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Showing 61 to 80 of 1047 Records
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2011 (2) TMI 1570 - ITAT MUMBAI
Non prosecution of appeal - HELD THAT:- At the time of hearing none was present on behalf of the assessee nor filed any application for adjournment of the case. It appears that the assessee is not interested in pursuing the appeal. It has been held in the case of B.N. Bhattachargee & Anr. [1979 (5) TMI 4 - SUPREME COURT] that appeal does not mean only filing of memo of appeal but also pursuing it effectively.
In cases where the assessee does not want to pursue the appeal, Court/Tribunal have inherent power to dismiss the appeal for non prosecution as held by the Hon’ble Bombay High Court in the case of M/s. Chemipol vs. Union of India [2009 (9) TMI 177 - BOMBAY HIGH COURT] . We are convinced that the assessee is not interested in prosecuting the appeal. We, therefore, dismiss the appeal of the assessee as unadmitted.
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2011 (2) TMI 1569 - ITAT DELHI
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... ... ..... ot be considered collectively to be eligible for exemption under sub-clause (iiiad) of clause (23C) of section 10. The Assessing Officer has not raised any objection about any other requirement i.e., the educational institution should be existing solely for educational purposes and not for purposes of profit. Hence, in our considered opinion, the income of these three institutions are also exempt under sub-clause (iiiad) of clause (23C) of section 10 because aggregate income of each of these institutions in each of these two years is below ₹ 1 crore. The requirement of approval of CCIT under sub-clause (vi) of clause (23C) of section 10 is for those who are not covered by sub-clause (iiiab) or (iiiad) of clause (23C) of section 10. Since, these three institutions are covered by clause (iiiad ), clause (vi) is not applicable. We, therefore, hold that income of these three institutions is also exempt. 22. In the result, both the appeals of the assessee are partly allowed.
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2011 (2) TMI 1568 - ITAT HYDERABAD
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... ... ..... yd/2008 dated 4.2.2010, Hyderabad which was relied on the learned DR, and allowed the case of the assessee. 13. The CIT(A) has passed a detailed and speaking order on this issue. In the absence of any evidence in support of the contention of the Assessing Officer, We do not find any infirmity in the order the CIT(A) and the same is confirmed. In view of the detailed order of the CIT(A) and the Tribunal order in the case of Vasavi Academy (supra), the grounds raised by the Revenue do not find any merit. Accordingly the grounds raised by the Revenue are dismissed. 14. Now coming to the CO filed by the assessee. The assessee raised the grounds of CO against the appeal filed by the Revenue on the same issue. Since we uphold the order of the CIT(A) that favours assessee’s plea, the grounds raised by the assessee become infructuous. 15. In the result, the appeal of the Revenue and the CO of the assessee are dismissed. Order pronounced in the open court on 25th February, 2011.
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2011 (2) TMI 1567 - ITAT DELHI
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... ... ..... ;ble Apex Court in the case of Bharat Earth Movers 2000 245 ITR 428. 7. We have heard both the counsel and perused the records. We find that Assessing Officer has not considered the assessee’s claim as it was not made in the return of income or by filing the revised return of income. However, Ld. Commissioner of Income Tax (Appeals) has allowed the claim by referring the Hon’ble Apex Court decision on merits without considering the Assessing Officer’s objection in this regard. However, in our considered opinion, the tribunal is empowered to consider this issue. Accordingly, we allow the assessee to raise this issue. We, therefore, remit this issue to the files of the Assessing Officer to consider the same afresh in light of the Hon’ble Apex Court decision in the case of Bharat Earth Movers 2000 245 ITR 428. 8. In the result, the appeal filed by the Revenue stands partly allowed for statistical purposes. Order pronounced in the open court on 18/02/2011.
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2011 (2) TMI 1566 - ITAT INDORE
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... ... ..... le of CIT(A) and direct him to decide the same as per law keeping in view various decisions discussed hereinabove. 11. With regard to ad hoc disallowance of ₹ 5,000 on account of expenditure incurred on vehicle and telephone, we found the same to be excessive. Accordingly, the AO is directed to restrict the disallowance to the extent of 1/10th of the expenditure incurred thereon. We direct accordingly. 12. ITA No. 317/Ind/2009 is in respect of penalty imposed under s. 271(1)(c) of the IT Act, 1961, which is consequential to confirming the addition by CIT(A). As the quantum appeal itself has been restored back to the file of CIT(A), the penalty order passed by him is also restored back to him for deciding after considering the legal issue raised by the assessee with respect to legality of proceedings under s. 154 after issue of notice under s. 143(2). We direct accordingly. 13. In the result, the appeals of the assessee are allowed in part in terms indicated hereinabove.
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2011 (2) TMI 1565 - SUPREME COURT
Application for recall of the Order - In present case, the Criminal Revision was listed in the High Court. No one appeared on behalf of the Revisionist, though the Counsels for Respondents appeared. In these circumstances, the judgment was passed. later, an application was moved for recall of the Order, alleging that the case was shown in the computer list and not in the main list of the High Court, and hence, the learned Counsel for the Revisionist had not noted the case and hence he did not appear. It often happens that sometimes a case is not noted by the Counsel or his clerk in the cause list, and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order and directed the case to be listed for fresh hearing. same was challenged and hence, this appeal.
HELD THAT:- In our opinion, Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice. Hence, we see no error in the impugned order passed by the High Court. The appeal fails and is accordingly dismissed.
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2011 (2) TMI 1564 - KARNATAKA HIGH COURT
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... ... ..... which are modernised by way of additional investment the exemption is applicable. That exemption will not be necessarily for five years if the unit is commenced during 1996-97 and such exemption would be only for a period of one year i.e., till 1998. To say, it the Unit started operating from 1993 August or prior thereto, it is up to July 1998 the payment of the sales tax on the products purchased for manufacturing is exempted and the exemption claimed by the petitioner is neither on a new industry which is established at the verge of August 1993 or thereafter to seek such exemption or it is not even the case of the petitioner that additional investment is made during the relevant period 1993-1998 so as to claim exemption for the related period and for refund of the tax collected. In the circumstances, the impugned order passed by the Commissioner holding that this government order is not applicable to the petitioner does not call for any interference. Petition is dismissed.
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2011 (2) TMI 1563 - SUPREME COURT
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... ... ..... , for increase of admission capacity and for renewal of permissions, with 15th July being the last date both for grant of permission or renewal of permission. DCI and the Central Government may consider amendment to the DCI Regulations suitably to provide for a shorter and distinct time schedule for renewal of permissions, so that the dental colleges could file applications till the end of February and the process of grant or refusal of renewal is completed by 15th of June. Conclusion 28. In view of the above, these writ petitions are allowed as follows (a) The condition imposed by the Central Government (requiring the dental colleges to secure appropriate orders from this Court approving the renewals of permission) in the letters of renewal of permission issued to the petitioners in July/August/September 2010, is quashed; (b) It is however declared that the renewal of permissions issued by the Central Government to the petitioners for the academic year 2010-2011, are valid.
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2011 (2) TMI 1562 - SUPREME COURT
Validity of ex-parte decree of divorce - service of notice or not - sufficient cause - Presumption of service by registered post and burden of proof - ex-parte decree of divorce challenged (after 4 years of its passing) basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 of the Code of Criminal Procedure, 1973.
HELD THAT:- In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence - Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand - There cannot be a strait-jacket formula of universal application.
Presumption of service by registered post and burden of proof - HELD THAT:- This Court after considering large number of its earlier judgments in GREATER MOHALI AREA DEVELOPMENT AUTHORITY & ANR VERSUS MANJU JAIN [2010 (8) TMI 932 - SUPREME COURT], held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character.
In the present case, the High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother and this was duly supported by her brother who appeared as a witness in the court. The High Court erred in not appreciating the facts in the correct perspective as substituted service is meant to be resorted to serve the notice at the address known to the parties where the party had been residing last - More so, it is nobody's case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document had been summoned from the post office. No attempt has been made by the respondent/wife to examine the postman. It is nobody's case that the "National Herald" daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court becomes liable to be set aside.
The first appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial Court's judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate Court should not modify the decree of the trial Court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate Court would fall short of considerations expected from the first appellate Court in view of the provisions of Order XLI, Rule 31 CPC and such judgment and order would be liable to be set aside.
The High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte decree - the High Court did not consider the grounds on which the trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife. The appeal has been decided in a casual manner.
The judgment and order passed by the High Court of Delhi is set aside and the judgment and order of the trial Court is restored - Appeal allowed.
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2011 (2) TMI 1561 - ITAT MUMBAI
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... ... ..... appears that the assessee is not interested in pursuing the appeal. It has been held by the Hon'ble Supreme Court in the case of B.N. Bhattachargee & Anr. (118 ITR 461 - at pages 477/478) that appeal does not mean only filing of memo of appeal but also pursuing it effectively. In cases where the assessee does not want to pursue the appeal, Court/Tribunal have inherent power to dismiss the appeal for non prosecution as held by the Hon’ble Bombay High Court in the case of M/s. Chemipol vs. Union of India in Excise Appeal No.62 of 2009. We are convinced that the assessee is not interested in prosecuting the appeal. We, therefore, dismiss the appeal of the assessee as unadmitted. 3. The assessee shall, however, be at liberty to approach the Tribunal for recalling of this order, if prevented by sufficient cause for nonappearance on the date of hearing. 4. In the result, the assessee’s appeal stands dismissed. Order pronounced on this 28th day of February, 2011
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2011 (2) TMI 1560 - ITAT DELHI
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... ... ..... atter to the file of the learned CWT(Appeals). Other Benches have passed similar orders in other assessment years. 4. In the light of aforesaid facts and respectfully following earlier orders of the Tribunal, we set aside impugned order of learned first appellate authority and restore the issue to his file for a fresh adjudication, after the decision of Civil Suit as well as the Departmental Reference by the Hon'ble Delhi High Court. Various issues arising in the appeals be considered afresh and in accordance with law. 5. In the result, all the appeals filed by the Revenue are allowed for statistical purpose only.” 4. Respectfully following the order of the ITAT, we allow all these appeals and set aside the issues to the file of Learned First Appellate Authority for fresh adjudication in accordance with the orders of the ITAT, extracted supra. 5. In the result, all the appeals are allowed for statistical purposes. Decision pronounced in the open court on 3 .02.2011
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2011 (2) TMI 1559 - ITAT MUMBAI
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... ... ..... ssessing Officer for fresh adjudication with the same directions as were given by the Tribunal in the cited order. 28. So far as Ground No.2 is concerned, the same is also covered in the assessee’s own case for the assessment year 2000- 01 vide order dated 18.08.2009. In paragraph 3 of this order, the Tribunal has restored the matter to the Assessing Officer to decide the allowability of the claim of the assessee in accordance with the order of the Special Bench in the case of Amway India Enterprises vs. DCIT (2008) 301 ITR (AT) 1 (Del) (SB). Since the facts are the same for the year under appeal, respectfully following the said order, we restore the matter to the Assessing Officer with the same directions. 29. The assessee’s appeal is thus allowed but for statistical purposes. 30. To sum up, the appeal of the department is partly allowed and the assessee’s appeal is allowed for statistical purposes. Order pronounced in the Open Court on 23rd February 2011.
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2011 (2) TMI 1558 - CALCUTTA HIGH COURT
Unexplained cash credits - loans from friends and relatives - AO held that loans represented the money of the assessee routed through the apparent creditors - amounts given as loans were deposited in the bank account of the creditors just a day before the day of issuing the cheques for loan - HELD THAT:- The Appellate Authority, in detail, discussed the materials on record indicating that the loan amounts taken by the assessee were duly disclosed in the balance sheet of the creditors and income tax returns were filed, which were duly accepted by the assessing officer.
After hearing the learned advocate for the appellant and after going through the findings, the Tribunal below is agreed upon that the finding of the assessing officer that the loans represented the money of the assessee routed through the creditors was a perverse finding of fact as he did not consider the aspects mentioned in the order of the appellate authority.
Thus, in the facts of the present case it is well established that those were general loans taken by the assessee from those creditors, those amounts were also reflected in their Income Tax Return and those were also accepted by the Income Tax Authority.
No substantial question of law is involved - appeal dismissed.
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2011 (2) TMI 1557 - GUJARAT HIGH COURT
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... ... ..... espondent has paid the Service tax before issuance of show cause notice, the penalty under Section 76 cannot be imposed even though the Service tax has been paid after the date prescribed under Rule 6 of the Service Tax Rules, 1994?”
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2011 (2) TMI 1556 - GUJARAT HIGH COURT
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... ... ..... ecute the lease document in favour of the Petitioner subject to fulfillment of certain conditions. However, in absence of issuance of allotment letter, the said letter of intent cannot be enforced in the Court of law. The Apex Court in Dresser Rand S.A. v. Bindal Agro Chem Limited and Ors. (Supra) clearly stated that a letter of intent merely indicates a party's intention to enter into a contract with the other party in future. Such a letter of intent is not intended to bind either party ultimately to enter into any contract. Even in Speech and Software Technologies (India) Private Limited v. Neos Interactive Limited (Supra), the Apex Court clearly held that an agreement to enter into an agreement is not enforceable nor does it confer any right upon the parties. o p /o p 22. Taking any view of the matter, the Petitioner is not entitled to any relief prayed for in this petition. The petition is, therefore, dismissed at the threshold without any order as to costs. o p /o p
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2011 (2) TMI 1555 - CALCUTTA HIGH COURT
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... ... ..... y because those applicants were not placed before the Assessing Officer, such fact could not justify disbelief of the explanation offered by the assessee when details of Permanent Account Nos. payment details of shareholding and other bank transactions relating to those payments were placed before the Assessing Officer. It appears that the Tribunal below has recorded specifically that the Assessing Officer totally failed to consider those documentary evidence produced by the assessee in arriving at such conclusion. We, therefore, find no reason to interfere with the decision passed by the Commissioner of Income-tax (Appeals) and the Tribunal below and answer the questions formulated by the Division Bench in the affirmative and against the Revenue. The appeal is, thus, dismissed. In the facts and circumstances of the case, there will, however, be no order as to costs. Photostat certified copy of this order be made available to the parties upon compliance of usual formalities.
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2011 (2) TMI 1554 - ITAT BANGALORE
Disallowance on account of provision for warranty - Whether the CIT(A) is justified in confirming the disallowance made by the A.O. on account of provision for warranty? - HELD THAT:- The assessee creates provision for warranty based on the estimation of expenditure likely to be incurred on the past sales made on yearly basis at then prevailing market prices for spares and labour. For the relevant previous year, the assessee estimated the warranty liability at ₹ 12,76,77,530/- and created a provision only for ₹ 12,16,75,204/- in the books of account by charging a provision of ₹ 8,24,29,136/- to the debit in the P&L account and claimed it as deduction. The assessee company had created the provision based on the estimation of warranty liability, which is based on failure rates of the past year data/experience and industry trends and not on adhoc basis. The assessee has not changed the method of computing the warranty provision and it has been followed consistently.
The decision of the Hon’ble Supreme Court in the case of M/S. ROTORK CONTROLS INDIA (P) LTD. VERSUS COMMISSIONER OF INCOME TAX, CHENNAI [2009 (5) TMI 16 - SUPREME COURT] would be squarely applicable to the facts of the case. The Hon’ble Supreme Court has held that provision made on past experience is a scientific method and is the most appropriate method. Thus, disallowance of provision of warranty is to be deleted and it is ordered accordingly.
Deduction u/s 80-IB - Exclusion of the interest income from the profits of the eligible units - Whether the CIT(A) is justified in upholding the exclusion of the interest income from the profits of the eligible units for the purpose of computing deduction u/s 80-IB of the Act? - HELD THAT:- For the purpose of section 80IB of the Act, the expression “profits and gains from any business of the undertaking” has to be interpreted in a wider sense. There need not be any direct nexus between the activity of the industrial undertaking and profits and gains. Further, the Hon’ble Delhi High Court in ELTEK SGS (P) LTD [2008 (2) TMI 17 - DELHI HIGH COURT] in this case, has distinguished the principles laid down by the Apex Court in the case of PANDIAN CHEMICALS LTD. VERSUS COMMISSIONER OF INCOME-TAX [2003 (4) TMI 3 - SUPREME COURT]. The Hon’ble Mumbai Bench of the Tribunal in the case of Bajaj Healthcare P Ltd. (Unreported) has allowed interest on deposits made for availing bank facilities by following the decision of the Hon’ble Delhi High Court in the case of THE COMMISSIONER OF INCOME TAX VERSUS ELTEK SGS (P) LTD [2008 (2) TMI 17 - DELHI HIGH COURT].
The interest income earned from deposits made for opening letter of credit with the banks for the purpose of availing credit facilities to carry on the business must be treated as income from business, since it has direct nexus with the business activity carried on by the industrial undertaking of the assessee firm. However, since the break-up of interest claimed for the purpose of computing deduction u/s 80IB of the Act was not before the Income Tax authorities, this issue is restored back to the file of the AO with the specific direction to allow the claim of deduction u/s 80IB in respect of LC Margin money deposits with bank - this ground is allowed for statistical purposes.
The appeal filed by the assessee is allowed for statistical purposes.
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2011 (2) TMI 1553 - ITAT AHMEDABAD
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... ... ..... to the exports have grown to ₹ 160 crores in financial year 2005-06 an increase of more than 600%. Accordingly, these expenses are rightly allowed by CIT(A) and we confirm the same. This issue of Revenue’s appeal is dismissed. Now coming to assessee’s CO No.61/Ahd/2008. 7. The only issue in this CO of assessee is against the order of CIT(A) in rejecting the reassessment order. For this, assessee has raised the following ground No.1 - “1. On the facts and in the circumstances of the case, the CIT(A) erred in rejecting the assessee’s challenge to the legality of reassessment order u/s.147/148 of the I.T. Act.” 8. At the outset Ld. Counsel for the assessee stated that he has instruction from assessee not to press this issue. Hence, this issue in the CO of assessee is dismissed as not pressed. 9. In the result, Revenue’s appeal is dismissed and that of assessee CO is dismissed as not pressed. Order pronounced in Open Court on 11/02/2011
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2011 (2) TMI 1552 - SC ORDER
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... ... ..... observations made by the Division Bench in paragraphs 5 & 6 are kept open to be decided in an appropriate case. Special Leave Petition is dismissed.
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2011 (2) TMI 1551 - MADRAS HIGH COURT
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... ... ..... Act, the State has the exclusive right/privilege in respect of potable liquor and the State, in our opinion, can charge any reasonable expenses or even consideration for permitting such activity by grant of licence and that the respondents ought to comply with all reasonable orders, as undertaken by them while obtaining the licence. This factor, the High Court has not appreciated. Once the liquor licensee has undertaken to abide by all reasonable orders under the Prohibition Act while obtaining the licence, they cannot wriggle out of the contractual liability voluntarily incurred by them." 13. Therefore, the objections raised by the petitioners do not stand the scrutiny of law. In the light of the above legal precedent and the factual matrix, there is no case made out to interfere with the impugned demand notices. Hence all the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
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