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Showing 61 to 80 of 822 Records
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2009 (1) TMI 885
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... ... ..... r the assessment years 1990-91 & 1991-92, on similar points, the Tribunal rendered its decision against the revenue relying on the decision of the Rajasthan High Court in the case of Commissioner of Income Tax vs. Bank of Rajasthan Ltd., (2002) 255 ITR 599, this special leave petition is dismissed.
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2009 (1) TMI 884
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... ... ..... should be limited to the date of regular assessment. 26.1. At the out-set, we are inclined to make it clear that the levy of interest is mandatory and it has to be charged as per the provisions of I.T.Act. However, the Ld.AO is directed to give consequential relief u/s 234B on account of reduction in income, if any. 26.2. With regard to levy of interest u/s 234D of the Act, we are of the firm view that section 234D is a machinery provision and will, therefore apply from the date they are brought in the Statute. Levy of interest u/s 234D is chargeable when a regular assessment is made on or after 1-6-2003 irrespective of the assessment year is involved. An identical issue had cropped up in the case of Sigma Aldrich Foreign Holding Company vs ACIT reported in 104 ITD 95 and the Hon'ble Tribunal was pleased to decide the issue in favour of the Revenue. Accordingly, the charging of interest u/s 234D of the Act is upheld. 27. In the result, both the appeals are partly allowed.
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2009 (1) TMI 883
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... ... ..... credit on Towers and parts of Towers and pre-fabricated shelter for protecting Transmission devices in the light of the order dated 31.1.2007 of the Commissioner of Central Excise, Mumbai - the Department itself has expressed different views on the availability of Service Tax credit on these items. The amount of Service Tax credit on these two items is about ₹ 1.88 crores." 4. Learned Jt. CDR submits that to treat Towers and Shelters as components or spare parts is not proper and the said order should not be taken as precedent. 5. We have carefully considered the submissions from both sides. Without expressing any views on the merit of the case, we note that similarly placed assessee has been granted stay in the case of Bharati Tele Ventures Ltd., cited supra. In view of the above, we waive pre-deposit of Service Tax, interest and penalty and stay recovery of the same till disposal of the appeal. Stay petition is allowed. Dictated and pronounced in the Open Court.
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2009 (1) TMI 882
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... ... ..... l Kaushik, Rupesh Kumar, B. V. Balaram Das For the Respondent -- ORDER Delay condoned. The Special Leave Petition is dismissed.
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2009 (1) TMI 881
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... ... ..... he case of CIT vs Kwality Biscuits Ltd. (supra) wherein their Lordships affirmed the order of Hon’ble Karnataka High Court in the case of Kwality Biscuits Ltd. vs. CIT (2000) 159 CTR (Kar) 316 (2000) 243 ITR 519 (Kar) wherein the Hon’ble Karnataka High Court held that interest is not leviable under ss. 234B and 234C of the IT Act, 1961, in the case of an assessment of a company on the basis of book profits under s. 115J, since the entire exercise of computing income under s. 115J can only be done at the end of the financial year, and the provisions of ss. 207, 208, 209 and 210 cannot be made applicable until and unless the accounts are audited and the balance sheet prepared. 111. Therefore, the orders of tax authorities below in this regard are set aside and ground No. 6 of the appeal taken by the assessee is allowed. 112. In the result the three instant appeals filed by the assessee are partly allowed for statistical purposes in terms of this consolidated order.
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2009 (1) TMI 880
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... ... ..... n ITA No. l231/Mum/2005 (Where in JM was the author), wherein vide order dated 24.05.2007, the claim of the assessee on account of Corporate Membership Fee paid on account of Membership Fee availed by the personnel of the assessee company was allowed. Reliance was placed on the judgment of Hon'ble Bombay High Court in Otis Elevators (195 ITR 682) for allowing the claim of the assessee. Respectfully following the ratio laid down by the Hon'ble Bombay High Court in Otis Elevators (supra), we confirm the order of CIT (A) in this respect in allowing the claim of the assessee with regard to the Corporate Membership paid on account of Membership availed by the personnel of the assessee company. Thus, the ground No.2 raised by the Revenue is dismissed. 16. In the result, the appeal filed by the assessee being ITA No.2200/Mum/2004 is and the appeal filed Revenue being ITA No.1941/Mum/2004 are allowed for statistical purpose. Order pronounced on the 29th day of January, 2009.
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2009 (1) TMI 879
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... ... ..... ed that these issues were raised before the learned CIT(A) vide ground Nos.5 and 6 in Form No.35 but were not adjudicated upon by the first appellate authority. It was prayed on behalf of the assessee that the ld. first appellate authority be directed to decide these grounds. The learned Departmental Representative also accepted this fact. In the light of these common submissions, we restore these issues to the file of CIT(A) for deciding them after allowing a reasonable opportunity of being heard to the assessee. 14. Ground No.5 of the assessee's cross objection about deduction u/s.80HHD is dismissed as infructuous in view of our not allowing ground No.2 of the Revenue's appeal. 15. The last ground about the charging of interest u/s.234A, 234B and 234C, being consequential, is disposed off accordingly. 16. In the result, appeals of the Revenue as well as cross objections of the assessee are partly allowed for statistical purposes. Order pronounced on this 30.1.2009.
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2009 (1) TMI 878
Stay/Dispensation of pre-deposit ... ... ... ... ..... n can claim the benefit of the latter entry. The learned SDR has referred to the catalogue of the goods and has wondered how it was possible to implant the goods described in the catalogue, in a human body. Here, the learned SDR was referring to the dimensions and weights of the various models of defibrillators mentioned in the catalogue. He has also reiterated the observations contained in the impugned order. 3. emsp After considering the submissions, we are of the view that the stay ordered by the Apex Court in BPL v. Commissioner of Central Excise case has to be honoured at this stage. Inasmuch as the operation of the Tribunal rsquo s view in BPL rsquo s case stands stayed by the Apex Court, we prima facie hold that the reliance placed by the lower appellate authority on the said view does not, today, go to support the Revenue. In the result, there will be waiver of pre-deposit of the duty and penalty amounts and stay of operation of the impugned order. (Dictated in Court)
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2009 (1) TMI 877
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... ... ..... o p /o p 7. Yet another disturbing aspect to be stated is that the case of the petitioner is that Ext.P23 order of detention has been passed at a time when, the DRI had undertaken before this Court that the petitioner will not be arrested. The relevant pleading in this behalf is at paragraph 24 of the writ petition. The learned counsel also referred me to Ext.P22 order passed by this Court. But on verification of the case file in Bail Application No.5824/2008, I find that the undertaking given by the DRI, has been lifted on 01/12/2008 and an order to that effect has been passed by the learned Judge. Therefore, this argument is not only factually incorrect but also does not survive. o p /o p 8. It is clarified that the findings herein are only to decide the maintainability of this writ petition at the pre-execution stage of Ext.P23 and should not be construed on pronouncement on the merits of the order. o p /o p The writ petition fails, and is accordingly dismissed. o p /o p
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2009 (1) TMI 876
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... ... ..... on in favour of the department? (d) Whether the Tribunal was right in law in holding that the Revenue had failed to produce material/evidence to establish that the seized goods were smuggled goods, overlooking Section 106 of the Indian Evidence Act, 1872 whereunder the burden to establish is cast on the person concerned and on his failure to establish/explain the same and adverse inference may arise against him which couple with the seized goods of foreign origin would rebut the presumption of innocence and in result prove to him guilty? 4. To be heard along with Customs Application No. 8/2001 - The Commissioner of Customs (Prev.), Mumbai v. Shri Vikram Muktilal Vora and Customs Appeal No. 27/2007 - The Commissioner of Customs (Prev.), Mumbai v. Sunil Kumar Aggrawal & Ors. 5. The learned counsel for the appellants undertakes to serve all the respondents within four weeks from today and further undertakes to file affidavit of service within two weeks thereafter.
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2009 (1) TMI 875
Maintainability of petition - Transfer of land free of cost to the Government - Demand raised towards the external development charges - construction of internal community buildings, with a further stipulation that no such charge would be realised from the plot holders - appellant alleged that demand was not only unjust and arbitrary but also contrary to licence agreement and also against the provisions of the Act and the Rules framed thereunder - Principles of waiver and acquiescence - HELD THAT:- Contentions with regard to the maintainability of the writ petition is concerned, we are not impressed and persuaded with the aforesaid contentions as according to the respondent themselves, the aforesaid demand is being made within the parameter and ambit of the provision of section 3(3)(a)(iv). That being the position, the demand made according to the respondent is a statutory demand and therefore challenge to such a demand could always be raised by the appellant by filing a writ petition as such a demand is sought to be protected and supported by way of statutory provision.
Since the land has been given free of cost, it is now open for the State Government to get the remaining community buildings constructed either by themselves or through any agency or institution or individual at its cost in terms of the provisions of the Act, in which case the terms and conditions could be laid down by the Government for such community buildings, to be constructed on the land which is transferred to it by the appellant free of cost. The Government cannot in law demand that the buildings on the said lands which is to be transferred to them free of cost should also be constructed by the appellant and then transfer the land to them free of cost along with the construction thereon and on failure to construct to pay for the cost of construction. That would in fact be a case of an illegal and unauthorised demand as it has no statutory mandate. The respondent cannot demand transfer of the land free of cost and also the construction cost of the facilities to be provided in the said land.
The Government’s claim is therefore restricted to lands which the developer has failed to develop as community centres. In other words only that land which the developer has not been able to develop as community services facilities would stand transferred to the Government free of cost and the said land could be utilized by the Government for the aforesaid purpose either by itself or through its agency. It is well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is determinative factor of legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statue.
Since the respondent No. 2 sought to justify the demand made on the ground that such demand is justified as internal community building, we have no other option but to hold that such demand could not have been made even as internal community buildings for no such power and jurisdiction was vested in the Government to make such a demand for the simple reason that there was neither any statutory support nor any policy decision in support of the same.
Even in the Licence Agreement, nothing was contemplated to the effect that in addition to the liability to transfer the land set apart for the said buildings to the Government free of cost, on the contingency mentioned in the statue and relied in the Licence Agreement, the licensee is also required to pay for the construction of said buildings.
Principles of waiver and acquiescence - It is established that the appellant on receipt of the demand issued by respondent No. 2 raised this objection regarding the charge and the demand made and the payment which was made by the appellant was due to the threat issued by respondent No. 2 that on failure of the appellant to pay the same its licence would stand cancelled. Such demand was made by the appellant under protest as aforesaid.
Therefore, the principle of waiver and acquiescence will have no application in the present case and therefore we reject the said contention of the learned counsel appearing for respondent No. 2.
The appeal, therefore, stands allowed and we hold that respondent No. 2 was not authorized or justified in raising the aforesaid demand of ₹ 61,000/- per gross acre. Whatever payment is made in respect of the aforesaid demand was not payable by the appellant to the respondent No. 2 as the said demand is held to be illegal, unjustified and unreasonable.
We accordingly, dispose of this appeal in the light of the aforesaid directions and observations.
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2009 (1) TMI 874
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... ... ..... etition, the Commissioner of Income (Central) (Appeals)-II, Kolkata, is at liberty to proceed with the appeal for the assessment year 2006-07 and is at liberty to pass the order, but the said order shall not be communicated and shall not be given effect to without the leave of this Court. All parties concerned are to act on a signed xerox copy of this order on the usual undertakings.
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2009 (1) TMI 873
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... ... ..... shall not be more than the liability computed as per order of the learned CIT(Appeals) for the reason that the Tribunal has no power to enhance the assessment. Thus, ground No. 1 is dismissed as discussed above. 6. Coming to the issue of determination of the fair market value, we are of the view that the amount mentioned in Form No. 37-I is not really material as there was no transfer of asset as the relevant point of time. In regard to conversion of capital asset in stock-in-trade, we have already held that both the parties shall be free to lead evidence including fresh evidence. Similar finding is also recorded in regard to the value of constructed area allotted to the assessee at the time of transfer thereof to Som Dutt. Thus, the capital gains and business profits shall be determined afresh by the Assessing Officer after ‘ hearing the assessee. Ground No. 2 is treated as allowed as indicated above. 7. In the result, the appeal is partly allowed as discussed above.
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2009 (1) TMI 872
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... ... ..... ified in negating the claim of the assessee. The C.I.T. (Appeal) had allowed the Appeal preferred by the Assessee, which order has been confirmed by ITAT. 2. The view taken, in our opinion, is correct view. Hence, the question of law as framed would not arise. Consequently Appeal dismissed.
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2009 (1) TMI 871
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... ... ..... on (supra) of the Tribunal and hold that during the pendency of the rectification proceedings under s. 154 it was not open to the AO to resort to the assessment proceedings under s. 147 of the Act by issuing a notice under s. 148 of the Act and, consequently, the assessment proceedings completed under s. 147 of the Act by issue of notice under s. 148 of the Act are invalid and accordingly the same are quashed. Consequent upon our findings, deciding the legal issue in favour of the assessee, the order of the CIT(A) in this regard is set aside. Since, we have quashed the reassessment proceedings, we do not consider it necessary to decide the assessee’s appeal on merits. The ground No. 7 relating to interest chargeable under s. 234 of the Act having become infructuous in view of our findings recorded hereinabove, wherein we have quashed the reassessment proceedings, now does not survive. In the result, the appeal filed by the assessee stands allowed in terms of the order.
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2009 (1) TMI 870
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... ... ..... ned at the time when the interim orders were passed. The High Court has committed another error in holding that the writ petition was dismissed principally on the ground that it was the decision of the Governing Body as to who should be its Secretary, although Government approval is necessary for appointment of the Secretary of the Governing Body of the Institute. On the contrary the learned Single Judge dismissed the writ petition principally on the ground that factual controversy is involved. The Division Bench has not discussed this aspect at all. Therefore, the order is clearly indefensible. 7. In the aforesaid background, we set aside the impugned judgment of the High Court and remit the matter for its consideration as to whether the writ appeal was to be entertained in view of the conclusions of the learned Single Judge that factual controversies are involved and, therefore, the writ petition was not maintainable. 8. The appeal is allowed without any order as to costs.
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2009 (1) TMI 869
Disallowance of proportionate expenses u/s 14A - Disallowance on account of excess claim of depreciation on computer peripherals.
Disallowance of proportionate expenses u/s 14A - "Computer"- CIT(A) deleted the addition out of total addition made by A.O - ignoring the provisions of section 14A(1) inserted with retrospective effect from 01.04.62, which empowers the A.O. to disallow the expenditure attributable to exempt income by using appropriate method in the absence of any prescribed method - HELD THAT:- We find that the matter now stands covered in the case of Dega Capital Management (P) Limited [2008 (10) TMI 383 - ITAT MUMBAI] wherein also the matter has been set aside to the file of the AO to compute the disallowance in accordance with the-amended provisions and the rules thereunder as held to be applicable with retrospective effect. Accordingly, we restore the matter to the file of AO.
Disallowance on account of excess claim of depreciation on computer peripherals - HELD THAT:- We find that the matter stands covered in favour of the assessee by the decision in the case of ITO vs. Samiran Majumdar [2005 (8) TMI 293 - ITAT CALCUTTA-B] held that the term "computer" has not been defined under the Act, yet Explanation (a) to clause (xi) of section 36(1), defined the term "computer system" - Further, the ICAI in its study material defined the term "computer" as an electronic data processing device capable of receiving input, storing sets of instructions for solving problems and generating output with high speed and accuracy; that the printer and scanner could not be used without the computer, that is, they were part of the computer system - Thus, the printer and scanner were an integral part of the computer system and they are to be treated as computer for the purpose of allowing higher rate of depreciation. We accordingly uphold the order of the CIT(A) in granting higher deprecation @ 60% on computer peripherals as against 25% allowed by AO.
In the result, the appeal of the assessee is partly allowed for statistical purposes.
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2009 (1) TMI 868
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... ... ..... on of the Division Bench of this Court in the matter of CIT v. Rajasthan Spg. & Wvg. Mills Ltd. 2005 198 CTR (Raj) 96, wherein while dealing with the question of claim to deduction of an amount spent by the assessee in purchasing of a bus for the purpose of welfare of the children of the staff/workmen of the company as a part of employees welfare measure was treated to be business expenditure. 5. On the facts and circumstances of the case noticed above and keeping in view the Bench decision of this Court in the matter of Rqjasthan Spg. & Wvg. Mills Ltd. (supra), in our considered opinion, the learned Tribunal has committed no error in holding that the donations made by the assessee company as aforesaid, are allowable business expenditure under s. 37(1) of the Act of 1961. Thus, no substantial question of law arises in this appeal for consideration of this Court. 6. The appeal is devoid of any merit and, accordingly, the same is hereby dismissed. No order as to costs.
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2009 (1) TMI 867
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... ... ..... a Larger Bench. 7. Under the circumstances, the two substantial questions that have been referred for decision are answered by holding that the appropriate course of action would be for Question No. 3, as framed on 24-2-2006 to be heard and decided by a three-Member Bench of the Tribunal. 8. It may be mentioned that in DLF Universal Ltd. v. CIT 2008 172 Taxman 107 (Delhi) it has been held by this Court that a co-ordinate Bench of the Tribunal cannot take a view contrary to a view expressed by an earlier Bench and it is bound by the decision of the co-ordinate Bench rendered earlier. In case the later Bench differs from the earlier decision, the only course open to it is to refer the matter to a Larger Bench. In this regard, reliance was placed on Sundarjas Kanya Lal Bhatija v. Collector, Thane 1989 3 SCC 396, Mahadeo Lal Kanodia v. Administrator-General of West Bengal AIR 1960 SC 936. The matter, therefore, is no longer res integra. 9. The appeal is disposed of accordingly.
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2009 (1) TMI 866
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... ... ..... ilable, the Courts have accepted the claim of the assessee. In the instant case there is a possibility to conclude that the assessee has indulged into certain business activities may be related to land, by using the amounts so withdrawn from his business concern. In these circumstances, as stated earlier, what is taxable is the profit portion of such business activities. In the absence of any evidence, one is left with no other option but to make a reasonable estimate of profit that would have been made therefrom. In our opinion, an estimate of profit 10 per cent on the impugned amount of ₹ 45 lakhs would meet the requirements of law and also would meet the ends of justice. Accordingly the profit element included in the impugned amount of ₹ 45 lakhs is estimated at ₹ 4,50,000 and the AO is directed to assess the above said profit amount in the place of ₹ 45 lakhs and we order accordingly. 6. In the result, the appeal of the assessee is partly allowed.
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