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Showing 101 to 120 of 847 Records
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2011 (5) TMI 1052 - ITAT MUMBAI
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... ... ..... ord by the learned D.R., we respectfully following the decision of the Special Bench of the Tribunal (supra) and the decision of the Hon’ble Bombay High Court (supra) hold that the provisions of section 2(22)(e) are not applicable in the case of the assessee and accordingly we are inclined to uphold the finding of the learned Commissioner of Income Tax (A) in deleting the addition made by the AO. The grounds taken by the Revenue are, therefore, rejected. C.O.No.33/Mum/2011 (by Assessee) 10. In the Cross-objection, the assessee has supported the order of the learned Commissioner of Income Tax (A). This being so and in view of our findings recorded in Revenue’s appeal in paragraphs 7 to 9 of this order, the grounds raised by the assessee does not require any fresh adjudication and accordingly the same are rejected. 11. In the result, the Revenue’s appeal and assessee’s cross-objection stand dismissed. Order pronounced in the open court on 20th May,2011.
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2011 (5) TMI 1051 - ITAT AHMEDABAD
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... ... ..... kumar B Sanghvi V/s ITO Wd 2(2), Surat. 7.3 After considering the aforesaid submissions, in the impugned order, the ld. CIT(A), for the detailed reason given in para 5, held that sum of ₹ 36,72,631/- is nothing but capital gain and he directed the AO to accept the same accordingly. It is pertinent to note that before the AO, the assessee has furnished complete details. These were not found false or bogus by the AO. Only on doubts and suspicion the AO treated the capital gain declared by the assessee as unexplained credit under section 68 of the I.T.Act, 1961. Looking to the totality of the facts, we are of the view that the ld. CIT(A) has given cogent reason for directing the AO to accept the capital gain of ₹ 34,65,171/- as disclosed by the assessee. We, therefore, incline to uphold the order of the ld. CIT(A). Resultantly, the appeal of the Revenue is dismissed. 8. In the result, the appeal of the Assessee is allowed. Order pronounced in the Court on 31.05.2011
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2011 (5) TMI 1050 - ITAT AHMEDABAD
Claim of the assessee - capital gain - unexplained credit under the provisions of section 068 - HELD THAT:- the assessee filed a paper book containing 36 pages, which, inter alia, include the demat account statement showing purchase of shares through M Bhiwaniwala & Co. and sales through Ashok kumar Kayan, Broker note for the sale of the shares of Shree Nidhi Trading Ltd., Working of long term capital gain exempt u/s 010(38) and Form 10DB as proof of payment of security transaction tax. The Counsel of the assessee submitted that on doubts and suspicion, AO treated the capital gain of ₹ 36,71,882/- declared on sale of share as unexplained credit u/s 068 and the ld. CIT(A) rightly directed the AO to treat the same as capital gain. Therefore, the view taken by the ld. CIT(A) be upheld.
In the result, the appeal of the Revenue is dismissed.
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2011 (5) TMI 1049 - ITAT AHMEDABAD
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... ... ..... rtment has not furnished any cogent material or comparable instances through which it could be established that the payment of interest was excessive or unreasonable. We, therefore, find no force in this ground of the Revenue and hereby dismiss the ground for all the three years. 5. Ground Nos.3 & 4 are general in nature require no independen3t adjudication. 6. Cross Objections by the Assessee (CO Nos.260, 261 & 262/Ahd/2009) 6.1. In the cross objections in all the grounds, the cross objector has primarily challenged the validity of the assessment framed u/s.153A of the I.T.Act. However, during the course of hearing, the Ld. Learned Authorised Representative Mr. Vijay Ranjan has expressed not to press all the three COs. Therefore, these cross objections are dismissed as withdrawn. 7. In the result, Revenue’s appeals are dismissed and Cross Objections filed by the assessee are dismissed as withdrawn. Order signed, dated and pronounced in the Court on 20/ 5 /2011
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2011 (5) TMI 1048 - ITAT AHMEDABAD
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... ... ..... spectively. The Assessing Officer, however, has estimated the income of the assessee during the year under appeal by taking the GP 3.45 after rejecting the books of account of the assessee. In my considered opinion even if the books of account of the assessee are rejected the Assessing Officer should have been reasonable in estimating the income of the assessee. After taking totality of the circumstances of this case in view, I am of the considered opinion that ends of justice will be met if average of the GP shown by the assessee during the years i.e. A.Ys. 2005-06, 2006-07 & 2007-08 is taken while estimating the income of the assessee instead of GP rate taken by Assessing Officer for this purpose 3.45 . The AO is therefore directed to re-calculate the income of the assessee by taking the average of GP shown by assessee during the years 2005-06, 2006-07 and 2007-08. 9. In the result, assessee’s appeal is partly allowed. Order pronounced in Open Court on 31/05/2011
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2011 (5) TMI 1047 - ITAT DELHI
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... ... ..... In the sale deed it has been stated that land in question is agricultural land. 6.5 Thus, we find that apart from the main object of dealing in lands, the assessee ancillary objects also include agricultural activity. Hence, assessee’s objects in the Memorandum can not be said to be determinative of nature of transaction as business. Since no construction activity was permissible on these lands, they could not be included for wealth tax purposes. Moreover, there is no bar in holding land as long term investment. Assessee’s conduct does not reflect a systematic frequent purchase and sale of land to qualify the assessee’s activity as business of dealing in lands. 6.6 In the background of the aforesaid discussion, we do not find any infirmity or illegality in the order of the Ld. Commissioner of Income Tax (Appeals). Hence, we uphold the same. 7. In the result, the appeal filed by the Revenue stands dismissed. Order pronounced in the open court on 13/05/2011.
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2011 (5) TMI 1046 - CESTAT MUMBAI
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... ... ..... deposit an amount of ₹ 3 lakhs within eight weeks from today. On such deposit of abovementioned amount, the pre-deposit of remaining amount of penalty is waived and the recovery thereof stayed during the pendency of the appeal. In respect of other applicants, we find that Shilpesh Sawant and Shri Sandeep Naik are working with the LC holder of the firm. The case of the Revenue is that they are actually working under the direction of Shri Mehra. As we find prima facie there is no evidence on record their omission or commission in respect of any violation to the Customs Act, the pre-deposit of penalties are waived for hearing of the appeals, the same is in the case of H.P. Joshi & Co., Shri Ashwin K. Joshi and Shri Kantilal H. Joshi, as no investigation was conducted from them, even no statement was recorded. Therefore, the pre-deposit of penalty on these applicants are also waived for hearing of the appeals. Compliance to be reported on 12-8-2011. (Dictated in Court)
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2011 (5) TMI 1045 - SC ORDER
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... ... ..... a fit case for our interference with the impugned orders passed by the Customs, Excise and Gold (Control) Appellate Tribunal (as it then existed) in Appeal No. C/R-76/2001 and other connected appeals. Accordingly, the appeals are dismissed, keeping open the questions of law sought to be raised in these appeals, with no order as to costs.
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2011 (5) TMI 1044 - ITAT CHANDIGARH
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... ... ..... ing the same in Financial Year 2004-05. The household expenses met by the father of the assessee out of his sources has no relevance. 10. The assessee had withdrawn cash of ₹ 2.00 lacks on 10.3.2004 ₹ 30,000/- on 24.3.2004, which was available for making cash deposits in the bank account. I find merit in the said claim of the assessee. Accordingl y I direct the AO to allow the benefit of ₹ 2,30,000/- as cash available with the assessee. In the absence of any evidence brought on record, I find no merit in the claim of the assessee that the cash was available with him out of withdrawal made over the years. I direct the AO to allow the adjustment of cash of ₹ 2.30 lakhs available with the assessee and balance addition of ₹ 1,39,000/- is hereby confirmed. The grounds of appeal raised by the assessee are partly allowed. 11. In the result, the appeal of the assessee is partly allowed. Order Pronounced in the Open Court on this 31 s t day of May, 2011.
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2011 (5) TMI 1043 - SUPREME COURT
Allotments and conversion of lands made by the NOIDA - personal benefits of the members - commission of criminal offence - The New Okhla Industrial Development Authority (the `Authority'), has been constituted under the said Act, 1976. The object of the Act had been that genuine and deserving entrepreneurs may be provided industrial and residential plots and other necessary amenities and facilities. All the activities in the Authority had to be regulated in strict adherence to all the statutory provisions contained in relevant Acts, Rules and Regulations framed for this purpose. However, from the very inception of the township, there has always been a public hue and cry that officials responsible for managing the Authority are guilty of manipulation, nepotism and corruption. Wild and serious allegations of a very high magnitude had been leveled against some of the officials carrying out the responsibilities of implementing the Act and other statutory provisions.
HELD THAT:- it is evident from the record that M/s Anil Kumar & Co. had been allotted originally the work on the basis of tender for ₹ 2.75 crores in Sector `Gamma' in Greater NOIDA, in connection with the construction of water drains. However, they had been awarded additional work by respondent no. 4, worth ₹ 3.75 crores on a "deviation basis". In fact, awarding such work cannot be termed as an `addition' or `additional work' because the work is worth ₹ 1 crore more than the amount of original contract. In such a fact-situation, even if there had been no financial loss to the Greater NOIDA, indisputably, the additional work for such a huge amount had been awarded without following the procedure prescribed in law. More so, there is nothing on record to show as to whether the said contractor M/s Anil Kumar & Co. was eligible to carry out the contract worth ₹ 6.50 crores. Awarding the contract under the garb of so-called extension, amounts to doing something indirectly which may not be permissible to do directly. Admittedly, such a course of action is not permissible in law.
The second work had been allotted to M/s Techno Construction Co. worth ₹ 1.00 crore without inviting fresh tenders etc., on the ground that earlier a contract for execution of similar work i.e. construction of road had been awarded to it. In view of the fact that there was no urgency, such a contract should not have been awarded. Undoubtedly, the respondent no.4 is guilty of proceeding in haste and that amounts to arbitrariness.
It is evident from the record that the respondent no.4 had originally been allotted plot no.118, Sector-35 measuring 360 sq. meters which was converted to plot no.G-25, Sector-27 measuring 392 sq. meters. However, as the respondent no.4 did not deposit the required charges the said order of conversion stood withdrawn. By subsequent conversion, respondent no.4 got plot no.A-15 in Sector-44. Thus, two conversions had been made on different dates. However, he paid the transfer charges only once to the tune of ₹ 1.80 lacs. It is alleged that by first conversion, the respondent no.4 not only got the plot in a better location, but also a plot of bigger size. Second allotment was further, as alleged, in a far better geographical position.
There is nothing on record to show that any amendment had ever been made either in the Master Plan or in the Regulations 1991 before the change of user of land, when a 13 hectare City Park situated near Sectors 24, 33 and 35 was abolished and a new residential Sector 32 was carved out comprising 200 plots. Even if the said change made by respondent no.4 stood nullified, subsequently by respondent no.7, it does not exonerate him from committing an illegality. It is a matter of investigation as to what was the motive for which such a change had been made by respondent no.4, unauthorisedly and illegally. Admittedly he was not competent to do so without seeking the amendments as mentioned hereinabove.
Therefore, we are of the considered opinion that these allegations being of a very serious nature and as alleged, the respondent no.4 had passed orders in colourable exercise of power favouring himself and certain contractors, require investigation. Thus, in view of the above, we direct the CBI to have preliminary enquiry and in case the allegations are found having some substance warranting further proceeding with criminal prosecution, may proceed in accordance with law.
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2011 (5) TMI 1042 - DELHI HIGH COURT
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... ... ..... the crystallization of interest (which the assessee has calculated at the rate of 15 p.a.) on the amount to be returned if adverse orders were to be passed against it; mandating return of sums with interest. The figure thus, in issue, towards interest, is a sum of ₹ 15,59,670/-. The assessee in the assessment year in issue, has treated the said amount as liability and sought a deduction. The Tribunal in the impugned judgment has held that the amount in issue was a contingent liability as it was dependent upon the outcome in the assessee's case. We concur with the view taken by the Tribunal. Final order had not been admittedly passed in assessment year 1983-84. As a matter of fact, Mr. Monga has confirmed to us that even today, no final order has been passed in the assessee's case regarding the controversy in issue. Accordingly, the said question is decided in favour of the revenue and against the assessee. The captioned reference accordingly stands disposed of.
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2011 (5) TMI 1041 - PUNJAB & HARYANA HIGH COURT
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... ... ..... st, when it is on record that the appellant received merely a commission of 3 and it is settled law that penalty imposed ought to be commensurate with the offence” Learned counsel for the appellant states that same order of the Tribunal was subject matter of consideration before this Court in Central Excise Appeal Nos. 71 and 105 of 2010 decided on 17-3-2011 (Vee Kay Enterprises v. Commissioner of Central Excise) reported as 2011 (266) E.L.T. 436 and therein the matter was remanded to the Tribunal, after holding that when the quantum of penalty was in the discretion of the Tribunal, the said quantum had to be determined taking into account all the facts and circumstances. In view of above, this appeal is disposed of in same terms and the matter is remanded to the Tribunal. The appellant may appear before the Tribunal for further proceedings on July 4, 2011. It is made clear that if the respondents are aggrieved by this order, they will be at liberty to move this Court.
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2011 (5) TMI 1039 - ITAT MUMBAI
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... ... ..... rising out of the order u/s.163 of the Act that the nonresident had business connection in India and therefore income had accrued and arisen in India to the non-resident which is chargeable to tax. The revenue authorities have held that the income so charged to tax is business income. In the absence of treaty between India and Hong Kong, we have to proceed to tax income that accrues to the non-resident in India. However in the case of non-resident who is a resident of the other State which has a treaty with India, the question whether business income will be taxable because of existence of Permanent Establishment in India or not has to be examined. But in the present two appeals, such question will not arise because of the absence of treaty between India and Hong Kong. In view of the above, we confirm the orders of the CIT(A) and dismiss both these appeals also. 34. In the result, all the appeals are dismissed. Order pronounced in the open court on the 13th day of May, 2011.
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2011 (5) TMI 1038 - ITAT MUMBAI
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... ... ..... ot verified or enquired into by the Assessing Officer, that would clothe the CIT with jurisdiction to revise the assessment under section 263 on the footing that there was lack of enquiry resulting in the assessment order being erroneous and prejudicial to the interest of the revenue. This is not a case where the CIT has taken a different view of the matter with regard to the conclusions drawn by the Assessing Officer on the facts and evidence present before him, as was claimed before us on behalf of the assessee. 7. In the course of the arguments, at our enquiry, the learned representative for the assessee stated that the Assessing Officer has given effect to the order of the CIT and has passed a fresh assessment order, which is pending in appeal before the CIT(A). 8. For the reasons given above, we uphold the order of the CIT passed under section 263 and dismiss the appeal filed by the assessee with no order as to costs. Order pronounced in the Open Court on 18th May 2011.
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2011 (5) TMI 1037 - ITAT DELHI
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... ... ..... also has come up in MA that in para 8 only A.Y. 1997-98 is mentioned whereas the consolidated order was for A.Y. 1996-97 as well as 1997-98. o p /o p 4. After hearing both the parties, we are of the view that while deciding the issue on merits Tribunal’s order dated 17-2-2006 for these assessment years has not been considered. In view thereof, we are inclined to partly recall the order of the Tribunal in respect of deciding the merits of the issue about allowability of conveyance allowance, additional conveyance allowance and incentive bonus decided in para 8 above, which will take care of revenue’s MA as well. We order accordingly. The registry is directed to post the captioned appeals for hearing of recalled issue in due course by issuing notices of hearing to both the parties. o p /o p 5. In the result, both the misc. applications of the assessee as well as the revenue are allowed in above terms. o p /o p Order pronounced in open court on 13-05-2011. o p /o p
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2011 (5) TMI 1036 - ITAT AHMEDABAD
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... ... ..... urisdiction to frame the assessment. Since, the notice u/s 143(2) of the IT Act has been served beyond the period of limitation prescribed by the proviso to section 143(2) of the IT Act, the assessment would not be valid and according to law. The Special Bench of ITAT Delhi in the case of Kuber Tobacco Products Pvt. Ltd. (supra) held as under "Conclusion Sec. 292BB inserted by the Finance Act, 2008, w. e. f. 1st April, 2008 has no retrospective operation and applies to and from asstt. Yr. 2008-09 only, therefore, assessee could challenged the validity of block assessment in appellate proceedings on the ground of non-issuance of notice under s. 143(2) for the block period 1st April, 1988 to 25th Jan., 1999." The assessment in appeal is however, assessment year 2007-08. We accordingly, set aside the orders of the authorities below and quash the assessment order. 8. In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 13-05-2011.
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2011 (5) TMI 1035 - ITAT PUNE
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... ... ..... ted by the AO in earlier years, the AO now cannot hold it to be stock in trade without there being any change in the facts. We thus decide the issue raised in favour of the assessee that the ld CIT (A) was not justified in treating the claimed short-term capital gain of ₹ 49,19,877/- and long-term capital gain of ₹ 98,31,915/- on sale of shares assessable as business income and not as capital gains. We thus set aside the matter to the file of the AO to verify the claimed short-term and long-term capital gains in view of above findings that transactions in question are capital gain, after affording opportunity of being heard to the assessee. The Grounds No 1 to 5 raising the issue are thus allowed for statistical purposes. Ground No. 6 is alternative ground, which does not need adjudication in view of the above finding on the main issue. In the result, the appeal is allowed for statistical purposes. Order pronounced in the open Court on this 31st Day of May, 2011.
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2011 (5) TMI 1034 - DELHI HIGH COURT
Whether the circular dated 03.04.2008, seeking to deny tax benefits to service provided outside the SEZ inconsistent with the provisions u/s 26(1)(e) of the SEZ Act specifically grants an exemption from service tax on taxable services provided to a Developer or Unit to carry on the authorized operations by the Developer and the Entrepreneur/Unit - HELD THAT:- In Godrej & Boyce Mfg. Co. Ltd. V. State of Maharashtra [2009 (2) TMI 856 - SUPREME COURT] the Apex Court held that circulars are administrative in nature and cannot alter the provisions of a statute nor can they impose additional conditions.
A plain reading of the impugned circular makes it clear that only those services are exempted from service tax which are rendered to a Developer or a Unit/Entrepreneur within the SEZ. Thus, while the SEZ Act and the rules framed thereunder provide for tax exemption to all services provided to a Developer/ Entrepreneur operating in a SEZ but vide the impugned circular the Government has sought to prescribe an additional condition that the parent statute, which in the present case is the SEZ Act, 2005, does not prescribe. The impugned circular curtails the tax exemption granted to a service provider providing services to a Developer or a Unit/Entrepreneur operating in a SEZ to only those services that have been rendered within the SEZ, which in clear terms, is inconsistent with Section 26(1)(e) of the SEZ Act.
Thus, applying the settled position of law to the facts and circumstances of the present case, I find that the impugned circular dated 03.04.2008 seeks to impose a condition that was not the intention of the legislature as expressed in the SEZ Act or in the SEZ Rules framed thereunder and thus, is liable to be set aside.
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2011 (5) TMI 1033 - ITAT HYDERABAD
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... ... ..... Mills Pvt. Ltd., (supra) cited by the learned departmental representative is distinguishable on facts. It is now well settled that when the assessing officer adopts one of the courses permissible in law or where two views are possible and the assessing officer has taken one view with which the CIT does not agree, it could not be treated as erroneous order, prejudicial to the interests of revenue unless the view taken by the assessing officer was unsustainable in law. In this case, it could not be said that the view taken by the assessing officer in scrutiny assessment was perverse or unsustainable in law or was not a possible view. In this view of the matter, we are of the considered opinion that the order of the CIT passed under section 263 of the Act is not sustainable in law and accordingly the same is cancelled. Hence, the grounds raised by the assessee are allowed. 7. In the result, the appeal of the assessee is allowed. Order was pronounced in the Court on 27-05-2011.
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2011 (5) TMI 1032 - ITAT DELHI
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... ... ..... by the AO. The AO shall provide reasonable opportunity of being heard to the assessee. o p /o p 11. Since the assessee’s claim of deduction of increased profit u/s 10B is restored back to the file of the AO for verification as to whether the assessee’s business income is eligible for deduction u/s 10B of the Act and then to allow the deduction with regard to increased profit assessed by the AO, ground Nos.2 to 4 taken by the assessee have become redundant at this stage and same are also restored back to the file of the AO for fresh adjudication in case it is found that the addition by way of disallowance of expenditure is not eligible for deduction u/s 10B of the Act. The AO shall provide reasonable opportunity of being heard to the assessee in this regard. We order accordingly. o p /o p 12. In the result, the appeal filed by the assessee is partly allowed in the manner as indicated above. o p /o p Decision pronounced in the open Court on 6th May, 2011. o p /o p
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