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Showing 81 to 100 of 662 Records
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2007 (10) TMI 641 - DELHI HIGH COURT
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... ... ..... on 115JA of the Act treating the same as revenue expenditure?" 5. The Tribunal has come to the conclusion, and we think rightly, that the expenses incurred by the assessee on software used in its computers, is a revenue expenditure. It is well-known that the software used in computers gets obsolete in a short span of time and in any case needs to updated from time to time. It, therefore, cannot be said to be an asset of enduring nature. 6. Learned counsel for the revenue has brought to our notice section 38 of the Income-tax Act, 1961 as amended which suggests that know-how, patent, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets acquired on or after 1-4-1998 and therefore are entitled to depreciation. 7. The amendment to section 32 is not retrospective and we do not see how it assists learned counsel for the revenue. 8. In our opinion, no substantial question of law arises. 9. Dismissed.
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2007 (10) TMI 640 - ITAT MUMBAI
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... ... ..... 1961 and thereafter, it was reopened under s. 147 of the IT Act, 1961. Since the original return filed by the appellant for both the years were accepted under s. 143(1) of the IT Act, 1961, there is no question of application of mind of the AO at the time of processing of return under s. 143(1) arises and thus, there is no question of change of opinion arise at the time of proceedings under s. 147 as argued by Mr. Gandhi. Therefore, this ground of appeal for both the years are dismissed." 20. We have heard the parties. In our view, the learned CIT(A) has correctly decided the issue against the assessee. His order is covered by the judgment of Hon'ble Supreme Court in Asstt. CIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 210 CTR (SC) 30 (2007) 291 ITR 500(SC). In this view of the matter, ground No. 5 taken in his appeal for asst. yrs. 1996-97, 1998-99 and ground No. 4 in asst. yr. 1999-2000 is dismissed. 21. All the appeals filed by the assessee are dismissed.
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2007 (10) TMI 639 - DELHI HIGH COURT
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... ... ..... as the Tribunal. The Tribunal had followed the order of the CIT(A). We find that the CIT(A) had looked into the question whether the rental income received by the assessee is required to be assessed under the head ‘Income from house property’ or under the head ‘Business income’ as claimed by the assessee. The CIT(A) held that two views are possible in this regard and since there is no clear and definite inference that can be drawn one way or the other, it could not be said that the assessee had concealed its income or furnished inaccurate particulars. It was held that the evidence led by the assessee could not be said to be mala fide or false. The Tribunal has concurred with this finding. 5. On examining the orders of the authorities on merits, we are not persuaded to come to a different conclusion. No grounds have been made out for interfering with the concurrent orders of the CIT(A) and the Tribunal. No substantial question of law arises. Dismissed.
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2007 (10) TMI 638 - DELHI HIGH COURT
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... ... ..... e bank account of the Assessee. Section 158BA(3) provides that where any part of income referred to in sub-section (1) relates to an assessment year for which the previous year has not ended or the date of filing the return of income for any previous year has not expired and such income or the transactions relating to such income are recorded on or before the date of the search or requisition in the books of account or other documents maintained in the normal course, the said income shall not be included in the block period. As noted above, the cash income of the Assessee was recorded in the bank account of the Assessee before the date of search. We are of the opinion that neither the Commissioner of Income Tax (Appeals) nor the Income Tax Appellate Tribunal erred in coming to the conclusion that the Revenue should have assessed the income of the Assessee under Section 143(3) of the Act and not under Chapter XIV B of the Act. No substantial question of law arises. Dismissed.
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2007 (10) TMI 637 - ITAT MUMBAI
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... ... ..... 10 per sq.mt. as on 1.4.1981. The CIT(A) observed that this value has been quoted as nearest by the DVO himself in his valuation report. He, accordingly, directed the Assessing Authority to adopt the value at 1210 per sq. mt. before indexation and to re-compute the long term capital gains. 73. Even though we have no quarrel with the order of the CIT(A) on this point, we find that this appeal has become infructuous as the matter has already been determined by the Tribunal in the appeal filed by the assessee. As stated in paragraphs above, we have already directed the Assessing Authority to accept the fair market value as reported by the assessee-company. Therefore, on merit, even if we uphold the order of the CIT(A), we have to dismiss the appeal of the Revenue also on the ground that it has become infructuous 74. In result, the appeals filed by the Revenue are dismissed and the appeal filed by the assessee is party allowed. Order pronounced on this 29th day of October, 2007.
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2007 (10) TMI 636 - ITAT, DELHI
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... ... ..... ieve that the income had escaped assessment as per decision in the case of Kelvinator of India Ltd. (supra). Further, notice u/s 148 was issued after four years of the close of the relevant assessment year. Thus, it was incumbent on the Assessing Officer to show in the reasons recorded by him that any income escaped assessment due to error or omission on the part of the assessee in not disclosing all material facts relevant for assessment of this year. The assessment order does not show any error or omission on the part of the assessee in disclosing all material facts. Thus, the ratio of the decision of Hon'ble Bombay High Court in the case of Hindustan Lever Ltd. (supra) is also applicable. In view thereof, we are of the view that the learned CIT(A) was right in canceling the re-assessment. 14. In the result, the appeal of the revenue is dismissed on all grounds and the cross objections of the assessee are allowed. Order pronounced in the open court on 12 October, 2007.
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2007 (10) TMI 635 - HIGH COURT BOMBAY
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... ... ..... it is restricted to ₹ 5 lacs. and that the benefits are also available under Section 89 of the Act for amount beyond ₹ 5 lacs. .It was pointed out to us during the course of arguments that to avail of the benefit under section 10(10C) there has to be compliance of requirement of Rule 2BA of the Act which reads as under "The vacancy caused by the voluntary retirement (or voluntary separation) is not to be filled up." The relevant provisions of Clause 14 of the Staff Exit scheme reads as under "Vacancies Inasmuch as the Exit option is aimed at improving the level of morale in the Bank, and not at rightsizing, the Bank will have the discretion to fill up the vacancies caused by release of officers under the Exit Option." . Considering the above, if the Petitioners are aggrieved by the said clause, or the rule, it will be open to them to independently pursue whatever remedy they may have at law. . With the above observations, Petition disposed of.
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2007 (10) TMI 634 - ITAT AHMEDABAD
Short payment of Tribunal fee payable - No nexus of income between the order passed u/s 263 and the assessed income u/s 143(3) - CIT order does not relate to the computation of income - order passed by AO is erroneous and prejudicial to the interest of Revenue - HELD THAT:- The finding given in the order passed u/s 263 is not based on the computation of total income by the AO. Therefore, we are of the view that the objection raised by the Registry is not sustainable and the assessee has paid the fees in accordance with clause (d) of section 253(6) of the Act which was rightly applicable in the case of the assessee.
In our considered opinion this cannot be a sufficient ground for setting aside of the assessments. While making the assessment order, it is the satisfaction of the AO who made enquiry and it should be the touchstone to base the validity of the assessment order passed by him. The CIT cannot substitute his subjective view in place of the findings of the AO until and unless the view taken by the AO is unsustainable in law. No cogent material evidence was brought to our knowledge by the ld DR which may prove that the decision taken by the AO not to make the addition on both the issues in the case of the assessee was unsustainable in law.
We do not agree with the submission of the ld DR that no prejudice is caused to the assessee as the assessment order has been set aside on both the issues to be made de novo and the assessee will have another chance to agitate these issues again. If the action of the CIT is illegal, the order passed by CIT cannot be sustained. All the subsequent actions carried out on the illegal order are void.
The AO in the impugned case has decided not to make the addition on both the issues. The view taken by the AO was one of the possible views and cannot be regarded to be the view unsustainable in the law. By passing the impugned order CIT tried to impose his view on the AO. This tantamount to be the change of opinion, which is not permissible u/s 263. We are therefore, of the view that the case of the assessee is duly covered by the decision of the Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000 (2) TMI 10 - SUPREME COURT]. Respectfully following the same, we annul the order passed by the CIT u/s 263 by holding that the CIT was not correct in law in taking action u/s 263 and the order passed is illegal.
Since, we have already annulled the order passed by CIT u/s 263, we, therefore, are of the view that the other ground whether the addition can be made on merit or not become academic does not require adjudication.
In the result, the appeal filed by the assessee stands allowed.
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2007 (10) TMI 633 - DELHI HIGH COURT
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... ... ..... t and correct address of the broker had been supplied to the Assessing Officer but he did not go into this aspect of the matter. In any case, all the particulars of the broker were with the Assessing Officer, he could have summoned the broker to verify the genuineness of the transaction. However, he did not do so. 7. The response elicited by the Assessing Officer from the NSE to the effect that no transactions involving the broker on the floor had taken place can at best be an error by the broker for which the Assessee cannot be penalised. In fact, for this reason also, it was incumbent on the Assessing Officer to trace out the broker to verify the genuineness of the transaction, but he failed to do so. 8. We do not find any infirmity in the opinion expressed by the CIT(A) as well as the Tribunal that the Assessing Officer had erred in rejecting the claim of the Assessee regarding short-term capital loss. 9. No substantial question of law arises for consideration. Dismissed.
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2007 (10) TMI 632 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... hearing learned counsel for the appellant-revenue, we are of the considered view that the question with regard to employer employee relationship is necessarily a question of fact. There are categorical findings that the doctors were visiting the assessee and were on call. In other words, they were not in the service of the hospital in their capacity as employee and such doctors were free to attend other hospitals as and when required. The revenue was not able to produce any evidence to show that there was employer employee relationship. These are necessarily questions of facts and accordingly the provisions of the Act concerning TDS and interest under Section 201(1A) of the Act would not be attracted. The aforementioned view is supported by judgment of the Calcutta High Court in the case of Income Tax Officer. v. Calcutta Medical Research Institute (ITA No. 2706 (Cal) of 1996, decided on 1.11.1999). For the aforementioned reasons, this appeal fails and the same is dismissed.
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2007 (10) TMI 631 - DELHI HIGH COURT
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... ... ..... r the work done by the commission agents to whom the commission was paid, was concurred with by the Commissioner of Income-tax (Appeals). 4. The Tribunal has, in the impugned order, examined the evidence on record which included the correspondence between the parties and certain bills that were raised on the assessee for work done by the commission agents in respect of the assessee’s contracts with public sector undertakings such as BHEL, ONGC, IOCL etc. 5. On an appreciation of the evidence, the Tribunal came to the conclusion that there was an agreement, though not a written agreement, between the parties and that the work was done by the commission agents pursuant thereto thus justifying the payments made to them by the assessee. 6. No substantial question of law arises from the impugned order since it is based only an appreciation of the evidence. No perversity has been shown in the view taken by the Tribunal. 7. No substantial question of law arises. 8. Dismissed.
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2007 (10) TMI 630 - ITAT BANGLORE
Deduction claimed u/s 10A - STP (Software Technology Park) unit - 'export turnover' - reduction of expenditure incurred in foreign currency - HELD THAT:- In the present case, there are materials to show that the expenditure in foreign currency is related to technical services rendered outside India by the assessee in connection with development of computer software to the customers outside India. The aforesaid three aspects clearly reveal that the expenditure incurred by the assessee in foreign currency do not relate to any of the export obligation done by the assessee. When once expenditure so incurred in foreign currency is not for purpose of export obligation, there is no substance in the assessee's claim to deduct the same from the export turnover. Considering this aspect we do not find any infirmity in the order of the learned CIT(A) in confirming the action of the AO. It is ordered accordingly.
Alternatively, learned counsel for assessee had insisted for reduction of expenditure in foreign currency from the total turnover in case expenditure has to be reduced from export turnover. In our view, the alternative relief sought for by the assessee appears to be sound and proper.
Sec. 10A has incorporated in entirety the philosophy of s. 80HHE. The definition of the terms 'computer software' and 'convertible foreign exchange' in s. 10A are the same as in s. 80HHE. However, from out of the three terms relevant for applying the formula, s. 10A defines only one term namely 'export turnover'. The other two terms 'profits of the business' and 'total turnover' are not defined. Since the section proceeds broadly on lines similar to s. 80HHE in the absence of the definition of any term in s. 10A, one could refer to the definition of a similar term in s. 80HHE. Thus, the term 'total turnover' for s. 10A purposes, should be the same as understood for the purposes of s. 80HHE.
The term 'total turnover' no doubt is not defined in s. 10A. However, the term 'total turnover' would be an enlargement of the term 'export turnover'. Therefore, we are of the view that the assessee should succeed in the alternative submission made. Accordingly, we direct the AO to exclude the expenditure incurred in foreign currency by the assessee from the total turnover. It is ordered accordingly.
Exclusion of a sum from the export turnover - HELD THAT:- This amount was excluded by the AO on the ground that foreign exchange in respect of the same was not received in time. At the time of hearing, learned counsel for assessee pointed out that M/s Canara Bank issued a letter by which the banker, being an authorized dealer, was authorized to permit extension as the bills raised during the relevant year by the assessee are less than USD 10000 value. Considering this, we direct the AO to verify and allow the claim of the assessee. It is ordered accordingly.
Sales effected to other STP - Deemed export only for the purpose of duty draw back - HELD THAT:- A cursory perusal would indicate that sale of such software by one STP to another STP within the country would be treated as deemed export only for the purpose of duty draw back and exempt from terminal excise duty. As rightly contended by the ld DR, s. 10A, with relevant proviso, stood during the relevant time itself provides that when domestic sales of STP unit do not exceed 25 per cent, such sale should be deemed to be the profits and gains derived from the export of such articles or things or computer software. Thus the provisions of s. 10A as it stood specifically provide how much benefit to be given to the assessee if sales to another STP when not exceeded 25 per cent of the total products.
From the perusal of the Exim Policy (Chapter 6), it is seen that whatever benefit given should be as per the provisions of ss. 10A and 10B of the IT Act. Apart from the benefit conferred under the aforesaid chapter, nothing has been indicated in respect of any deemed export when the issue is considered under the IT Act. The Exim Policy extracted (Chapter 8.1 and 8.3) obviously does not include in respect of benefit to be given under IT Act other than one referred to under Chapter 6.12(a). When this being consciously omitted in the policy, we do not find any force in the stand taken by the learned counsel for assessee to treat the sales effected to other STP by the assessee as deemed export. This ground fails.
In the result, the appeal filed by the assessee is partly allowed to the extent indicated above.
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2007 (10) TMI 629 - GUJARAT HIGH COURT
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... ... ..... to attract the levy of penalty u/s 271 (1) (c). We are of the view that the decision of the Third Member is equally applicable to the facts of the present case before us because in this case also it is an admitted fact that the appeal of the assessee has been admitted by the High Court against the disallowance of the interest. Even on merit also, we are of the view that the assessee has not concealed any income or furnished inaccurate particulars thereof. The assessee has also duly discharged its onus which is cast on the assessee and, therefore, in our opinion, there is no illegality or infirmity in the order of the CIT (A) in deleting the penalty imposed on the assessee u/s 271(1)(c). We accordingly confirm the order of the CIT (A).” The CIT (Appeals) as well as Tribunal both found that it is not a fit case for imposition of penalty under Section 271((1)(c) of the Act. Considering the concurrent findings of the CIT (Appeals) and the Tribunal, appeal stands dismissed.
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2007 (10) TMI 628 - DELHI HIGH COURT
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... ... ..... xplanation to Section 115JA of the Act makes it clear that ascertained liabilities are not to be included in the profits as defined in that section. If the argument of learned Counsel for the Revenue is accepted, namely, that the writing off of bad debts in a subsequent year should be considered, then there will be no finality to the assessment orders that are passed. In our view, this matter is covered by the aforementioned decisions of this Court and we find no ground to differ from them. No substantial question of law arises in these appeals. 8. The second issue raised is with regard to the Tribunal allowing depreciation to the assessed on the enhanced value of plant and machinery due to fluctuation in the foreign exchange rate. As far as this issue is concerned, it is covered against the Revenue by the decision of this Court in CIT v. Woodward Governor India (P) Ltd. (2007) 210 CTR (Del) 354 (2007) 162 Taxman 60 (Del). 9. No substantial question of law arises. Dismissed.
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2007 (10) TMI 627 - ITAT BANGALORE
Liable to deduct TDS u/s 195 ? - Payments made to foreign companies - down linking (bandwidth) charges - assessee did not make any TDS on the ground that payments are not covered under the direct provisions of sec.5 or any deeming provisions of section 9 - CIT (A) granted relief to the assessee - HELD THAT:- In our view, this issue is squarely covered by the decision of this Tribunal in the case of the assessee for assessment years 1997-98 and 2001-02. Applying the same, we confirm the orders of the learned CIT(A).
Disallowance of subscription payments u/s 40A(1) - such payment fall u/s 195 - AO held that by means of this payment, the assessee has got the benefit of technical consultation and therefore the payments fall within the ambit of section 195 of the IT Act - CIT(A) granted relief to the assessee - HELD THAT:- In our view, this issue is also squarely covered by the decision of this Tribunal in the case of the assessee fog assessment years 2001-02 to 2003-04 held that; ''Annual subscription was an access fee to Gartner database maintained outside India. Fee was payable even if no service was utilized. It was like a gate pass or entry fee and could not be treated as imparting of information. The payment was for obtaining data and use in the way assessee wanted it to be used. It was for use of a copyrighted article and not for transfer of right in the copyright in the article. Just as a book it is a copyright article. Purchase of the book allows use of information contained therein but does not transfer of the copyright therein. Even if the payment for use of any copyright is covered the copyright should be of a literary, artistic or scientific work and no other. ''
Applying the same, we confirm the order of the learned CIT (A) . It is ordered accordingly.
Deduction u/s 80HHE - Exchange variation gain in EEFC Account - assessee did not exclude expenditure in foreign currency both from export turnover as well as total turnover - HELD THAT:- This issue is also covered by the decision of this Tribunal in the case of the assessee for assessment year 1998-99 held that; ''Though it is worded as foreign exchange currency fluctuation, it is nothing but part of export turnover and a sort of additional sale price. Thus, the same is profit of the eligible undertaking for claiming deduction u/s 10B. Similarly, it cannot be treated as other receipts for excluding 90 per cent of the same u/s 80HHE. We accordingly hold that such sum being foreign exchange gain is not to be excluded while computing profit eligible for deduction u/s 10B as well as for computing profits of the business for the purpose of computing deduction u/s 80HHE. ''
Therefore, applying the same, we confirm the order of the learned CIT (A).
In the result, the revenue’s appeals are dismissed and the assessee’s appeals are allowed.
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2007 (10) TMI 626 - RAJASTHAN HIGH COURT
Reopening of the assessment - Escapement of Income - Income from undisclosed source - Seizure of goods - Whether the Tribunal was justified in upholding the CIT(A)’s order quashing the reassessment made u/s 143(3)/148?- HELD THAT:- Tribunal held that - ''We are unable to accept the submission of the counsel for the revenue. As noticed, the goods were seized by the customs authorities somewhere in the third week of October, 1979 and after valuation of the said goods having been got done by the customs authorities from the Appraiser, Foreign Post Office, Jaipur, the said goods were delivered to Income-tax Officer under the provisions of section 132A(2), on 29-12-1980. As a matter of fact, the ITO, H-Ward, Jaipur framed provisional assessment order u/s 132(5), assessing the income of the assessee at ₹ 3,48,116. The assessee filed return of income for the assessment year 1980-81 thereafter on 31-5-1982 and the order u/s 143(1) accepting the return of income was passed on 15-6-1982. The Assessing Officer, thus, at the time of passing of the order dated 15-6-1982 had in his possession all primary facts necessary for framing the assessment and it was for him to draw proper inference from those facts which the Income-tax Officer did not do. It was, thus, plainly a case of oversight by the Assessing Officer and not that the income chargeable to tax had escaped assessment by the reason of omission or failure on the part of the assessee to disclose fully and truly all material facts. Our view finds support from the decision of the Supreme Court in the case of Gemini Leather Stores v. ITO [1975 (5) TMI 1 - SUPREME COURT] wherein the Supreme Court upon consideration of the decisions in the case of Calcutta Discount Company v. ITO [1960 (11) TMI 8 - SUPREME COURT]; CIT v. Burlop Dealers Ltd. [1971 (1) TMI 10 - SUPREME COURT] and CIT v. Hemchandra Kar[1970 (4) TMI 3 - SUPREME COURT].''
The consideration of the matter by the Income-tax Appellate Tribunal is in accord with the law exposited by the Supreme Court in the afore-referred case.
We are, thus, satisfied that the order of Income-tax Appellate Tribunal dated 27-3-1992 does not give rise to any question of law and the rejection of the application u/s 256(1) is not flawed.
The Income-tax Application is, accordingly, dismissed.
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2007 (10) TMI 625 - DELHI HIGH COURT
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... ... ..... e Appellants for ₹ 22 crores and then confirmed it after adjudication. Consequently, the Appellants were required to return that money but did not do so. Against the order requiring the Appellants to refund the drawback amount, they preferred an appeal before the Tribunal which as already noticed required them to make a pre-deposit of ₹ 2.5 crores as a condition for hearing the appeal. Since the Appellants did not deposit the amount, the Tribunal by the impugned order dated 26th March, 2007 dismissed the appeal. Given the facts and circumstances of the case as noticed hereinabove, we do not find any ground to interfere with the impugned order dated 26th March, 2007 or even the order dated 29th December, 2006 passed by the Tribunal concerning the pre-deposit. The Appellants have enriched themselves by ₹ 22 crores and could have surely deposited ₹ 2.5 crores as required by the Tribunal. No substantial question of law arises for determination. Dismissed.
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2007 (10) TMI 624 - SUPREME COURT
Does Section 2 of the Industries (Development and Regulation) Act, 1951, have any impact on the field covered by Section 18-G of the said Act or Entry 33 of List III of the Seventh Schedule of the Constitution?
Does Section 18G of the aforesaid Act fall under Entry 52 of List I of the Seventh Schedule of the Constitution, or is it covered by Entry 33 of List III thereof?
In the absence of any notified order by the Central Government under Section 18-G of the above Act, is the power of the State to legislate in respect of matters enumerated in Entry 33 of List III ousted?
Does the mere enactment of Section 18-G of the above Act, give rise to a presumption that it was the intention of the Central Government to cover the entire field in respect of Entry 33 of List III so as to oust the States' competence to legislate in respect of matters relating thereto?
Does the mere presence of Section 18-G of the above Act, oust the State's power to legislate in regard to matters falling under Entry 33(a) of List III ?
Does the interpretation given in Synthetics and Chemicals Case [1989 (10) TMI 214 - SUPREME COURT OF INDIA] in respect of Section 18-G of the Industries (Development and Regulation) Act, 1951, correctly state the law regarding the States' power to regulate industrial alcohol as a product of the Scheduled industry under Entry 33 of List III of the Seventh Schedule of the Constitution in view of clause(a) thereof?
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2007 (10) TMI 623 - CESTAT MUMBAI
Waiver of pre-deposit - benefit of N/N. 12/2003-ST, dated 26-6-2006 as amended by N/N. 12/2004-ST, dated 10-9-2004 - Held that: - when the language of the notification does not restrict exemption only to standard text-book sold, the notification cannot be whittled down by the circular - pre-deposit waived.
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2007 (10) TMI 622 - SUPREME COURT
Whether the terms are sustainable and the action of the management in transferring the employees-appellants to BCPP which is a private management is justifiable or not?
Whether undue influence was exercised by the management of NTPC on the unemployed candidates to execute undertakings for appointment?
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