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Showing 221 to 240 of 994 Records
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2013 (4) TMI 781 - ITAT MUMBAI
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... ... ..... ding of ld. CIT(A) which are in consonance with the order of Tribunal for earlier 3 years i.e. from A.Y. 2003-04 to A.Y. 2005-06. Even the AO has mentioned in his order that in earlier year the deduction was denied by the AO and ld. CIT(A) has allowed the issue in favour of assessment order of ld. CIT has been confirmed by Tribunal. However, revenue has not accepted the order of Tribunal and they are going to file the appeal before Hon’ble High Court. From this fact, it is clearly established that on the basis of denial of deduction in earlier year the AO has disallowed the claim on deduction u/s 10B for the year under consideration. Since facts are similar, therefore in view of the consistency the deduction has to be allowed. Accordingly, we confirmed the order of CIT(A) for the year under consideration and reject the ground of the department. 4. In the result, the appeal of the department is dismissed. Order pronounced in the open court on this 3rd day of April 2013.
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2013 (4) TMI 780 - ITAT BANGALORE
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... ... ..... The above said expenses whether it arose from EPC contract or from O&M contract, are not clear. The assessee had produced only the O&M contract before the Income Tax authorities. From the O&M contract, it can be seen that the work has commenced only from May, 2002 i.e. beyond the close of the accounting year (page 183 of the paper book filed by the assessee). Though it was asserted by the learned AR that the EPC contract is preceding the O&M contract, there is nothing on record to suggest the same. As rightly pointed out by the learned DR, since the assessee has not produced the agreement for the EPC contract and the facts not being discussed with clarity by the Income-tax authorities, the issue needs to be considered afresh by the Assessing Officer. Therefore, the matter is restored to the file of the Assessing Officer for denovo consideration. It is ordered accordingly. 11. In the result, the appeal filed by the assessee is allowed for statistical purposes.
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2013 (4) TMI 779 - ITAT CHANDIGARH
Whether the advances given to the assessee has to be considered as a deemed dividend u/s 2(22)(e) - Held that:- advances to the assessee is for the import of specialized machinery from out of India and for meeting other incidental requirements required for doing job work - it was mutually agreed that assessee shall do the job work of M/s Nexo Industries exclusively and at lower rates than the market rate and the amount of job work will be adjusted against the advances - the advances were out of Business compulsion and business expediency/ necessity and not for the personal use/benefit of the assessee and therefore these do not fall under the purview of section 2(22) (e) - Hon'ble Calcutta High Court rendered in the case of Pradeep Kumar Malhotra V CIT reported [338 ITR 538] - The job work is being done by the assessee exclusively for M/s Nexo Industries (P) Ltd. ( sistercompany) of which the assessee is a Director - the assessee even charged 10% less than the market rate for job work, which resulted into a mutual benefit of both the parties - The assessee was not allowed to adjust advances against the job work done by it as per the terms of the agreement. As a result, the sister-concern took over the entire business of the assessee - there is no personal benefit to the assessee from this arrangement but the assessee has suffered therefrom - Hence the security deposit cannot be construed as a loan - Reliance is placed on the decision of Delhi High Court in (2000) [161 CTR (Del) 432 : (2000) 244 ITR 358] - Decided in favor of assessee
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2013 (4) TMI 778 - ITAT CHENNAI
Entitlement for deduction for the amount pertaining to employees contribution towards Provident Fund and ESI - Held that:- The assessee is entitled for relief if actual payment is made before due date of filing the return. Admittedly, even the consequential order dated 31.12.2009 contains a finding of fact that the amount had been deposited before filing of the ‘return’. Therefore we hold that CIT(A) has rightly interfered in the finding of the Assessing Officer. - Decided against revenue
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2013 (4) TMI 777 - GUJARAT HIGH COURT
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... ... ..... evant to, any proceeding under this Act, as already extracted above, makes it clear that the materials collected and the statement recorded during the survey under Section 133A are not conclusive piece of evidence by itself.” 8.5 This decision come to be confirmed by the Apex Court when challenged by the revenue as reported in 352 ITR page 480 in case of Commissioner of Income Tax vs. Khader Khan Son. Following this decision, we see no reasons to interfere. 8.6 Moreover, in the case on hand, it is the statement of the son of the assessee which was depended upon. Of course it was confirmed by the assessee but, retracted later by her by a written communication, without any corroborative evidence, when Tribunal upheld the version of the assessee, appeal merits no consideration. 9. Since other questions raised by the revenue in this tax appeal are also not addressed to by the Tribunal, we are not examining those questions at this stage. Tax appeal is, therefore, dismissed.
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2013 (4) TMI 776 - ITAT MUMBAI
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... ... ..... assuming satisfaction qua creditworthiness in the case of Sh. Sitaram Bhat, the same would clearly stand to be depleted by the amount gifted to Sh. Pinakin L. Shah, so that the matter would merit examination. In view of the foregoing, we, under the circumstances, only consider it fit and proper that the matter is restored back to the file of the ld. CIT(A) for fresh adjudication in accordance with law by issuing definite findings of fact, and after hearing both the sides; the law in the matter being trite, with the AO having cited several decisions. The ld. CIT(A) shall issue findings both with regard to the capacity of the donors as well as the genuineness aspect of the credits. Needless to add, admission of additional evidence would be governed by the terms of law and, further, regulated by the procedure in its respect. We decide accordingly. 4. In the result, the appeals by the Revenue are allowed for statistical purposes. Order pronounced on this 05th day of April, 2013.
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2013 (4) TMI 775 - CESTAT MUMBAI
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... ... ..... mporter for the part of its advertising expenses, such payments only reduces his net expenses for advertising which is not a dutiable item in the first place. If the charge is not based on the number of units of the products imported, such a cost sharing arrangements cannot be regarded as an indirect payment constituting an additional element of the price paid by the importer to the exporter. In the present case, we find that there is no nexus between the imports made by the appellants and the expenditure shared by the appellants for the global advertising campaign. We also find that the sharing of cost towards advertising expenses is not a condition of sale for the import of goods. Therefore, we are of the view that the provisions of Section 10(1)(e) of the Customs Valuation Rules, 2007, are not attracted in the present case. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, if any. (Operative part of the order pronounced in Court)
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2013 (4) TMI 774 - CESTAT AHMEDABAD
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... ... ..... so not filed any reply to the show cause notice in the absence of receipt of documents sought by them vide their letter dt.27.04.2006. In our considered view, the impugned order is passed in violation of principles of natural justice. In order to meet the ends of justice, we direct the adjudicating authority to provide all the documents asked for by the assessee vide their letter dt.27.04.2006 within 30 days of production of certified copy of this order. On receipt of such documents from the adjudicating authority, the appellant are directed to file a reply within 30 days to the adjudicating authority in defence against the allegations made in the show cause notice. On receipt of such reply from the appellant, the adjudicating authority will pass an order, after following the principles of natural justice and considering all the submissions which may be made. 5. The impugned order is set aside and the appeals are allowed by way of remand. (Dictated & Pronounced in Court)
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2013 (4) TMI 773 - CESTAT BANGALORE
Waiver and stay of demand - Penalty - Notification No. 196/94-Cus dated 08.12.1994 - Held that: - the assessee is not claiming prima facie case against the demand of Central Excise duty. For the reasons already stated, their claim of prima facie case against the demand of Customs duty remains unsubstantiated and their plea of financial hardships is also unacceptable. In the result, there will be a direction to the appellant to pre-deposit the entire demand of Customs duty plus Central Excise duty (less ₹ 1 lakh already deposited) within six weeks and report compliance to the Deputy Registrar on 15.7.2013.
In the event of due compliance, there will be waiver and stay in respect of the penalties imposed on the appellant and interest on duty.
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2013 (4) TMI 772 - ITAT CHENNAI
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... ... ..... e, set aside the order of the DRP and restore the matter back to the file of the DRP for adjudicating the issue afresh in the light of the discussions made herein above by passing a speaking order. Needless to mention that DRP shall allow reasonable opportunity of hearing to both the parties. Thus, the grounds of appeal of the assessee are allowed for statistical purposes. 19. In Ground No.5 of the appeal, the grievance of the assessee is that the DRP/TPO/AO erred in not considering that the expenses incurred of ₹ 77,56,037/- in shifting of office from Adyar to Perungudi requires adjustment in determining operating expenses under TNMM method. 20. At the time of hearing, no argument was advanced by the ld. A.R of the assessee in respect of this ground, hence, this ground of appeal is dismissed, for want of prosecution. 21. In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced on Monday, the 15th of April, 2013 at Chennai.
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2013 (4) TMI 771 - ITAT CHENNAI
Depreciation in case of ‘trusts’ - whether it amounts to double deduction or not? - Held that:- There are two different court judgments one favoring and one against assessee. Thus faced with this situation, we draw support from the case law CIT Vs. Vegetable Products (1973 (1) TMI 1 - SUPREME Court) holding that in case of divergent judicial precedents, the one which favours the assessee has to be adopted and confirm the CIT(A)’s findings allowing the claim of depreciation holding it as “application of income on stated charitable objects” - Decided in favour of assessee.
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2013 (4) TMI 770 - ITAT HYDERABAD
Addition on broken period interest - Held that:- The conclusion arrived at by the assessing officer that the HTM category of securities are investments and cannot be considered as stock in trade is also found to be not the correct view. The Hon’ble AP High Court in case of SBH (1984 (7) TMI 66 - ANDHRA PRADESH High Court) has held that the amount required to be kept in India as per section 24 of the banking Regulation Act, 1949 in the form of cash, gold and encumbered securities is part of stock in trade of the assessee. Hence, it cannot be held that HTM category of securities is not stock in trade of the assessee. In aforesaid view of the matter, we uphold the conclusion of the CIT (A) to the effect that broken period interest is an allowable deduction. Accordingly, we dismiss the ground raised by the revenue on this issue.
Disallowance of amortisation of government securities - Held that:- After perusing the order of the CIT (A), we do not find any infirmity in his view. As has been held by us in the earlier part of this order (supra), HTM category of securities being stock in trade, the assessee is entitled to claim amortization. Hence, the order passed by the CIT (A) is upheld and the ground raised by the revenue is dismissed.
Addition being provision for staff frauds - Held that:- Circular No.35 dated 24-11-1965 of CBDT also clarifies that the loss to embezzlement by an employee is an allowable expenditure u/s 37 of the Act. In aforesaid view of the matter, we do not find any infirmity in the order of the CIT (A) in allowing the expenditure claimed by the assessee on account of staff fraud. Hence, this ground raised by the Revenue is dismissed.
Accrued interest on non performing assets (NPAs) - Held that:- Assessing Officer has not denied the fact that the amount represents unrealized interest on NPA. Admittedly, so far as interest on NPA is concerned the assessee was recognizing it as per the prudential norms for income recognition issued by the RBI for recognition and asset classification and accordingly has not included the interest on NPA as its income. In our view, such recognition of income by the assessee is in accordance with law and as per accepted accounting norms. When the recovery of the principal amount itself has become doubtful, it cannot be said that interest on such amount has accrued as income to the assessee.
Disallowance of provision made for gratuity - Held that:- The assessee has submitted certain documents in support of his claim that the group gratuity scheme of the SBI Life Insurance Company is an approved gratuity fund and it is also a fact on record that the payment to the said fund was made before the due date of submission of return of income for the relevant assessment year. In aforesaid view of the matter, assessee’s claim is required to be examined. Therefore, considering the fact that the evidence produced by the assessee were not considered by the revenue authorities while disallowing the claim of the assessee, we remit the matter back to the file of the assessing officer who shall decide the issue afresh after taking into account all the evidences available on record and further evidences that may be produced by the assessee before him. We direct the assessing officer to afford a reasonable opportunity of being heard to the assessee before deciding the issue.
Deduction u/s 36(1)(viia) - Held that:- Keeping in view the ratio laid down by the Hon’ble Supreme Court in case of Goetz India Ltd. (2006 (3) TMI 75 - SUPREME Court ) we direct the assessing officer to examine the claim of deduction made by the assessee u/s 36(1)(viia) of the Act and decide the same in accordance with law after considering all the materials and evidences that may be produced by the assessee
Revision u/s 263 - to bring to tax an amount being the provision made towards standard assets - Held that:- Standard assets cannot be equated with bad and doubtful debts which in other words is known as NPAs. CIT in our opinion was legally correct in coming to a conclusion that the assessment order passed u/s 143(3) of the Act is erroneous and prejudicial to the interest of revenue as the assessing officer has allowed the deduction claimed towards provision made on standard assets without proper application of mind. So far as the decision of Hon’ble Supreme Court in case of Catholic Syrian Bank Ltd. Vs. CIT (2012 (2) TMI 262 - SUPREME COURT OF INDIA ) is concerned the same is not applicable to the facts of the instant case. The allowance of deduction on standard assets was not an issue for consideration before the Hon’ble Supreme Court. We uphold the order of the CIT on this issue and dismiss the appeal.
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2013 (4) TMI 769 - ITAT PUNE
Addition on expenditure towards amortization of investment held till maturity - Held that:- ITAT, Mumbai Bench, in the case of ACIT vs. The Bank of Rajasthan Ltd. (2010 (12) TMI 894 - ITAT, Mumbai) has held that in case of banks, the premium paid in excess of face value of investments classified under HTM category which has been amortised over the period till maturity is allowable as revenue expenditure since the claim is as per RBI Guidelines and CBDT also has directed to allow such premium.
It has also been held in the case of Catholic Syrian Bank Ltd. vs. ACIT [2011 (2) TMI 1303 - ITAT COCHIN ] that amortisation on purchase of Government securities was made as per prudential norms of the RBI and same was allowable deduction. In view of above, assessee was justified in contending for amortisation of premium paid in excess of face value of securities held to maturity (HTM) category or period remaining till maturity was found reasonable by the CIT(A). Accordingly addition made by the Assessing Officer by disallowing amount towards amortisation of Government Securities (HMT) was correctly deleted. - Decided against revenue
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2013 (4) TMI 768 - CESTAT MUMBAI
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... ... ..... eal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order passed by the Commissioner (Appeals) in a case of rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India. 4. As the Tribunal has the same powers as provided under the Central Excise Act, 1944 regarding hearing of the appeals under the Finance Act, 1994 and in respect of rebate claim, no appeal lies to the Tribunal against the order passed by the Commissioner (Appeals). 5. Further we find that as per the preamble of the Order-in-Appeal, the appeal lies to Joint Secretary to the Government of India. 6. In these circumstances, the appeal is dismissed as non-maintainable. The Revenue shall be at liberty to approach the appropriate forum in accordance with law. (Dictated in Court)
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2013 (4) TMI 767 - ITAT AHMEDABAD
Disallowance of interest u/s 36(l)(iii) in respect of interest free loan/ advance to sister concern - HELD THAT:- The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure, if it was incurred on grounds of commercial expediency". Undoubtedly, this aspect of the matter is important for the reason that in case the fact of commercial expediency of advancing interest free advances to the subsidiary companies is established, even if one is to come to the conclusion that interest free advances to the subsidiary companies are out of the borrowed funds, interest on borrowed funds is to be allowed in full nevertheless.
However, having held that the assessee did have sufficient interest bearing funds to advance interest free advances to sister concerns, this aspect of the matter is somewhat academic. In a case in which an assessee has sufficient interest free funds, to cover the interest free advances, the principles laid down by Hon’ble Supreme Court in SA Builders’ case [2006 (12) TMI 82 - SUPREME COURT] dealing with governing commercial expediency in advancing interest free advances will not really be relevant. Ld Commissioner (Appeals)’s stand was thus devoid of legally sustainable merits on this aspect as well.
Thus, we uphold the grievance of the assessee and direct the Assessing Officer to delete the impugned disallowance out of interest expenses. The assessee gets the relief accordingly.
In the result, the appeal is allowed.
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2013 (4) TMI 766 - ITAT HYDERABAD
Revision u/s 263 - CIT directing the Assessing Officer not to allow carry forward and set off of unabsorbed depreciation - rectification of mistake - Held that:- On the perusal of the order passed by the CIT, it becomes clear that he has not disturbed the set off of brought forward unabsorbed depreciation of ₹ 93,63,019/- from the income of the assessee. The CIT has only modified the order of the Assessing Officer to the extent of allowing carry forward of unabsorbed depreciation of 55,52,124/- to the subsequent assessment year as it is beyond 8 years. Furthermore, the department has no remedy against an order passed u/s 154 of the Act excepting invoking the revisionary power u//s 263 of the Act. In aforesaid view of the matter, we hold that the order passed by the CIT is valid in law and accordingly the same is confirmed.
Contention of the learned AR that the order passed u/s 263 is barred by limitation is not acceptable. The contention of the learned AR that the time limit to initiate proceedings u/s 263 is from the order u/s 143(3) is not correct. Sub-section (2) of Section 263 makes it clear that no order u/s 263 shall be made after the expiry of two years from the end of the financial year in which the order sought to be revised, was passed. In the present case, the order u/s 154 was passed on 17-3- 2010. Hence, the order passed u/s 263 of the Act is within the period of limitation. In view of our finding hereinabove that there was no mistake apparent on the face of record which could have been rectified by the Assessing Officer and no separate adjudication is required with regard to it - Decided against assessee.
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2013 (4) TMI 765 - ITAT CHENNAI
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... ... ..... the assessee since it raised a question of law, which went to the root of the matter. We therefore remit this issue back to the file of the CIT(A) for consideration and disposal in accordance with law. Cross objection filed by assessee Dr.L.Srinivasan, is thus allowed for statistical purposes. 26. Vis-à-vis the claim of the Ld. Senior Counsel that net wealth method should be adopted for ascertaining the income, we are unable to accept since both the assessees before us were not subject to search, and there were valid reason for CIT(A) to direct such method in the case of Dr.P.Ravichandran, who alone was subjected to search, and in whose case investments made were all available on record. 27. To summarise result, appeals of the Revenue are partly allowed, Cross objections of assessee, Dr.Deepak Lemech is partly allowed whereas Cross objections of assessee Dr.L.Srinivasan is allowed for statistical purposes. Order pronounced on thursday, the 18th April, 2013 at Chennai.
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2013 (4) TMI 764 - MADRAS HIGH COURT
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... ... ..... ed. 14. At this stage, the learned Counsel for the petitioner made a plea that the petitioner is prepared to go before the appellate authority against the impugned order dated 22-3-2010. 15. Considering the said plea made by the learned Counsel for the petitioner, the petitioner shall prefer an appeal before the appellate authority within a period of two weeks from the date of receipt of a copy of this order. It is needless to state that if such appeal is adjudicated by the petitioner, the same may be considered by the appellate authority and appropriate orders be passed on merits and in accordance with law, as expeditiously as possible. Since there is an interim order operating during the period of pendency of the writ petition, the said period shall be excluded for the purpose of limitation in filing an appeal. 16. With the above observations and directions, this writ petition is disposed of. No costs. Consequently connected miscellaneous petition is closed.
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2013 (4) TMI 763 - ITAT PUNE
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... ... ..... he Assessing Officer before finalising of assessment under Section 143(3) of the Act dated 31.12.2007. There is no merit in the plea setup by the Department that there is a deemed service of notice under Section 143(2) of the Act because assessee’s representative waived the right to notice under Section 143(2) of the Act. 14. We therefore, hold that the impugned assessment order dated 31.12.2007 was invalid for the reason that there was an omission on the part 7 of the Assessing Officer to issue notice under Section 143(2) of the Act before finalization of assessment, and the assessment order is hereby quashed. 15. Since the assessment has been held to be invalid on the preliminary Ground of appeal, the Grounds raised by the assessee with regard to the merits of the addition have been rendered academic and are not being adjudicated for the present. 16. In the result, the appeal of the assessee is allowed as above. Order pronounced in the open Court on 22nd April, 2013.
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2013 (4) TMI 762 - ITAT MUMBAI
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... ... ..... considered the said income as business income instead of treating the same as short term capital gain as claimed by the assessee in the return filed. We agree with ld A.R. that change of head of income does not ipso facto lead to the conclusion that assessee concealed particulars of income or furnished inaccurate particulars as held by Hon’ble Delhi High Court in the case of Amit Jain (supra) and also the Tribunal in the case of Sukdham Construction & Developers (supra). We agree with ld A.R. that it is a debatable issue and thus, there is no suppression of facts or furnishing of inaccurate particulars of income by the assessee. Hence, we hold that levy of penalty u/s.271(1)(c), on the facts and in the circumstances of the case, is not justified. Accordingly, we delete the penalty of ₹ 41,96,900/- by allowing ground of appeal taken by the assessee. 8. In the result, appeal filed by assessee is allowed,. Order pronounced in the open court on 30th April, 2013.
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