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Showing 101 to 120 of 585 Records
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2012 (3) TMI 625 - ITAT DELHI
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... ... ..... incurred and revenue in nature relating to the business is allowable. Any expenditure not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of the business or profession should be allowed. Hence, we are of the view that the actual expenditure incurred has to be allowed notwithstanding the method of accounting the assessee followed.” 5.1 In view of the foregoing and in the light of aforesaid decision, the assessee is entitled to claim this amount as a legitimate deduction in the year of account in question and consequently, in the assessment for the relevant assessment year. Therefore, we have no hesitation in upholding the findings of the ld. CIT(A). Thus , ground no. 1 in the appeal is dismissed. 6. No additional ground having been raised in terms of residuary ground no.2, accordingly this ground is also dismissed. 7. In result, appeal is dismissed. Order pronounced in Open Court
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2012 (3) TMI 624 - BOMBAY HIGH COURT
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... ... ..... the same building in which the Office of the Commissioner of Central Excise (Appeals) is situated. In the ordinary course, the Office of the Assistant Commissioner of Central Excise ought to have forwarded the appeal paper book to the Office of the Commissioner of Central Excise (Appeals) immediately. The delay on the part of the Office of the Assistant Commissioner of Central Excise to forward the appeal paperbook to the Office of the Commissioner of Central Excise (Appeals) cannot be attributed to the assessee so as to dismiss the appeal filed by the assessee as time barred. 8. In these circumstances, the order passed by the Commissioner of Central Excise (Appeals) dated 7th May 2010 and the order passed by the CESTAT dated 16th September 2011 are quashed and set aside and the matter is restored to the file of the Commissioner of Central Excise (Appeals) for decision on merits and in accordance with law. 9. The appeal is disposed off accordingly with no order as to costs.
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2012 (3) TMI 623 - ITAT COCHIN
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... ... ..... m of the appellant that the said amount represented compensation for loss of agricultural income. He accepted the entry in the statement of the account filed by the appellant in the absence of any supporting material and without making any inquiry.” 9. The Administrative Commissioner has directed the assessing officer to redo the assessment after examining the materials on record. This direction of the Administrative Commissioner is in no way prejudice the interest of the assessee. We make it clear that the assessing officer shall examine the material on record independently without being influenced by any of the observations made by the Administrative Commissioner in the impugned order or by this Tribunal in this order and shall decide the issue afresh in accordance with law after giving a reasonable opportunity to the assessee. 10. With the above observations, the appeal of the assessee is dismissed. Order pronounced in the open court on this 20th day of March, 2012.
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2012 (3) TMI 622 - ITAT INDORE
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... ... ..... ion of the cheques so issued. Without any evidence, much less a cogent evidence, it is not legally justified to doubt the genuineness of loan transaction or make addition in the hands of the assessee company for which no material much less a cogent material is in possession of Department. In the interest of justice and fair play, we restore the grounds raised by the assessee in the cross objection to the file of the Assessing Officer for deciding afresh in terms of our above discussion and as per law. ” 19. As the issue raised by the Revenue are covered by the order of the Tribunal in the case of Mittal Group, respectfully following the same, we restore the matter to the file of the Assessing Officer for deciding the same afresh in terms of our directions given in the order of Mittal Group dated 30th December, 2011. 20. In the result, appeals of the Revenue are allowed in terms indicated hereinabove. This order has been pronounced in the open court on 28th March, 2012.
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2012 (3) TMI 621 - ITAT INDORE
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... ... ..... assessee has produced books of account. At page 11 of the assessment order, while disallowing telephone and trunk-call expenses, the Assessing Officer has stated that on verification of books of account, it is found that the assessee does not maintain any call register or other mechanism to control the telephone expenses. Therefore, the amount equal to 1/5th of on account of telephone and trunk call was disallowed. It proves that the assessee has maintained books of account. Keeping in view the totality of facts and circumstances, we direct the Assessing Officer to restrict disallowance of expenditure claimed under the head vehicle running expense to the extent of 1/3rd of expenses, Claim of depreciation is to be allowed in full as per law. Loss from truck plying is to be recomputed accordingly. 10. In the result, the appeal of the Revenue is dismissed whereas the appeal of the assessee is allowed in part. This order has been pronounced in the open court on 26th March, 2012.
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2012 (3) TMI 620 - ITAT DELHI
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... ... ..... as decided the issue in favour of the assessee. The only change in the facts and circumstances are regarding the filing of the application for condonation of the delay to the CBDT under section 119 (2) of Income-tax Act which has been filed on 04.03.2011. The ITAT in assessee’s own case in ITA Nos.2130/Del/2009 and 2131/Del/2009 has observed that the assessee is in process to take suitable steps in the matter with the CBDT for condonation of the delay and matter was restored to Assessing Officer to re-examine and decide afresh. Now, the assessee has already filed the application for condonation of delay u/s 119 (2) of the Income-tax Act on 04.03.2011. In the interest of justice and equity, we are inclined to agree with the prayer of the learned AR to restore the issue to the file of the Assessing Officer to be decided afresh. 4. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in open court on this 23rd day of March, 2012.
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2012 (3) TMI 619 - ITAT INDORE
Disallowance for bad and doubtful debts u/s 36(i)(viia) - Assessee was a scheduled bank in relevent assessment year, before amalgamation - AO concluded that the deduction of 10% of the aggregate average advances made by the rural branches of the bank was not available to the assessee because in the opinion of the AO, the assessee was not a scheduled bank during the year under consideration - CIT(A), allowed the the deduction @ 10% of aggregate average advances made by the rural branches in addition to deduction @ 7.5 % of total income as per provision of Section 36(i)(viia)(a) - HELD THAT:- Following the decision in the case of Catholic Syrian Bank Limited [2012 (2) TMI 262 - SUPREME COURT] order of CIT(A) allowed the deduction sustained.
Disallowance for bad and doubtful debts u/s 36(i)(viia) - written off of irrecoverable debts - Party wise debts not written off - HELD THAT:- Even the Hon'ble Supreme Court in the case of Vijaya Bank, [2010 (4) TMI 46 - SUPREME COURT], observed that, after insertion of Explanation to sec. 36(1)(vii), assessee is required not only to debit the P&L a/c but simultaneously also reduce loans and advances or the debtors from the assets side of the balance sheet to the extent of the corresponding amount so that at the end of the year the amount of loans and advances/debtors is shown as net of provision for impugned bad debt; assessee-bank having, besides debiting the P&L a/c and creating a provision for bad and doubtful debts, simultaneously obliterated the said provision from its accounts by reducing the corresponding amount from loans and advances/debtors on the assets side of the balance sheet, it was entitled to benefit of deduction under s. 36(1)(vii); it was not necessary to close the individual account of each debtor in the books.
In view of the above decision of the Hon'ble Supreme Court, matter restored back.
Disallowance of Expenditure u/s 40(a)(ia) - Assessee has claimed expenses on which TDS was deducted but deposited after filing of return but before due date of filing of ITR u//s 139(1) - HELD THAT:- As a clear finding has been recorded by the ld.CIT(A) to the effect that the assessee has not only deducted tax on audit fee but also deposited the same before due date of filing return u/s 139(1). There is no reason to disallow the claim of deduction in view of the amended provisions of Section 40a(ia), which were amended by the Finance Act, 2008, with retrospective effect from 2005. Accordingly, the AO is directed to allow the same as per the amended provisions of law - Decision in favour of Assessee.
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2012 (3) TMI 618 - ITAT CHENNAI
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... ... ..... revenue receipt, whereas compensation received for refraining from carrying on competitive business was a capital receipt. It was held that payment received as non-competition fees under a negative covenant was always treated as a capital receipt till the assessment year 2003-04. It is only vide the Finance Act, 2002 w.e.f. 01.04.2003 that the said capital receipt is now made taxable under section 28(va). The Finance Act, 2002 itself indicates that during the relevant assessment year compensation received by the assessee under non-compete fee received/receivable by the assessee is a capital receipt not exigible to tax. We also see no force in the contention of the Assessing Officer that the non-compete fee paid to the assessee is to be assessed as profits in lieu of salary. We, therefore, sustain the order of the CIT(A) and dismiss the ground of appeal of the Revenue. 12. In the result, the appeal of the Revenue is dismissed. Order pronounced in the open Court on 30.03.2012.
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2012 (3) TMI 617 - DELHI HIGH COURT
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... ... ..... here was a fixed tenure or a period during which the said members were permitted and allowed to enjoy the benefits and facilities. As regards the non-refundable upfront payment it was observed and held that it entailed and secured use of facilities for the period specified. The assessee, therefore, had to provide and incur expenses for providing the said facilities. The Tribunal has followed the decision of this Court in CIT Vs. Dinesh Kumar Goel (2011) 331 ITR 10. In the said case, this High Court has referred to the concept of income, and the principles of accountancy. In the said case, the respondent-assessee was running a coaching institute and was receiving upfront fee for providing coaching, which was spread over one year or two years. Keeping in view the factual position, Tribunal has rightly appreciated and applied the law as elucidated in the case of Dinesh Kumar Goel (supra). We do not think any substantial question of law arises. The appeal is dismissed. No costs.
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2012 (3) TMI 616 - DELHI HIGH COURT
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... ... ..... SCC 85, the words ‘shall be liable for confiscation’ in section 63 (1) of Bengal Excise Act, 1909, were held to be not conveying an absolute imperative but merely a possibility of attracting such penalty inspite of use of the word ‘shall’. It was held that discretion is vested in the court in that case, to impose or not to impose the penalty. 16. Once it is held that the quantum of fine is discretionary, there can be no challenge to the judicial review under Article 226 of the Constitution, of exercise of such discretion, of course within the well recognized limits. If this Court finds discretion to have been not appropriately exercised by the CIC, this Court can in exercise of its powers vary the penalty. In the facts of the present case, we find the learned Single Judge to have for valid reasons with which we have no reason to differ, reduced the penalty. We, therefore do not find any merits in this appeal and dismiss the same. No order as to costs.
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2012 (3) TMI 615 - KARNATAKA HIGH COURT
"Built up Area" - Deduction u/s 80IB- Assessee is engaged in construction and real estate business. In the year 2002, they constructed some flats, separate sale deeds were executed in respect of the very same purchaser. Admittedly, all these flat totally measured less than 1500 sq. ft. per unit. Assessee claimed 100% benefit of deduction u/s 80IB(10). AO denied the said benefit on the ground that the main flats exceeded the permissible limit of 1500sq. ft. Also, separate sale deeds cannot be executed in respect of the very same purchaser - HELD THAT:- Space occupied by the balcony cannot be taken into consideration as the balcony area was not added to the flats for the purpose of finding out the total built up area prior to 01.04.2005. Similarly, prior to 19.08.2009, there was no prohibition for a person purchasing two flats. AO shall keep in mind the statutory provisions and then pass appropriate orders.
Matter restored back.
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2012 (3) TMI 614 - DELHI HIGH COURT
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... ... ..... late Authority is set aside and the matter remitted back to the Appellate Authority for fresh consideration. 2. We accordingly allow this writ petition, set aside the aforesaidorder and remit the case back to the Appellate Authority. The Appellate Authority shall give proper hearing to the appellant and take note of thesubmissions made by the appellant/its counsel and pass a speaking order. 3. Both the parties agree that they would appear before the AppellateAuthority on 21st March, 2012 at 10 30 a.m. 4. With the aforesaid direction, this writ petition stands disposed of.
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2012 (3) TMI 613 - DELHI HIGH COURT
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... ... ..... d to have been made upon the respondent/defendant for the first time by the notice dated 14.12.2001. The period of limitation therefore will be three years from 14.12.2001, and therefore the suit which was filed on 8.2.2002 would be within limitation. Suit for recovery of loan without a fixed period or a date of repayment is a suit governed by Article 113 of the Limitation Act, 1963 as per which the suit has to be filed within three years of arising of the cause of action. The cause of action in this case will arise on sending of the legal notice dated 14.12.2001. I therefore hold that the suit was not barred by limitation. 6. In view of the above, appeal is accepted. Impugned judgment is set aside. Suit of the appellant/plaintiff is decreed for a sum of ₹ 3,49,000/- alongwith interest @ 9% per annum simple from the date of filing of the suit till realization. Appellant is also entitled to costs of this appeal. Decree sheet be prepared. Trial Court record be sent back.
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2012 (3) TMI 612 - ITAT MUMBAI
Disallowance for "loss on Mark to Market" on trading of Derivatives - The assessee had been engaging in marked to market on daily basis and accordingly provision is made in the P&L Account against anticipated loss. AO disallowed the provision on account of loss in open future contracts debited in the profit & loss account and added it back. - HELD THAT:- Taking into account the guidance note issued by ICAI, which the companies have to follow, we are of the opinion that the assessee has rightly claimed the provision in the Profit & Loss Account. We are of the considered view that the assessee has a strong case to make provision for loss on mark-to-market basis. We therefore delete the disallowance.
Disallowance w.r.t V-SAT charges and Lease Charges and Transaction charges - TDS Deduction - Dept. appealed on account of deletion of disallowance made in respect of V-SAT and lease line charges - HELD THAT:- CIT held that the VSAT and Lease line charges are not payments which come within the domain of `fee for technical services’ and they are also not for `any work’ done by NSE for the member broker. The TDS is, therefore, not deductible on the same.
The CIT(A) further observed that in so far as the deductibility of TDS on transaction charges are concerned, the I.T.A.T, Mumbai in the case of KOTAK SECURITIES LTD. VERSUS ADDITIONAL COMMISSIONER OF INCOME-TAX [2008 (8) TMI 592 - ITAT MUMBAI] has held that the Stock Exchange does not provide managerial services and the fees paid by the member to the Stock Exchange is not for any technical services rendered, so TDS is not deductible on the same.
We, therefore, refrain ourselves to take any adverse view on the view taken by the CIT(A), we uphold the order of the CIT(A) on both these issues.
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2012 (3) TMI 611 - SUPREME COURT
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... ... ..... iew, indicate the discretion given to the Court to allow the pre-deposit to be made, if felt necessary, in installments. 13. Having regard to the above, we are not inclined to entertain the Special Leave Petitions filed by M/s. Goodyear India Limited and the same are, accordingly, dismissed. However, in keeping with the other decisions rendered in these cases, we extend the time for pre-deposit by the Petitioner, by a further period of twelve weeks. If such deposit is made, the Appeal shall be treated to be in order and, thereafter, the same may be proceeded with. As far as the two Special Leave Petitions filed by M/s. Norton Intech Rubbers (P) Limited and another, are concerned, having regard to the decision in these two Special Leave Petitions, nothing survives therein and the same are disposed of, however, with leave to the Special Leave Petitioner to take whatever objections, that may have been taken in these Special Leave Petitions, at the time of hearing of the Appeal.
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2012 (3) TMI 610 - ITAT MUMBAI
Revision u/s 263 - Disallowance u/s 14A - Held that:- The order of the CIT cannot be justified. For invoking the provisions under section 263, two parameters are to be justified. One that the order is ‘erroneous’ and two it is ‘prejudice to the interests of the Revenue’. As far as the order being erroneous in nature, AO after considering that the assessee had offered some of the share transactions as business income and some of the shares held in investment which yielded short term capital gain of more than ₹ 5.79 crores, has only disallowed a portion of the total expenditure in relation to the exempt income to the total income earned by assessee. This is one way of arriving at a reasonable amount for disallowance under section 14A which cannot be faulted.
AO had determined the business income at ₹ 14.76 crores and allowed carry forward of losses to be set of thereby determining the business income at Nil. The short term capital gain of ₹ 5.76 crores was to be taxed at 10%. The assessee also had suffered tax on book profit under section 115JB and the Assessing Officer determined the total book profit at ₹ 45.53 crores on which the tax payable at ₹ 7.50 crores worked out at ₹ 3.41 crores. AO had given a finding that the tax payable on book profit is more than the tax payable on the regular income and, therefore, book profit under section 115JB was assessable to tax. The consequential/re-assessment order passed by the Assessing Officer was also placed on record and noticed that the business income was still determined at Nil and the Assessing Officer again accepted the income under section 115JB.
The fact is that the assessment was done invoking provisions of section 115JB in both the situations. There is no effect on ultimate assessed income/ book profit and therefore, the order of the Assessing Officer does not cause any prejudice to the Revenue. In view of this, we are of the opinion that the order of the CIT under section 263 cannot be sustained as one of the parameters for invoking the jurisdiction has not been fulfilled. Therefore, without analyzing the rival contentions on various judicial principles, which is only academic in nature, we hold that the order of the Assessing Officer passed originally under section 143 has to be upheld and order of the CIT under section 263 has to be cancelled. Accordingly the assessee’s grounds are allowed and the order under section 263 is therefore, cancelled.
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2012 (3) TMI 609 - MADRAS HIGH COURT
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... ... ..... , only in a printed format, on the cover, wrapper or container and not by way of a label stuck on them. 36.Further, the respondents have not been in a position to show that they have the power or authority to refuse the request of the petitioner, for taking the samples of the imported goods for the purpose of testing. As such, the impugned letter of the first respondent, dated 12.1.2012, is set aside. The respondents are directed to make the necessary arrangements for taking the samples of the goods in question, imported by the petitioner, and to send the samples for testing, by the authorized laboratories, within a period of seven days from the date of receipt of a copy of this order. On receipt of the report from the laboratory concerned, the goods shall be released only if they are fit for human consumption, on the payment of the appropriate duty, as prescribed by law. Accordingly, the writ petition stands allowed. Consequently, connected miscellaneous petition is closed.
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2012 (3) TMI 608 - ITAT HYDERABAD
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... ... ..... e trust is not undertaking any business activity. In view of the above, the Assessing Officer is directed to verify in respect of each asset on which depreciation claimed, whether the value of such asset was in fact allowed under S.11, and if it was so allowed, the depreciation would not be allowed in respect of such asset. Only if the value of the asset was not allowed as expenditure under S.11, the Assessing Officer is required to allow depreciation thereon, as per the rate applicable to those assets, as held in the case of Mahila Sidh Nirman Yojna, cited supra. This issue raised by the Revenue is set aside to the file of the Assessing Officer for fresh consideration, in the light of the above observations. The Assessing Officer shall accordingly redecide the issue in accordance with law and after giving reasonable opportunity of hearing to the assessee. 7. In the result, Revenue’s appeal is allowed for statistical purposes. Order pronounced in the court on 22.3.2012
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2012 (3) TMI 607 - DELHI HIGH COURT
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... ... ..... ent. In other words, commercial solvency can be seen as relevant as to whether there was a dispute as to the debt, not as a ground in itself, that means it cannot be characterized as a stand alone ground.? Consequently, list the matter before the Registrar General on 15th March, 2012 for handing over of cheque to the learned counsel for petitioner against a receipt. The petitioner is also granted liberty to file a civil suit to claim recovery of interest, if any. However, the aforesaid liberty is without prejudice to the rights and contentions of the respondent company. It is clarified that the rights and contentions of both the parties are left open and the trial Court would decide the said matter without being influenced by any observations made by this Court either in the present order or in the order dated 21st November, 2011. With the aforesaid observations and liberty, present petition stands disposed of. The next date of hearing i.e. 12th March, 2012 stands cancelled.
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2012 (3) TMI 606 - CESTAT NEW DELHI
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... ... ..... not complied with the order of the Tribunal under Section 35 F of the Central Excise Act dated 10.1.2012, as such, the appeals are liable to be dismissed. 4. In the instant case, it is obvious that the appellants in the respective appeals have failed to comply with the mandate of Section 35F. Thus, the appeals filed by the appellants cannot be entertained. Accordingly, all the appeals are dismissed for non-compliance of the mandate of Section 35F of the Central Excise Act, 1944.
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