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Showing 181 to 200 of 1042 Records
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2013 (1) TMI 874
Nature of income on sale of shares - whether capital gains on sale of capital asset or business income - Held that:- Asssessee’s investment behaviour implies that the assessee being an investor in equity shares qua his shareholding as at the beginning of the year - For the year under reference also assessee is an investor, albeit an active one, returning a short term capital gain both qua the investment in mutual funds as well as on the shares purchased by him during the year - The same is accordingly validated as short term capital gains - Decided in favor of assessee
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2013 (1) TMI 873
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... ... ..... om the factory. We find that the precedent decision of the Tribunal are on both the sides, which stand taken note of by the latest decision of the Tribunal in the case of Maharashtra Seamless Ltd. vs. CCE, Raigad reported as 2012 (286) ELT 93 (Tri. Mumbai) and vide majority order unconditional stay was granted. By following the said decision, we allow all the stay petitions in the present matter also. Stay petitions are allowed accordingly.
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2013 (1) TMI 872
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... ... ..... icial pronouncement, we modify the impugned order of the learned CIT(Appeals) on this issue and direct the AO to accept the income from house property declared by the assessee adopting the municipal ratable value as annual letting value of its property. Ground No.1 of the assessee’s appeal is accordingly allowed whereas the solitary ground raised in the Revenue’s appeal is dismissed.” 5. Since the issue in the instant case is identical as it was in the case of Gagan Trading (supra), we are inclined to follow the decision as also, because one of us was a party in that case . Respectfully, therefore, following the decision in Gagan Trading (supra), we delete the addition. 6. In the result, the order of the CIT(A) on this issue is set aside and we direct the AO to delete the addition made at ₹ 3,00,000 (Rs. 3,60,000 - ₹ 60,000). 7. The appeal, as filed by the assessee is allowed. Order pronounced in the open Court on this day of 30th January, 2013.
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2013 (1) TMI 871
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... ... ..... se Priority 52 Name List Table 7 Colorful Accent 6 / w LsdException Locked false SemiHidden true UnhideWhenUsed true Name Mention / w LsdException Locked false SemiHidden true UnhideWhenUsed true Name Smart Hyperlink / /w LatentStyles /xml endif -- -- if gte mso 10 endif -- Shri P.K. Das, Judicial Member and Shri Mathew John, Technical Member For the Respondent Shri M. Rammohan Rao, DC (AR) ORDER Per P.K. Das None appeared on behalf of the applicant despite notice. It appears from the records, the matter was adjourned at the request of the applicant on earlier occasions. Today, when the matter was called, none appeared and there is no application for adjournment. It seems that the applicant is not interested in pursuing the matter. Accordingly, the stay application is rejected. We direct the applicant to deposit the entire amount of CENVAT credit demanded along with interest and penalty within 4 weeks and report compliance on 4.3.2013. (Dictated and pronounced in open court)
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2013 (1) TMI 870
Whether assessee is having Permanent Establishment in India or not - Held that:- assessee has no operation in respect of manufacture or sale of product carried out in India - Sales are made by the assessee to LIPL on principal to principal basis - The assessee a1so does not have a right to use LIPL premises - there should be some definite activity of the PE to which profits can be attributed and merely acting for a non-resident principal would not by itself render an agent to be considered as PE for the purpose of allocating profits - addition of ₹ 2,29,26,152/- made by the AO being a profit margin of 5% on the sales made by the assessee, is not sustainable - Decided in favor of assessee
Chargebility of interest u/s 234B - Held that:- Assessee is a foreign company not liable to tax in India - when a duty was cast on the payer to deduct the tax at source, on failure of the payer to do so, no interest could be imposed on the assessee - Decided in favor of assessee
Initiation of penalty u/s 271(1)(c) - Held that:- penalty proceeding are independent proceeding - the ground raised by the assessee is not pressed and accordingly we reject the ground taken by the assessee being pre-matured/not pressed is rejected
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2013 (1) TMI 869
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... ... ..... ock is followed in the business circle for availing loan from bank. Therefore, no addition can be on account of excess stock solely relying upon the stock statement submitted before the bank. This view of ours is fortified by the decision of co-ordinate bench of the Income-tax Appellate Tribunal in case of M/s. Sree Taraka Jewellers V/s. ITO (ITA No.1007/Hyd/2011 dated 10-5-2012. 11. So far as the other decisions relied upon by the assessee as well as by the department, suffice it to say, the views of the Courts are divergent considering the peculiar facts involved in each case. Therefore, the decisions cannot be applied uniformly unless the facts are identical. Considering the totality of facts and circumstances of the case, we are of the view that the addition made is not justified and accordingly the same is deleted. Grounds raised by the assessee are allowed. 12. In the result, the appeal filed by the assessee stands allowed. Order pronounced in the court on 18 -01-2013.
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2013 (1) TMI 868
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... ... ..... on the decision of Goetze (India) Ltd.(supra) is misplaced and on the basis this contention of the revenue, the relief cannot be denied to the assessee. 16. In view of the above discussions we are of the opinion that income earned by the assessee from the activity of sale and purchase of shares is to be assessed as business income, therefore, we allow ground No.1 & 2 of the appeal. 17. So far as it relates to ground No.3, since it has been held that activity of sale and purchase entered into by the assessee is in the nature of business, as it has not been disputed by the revenue that borrowed funds on which interest has been paid by the assessee were utilized for the purpose of purchase of shares, the same become consequential and allowable out of income earned by the assessee from the activity of sale and purchase of shares. 18. In the result, appeal filed by the assessee is allowed in the manner aforesaid. Order pronounced in the open court on the 30th day of Jan.2013
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2013 (1) TMI 867
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... ... ..... Germany as internal CUP for computing/determining the ALP of the commission receivable by the assessee from the transactions with another AE, namely, Fuch Lubritech GMBH Germany. The rate of commission of 5 , therefore, was rightly adopted by the learned CIT(Appeals) as at arm’s length and by applying the same to the FOB value of transactions to the third party, namely, Grasim Industry, the arm’s length price of the commission received/receivable by the assessee from Fuch Lubritech GMBH Germany was rightly determined by him at ₹ 2,74,068/- as against ₹ 2,03,507/- shown by the assessee thereby restricting the addition made by the AO/TPO by way of TP adjustment to ₹ 70,561/-. We, therefore, find no infirmity in the impugned order of the learned CIT(Appeals) on this issue and upholding the same, we dismiss this appeal filed by the Revenue. 8. In the result, the appeal of the Revenue is dismissed. Order pronounced on this 18th day of January, 2013.
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2013 (1) TMI 866
Whether the views expressed by the Chief Justice of the High Court of Karnataka has got primacy while making appointment to the post of Lokayukta or Upa Lokayukta by the Governor of Karnataka in exercise of powers conferred on him under Section 3(2)(a) and (b) of the Karnataka Lokayukta Act, 1984? - Held that:- The mechanics of the working of a statute has to be decoded from the contents of the statute and the words used therein; otherwise there is a possibility of committing a serious error. If, as a general principle, it is held (as has been argued before us) that the view of the Chief Justice must have primacy over the views of everybody else, how would one explain the omission of the Chief Justice in the consultation process in the Kerala Lokayukta Act, 1999? Similarly, if as a general principle, it is held that the view of the Chief Minister must have primacy over the views of everybody else, how would one explain the omission of the Chief Minister in the consultation process in the Orissa Lokpal and Lokayuktas Act, 1995? It is for this reason that I would hold that a statute must be considered and understood on its own terms. In so construing the Act, no reason to accord primacy to the views of the Chief Justice in the appointment of an Upa-lokayukta under the Karnataka Lokayukta Act, 1984. The judgment of the High Court, to this extent, is set aside.
Merely because a wrong has been committed several times in the past does not mean that it should be allowed to persist, otherwise it will never be corrected. The doctrine of ‘prospective overruling’ has no application since there is no overwhelming reason to save the appointment of the Upa-lokayukta from attack. As already held, in the absence of any consultation with the Chief Justice, the appointment of Justice Chandrashekharaiah as an Upa-lokayukta is void ab initio. However, this will not affect any other appointment already made since no such appointment is under challenge before us.
It was also contended that the High Court ought not to have laid down any procedure for the appointment of the Upa-lokayukta. In the view that I have taken, it is not necessary to comment on the procedure proposed by the High Court.
Conclusion - The appointment of Justice Chandrashekharaiah as the Upa-lokayukta is held void ab initio. Since some of the contentions urged by the appellants are accepted, the appeals are partly allowed to that extent only.
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2013 (1) TMI 865
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... ... ..... he details of its expenditure as well as income in its Return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the Return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under Section 271(1)(c). If we accept the contention of the Revenue then in case of every Return where the claim made is not accepted by Assessing Officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the Legislature." 9. As the Tribunal appreciated the case of the respondent assessee in accordance with law with no material to indicate necessity to dislodge the finding of the Tribunal on record, this Appeal deserves no consideration and therefore, the same is dismissed.
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2013 (1) TMI 864
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... ... ..... the Assessing Officer to examine the issue afresh. Consequently, we set aside the impugned order passed by the learned Commissioner (Appeals) and restore back the issue to the file of the Assessing Officer who will consider the assessee’s explanation and the working given before the Assessing Officer as well as by the learned Commissioner (Appeals). The assessee is also directed to provide relevant details to the Assessing Officer for adjudication of this issue. The Assessing Officer will decide the issue afresh and in accordance with the provisions of law and the facts of the case after giving due and adequate opportunity of hearing to the assessee. The grounds raised by the assessee are, thus, allowed for statistical purposes. 16. In the result, assessee’s appeal is allowed for statistical purposes. 17. In the result, assessee’s appeal and Revenue’s appeal are allowed for statistical purposes. Order pronounced in the open Court on 28th January 2013
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2013 (1) TMI 863
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... ... ..... f the year and disallowance had to be worked out from the date of investment and not for the full year. o p /o p 33. The learned D.R. for the Revenue placed reliance on the orders of the authorities below. o p /o p 34. We have heard the rival contentions and perused the record. IN view of the confession made by the learned A.R. for the assessee we uphold the disallowance made under section 14A of the Act. o p /o p However, we direct the Assessing Officer to verify the claim of the assessee that the interest relatable to the period from the date of the investment till the close of the year is to be computed and disallowed and there is no merit in disallowing the interest relatable to the full year. The ground No.4 raised by the assessee is thus allowed for statistical purposes. o p /o p 35. In the result, the appeal of the Revenue is and Cross Objection filed by the assessee are partly allowed. o p /o p Order Pronounced in the Open Court on 31st day of January, 2013. o p /o p
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2013 (1) TMI 862
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... ... ..... employees for the purpose of applicability of Employees State Insurance Act. The same obligation binds the authorities under the Act as well. In my view, in the present case, the respondent authorities have miserably failed to discharge the said onus. 26. As pointed out by learned counsel for the petitioner, the respondent have not even cared to examine the returns filed by respondent No.2 and by the petitioner to point out even a single instance of interchangeability of employees, apart from the aforesaid two cases. Even the aforesaid two cases are not those of interchangeability. They are cases of resignation from the establishment of respondent No.2 and fresh appointment in the establishment of the petitioner. 27. For all the aforesaid reasons, the impugned order dated 13.10.2000 of the RPFC and the appellate order dated 18.08.2005 of the EPFAT cannot be sustained and are set aside. The parties are left to bear their respective costs. 28. The petition stands disposed of.
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2013 (1) TMI 861
Rate of depreciation on UPS, ATM machines and software licence - Held that:- UPS is an integral part of the computer system and regulate the flow of the power to avoid any kind of damage to the computer network due to fluctuation in power supply - hence depreciation at 60% is allowed
ATM cannot function without the help of computer and would be a part of the computer used in the banking industry - hence depreciation at 60% is allowed - Tribunal records a fact that the evidence of the use of the software on 31/3/2008 was produced before the Tribunal - Thus, the Tribunal held that depreciation @ 30% on software was rightly claimed - decided in favor of assessee
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2013 (1) TMI 860
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... ... ..... accrued to the assessee-company during the year under consideration. Thus, we set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition of ₹ 197.13 lakhs. o p /o p 12. Resultantly, the appeal of the assessee in ITA No. 737/PN/2008 pertaining to A.Y. 2001-02 is allowed. o p /o p 13. Now, coming to the appeals for A.Ys. 2002-03 to 2005-06, the facts and circumstances are in pari materia with those for A.Y. 2001- 02. So, the decision rendered by us while dealing with the appeal for A.Y. 2001-02, will apply mutatis mutandis to the appeals for A.Ys. 2002-03 to 2005-06. In this view of the matter, we reverse the orders of the CIT(A) for the respective years and direct the Assessing Officer to delete the impugned addition made by the Assessing Officer for the years under consideration. o p /o p 14. In the result, all the captioned appeals of the assessee are allowed. o p /o p Decision pronounced in the open court on 31st January 2013. o p /o p
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2013 (1) TMI 859
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... ... ..... de or sustained in excess of the expenses debited in the profit & loss account. In the present case, the total expenses debited in the profit & loss account is ₹ 66,49,909/- which includes ₹ 65,79,796/- on account of purchase and ₹ 9,196/- on account of depreciation and admittedly, no disallowance can be made against these two expenses. Apart from this, whatever amount is debited to the profit & loss account has been disallowed by the assessee itself in the computation on account of interest expenditure and the disallowance to the extent of balance amount of administrative expenses and other expenses totaling to ₹ 35,847/- has been confirmed by the learned CIT(A) and hence, we do not find any reason to interfere in the order of the learned CIT(A) on this issue also. Hence, ground No.2 is also rejected. 7. In the result, appeal of the revenue is dismissed Order pronounced in the open Court on the date of hearing itself I i.e. on 31-01-2013.
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2013 (1) TMI 858
Hindu Adoptions and Maintenance Act, 1956 - Adoption of a male child from outside the family - Right to inherent the property / legacy rights of the adopted child - HELD THAT:-The apex court restored the trial court decision that holding the adoption of Raghunath by Smt. Laxmibai was valid and the adoption deed was a legal document which could in fact, be relied upon;also the ceremony of giving and taking of the child and that performance of all other religious ceremonies was conducted ; and the photographs taken at the time of adoption could be relied upon. The said adopted child Raghunath, inherited all the property of Smt. Laxmibai when she died before the trial of the suit even commenced. The inheritance was held to be valid, as it was held that there was no custom of adopting of a male child only from within the said family and, consequently, the adoption of Raghunath by Smt. Laxmibai from outside, was upheld.
Therefore,The judgments and decrees of the appellate courts are set aside.
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2013 (1) TMI 857
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... ... ..... aid Act and in particular the provisions of section 2(34) of the said Act. It has also been contended by the learned counsel for the petitioner that Explanation 2 after sub-section 11 of section 28 of the said Act makes it clear that the provisions of the said sub-section would be applicable only on and from the date the Finance Bill, 2011 received the assent of the President and that insofar as show cause notices issued prior to that date are concerned, the provisions of section 28 as they stood immediately before that date would continue to operate. In the present case, the show cause notice was issued way back in 2003, at which point of time sub-section (11) of section 28 was not in the statute book. There is some confusion with regard to when Explanation 2 was introduced in the statute book and as to whether Explanation 2 has at all been passed by Parliament or not. The learned counsel for the respondent wishes to take instructions in this regard. Renotify on 04.02.2013.
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2013 (1) TMI 856
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... ... ..... wing the “Project Completion” method of accounting wherein expenses incurred on incomplete projects were being shown as Work in Progress? 2) By the impugned order the Tribunal has allowed the assessee's appeal by following its decision in assessee's own case for earlier years. We are informed that the appeals filed by revenue for earlier years 1997-98, 1998-99 and 1999-2000 against the order of the Tribunal granting relief to the respondent assessee has been dismissed. 3) In view of the above, we see no reason to entertain the proposed question of law. 4) Accordingly, the appeal is dismissed with no order as to costs.
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2013 (1) TMI 855
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... ... ..... user in the eyes of law. o p /o p However, user is essentially a matter of fact and, in any case, the said issue is beyond the scope of the present appeal as it does not arise out of the orders of the authorities below and, thus, a matter we therefore find no reason to dwell upon. o p /o p 3.4 Under the given facts & circumstances, therefore, we find little merit in the Revenue’s case. We decide accordingly, accepting the assessee’s Ground No. 1. o p /o p 4. As afore-noted, Ground No. 2, which agitates the initiation of penalty u/s. 271(1)(c), was not pressed, and was even otherwise dismissed as being premature by the ld. CIT(A). His order, thus, cannot be impugned on that score; penalty proceeding being separate and distinct proceedings, while the present appeal is in relation to quantum proceedings. We decide accordingly. o p /o p 5. In the result, the assessee’s appeal is allowed. o p /o p Order pronounced on this 16th day of January, 2013. o p /o p
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