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Showing 241 to 260 of 1180 Records
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2013 (8) TMI 943 - ITAT HYDERABAD
Addition 40(a)(ia) - retrospectivity - Held that:- Amendment to section 40(a)(ia) permitting the deductor to remit the TDS to Government account on or before the due date of filing return under section 139(1) is retrospective and therefore, applicable to the assessment year 2009-10 as in the present case.
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2013 (8) TMI 942 - ITAT PANAJI
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... ... ..... ed in India. Even under Article 15 also, the income cannot be said to be taxable in India as under this Article, a person has to be in the other State for a period or periods aggregating to 90 days in the relevant fiscal year. In the case of the person to whom the Assessee made the payment, the person had remained in India only for 22 days. Therefore, this income cannot be taxable. We have also gone through the provisions of Sec. 9(1)(vii). Even if the provisions of Sec. 9(1)(vii) are applicable, but due to the DTAA between India and Portugal if the income is not chargeable to tax, we are of the firm view that the DTAA will prevail and the income will not be chargeable to tax in India. Since the income is not chargeable to tax in India, the Assessee was not under an obligation to deduct the TDS. We, accordingly, set aside the order of CIT(A) and quash the order passed u/s 201(1) and 201(1A) of the Income Tax Act. 3. In the result, the appeal filed by the Assessee is allowed.
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2013 (8) TMI 941 - ITAT HYDERABAD
“marked to market” loss on forward covers outstanding as on 31-3-2008 - assessee is entitled to claim the loss
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2013 (8) TMI 940 - ITAT CHENNAI
Disallowance under section 14A - Held that:- The assessee has not filed the break-up before the Assessing Officer. He has filed only before the ld. CIT(Appeals) and based on the break-up, the ld. CIT(Appeals) has calculated the disallowance under section 14A r.w. Rule 8D. The specific submissions made by the ld. DR is that no such break-up were filed before the Assessing Officer and the Assessing Officer had no occasion to see the break-up of the interest and the issue requires to be remitted back to the Assessing Officer. Under these circumstances, we set aside the order passed by the ld. CIT(Appeals) and remit the matter back to the file of the Assessing Officer and direct the Assessing Officer to calculate the disallowance under section 14A r.w. Rule 8D after examining the break-up of the investments in accordance with law after allowing sufficient opportunity of hearing to the assessee.
Disallowance under section 40(a)(i) on account of commission paid to overseas agencies - Held that:- It is an admitted fact that the assessee had paid selling commission to the nonresident /overseas agent for procurement of orders from overseas buyers. This expenses incurred by the assessee for a service rendered by a non-resident outside India. In this case, since the commission was paid to a non-resident agents for the services rendered outside India, such payments are not chargeable to tax in India and therefore, the provisions of section 195 are not applicable.
Foreign exchange fluctuation loss - Held that:- We find that the assessee has incurred loss relating to its business only and in view of the decision of CIT v. Panchmahal Steel Ltd. [2013 (5) TMI 686 - GUJARAT HIGH COURT]this ground of appeal raised by the Revenue is dismissed.
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2013 (8) TMI 939 - GUJARAT HIGH COURT
Addition u/s 68 - Held that:- The amount of ₹ 10,10,000/- was given by Shri Jigar A. Patel staying at U.K. Vide cheque no. 481971 drawn on ICICI Bank dated 27/03/2008 and the said amount was from NRI Account No.008501014581 of ICICI Bank at Vallabh Vidyanagar and considering the fact that even the aforesaid was confirmed by Shri Jigar A. Patel, both the CIT(A) as well as ITAT have rightly held that the same cannot be said to be unexplained cash deposit and have rightly deleted the addition - Decided in favour of assessee
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2013 (8) TMI 938 - ITAT AHMEDABAD
Addition u/s 43B - non payment of PPF contribution - Held that:- It is evident that the assessee had not paid the employee’s contribution within the due date under the PF Act or other relevant Acts. In this case, the issue was involving payment made u/s 43B of the Act on assessee’s contribution, not contribution of the employee. Thus, we uphold the order of the learned CIT(A). Accordingly, assessee’s ground No.1 stands dismissed.
Disallownce on account of authorized share capital - Held that:- The payment made to ROC for increase of authorized share capital is a capital expenditure. It was incurred by the assessee company to expand the capital base of the company. The character of the expenses is capital expenses. The case laws cited by the assessee are not applicable as the expenses directly related to bonus share as held by the Hon’ble Apex Court as revenue expenditure. However, the nature of payment i.e. payment to ROC for increase of share capital is capital expenditure. Section 35D of the Act is also not applicable in the case of the assessee as it pertained to expenditure incurred before commencing of the business, it does not cover the ROC fees. Thus, we uphold the order of the learned CIT(A). Resultantly, this ground of appeal of the assessee is dismissed.
Disallowance of business development expenses - Held that:- As education expenses of a son of the director was incurred for personal gain and not for the business purpose. Keeping in view of the factual position as well as legal position on this issue, we uphold the order of the learned CIT(A) and dismiss this ground of appeal of the assessee.
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2013 (8) TMI 937 - ITAT CHENNAI
MAT - addition to the book profit shall be made on account of alleged expenditure incurred to earn exempt income while computing the income under section 115JB - Held that:- No addition to the book profit shall be made on account of alleged expenditure incurred to earn exempt income while computing the income under section 115JB
Provisions for operation and maintenance - Held that:- As decided in assessee's own case for the assessment year 2009-10 without doubt, the amounts whether claimed as provision or outstanding, if worked out strictly in accordance with agreements, has to be allowed. This is because assessee is legally bound to pay to M/s GE Inc. USA the amounts due to it as per the agreements. Actual date of payment is irrelevant. Though assessee has argued that the provisioning done by it was in accordance with such agreements, the table extracted above, does not substantiate such contention. We are, therefore, of the opinion that the matter requires re-visit by the A.O. We set aside the orders of authorities below and remit the issue back to Assessing Officer for verifying the provisioning done by assessee vis-à-vis the agreements entered with M/s GE Inc. USA. If it is strictly in accordance with agreements, the amount shown as provision has to be allowed. Amounts in excess of what is payable as per the agreements, can be disallowed. Thus we set aside the orders of authorities below on this aspect and remit the issue back to the file of A.O. for consideration afresh, in accordance with law.”
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2013 (8) TMI 936 - ITAT JAIPUR
Addition by the A.O. merely on the basis of statement recorded u/s 132(4) - Held that:- The ingredient for retraction of statement made during the search, therefore, stand duly satisfied as the assessee is found to have made retraction within a reasonable time immediately after the copies of statement were provided to him. Furthermore, there being no material or evidence on record to show that appellant has carried any business outside the books for sale and purchase of items of pharmaceutical companies that could give rise to income to the extent of ₹ 30,00,000/-, addition merely on the basis of such statement which stood validly retracted could not have been made. On similar basis and reasoning in the case of Suresh Medical Agency another assessee of the group who were also searched on the same day along with this appellant, vide our order dated 21.8.2013 in ITA No. 443/JP/2012 have found the retraction made as valid and also deleted the addition. We, therefore, find no factual or legal justification in sustenance of addition by Ld. CIT (A) in this regard.
Unexplained jewellery found at the time of search - Held that:- The search party did not ask any further question in this regard and no further detail was required from him. The Assessing Officer also did not make any enquiry after he received the explanation of the assessee claiming that 240 gms jewellery belongs to his brother in law Shri Mukti Lal Agarwal. The explanation filed by the assessee, however, has been rejected by the Assessing Officer without making any further enquiry or requiring the appellant to adduce further evidence. The explanation so given has not been found false. Therefore, the claim of 240 gms jewellery explained by the assessee as belonging to Shri Mukti Lal Agarwal cannot be rejected on surmises and conjectures. We, therefore, direct deletion of addition on this account.
As regards the claim of jewellery belonging to his son Shri Praful Mittal Assessing Officer rejected this claim by saying that the said paper is a dumb document and without any date and in the absence of any bill for purchase of jewellery claim was not allowed. On the peculiar facts of surrender of income by Shri Praful Mittal and entries showing purchase of jewellery in the seized documents the valid explanation ought to have been accepted. We, therefore, do not find any justification in sustenance of addition on this basis and direct deletion thereof.
As regards jewellery weighing 300 gms belonging to Shri Lal Chand Mittal and Shri Madan Lal Mittal embark any enquiry from the appellant on this issue after the appellant had explained that jewellery weighing 150 gms each belong to such two persons, namely, Shri Lal Chand Mittal and Shri Madan Lal Mittal nor he was required to produce both these persons for cross examination or verification of facts stated by the appellant. If the claim made by these two persons for their jewellery having been left in the house of Shri Radheyshyam Mittal who was residing next door was to be taken as wrong claim, the Assessing Officer could have made addition as of unexplained investment in jewellery in their respective hands. This, however, has not been done. The appellant having furnished a reasonable explanation and considering the peculiar facts of the case, we do not find any justification in sustenance of addition on account of the jewellery weighing 300 gms in the hands of the appellant as unexplained investment. We, therefore, direct deletion thereof and allow relief to the appellant. As a result assessee’s appeal stands allowed.
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2013 (8) TMI 935 - ITAT CHENNAI
Revenue outgo incurred on Compact Drafting System allowed as revenue expenditure.
Expenditure of carding machines gave enduring benefit to the assessee and was a capital outgo.
Claim of the assessee under Section 80-IA - Held that:- Initial assessment year could only be considered as the first year in which assessee had claimed deduction under Section 80-IA of the Act, and by virtue of the decision of Hon'ble jurisdictional High Court in the case of Velayudhaswamy Spinning Mills v. ACIT (2010 (3) TMI 860 - Madras High Court), for the purpose of claiming deduction under Section 80-IA, each unit has to be considered independently.
Lower authorities fell in error in considering the Carbon Credit as revenue receipts.
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2013 (8) TMI 934 - ITAT BANGALORE
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... ... ..... e properties allotted to the other group. To offset the difference in value, one group paid the other group money equivalent of the difference in value. The question before the Hon'ble Court was as to whether the amount of compensation paid to settle inequalities in partition represents immovable property and is not an income exigible to tax? The Hon'ble Court held that when a dispute between two groups was settled amicably as a result of which assessee as a member of one group receives certain property and an amount in cash to settle inequalities in partition, the amount so received could not be taxed as capital gains. 18. For the reasons given above, we are of the view that the revenue authorities were not justified in bringing to tax the sum of ₹ 89,16,667 as capital gain in the hands of the Assessee. We hold that the sum in question is not chargeable to tax and allow the appeal of the Assessee. 19. In the result, the appeal filed by the Assessee is allowed.
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2013 (8) TMI 933 - SC ORDER
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... ... ..... l Appeals are dismissed on the ground of delay.
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2013 (8) TMI 932 - ITAT HYDERABAD
Capital gain - assessment year - Held that:- No capital gain can be charged in the impugned assessment year and since such decision of the CIT(A) has not been challenged by the Department, the other issue with regard to adoption of rate of construction has actually become inconsequential as it is purely academic in nature. Even otherwise also, the finding of the CIT(A) with regard to cost of construction adopted at ₹ 450/- per sq.ft. for car parking is reasonable as in our view the rate adopted by the Assessing Officer is high and excessive and without any basis. The Assessing Officer without bringing on record any comparable case has simply adopted the rate, out of his own imagination. In the aforesaid circumstances, we do not find any reason to interfere with the order of the CIT(A) in this regard. Accordingly, we uphold the order of the CIT(A) and dismiss the grounds raised by the revenue
Transfer within the meaning of section 53A of Transfer of Property Act read with section 2(47(v) of the IT Act - Held that:- it is a fact on record that the developer was handed over the possession of the property after obtaining permission from GHMC on 05/08/2008 and further the second development agreement executed on 11/02/2011 with RBD Legend, though, is an unregistered document, however, clearly reveals that the earlier developer i.e. Legend Estates Pt. Ltd. had not only taken possession of the property but has also started construction of the project. Furthermore, the registered development agreement with the developer M/s Legend Estates P. Ltd. has not been cancelled. Therefore, it cannot be said that the developer M/s Legend Estates P. Ltd. has backed out or expressed its unwillingness in carrying out the development activity. The development agreement executed on 11.02/2011 being an unregistered document it cannot have much relevance. In the aforesaid circumstances, therefore, the conclusion arrived at by the CIT(A) to the effect that there is a transfer within the meaning of section 53A read with section 2(47)(v) of the Act, cannot be held to be without any substance.
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2013 (8) TMI 931 - ITAT DELHI
Disallowance of Advertisement Expenses - Held that:- The Tribunal held that by incurring expenditure on advertisement and sales promotion, assessee had not acquired any fixed capital asset but these expenditures were incurred for earning better profits for facilitating assessee’s operation of providing cellular mobile services. The action of the Ld. CIT (A) has been upheld with this finding that the Ld. CIT(A) had rightly allowed assessee’s claim in respect of expenditure so incurred.
Addition on account of Recruitment & Training Expenses - Held that:- Identical issue was raised before the Delhi Bench of the Tribunal in the case of Sapient Corporation Ltd Vs. DCIT (2011 (5) TMI 499 - ITAT, DELHI ), wherein after discussing the case in detail, the Tribunal has held that the expenditure incurred on account of recruitment and training expenses cannot be said to be capital expenditure. The issue is thus covered in favour of the assessee.
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2013 (8) TMI 930 - SUPREME COURT
Whether limitation for filing the application for re-determination of the compensation under Section 28A of the Land Acquisition Act, 1894 would commence from the date of the award or from the date of knowledge of the court’s award on the basis of which such application is being filed?
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2013 (8) TMI 929 - CESTAT, NEW DELHI
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... ... ..... e Commissioner (Appeals). From the order impugned in this appeal it is apparent that the hearing of the stay application filed along with the appeal was scheduled by the lower appellate authority on 12.10.2012, 7.11.2012 and 5.12.2012. There was however no appearance on behalf of the appellant. Eventually, by the order dated 9.12.2012, the lower appellate authority disposed of the stay application, directing deposit of ₹ 10 lakhs within 15 days from the receipt of this order as a condition precedent for waiver of pre-deposit of penalty in the appeal. The appellant did not comply with the requirement of pre-deposit. Therefore the appeal was dismissed by the order impugned herein, for failure of pre-deposit, under Section 35F of the Central Excise Act, 1944. 3. In the aforesaid circumstances, the order passed by the Commissioner (Appeals) is impeccable and warrants no appellate intervention on merits. Hence the appeal is dismissed but in the circumstances, without costs.
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2013 (8) TMI 928 - PUNJAB & HARYANA HIGH COURT
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... ... ..... he judgment relied upon is on its own facts and not in respect of claim for deduction under Section 80HHC of the Act. In any case, from the facts of the present case, the assessee cannot be held to be entitled to claim income surrendered as a result of unexplained stocks as Income from exports.” 9. Adverting to the judgments relied upon by the counsel for the assessee, it may be noticed that in those cases, the finding was recorded that the income which was unaccounted in the books of account was the result of business activity. In other words, the income was derived from the industrial undertaking on which the assessee was entitled to deduction under Section 80IB of the Act. Such is not the position here. The judgments being based on individual fact situation, no benefit could be drawn by the assessee. 10. In view of the above, the substantial questions of law are answered against the assessee and in favour of the revenue. 11. As a result, the appeal stands dismissed.
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2013 (8) TMI 927 - CESTAT, BANGALORE
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... ... ..... e applicant to deposit the amount of interest and 25 of the penalty. As appellant has not complied with the condition of stay order, therefore the appeal is dismissed for non-compliance to the provisions of Section 35F of the Central Excise Act read with Section 83 of the Finance Act. (Pronounced and dictated in open Court)
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2013 (8) TMI 926 - ITAT PUNE
Transfer pricing adjustment - MAM - whether CPM is to be considered as the most appropriate method for determining ALP and suitable adjustments should be made an account for differences between the export and domestic segment? - Held that:- The entire marketing cost is pertaining to domestic segment and the same should be reduced from the selling price. Similarly, there are no bad debts in export segments and therefore, the amount of bad debts should be reduced from the selling price of the domestic segment. According to the Id. DR the assessee has not quantified any adjustments for volume difference. While assessee had enclosed a letter wherein it was mentioned that if the target achieved is upto 20%, turnover discount of 1% was to be given. On that basis, the assessee had requested for an adjustment of about 20% considering the fact that the top five AEs had cumulatively placed orders of more than ₹ 180 Crs. In this regard, we find that there are so many differences in the two segments and considering the fact that suitable adjustments are not possible, CPM has to be rejected, There are differences as accepted by the Transfer Pricing Officer and therefore, in view of the decision of Drilbits International Pvt. Ltd.,[2011 (8) TMI 1083 - ITAT PUNE ] CPM should not be applied, according to us.
Addition u/s 14A - Held that:- Most of dividend received was under the Reinvest operation i.e. the dividend was automatically reinvested by the respective mutual fund. No portion of salary paid to staff and other expenses were incurred in relation to exempt dividend. According to assessee, there is nothing on record to suggest that assessee had incurred expenditure for earning of exempt income. Taking all facts and circumstances disallowance u/s 14A is restricted to ₹ 2,50,000/-. Assessing Officer is directed accordingly.
Disallowance of EDP service charges - Held that:- Assessee claims to have made this payment to its Associated Enterprises for usage of service and assessee is not aware of software's or licences as well as infrastructure which is acquired by associated enterprises in rendering the service. This issue need disapprove until the matter. Let this expenditure be looked in light of above and submissions of assessee. Assessing Officer can also look into fact whether this expenditure is made for usage of service and has not acquired any asset of enduring nature. Assessing Officer is directed to decide this issue as per fact and law after giving opportunity of hearing to the assessee.
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2013 (8) TMI 925 - ITAT AHMEDABAD
Addition made on account of premium amortization expenses - Held that:- The allowability of amortized expenses on premium on Government Securities has been provided u/s. 36(1)(ii) of the provisions have been clarified and explained by CBDT, New Delhi vide Instruction No. 17 of 2008 dated 26.11.2008. As per this clarification, investments of banks classified under HTM (Held to Maturity) category need not be marked to market and are carried at acquisition cost unless these are more than the face value, in which case, the premium should be amortized over the period remaining to maturity. On the basis of this Instruction, different Tribunals, as mentioned above by assessee, have allowed the amortized expenditure. The AO has ignored the provisions of Instruction which is binding on him while discussing the issue and disallowing the expenditure. Since, the Instructions and Circulars are binding in nature on AOs and different Tribunals have given decisions against the revenue, respectfully following the same, ground of appeal of assessee is allowed
Addition made on account of Gift expenses - Held that:- As in the case Taluka Co-op. & Sale Union Ltd. (1980 (9) TMI 85 - GUJARAT High Court) where expenditure incurred for purchase of articles for presentation only to its members for keeping alive good image among members and for generating goodwill and ensuring continuity of business with member societies was geld to be expenditure incurred wholly and exclusively for the purpose of business.
Addition made on account of Staff Ex-Gratia - Held that:- Since Ld. CIT(A) has given relief to the assessee in view of the fact that expenses being regularly incurred and claimed by the assessee and worked out on the basis of Memorandum of Understanding it is ascertainable liability which is allowable as per the provision of the Act, we are not inclined to interfere with the order passed by Ld. CIT(A) and the same is hereby upheld
Addition made on account of disallowance of Special Long Term Finance Fund claimed u/s. 36(1)(vii) - Held that:- Since the finding of the Ld. CIT(A) that assessee has credited a sum of ₹ 17,50,000/- to the special reserve which is less than 20% of the profit remained uncontroverted at the time of hearing before us, we feel no need to interfere with the order passed by him and the same is hereby upheld. This ground of the revenue is also dismissed.
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2013 (8) TMI 924 - ITAT DELHI
Reopening of assessment - Held that:- The admitted fact that 143(2) notice was neither issued nor served on the assessee, we see no infirmity in the order of CIT(A) holding the case as void ab-initio. See case Alpine Electronics Asia Pvt. Ltd. [2012 (1) TMI 100 - DELHI HIGH COURT] - Decided in favour of assessee
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