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Income Tax - Case Laws
Showing 61 to 80 of 236 Records
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2010 (5) TMI 839
Valuation of cost of acquisition of FSI and TDR - HELD THAT:- We are of the opinion that the Ld. CIT(A) was right in assessing the transfer of FSI/TDR under the head "capital gain" instead of assessing the same under the head "income from other sources". However, as there is no cost of acquisition of the asset transferred, there will be no liability to capital gains.
''Ld. CIT (A) held that Once it has been decided that sale of FSI in the form of development rights results into capital gains, it is crystal clear that the compensation received by the appellant has to be assessed as capital gains. The loading of TDR has been possible on the plot of land in question only on account of the ownership right of the appellant subsisting in the piece of land. Transfer of such TDR to the developer through development agreement, therefore, clearly results in capital gains. The AO is, accordingly, directed that the gain arising on transfer of FSI/TDR rights be assessed as capital gain for which he will make the necessary calculation of sale consideration and cost of acquisition and/or improvement. He will also allow exemption u/s. 54 and 54EC to the extent of investments made, after due verification.'' Similar view has been taken in the case of Jethalal D. Mehta vs Dy. CIT [2005 (1) TMI 595 - ITAT MUMBAI] and Maheshwar Prakash[2008 (5) TMI 455 - ITAT MUMBAI].
In the result, the appeal filed by the Revenue is dismissed.
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2010 (5) TMI 838
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... ... ..... 20. We have heard the rival submissions made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We find admittedly there is neither any discussion nor any addition/disallowance of ₹ 20,000 on account of legal fees. Although a Paper Book has been filed containing 96 pages, the assessee has not filed the copy of the computation of income to substantiate that he has claimed the deduction of ₹ 20,000 on account of legal fees. No documentary evidence was produced before us to substantiate that the assessee has in fact claimed deduction of ₹ 20,000 on account of legal fees. We, therefore, do not find any infirmity in the order of the CIT(A) rejecting the claim of the assessee. In this view of the matter, the ground raised by the assessee is dismissed. 21. In the result, I.T.A. No. 1610/Mum/2007 is allowed whereas I.T.A. No. 7100/Mum/2008 is partly allowed. Pronounced on 14th May, 2010
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2010 (5) TMI 837
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... ... ..... ee. Such a claim made in the return cannot amount to furnishing inaccurate particulars.” 17. Respectfully following the above decisions and keeping in view that there is no finding of the AO that the details furnished by the assessee are found to be incorrect or erroneous or false we are of the view that, under such circumstances, the penalty is not leviable. Further making of wrong claim is not at par with concealment or giving of inaccurate information, which may call for levy of penalty u/s. 271(1)(c) of the Act. This view also finds support from the recent decisions in CIT vs. Sidhartha Enterprises (2010) 322 ITR 80 (P&H) and CIT vs. Shahabad Co-op. Sugar Mills Ltd. (2010) 322 ITR 73(P&H). Accordingly we are inclined to uphold the order of the ld. CIT(A) in deleting the penalty imposed by the AO. The ground taken by the revenue is therefore, rejected. 18. In the result, revenue’s appeal stands dismissed. Order pronounced in the open court on 7.5.2010.
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2010 (5) TMI 836
Validity of reopening of assessment u/s 147 - Interest income on FDR - “Income from other sources” - Facts of the case, The assessee filed its return of income along with the audit report u/s 44AB.The return of income was processed u/s 143(1). Thereafter the AO recorded reasons for reopening and issued a notice u/s 148 reopening the assessment. the AO considered the interest income received by the firm on bank FDRs, as income from other sources. Thus he reduced amount from the book profits declared by the assessee and thereafter recomputed the allowance of remuneration to partners u/s 40(b) and completed the assessment. Aggrieved, the assessee carried the matter in appeal, inter alia, challenging the reopening of the assessment, assessing the interest income on FDR under the head “Income from other sources” and not under the head” “Income from profession” as well as the computation of book profits by the AO and addition made on share income relating to an ex partner. On appeal, the first appellate authority held hat reopening was bad in law, as, as per him, he did not see any case for escapement of income. Aggrieved, the Revenue had filed this appeal
HELD THAT:- In any event, the reopening, if taken to its logical conclusion, would not be revenue-neutral in the hands of this assessee. At the stage of reopening, the AO cannot be expected to verify all the files of the recipients of remuneration and then estimate the escapement of income. This is not contemplated under the Act. Hence in our considered opinion, the order of the CIT(Appeals) is erroneous, on all three counts, on which he held that the reopening is bad in law.
In our considered opinion, the decision in the case of Rajesh Jhaveri Stock Brokers P. Ltd. [2007 (5) TMI 197 - SUPREME COURT] applies on all fours to the facts of this case. Respectfully following the same, we uphold the validity of reopening of assessment u/s 147 and set aside the order of the CIT(Appeals) on this aspect. In the result, this ground of the Revenue is allowed.
As the first appellate authority had not adjudicated the issue on merits, we set aside the matter to the file of the CIT(A) for fresh adjudication of the merits of the case. In the result, the appeal of the Revenue is allowed.
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2010 (5) TMI 834
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... ... ..... e expenses have personal element, therefore, he disallowed 1/5th of the expenses claimed by the assessee. The CIT(A) found that the disallowance was reasonable. 9. After hearing both the sides, we find that the AO disallowed 1/5th expenses on presumption that there is personal element in the expenditure without pointing out specific personal element. Whereas the contention of the assessee is that these expenses were incurred wholly and exclusively for the purpose of business as the conveyance expenses were related to staff for their railway passes etc. We are of the view that without bringing on record the specific reasons of personal element, such expenses cannot be disallowed merely on assumption that there will be personal element in the expenses. We, therefore, delete the addition of ₹ 21,083/- out Diwali expnses & ₹ 37,463/- out of conveyance. 10. In the result appeal of the assessee is partly allowed Pronounced in open court on this 7th day of May, 2010
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2010 (5) TMI 833
Exemption u/s 11 - registration u/s 12AA(3) denied - DIT(Exemption) stated that the registration u/s 12AA(3) was granted erroneously and therefore it was withdrawn from the first date of the registration -assessee is an autonomous body set up and governed by the provisions of The Gujarat Town Planning and Urban Development Act, 1976 (“GTP Act”) and was registered u/s 12AA of the DIT(Exemption) but subsequently cancelled the registration u/s 12AA w.e.f. 1-4-2002.
HELD THAT:- As evident that once a trust or institution has been granted registration u/s12AA(3), subsequently, the if Commissioner finds that one of the conditions viz. (i) the activity of such trust or institution are not genuine, and (ii) the activity of the such trust or institution are not being carried out in accordance with the objects of the trust or institution is satisfied, then the Commissioner has power to cancel registration granted u/s.12AA(1) by passing an order in writing. Therefore, registration granted u/s.12AA(1) cannot be cancelled u/s.12AA(3) unless one of the conditions prescribed u/s.12AA(3) is satisfied.
In present case, the assessee is recovering the cost as provided under the “GTP Act”, under which the assessee is functioning. Merely because the assessee is recovering the cost of the project, partially or wholly, it cannot be said that the activities of the assessee are not being carried out in accordance with the object of the institution. None of the conditions as prescribed u/s12AA(3) is satisfied in the case of the assessee so as to cancel the registration granted u/s 12AA.
We therefore quash the order of the DIT(Exemption) passed u/s 12AA(3) and restore the order of the Registration passed by the DIT(Exemption) u/s12AA(1). In the result, the assessee’s appeal is allowed.
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2010 (5) TMI 831
Nature of expenditure - interest/expenditure allowed as revenue expenditure incurred for new unit which was a separate unit from existing unit and this new unit had not started production - HELD THAT:- Both, the Tribunal as well as CIT (A), have recorded concurrent findings of fact and come to the conclusion that the so called new unit was merely an expansion of the existing business of the assessee and was not setting up of a new business and as such the expenses incurred in this regard were allowable as revenue expenses.
Considering the fact that the AO had not considered the claims of each of the items of expenditure incurred by the assessee from the angle as to whether the same were in the nature of revenue or capital expenditure, the matter has been restored to the AO to look into the nature of the expenses and consider as to whether the same are allowable u/s 36(1)(iii) or Section 37. In the circumstances, no infirmity can be found in the approach adopted by CIT (A) as confirmed by the Tribunal so as to warrant interference.
The appeals are, accordingly, dismissed.
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2010 (5) TMI 830
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... ... ..... 104 of the I. T. Act, 1961. iii) In the case of Investment Ltd. Vs. CIT 77 ITR 535 (SC) relates to the assessment year 1953-54 in respect of some government securities and shares of Public Ltd. companies. The provisions regarding capital gains and its taxability were introduced in the old Act w.e.f. 1.4.1957. Therefore, the ratio as laid down in that case is not relevant to this case. In view of the above, we are of the considered opinion that the findings of the lower authorities that the profit of ₹ 69,56,024/- arising from sale of shares from assessee company’s portfolio for investment in shares was business income is not sustainable in law. The orders passed by them on this issue are hereby set aside. The AO is directed to accept the claim of the assessee that gain of ₹ 69,56,024/- was a capital gain. The appeal of the assessee is allowed. 6. In the result, the appeal of the assessee is allowed. 7. The order is pronounced in the open court on 14.5.2010
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2010 (5) TMI 829
Registration u/s 12AA Rejected - assessment of trust - university is not a competent person for making application for its registration u/s 12AA, it is not a charitable institution as it is intended to benefit only a limited number of persons, it is not meant to carry out any charitable purpose as there is no element of any benefit by way of donations to common man, and it will be charging substantial fees from the student -case of the learned counsel was that the university shall become a body corporate as soon as it is established as a private university under section 6 of that Act - whether, the assessee-university is competent to file an application for its registration?
HELD THAT:- Assessee came into existence by way of Ordinance No. 4 of 2009 promulgated by Governor, which was subsequently adopted by the Assembly of the State of Haryana on 20-3-2009. The name of the assessee has been added in the Schedule to that Act. Under section 7 of that Act, every university established by an Act of the State Legislature under section 6 shall be a body corporate by the name as specified in the Act and shall have perpetual succession and a common seal. It shall have the power to acquire and hold property and to make contract, and shall sue and be sued in its name.
We find that that Act clothes the assessee-university with the character of a body corporate, an artificial juristic person with powers to hold properties, make contracts and sue or be sued. Therefore, the juristic person created under that Act may or may not be incorporated as a company or a society so as to be a person under the Act. Accordingly, we are of the view that the learned CIT erred in coming to the conclusion that the assessee-university is not a competent person to make an application for its registration.
Sponsoring Body and the assessee university are two different persons during the life-time of the latter. Assuming for a moment that they are the same person, then it follows automatically that the activities of the university are entitled to exemption under section 11, as the Sponsoring Body has already been registered by the Director of Income-tax (Exemption) vide order dated 25-4-2005, a copy of which has been placed before us.
Therefore, the objection of the learned CIT is merely technical, in nature. However, we are of the view that in view of section 7, the assessee is a separate juristic person, separate and apart from the Sponsoring Body. By virtue of this provision, it is a competent person u/s 12AA, to apply for its registration.
Whether, the assessee university is a charitable institution as understood under the Act? - The expression "charitable purpose" was defined in an inclusive manner to include relief of poor, education, medical relief and advancement of any other object of general public utility. The objects of the assessee-university are mentioned in that Act, in section 3, all of which are educational in nature, primarily aimed awarding diplomas and degrees to the students. The funds of the university are to be applied in accordance with section 13, which are either in the nature of disbursement of expenses or granting fellowship, freeship, schoolship etc., to students belonging to weaker sections of the society.
The only benefit granted to the Sponsoring Body is that in case of dissolution the assets and liabilities of the assessee university shall vest in it. However, as seen earlier, the Sponsoring Body itself is a charitable institution, registered u/s 12AA. Therefore, the net assets going to the Sponsoring Body amount to application of assets or accumulated income for charitable purpose. Therefore, when assets and liabilities get vested in the Sponsoring Body on dissolution, it can be said at that time also that the application of the assets or accumulated income is for charitable etc., purposes.
Date of registration of the university - We have held that the objects are charitable in nature. The first step in setting up the university was acquisition of land for construction of building. We are not able to ascertain from the record the date on which the land was acquired. The construction on the land has commenced and as mentioned earlier, substantial expenditure has been incurred.
Therefore, the learned CIT may ascertain the date of acquisition of land from the assessee. The assessee may be granted registration from the date on which it took first step i.e., acquired the land as it can be said that from that date it initiated process for achieving its objects. The assessee will be entitled to the registration from this date or the 1st day of April of the year in which the application for registration was moved.
In view of the aforesaid discussion, we are of the view that the learned CIT erred in refusing to register the assessee university.
University approval u/s 80G - HELD THAT:- The provision contained in section 80G 5(iii) makes it clear that the approval can be granted only if the institution is formed wholly for charitable purposes and none of its object is of religious nature. Section 80G(5B) grants some concession in this matter that approval can be granted if not more than 5 per cent of the total income of a year is applied towards religious purposes. We find that there is no ceiling on religious expenditure in the objects of the Sponsoring Body.
Considering the facts of this case, it is true that none of the objects of the assessee-university pertain to religious activities. However, on its dissolution, all its assets shall vest in the Sponsoring Body. Section 80G(5)(ii) contains the word "do not contain any provision for the transfer or application at any time (emphasis supplied) of the whole or any part of the income or assets of the institution or fund for any purpose other than a charitable purpose".
We have supplied emphasis to the words "at any time" for the reason that transfer of its assets and liabilities on dissolution will fall within the ambit of the words "at any time". The rules governing the assessee university contain a provision for transfer of its asset to the governing body, whose objects include a manifestly religious object. In view thereof, and in view of the aforesaid decision rendered by Hon’ble Supreme Court in the case Upper Ganges Sugar Mills Ltd. v. CIT [1997 (8) TMI 4 - SUPREME COURT].
Coming to the facts of this case, it is true that none of the objects of the assessee-university pertain to religious activities. However, on its dissolution, all its assets shall vest in the Sponsoring Body. Section 80G(5)(ii) contains the word "do not contain any provision for the transfer or application at any time (emphasis supplied) of the whole or any part of the income or assets of the institution or fund for any purpose other than a charitable purpose". We have supplied emphasis to the words "at any time" for the reason that transfer of its assets and liabilities on dissolution will fall within the ambit of the words "at any time". The rules governing the assessee university contain a provision for transfer of its asset to the governing body, whose objects include a manifestly religious object - we are of the view that the assessee university is not entitled to approval u/s 80G.
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2010 (5) TMI 828
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... ... ..... e held thus “Can the amount of share money be regarded as undisclosed income under s. 68 of IT Act, 1961? We find no merit in this Special Leave Petition for the simple reason that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law. Hence, we find no infirmity with the impugned judgment.” 7. In our considered view, reliance placed by the Tribunal on the said decision in the obtaining factual matrix is totally justified. In the case at hand, the identity of the creditors is known and hence the Assessing Officer can really proceed as has been held by their Lordships in Lovely Exports (P) Ltd. (supra) against such creditors in accordance with law. 8. In the result, we do not find any substantial question of law involved in this appeal and accordingly the same stands dismissed in limine.
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2010 (5) TMI 827
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... ... ..... ts, or gains of business of the assessee, is unjustified. 3. In the accounting principles, rule of consistency is very important, and, thus, there would no reason for the AO to reject the books of account on the basis of applying different method of valuation of stock, unless it is established that the method of valuation of stock in trade followed by the assessee was not at all permissible and it did not give a true and correct picture of income, profits, or gains derived by the assessee from the business. 4. Though, rule of res judicata or estoppel is not applicable to the income tax proceedings, but rule of consistency particularly in the matter of system of accounting, apply to such proceedings. 15. For the reasons given above, we, therefore, uphold the order of the ld. CIT(A) in deleting the addition of ₹ 32,13,980/- made by the AO. 16. In the result, the appeal filed by the revenue is dismissed. 17. This decision is pronounced in the open court on 14th May, 2010.
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2010 (5) TMI 826
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... ... ..... for the earlier years deleted the disallowance made by the Assessing Officer. We find the order of the CIT(A) for the A.Y. 2002-03 has been upheld by the Tribunal in its consolidated order vide I.T.A. No. 3233/Mum/2006 and I.T.A. No. 3474/Mum/2006 order dated 19th December, 2008 for the A.Y. 2002-03 wherein it has been held that the assessee is entitled to indexation as provided in section 48 of the Act on non cumulative redeemable preference shares. Since the CIT(A) has followed the order of his predecessor for the A.Y. 2002-03 which has been upheld by the Tribunal, therefore, in absence of any contrary material brought to our notice against the decision of the Tribunal the same is upheld and the ground raised by the Revenue is dismissed. 22. Grounds of appeal No. 3 by the Revenue being general in nature is dismissed. 23. In the result, I.T.A. No. 4178/Mum/2009 is partly allowed for statistical purposes and I.T.A. No. 4179/Mum/2009 is dismissed. Pronounced on 14th May, 2010
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2010 (5) TMI 825
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... ... ..... tless to argue that the organizational change has caused conversion of the existing unit to a new unit. There is no such splitting up or reconstruction of an existing business in the case of a branch establishment becoming a subsidiary establishment. The assessee's unit satisfied all the conditions stipulated in the Act and was entitled for the benefit. Therefore, as rightly held by the CIT(A), a mere organizational change is not a ground to hold that the assessee has violated the conditions stated in 10A(2)(ii). It is a case of only change in the name and style. It is clearly possible to state that there was no violation of the conditions laid down in sec. 10A(2)(iii) as well. 11. Therefore, in the facts and circumstances of the case, we find that the orders passed by the CIT(A) are sustainable in law and do not call for any interference. His orders are upheld, accordingly. 12. In result, the appeals filed by the Revenue are dismissed. Order pronounced on the 19.5.2010.
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2010 (5) TMI 824
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... ... ..... o; 7. In view of the above facts and circumstances and respectfully following in the case of Reliance Petroproducts Pvt. Ltd. (supra) we confirm the order of CIT(A) deleted the penalty levied by the Assessing Officer u/s.271(1)(c) of the Act. Similarly, in the case of Jay Ambe Developers in ITA No.186/Ahd/2008, taking a consistent view, we confirm the order of CIT(A) deleting the penalty levied by Assessing Officer. 8. As regards to CO of assessee CO No.60/Ahd/2008 arising out of ITA No.185/Ahd/2008, the Ld. counsel for the assessee stated that he has instruction from the assessee not to press the CO and accordingly, the same can be dismissed as withdrawn. Ld. SR-DR has not objected to withdraw. In view of the above facts and circumstances we permit the assessee to withdraw the CO and dismiss the same. The CO is dismissed as withdrawn. 9. In the result, both the appeals of the assessee are allowed and CO is dismissed as withdrawn. Order pronounced in Open Court on 11/05/2010
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2010 (5) TMI 823
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... ... ..... . (6) Thus both, Commissioner (Appeals) as well as the Tribunal have upon appreciation of the evidence on record found that the revenue has not been able to make out any case for applying the provisions of section 40A(2)(a); and that interest on unsecured borrowings is always higher than the rate of interest paid to the banks or financial institutions from where the loans raised are secured loans, and have accordingly accepted interest paid to Sun Pharmaceuticals at the rate of 24 p.a. to be reasonable. In the light of the concurrent findings of fact recorded by Commissioner (Appeals) as well as the Tribunal, and considering the fact that the findings and conclusions arrived at by the Tribunal are based on the evidence on record as well as normal commercial practices, it cannot be stated that the impugned order suffers from any legal infirmity so as to warrant interference. (7) In absence of any question of law, much less substantial question of law, the appeal is dismissed.
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2010 (5) TMI 822
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... ... ..... -03-2004 31-03-2005 and closing stock shown by assessee includes the stock seized. We further find that the valuation shown by assessee in accounts in respect of seized diamonds is ₹ 67,66,360/- which is almost at par with the valuation made by Department at ₹ 67,93,643/-. The opening stock and closing stock for the year 2003-04 was the same as there was no purchase and sale during the year at Mumbai office. There was only purchase and sale at Surat office. In view of these facts and circumstances, we are of the view that there are ample evidences which prove that the diamond seized are explained and purchased from disclosed sources as these are fully disclosed in the books of accounts. Accordingly, we accept the explanation of the assessee and the orders of the lower authorities on this issue are reversed. This issue of assessee’s appeal is allowed on merits. 5. In the result, assessee’s appeal is allowed. Order pronounced in Open Court on 31/05/2010
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2010 (5) TMI 818
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... ... ..... of expenditure incurred and allowed in the computation of business income between expenditure attributable for earning business income and for earning dividend income is done in an arbitrary manner. Since none of the lower authorities considered the reasonableness of the estimate, which is nothing but part of the actual expenditure incurred and allowed in the computation of total income, we have to necessarily remand the matter to the Assessing Officer to bifurcate the expenditure that are admissible in the computation of business income and expenditure that are admissible in the computation of dividend income and to make fresh assessment. The Assessing Officer shall make fresh assessment computing income from business and income from dividend under separate heads granting eligible deductions under the relevant provisions of the Act and then grant admissible deduction to the assessee under section 80M on the net dividend computed in accordance with the provisions of the Act.
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2010 (5) TMI 816
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... ... ..... h in no way stand the testimony of scrutiny. For the year under dispute, the assessee had included JCB expenditure under the head ‘vehicle maintenance’ whereas in the immediately previous year, the JCB expenditure was added to clay excavation which was included in raw material and consumables. This fact has not been disputed by the AO. The assessee had claimed JCB expenses (excavation of clay and maintenance) of ₹ 6.88 lakhs which was added to the vehicle maintenance and it, perhaps, contributed the hike in the expenses claimed. This phenomenon has not been properly appreciated by the AO. (13) Considering the over all facts and circumstances of the issue, we are in total agreement with the finding of the Ld. CIT (A) who was fully justified in deleting the addition on this count. In the result, the Revenue’s appeals for the assessment years, 2003-04, 2004-05, 2005-06 and 2006-07 are dismissed. Pronounced in the open court on this 21st day of May, 2010.
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2010 (5) TMI 814
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... ... ..... rent on the record”. We, therefore, conclude that the rectification sought to be done in this case by addition of certain liabilities could not be said to be a mistake apparent on the record.” 13. Applying the ratio of the above decisions to the facts of the present case we are of the view that under the facts and circumstances of the case it is a case of mere change of opinion and the decision on a debatable point of law is not a mistake apparent from the record, therefore, the Assessing Officer has erred in invoking the provisions of section 154 of the Act and accordingly we are inclined to uphold the order of the ld. CIT(A) in holding that the matter could not have been rectified u/s.154 and in deleting the addition made by the Assessing Officer. The common grounds taken by the revenue for the Assessment Years 2000-01 and 2001-02 are therefore, rejected. 14. In the result revenue’s appeals stand dismissed. Order pronounced in the open court on 21.5.2010.
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2010 (5) TMI 813
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... ... ..... unal. Similarly, the Revenue’s appeal was also not examined because the assessment itself had been quashed on the first ground taken by the assessee before the Tribunal.? In view of the aforesaid order passed by the Tribunal, the appeal of the Revenue has to be allowed and the matter has to be remitted to the Tribunal for fresh adjudication. As far as the Cross Objection is concerned, learned counsel for the Assessee submitted that apart from the jurisdiction of the Additional Director he has raised many a issue in the Cross Objection. In view of the aforesaid, we only say that barring the issue with regard to the inherent jurisdiction or lack of jurisdiction all other issues that have been taken in the Cross Objection at the preliminary stage can be argued by the Assessee and the same shall be adverted to by the Tribunal. In the result, ITA No.511/2010 is allowed and ITA No.522/2010 stands disposed of with the aforesaid directions. There shall be no order as to costs.
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