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Showing 121 to 140 of 873 Records
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2010 (1) TMI 1188 - CESTAT BANGALORE
CENVAT credit - input service - denial on the ground that the impugned activity was not carried out at the place of manufacture/place of removal, the impugned services could not be considered as input service - Held that: - As per the clarification issued by the CBEC vide Circular No. 91/8/2007, dated 23-8-2007, “place of removal” appearing in the Cenvat Credit Rules covers the place at which the ownership of finished goods are transferred - In the instant case, the export goods are sold on FOB basis. The said service is availed prior to export of the goods - the appellants are entitled to credit of service tax paid under CHA services in respect of the excisable goods at the port area - credit allowed - appeal allowed - decided in favor of appellant.
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2010 (1) TMI 1187 - ITAT CHANDIGARH
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... ... ..... e Act. Having perused the order of the CIT in the context of the aforesaid submissions set up by the assessee, we find no finding by the CIT. The factual matrix of the transaction and case laws relied upon by the assessee have not been controverted by the CIT in any manner. Without recording any reasons in the context of the position canvassed by the assessee, the CIT, in our view incorrectly came to a conclusion that "all the pre-requisites specified in s. 2(22)(e) are satisfied to assess amount of advance as deemed dividend". Moreover, the aforesaid approach of the CIT is contrary to the judgment of the Hon'ble Punjab & Haryana High Court in the case of CIT vs. Kanda Rice Mills (1990) 85 CTR (P&H) 5 (1989) 178 ITR 446(P&H). On this point also, we find enough force in the pleas raised by the assessee and we hereby set aside the order of the CIT. 15. In the result, the impugned order of the CIT is set aside and the appeal of the assessee is allowed.
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2010 (1) TMI 1186 - ITAT DELHI
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... ... ..... reduction from deduction allowable to the assessee under section 36(1)(vii) in the succeeding year/years. But we find that such deduc tion disallowed by the Assessing Officer and confirmed by the learned Commissioner of Income-tax (Appeals) is of ₹ 2,76,74,370 but the provision for bad and doubtful debts for the present assess ment year considered for this purpose is only ₹ 66,07,245 and hence even if the same is omitted, the disallowance of balance amount of ₹ 21,06,71,235 has to be made. We confirm the same and only dis allowance of ₹ 66,07,245 is deleted. Ground No. 8 is partly allowed. Regarding Ground No. 9, no argument was advanced and hence this ground is rejected as not pressed. This ground of the assessee is rejected as not pressed." 10. In the result, the appeal of the assessee is partly allowed in the manner as indicated above. 11. This decision is pronounced in the open court immediately after the hearing was over on January 6, 2010.
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2010 (1) TMI 1185 - MADRAS HIGH COURT
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... ... ..... ding. (See Moti Laminates v. Collector of Central Excise 1995 3 SCC 23).’" 6. Applying the above test to the case on hand, the different parts procured by the respondent-assessee by themselves cannot be treated as a Wind Mill. Those different parts bear distinctive names and when assembled together, thereafter it gets transformed into an ultimate product which is commercially known as a "Wind Mill". There can, therefore, be no difficulty in holding that such an activity carried on by the respondent-assessee would amount to "manufacture" as well as "production" of a thing or article as set out in section 80-IB(2)(iii) of the Income-tax Act. In such circumstances, the conclusion of the Tribunal in accepting the plea of the respondent-assessee cannot be found fault with. We, therefore, do not find any question of law, much less substantial question of law, to entertain this appeal. 7. The appeal fails and the same is dismissed. No costs.
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2010 (1) TMI 1184 - ITAT INDORE
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... ... ..... the authorities below. 243. It is noted that the assessee himself pleaded before the Ld. CIT(A) to adopt the profit of such gross receipts at reasonable profit. We further find that it is the case of labour contract, hence, estimation of profit 10 of gross receipts, is not unjustified. Accordingly, we dismiss this ground of the assessee. 244. Ground no. 2 reads as under - “That on the facts and in the circumstances of the case, charging of interest of ₹ 62,281/- u/s 234B is not justified.” 245. The issue raised in this ground is of consequential nature and, hence, no specific decision is called thereon. 246. Ground no. 3 reads as under - “ That on the facts and in the circumstances of the case, initiation of penalty proceedings u/s 271(1)(c) is not justified.” 247. This ground is of premature nature, hence, the same is dismissed. 248. In the result, the appeal is dismissed. This order has been pronounced in the open court on 28th January, 2010.
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2010 (1) TMI 1183 - ITAT HYDERABAD
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... ... ..... s share holders whose names are given to the assessing officer, then the department is free to proceed their individual assessment in accordance with law but it cannot be regarded as undisclosed income of the assessee. 5.4. In the case of VIT Vs. Value Capital Services (P) Ltd. (307 ITR 334), wherein it was held that CIT(A) having accepted the existence of share applicants and the revenue having not shown, that applicant did not have the means to make the investment and that such investments actually not emanated from the coppers of the assessee company, the addition could not be made. 6. In view of the above judgements, we are of the opinion that the impugned addition cannot be made in the hands of the assessee. However, if so advised, the same could be considered in the hands of the respective investors as unexplained investments u/s 69 of the Income Tax Act, 1961. 7. In the result, the appeal of the Revenue stands dismissed. Order pronounced in the open Court on 29.1.2010
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2010 (1) TMI 1182 - ITAT AHMEDABAD
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... ... ..... l does not bear the name of the assessee. The CIT(A) has also correctly observed that the petrol / diesel bills generally do not contain the name of the buyer and if the ITO had any doubt as regards the genuineness of the said expenses, he should have made some inquiries for the same. We find that the CIT(A) has dealt with the issue in great detail and after following the various factors and circumstances of the case as also the decision of the ITAT in the case of Bharatkumar Ramniklal Mehta (supra), has deleted the addition. No cogent material or evidence was brought on record by the Revenue on the basis of which a different view than what is taken by the CIT(A), can be taken. We, therefore, do not find any illegality or infirmity in the order of the CIT(A) and we accordingly uphold the same in this regard. Thus, this ground raised by the Revenue stands dismissed. 9 In the result, the appeal filed by the Revenue is dismissed. Order pronounced in the open court on 08-01-2010
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2010 (1) TMI 1181 - ALLAHABAD HIGH COURT
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... ... ..... 11923 of 2009 has been filed. The Apex Court has entertained the petition on 15.5.2009 and connected the matter with Special Leave to Appeal (Civil) No. 11367 of 2007 Kanhaiya Singh and another Vs. State of U.P. and others and till the final disposal of the matter, recovery proceeding has been stayed. A copy of the order of the Apex Court is Annexure-5 to the writ petition. In view of the aforesaid order passed by the Apex Court, he submitted that in the present case the recovery proceeding be stayed. Sri Arvind Tripathi, learned Standing Counsel submitted that the interim order may be passed in the light of the order passed by the Apex Court. In view of the above, we pass the following order "Learned Standing Counsel prays for and is granted four weeks time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter. List thereafter. Till the next date of listing, the recovery of transit fee against the petitioners shall remain stayed."
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2010 (1) TMI 1180 - ITAT DELHI
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... ... ..... assessment. For construing the fact in this manner, we are fortified by the decision of Hon'ble Supreme Court rendered in the case of Rajesh Javeri reported in 291 ITR 500. The first ground of appeal is rejected. 17. As far as the additions on merit are concerned, there is no independent discussion by the learned CIT(Appeals). He has simply observed that in view of the findings made by the learned C.I.T while passing order under sec. 263 he has no alternative but to hold the advances received by the assessee from various parties, named, in the assessment order as nongenuine and unexplained. We have already deleted the addition made by the learned Commissioner while passing order under sec. 263 while dealing with the issue in ITA No.835/Del/09. Thus, following our order, the addition made herein are also deleted. 18. In the result, ITA Nos. 835 & 2126/Del/09 are partly allowed whereas ITA No.2127/Del/09 is allowed. Decision pronounced in the open court on 15.01.2010.
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2010 (1) TMI 1179 - ITAT DELHI
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... ... ..... ordingly, we remit this issue to the files of the AO to consider the same afresh in the light of the submissions of the assessee. Needless to add that the assessee should be given adequate opportunity of being heard. 7. The next issue raised is that the ld. CIT(A) has erred in law and on the facts of the case and has violated the provisions of Rule 46A in deleting the addition represented deposits in the bank accounts of the assessee which remained unexplained in spite of allowing number of opportunities to the assessee. 8. We have heard both the counsels and perused the records. We have already remitted the main issue in theses cases to the files of the AO and this issue is connected with the same. Hence we deem it appropriate to remit this issue to the files of the AO to consider the same afresh. 9. In the result, all the three appeals filed by the Revenue are allowed for statistical purposes. Order pronounced in the open court on 27/01/2010 upon conclusion of the hearing.
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2010 (1) TMI 1178 - BOMBAY HIGH COURT
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... ... ..... id. In the circumstances, the first question would have to be answered against the revenue. 3. On the second question, the revenue has relied upon the provisions of Section 292BB in order to contend that where an assessee has appeared in any proceeding or has cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of the Act, which is required to be served upon him has been duly served. In such a case the assessee is precluded from taking an objection that the notice was not served upon him in time. The provisions of Section 292BB were inserted by Finance Act of 2008, with effect from 1st April 2008. In the circumstances, the provisions of Section 292BB will have no application to the assessment year in question viz. 20002001. In these circumstances, there is no merit in the second submission in the facts of this case. 4. The Appeal does not raise any substantial question of law and is accordingly dismissed.
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2010 (1) TMI 1177 - ITAT AHMEDABAD
Penalty levied u/s 272A(2)(k) r.w.s. 200(3) - delay in submission of e-TDS return - Delay in furnishing of the quarterly statements levied penalty as the delay was for 2583 days in respect of Form No.24Q and 1889 days in respect of Form, No.26Q - reasonable cause within the meaning of section 273B - The finding of the Learned Commissioner of Income-tax (Appeals) is that the assessee was prevented from filing the quarterly statements within prescribed time because of the lack of knowledge of the requirement of law on the part of the Directors of the assessee-company and its employees
HELD THAT:- We find that the provisions of furnishing of the quarterly statements were introduced under sub- section (3) of section 200 by the Finance (No.2) Act, 2004 w.e.f. 1- 4-2005. We find that Revenue could not bring any material before us to controvert the above finding of the Learned Commissioner of Income-tax (Appeals) and to show that the assessee was earlier aware of this requirement of law. Further, on the facts of the case that the assessee has paid the tax within the prescribed time, itself shows that ordinarily there would not be any benefit to the assessee for which it would deliberately delay the submission of the quarterly statements.
Contention of the Revenue that ignorance of law cannot be an excuse is found to be unacceptable in view of the decision of Motilal Padampat Sugar Mills Co. Ltd[1978 (12) TMI 45 - SUPREME COURT] wherein it was held that there is no presumption in this country that every person knows the law and it would be contrary to common sense and reason if it were so. It was also stated that “it is impossible to know all the statutory law, and not very possible to know all the common law”.
No error in the findings of CIT(A ) that the breach of provisions by the assessee by filing the quarterly statements with certain delay was a technical or venial breach of law only. Keeping in view the decision of Hindustan Steel Ltd. [1969 (8) TMI 31 - SUPREME COURT] and the decision of Harsiddh Construction Pvt. Ltd. [1999 (12) TMI 30 - GUJARAT HIGH COURT] we do not find any good reason to interfere with - Decided in favour of assessee.
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2010 (1) TMI 1176 - ITAT DELHI
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... ... ..... Court in the case of Hargopal Singh vs. CIT, 258 ITR 85 held that if there was difference of opinion in estimation of income, penalty u/s 271(1)(c) could not be imposed. In the instant case as discussed above, no direct evidence was found for payment of commission though it was admitted by the director of M/s Friends Portfolio Pvt. Ltd. that they were doing the business on commission basis, but the facts remained that commission income was estimated by the AO as well as the CIT(A). Therefore, in view of decision of Hon’ble P&H High Court in the case of Hargopal Singh (supra), penalty u/s 158BFA(2) cannot be levied. Accordingly, we set aside the order of CIT(A) in respect of penalty in respect of commission amount of ₹ 89,102/- levying penalty of ₹ 53,401/- and allow the relief to the assessee. 13. In the result, the appeal filed by the Revenue is dismissed and the C.O. filed by the assessee is allowed. 14. Order pronounced inn open court on 15.01.2010.
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2010 (1) TMI 1175 - ITAT AHMEDABAD
Deduction u/s 80IA - Interest income earned on margin money deposited with the bank for obtaining Letter of Credits [LCs] - assessee has been purchasing raw-materials and banks required the assessee to make deposits for covering the amount of LCs - AO noted that the assessee has two units; one is General Unit which is entitled to deduction u/s 80IA @ 30% whereas the other Unit called Captive Power Plant [CPP] unit which is entitled to 100% deduction u/s 80IA.
AO held that interest income is not entitled to deduction u/s 80IA in view of the decision of the Hon'ble Supreme Court in the case of Pandian Chemicals Ltd. vs. CIT[2003 (4) TMI 3 - SUPREME COURT].
HELD THAT:- This issue has been decided by the Tribunal in favour of the assessee in the AY 2001-02 relying on the decision in the case of Karnal Co-operative Sugar Mills Ltd. [1999 (4) TMI 7 - SC ORDER] held that so far as interest received on opening of Letter of Credit is concerned, the same falls within the definition of “profits and gains derived by an undertaking or an enterprise from any business”, as referred to in sub-section (4) of section 80IA and, therefore, entitled to deduction u/s 80IA. Respectfully following the judgment, we decide the issue in favour of the assessee. Accordingly, this ground of the assessee is allowed.
Deducting loss incurred in the General Unit against the income derived by CPP Unit - AO reduced the loss incurred in General Unit against the income earned in CPP Unit and thereby reduced the available deduction u/s 80IA in CPP Unit - HELD THAT:- This issue has been decided against the assessee by the Tribunal in AY 2001-02. Relying on the latest decision of Hon'ble Supreme Court in the case of Synco Industries Ltd. [2008 (3) TMI 13 - SUPREME COURT] held that gross total income of the assessee has first got to be determined after adjusting losses etc., and if the gross total income of the assessee is "nil" the assessee would not be entitled to" deductions under Chapter VI-A - This ground of the assessee is rejected.
Deduction u/s 80IA - adjustment of electricity price charged by CPP Unit from General Unit - CPP Unit is generating electricity and supplying to General Unit as well as other consumers. CPP Unit charged rate at ₹ 5.40 paise per unit from General Unit whereas the AO restricted the same to ₹ 5.32 paise per unit and accordingly restricted the deduction u/s 80IA - HELD THAT:- In the case of ACIT vs. Jindal Steel & Power Ltd.[2007 (6) TMI 308 - ITAT DELHI] held that the market rate postulated by section 80IA(viii) shall be the price at which the assessee purchases electricity from the Electricity Board. Respectfully following the decision, we hold that the market value for electricity would be the one at which it is supplied by GEB to other assessees inclusive of duty. Therefore, the rates taken by the assessee for the purpose of supplying electricity from CPP Unit to General Unit is upheld. The assessee succeeds on this point.
Netting of interest income against the expenditure - assessee has earned interest on deposits made with the banks for opening LCs. It has also incurred an expenditure on loan borrowed for the purpose of business - HELD THAT:- Once interest income earned from fixed deposits kept with the bank in respect of margin money for availing LC facilities would be business income as per our decision for the Assessment Year 2002-03 and thereafter any interest spent on earning such interest income would be reduced. For the purpose of finding out the nexus of interest expenditure with the interest income earned on margin money kept with the bank for availing LC facilities and thereafter doing netting, we restore the matter to the file of the AO. We make it clear that the onus is on the assessee to establish the nexus of interest income earned with the particular Unit and thereafter netting of interest expenditure with the interest income earned in respect to that Unit. AO after making necessary verification allow netting. This ground of assessee is allowed but for statistical purpose.
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2010 (1) TMI 1174 - ITAT AHMEDABAD
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... ... ..... ating the profits 9 on the disclosed turnover. Vikram Plastics,239 ITR 161(Guj). Since the AO has not recorded any findings for ignoring the book results and applying the average profit rate of the preceding and succeeding years, we are of the opinion that the ld. CIT(A) was justified in deleting the addition. If there was no challenge to the transactions represented in the books, then it is not open to revenue to contend that what is shown by the entries is not the real state of affairs. In the light of these observations of the Hon’ble jurisdictional High Court, especially when there is no material before us for taking a different view in the matter, we have no option but to uphold the findings of the ld. CIT(A). Consequently, ground no.1(ii) is dismissed. 11. Ground nos.2 & 3 ,being general in nature, do not require any separate adjudication and are, therefore, dismissed 12 . In the result, appeal is dismissed. Order pronounced on this day of 29th January, 2010.
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2010 (1) TMI 1173 - ITAT AHMEDABAD
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... ... ..... limited gives clear indication that if assessee has sufficient interest free funds, then it shall be presumed that interest free advances was given out of interest free funds. Such presumption is rebuttable and the, Assessing Officer is expected to give his finding on the availability of cash at the point of time when such interest free advances are given. f he chooses not to do so then he loses the right to make addition. This is exactly what has happened in this case. Therefore, addition made by the Assessing Officer cannot be justified. As a result this ground of Revenue is rejected. 17. Finally, appeal filed by the Revenue is dismissed." 12. Respectfully following above decisions, we hold that even on merit, Revenue has no case." Respectfully following the above decision, we decide in favour of the assessee as the Revenue has failed to prove the nexus. 9. As a result, the appeal by the assessee is allowed. Order pronounced in the open court today on 08-01-2010.
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2010 (1) TMI 1172 - ITAT MUMBAI
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... ... ..... proceedings is at liberty to initiate the penalty, if so deemed fit, in appropriate cases even in the changed circumstances. However, that cannot justify our remitting the penalty matter to the file of such an authority for finalizing the penalty proceedings. That will still be a step removed from the actual process at which the penalty is to be initiated i.e., being of the opinion that the related quantum proceedings must also be visited with initiation of penalty proceedings. Not only imposition of penalty but also initiation of penalty proceedings is not an automatic consequence of relate quantum additions being made to income of the assessee. In view of these discussions, and bearing in mind entirety of the case, we are of the considered view that the impugned penalty must be deleted. We, accordingly, delete the penalty of ₹ 1,51,28,982/- imposed on the assessee. 7. In the result, the appeal is allowed. Pronounced in the open court today on 6th day of January 2010.
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2010 (1) TMI 1171 - ITAT MUMBAI
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... ... ..... se evidences show that there cannot be any doubt or dispute regarding ownership of the shares as that of the assessees. In the facts and circumstances of the case, we are of the view that capital gain as declared by the assessee has to be accepted and the addition made by the Assessing Officer deserves to be deleted. The same is directed to be deleted.” 4. Since the issue involved in the present case as well as all the material facts relevant thereto are admittedly similar to that of the cases of Smt Pushpa R Shah and Shri Ramesh V Shah, we respectfully follow the decision of the Tribunal rendered in the said case vide its order dated 29.7.2008 (supra) and delete the addition made by the Assessing Officer u/s 68 and confirmed by Learned CIT (A). We also direct the Assessing Officer to consider the claim of the assessee for exemption u/s 54F on merits. 5. In the result, appeal of the assessee is allowed. Pronounced in the Open Court today on the 5th day of January 2010.
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2010 (1) TMI 1170 - CESTAT CHENNAI
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... ... ..... ₹ 1,54,396/- we accordingly uphold the same along with the penalty of equal amount. As regards the main demand, we see merit in the contention of the appellants that principles of natural justice have been contravened by non-issue of show-cause notice to CTGC and GCC, in the light of Tribunal’s orders in Ogesh Industries Vs. CCE, Kanpur - 1997 (94) ELT 88 which has been followed in Dawn Fireworks Factory & Ors. Vs. CCE, Madurai - 1999 (31) RLT 104 and Ramsay Pharma (P) Ltd. Vs. CCE, Allahabad - 2001 (127) ELT 789 and the Tribunal’s decision in K.R. Balachandran Vs. CCE, Coimbatore - 2003 (151) ELT 68. We, therefore, set aside the demand confirmed by clubbing the value of clearances and the penalty imposed on this score and the penalty imposed on the Managing Partner, and remit the issue of clubbing for fresh decision after issue of show-cause notice to CTGC and GCC. 3. The appeals are thus partly allowed as above. (Dictated and pronounced in open court)
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2010 (1) TMI 1169 - ITAT JAIPUR
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... ... ..... 's own case for the asst. yr. 2006-07 shall be applied in the present case. In the circumstances and facts of the case the AO is directed to adjust the advance tax liability as prayed by the assessee on 12th Sept., 2006, 13th Dec., 2006 and 12th March, 2007 and charge the interest, if any. As regards the charging of interest under s. 234A, this being a legal ground is also admitted and the interest under s. 234A can be charged if the return is furnished after the due date. In the present case, as stated the return was filed on 29th Oct., 2007 and being auditable case the return was due on 31st Oct., 2007 and therefore no interest under s. 234A can be charged. In the circumstances and facts of the case the grounds raised by the assessee and the additional grounds are allowed. 14. Ground No. 4 of the assessee is general in nature and therefore does not require any adjudication. 15. In the result the appeal of the assessee in ITA Nos. 778 and 779/Jp/2009 are partly allowed.
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