgment of the Hon’ble Supreme Court in Mohd. Mohatram Farooqui Vs. CIT (SC) 2010 -TIOL -23- SC- IT. 11. In the result, this appeal is allowed for statistical purposes. Order pronounced on the 30th day of April, 2010.
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2010 (4) TMI 1156 - ITAT AHMEDABAD
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... ... ..... se of the assessee. Therefore, the surrounding circumstances would prove that it was the assessee who has made investment in the property in the name of his wife from unaccounted source. Thus, the authorities below were justified in making the substantive assessment in the name of the assessee. Since protective assessment is already deleted in the name of the wife of assessee because she failed to explain the sources of the investment, therefore, the circumstances clearly pointed out unerringly towards the assessee that the assessee made investment in the property in the name of his wife from the unaccounted and unexplained sources. We accordingly confirm the findings of the authorities below and dismiss this ground of appeal of the assessee. 10. Grounds No.3 and 4 of the appeal are not pressed by the learned Counsel for the assessee. The same are accordingly dismissed. 11. As a result, the appeal of the assessee is dismissed Order pronounced in the open Court on 23-04-2010.
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2010 (4) TMI 1155 - ITAT KOLKATA
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... ... ..... ssessee is allowed.” Emphasis supplied While deciding the appeal in the above case, the Tribunal took into consideration the decisions of Tribunal in the cases of Acharya Sewa Niyas Uttaranchal vs. CIT (2006) 105 TTJ (Del) 761 and Modern Defence Shikshan Sansthan vs. C.I.T. (2007) 108 TTJ (Jd) 732 . Facts of the present case before us being identical to the case referred to above, we respectfully following the decision of the Tribunal in the case of Dharma Sansthapak Sangh (Nivas) vs. CIT (supra) direct the D.I.T. (Exemption) to grant registration to the assessee-trust u/s. 12AA of the Act and also grant exemption certificate u/s. 80G of the Act.” In view of the above and following the aforesaid order of the Tribunal, we direct the Ld. DIT(E) to grant registration to the assesee trust u/s. 12AA of the Act. Therefore, the appeal of the assessee is allowed. 8. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open Court on 9.4.2010
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2010 (4) TMI 1154 - ITAT DELHI
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... ... ..... brought to tax the principle amount as income of the assesee. If his logic is accepted then all the fees etc. over and above the expenditure ought to have been examined as income of the assessee....................". Finding the facts of the case identical the ldCIT(A) deleted the addition following the ratio from the ITAT order for A.Y. 2004-05. 5. Against this order the Revenue is in appeal before us. We have heard both the counsels and perused the records. It is clear that an identical issue has been decided by the Tribunal in the assesee's own case and the ldCIT(A) has followed the ratio emanating from it. It is not the case of the Revenue that Hon'ble High Court has reversed the said decision of the Tribunal. In this view of the matter adhering to the doctrine of stare decisis, we uphold the order of ldCIT(A) and decide the issue in favour of Revenue. 6. In the result Revenue's appeal is dismissed. Order pronounced in the Open Court on 5th April, 2010.
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2010 (4) TMI 1153 - CESTAT AHMEDABAD
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... ... ..... the receivers end finds that the duty was paid when it was not due, or the duty was paid in excess, action has to be taken at the end of supplier. In this case also, when the department requires the respondents to show that the person providing port service was duly authorized, in reality department is asking to verify the assessment made by the supplier of the services provided by him. This cannot be done. As regards transportation, the learned advocate has rightly pointed out that the conditions are required to be fulfilled when the benefit is claimed for transport of export goods from the place of removal to the ICD and not from ICD to port. I also find that the evidence provided by the respondents as regards service tax in respect of transport from ICD to Port is sufficient. Therefore, I do not find that, prima facie, the Revenue has made out a case to grant stay. 5. Accordingly, the stay application filed by the Revenue is rejected. (Dictated & Pronounced in Court)
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2010 (4) TMI 1152 - ITAT AHMEDABAD
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... ... ..... gainst the charging of interest under Section 234B of the Act. The same is admitted to be consequential. We therefore direct the AO to re-compute the interest after final determination of income. 7. Ground No.1 of the assessee is similar to Ground No.1 for the assessment year 2004-2005. For the detailed discussion in para-4 & 5, we allow Ground no.1 of the assessee's appeal. 8. Ground No.2 reads as under "On the facts and circumstances of the case, the ld. CIT(A) erred in not allowing the relief brought forward depreciation." 10. At the time of hearing before us, no argument was advanced with regard to ground no.2. Accordingly, the same is to be treated as not pressed. 11. Ground No.3 is against charging of interest under Section 234B. We direct the AO to re-compute the same in accordance with the law after final determination of the income. 12. In the result, the assessee's appeals are partly allowed. Order pronounced in Open Court on 23rd April, 2010.
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2010 (4) TMI 1151 - DELHI HIGH COURT
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... ... ..... and the issuance of notice was, therefore, barred by time. The Tribunal agreed with the Commissioner of Income Tax (appeals) in its conclusion of setting aside the re-assessment proceedings on the point of limitation. The Tribunal also noted that the assessee, who was aggrieved by the order of the Commissioner of Income Tax (Appeals) on merits, had also filed a letter seeking withdrawal of the cross-objection filed by the assessee. Consequently, the Tribunal dismissed the Revenue’s appeal on the point of the limitation as also the assessees cross objections in relation to the applicability of Section 115JA of the said Act. We are not inclined to interfere with the order of the Tribunal. The appeal is dismissed.
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2010 (4) TMI 1150 - ITAT MUMBAI
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... ... ..... dendi of this judgement is fully applicable to the facts of the instant case. We, therefore, overturn the impugned order and direct the deletion of penalty. 4. Both the parties are in agreement that the facts and circumstances of the appeal for assessment year 2002-2003 are similar to those of assessment year 2001- 2002 except for the fact that the learned CIT(A) levied penalty on rental income also apart from the disallowance of expenses and depreciation. In our considered opinion, the rationale of the judgment in the case of Reliance Petro Products Pvt. Ltd. (supra) will squarely apply in relation to penalty imposed in respect of rental income as well. Insofar as the disallowance of expenses and depreciation allowance is concerned, the view taken by us in assessment year 2001-2002 (supra) will be operative . We, therefore, order for the deletion of penalty for this year as well. 5. In the result, both the appeals are allowed. Order pronounced on this 6th day of April 2010.
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2010 (4) TMI 1149 - ITAT MUMBAI
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... ... ..... Learned counsel for the assessee reiterated the stand of the assessee as contained in the Miscellaneous Application. Learned DR relied on the order of the Tribunal. 4. We have considered the rival submissions We find that none of the reasons given in the Miscellaneous Application can be the basis to allow the deduction of commission expenses claimed by the assessee. Onus was on the assessee to establish the nature of services rendered by the sister concern for which commission was paid. Admittedly, there is no such evidence. The assessee merely seeks to rely on certain circumstances and on that basis seeks to claim deduction on account of commission paid. These circumstances are not enough to allow the claim of the assessee. The Tribunal was right in disallowing the claim of the Assessee for deduction on account of Commission. We therefore do not find any merit in this Miscellaneous Application and the same is dismissed. Order has been pronounced on 30th Day of April, 2010.
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2010 (4) TMI 1148 - ITAT MUMBAI
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... ... ..... s includes these items in the dealer’s turnover disallowing the exemption, penalty cannot be imposed. The penalty levied stands set aside” 14. The situation in the present case is still better as no fault has been found with the particulars submitted by the assessee in its return.” 8. From the decision of the Hon’ble Supreme Court (supra), it is clear that when the information and details given by the assessee is not found to be incorrect or inaccurate, the assessee cannot be held of guilty of furnishing inaccurate particulars and resulting levy of penalty. Respectfully following the decision of the decision of the Supreme Court (supra), and in view of the finding of this Tribunal in asessee’s sister case, we find that, in the facts and circumstances of the present case, the penalty is not justified. Accordingly, we direct the AO to delete the penalty. 9. In the result, appeal of the assessee is allowed. Pronounced in the Open Court on 30.4.2010
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2010 (4) TMI 1147 - KARNATAKA HIGH COURT
Interest received on FD - Whether the tribunal was right in treating the interest as an income from other sources? - Held that:- It is not in dispute that the appellant is a 100% Export Oriented Unit which is engaged in export of processed gherkins and during the course of its business it would have to make certain deposits for the purpose of obtaining letter in credit or for bank guarantee when the products which are processed by it have to be exported. In terms of the said letter of credit or bank guarantee, certain deposits are made and such deposits are to be treated as margin amounts and any interest which is earned out of the said deposits has to be treated as business income and not as income earned from other sources
As in the case of Satishchandra and Co. V. commissioner of Income Tax [1998 (7) TMI 73 - KARNATAKA High Court] it has been held that merely because the Assessee has shown any income by way of interest, it would not become income from other sources as it has to be seen as to whether the said interest was earned out of business compulsion and as a business income. When in the said case, the Assessee has made deposit in a bank as a condition for obtaining bank guarantee to be given before the Excise Authorities as required under the Excise Rules the interest income which arose out of such transaction was held to be closely connected with the business of the Assessee and hence business income. If the income is assessable as business income then the mere circumstance that the Assessee has shown it has income from other sources or that it was assessed under the head income from other sources would not be the ground to deny the Assessee the set off of the carried forward losses. The said decision is also relevant keeping in mind the facts of the present case where the Assessee being an Export Oriented Unit had deposited the said found as margin money for the purpose of carrying on its export business.
Decided in favour of the Assessee and against the Revenue
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2010 (4) TMI 1146 - ITAT KOLKATA
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... ... ..... ictional High Court. 3. In view of the above submissions of the learned Representatives of the parties and the fact that the learned CIT(A) has deleted the additions made by the Assessing Officer in both the Assessment Years under consideration by following the decision of Hon’ble jurisdictional High Court in the case CIT v. AFT Industries Ltd (270 ITR 167), we hold that in the absence of any contrary decision brought on record by the Department or any additional facts to make out a case that the above decision of Hon’ble jurisdictional High Court is not applicable to the facts of the case of the assesee before us, we do not find any infirmity in the orders of the learned CIT(A). Therefore, we uphold the orders of the learned CIT(A) for both the Assessment Years under consideration by rejecting the grounds of appeal taken by the Department. 4. In the result, both the appeals of the Department are dismissed. THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt. 30.4.2010.
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2010 (4) TMI 1144 - ITAT INDORE
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... ... ..... s very strange that the penalty is being imposed on the allegation of the firm for breach of faith and adjustment made by the firm in debiting the amount in the capital account of the assessee. There is no independent finding by the Assessing Officer that the assessee either concealed its income or furnished inaccurate particulars of income. In my view, the assessee may not be penalized merely on the basis of entry debited by the firm in the capital account of the assessee. It is between the assessee and the firm to settle their scores before the competent court of law and not for the Assessing Officer to come to a negative finding against the assessee on the basis of entry made by the firm. It is a case of appreciation of facts and interpretation of law, consequently, I am of the considered opinion that it is a fit case where penalty has to be deleted. I order accordingly. Resultantly, the appeal of the assessee is allowed. Order pronounced in open Court on 6th April, 2010.
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2010 (4) TMI 1143 - ITAT KOLKATA
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... ... ..... ) CIT -Vs- Janki Textiles & Industries Ltd. (Gau) 186 CTR 84, xiii) CIT -Vs- Kundan Investment Ltd. (cal) 179Taxman 647, xiv) CIT -Vs- Dhawan Investment & Trading Co. Ltd. 100 Taxman 562 (Cal), xv) CIT -Vs- Carbo Industrial Holdings Ltd. 244 ITR 422 (Cal), xvi) CIT -Vs- Janki Textiles & Industries Ltd. 186 CTR 84 (Gau) and xvii) Dudhoria Construction Co. Ltd. -Vs- ITO, 43 TTJ 280 (Cal). and held that the capital loss incurred by the assessee on sale of shares listed on CSE and others was a genuine loss. Since the above finding of facts of the Ld. CIT(A) remained uncontroverted before us and the Ld. CIT(A) has placed reliance on the case laws decided by the Coordinate Bench of this Tribunal on similar facts, we find no infirmity in the order passed by him deleting the addition of ₹ 15,29,049/-. Therefore, this ground of appeal of the revenue is dismissed. 7. In the result, the appeal of the revenue is dismissed. Order pronounced in the open Court on 9.4.2010
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2010 (4) TMI 1142 - SC ORDER
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... ... ..... The civil appeals are dismissed on the ground of delay, leaving the question of law open.
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2010 (4) TMI 1141 - MADRAS HIGH COURT
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... ... ..... e learned counsel whether for the same assessment year, both the assessee and the sister company had claimed depreciation, he answered in the negative. Therefore, that objection cannot be taken in favour of the appellant. We also find that all the questions raised by the appellant have been effectively answered by the five conclusions drawn by the Tribunal which are extracted above. These are purely questions of fact and the conclusion appears to be correct since the possession is with the assessee. The loan has been discharged by the assessee and the income from the property is assessed in the hands of the assessee. Therefore, we do not think that there is an erroneous appreciation of fact or non-consideration of the relevant materials. In these circumstances, we have no hesitation to hold that no question of law arises much less the one raised in this appeal. Accordingly, the tax case appeal is dismissed. No costs. Consequently, Misc. Petn. Nos. 1 and 1 of 2010 are closed.
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2010 (4) TMI 1140 - ITAT AHMEDABAD
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... ... ..... ,528/- as on 20.7.99 a stock turnover ratio of 4.1 is worked out. As assessee is showing GP 3 which is accepted by the department the turnover value of ₹ 45,75,000/- would be ₹ 47,12,250/-. With stock turnover ratio of 4.1 the value of investment in such purchases would be ₹ 1,93,202/-. Accordingly, an addition to this extent is restored as unaccounted investment in purchases and is upheld. We also uphold the view that assessee has earned GP on sale of these goods to this extent. Therefore GP addition of ₹ 1,37,250/- is also upheld. We also uphold the addition on the ground of unaccounted sales of ₹ 79,266/- as assessee has failed to explain the stock deficiency. Since the purchases related to these sales are not claimed outside the books addition to this extent is called for. Accordingly addition to the extent of ₹ 79,266/- is also upheld. 21. As a result, departmental appeal is partly allowed. Order pronounced in Open Court on 16/4/2010.
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2010 (4) TMI 1139 - ITAT MUMBAI
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... ... ..... Rs.31,813/- iv) Travelling Rs.1,01,725/- Total Rs.1,72266/- and made the addition of ₹ 34,453/-. The only reason given by the AO is that the above expenses were not properly vouched in the correct sense. The assessee carried the issue before the ld CIT(A), who deleted the addition. 9. We have perused the reasons given by the AO for making the disallowance. We fail to understand what the AO was contemplated in the phrase ‘correct sense.’ Once the expenses are claimed by the assessee, then for making disallowance fully or partly of the same, the AO has to give the reasons that how they are not related to the business of the assessee. It is well settled principle that there is no rule for making arbitrary disallowance. In our opinion, the ld. CIT(A) has rightly deleted the addition and no interfere is called for; we, accordingly, confirm the same. 10. In the result, the appeal filed by the revenue is dismissed. Order pronounced on the 30th, day of April, 2010.
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2010 (4) TMI 1138 - ITAT HYDERABAD
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... ... ..... we find that the total credit found in the account of this partner, Kishore Kumar, was ₹ 2,48,000. We find that no credit for the savings out of agricultural income of Kishore Kumar was allowed by the lower authorities, though no adverse finding has been given by them against the agricultural income claimed by this partner. We also find that this partner has also claimed to have invested Rs,.98,000, after borrowing the said amount from his friends. Credit for this amount was also not allowed by the Assessing Officer, though the claim of the assessee with regard to the borrowal was not disputed. Considering totality of facts and circumstances of the case, we hold that it shall be reasonable to restrict the addition in respect of the credit entry in the name of this partner to ₹ 40,000 as against ₹ 1,85,000 sustained by the CIT(A). We direct accordingly. 13. In the result, assessee's appeal is partly allowed. Order pronounced in the open Court on 9/4/2010
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