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Showing 121 to 140 of 1498 Records
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2015 (1) TMI 1385 - KARNATAKA HIGH COURT
Rate of interest on delayed refund - rate of interest u/s 11BB of the CEA 1944 - 6% or 9%? - Held that: - The interest payable in terms of Section 11BB of the Act, which in turn is with reference to the notification referred above. This aspect has not been considered by the learned Single Judge - the rate of interest is to be reduced to 6% from 9% - appeal allowed in part.
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2015 (1) TMI 1384 - SUPREME COURT
Rape - Prosecution case is based entirely on circumstantial evidence as no ocular account of the incident has been presented to the Court - whether the appellant was a juvnile on the date of commitment of offence? - entitlement for juvenile justice - non-availability of officially maintained record regarding his date of birth - estimation of age of appellant on the basis of medical opinion - Held that: - the appellant was responsible for the offence of rape and murder of the hapless baby-Kamala who appears to have been picked up from the place where she was sleeping with other children and taken at a distance only to be raped and eventually killed. The trial Court, in the light of the evidence on record and careful analysis undertaken by it, correctly came to the conclusion that the appellant was guilty of murder of the deceased. There is no reason whatsoever for us to interfere with that finding.
Juvenile Justice - case of appellant is also that the appellant was a juvenile on the date of the commission of offence hence entitled to the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000 - Held that: - Since the appellant did not have any documentary evidence like a school or other certificate referred to under the Act mentioned above, this Court had directed the Principal, Government Medical College, Jodhpur, to constitute a Board of Doctors for medical examination including radiological examination of the appellant to determine the age of the appellant as in April, 1998 when the offence in question was committed.
The appellant is reported to be a deaf and dumb. He was never admitted to any school. There is, therefore, no officially maintained record regarding his date of birth. Determination of his age on the date of the commission of the offence is, therefore, possible only by reference to the medical opinion obtained from the duly constituted Medical Board in terms of Rule 12(3) (b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 - The medical opinion given by the duly constituted Board comprising Professors of Anatomy, Radiodiagnosis and Forensic Medicine has determined his age to be "about" 33 years on the date of the examination. The Board has not been able to give the exact age of the appellant on medical examination no matter advances made in that field. That being so in terms of Rule 12 (3) (b) the appellant may even be entitled to benefit of fixing his age on the lower side within a margin of one year in case the Court considers it necessary to do so in the facts and circumstances of the case.
Taking his age as 34 years on the date of the examination he would have been 18 years, 2 months and 7 days on the date of the occurrence but such an estimate would be only an estimate and the appellant may be entitled to additional benefit of one year in terms of lowering his age by one year in terms of Rule 12 (3)(b), which would then bring him to be 17 years and 2 months old, therefore, a juvenile.
No matter the offence committed by him is heinous and but for the protection available to him under the Act the appellant may have deserved the severest punishment permissible under law - The fact that the appellant has been in jail for nearly 14 years is the only cold comfort for us to let out of jail one who has been found guilty of rape and murder of an innocent young child.
This appeal succeeds but only in part and to the extent that while the conviction of the appellant for offences under Section 302 and 376 of IPC is affirmed the sentence awarded to him shall stand set aside with a direction that the appellant shall be set free from prison unless required in connection with any other case - appeal allowed in part.
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2015 (1) TMI 1383 - ITAT PUNE
Finalization of assessment under section 143(3) denied - AO empowered to refund any amount due to the assessee as a consequence of assessment - Held that:- As section 143(3) of the Act stood for the assessment year 1989-90, there was no provision for refund after the regular assessment. In the present case, the assessment years involved are 2006-07 onwards, which pertain to period after section 143(3) of the Act was amended by the Finance Act (No.2) 1998 w.e.f. 01.10.1998. As per the amendment, the assessment under section 143(3) of the Act, inter-alia, envisages the Assessing Officer to grant refund of any amount due to the assessee consequent to the assessment and therefore, the Assessing Officer is statutorily empowered to determine the revised income which can be lower than the returned income. Therefore, the objection raised by the Revenue to the impugned order of CIT(A) is untenable in the eyes of the law, as it stood for the period under consideration. - Decided against revenue
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2015 (1) TMI 1382 - ITAT GUWAHATI
Treating the profit on sale of land as business income - nature of income - Held that:- In the earlier years when parts of land were sold the AO had accepted that profit arising out of the transaction had to be assessed under the head LTCG.
It is not that the earlier AO.s. had not applied their minds to arrive at the conclusion of taxing the income under as LTCG.
AO.s. had for three AY.s. had reached to the conclusion that income accrued to the assessee was not income from business. While deciding the issue for the year under consideration the AO has not mentioned that there was material change in the facts or legal position as far as selling of portion of plot of land is concerned. In absence of such categorical finding, he should not have disturbed the finding given by his predecessors.
Where a fundamental aspect continuing during the different assessment years has been found as a fact one way or the other and the parties have allowed that position to be sustained by not challenging the order, it would not at all be appropriate to allow the position to be changed in the subsequent years. FAA was not justified in confirming the order of the AO and holding that the incoming arising out of sale of plot of land was to not be assessed as LTCG - Decided in favour of assessee
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2015 (1) TMI 1381 - ITAT CHENNAI
Section 2(15) applicability - proof of charitable activities - Held that:- The advancement of any other object of general public utility shall not be a charitable purpose if it involves carrying on activity in the nature of trade, commerce or business or any activity of rendering services in relation to any trade, commerce or business. In the present case, the assessee is committed for relief to the poor, education, medical help, etc.
The newly inserted proviso to section 2(15) will not apply in respect of the first three limbs i.e. relief of the poor, education or medical relief.
So far as running the Kalyana Mandapams are concerned, it is only to achieve the objects of the assessee trust, the funds received from the Kalyana Mandapam are utilized. Thus, the proviso to section 2(15) has no application to assessee’s case. Similar issue in assessee’s own case [(
2008 (9) TMI 528 - MADRAS HIGH COURT] for earlier assessment year and dismissed the appeal filed by the Revenue - Decided in favour of assessee.
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2015 (1) TMI 1380 - ITAT MUMBAI
Disallowance invoking section 36(1)(iii) - disallowing interest expenditure - Held that:- Relying on the decision of the Bombay High Court in the ca e of IT vs. Reliance Utilities & Powers Ltd. (2009 (1) TMI 4 - BOMBAY HIGH COURT), wherein it was held that if there were funds available both interest-free and overdraft and/or loans taken, then a presumption would arise that investments would be out of the interest-free funds generated or available with the company, if the interest-free funds were sufficient to meet the investments.
In the present case the investment in office premises is only 1.18% of the own funds of the assessee company in the year under consideration and therefore the presumption would arise that the assessee company has invested its own funds in purchasing the office premises and not used the borrowed funds and therefore, no portion of interest paid on borrowings can be disallowed invoking section 36(1)(iii) of the Act. No justification in the disallowance made u/s.36(1)(iii). - Decided in favour of assessee.
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2015 (1) TMI 1379 - ITAT PUNE
Determining the arm's length price of the international transaction of software development services rendered to the associated enterprises - Held that:- Assessee is providing of software development services, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Disallowance on account of application of section 43B - Held that:- Payment of employees’ contribution to Provident Fund could not be disallowed u/s 43B. See CIT vs. M/s Hindustan Organics Chemicals Ltd. [2014 (7) TMI 477 - BOMBAY HIGH COURT]
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2015 (1) TMI 1378 - ITAT MUMBAI
Disallowance in respect of reimbursement of telephone and mobile expenses - Held that:- As per rule 3(8) of the Income-tax Rules, 1962, reimbursement of telephone expenses is not to be treated as perquisite in the hands of the employees with effect from the assessment year 2002-03. The hon'ble Gujarat High Court in the case of Sayaji Iron and Engg. Co. v. CIT [2001 (7) TMI 70 - GUJARAT High Court] held that in a case of corporate entity, no disallowance can be made on account of personal use by the director/employees. Respectfully following the proposition we do not find any merit in the disallowance made in respect of reimbursement of telephone and mobile expenses.
Disallowance being one-third of the entertainment expenses - Held that:- We found that in normal business parlance on Diwali and other festive occasions, gifts are distributed to various customers and clients, however, no receipt for such gifts are taken. The Assessing Officer declined the claim of deduction merely on the plea that no third party evidence had been obtained, is not a valid reason for disallowance. Keeping in view the fact that the assessee had furnished full details of expenses along with supporting bills, vouchers, there is no reason for making such ad hoc disallowance. The Assessing Officer is directed to allow the expenses
Ad hoc disallowance being one-fifth of the foreign travel expenses - Held that:- The assessee during the course of assessment proceedings had furnished all the details as requested by the Assessing Officer including the name of the employee, place visited, purpose of the visit, etc., in respect of the foreign travel. The purpose of visit of the employees was to attend business meetings, fairs and exhibitions, training, etc. It was further clarified that the expenses incurred were only on its employees and did not include any expenses incurred on the relatives of the employees. As the travel expenses are genuine expenses incurred wholly and exclusively for the purpose of business and are revenue in nature and hence should be allowed as deductible expenses under section 37(1) of the Act.
Disallowance of foreign exchange loss on forward exchange contracts entered by the assessee - Held that:- The transaction entered by the assessee is on revenue account, i.e., to safeguard itself from potential risks arising from foreign currency fluctuations in respect of payments for the imported raw materials. Since the payment was on revenue account, AO is directed to allow the loss incurred on revenue account under section 37(1) of the Act. - Decided in favour of assessee
Disallowance of commission expenses - Held that:- confirmation for rendering services and receipt of payment by the persons, who rendered services was not filed before the lower authorities nor even before us. Had the assessee filed such confirmation before the Tribunal, we would have restored the matter back to the file of the Assessing Officer for taking cognizance of such confirmation. In the absence of such confirmation for rendering services and receipt of commission income, expenses claimed on account of commission cannot be allowed. - Decided against assessee.
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2015 (1) TMI 1377 - SUPREME COURT
Public auction conducted by the Delhi Development Authority ("DDA") - Appellant made the highest bid and deposited being 25% of the bid amount, with the DDA, this being earnest money under the terms of the conditions of auction - granting the extension of time to bidders for depositing the remaining amount of 75% - recovery of damages and recovery of the earnest amount seeked - breach of contract on the part of the Appellant - Held that:- In cases where a public auction is held, forfeiture of earnest money may take place even before an agreement is reached, as DDA is to accept the bid only after the earnest money is paid. In the present case, under the terms and conditions of auction, the highest bid (along with which earnest money has to be paid) may well have been rejected. In such cases, Section 74 may not be attracted on its plain language because it applies only "when a contract has been broken".
In the present case, forfeiture of earnest money took place long after an agreement had been reached. It is obvious that the amount sought to be forfeited on the facts of the present case is sought to be forfeited without any loss being shown. In fact it has been shown that far from suffering any loss, DDA has received a much higher amount on re-auction of the same plot of land.
The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application.
The Division Bench has gone wrong in principle. As has been pointed out above, there has been no breach of contract by the Appellant. Further, we cannot accept the view of the Division Bench that the fact that the DDA made a profit from re-auction is irrelevant, as that would fly in the face of the most basic principle on the award of damages - namely, that compensation can only be given for damage or loss suffered. If damage or loss is not suffered, the law does not provide for a windfall.
Mr. Sharan submitted that in case we were against him, the earnest money that should be refunded should only be refunded with 7% per annum and not 9% per annum interest as was done in other cases. We are afraid we are not able to agree as others were offered the refund of earnest money way back in 1989 with 7% per annum interest which they accepted. The DDA having chosen to fight the present Appellant tooth and nail even on refund of earnest money, when there was no breach of contract or loss caused to it, stands on a different footing. We, therefore, turn down this plea as well.
In the result, the appeal is allowed. The judgment and order of the Single Judge is restored
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2015 (1) TMI 1376 - ITAT MUMBAI
Disallowance of deduction claimed u/s 80IB(10) - adherence to condition of completion - assessee did not submit completion certificate from Competent Authority which according to the opinion of AO and Ld. CIT(A) is CIDCO - Held that:- The assessee had not only submitted the project completion certificate issue by the Gram Panchayat but also various evidences to show that the project was completed by 31/03/2008 and these evidences have also been described in para 3.4 of this order.
In our opinion it will not be relevant to go into much detail for this issue as it is clear from the decisions of Hon’ble Delhi High Court in the case of CIT vs. CHD Developers [2014 (1) TMI 1542 - DELHI HIGH COURT] and Hon’ble Madras High Court in the case of CIT vs. Jain Housing Construction (2012 (11) TMI 588 - MADRAS HIGH COURT) that such condition of submission of completion certificate was not applicable to the projects which have been approved by the Public Authority before 31/3/2005. In the present case the project was approved for commencement vide letter of CIDCO dated 05/03/2004. Thus, the project was approved for commencement before 31/3/2005 and old law will apply when it was not a condition precedent to submit completion certificate. Thus we hold that deduction u/s. 80 IB (10) cannot be denied to the assessee for want of completion certificate from CIDCO. - Decided in favour of assessee
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2015 (1) TMI 1375 - MADRAS HIGH COURT
Input tax credit - grievance of the petitioner is that the excess I.T. amount has got to be adjusted against outstanding tax due amount - Held that: - since the respondent has not adjusted the excess tax amount, while setting aside the impugned order dated 14.11.2014, the respondent is directed to make assessment afresh in accordance with provisions of the Act by permitting the petitioner to avail the ITC on the excess of tax amount, within a period of four weeks from the date of receipt of a copy of this order - petition allowed - decided in favor of appellant.
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2015 (1) TMI 1374 - ITAT MUMBAI
Penalty order passed u/s 271(1)(c) - Addition of interest income - non recognizing the interest on the loans granted by respective erstwhile amalgamating companies - Held that:- During the year under consideration there was an amalgamation of various entities with the assessee. The assessee has explained the reasons for not recognizing the interest on the loans granted by respective erstwhile amalgamating companies in Note No.14 of notes of accounts. Similarly, the assessee has also given reasons for not making the provision for the interest on the loans taken by the erstwhile amalgamating companies in Note-13 of notes of account.
AO has made the addition in respect of interest income by reproducing a wrong note No.13 instead of relevant note being note No.14. When the assessee has adopted a uniform policy and approach in respect of interest expenditure as well as interest income, then the claim of the assessee in not recognizing the interest income would not amount to concealment of particulars of income or furnishing of inaccurate particulars of income. The assessee has furnished the relevant explanation as well as details and the addition was made by the AO on the basis of explanation of the assessee in the notes of accounts therefore, not accepting the claim as well as the explanation of the assessee would not ipso facto lead to the conclusion that the assessee has concealed the particulars of income or furnished inaccurate particulars of income attracting the penalty provisions of section 271(1)(c). - Decided in favour of assessee.
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2015 (1) TMI 1373 - ITAT MUMBAI
Canceling the order passed by the Assessing Officer u/s 143(3) r.w.s 263 - Held that:- Order u/s 263, passed by the ld. Commissioner, the assessee filed appeal before the Tribunal [2012 (3) TMI 610 - ITAT MUMBAI], wherein allowed the appeal of the assessee canceling the order of the ld. Commissioner, which was later on affirmed by the Hon’ble jurisdictional High Court (2013 (1) TMI 955 - BOMBAY HIGH COURT). Thus, the ground raised by the Revenue that the Department has challenged the order of the Tribunal is automatically answered, therefore, the appeal of the Revenue is dismissed.
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2015 (1) TMI 1372 - SC ORDER
Release of Consignment - import of Canola Oil – Labels not in conformity with Packaging and Labelling Regulations - Held that: - the decision in the case of Dalmia Continental Private Limited Versus Food Safety and Standards Authority of India & Another [2015 (9) TMI 454 - BOMBAY HIGH COURT] contested - Held that: - No ground for interference is made out in exercise of jurisdiction under Article 136 of the Constitution of India - SLP dismissed.
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2015 (1) TMI 1371 - GUJARAT HIGH COURT
Authorization being issued u/s 132A - Investigating Officer to handover 42 gunny bags i.e. the Muddamal, which have been seized during the investigation of the FIR being C.R.No.I31 of 2013 registered with Jahangirpura Police Station, Surat, to the Income Tax Authority - Held that:- Nowhere the petitioner has requested before this Court in those petitions that certified copies of the documents lying in 42 gunny bags are required to defend the trial in which he is one of the accused i.e. the case arising out of C.R.No.I37 of 2013. Thus, the contention of the petitioner that if the certified copies of the documents lying in 42 gunny bags are not supplied to the petitioner then prejudice would be caused to him in the trial wherein he is one of the accused, is required to be rejected.
Prima facie, from the observations of the learned Sessions Court, it appears that the custody of the said amount of cash is not given to the Income Tax Department because it is not the Muddamal and the said cash is required to prove the case against the accused. At this stage, clarify that the decision of the learned Sessions Court rendered on 16.01.2015 referred by the petitioner is not under challenge before this Court at this stage and therefore it is not proper for me to make any comment with regard to the observations made by the learned Sessions Court. However, it is of the opinion that in view of the fact that the said cash is required to prove the case against the accused learned Special Public Prosecutor has taken the objection and therefore it cannot be said that the learned Special Public Prosecutor is taking different stand. Thus, the said contention of the petitioner is also required to be discarded.
Thus learned Sessions Court has not committed any error much less the error of law, which calls for the interference of this Court by exercising the powers under Article 227 of the Constitution of India. The present petition is, therefore, dismissed. Notice discharged.
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2015 (1) TMI 1370 - ITAT, PUNE
Addition on interest income on Non-Performing Assets - Held that:- Identical controversy has been considered by the Pune Bench of the Tribunal in the case of ACIT vs. The Omerga Janta Sahakari Bank Ltd. vide order [2014 (12) TMI 355 - ITAT PUNE]. In the said precedent, the Tribunal considered the judgement of the Hon’ble Delhi High Court in the case of M/s Vasisth Chay Vyapar Ltd.[2010 (11) TMI 88 - Delhi High Court] as well as the judgement in the case of CIT vs. Sakthi Finance Ltd.(2013 (3) TMI 266 - MADRAS HIGH COURT), which had expressed divergent views with respect to the issue of accrual of interest income on NPA advances; and, following the proposition that in the absence of any judgement of the Jurisdictional High Court, there being contrary judgements of the non-jurisdictional High Courts, a decision which was favourable to the assessee was to be followed in view of the reasoning laid down in the case of CIT vs. Vegetable Products Ltd., (1973 (1) TMI 1 - SUPREME Court) and, thus the Tribunal decided the issue in favour of the assessee
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2015 (1) TMI 1369 - ITAT MUMBAI
Deduction u/s 80IA - assessee had set off losses from wind mill operation against income generated from non-eligible businesses - Held that:- CIT(A) held that the provisions of sec. 80IA(5) treating the undertaking as a separate source of income cannot be applied to a year prior to the year in which the assessee opted to claim relief u/s 80IA for the first time. Accordingly CIT(A) held that the losses of earlier years cannot be notionally brought forward to be set off against current year’s income, since the current year is the initial assessment year in which deduction u/s 80IA was claimed.
Since the Ld CIT(A) has followed the decision rendered by Hon’ble Madras High Court in the case of Velayudhaswamy Spinning Mills (P) Ltd Vs. ACIT [2010 (3) TMI 860 - Madras High Court] we do not find any reason to interfere with his order on this issue. - Decided against revenue
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2015 (1) TMI 1368 - ITAT MUMBAI
Registration u/s 12AA(e)(iv) r.w.s 12A rejected - absence of "dissolution clause" in trust deed - Held that:- We find the judgment of the Hon‟ble Kerala High Court in the case of Self Employers Service Society (2000 (9) TMI 47 - KERALA High Court) is decided on the facts of the said trust generating the income and not undertaking any charitable work. Thus, the same is distinguishable.
In the present case, assessee is yet to commence its activities and therefore, the assessee cannot be described as undertaking the activities for generating income only. Regarding the dissolution clause noting is brought on record even before us that the Bombay Public Trusts Act, 1950 mandates for incorporation of mandatory clause of dissolution of any irrevocable trust. Therefore, in our opinion, the decision of the DIT (E) rejecting the registration u/s 12A is required to be reversed. Accordingly, grounds raised by the assessee are allowed.
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2015 (1) TMI 1367 - ITAT DELHI
Declining registration u/s 12AA(1)(b)(ii) - appellant is a society engaged in imparting education - Held that:- The relevant determinative factor for conferring registration is the object of the society and the quantum of profits/ surplus is an irrelevant factor. In the present case, admittedly and undisputedly appellant society is imparting education. And education per-se is a charitable object u/s 2(15) of the Act. The basis of impugned action to regard the society as commercial at the stage of registration on the basis of expenditure incurred on advertisement and publicity is unwarranted and against the settled interpretation of the statute.
As held by the Apex Court in American Hotel & Lodging Association Educational Institute (2008 (5) TMI 17 - SUPREME COURT OF INDIA) the character of the recipient of the income must have the character of educational institution is to be determined irrespective of the profits. In view of the above we reverse the order of the CIT and direct it to grant registration u/s 12A of the Act. - Decided in favour of assessee
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2015 (1) TMI 1366 - DELHI HIGH COURT
Denial of claim of exemption by Notification No. 24/04-ST dated 10.9.04 - Voluntary training and coaching in the field of 1) Business 2) Fashion Technology 3) Advertisement and Graphic Design 4) Media 5) Hospitality and 6) Hospital Administration - the decision in the case of M/s WLC COLLEGE INDIA LTD Versus COMMISSIONER OF SERVICE TAX, DELHI [2012 (7) TMI 25 - CESTAT, NEW DELHI] contested - Held that: - reliance placed in the case of Ashu Export Promoters (P.) Ltd. Versus Commissioner of Service tax, New Delhi [2011 (11) TMI 387 - CESTAT, NEW DELHI], where it was held that the training provided by the assessee in this case amounted to “vocational training” within the meaning of the term under Notification No. 9/2003-S.T. - appeal dismissed - decided against Revenue.
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