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Case Laws
Showing 141 to 160 of 604 Records
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2005 (5) TMI 553 - ITAT MUMBAI
Cash credits ... ... ... ... ..... rts have accepted immunity in the case of Vinod Goel then question of taxing the sum received from the NRE account of Vinod Goel by the assessee would not arise. Therefore, the issue is set aside into the file of CIT(A) to enquire into the following aspects (1)Whether the finding of honourable Bombay High Court in the order given in review petition as per numbers given in this order have become final or have been reversed in favour of Shri Vinod Goel. (2)In case the findings of the honourable Bombay High Court are final, then whether additions of the impugned sum can be made under section 68 or 69. (3)Notwithstanding any immunity, whether assessee can explain otherwise the sum credited in his books under section 68 or credited in his bank account under section 69. 13. The CIT(A) will consider the above aspects and decide the issue afresh. The matter is restored to his file to consider the above issue. The appeal of the assessee is, therefore, allowed for statistical purposes.
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2005 (5) TMI 552 - ITAT MUMBAI
Business expenditure - disallowance of interest incurred on capital account in respect of incomplete projects - HELD THAT:- Relying on the decision of the Supreme Court in India Cements Ltd. v. CIT [1965 (12) TMI 22 - SUPREME COURT] and Bombay High Court in Calico Dyeing & Printing Works v. CIT[1958 (3) TMI 59 - BOMBAY HIGH COURT], the Court held that if the capital borrowed was used for business purpose in the relevant year of account, it did not matter whether the capital was borrowed in order of acquire a revenue asset or a capital asset and interest on the capital borrowed need to be allowed as a revenue expenditure u/s 36(1)(iii). In the present case, the issue is of a bit different dimension.
As rightly argued by the learned Commissioner, there is no dispute on the point that the finance cost booked by the assessee-company in its books of account is revenue in nature. The said expenditure need to be allowed as a deduction in computing the income of the assessee. Revenue admits this. The question is whether the expenditure need to be allowed in the relevant previous year itself; or it should be delayed till the completion of the project when the income is recognized from the said project. So there is no dispute on the basic question that the expenditure is revenue in nature.
Finance cost is also generally treated as an expenditure falling under this category. Therefore, in the Accounting Standard it has been suggested that in such cases, where the expenditure could not be attributed to a particular activity carried on by the assessee, the same may be allowed as a period cost. This issue of identity between the borrowed funds and the project works carried on by the assessee is one of the main thrust of arguments advanced by the learned counsel appearing for the assessee. It is basically a question of fact. As argued by the learned Commissioner, it may not be altogether impossible to work out the quantum of borrowed funds utilized for a project if the accounts are maintained by the assessee in such a befitting manner. Such an attribution can be made, may be at the cost of a cumbersome exercise. There is a point in the argument of the revenue that such expenditure should be deferred till the completion of the project.
Therefore, we have to see that in spite of various possible dimensions and manifestations of the issue, the various Benches of the Tribunal has taken a consistent view that the claim made by the assessee for deduction of finance cost by way of interest is in conformity with the Accounting Standard-7 issued by the Institute of Chartered Accountants of India. The said Accounting Standard also does not prohibit the treatment of such expenditure as period cost where the expenditure is general in nature. Therefore, we hold that the ground raised by the revenue is liable to be dismissed.
In result, this appeal is dismissed.
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2005 (5) TMI 551 - ITAT MUMBAI
TDS u/s 194C Or section 194-I - contractor/sub-contractor - Payments made by the advertising agents to the hoarding owners - HELD THAT:- Section 194-I provides that a person who is responsible for paying to any person any income by way of rent shall deduct income-tax thereon at the rate prescribed therein. Explanation (i) to section 194-I defines rent to mean any payment by whatever name called, under any lease, sub-lease, tenancy or any other agreement or arrangement for the use of any land or building together with furniture, fittings and land appurtenant thereto. In the case before us, the assessee has taken and acquired only the right of displaying advertisement to hoarding sites belonging to others. It is, therefore, clear that what is being used by the assessee in the case before us is only the right of displaying the advertisement.
In our view, section 194-I is more appropriately applicable to a case where rent is paid in consideration for the use of any land or building, etc., under any lease, sub-lease, tenancy, etc. In other words, there should be a live link between payment of compensation known as rent and the use of land or building and this live link is by the lease, sub-lease, tenancy, etc. This live link is absent in the case before us. We are, therefore, unable to say that the charges, which were paid by the assessee, were paid in consideration of mere use of any land or building. It was paid for commercial exploitation of display rights. Thus, the order of ld. CIT(A) is confirmed.
All the three appeals filed by the revenue are, therefore, dismissed.
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2005 (5) TMI 550 - ITAT MUMBAI
Technical know-how expenditure, Business expenditure, Business disallowance - Interest, etc., payable outside India,
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2005 (5) TMI 549 - ITAT MUMBAI
Penalty - For concealment of income ... ... ... ... ..... without making a finding under which circumstances such a statement was given by the assessee. 18. Therefore, it is our considered view that the penalty order passed by the Assessing Officer is at least premature. The Assessing Officer has not considered the materials available before him. He was guided by the statement of the assessee. Therefore, the impugned order of penalty is not free from arbitrariness. In the circumstances, it is our considered view that the matter should go back to the assessing authority so that he could examine the evidences before him and come to a proper finding of fact as well as conclusion in accordance with law. The orders of the lower authorities are, therefore, set aside. 19. This file is accordingly sent back to the assessing authority for fresh disposal in accordance with law after affording an effective opportunity of being heard to the assessee. 20. In result, the appeal filed by the assessee is treated as allowed for statistical purpose.
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2005 (5) TMI 548 - ITAT MUMBAI
Business expenditure, Deductions - Profit and gains from industrial undertakings or enterprises engaged in infrastructure development, etc.
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2005 (5) TMI 547 - ITAT MUMBAI
Interest chargeable, Rectification of mistake ... ... ... ... ..... has waived the interest. (3)The Assessing Officer is competent to rectify the omission with an order under section 154 to charge interest if he has already not charged or incorrectly charged or not correctly specified in the assessment order or DN. (4)The CIT(A) has co-terminus power with Assessing Officer and if he admits appeal on the question of chargeability of interest, he too can correct the error crept in the order of Assessing Officer in respect of chargeability of these interests, if otherwise the default is proved. Therefore, we set aside the case to the file of CIT(A) for verifying the facts about defaults of the nature as mentioned in sections 234A, 234B and 234C and rectifying the error crept in the assessment order by not correctly charging the interest. He will quantify the interest chargeable under these sections and direct the Assessing Officer, accordingly, to recover the same. 40. In the result, the appeal of the revenue is allowed for statistical purpose.
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2005 (5) TMI 546 - ITAT MUMBAI
Deductions, Business expenditure, Foreign exchange - Special provision consequential to changes in rate of exchange of currency,
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2005 (5) TMI 545 - ITAT MUMBAI
Penalty - For concealment of income ... ... ... ... ..... gh Court that penalty is leviable in a case where returned income and assessed income both are loss and the decision of Hon rsquo ble Punajb and Haryana High Court in Prithipal Singh and Co. rsquo s case (supra) was distinguished we have to respectfully follow the decision of Hon rsquo ble Bombay High Court being jurisdictional High Court. The concept that if two views are possible then the one, which is favourable to the assessee should be followed would be applicable beyond the jurisdiction of Bombay High Court and not within. Thus, we hold that the assessee had filed inaccurate particulars of income and that within the jurisdiction of Hon rsquo ble Bombay High Court the decision of Chemiequip Ltd. rsquo s case (supra) would be applicable and penalty for concealment would be levied in a case where assessed income is a reduced loss, we decline to interfere with the order of CIT(A) and dismiss the appeal of assessee. 16. In the result, the appeal of the assessee is dismissed.
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2005 (5) TMI 544 - ITAT DELHI
Exemptions - Educational institutions ... ... ... ... ..... ). On this proposition, we do not have any quarrel. However, the evaluation of the Assessing Officer has to be based on facts so as to judge whether the institution existed during the year solely for educational purpose and not for profit. In making such evaluation, the issues which are settled and for which there is no departure from facts found in the earlier years, the Assessing Officer cannot take a different view than that taken in the earlier years. In other words, what is of importance is that the exemption under section 10(22) for a particular year cannot be denied unless there is no new fact or legal position which has been noticed. In the instant case, as we have discussed in the earlier paragraphs, no such position has been made out by the revenue and, thus, the reference made by the Assessing Officer to the decision of the Apex Court in the case of Aditanar Educational Institution ( supra) is misconceived. 14. In the result, the appeal of the revenue is dismissed.
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2005 (5) TMI 543 - ITAT MUMBAI
Unexplained Cash credits - source of source is not properly explained - deemed dividend u/s 2(22)(e) - HELD THAT:- It is difficult to understand as to how is this relevant for examining explanation of a credit in the case of this assessee. The law is very well settled that while examining applicability of section 68, source of source cannot be investigated, but then this is precisely what the CIT(A) ended up doing. The factum of borrowing can also not be in dispute as the assessee has borrowed the money by way of an account payee cheque. The identity can not be said to be in doubt either. The means of the lender have been proved inasmuch as he was clearly in possession of this fund received from the shareholders. The CIT(A) was, therefore, clearly in error in confirming the addition under section 68 on account of money received from Cyberspace Films Private Limited.
In any event, the purpose of section 2(22)(e) is to tax the receipts from the company which are out of the accumulated profits available for distribution of dividends. The share forfeiture amount is not available for distribution of dividend, and, therefore, a borrowing from the company, when such a company has no amount available for distribution of dividend, cannot be treated as deemed dividend either. The addition fails on this test as well. Coming to the addition, we have noticed that not only the source of this amount is free from doubt, even the source of source is clearly established. As evident from the paper book filed before us, the source of money was withdrawal from the saving bank account and maturity of fixed deposit. The copies of bank accounts and copies of accounts have also been filed before, and perused by us. The income-tax return and the certification regarding her earnings is also placed in paperbook before us.The identity of lender and the means of lender are, in our humble understanding, beyond any doubt. The factum is not in dispute either. In these circumstances, CIT(A) was also in error in confirming the addition u/s 68 in respect of money received from Mrs. Prity Dadlani. We cannot approve this action either.
Thus, we deem it fit and proper to direct the Assessing Officer to delete the impugned additions. The assessee gets the relief accordingly. In the result, the appeal is allowed
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2005 (5) TMI 542 - ITAT MUMBAI
Capital gains ... ... ... ... ..... DVO. As against this, the ld. AR of assessee has contended that if for determination of FMV as on 31-3-1996 the matter is to be sent back to Assessing Officer, then instead of referring the matter to DVO, the Assessing Officer should consider the valuation report of Government approved valuer and determine the FMV and that the assessee will obtain the Valuation report of Government approved valuer and furnish the same to Assessing Officer. 43. We have considered the rival contentions as also the relevant material on record. Considering all the facts and circumstances of the case, we direct the Assessing Officer to permit the assessee to obtain the Government approved valuer rsquo s report regarding valuation of this property as on 31-3-1996 and furnish the same before Assessing Officer, who will consider the same and determine the FMV in accordance with law. We order accordingly. 44. In the result, revenue rsquo s appeal No. 03/Mum/2002 is allowed in part as indicated above.
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2005 (5) TMI 541 - CESTAT, NEW DELHI
Refund - Unjust enrichment - Application of ... ... ... ... ..... ppeals). The appellants should have been afforded effective opportunity to prove that the bar of this principle did not cover their case, for having not passed on the incidence of duty to the buyers or that they were covered by the Proviso (c) to Section 11B(2) of the Act, but it has not been done by the learned Commissioner (Appeals). Therefore, in the interest of justice, for examining the above referred submission of the learned counsel, the matter deserves to be sent back to the adjudicating authority. 15. emsp In view of the discussion made above, the impugned order invocing the principle of unjust enrichment is upheld, but the case is sent back to the adjudicating authority for affording an opportunity to the appellants to prove that their case on merits is not covered by this principle or is saved by proviso (c) to Section 11B(2) of the Act and thereafter to pass order, as per law. 16. emsp The appeal of the appellants accordingly stands disposed of in the above terms.
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2005 (5) TMI 540 - CESTAT, KOLKATA
Asbestos Cement Sheets - Exemption - Demand - Clandestine removal ... ... ... ... ..... ith dispatch figures 27-1-97, 17-2-2003 and 28-8-2001 and charts of raw material consumption needs to be considered. (iii) The charges made in the show cause notice are grave and required to be considered in detail along with the submission in defence and the total quantum of GS manufactured and cleared without payment of duty is required to be established beyond all reasonable doubts. (iv) The issue of duty liability, if any, on GS sheets requires de novo consideration and adjudication. (d) Since duty demands on ACS is not being upheld, and duty demands on GS need de novo consideration and determination, the penalties and interest liabilities if any need to be re-determined in light of the demand if any on GS sheets as determined in de novo proceedings the penalty as imposed and interest liabilities are therefore set aside and all appeals in this connection remitted back. 3.1 emsp Appeal disposed off for de novo adjudication in above terms. (Pronounced in Court on 27-5-2005)
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2005 (5) TMI 539 - CESTAT, KOLKATA
Cenvat/Modvat - Inputs ... ... ... ... ..... b-heading 8207 of the Central Excise Tariff Act, 1985 and reasons cited for such disallowance is that these items are used as a parts and accessories of any machine equipment etc. which are used in the production process and hence the same cannot be held as input. He submits that the Commissioner has also stated that since the appellant have not established the use of these items as spares and accessories the credit of these items are also not allowed under Rule 57Q. He submits that these items were inputs to the machine that were manufactured by the Appellant and the appellant has availed the credit on these items as input to the machines. He submits that this is covered by Rule 57Q. He further submits that Notification No. 33/94-N.T. does not provide for the mentioned of PLA entry on that basis the Modvat benefit cannot be denied. Therefore the ld. Consultant submits that the appeal may be allowed. 3. emsp Ld. JDR supports the impugned order. (Pronounced in the open court.)
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2005 (5) TMI 538 - CESTAT, NEW DELHI
Demand - Limitation - Invocation of extended period - Penalty - Imposition of ... ... ... ... ..... said amending Act, 1994 consciously brought in the expression ldquo offences and penalties rdquo in Section 3(3) of the said Act. The cause of action for imposing the penalty and directions of confiscation had arisen in the year 1987, and therefore it was held that the amended Act had no application to the facts of the case. Even in the present case for the relevant period from 19-8-89 to 18-9-90 being prior to said amendment, penalty could not have been imposed under the amended provisions of Section 3(3). Therefore, following the ratio of the decisions in Orient Fabrics Pvt. Ltd. and Pioneer Silk Mills Pvt. Ltd. (supra), we hereby set aside the penalty of Rs. 5 lakhs imposed under the impugned order while upholding the same on all other counts. The appeal is, accordingly, partly allowed by setting aside the penalty of Rs. 5 lakhs imposed on the appellant thereunder and modifying the impugned order only to that extent. (Dictated and pronounced in the open Court on 5-5-2005).
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2005 (5) TMI 537 - CESTAT, BANGALORE
Classifiaction - Demand - Intermediate product ... ... ... ... ..... , the Revenue in this case has relied on an expert opinion of Dr. N. Ramachandran, Assistant Professor in-charge of Mechanical Workshops, Regional Engineering College, Calicut. We reproduce an extract of his cross-examination - ldquo Qn. 9. What do you understand by the term hauling? Ans. Lifting sand and throwing to the side. Qn. 10. If I said that hauling means pulling other objects would that be correct according to you? Ans. No. rdquo 24. emsp After going through the above record, we are not inclined to give much credence to his opinion. Moreover, on the same issue, the Commissioner of Central Excise and Customs, Cochin has taken a different stand after revisiting the factory. Moreover, there is absolutely no evidence for suppression of facts by the Appellants. Hence, the longer period is not invocable. Under these circumstances, we do not find any merit in the impugned order. Therefore, we allow the appeal with consequential relief. (Pronounced in open Court on 9-5-2005)
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2005 (5) TMI 536 - CESTAT, MUMBAI
Demand - Clandestine removal - Evidence - Penalty - Quantum of ... ... ... ... ..... sence of the same in their factory. Apart from the above, there is ample corroboration in the shape of statements of various persons and director, which statements are inculpatory and corroborate each other. As such, I am of the view that the finding of the clandestine removal against the appellants has been correctly arrived at by the authorities below. The demand of duty is accordingly confirmed. 6. emsp However, it is seen that the appellants had deposited the amount of Rs. 50,000/- (Rupees fifty thousand only) even before the issuance of the show cause notice. Taking the said fact into consideration, I reduce the personal penalty imposed under Section 11AC from Rs. 3,06,855/- (Rupees three lakh six thousand eight hundred and fifty five only) to Rs. 2.00 lakhs (Rupees two lakhs only). Separate penalty of Rs. 40,000/- imposed under Rule 173Q is however, set aside. For the above modification in the quantum of penalties, the appeal is otherwise rejected. (Pronounced in Court)
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2005 (5) TMI 535 - CESTAT, BANGALORE
Custom House Agent’s Licence - Suspension of ... ... ... ... ..... y applicable to the facts of the case, yet he would like to get a report in the matter. 3. emsp On careful consideration of the submissions, we notice that appellant rsquo s operation at Custom House Vizag has been suspended. The appellant has been given separate licence at Vizag. The impugned order clearly mentions about a separate licence having been issued to the appellant at Chennai, Calcutta and Mumbai Custom Houses. The ground for suspension is that the appellant has committed offence at Chennai Custom House and the suspension at Chennai Custom House has been intimated by CC Chennai vide F. No. 669/CHA dt. 6-4-2005. This cannot be a ground for suspension of licence at Vizag as held by the Tribunal in both the cited cases. Respectfully following the ratio of the cited cases, the order of suspension dt. 29-4-2005 in F.No. 82/6/86-IMP (CHA) dt. 29-4-2005 is set aside with immediate effect. Registry to issue the order out-of-turn. (Dictated and pronounced in the open Court)
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2005 (5) TMI 534 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs, CR coils ... ... ... ... ..... But in my view this could not be made ground for disallowing the Modvat credit to the appellants. The appellants have received the goods under the duty paid invoices issued by the registered dealer M/s. N.V. Enterprises (P) Ltd. For any violation of the rules by the dealers, the appellants could not be penalised who were the bona fide purchaser of the goods. There is no dispute that the goods purchased by them were duly paid and they had utilised in the manufacture of the final product. Ld. Counsel has also produced a copy of the order passed by the Tribunal in the appeals of the trader M/s. N.V. Enterprises (P) Ltd. E/1979-83/04-NB(SM) which shows that even penalty against the trader had been set aside which was imposed by the authorities below under sub-rule (bbb) of Rule 173Q(1) of the Rules. Therefore, the impugned order against the appellants cannot be sustained and is set aside. The appeal of the appellants accordingly stands allowed. (Order dictated in the open Court)
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