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Income Tax - Case Laws
Showing 61 to 80 of 1116 Records
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2015 (10) TMI 2752
Levy of penalty u/s 271(1)(c) - deduction u/s 80IC claimed @100% was reduced to 25% of the total profit declared being the 6th year of manufacturing activities of the Industrial undertaking - bonafide claim - HELD THAT:- Assessee claimed deduction under section 80IC in assessment year under appeal in a bonafide manner and mere fact that claim of assessee has been disallowed, would not prove it to be a fit case of levy of penalty for filing inaccurate particulars of income. The issue of claim of deduction was debatable and bonafide. However, there was conflict for determination of provision of law. Merely making a claim of 100% deduction against 25% as per opinion of the Assessing Officer under section 80IC of the Act would not be at par with concealment of income or furnishing inaccurate particulars of income.
It is not a fit case of levy of penalty under section 271(1)(c) of the Act because it is well settled that levy of penalty is not automatic in each and every case as it depends upon facts and circumstances of the case.
Since the assessee’s claim of deduction under section 80IC have been allowed in earlier years @ 100% and admittedly assessee undertook substantial expansion in assessment year under appeal, therefore, assessee made bonafide claim of deduction under section 80IC of the Act and there were no judicial pronouncements against the assessee on the date of making such a claim. Therefore, it could not be construed that assessee furnished inaccurate particulars of income so as to levy the penalty under section 271(1)(c) - set aside the orders of authorities below and cancel the penalty.- Decided in favour of assessee.
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2015 (10) TMI 2751
Addition on account of suspense account - HELD THAT:- CIT(A) should have obtained the details from custodian as the custodian appointed by the Special Court, is not obliged to assessee by providing necessary details in spite of various requests made on behalf of the assessee. Copies of requests are placed on record. In view of the above facts and circumstances of the case, we set aside this issue to the file of the CIT(A) to decide the issue afresh after obtaining necessary details from the custodian and after affording opportunity of hearing to the assessee.
Disallowance on account of interest expenses - HELD THAT:- As decided in M/S. GROWMORE RESEARCH & ASSETS MGT. LTD., VERSUS THE ACIT, CENT CIRCLE-31, MUMBAI [2015 (3) TMI 1342 - ITAT MUMBAI] restore this issue to the files of the Ld. CIT(A) for fresh adjudication after giving reasonable opportunity of being heard to the assessee.
Addition on account of other expenses - HELD THAT:- As assessee stated that the details have not been properly appreciated by the First Appellate Authority. In our considered opinion and in the interest of justice and fair play, this issue needs reconsideration by the First Appellate Authority. We, therefore, restore this issue to the file of the Ld. CIT(A). The assessee is directed to file necessary details in support of its claim and the Ld. CIT(A) is directed to verify the same.
Addition on account of diminution in trading stock - HELD THAT:- The assessee is in the business of share trading which has been accepted by the AO in his assessment order. For certain statutory reasons, the assessee is not permitted to do trading in the shares in the stock market but at the same time the assessee is showing the shares as stock-in-trade and following the same as per the method of accounting regularly followed by her for the business. Therefore, in our considered opinion, any diminution in the value of the stock as at the end of the year has to be allowed. We, therefore, set aside the findings of the Ld. CIT(A) and direct the AO to delete the addition.
Interest levied u/s. 234A, 234B and 234C - HELD THAT:- Agreed, levy of interest is mandatory and sometimes consequential depending upon the facts of each case. We note that identical issue arose before the Tribunal in the aforesaid cases therefore following the reasoning contained therein, we direct the Assessing Officer to recomputed the interest liability after reducing the amount of tax deductable at source and decide as per the provisions of law. We direct accordingly, thus, this ground is allowed for statistical purposes. See M/S HARSH ESTATES PVT. LTD. VERSUS ACIT CC-31, AAYKAR BHAVAN, MUMBAI [2014 (10) TMI 925 - ITAT MUMBAI]
Addition u/s 69C - addition on account of personal household expenses - HELD THAT:- We find that in the group cases, the addition on account of low withdrawals made by the AO amounting to ₹ 60,60,000/- have been restricted by the Ld. CIT(A) at ₹ 37,80,000/- which also includes the present addition of ₹ 3,00,000/-. Considering the factual matrix of the entire family, in our considered opinion, an addition of ₹ 1,50,000/- should meet the ends of justice. We, modify the findings of the Ld. CIT(A) and direct the AO to make disallowance of ₹ 1,50,000/-. This ground of the assessee is partly allowed.
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2015 (10) TMI 2750
Penalty levied u/s 271(1)(c) - addition u/s 68 - Held that:- It is well settled proposition that addition made during the course of assessment proceedings would not automatically give rise to penalty under section 271(1)(c) of the Act.
It is pertinent to note that the identity of the creditor and genuineness of the transaction have not been found fault with - the Explanations and documents furnished by the assessee to prove the creditworthiness were only found to be inadequate and not found to be false - Explanation 1 to section 271 (1)(c) of the Act would come to the help of the assessee. Hence, on conspectus of the matter, we are of the view that the addition of cash credits confirmed by the ITAT, in the facts and circumstances of the instant case, would not necessitate levy of penalty under section 271(1)(c) of the Act, as the same, in our view, cannot be considered to be concealment of particulars of income. Thus direct the AO to cancel the penalty levied - Decided in favour of assessee.
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2015 (10) TMI 2749
Reopening of assessment - eligible reason to believe - Held that:- There is no reference of any material found during the course of survey relating to the said assessment year. Before the action under section 147 of the Act can be taken for reopening the assessment, the Assessing Officer must have reason to believe that the income chargeable to tax had escaped assessment.
After perusing the reason recorded, we do not find ourselves in agreement with the Assessing Officer or the learned Commissioner of Income-tax (Appeals) that the Assessing Officer had reasons to believe that the income chargeable to tax had escaped assessment in respect of the assessment year 2003-04.
Section 147 of the Act defines the power and jurisdiction of the Assessing Officer for making an assessment while section 148 of the Act provides for initiation of reopening by issue of notice. It is a trite law by now that section 147 of the Act empowers the Assessing Officer to assess or reassess the income chargeable to tax if he has reasons to believe that the income for any assessment year has escaped the assessment. The powers given to the Assessing Officer under this section are very wide but are also attached with certain overriding conditions. The Assessing Officer can assume jurisdiction under the said provision if he has sufficient material before him. It is also settled law that the Assessing Officer cannot form belief on the basis of his whim and fancy and the existence of material must be real. Further, there must be nexus between the material and escapement of income.
Also in the present case one of the basis for reopening is the statement of Shri Kapil Kumar recorded at the time of survey. The statement made at the time of survey does not have evidentiary value, therefore, cannot be the basis for reopening. Reliance is placed on the judgment of the hon'ble Supreme Court in the case of CIT v. S. Khader Khan Son [2013 (6) TMI 305 - SUPREME COURT] and also Paul Mathews and Sons v. CIT [2003 (2) TMI 25 - KERALA HIGH COURT]. On this basis also the reopening initiated by the Assessing Officer is held to be bad in law. - Decided in favour of assessee.
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2015 (10) TMI 2747
Addition u/s 68 - bogus LTCG - unexplained share transactions - Held that:- There was a direct evidence in the form of purchase of shares by the assessees in financial year 2002-03 on payment made by account payee cheques, the reflection of the said shares as investment in the balance-sheets of the assessee as on 31.03.2003 and 31.03.2004 and sale of the said shares in the financial year 2004-05 by the assessee against the payments received again by account payee cheques. The claim of the assessee of these transactions in purchase and sale of shares was also duly supported by the contract notes issued by the concerned brokers.
Considering circumstantial evidence brought on record to come to the conclusion that the relevant transactions of purchase and sale of shares giving rising to long term capital gain to the assesses were genuine transactions and the additions made by the Assessing Officer under section 68 by treating the said transactions as bogus were not sustainable. - Decided in favour of assessee.
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2015 (10) TMI 2746
Transactions of sale and purchase of shares - capital gain or busniss income - intention of the assessee was to earn profits - Held that:- We are unable to find ourselves in agreement with the findings of the AO as well as that of the CIT(A) that the intention of the assessee was to earn profits from the transactions of sale and purchase of shares. Apart from the above facts, it is also seen that the AO has observed in his order that the assessee has used borrowed funds for the purpose of making these investments.
As during the course of hearing, as shown to us for the assessee with the help of the balance sheet of the assessee filed in the Paper Book, the assessee has utilized her owned funds to make investment in shares. This fact also supports the contention of the assessee that these transactions relating to purchase and sale of shares are for the purpose of investment and not for the purpose of business. We hold that the intention of the assessee in the present case in engaging herself in the transactions of sale and purchase of shares was to earn dividend income and not to earn business income. - Decided in favour of assessee.
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2015 (10) TMI 2745
Penalty u/s 271(1)(c) - disallowance u/s 40(a)(i) - non-deduction of tax at source from the amount paid to M/s Maersk India Pvt. Ltd. on the basis of a Circular, as per which, the foreign shipping companies and their agents were governed by the provisions of Section 172 and not by Section 194C - Held that:- Imposition and confirmation of penalty u/s 271(1)(c) of the Act which presupposes concealment of income or furnishing of inaccurate particulars of income. Here is a case in which the assessee neither concealed any income nor furnished inaccurate particulars. Deduction on account of M/s Maersk India Pvt.Ltd. was claimed after making due payments.
The dispute is only about deduction or non-deduction of tax at source from payments to M/s Maersk India Pvt.Ltd. for which disallowance has been made u/s 40(a)(ia) of the Act. Under no circumstance can such a disallowance be brought within the ambit of Section 271(1)(c) of the Act. The assessee made a proper disclosure about the expense claimed by it as deduction which was neither bogus nor otherwise non-deductible but for the application of Section 40(a)(ia) of the Act. Overturning the impugned order, order for the deletion of the instant penalty. - Decided in favour of assessee.
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2015 (10) TMI 2744
Disallowance u/s 40(a)(ia) - Non deduction of tds on printing and stationary expenses - amount already paid during the year or amount shown payable as on 31st March of every year - Held that:- As relying on ACIT, Circle- 4, Jaipur vs. Shri Girdhari Lal Bargoti [2015 (11) TMI 746 - ITAT JAIPUR] On issue of amount already paid during the year or amount shown payable as on 31st March of every year, the various courts have different views i.e. in favour of the assessee and against the assessee and when there are to views on an issue, the view in favour of the assessee has to be preferred. Therefore, we confirm the order of the Ld. CIT(A). Further the recipient are NBFC, therefore, not possible to not be assessed to tax, these payments were related for A.Y. 2009-10 and return for A.Y. 2009-10 already might have been filed by these NBFC by including these interests receipts as their income. Therefore, we do not find any reason to interfere in the order of the Ld. CIT(A).- Decided against revenue.
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2015 (10) TMI 2743
Business Centre Service Charges - nature of income - treated as “Business Income” OR “Income from House Property” - commercial exploitation - Held that:- After considering the Business Conducting Agreement between the assessee and PRIL, the CIT(A) recorded finding that the assessee has granted permissive use of the services and facilities provided in the premises by the assessee. The Conductor has no right of occupancy, but only limited access for the purposes of business activities during hours of day fixed in the agreement.
We also found that the premises are in the control of the assessee and the assessee is required to provide services as per the agreement for which personnel on permanent basis were to be employed. Thus, the management and administration of the mall vested with the assessee. The detailed finding recorded by the CIT(A) has not been controverted by the department by bringing any positive material on record. Accordingly, no merit to interfere in the order of CIT(A). We further found that the issue is squarely covered in the case of Chennai Properties and Investment Ltd. [2015 (5) TMI 46 - SUPREME COURT] in favour of the assessee for holding that such commercial exploitation renders income from business rather than income from house property. - Decided against revenue.
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2015 (10) TMI 2742
Eligibility to claim higher rate of depreciation (80%) on the civil construction and electrical installations of windmill - whether the civil work forming the foundation of windmill and electrical installations are integral part of windmill and eligible for higher rate of depreciation @ 80%? - Held that:- The issue raised in the present appeal is no more res integra. There are catina of decisions by various Hon’ble High Courts and the co-ordinate Benches of Tribunal, wherein this issue has time and again been adjudicated. The Hon’ble High Courts have been consistently holding that windmill civil structure foundation and electrical fittings are closely inter-connected and linked with each other making it a single composite unit.
Therefore, on all the components of the windmill, whether it be concrete foundation or electrical fittings / installations, depreciation @ 80% has to be allowed. See COMMISSIONER OF INCOME TAX AHMEDABAD III VERSUS PARRY ENGINEERING AND ELECTRONICS P. LTD. [2014 (12) TMI 752 - GUJARAT HIGH COURT]. Thus we hold that the assessee is eligible to claim depreciation @ 80% on electrical installations as well as civil construction – concrete foundation of the windmill. - decided in favour of assessee.
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2015 (10) TMI 2741
Disallowing the higher rate of depreciation on the components / constituents of the windmill - Commissioner of Income Tax (Appeals) restricting the rate of depreciation claimed at 80% on foundation, electrical installation and other related components of windmill - Held that:- As decided in co-ordinate Bench in the case of DCIT Vs. Sushant M. Jadhav (2013 (4) TMI 846 - ITAT PUNE) to show that depreciation @ 80% is allowable on all the above components of the windmill, except expenditure on keeping the area vacant for free access.
Thus we hold that the assessee is eligible to claim depreciation @ 80% on the following components / constituents of windmill - Installation, Civil work, MEDA Processing fee, MEDA Application fee, Electrical Installation, Labour charges for erection and installation, Labour charge for final testing AND Other Pre-operation Expenses capitalized - Decided partly in favour of assessee
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2015 (10) TMI 2740
Higher rate of depreciation u/s 32 on trucks used for its business purpose - @40% or 30% - determinative factor for deciding whether trucks were used by the assessee during the relevant year in a business of running them on hire - Held that:- In the present case, admittedly, the assessee is in the business of civil construction. The assessee had engaged his own Trucks for transporting earth to facilitate laying of roads. Under such circumstances, the assessee cannot be said to be in the business of hiring out his Trucks for removal of earth to make him entitled for higher rate of depreciation, as removal and transportation of earth are only sub-processes of his main business of laying of roads.
The order of CIT (A) entitling the assessee for higher rate of depreciation on the premise that his motor vehicles were used for removal of earth and since the earth did not belong to the assessee, therefore, the use of his motor vehicles was on hire, in the opinion of this Court, is not correct, either on facts or in law, besides not being in conformity with the test laid down by the Apex Court in Gupta Global Exim (P) Ltd.[2008 (5) TMI 7 - SUPREME COURT] and also, with the Board's Circular No.609/Circular No. 652 dt. 14/6/93. - Decided in favour of revenue.
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2015 (10) TMI 2739
Disallowance of Interest in respect of advances to companies/other concerns - AO noticed that the assessee has not charged interest on the loans given to subsidiary and other companies - Held that:- Tribunal in the assessee’s own case for the assessment years 1991-92 to 1998-99, AY 2003-04 and the Tribunal has restored this issue to the file of AO for fresh adjudication following the precedent laid down by the Hon’ble Apex Court in S.A.Builders [2006 (12) TMI 82 - SUPREME COURT]. Therefore, this being identical issue, the same view may be taken as taken earlier by this Tribunal.
Disallowance of balance 4.5th deferred revenue expenditure in the next four years in accordance with the provisions of section 35DDA - Held that:- An identical issue had come up before this Tribunal in the assessee’s own case for the assessment year 1998-99 and the Tribunal following the decision of jurisdictional High Court in Bhore Industries Ltd [2003 (2) TMI 20 - BOMBAY HIGH COURT] allowed the claim of the assessee.
Disallowance of interest on securities - Held that:- Similar issue had come up before the Tribunal and the Tribunal following the decision rendered in the case of Jamshri Rajitsinghji Spinning and Weaving Mills Limited V/s Inspecting Assistant Commissioner [1991 (12) TMI 83 - ITAT BOMBAY-A] has decided this issue in favour of the assessee. The facts being the same and consistent with the view so take by this Tribunal in earlier year, we allow the claim of the assessee for this year too.
Addition being pooja expenses - Held that:- This is an allowable expenditure. Accordingly, we allow the claim of the assessee.
Payment to relatives of deceased employees - Held that:- We are of the considered opinion that the issue raised by the assessee in these grounds stands covered in favour of the assessee. To maintain consistency with the decision taken by the Tribunal in earlier years, we allow taken by the assessee for this year also and direct the AO to allow deduction.
Reduce the claim of depreciation on total scrap sales - Held that:- We find that the assessee has claimed depreciation on total scrap sales which comprises different type of the assets. The assessee failed to produce value of each assets on which it claimed depreciation. Therefore, this facts needs to be verified to come to an exact price of each assets and depreciation therefore, respectfully following the Tribunal orders and citation relied upon by the assessee. We set aside the order of the ld. CIT(A) and restore this issue to the file of the AO for fresh application of mind. Accordingly, Grounds allowed for statistical purposes.
Expenses incurred by the assessee in respect of cloth coupons issued to the shareholders - expenses incurred is wholly and fully for the purposes of business.
Setting off the expenses against dividend income - Held that:- In the present case, the assessee neither before the AO nor the ld.CIT(A) or the Tribunal produced any documents how the assessee is eligible for deduction of the expenditures incurred for earning dividend income. We find that the ld. CIT(A) restricted the claim to 50%. Therefore, we are of the considered opinion, that this facts requires details investigation and verification at the level of AO to determine the exact expenditure incurred by the Assessee. The AO is directed to follow the decision rendered by the Hon’ble High Court in Godrej & Boyce Mfg. Co. Ltd (2010 (8) TMI 77 - BOMBAY HIGH COURT).
Disallowance of excess expenses incurred towards repairs and maintenance of house property - Held that:- Tribunal earlier in the assessee’s own case decided this issue against the assessee. The ld. AR could not produce any material to compel us to come to the different conclusion as taken by the Tribunal earlier - decided against assessee.
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2015 (10) TMI 2737
Disallowance of deduction made u/s 80IA in respect of carbon credit - gain on account of carbon credit is a capital receipt or revenue receipt - Held that:- Case of My Home Power Ltd. [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT] affirmed that Carbon Credit is not an offshoot of an environmental concerns. That no asset is generated in the course of business but it is generated due to environmental concerns. The Hon’ble High Court has agreed that the factual analysis as the assessee was carrying the business of power generation. That the carbon credit is not directly linked with the power generation. Hence Hon’ble High Court concluded that on the sale of excess carbon credits the income was received and the same was capital receipt and it cannot be business receipt or income.
Thus carbon credit sale emanating to the assessee is a capital receipt not exigible to tax. Accordingly this cross objection filed by the assessee is allowed and we hold that the assessee is not liable to pay any tax on the carbon credit sale receipts.
Disallowance of claim u/s 80IA with respect to the receipt on account of carbon credit sale - Held that:- We find that as we have already held that the receipt on account of carbon credit sale is a capital receipt and hence the same is not liable to tax. The adjudication of issue raised by the Revenue is only of academic interest. Accordingly we are not engaging under the same. Hence this ground raised by the Revenue is dismissed as infructuous. - Assessee appeal allowed.
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2015 (10) TMI 2736
Denying the registration u/s 12A and recognition u/s 80G of the Income Tax Act, 1961 - Held that:- During the course of hearing of the appeal, ld. counsel for the assessee has filed applications for withdrawal of these appeals to which the Revenue has no objection. Accordingly, these appeals are dismissed as withdrawn. Order was pronounced in the open court on the date mentioned on the captioned page
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2015 (10) TMI 2734
Gain on sale of shares - long term capital gains OR short term capital gains - Held that:- In the case of the appellant the transaction is real, all legal formalities have been complied with and what is transferred is the shares and not immovable property. The findings of the Assessing Authority that it is a transaction of immovable property is contrary to law and contrary to the material on record. The Karnataka High Court held that if the veil of the company is lifted, what appeared to them is transaction of immovable property. Such a finding is impermissible in law. In the case of M/s. Bhoruka Engineering Industries Ltd (2013 (7) TMI 543 - KARNATAKA HIGH COURT), the assessee traded the shares in Magadh Stock Exchange and paid the transaction fee and claimed the Long Term Capital Gains as exempt. In the case of the assessee, she paid the Long Term Capital Gain on the sale of shares as per the requirement of law.
Reopening of assessment - calculation of capital gains on sale of equity shares - Held that:- As noted that the calculation of capital gains on sale of equity shares of Ganesar Ginning Mills Ltd has been verified by the then Assessing Officer based on the relevant facts and materials submitted by the assessee and the Assessing Officer has accepted the stand of the assessee in respect of calculation of capital gains on sale of shares.
In such an eventuality in an assessment u/s.143(3) where there has been no failure on the part of the assessee in disclosing truly and materially all facts relating to the case, the assessment cannot be reopened after 4 years time limit which was completed on 31.03.2012 as per the proviso to section 147 of the Act. There was no allegation by AO that there was failure on the part of the assessee to disclose the materials, facts truly and correctly for the period of assessment. Being so, since the assessment was reopened after four years from the end of the relevant assessment year when the original assessment was completed u/s.143(3), this issue is squarely covered by the judgment of Supreme Court in the case of CIT vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA]. AO precluded from reopening the assessment - Reopening of assessment is invalid - Decided in favour of assessee.
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2015 (10) TMI 2733
International transaction - advances given by the assessee to its AEs in UK and USA - Held that:- ITAT, Cochin Bench in assessee’s own case for the assessment year 2008-09 is contrary to the assertions made by the assessee in support of the aforesaid ground. It has specifically dealt with the scope of expression “international transaction” as amended by Finance Act, 2012 retrospectively. It was held that the advances given by the assessee to its AEs in UK and USA came within the ambit of international transaction as per the amendment made in the provisions of section 92B of the Act. We are bound by the decision rendered by the previous Bench in assessee’s own case. There is no occasion for us to comment upon the correctness or otherwise of the judgments relied upon by the assessee as the case of the assessee is covered against the assessee by the Tribunal order dated 29/11/2013. Ground No. 1 raised by the assessee is dismissed.
Erroneous imputing of interest on advances - Held that:- We are not in agreement with the submissions made by the Ld. AR. The Ld. AR has failed to bring on record any distinguishing feature between the present case and case of the assessee for the assessment year 2008-09. In the assessment year 2008-09, an identical issue came up for consideration before the ITAT, Cochin Bench in assessee’s own case wherein the assessee had charged interest at the rate of 5% on the advances made to its AE Suntec Germany and charged no interest on the advances made to its AEs in USA and UK. The Bench in para 9.4 (extracted above) held that commercial expediency cannot be a ground for not charging interest on the advances given to Suntec US and Suntec UK and upheld the charge of interest at the rate of 5% on the advances made to its AEs in USA and UK.
Non-allowance of tax credit in the case of the assessee by the Revenue - The assessee has submitted that it was given a tax credit of ₹ 8,50,979/- only instead of ₹ 35,95,891/-. - The assessee has further given details of ₹ 27,44,912/- for which the tax credit were not given - Held that:- Assessing Officer is directed to grant tax credits due to the assessee in accordance with law as reflected in income tax records. Thus, Ground No. 3 is allowed for statistical purposes.
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2015 (10) TMI 2731
Computation of book profits u/s 11JB – Treatment of provision of bad and doubtful debts – Effect of amendment - Held that:- We do not find any merit in these petitions. - The special leave petition are accordingly dismissed.
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2015 (10) TMI 2730
Addition u/s 36(1)(va) r.w.s. 43B - default related to payment of provident fund (PF) - employer and employees contribution - there are further contributions viz. voluntary provident fund, employees state insurance corporation, group savings, linked insurance.
SLP admitted.
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2015 (10) TMI 2725
Reopening of assessment - undisclosed investments u/s. 69 - Held that:- No doubt the assessee contended before the Tribunal that the notices were issued without mentioning the reason for reopening and though it was submitted that some of the shares mentioned by Mr. Mukesh Choksi were not purchased by the assessees-herein but the fact remains that no material whatsoever was furnished before the Tribunal to cross verify the statement of assessees-herein. No other alternative except to uphold the orders passed by learned CIT(A). - Decided against assessee.
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