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- 2014 (8) TMI 1187
Delay in filing appeal u/s. 248 extending upto 933 days - TDS on payments made to non-resident payees, and deposited the same in the State Exchequer - assessee approached the CIT(A) u/s 248 claiming that on the payments made to three non-resident payees, no tax was required to be deducted at source and CIT-A accepted the same - Indo-Thailand DTAA - HELD THAT:- Section 248 of the Act primarily deals with a situation where a person has deducted and paid tax to the Government, but thereafter denies his liability to deduct such tax. Thus, an appeal u/s 248 of the Act is preferred by a person only after he has actually paid the tax to the credit of the Central Government, whose liability he seeks to deny. In such a situation, where the bonafides of the assessee are not in challenge, the reasons advanced for the delay ought to be construed libe....... + More
- 2014 (8) TMI 1186
TDS u/s 194J or 192 - payments made to the teachers on adhoc basis - default u/s 201(1)/201(1A) - HELD THAT:- Relationship between the management and teaching staff involved an obligation to obey orders in the work to be performed, the said relationship could not be called contract for service since the teaching staff had not undertaken to render any professional or technical service. As there was a contract of service between the assessee deductor and its teaching staff appointed on adhoc basis and the salary paid to them being below the taxable limit, does not warrant deduction of tax at source and such non deduction of tax at source does not invalidate the provisions of Act making the assessee liable for the demand raised under section 201(1)/201(1A) We are in agreement with the observation of the CIT (Appeals) that merely because the ....... + More
- 2014 (8) TMI 1185
Penalty u/s 271D - contravention of the provisions of section 269SS - journal entries or cash loans - HELD THAT:- We find that the issue relating to justification for the penalties u/s 271D of the Act in identical facts and circumstances of the case has come up before the Tribunal in the case of assessee’s mother Smt. G. Venkata Lakshmi [2013 (7) TMI 1017 - ITAT HYDERABAD] and [2012 (11) TMI 1171 - ITAT HYDERABAD] wherein held there is no proof of receipt of such loan from the records and they were only found to be journal entries. The learned Tribunal, in our view, correctly observed that relying on an entry in the journal, no penalty proceedings can be initiated. Hence, it was sent for clarification whether actual flow of money did take place - Decided against revenue
- 2014 (8) TMI 1184
Permanent injunction restraining the respondent, its agents, workmen or any person acting through or on behalf from interfering with the operations of the mining machinery deployed in the schedule property pending adjudication of the disputes - Whether this Court exercising jurisdiction under Article 227 of the Constitution of India ought to entertain this writ petition and if so, as to whether any relief ought to be granted to the petitioner herein? HELD THAT:- This is a case where this Court ought to exercise its jurisdiction under Article 227 of the Constitution. The reasons for entertaining the writ petition would become clear when the impugned order is considered on merits. From a reading of the impugned order it is clear that nowhere reasons have been recorded as to why the trial Court was of the opinion that injunction had to be gr....... + More
- 2014 (8) TMI 1183
Revision u/s 263 - AO has not examined the issue as to whether these expenses pertaining to handling charges relatable to exempt income or taxable income - AO’s decision not to properly examine such expenses as above amounts to failure to examine the applicability of provisions of section 14A and has rendered the assessment erroneous and prejudicial to the interests of revenue - HELD THAT:- The total transport and handling charges appears in the accounts is inclusive of transport and service charges. The total handling charges appearing on expenditure side is the actual sum paid to various contractors (After considering the TDS). Thus, there is a direct nexus of expenditure incurred and income reflected in the accounts. Since this activity pertains to taxable income, the expenditure was deducted from transport and handling receipt. ....... + More
- 2014 (8) TMI 1182
Repair and maintenance service - Repair, maintenance or airworthiness of an aircraft - Liability of Service Tax - HELD THAT:- Though by amendment of the recent years, the right to practice law on the basis of the said qualification has been made subject to clearing /passing a Bar Exam to be held by the Bar Council of India , the same does not make the qualification of law not recognized by law. The recognition accorded by the Act, Rules and CAR supra to the Course Completion Certificate issued by the Institutes as the petitioner cannot be withered away or ignored merely because the same does not automatically allow the holder of such qualification to certify the repair, maintenance or airworthiness of an aircraft and for which authorization a further examination to be conducted by the DGCA has to be passed/cleared. The Instruction aforesaid holding the petitioner to be assessable to Service Tax is contrary to Section 65(27)and the Notification dated 25th April, 2011. Appeal dismissed.
- 2014 (8) TMI 1181
Whether compliance of the provisions of Section 48 of the MCS Act, and Rule 48 (5) of MCS Rules, 1961 is mandatory for lending cooperative society before claiming protection/charge on immovable property of members? - HELD THAT:- Unless and until there is compliance of these two provisions, namely Section 48 and Rule 48 (5), the people at large cannot be expected to know about the charge, if any, on immovable property. In other words, if a society wants to claim protection or benefit of Section 48 of the MCS Act, the same can be obtained only from the date the charge is actually recorded in the record of rights and not otherwise - the provisions of Section 48 and Rule 48 (5) are mandatory in nature for a Cooperative Society if a cooperative society wants to claim benefit /protection of the said provisions - answered in affirmative. Whether....... + More
- 2014 (8) TMI 1180
Addition on account of low G.P - assessee was not maintaining stock register - CIT-A deleted the addition - HELD THAT:- We find that the CIT(A) has given a finding that the sale prices are fixed for years whereas the prices of raw material are fluctuating. He has also given a finding that in such a business, small variation in gross profit is not a basis to make any addition. We also find that the gross profit rate of the assessee was 42.23% in the present year as against 46% in the preceding year. Hence, fall in gross profit is about 3.27% which is less than 10% gross profit rate declared by the assessee. Considering these facts, we do not find any reason to interfere in the order of CIT(A) on this issue. This ground of of Revenue is rejected. TDS u/s 195 - Disallowance of commission to a non-resident for the technical services rendered ....... + More
- 2014 (8) TMI 1179
Reference to Arbitration - Whether the disputes in a petition properly brought under Sections 397 and 398 read with Section 402 of the Companies Act, 1956 can be referred to arbitration? - HELD THAT:- No, subject to the caveat that I have noted regarding a mala fide, vexatious or oppressive petition and one that is merely 'dressing up' to avoid an arbitration clause. The disputes before the CLB were outside the purview of the arbitration agreement as they related to matters not covered by the SSD. The appointment of an observer-cum-facilitator was entirely without warrant and served no effective purpose. The impugned order is upheld only to the extent that it holds that disputes in a properly brought petition under Sections 397 and 398 read with Section 402 of the Companies Act, 1956 are not referable to arbitration.
- 2014 (8) TMI 1178
Disallowance of contribution to society - Addition u/s 40A - contribution was made by the assessee-company to a fund required to be set up by or under any other law for the time being in force - whether fund was constituted on bonafide for the welfare of its’ employees in smooth running of the business and hence the said contribution is to be allowed under section 37(1)? - HELD THAT:- Tribunal in assessee’s own case for assessment years 1990-92 and 1991-92 [2002 (9) TMI 254 - ITAT CALCUTTA-A] and [2013 (5) TMI 893 - ITAT KOLKATA] . Since we find the issues are covered by the order of the Tribunal in the case of the assessee itself as agreed to and thus, accepted by the department, these questions are not substantial questions of law to be adjudicated in appeal. Payment of lump sum royalty - capital expenditure - HELD THAT:- As....... + More
- 2014 (8) TMI 1177
Deduction u/s 80-IA - as alleged assessee company executed works contract on behalf of other company and assessee company is only a sub-contractor executing contract on behalf of others - HELD THAT:- Isuue decided in favour of the assessee in its own case by the Tribunal for the assessment years 2003-04 to 2009-10 The issue has been consistently considered and decided by Income-tax Appellate Tribunal in assessee’s own case for all the earlier assessment years from 2003-04 to 2008-09. The Tribunal has accepted the contention of the assessee in the matter of its claim made under sec.80-IA. The case has been considered even after Explanation to sub-sec. (13) of sec.80-IA was inserted. Reference may be made to the orders of the Tribunal for assessment years 2007-08 and 2008-09. - Decided against revenue
- 2014 (8) TMI 1176
Year of taxability of capital gain - when the development agreement was entered or when the built up area was completed and handed over to the assessee - handing over possession is relevant for capital gain tax - HELD THAT:- In the case of Commissioner Vs. D.K.Dayal [2012 (6) TMI 405 - KARNATAKA HIGH COURT], after noticing the case law on the point, has held that the date on which possession was handed over to the developer is relevant and therefore, the capital gain tax is payable for the assessment year in which the possession was handed over in terms of the joint development agreement. Therefore, on mere entering into a joint development agreement there is no transfer. The “transfer” in the Income Tax Act takes places on the date the possession of the property is delivered though not a registered document is executed conveying the titl....... + More
- 2014 (8) TMI 1174
Winding up - working of the office of the Official Liquidator completely collapsed - HELD THAT:- Assistant Official Liquidators who are qualified Advocates hardly attended to the matters in Court. The Advocates appearing before the Court repeatedly made a grievance that the entire office of the Official Liquidator would be deserted by 5.30 p.m. and no one would be available to assist them. Advocates briefed in the matters to represent the Official Liquidator also complained that they were receiving briefs at 10.30 in the morning on the day the matter was placed for hearing and no instructions would be forthcoming from the office of the Official Liquidator. The above pathetic functioning of the working in the office of the Official Liquidator had to be brought to the notice of the Learned Chief Justice who was pleased to immediately appoin....... + More
- 2014 (8) TMI 1173
Best judgment assessment - CIT-A non considering submissions and the evidences filed during the course of appellate proceedings - remand report not supplied to the assessee by the CIT(A)- HELD THAT:- A.O. submitted the remand report vide letter dated 11-3-201 and the assessee appeared before the A.O. on 20-3-2013, 22-3-2013 and 25-3-2013 but the A.O. never informed him that he has already submitted the remand report on 13-3-2013. Even the copy of the remand report was not supplied to the assessee by the ld. CIT(A). Considering all these facts in totality in the light of the affidavit filed by the assessee, in our considered opinion, the issue needs to be re-adjudicated afresh by the ld. CIT(A). CIT(A) is directed to consider all the evidences afresh and also furnish a copy of the remand report to the assessee. The assessee is directed to file necessary details before the ld. CIT(A). - Assessee appeal allowed for statistical purpose.
- 2014 (8) TMI 1172
Penalty levied u/s 271(1)(c) - bonafide claim - disallowance of assessee’s claim of brought forwarded expense by the AO - assessee had furnished inaccurate particulars of income or had concealed its income - HELD THAT:- In the quantum appeal proceedings, the AO had allowed the work in progress to be capitalized during the earlier assessment years. In none of the earlier assessment years, the AO had computed the income of the assessee under the percentage completion method. Under such circumstances, it cannot be said that the assessee’s claim was not bonafide. The computation adopted by the assessee was according to one of the possible views/methods of accounting, which though was not accepted by the AO and further by the Tribunal, but was held to be justified by the CIT(A) in quantum assessment/appellate proceedings. Merely because the ac....... + More
- 2014 (8) TMI 1171
Renewal of mining leases - execution of second renewal lease deeds - principles of promissory estoppel - Section 8(2), read with the provisions of Section 24A(3) of MC Rules - Held that:- The renewal beyond the first renewal for a period of twenty years is conditional upon the State Government forming an opinion that in the interest of mineral development, it is necessary to do so and also conditional upon the State Government recording reasons for such renewal of a mining lease in respect of iron ore which is not specified in Part A and Part B of the First Schedule - In Tata Iron and Steel Co. Ltd. v. Union of India and Anr. (supra), this Court has held that the language of Sub-section (3) of Section 8 is quite clear that ordinarily a lease is not to be granted beyond the time specified in Sub-section (2) and only if the Government is of....... + More
- 2014 (8) TMI 1170
Allocation of coal blocks for the period 1993 to 2010 - Non-compliance of the mandatory legal procedure under the Mines and Minerals (Development and Regulation) Act, 1957 - Breach of Section 3(3)(a)(iii) of the Coal Mines (Nationalisation) Act, 1973 - Violation of the principle of Trusteeship of natural resources by gifting away precious resources as largesse - Arbitrariness, lack of transparency, lack of objectivity and non-application of mind - Allotment tainted with mala fides and corruption and made in favour of ineligible companies tainted with mala fides and corruption. Held that:- The entire allocation of coal block as per recommendations made by the Screening Committee from 14.07.1993 in 36 meetings and the allocation through the Government dispensation route suffers from the vice of arbitrariness and legal flaws. The Screening C....... + More
- 2014 (8) TMI 1169
Claim u/s 80IA(4) - HELD THAT:- The statutory provision under Section-80IA(4) states that where the total income of the assessee includes any profit and gain from the enterprises i.e. joint venture or Special Private Venture (S.P.V.) carrying on the defined business of developing or operating or maintaining any infrastructure finally then assessee would be liable for deduction. It is also provided that the project should be owned by the company or consortium of companies, who got the contract from the State, as mentioned in Article-12 of the Constitution. But this facility is available only w.e.f. 01.04.1995, as per the amended provision and for the assessment year it is applicable. When it is so, then we find no reason to interfere with the impugned order passed by the Tribunal. The same is hereby sustained along with the reasons mentioned therein. Substantial questions of law is in favour of the assessee and against the department.
- 2014 (8) TMI 1168
Eligibility to section 80IB / 80IA - assessee be denied deduction u/s 80IB(3) in subsequent years as the assessee from investment point of view, matures out of SSI definition, when the assessee is a SSI in the initial years of deduction - HELD THAT:- There is no dispute on the fact that the assessee is a SSI in the initial years. It is prospered and is no longer a SSI. Further, the assessee was given benefit of deduction u/s 80IB(3) of the Act in earlier years. Under these facts, we find the above judgment in the case of M/s. Ace Multi Axes Systems Ltd [2014 (8) TMI 596 - KARNATAKA HIGH COURT], has applicability to the present issue. CIT (A) has rightly adjudicated the issue under consideration while granting the relief to the assessee. Accordingly, we find no infirmity in the order of the CIT (A) and it does not call for any interference. Accordingly, the grounds raised by the Revenue are dismissed.
- 2014 (8) TMI 1167
Surrender /termination of the lease - whether mere writing of letters by a tenant to the landlord calling upon him to take the possession of the tenanted premises would tantamount to surrender /termination of the lease? - Held that:- Vacant possession of the leased premises could be handed over to the lessor only after removal of its belongings by the lessee. Let us now examine what is the effect of three letters dated 22nd July, 2008; 23rd August, 2008 or 20th September, 2008 written by the lessee to the lessor. None of these communications specifically state that the lease would stand terminated. The letters also do not state that the appellant had removed its installations and vacated the premises and therefore, the lessor should visit the spot on any particular specified date or month to take over the vacant possession in accordance w....... + More