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Showing 141 to 160 of 915 Records
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2010 (7) TMI 1092 - ITAT INDORE
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... ... ..... egard reasonability of remuneration paid to the persons, we find that the AO has compared persons of different capacity and having different objects and interest, hence, the same cannot books of account proper comparison to arrive at the reasonability of the amount of remuneration paid to Shri K.L. Thakral, Shri Praveen Thakral and Shri Arun Sachdev. Hence, in this view of the matter, we dismiss this ground of the Revenue also. 49. As regard to the aspect of personal use of telephone by Shri K.L. Thakral, we find that the view of the AO is in the realm of presumption/suspicion only and, therefore, we dismiss this ground of the Revenue also. 50. The issues raised in appeal in I.T.A.No. 318/Ind/2006 are identical, hence, these are also dismissed for the reasons mentioned above. 51. In the result, both these appeals of the Revenue are also dismissed. 52. To sum up, all the appeals of the Revenue are dismissed. This order has been pronounced in the open court on 13th July, 2010.
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2010 (7) TMI 1091 - ITAT MUMBAI
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... ... ..... T vs. International Audio Visual (2007) 288 ITR 570 (Del) (5) CIT vs. Nath Bros Exim International (2007) 288 ITR 670 (Del) (6) CIT vs. Santosh Financiers & Ors (2001) 247 ITR 742 (Ker) These judgments also support the decision of the CIT(A). 8. In the present case there is one more aspect which is that the assessee’s appeal to the High Court has been admitted and two substantial questions of law have been framed by the High Court. In the case of CIT vs. Off Shore India Ltd. (1994) 209 ITR 473 (Cal) the Calcutta High Court has held that when the High Court has admitted the question of law against the order of the Tribunal, it cannot be said that the claim of the assessee is frivolous. This judgment also applies to the present case in support of the assessee. 9. For the above reasons we agree with the order of the CIT(A) cancelling the penalty and dismiss the appeal filed by the Revenue with no order as to costs. Order pronounced in the Open Court on 16th July 2010.
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2010 (7) TMI 1090 - ITAT MUMBAI
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... ... ..... of the Hon’ble Jurisdictional High Court and Co-ordinate Benches of the Tribunal (supra) we are of the view that the reference made by the A.O to the DVO u/s.55A(a) under the peculiar facts and circumstances of the case is bad in law. In the absence of any satisfaction recorded by the AO u/s. 55A(b) of the Act, we do not find any merit in the plea taken by the ld. D.R in this regard. The legal ground No.1.1 taken by the assessee is, therefore, allowed. 11. Since the assessee succeeds on the legal ground we do not consider it necessary to adjudicate the issue on merits. However, in view of our finding recorded in para 10 of this order, the AO is directed to accept the value of asset as shown by the assessee and to allow the benefit of deduction u/s. 54F as according to law. The ground taken by the assessee to this extent is, therefore, allowed. 12. In the result, the assessee’s appeal stands allowed. Order pronounced in the open court on the 9th day of July, 2010
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2010 (7) TMI 1089 - ITAT CUTTACK
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... ... ..... s undisclosed income of the assessee under the provisions of Section 68. There may be some bogus shares holders in whose names share had been issued and the money may have been provided by some other persons which the Department is free to reconsider by verifying their assessment records. The learned Counsel before us has submitted that the three ingredients of the share holder’s identity, genuineness of the transactions and creditworthiness were provided to the authorities below and therefore, onus shifted on the Revenue to reopen their individual cases instead of making addition in the hands of the assessee u/s.68. In this view of the matter, this ground filed by the assessee is bound be allowed issue being covered by the decisions of Hon’ble Apex Court. Therefore, the impugned addition of ₹ 61,50,000 made u/s.68 is deleted. 8. In the result, the appeal of the assessee is considered partly allowed. This Order is Pronounced in Open Court On Dt. 27.07.2010.
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2010 (7) TMI 1088 - SUPREME COURT
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... ... ..... obtaining admission on the strength of fake documents and then decided whether the direction given by the District Forum, which was upheld by the State Commission was legally sustainable. Its failure to do so has resulted in miscarriage of justice. 14. In the result, the appeal is allowed. The impugned order of the National Commission as also the orders passed by the District Forum and State Commission are set aside and the matter is remitted to the District Forum for fresh adjudication of the complaint filed by respondent No.1. The District Forum shall decide the objection raised on behalf of the appellant to the very maintainability of the complaint as also the issue of limitation. The District Forum shall also consider the report of the Deputy Secretary of the Board after giving an opportunity to respondent No.1 to submit his reply in the context of the findings and conclusion recorded therein and then pass appropriate order. The parties are left to bear their own costs.
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2010 (7) TMI 1087 - SUPREME COURT
Arbitration petition - decree in terms of the award - umpire exceeded jurisdiction - The present case relates to an international commercial contract and as noted earlier the appellant and MII had agreed to subject themselves to the domestic laws of India as well as the International law and conventions. On this background the appellant wanted to safeguard itself in the event of change of law in India to which the respondent had agreed. It was submitted that any narrow interpretation of Clause 17.3 to exclude the reimbursement of the income tax liability of the sub-contractor will defeat the purpose in providing this safeguard under clause 17.3 and will make it otiose.
HELD THAT:- As we have noted above the umpire has looked into the evidence before him including that of the respondent’s officer as to how MII had participated in the bid clarification meetings. He considered the submission of the appellant as to how the sub-contract was also tax protected, which was their main plea. It is true that if there is an error apparent on the face of the award or where the umpire had exceeded his jurisdiction or travelled beyond the reference, the court can interfere. However in view of what is noted above it is not possible to say that the award suffers from any of the above defects so as to call for interefence. The intention of the parties in providing a clause like clause 17.3 could not be ignored. It had to be given a due weightage. This is what the umpire has done and has given the direction to the respondent to compensate the appellant for the amount of the necessary and reasonable extra cost caused by change in law. We have no hesitation in holding that the award of the umpire is a well reasoned award and one within his jurisdiction, and which gives a meaningful interpretation to all the clauses of the contract including clause 17.3. In the circumstances in our view the High Court has clearly erred in interfering with the award rendered by the umpire.
However, we are not required to go into that issue since we are otherwise holding that the award was not only a plausible one but a well-reasoned award. In the circumstance the interference by the High Court was not called for. In that view of the matter we allow this appeal and set aside the judgment of the learned single Judge, as well as that of the Division Bench. The award made by the Umpire is upheld and there shall be a decree in terms of the award. The arbitration petition filed by the respondent for setting aside the award shall stand dismissed with cost.
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2010 (7) TMI 1086 - ITAT KOLKATA
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... ... ..... idering the said bank statement, the extract of which has been given by the Ld. CIT(A) at page 3 of the impugned order, which has already been reproduced hereinabove, we are of the considered view that the peak of the balance in the said bank account should be considered as unexplained investment u/s. 69 of the I. T. Act. On perusal of the said bank statement, we observe that the peak balance as on 14th June, 2005 of ₹ 16,15,261/- and in the facts and circumstances of the case, the said amount could be considered as unexplained investment by way of deposit in the said undisclosed bank account. Therefore, we modify the orders of the authorities below and restrict the addition to ₹ 16,15,261/- u/s. 69 of the I. T. Act as against ₹ 49.09 lacs u/s. 69A as sustained by the Ld. CIT(A). Hence, the ground Nos. 1 to 3 of the appeal taken by the assessee are allowed in part. 4. In the result, the appeal of the assessee is allowed in part Order pronounced on 30.7.2010
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2010 (7) TMI 1085 - ITAT KOLKATA
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... ... ..... id cash deposits and cheques deposits could not be considered for estimating the undisclosed income of the assessee. However, we find that the facts undisputed are that there were deposits as well as withdrawals from time to time from the said Bank account. Therefore, we are of the considered view that the peak of the amount deposited in the said undisclosed bank account in the Financial Year relevant to the Assessment Year under consideration should be considered as undisclosed income of the assessee. Accordingly, we modify the impugned orders of the authorities below and direct the Assessing Officer to assess the undisclosed income of the assessee by considering the peak amount of deposit in the said undisclosed Bank account. We order accordingly. 6. In the result, the appeal of the Revenue is partly allowed in the manner as indicated in the foregoing paragraph. The Cross objection filed by the assessee is dismissed. THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt. 02.07.2010
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2010 (7) TMI 1084 - ITAT DELHI
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... ... ..... ver expenses and since such expenditure did not bring any enduring benefit considering the ownership and the function of such expenditure, this expenditure cannot be treated as capital and hence in view of the Delhi High Court’s decision in the case of Sumitomo Corporation India Pvt. Ltd. Vs. CIT (2005) 150 SOT 91 (Del) where it has been held that software expenses by their own nature are revenue expenditure, the disallowance of ₹ 1,45,864/- being without any merits is deleted.” 13. After considering the totality, facts and circumstances of the case, and nature of the expenditure incurred by the assessee, where the assessee has upgraded the server for better functioning of its business activities, we are in full agreement with the learned CIT(A) in deleting the addition. Therefore, this ground raised by revenue is also rejected. 14. In the result, the appeal filed by the revenue is dismissed. This decision is pronounced in the open court on 23rd July, 2010.
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2010 (7) TMI 1083 - ITAT MUMBAI
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... ... ..... and also the fact that closing stock valuation made in this year was given as a benefit in the later year as opening stock which makes no Revenue loss to the exchequer, We are of the opinion that the explanation given by the assessee with reference to this addition made by the A.O. can be accepted as a bonafide explanation and accordingly there is no need for levy of penalty on this amount. 11. The assessee’s counsel relied on various case laws in support of various contentions which we have considered. There is no need to repeat the propositions in this order. Suffice to say that the case is examined on facts and on law and we are of the opinion that there is no need to consider the various disallowances/additions/change of head made by the A.O, for penalty under section 271(1)(c). Accordingly assessee’s grounds are allowed. Order of penalty is cancelled. 12. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 30th July 2010.
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2010 (7) TMI 1082 - ITAT MUMBAI
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... ... ..... ct of the particulars. At the first instant, the assessee tried to make out a claim that the entire rental income is exempt on the concept of mutuality. Thereafter, he made out a claim that the entire income is to be assessed as income from house property. But both the claims of the assessee have been negated. The A.O brought to tax the entire rental income/license fee under the head ‘income from other sources’. As per the facts before us only controversy was in respect of the head of income under which the income is to be assessed. We do not find that any conscious act on the part of the assessee for concealing the particulars of income. In our opinion, there is no justification to support the penalty order passed by the A.O u/s 271(1)(c) of the Act levying penalty upon the assessee. Accordingly, the penalty order is cancelled and the penalty is deleted. 5 In the result, the appeal filed by the assessee is allowed. Order pronounced on the 30th, day of July 2010.
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2010 (7) TMI 1081 - ITAT MUMBAI
Income taxable in India - Remittances of conference expenses - liability to deduct tax at source - DTAA between India and USA - PE In India - HELD THAT:- We are of the view that the nature of services rendered by CKP to the assessee-company is such that the same cannot be regarded as technical or consultancy services so as to fall within the definition of "fees for included services" as given in Article 12 of the Indo-US Tax Treaty. The payment made for the said services, thus, is in the nature of business profits in the hands of CSK as covered under Article 7 of the Treaty and the said party admittedly having no PE in India in the year under consideration, the same was not chargeable to tax in its hand in India. Consequently, the assessee-company was not liable to deduct tax at source from the said payment made to CSK and no liability could be fastened on it u/s 201/201(1A). We, therefore, reverse the impugned order of the ld. CIT(A) upholding the order passed by the AO on this issue u/s 201/201(1A) and allow the appeal of the assessee.
TDS u/s 195 - Remittances made to the non-resident - nature of services rendered by CROs - liability u/s 201/201(1A) - assessee, here is a pharmaceutical company having in-house research facility generic drugs developed by the assessee-company are, therefore, sent for testing at the laboratories of CROs abroad. CROs conduct test and experiments on these drugs and send back analysis report containing results of such test and experiment - HELD THAT:- As rightly observed by the ld. CIT(A), the CROs, thus, use their own skills, equipments, etc., to prepare the report - what they ultimately supply to the assessee-company is the analysis report and there is no parting with their skills and know-how to the assessee-company. The services rendered by CROs, thus, are not technical in nature but are merely in the nature of commercial services. The fees paid for such services, in our opinion, therefore, does not amount to fees paid for technical services or fees paid for making available any technology to the assessee-company in order to enable to apply the same for developing/inventing new drugs in future.
We are of the view that the nature of services rendered by CROs to the assessee-company is such that the same cannot be regarded as technical or consultancy services so as to fall within the definition of "fees for included services" and the payment made for such services, therefore, was not chargeable to tax in India in the hands of the concerned CROs. Consequently, the assessee-company was not liable to deduct tax at source from the said payment made to CROs and no liability could be fastened on it u/s 201/201(1A). We, therefore, uphold the impugned order of the ld. CIT(A) giving relief to the assessee on this issue and dismiss the appeal filed by the revenue.
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2010 (7) TMI 1080 - BOMBAY HIGH COURT
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... ... ..... BPMC Act, and there is no substance in the aforesaid submission raised by the learned counsel for the petitioners. 10. In our opinion, the petitioners have equally efficacious alternate remedy by filing the appeal u/s.406 of the BMPC Act. It would be open to the petitioners to raise all the contentions before the learned Judge in the appeal u/s.406 of the BPMC Act. We do not express any opinion on these contentions. 11. In case the petitioners prefer the appeal within eight weeks from today, the learned Judge shall decide the same in accordance with law by taking into consideration the fact that the petitioners were bonafide prosecuting their remedies in the form of this writ petition in this Court. 12. The order dated November 29, 2007 passed by the Cess Officer of the NMMC is quashed and set aside with liberty to the NMMC to recover the cess liability in any other manner authorised by law. 13. Rule is made partly absolute in the aforesaid terms, with no order as to costs.
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2010 (7) TMI 1079 - SUPREME COURT
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... ... ..... rd such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise. 18. The various decisions cited by A. Sumathi, learned Advocate for the first intervenor, Shri A.V. Prema Nath, are not of assistance in the facts of this case, which depends on its own facts and interpretation of Sections 32 and 33 of the Disabilities Act, 1995. 19. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court. 20. The petitioners shall pay the cost of these proceedings to the respondent No.1 assessed at ₹ 20,000/-, within four weeks from date.
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2010 (7) TMI 1078 - SUPREME COURT
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... ... ..... nder Section 33C(2) of the Industrial Disputes Act but that in our opinion shall not denude jurisdiction to the Labour Court, if it otherwise possesses jurisdiction. Incorrect label of the application and mentioning wrong provision neither confers jurisdiction nor denudes the Court of its jurisdiction. Relief sought for, if falls within the jurisdiction of the Court, it can not be thrown out on the ground of its erroneous label or wrong mentioning of provision. In the present case the Labour Court, Dibrugarh satisfies all the requirements to decide the dispute raised by the employee before it. 17. As the matter is pending before Labour Court since long, it shall make endeavour to finally decide the dispute within 6 months from today. Appellant as also respondent are directed to appear before the Labour Court, within four weeks from today. 18. In the result, both the appeals are dismissed with cost, quantified at ₹ 25,000/- to be paid by the appellant to the respondent.
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2010 (7) TMI 1077 - ITAT MUMBAI
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... ... ..... he order of the Ld. CIT(A) and dismiss ground No. (i) & (ii) raised by the Revenue. 18. In the result, the Revenue’s appeal is dismissed.” 15. Since the issue under consideration is identical to that of the case decided by the ITAT in AY 2001-02 & 2002-03, we respectfully follow the same and in the light of that we dismiss the ground raised by the revenue. 16. Ground No. 4 raised by the revenue reads as under - “On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in holding that interest u/s 234B would not be leviable in respect of non-residents whose income is subject to deduction of tax u/s 195 and thus deleting the interest levied u/s 234B of the IT Act, 1961. 17. Charging interest u/s 234B is consequential in nature, therefore, the AO is directed accordingly. 18. In the result, the appeal of the assessee is partly allowed and appeal of the revenue is dismissed. Pronounced in open court on this16th day of July, 2010
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2010 (7) TMI 1076 - ITAT BANGALORE
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... ... ..... o; 12.1.2. We have considered the rival submissions and also the finding of the CIT (A) on the issue. While deleting the addition, perhaps, the CIT(A) has overlooked that the shortage of stock is on account of unaccounted sales and the profit element on the unaccounted sales are to be added to the income. Therefore, seven per cent adopted by the AO is to be calculated on the deficit of stock of ₹ 6.98 lakhs. To facilitate the AO to carry out the direction of this Bench, this issue is remitted back on the file of the AO. The AO shall, however, afford an opportunity to the assessee of being heard while carrying out the above direction. It is ordered accordingly. 13. In the result (i) Assessee’s appeals for - - the A.Ys 2001-02, 2002-03 and 2003-04 are partly allowed; & - the A.Ys 2004-05, 2005-06, 2006-07 and 2007-08 are dismissed. (ii) Revenue’s appeal for - - the A.Y 2007-08 is partly allowed. Pronounced in the open court on this 30th day of July, 2010.
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2010 (7) TMI 1075 - ITAT MUMBAI
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... ... ..... s the correct approach to be adopted in such cases and it is of fundamental importance to first ascertain whether the assessee is a dealer in shares or investor in shares. The character or the head of income under which the surplus is to be assessed for purposes of the Income Tax Act gets determined by the answer to this fundamental question. As we have already noted there are no strong materials to hold that the assessee traded in shares, whereas there is sufficient material to hold that she invested in shares as investor and never intended to carry on a business in shares. 13. For the above reasons we accept the contentions of the assessee and hold on the facts of the present case that the short term capital gains of ₹ 2,25,47,992/- on the sale of shares and mutual fund units should be assessed as short term capital gains as declared by the assessee. The appeal of the assessee is allowed with no order as to costs. Order pronounced in the Open Court on 23rd July 2010.
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2010 (7) TMI 1074 - ITAT AHMEDABAD
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... ... ..... ossible under normal provisions of the Act. It is with this purpose that when it was found difficult to prevent tax evasion by understating apparent sale consideration as compared to the valuation made by Stamp Valuation Authorities for the purposes of levying stamp duty then it was thought necessary to introduce section 50C for substituting apparent sale consideration by valuation done by Stamp Valuation Authorities. This fiction cannot be extended any further and, therefore, cannot be invoked by Assessing Officer to tax the difference in the hands of the purchaser.” 5. Following these decisions as well as the provisions of the law, we find no justification in Learned CIT(Appeals)’s view of confirming the addition on both the counts. Therefore, we hereby reverse those findings of the Learned CIT(Appeals) and allow the grounds of the Assessee. 6. In the result, the appeal of the Assessee is allowed. Order signed, dated and pronounced in the Court on 23/ 07 /2010.
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2010 (7) TMI 1073 - ITAT MUMBAI
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... ... ..... value of import entitlement receivable by appellant could not be treated as income accrued to the appellant in the year under appeal, since, it had neither accrued not arisen during the year of account. In our considered opinion, the cited decision squarely applies to the facts of the case in hand. We, therefore, respectfully follow the aforesaid order of the Tribunal and hold accordingly and in turn we delete the addition.” Respectfully following the orders of the Co-ordinate Bench of the Tribunal in the assessee’s own case, we have to necessary hold that Advance License Benefits Receivable and Duty Free Replenishment Certificate Receivable amounting to ₹ 19,51,254/- and ₹ 77,27,862/- respectively did not accrue to the assessee only when the raw material imported is consumed. Accordingly, we uphold the order of the first appellate authority. 3. In the result, the appeal is dismissed. Order pronounced in the open court on this 29th day of July, 2010.
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