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Income Tax - Case Laws
Showing 61 to 80 of 192 Records
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2005 (2) TMI 468
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... ... ..... orities. 5. We have heard the rival submissions and perused the materials available on record. Sub-s. (3) of s. 192 provides that at the time of making any deduction, the person responsible can increase or reduce the amount to be deducted under this section for the purpose of adjusting any excess or deficiency arising out of any previous deduction or failure to deduct during the financial year. In this case, the person responsible for deducting the tax had made good the deficiency before close of the financial year. Therefore, we are of the opinion that the learned CIT(A) had grossly erred in confirming the levy of interest under s. 201(1A) of the Act on the responsible person. Following the decision of Tribunal, Mumbai Bench lsquo H rsquo , in the case of Vinsons vs. Third ITO, we reverse the order of the learned CIT(A). The AO is directed to delete the interest charged under s. 201(1A) of the Act for both the years. 6. In the result, the appeals of the assessee are allowed.
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2005 (2) TMI 466
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... ... ..... e case of CIT vs. Smt. Durgawati Singh (1998) 234 ITR 249 (All). 10. We heard the rival submissions and also perused the record. We find that before completion of assessments, the returns had been revised by both the assessees, though the returns filed were beyond the limitation prescribed under law. However, the facts of the case are that both the persons had categorically admitted that the land was purchased in their names by Shri Ram Kishan Agarwal and, in fact, both the persons were the benamidars of Shri Ram Kishan Agarwal. Shri Ram Kishan Agarwal had voluntarily filed the return showing the capital gain earned in the names of these two persons and his return has also been accepted under the VDIS by the Department. Therefore, we agree with the view of the learned CIT(A) that this is a clear case of double taxation. Therefore, the order of the learned CIT(A) is sustained for the reasons given therein. 11. In the result, both the appeals filed by the Revenue are dismissed.
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2005 (2) TMI 464
Salary To Partner ... ... ... ... ..... consideration. 8. By considering the totality of facts and circumstances of the case, we are of the view that the said brokerage was settled and finalised and paid during the assessment year under consideration. The assessee is following the mercantile system. Therefore, the same is allowable during the assessment year under consideration and we delete the addition of Rs. 90,577. This ground is allowed in favour of the assessee. 9. The third ground is pertaining to disallowance of Rs. 18,356 pertaining to differential amount of interest of M/s Data Enterprises. 10. After considering the rival submissions, we agree with the orders of the lower authorities for the reasons mentioned therein. Thus, this ground has no merit and the same is dismissed. 11. Ground Nos. 4 and 5 are withdrawn by the learned Authorised Representative, so the same are dismissed as withdrawn. 12. In the result, appeal filed by the assessee is partly allowed as stated above and announced in the open Court.
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2005 (2) TMI 463
Method Of Accounting ... ... ... ... ..... the capital contribution of a partner for constituting the firm, the stock-in-trade should be valued only at cost price unless the market price was lower in which case it would be open to the proprietor to adopt the lower of the two. The facts of case relied upon by the ld. DR in the case of Rajlaxmi Trading Co. are distinguishable. Therefore, the Assessing Officer is directed to value the stock-in-trade at cost or market price whichever is lower after obtaining requisite details from the assessee. This issue is restored to the file of the Assessing Officer with the direction that he should readjudicate upon this issue in the light of the direction contained in this order after allowing an opportunity of being heard to the assessee. 6. Ground Nos. 2 and 3 have not been pressed by the assessee during the course of hearing. Therefore, the same are being dismissed as having not been pressed. 7. In the result, the appeal of the assessee is partly allowed for statistical purposes.
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2005 (2) TMI 462
Voluntary Retirement ... ... ... ... ..... section 89(1) are satisfied and the assessee is entitled to relief under section 89(1) in accordance with the provisions of that section. There is no dispute about calculation of relief under section 89(1) also. Therefore, there is no merit in issue raised by the revenue and the appeal of the revenue is dismissed. 18. In all other appeals filed by the revenue, mentioned above, the tax effect is less than Rs. 1,00,000 and therefore in view of the Instruction No. 1979 read with Instruction No. 1985 mentioned in the preceding paras, the revenue is prohibited from filing the appeal before the Tribunal and on this ground all the appeals of the revenue are dismissed. Even on merit, in view of the reasons given in preceding paras, all the appeals of the revenue are dismissed as all the assessees are entitled to exemption under section 10(10C) of the I.T. Act as well as relief under section 89(1) of the I.T. Act. 19. In the result, all the appeals filed by the revenue are dismissed.
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2005 (2) TMI 461
Notice U/S 148 ... ... ... ... ..... and the AO is bound to dispose of the same by passing a speaking order. 4.4 In the light of the ratio decidendi of the apex Court cited supra, we consider that the additional grounds of appeal filed by the assessee having been admitted deserve to be allowed too. On this score itself, we declare, the facts and circumstances being in favour of the assessee, the initiation of proceedings under s. 148 of the Act and reopening under s. 147 of the Act are invalid, the reasons for reopening of the assessment specifically requested for by the assessee having been not given by the Department. Such reasons alone would form the basis for validity of the assessment but the assessee has been denied the opportunity to argue against validity of such reopening of assessment. 4.5 Hence, the reopening having been declared as bad in law, there is no necessity for us to go into the merits of the case which has become infructuous. 5. In the result, the appeal of the assessee is allowed in limine.
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2005 (2) TMI 460
Appellate Tribunal ... ... ... ... ..... admit the appeal and grant stay in their favour, when in reality as per the Supreme Court judgments as interpreted by the ITAT Delhi D Bench in the case of Indian Airlines, the suspension of proceedings is in fact in the hands of the assessees themselves. Similar is the situation, if they approach the Authority for Advanced Ruling as per section 245RR of the Income-tax Act. Chapter XIX-B of the Income-tax Act is not being availed by the assessee. 19. In the result, we apply the decision of the Hon ble Supreme Court in the cases of Oil and Natural Gas Commission and Mahanagar Telephone Nigam Ltd. and the decision of the Hon ble Rajasthan High Court in the case of State of Rajasthan and hold that. This Bench does not have the power or authority to admit these appeals in the absence of clearance as contemplated by the Supreme Court. As we arc unable to admit these appeals at this stage, no stay can be granted. Thus, we have to necessarily dismiss these Stay Petitions in limine.
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2005 (2) TMI 459
Appellate Tribunal ... ... ... ... ..... against separate order levying interest and nothing more. This legal finding is based on the principle that right of appeal is a creature of statute and there can be no right of appeal unless it is conferred by the statute. Since no right of appeal was conferred on the assessee against an independent order of the Assessing Officer charging interest, it was held that no appeal lies against such order. 12. In view of the above discussion, we are of the view that appeal is not maintainable against the order of the Assessing Officer under section 154 rectifying the original order under section 158BC directly to the Tribunal since no right of appeal has been conferred upon the assessee against such order under section 253(1) of the Act. The appeal would lie only before the CIT(A) under section 246A. The assessee may file an appeal before the CIT(A) with a request for condonation of delay if so advised. 13. In the result, the appeal of the assessee is dismissed as non-maintainable.
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2005 (2) TMI 458
Deduction of tax at source ... ... ... ... ..... to have been earned in the course of buying and selling the goods. The fact that these schemes do not form part of the agreement, itself suggests that they are not permanent and the profits of the dealer do not predominantly depend on these schemes. There may be a period during which no scheme may be in operation at all. But even in absence of a scheme, the course of buying and selling goes on. The quantum of incentives earned by a dealer may be dependant on the quantum of certain sales, but the normal buying and selling goes on irrespective of the schemes and, hence, these incentives cannot be termed as commission in the normal course of buying and selling the goods as envisaged in s. 194H of the Act. Accordingly, in the light of the foregoing discussion, we hold that the assessee had not made any commission payment to any person and hence there was no question of deducting any tax at source under s. 194H of the Act. 17. In the result, the appeal of the assessee is allowed.
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2005 (2) TMI 457
Double Taxation Relief ... ... ... ... ..... ween the Government of India and HAL to say that the royalties were paid not by the Government of India. In fact, in the asst. yr. 2000-01, it is stated that the CIT(A) held that tax was to be paid only at the rate of 15 per cent and this view was accepted by the Department and no appeal was filed. In respect of the asst. yr. 1999-2000, the AO himself accepted the payment of tax at the rate of 15 per cent vide intimation passed under s. 143(1)(a). Thus, for subsequent years, the IT Department itself appears to have accepted that the payment was made by the Government of India and, therefore, the tax payable was only 15 per cent. 6. For the above reasons, we hold that it was in fact the Government of India which paid the royalty and, therefore, the tax payable is only 15 per cent as per art 13.2(i)(aa) of the DTA betweenIndiaandUK. 7. In the result, the appeal of the assessee for the asst. yr 1997-98 is allowed and that of the Department for the asst. yr. 1998-99 is dismissed.
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2005 (2) TMI 456
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... ... ..... d limits. In the case of UCO Bank Ltd., the Hon rsquo ble Supreme Court again considered the circular issued by the Board with regard to interest on sticky loans and concluded that the circular was binding and it recognised the right of an assessee not to account for income on accrual basis where the recovery of interest on debt is doubtful. In the present case, it is clear from the correspondence available on record, that the recovery of the interest was doubtful. Even the assessee did not make entry in his books of account, considering that no interest income as having accrued to him. In these circumstances, we are of the view that the CIT(A) was fully justified in coming to the conclusion that, the addition made by the AO on account of accrued interest was not proper. We do not find any ground to interfere with the order of the learned CIT(A) and confirm the same. Accordingly, the appeal of the Revenue is dismissed. 9. In the result, the appeal of the Revenue is dismissed.
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2005 (2) TMI 455
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... ... ..... d to be deleted. Additional ground of appeal raised by the assessee does not require any consideration in view of the above. 11. As far as the asst. yr. 1994-95 is concerned, it is not in dispute that in respect of materials worth Rs. 5,94,818, there was delivery to the assessee only after 31st March, 1993, i.e., after the end of the previous year. In such circumstances, even the theory of passive user cannot sought to be put forth by the assessee. The action of the Revenue authorities in this regard is, therefore, upheld. As far as the depreciation on materials worth Rs. 3,64,284 is concerned, the materials reached the assessee at4.00 P.M.on31st March, 1994, and this was enough to come to the conclusion that the materials were ready for use. Consequently on the theory of passive user, depreciation on materials worth Rs. 3,64,284 is directed to the allowed and the appeal of the assessee for asst. yr. 1994-95 is partly allowed, while the appeal for the year 1993-94 is allowed.
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2005 (2) TMI 454
Charitable Trust ... ... ... ... ..... t does not contemplate such reopening of the assessment. 9. Having examined the facts of the case in the light of the aforesaid judicial pronouncements, we are of the view that once the assessee has filed Form No. 10 stating the object of the accumulation of funds in time and thereafter the complete minutes of the, meetings containing the specified object of the accumulation of funds before the conclusion of the assessment proceedings, it meets the requirement of law. If the Revenue doubted the genuineness of the documents, they should have brought some cogent material on record to disprove the claim of the assessee. On the basis of mere suspicion, the claim of the assessee cannot be rejected. We, therefore, do not find ourselves in agreement with the order of the CIT(A) and we set aside his order and direct the AO to allow the claim of the assessee. Accordingly, the addition made on this count is hereby deleted. 10. In the result, the appeal filed by the assessee is allowed.
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2005 (2) TMI 453
Failure To Deduct Tax At Source ... ... ... ... ..... ture. Out of aggregate amount of Rs. 7,14,37,140 shown as handling charges, how much was the amount to which provisions of s. 194H were applicable, is not shown in the penalty order. Was difference more than Rs. 49,25,931 admittedly paid as commission to sub-agents and on which TDS was admittedly deducted? If more, then what was that amount which was treated as commission and not merely book entry? Nothing is clear from the order imposing penalty of Rs. 1,79,374. If it is for short deduction of tax at source, then what is the amount on which there was short deduction and how much? The levy of penalty before answering above questions was not justified. This is another ground on which impugned order is sustainable. 11. In the light of above discussion, I hold that the Revenue authorities were not justified in imposing penalty on the assessee. The same has rightly been cancelled by the CIT(A). Accordingly, the impugned order is upheld. 12. In the result, the appeal is dismissed.
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2005 (2) TMI 452
Business Expenditure ... ... ... ... ..... lt, we answer the question referred to the Special Bench in the manner as indicated above, and thus held as under (i) The expenditure towards development fee paid to Calcutta Stock Exchange Association Limited is of capital in nature. (ii) The expenditure towards fee for operating on the floor paid to Calcutta Stock Exchange Association is of revenue in nature. (iii) The expenditure towards admission fee as a dealer on OTC Exchange of India, and payment of technology cost for providing training to the assessee s employees paid to OTC Exchange of India are of revenue in nature. (iv) The expenditure towards non-adjustable deposit for admission as a Trading Member of the wholesale Debt market of National Stock Exchange of India and the expenditure towards Very Small Aperture Terminals (VSATs) paid to NSEIL are of revenue in nature. . Since there are other grounds of appeal in this case, the records will now be placed before the Division Bench for disposal in accordance with law.
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2005 (2) TMI 451
Business Expenditure ... ... ... ... ..... of the Hon ble Supreme Court, we dismiss the said ground No. 3 of the appeal relating to the asst. yr. 1999-2000. 17. The last issue left for being considered in the appeal pertains to ground No. 2 relating to the asst. yr. 2000-01. We find that the relief prayed for by the assessee in this ground is with respect to the computation of interest under s. 234C of the Act after giving full credit for the TDS certificates submitted during the assessment. We restore the issue to the file of the AO for computing the interest under s. 234C of the Act in accordance with law and after taking into account all prepaid taxes in the form of TDS and advance taxes. Accordingly, ground No. 2 of the appeal relating to the asst. yr. 2000-01 is treated as allowed for statistical purposes. 18. In the result, the appeals relating to the asst. yr. 1998-99 (ITA No. 59/Kol/2004), 1999-2000 (ITA No. 667/Kol/2004) and 2000-01 (ITA No. 788/Kol/2004) stand partly allowed in the manners referred to above.
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2005 (2) TMI 450
Payment To Non-Residents ... ... ... ... ..... will prepare all the designs and drawings necessary for implementing the Water Features and also assist the Indian company in actual erection and commissioning of water features. We thus find that from the very inception of preparing schematic designs and drawings till the actual implementation and commissioning of the water features the American company was intimately connected with the project and in fact the whole project was intended to be conducted at the behest direction and supervision of the American company. In the circumstances the decision of the Coordinate Bench in the case of CESE Ltd. cannot be applied. We, therefore, agree with the view taken by the CIT(A) that the amounts payable to American company were fees for included services within the meaning of article 12(4)(b) of the DTAA with the USA and therefore liable for withholding of tax under section 195 of the Act. Accordingly, we dismiss the appeal of the assessee. 10. In the result, the appeal is dismissed.
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2005 (2) TMI 449
Reason To Believe ... ... ... ... ..... caped assessment. The underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the IT authorities after the assessment has been completed. 15. Having regard to the facts and circumstances of the case, we find that there is no reason to believe that income has escaped assessment and reopening has been done solely to re-estimate the hedging loss. This, in our opinion, cannot be done because the cl. (c) of Expln. 2 to s. 147 is to be read in conjunction with main s. 147 which continues to contain the phrase AO has reasons to believe . In this case, there is no reasons to believe but mere reasons to suspect that the estimate made by the AO in the original assessment was on the lower side and in the assessment reframed, the AO on same facts made a higher estimate, which is not permissible. We, therefore, incline to uphold the order of the CIT(A). 16. In the result, the appeal is dismissed.
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2005 (2) TMI 448
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... ... ..... that the appellant has nowhere produced evidence to prove that Shri N. Mahalingam was a regular employee of the company. On the contrary, from the facts brought on record, it appears he was only authorized to operate the bank accounts of the company. Unless a person is a regular employee of the company and there is a master and servant relationships, such claims are not allowable. We, therefore, decline to interfere. 37. The appellant s last ground of appeal is against charging of interest under s. 234B of the Act on the ground that the AO did not specifically direct this in his assessment order. We are of the view that Supreme Court s order in the case of CIT vs. Anjum H. Ghaswala has made charging of interest mandatory Non-mention of the direction in the assessment order by the AO is only a technical omission which cannot prevent the mandatory provisions of the Act to come into operation. We, therefore, decline to interfere. 38. In the result, the appeal is partly allowed.
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2005 (2) TMI 447
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... ... ..... mes to the help of the assessee. The Hon ble Supreme Court has held as under ....The phrase prejudicial to the interests of the Revenue has to be read in conjunction with an erroneous order passed by the AO. Every loss of revenue as a consequence of an order of the AO, cannot be treated as prejudicial to the interests of the Revenue, for example, when an ITO adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the ITO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the ITO is unsustainable in law. In view of the decision of the apex Court, we hold that on the given facts and circumstances of the case, the learned CIT was not justified in invoking the jurisdiction under s. 263. Accordingly, the order of the learned CIT is quashed. 7. In the result, the appeal filed by the assessee is allowed.
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