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Showing 81 to 100 of 1247 Records
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2012 (9) TMI 1180
Issues involved:
The appeal filed by the Revenue against the order of Ld.CIT(A)-XXX, New Delhi for Assessment Year 2008-09 regarding the taxability of salary earned by an employee working on an international assignment.
Facts of the case:
The assessee, an employee of M/s KJS India Pvt.Ltd., was on a long term international assignment to Kraft Foods, Philippines, and was present in India for less than 60 days during the relevant year. The assessee was regarded as a tax resident of Philippines and paid taxes there on the salary received in India for services rendered in Philippines.
Arguments before the First Appellate Authority:
The First Appellate Authority relied on the India-Philippines Double Taxation Avoidance Agreement, specifically Article 16(1), to conclude that the salary in question is not taxable in India.
Grounds of appeal by the Revenue:
The Revenue appealed on the grounds that the salary was accrued, received, and paid in India, and should be taxed accordingly under the Income Tax Act, 1961. They also questioned whether the tax paid in Philippines included the salary earned in India and claimed that the penalty proceedings initiated by the Assessing Officer were premature.
Decision of the Tribunal:
After considering the facts and the Indo-Philippines DTAA, the Tribunal held that the salary income derived by the appellant, a tax resident of Philippines, from employment exercised in Philippines shall be taxable only in Philippines. Therefore, the salary received through KJS India for work done in Philippines is not taxable in India. The Tribunal upheld the decision of the First Appellate Authority and dismissed the appeal of the Revenue.
Conclusion:
The Tribunal's decision was based on the specific provisions of the Double Taxation Avoidance Agreement between India and Philippines, which governed the taxability of the salary earned by the assessee while working on an international assignment.
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2012 (9) TMI 1179
Issues involved: The issues involved in this case are u/s 263 jurisdiction invoked by CIT(A)-II, Ludhiana, and the claim of setting off net business loss against other incomes u/s 43(5) of the Income Tax Act, 1961.
u/s 263 Jurisdiction Invoked:
The appeal was filed against the order of CIT(A)-II, Ludhiana, related to the assessment year 2008-09. The CIT(A) set aside the assessment order u/s 143(3) and directed the Assessing Officer to reassess the income based on the directions given. The assessee had taken unsecured loans from various parties, and the Assessing Officer had made inquiries and recorded statements of the creditors. The CIT(A) found the assessment order erroneous as no documentary evidence was obtained regarding the sources of the loans. The Commissioner held that the assessment order was prejudicial to the interest of Revenue and directed a reassessment. The assessee argued that the inquiries made by the Assessing Officer were reasonable, even if not to the satisfaction of the Commissioner. The Tribunal noted that the inquiries, though inadequate, did not render the assessment order erroneous. Citing relevant case law, the Tribunal concluded that the assessment order was not erroneous and allowed the appeal.
Claim of Setting Off Business Loss:
The assessee claimed to set off a net business loss suffered in trading of shares/derivatives against other incomes u/s 43(5) of the Income Tax Act, 1961. The CIT(A) did not allow this claim, leading to one of the grounds of appeal. The Tribunal, after considering submissions from both parties, found that the Assessing Officer had made inquiries and recorded statements of the creditors. The Tribunal held that the assessment order was not erroneous and allowed the appeal, thereby quashing the order u/s 263 of the Act.
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2012 (9) TMI 1178
Issues Involved:
1. Computation of Long Term Capital Gains.
2. Applicability of Section 49(1)(iii)(a) regarding release deeds.
3. Classification of release deeds as gifts.
4. Calculation of indexed cost of acquisition.
5. Treatment of earnest money received.
6. Taxability of compensation received for unauthorized occupation.
7. Award of costs to the assessee.
Summary:
Issue 1: Computation of Long Term Capital Gains
The case revolves around the computation of long-term capital gains on the sale of a property. The assessee initially reported a capital gain of Rs. 10,06,515 but revised it to NIL, claiming the indexed cost of acquisition and investments in NABARD Bonds u/s 54EC.
Issue 2: Applicability of Section 49(1)(iii)(a)
The CIT(A) held that the release deeds executed by co-owners were not covered under the meaning of devolution as per Section 49(1)(iii)(a) of the IT Act, 1961. The CIT(A) asserted that the asset was acquired by the assessee through release deeds by four different persons, and thus, the indexed cost should be calculated from the date of these deeds.
Issue 3: Classification of Release Deeds as Gifts
The assessee argued that the release deeds executed by co-owners amounted to a gift. The Tribunal referred to the Supreme Court decision in Kuppuswamy Chettiar Vs. ASPA Armugam Chettiar, which held that a transfer of property by a release deed without consideration is a gift. Therefore, the release deeds in favor of the assessee, executed out of love and affection, were considered as gifts.
Issue 4: Calculation of Indexed Cost of Acquisition
The Tribunal, referring to the Bombay High Court decision in CIT Vs. Manjula J. Saha, held that the indexed cost of acquisition should be computed with reference to the year in which the previous owner first held the asset. Thus, the cost of acquisition should be calculated by taking the value of the property as on 01-04-1981.
Issue 5: Treatment of Earnest Money Received
The CIT(A) reduced the cost of the asset by Rs. 40,000 received as earnest money by Late Mr. H.K. Mody, as per Section 51 of the IT Act. The Tribunal upheld this decision, stating that the earnest money has to be deducted from the cost of the asset while calculating the capital gain.
Issue 6: Taxability of Compensation Received for Unauthorized Occupation
The assessee received Rs. 12 lakhs as compensation for unauthorized occupation of the property. The Tribunal, citing the Special Bench decision in Narang Overseas Pvt. Ltd., held that mesne profits awarded as compensation for wrongful possession are capital receipts not chargeable to tax. Hence, this compensation was not taxable.
Issue 7: Award of Costs to the Assessee
The Tribunal found no merit in the ground relating to the award of costs to the assessee and dismissed this claim.
Conclusion:
The appeal filed by the assessee was partly allowed. The Tribunal ruled in favor of the assessee on the issues of indexed cost of acquisition and the taxability of compensation received, while dismissing the claims regarding earnest money and the award of costs.
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2012 (9) TMI 1177
Issues Involved:
1. Specific Performance of Contract
2. Validity of Contract under Section 29 of the Indian Contract Act, 1872
3. Readiness and Willingness to Perform Contract
4. Misrepresentation and Mistake in Contract
Summary:
1. Specific Performance of Contract:
The plaintiffs/respondents filed a suit for specific performance of a contract against the appellant/defendant, claiming that an agreement of sale was executed on 1.12.1991 for the sale of land for Rs. 24,000/-, with Rs. 3,000/- paid in advance. The trial court decreed the suit in favor of the plaintiffs, leading to the present appeal u/s 96 of CPC by the defendant.
2. Validity of Contract under Section 29 of the Indian Contract Act, 1872:
The defendant contended that the contract was void ab initio u/s 29 of the Contract Act due to the incorrect and uncertain description of the land. The court found that the description of the property was indeed uncertain, making the contract void. The court noted, "the agreement is uncertain and void as envisaged under Section 29."
3. Readiness and Willingness to Perform Contract:
The plaintiffs claimed they were ready to perform their part of the contract, but the defendant avoided executing the sale deed. The defendant admitted the execution of the agreement and receipt of Rs. 3,000/- but argued that the land description was incorrect and he did not own such land. The court observed that the defendant was honest and fair, as he repeatedly asked the plaintiffs to correct the description of the land.
4. Misrepresentation and Mistake in Contract:
The defendant argued that he signed the agreement under pressure and without reading it, as he was disturbed due to his missing she-buffalo. The court found that the plaintiffs themselves prepared the document and the defendant signed it under their insistence. The court held that the agreement was void due to the incorrect description of the land and the mistake of fact about the existence of the land.
Conclusion:
The court allowed the appeal in part, dismissing the suit for specific performance of the contract but ordering the defendant to refund the earnest money of Rs. 3,000/- to the plaintiffs without any interest. The court directed both parties to bear their own costs.
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2012 (9) TMI 1176
Issues involved: Appeal by Revenue and Cross Objection by Assessee regarding addition of unexplained investment on construction/ renovation of 1st floor of House u/s 69C of the Income Tax Act, 1961.
Summary:
1. Assessee's Cross Objection:
The assessee withdrew the cross objection filed, which was permitted by the tribunal, leading to the dismissal of the cross objection.
2. Revenue's Appeal Grounds:
The Revenue appealed against the deletion of the addition of Rs. 15,12,750 made by the Assessing Officer. The grounds included the loan from LIC Housing Finance for construction, valuation report confirmation, and the onus on the assessee to verify facts.
3. Facts of the Case:
The assessee declared income and purchased land, with a loan from LIC Housing Finance. The AO noted loan utilization for construction and renovation, leading to the addition u/s 69C. The assessee's explanation was deemed insufficient.
4. Ld. Commissioner of Income Tax (A) Decision:
The Commissioner considered various factors, including lack of cross-examination, disbelieved evidence, and reports indicating construction completion in earlier years. The addition was deleted based on these discrepancies.
5. Tribunal's Decision:
The tribunal upheld the Commissioner's decision, noting the lack of conclusive proof of construction in the current year, reliance on doubtful statements, and absence of evidence from the Assessing Officer. The Revenue's appeal and assessee's cross objection were dismissed.
In conclusion, the tribunal affirmed the decision of the Ld. Commissioner of Income Tax (A) regarding the addition of unexplained investment on construction/renovation of the house property, highlighting the importance of conclusive evidence and proper verification in such cases.
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2012 (9) TMI 1175
Issues Involved:1. Disallowance of Rs. 30,07,454/- as capital expenditure. 2. Applicability of Explanation 1 to section 32(1) of the Income Tax Act. Summary:Issue 1: Disallowance of Rs. 30,07,454/- as capital expenditureThe Assessee appealed against the order of the Ld. Commissioner of Income Tax (Appeals)-XXI, New Delhi, which confirmed the disallowance of Rs. 30,07,454/- made by the Assessing Officer (AO) for expenditure on repairs and maintenance of the building, treating it as capital expenditure. The AO noted that the Assessee incurred Rs. 58,42,496/- on repairs and maintenance, including Rs. 30,07,454/- under 'Office General' (Renovation). The AO held that the expenses provided enduring benefits and enhanced the efficiency and effectiveness of the hotel, thus should be capitalized to fixed assets. The Assessee contended that the expenditure was for ongoing operations to maintain the charm and attract customers, involving items like upholstery, fabric, cutlery, rubber mats, napkins, civil work, shower mirror, room chair cloth, etc. The Assessee argued that no additional asset was created, and the expenditure was for renewing existing assets. The Ld. Commissioner of Income Tax (A) upheld the AO's decision, stating that the expenses provided enduring benefits and should be capitalized. Issue 2: Applicability of Explanation 1 to section 32(1) of the Income Tax ActThe Assessee argued that Explanation 1 to section 32(1) was not applicable as there was no creation of additional space or building capacity. The Tribunal examined the nature of the expenditure and found it to be revenue in nature, not capital. The Tribunal referred to several case laws supporting the Assessee's claim, including: - C.I.T. vs. Lean Logistics Ltd. (293 ITR 432): Held that construction costs for business purposes are admissible as revenue expenditure. - Roger Enterprise (P) Ltd. vs. C.I.T. (169 Taxman 41): Held that expenditure for renovation of leased premises can be revenue expenditure. - C.I.T. vs. Delhi Press Samachar P Ltd. (322 ITR 590): Held that expenditure to preserve and maintain existing assets is revenue expenditure. - C.I.T. vs. Dr. A.M. Singhvi (302 ITR 26): Held that expenditure for smooth working of professional activities in rented premises is revenue expenditure. - C.I.T. vs. Ooty Dasaprakash (237 ITR 902): Held that expenditure for modernizing a hotel and replacing existing components is not of enduring nature and is revenue expenditure. The Tribunal concluded that the expenditure incurred by the Assessee was for preserving and maintaining existing assets and enhancing the efficiency and effectiveness of the hotel, not for creating additional space or capacity. Therefore, the expenditure was revenue in nature and not capital. The Tribunal set aside the orders of the authorities below and decided the issue in favor of the Assessee. Conclusion:The appeal filed by the Assessee was allowed, and the disallowance of Rs. 30,07,454/- as capital expenditure was overturned. The expenditure was deemed revenue in nature, preserving and maintaining existing assets without adding to the space or capacity of the hotel. Order pronounced in the open court on 19/9/2012.
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2012 (9) TMI 1174
Deduction for Co-operative Society u/s80P(2)(a)(i). - Assessee, a cooperative society derives income from providing credit facilities to its members only. They claimed deduction u/s 80P(2)(a)(i). Referring to the Banking Regulation Act, 1949 the AO held that the assessee fulfils all the criteria laid down in s. 5(ccv) and is consequently a primary cooperative bank, thus is not eligible for deduction u/s 80P(2)(a)(i). - HELD THAT:- Cooperative society is distinct and separate from the cooperative bank and is not a primary cooperative bank within the meaning of Banking Regulation Act, 1949. Therefore, the assessee cooperative credit society is entitled to deduction u/s.80P(2)(a)(i) of the Income Tax Act.
Decision in the case of INCOME-TAX OFFICER, WARD 1(4) VERSUS JANKALYAN NAGRI SAHAKARI PAT SANSTHA LTD. [2012 (9) TMI 288 - ITAT, PUNE], relied upon
Decision in favour of assessee.
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2012 (9) TMI 1173
The Supreme Court of India ordered the petitioner to deposit process fee and spare copy within four weeks, along with a payment of Rs. 2,000 as costs to be deposited with the Supreme Court Legal Services Committee.
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2012 (9) TMI 1172
Issues Involved: Appeal against CIT (A) order for assessment year 2005-2006. Grounds: 1. Disallowance u/s 43B for unpaid service tax liability. 2. Addition of Rs. 19,60,000 u/s 41(1) IT Act, 1961.
Disallowed Service Tax Liability u/s 43B: Tribunal upheld CIT (A) decision based on previous case law. AO disallowed Rs. 54,71,000 u/s 43B for outstanding service tax liability. CIT (A) deleted disallowance citing case law precedent where service tax collection not debited to accounts cannot be disallowed. Tribunal followed consistency principle and ruled in favor of assessee.
Addition u/s 41(1) IT Act: Assessee pointed out issue not relevant to current year but to assessment year 2006-2007. AO disallowed Rs. 19.60 lakhs u/s 41(1) for 2006-2007, not current year. Tribunal dismissed this ground as not arising from current order. Revenue's appeal was ultimately dismissed.
Conclusion: Tribunal dismissed Revenue's appeal against CIT (A) order for assessment year 2005-2006, upholding disallowance u/s 43B for unpaid service tax liability and dismissing addition u/s 41(1) IT Act issue not relevant to the current year. The decision was based on legal precedents and consistency with previous rulings.
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2012 (9) TMI 1171
Issues Involved:
1. Consideration of written submissions and arguments by CIT(A).
2. Deduction u/s 80P(2)(a)(i) read with section 80P(4).
3. Validity of assessment order u/s 143(3) without processing return u/s 143(1).
4. Notice u/s 143(2) issued without application of mind.
5. Provision for NPA on mercantile basis.
6. Addition u/s 40(a)(ia) for non-deduction of tax.
7. Addition u/s 40(a)(ia) for amounts not payable at year-end.
Summary:
1. Consideration of Written Submissions and Arguments by CIT(A):
The assessee argued that the CIT(A) did not consider the written submissions and arguments, passing the order in an arbitrary and cryptic manner. The Tribunal found no merit in this contention, noting that the CIT(A) had duly considered the material and submissions before upholding the assessment order.
2. Deduction u/s 80P(2)(a)(i) Read with Section 80P(4):
The assessee, a primary Agricultural Credit Society, claimed deduction u/s 80P(2)(a)(i). The CIT(A) referred to the bye-laws of the assessee and the provisions of Section 80P(4), which exclude co-operative banks other than primary agricultural credit societies from such deductions. The Tribunal upheld the CIT(A)'s decision, finding it in accordance with the law and judicial precedents.
3. Validity of Assessment Order u/s 143(3) Without Processing Return u/s 143(1):
The assessee contended that the assessment order u/s 143(3) was invalid as the return was not processed u/s 143(1) within one year. The CIT(A) and the Tribunal, relying on various judicial decisions, held that non-processing u/s 143(1) does not bar the Assessing Officer from making an assessment u/s 143(3). The issue raised by the assessee was dismissed.
4. Notice u/s 143(2) Issued Without Application of Mind:
The assessee argued that the notice u/s 143(2) was issued on extraneous reasons without application of mind. The Tribunal found this issue to be devoid of merit, noting that the CIT(A) had already addressed it along with the previous issue. The findings of the CIT(A) were upheld.
5. Provision for NPA on Mercantile Basis:
The assessee challenged the disallowance of provision for NPA on a mercantile basis. The CIT(A) referred to Section 36(1)(viia) and relevant judicial decisions, concluding that the disallowance was justified. The Tribunal upheld this decision, finding it in line with the law and judicial pronouncements.
6. Addition u/s 40(a)(ia) for Non-Deduction of Tax:
The assessee contested the addition of Rs. 25,72,876 u/s 40(a)(ia) for non-deduction of tax. The CIT(A) relied on various judicial decisions and upheld the addition. The Tribunal found the CIT(A)'s decision well-reasoned and in accordance with judicial precedents, dismissing the issue raised by the assessee.
7. Addition u/s 40(a)(ia) for Amounts Not Payable at Year-End:
The assessee argued that no tax was to be deducted on certain payments, and thus, Section 40(a)(ia) was not applicable. The Tribunal, referring to its earlier findings on similar issues, upheld the CIT(A)'s decision, dismissing the issue as devoid of merit.
Conclusion:
The appeal of the assessee was dismissed, with the Tribunal upholding the findings and decisions of the CIT(A) on all issues raised.
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2012 (9) TMI 1170
Issues Involved:
The validity of re-opening the case, genuineness of gifts received, and charging of interest u/s 234 B of the Act.
Issue No. 1: Validity of Re-opening the Case
The Assessing Officer (AO) initiated reassessment proceedings u/s 147 of the Act based on information received regarding gifts received by the assessees. The assessees challenged the re-opening before the Ld. CIT (A) on grounds of legality and genuineness of the gifts. The Ld. AR contended that the AO did not apply his mind before issuing the notice u/s 148 and that the gifts were executed before the amendment in the Income Tax Act. The Tribunal found that there was a prima facie belief by the AO of escapement of assessable income, thus upholding the validity of re-opening. The contention of the Ld. AR was rejected, and the related grounds were dismissed.
Issue No. 2: Genuineness of Gifts Received
The assessees received gifts from Mr. Harish Kumar, which were treated as bogus by the AO based on general statements of the donor. The assessees provided gift deeds and affidavits as evidence, but were not allowed to cross-examine Mr. Harish Kumar. The Tribunal found that Mr. Harish Kumar's statements did not specifically allege the gifts were bogus, and the assessees were not given a fair opportunity to cross-examine him. Relying on legal precedents, the Tribunal set aside the matter to allow the assessees to cross-examine Mr. Harish Kumar and consider if the donor had already paid tax on the gifted amount. The grounds related to this issue were allowed for statistical purposes.
The Tribunal partially allowed the appeals, emphasizing the need for a fair opportunity for cross-examination and consideration of tax payment by the donor. The matter was remanded to the AO for further examination.
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2012 (9) TMI 1169
Issues involved: Appeals against penalty u/s 271(1)(c) for assessment years 2003-04 to 2008-09.
Summary:
The Appellate Tribunal ITAT Cochin heard six appeals by the revenue against a common order confirming penalties u/s 271(1)(c) for the mentioned assessment years. The appeals pertained to the same taxpayer and were disposed of together for convenience.
The taxpayer, a partner in a firm, passed away in September 2009, leaving credits in bank accounts unexplained. The legal heirs failed to provide a satisfactory explanation for these credits, leading to the assessing officer imposing penalties for income concealment. The legal representative did not contest the addition, citing lack of knowledge about the funds' source due to ongoing disputes within the partnership firm.
After considering both parties' arguments and the available evidence, the Tribunal emphasized that not all additions in assessment automatically warrant penalties. Given the taxpayer's death and the complexities surrounding the funds' origin, the legal heirs faced practical difficulties in explaining the bank account credits. Consequently, the Tribunal deemed it unjust to levy penalties in this case and upheld the Commissioner's decision to delete the penalties.
Ultimately, all revenue appeals were dismissed, confirming the lower authority's decision.
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2012 (9) TMI 1168
The Supreme Court of India in 2012 (9) TMI 1168 - SC Order granted leave in the case. The Department can proceed with assessments while the appeals are pending. Parties must complete pleadings within eight weeks.
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2012 (9) TMI 1167
Issues involved:
The issues involved in this judgment include the challenge to the impugned order of the Ld CIT(A) for the Block Period, calculation of undisclosed income u/s 158BC(c) of the I.T. Act, appeal maintainability based on tax effect, and objections raised by the assessee regarding surcharge and interest u/s 158BFA(1) of the I.T. Act.
Challenge to Impugned Order:
The Revenue filed an appeal against the Ld CIT(A)'s order for the Block Period from 01.4.1989 to 08.12.1999, where the A.O. determined total undisclosed income at Rs. 5,76,440. The A.O. calculated tax at 60% with surcharge at 10%, amounting to Rs. 3,80,450. The Ld CIT(A) deleted the addition made by the A.O. towards unexplained cash, leading to the Revenue's appeal.
Maintainability of Appeal:
The Ld Counsel argued that the appeal by Revenue is not maintainable as the tax effect is less than Rs. 3,00,000, citing Circular no. 3 of the CBDT. Referring to High Court decisions, the appeal was dismissed as the total tax effect was below the threshold, following jurisdictional High Court rulings.
Assessee's Cross Objection - Surcharge and Interest:
The assessee's objections included denial of liability to pay surcharge and interest u/s 158BFA(1) of the I.T. Act. The assessee contended that the levy of surcharge and interest was erroneous and without legal authority. The issue of interest charged by the A.O. was challenged, citing a grace period for filing the return and delay due to non-receipt of seized documents. The matter of interest levy was restored to the A.O. for reconsideration based on legal principles.
Decision and Dismissal:
The appeal by Revenue was dismissed, and the assessee's Cross Objection was partly allowed for statistical purposes. Grounds related to surcharge and interest were considered, with the interest levy issue remanded to the A.O. for fresh consideration. The decision was pronounced on 28th September 2012.
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2012 (9) TMI 1166
... ...
... ... ..... he Respondent Mr. Joseph Vellapally, Sr. Adv., Mr. S. Sukumaran, Adv., Mr. Anand Sukumar, Adv., Mr. Bhupesh Kumar Pathak, Adv, Mr. Debjyoti Basu, Adv., Ms. Meera Mathur, Adv. ORDER Leave granted. Tag with ............. ( )
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2012 (9) TMI 1165
Issues involved: Appeal filed by Revenue against CIT (A) order related to assessment year 2005-06, challenging deletion of addition made u/s 43B of the I.T. Act regarding provision for leave encashment not actually spent by the assessee.
Summary:
Issue 1: CIT (A) order challenged by Revenue
The Revenue filed an appeal against the CIT (A) order dated 12.02.2009, contending that it was wrong, perverse, illegal, and against the provisions of law. The grounds of appeal included the deletion of an addition made u/s 43B of the I.T. Act without the actual expenditure by the assessee.
Issue 2: Disallowance of claim u/s 43B by Assessing Officer
The assessee, a State Govt. Company, engaged in various business activities, filed a return declaring income. The Assessing Officer disallowed the claim for provision of leave encashment under u/s 43B as the actual payment was not made by the assessee.
Issue 3: CIT (A) decision and Tribunal's observation
The CIT (A) allowed the assessee's appeal and referred the matter back to the Assessing Officer for reconsideration of the double disallowance issue. The Tribunal, considering a similar case for A.Y. 2006-07, directed the Assessing Officer to reevaluate the claim in light of the Hon'ble Apex Court's decision in the case of Bharat Earth Movers (2000) 245 ITR 428.
Conclusion:
The Tribunal, following its previous decision, remitted the matter to the Assessing Officer for fresh consideration based on the Hon'ble Apex Court's ruling. The Department's appeal was allowed for statistical purposes, emphasizing the need for a reassessment in accordance with the legal provisions.
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2012 (9) TMI 1164
Issues Involved:
1. Treatment of the amount recovered as pre-deposit or duty.
2. Eligibility for refund and the requirement to file a refund claim u/s 27.
3. Applicability of the principle of unjust enrichment.
4. Interest rate applicable on the refunded amount.
Summary:
1. Treatment of the Amount Recovered as Pre-Deposit or Duty:
The appellant-Commissioner of Customs (Preventive) challenged the CESTAT's decision that the amount of Rs. 4,71,447/- recovered by appropriation of refund sanctioned to the respondent in other cases was to be considered as a pre-deposit made u/s 129E of the Customs Act, 1962. The Tribunal held that the amount recovered from the appellants by adjustment against the refunds has to be considered as pre-deposit made during the pendency of appeal. The High Court upheld this view, citing that depositing duty, interest, and penalty pending appeal is a statutory obligation and does not require a specific direction from the Commissioner (Appeals) or the Tribunal.
2. Eligibility for Refund and Requirement to File a Refund Claim u/s 27:
The Tribunal ruled that the respondent was not required to file a proper refund claim u/s 27 of the Act and satisfy the tests of unjust enrichment. The High Court supported this decision, noting that once the demand of duty was set aside, the amount adjusted out of the refund sanctioned against such demand was required to be returned suo motu. The Tribunal's decision was consistent with the view that the amount in question was in the nature of a pre-deposit and not duty, thus negating the need for a refund claim.
3. Applicability of the Principle of Unjust Enrichment:
The Tribunal did not find it necessary for the respondent to satisfy the tests of unjust enrichment for the refund of the pre-deposit amount. The High Court concurred, emphasizing that the amount was a pre-deposit and not duty, and therefore, the principle of unjust enrichment did not apply.
4. Interest Rate Applicable on the Refunded Amount:
The Tribunal directed the Department to refund the amount with 12% interest from 20th August, 1996, till the date of payment. The High Court upheld this direction, referencing the Supreme Court's decision in Commissioner of Central Excise, Hyderabad v. ITC Ltd., which supported the payment of 12% interest on delayed refunds of pre-deposits. The High Court found no infirmity in the Tribunal's order regarding the interest rate.
Conclusion:
The High Court dismissed the appeal, finding no substantial question of law warranting interference. The Tribunal's order was upheld, confirming that the amount recovered was a pre-deposit, not requiring a refund claim u/s 27, and the direction to pay 12% interest was in line with Supreme Court precedent.
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2012 (9) TMI 1163
Issues involved: Appeal against orders of CIT(A) on common grounds.
Details of the judgment:
Issue 1: Additional evidence filed before CIT(A)
The assessees claimed that they produced various documents before the CIT(A) to prove rental income, including registrations, bills, and affidavits. They argued that the delay in submitting these documents was due to the short time provided by the department after a search operation. The counsel cited relevant case laws to support the admission of additional evidence under rule 46A. They contended that the evidence was crucial and should be accepted. On the other hand, the Senior DR defended the Assessing Officer's actions, stating that adequate opportunities were given to the assessees. The Tribunal noted that the CIT(A) has the power to inquire and analyze evidence before making a decision. Considering the importance of the documents and the limited time given to the assessees, the Tribunal set aside the CIT(A)'s order and remanded the case to the Assessing Officer for fresh adjudication.
Issue 2: Powers of the Tribunal to admit fresh evidence
The Senior DR relied on a decision regarding the Tribunal's powers to admit additional evidence. The Tribunal observed that it has the authority under the ITAT Rules to consider new evidence if the assessee had a valid reason for not presenting it earlier. Referring to rule 29 of the ITAT Rules and the decision of the Rajasthan High Court, the Tribunal emphasized the importance of providing both parties with a fair opportunity. Considering the complexity of the case and the challenges faced by the assessees in collecting evidence, the Tribunal allowed the appeals for statistical purposes and directed a fresh adjudication by the Assessing Officer with the opportunity for both parties to present evidence.
Conclusion:
The Tribunal acknowledged the significance of the additional evidence submitted by the assessees and the constraints they faced in providing it within the given timeframe. Emphasizing the need for fairness and thorough examination of the documents, the Tribunal remanded the case to the Assessing Officer for a fresh decision in accordance with the law. All appeals were allowed for statistical purposes only.
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2012 (9) TMI 1161
Issues involved: Payment of disputed tax, revival of appeal cases, interests of justice.
In the judgment, the Supreme Court addressed the issue of payment of disputed tax u/s 31 of the A.P. Value Added Tax Act, 2005. The petitioner had paid 12.5 per cent of the disputed tax, albeit not within the granted time. The court, in the interests of justice, directed the Appellate Deputy Commissioners to revive and dispose of the petitioner's appeal cases from the years 2006-07 and 2004-05 on merits after giving due notice to the parties. It was emphasized that the court did not evaluate the merits of the grounds raised in the special leave petitions.
The Supreme Court, in its judgment, highlighted the importance of justice and fairness in dealing with tax disputes. Despite the delayed payment of the disputed tax amount, the court deemed it appropriate to instruct the Appellate Deputy Commissioners to revive and adjudicate the petitioner's appeal cases from specific years. This decision was made to ensure that the parties involved have the opportunity to present their cases and have a fair hearing before the appellate authorities. The court clarified that its directive did not imply an assessment of the merits of the arguments presented in the special leave petitions.
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2012 (9) TMI 1160
Title: Supreme Court of India dismisses special leave petition
Summary: The Supreme Court of India, in a judgment delivered by S.H. Kapadia, CJ. and A.K. Patnaik, J., dismissed a special leave petition under Article 136 of the Constitution of India as it was deemed not fit for interference. The respondent did not have representation during the hearing.
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9911796707
