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Showing 81 to 100 of 1399 Records
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2015 (2) TMI 1326
CENVAT Credit - inputs/capital goods - Welding Electrodes (falling under Chapter Heading No. 8311.00) used in the repair and maintenance of plant and machinery - HELD THAT:- The issue raised in this appeal is squarely covered by judgment M/S DSM SUGAR ASMOLI VERSUS THE COMMISSIONER OF CENTRAL EXCISE, MEERUT [2015 (2) TMI 1178 - ALLAHABAD HIGH COURT] where it was held that Since there is change in provisions, therefore, for the subsequent period, having examined the terms "capital goods" and "input" in the subsequent Rules and comparing with the Rules 57A, 57B and 57Q of earlier Rule, for the purpose of present case, we do not find any substantial difference which may help the appellant so as to include 'welding electrode' within either of the aforesaid terms for claiming MODVAT/CENVAT Credit on the use of "welding electrodes" in an industrial unit engaged in production of sugar and molasses.
It is, however, pointed out that on and after 10.09.2004, new Rules, i.e., CENVAT Credit Rules, 2004 came into existence and the definition of "capital goods" and "input" is contained in Rule 2 (a) and (k), thereof, but for the purpose of present appeal, learned counsels for parties did not dispute that there is no substantial difference in the aforesaid definitions, so far as the question of welding electrodes used in repair and maintenance in Sugar Mill is concerned and, therefore, the judgment in respect to Rules applicable prior to Rules, 2004 would cover the issue in this appeal also.
Appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1325
Deduction u/s 10B - CIT (A) in having treated the miscellaneous receipts by way of freight discount allowed by Shipping Companies and the exchange fluctuation difference as part of business receipts - HELD THAT:- Brokerage which is basically rebate allowed by the Shipping company as well as sale of sample is directly related to the business of the assessee and since the same has already been held to be part of the business income by the Tribunal, therefore, following the same we hold that these receipts are part of the business income and eligible for deduction u/s 10B.
As far as the issue regarding processing charges is concerned, the Hon' ble Punjab & Haryana High Court in the case of CIT v Vallabh Yarns P. Ltd [2010 (9) TMI 836 - PUNJAB AND HARYANA HIGH COURT] following the earlier decision in the case of CIT vs Impel Forge and Allied Industries Ltd [2008 (12) TMI 370 - PUNJAB & HARYANA HIGH COURT] held that the assessee is entitled to deduction u/s 801B from the job work done for others. Therefore, following this ratio, even this issue is covered in favour of the assessee.
We are of the opinion that assessee is entitled to deduction u/s 10B on all the items referred to in appeal. Therefore, we set aside the order of Ld. CIT (A) and direct the Assessing Officer allow deduction u/s 10B
Reducing the profits of undertaking for calculating deduction u/s 10 B which had already been reduced by the assessee - HELD THAT:- We find force in the submissions of Ld. Counsel for the assessee because sub section (4) mandates proportionate deduction on profits depending upon the quantity of export. However, the Assessing Officer has not discussed this issue in detail how much export was carried out by the assessee and whether any domestic sales were also there. Further, this issue has not been adjudicated by CIT (A) and the same required verification of facts. Therefore, in the interest of justice, we remand this issue to the file of Assessing Officer to determine the facts regarding how deduction u/s 10B was claimed and whether some exports were there and some domestic sales were also there and then decide the issue in accordance with law.
Interest received from customers on delayed payments - 'business income' OR 'income from other sources' - HELD THAT:- Interest received from delayed payments on account of sale to customers of manufactured goods is directly related to the industrial undertaking and was to be considered as part of the profit for computing deduction. The Ld. CIT (A) has decided this issue in favour of the assessee by following this decision in PHATELA COTGIN INDUSTRIES P. LTD. VERSUS COMMISSIONER OF INCOME-TAX [2007 (5) TMI 226 - PUNJAB AND HARYANA HIGH COURT] . Therefore, we find nothing wrong with the order of Ld. CIT (A) and we confirm the same.
Treat the gain on forex fluctuation to be the income eligible for deduction u/s 10B - HELD THAT:- If amounts are kept in the EEFC account and some interest and fluctuation on such EEFC account is received, then the same is not eligible for deduction. However, we again clarify that if gain on account of foreign exchange fluctuation is on account of normal sale proceeds, then such gain would be eligible for deduction. Since these facts have not been examined by the Assessing Officer or CIT (A), therefore, we set aside the order of Ld. CIT (A) and direct the Assessing Officer to examine these facts and then decide this issue in accordance with law.
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2015 (2) TMI 1324
Continuation of Proceedings covered under Section 482 of Cr.P. C - HELD THAT:- The High Court while exercising jurisdiction under Article 227 of the Constitution of India has not only administrative superintendence over the subordinate courts and tribunals, but also has the power of judicial superintendence. The power of superintendence conferred by Article 227 has to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. Having regard to the nature of relief sought for by the appellant it cannot be said that Article 227 of the Constitution of India is attracted. And that notwithstanding the nomenclature of the petition, the learned single judge has dealt with and decided the petition under Section 482 Cr.P.C.
It is evident that there are seriously disputed facts and that by itself would render the proceedings under Article 226 of the Constitution of India, as being wholly inappropriate and incongruous - In the case on hand, the petitioner has no grievance that the power of the investigation officer has been exercised mala fide or that the police officer has been misusing his powers. Therefore, the appellant is hardly in a position to invoke the jurisdiction of this court under Article 226 of the Constitution of India.
The petition filed before the learned single Judge, notwithstanding its nomenclature, as one filed under Articles 226 and 227 of the Constitution of India read with section 482 Cr.P.C., was actually one filed under section 482 Cr.P.C. The learned single Judge was justified in treating and deciding the petition under Section 482 Cr.P.C. - this writ appeal filed under Section 4 of the Karnataka High Court Act, 1961, is not maintainable.
Appeal not maintainable.
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2015 (2) TMI 1323
Profit on sale of Investments - business income OR capital gains - assessee is an insurance company- HELD THAT:- The computation of taxable profit of an insurance company is governed by specific provision as given in section 44, read First schedule to the Income-Tax Act. Under the said scheme, only such adjustment can be made to the profits as disclosed in the annual accounts drawn under the Insurance Act, 1938, which are specifically provided under Rule 5.
As clarified by Finance Act that the amendment will be effective from A.Y. 2011-12 onwards. Thus, it is amply clear from the legislative intent that, prior to 01.04.2011, adjustment of such a gain on realization of investment cannot be added. This aspect of the matter have been dealt extensively and upheld by the Co-ordinate Benches of the Tribunal which have been referred to the learned counsel. Accordingly we hold that profit on sale of investment cannot be taxed. Thus, ground no. 2 as raised by the assessee is allowed.
Disallowance u/s 14A on estimated basis - HELD THAT:- On the perusal of various decisions of the Tribunal including that of the assessee, we find that it has been consistently held that, provision of section 14A is not applicable in the cases of Insurance company which are governed by section 44, because it is non obstante provision wherein the income is to be computed as per P&L account prepared under the Insurance Act 1938. Section 14A contemplates exception for deduction allowable under the act, whereas section 44 creates special application of provision of computation of profit as per the Insurance Act. Thus, no disallowance u/s 14A can be made and accordingly, ground no. 3 is allowed in favour of the assessee.
Disallowance of amortization of premium - allowable revenue expenses - HELD THAT:- According to the terms of issue of the securities, the assessee was to get only the face value at the time of redemption or maturity. IRDA regulation prescribes, the accounting principle for preparation of financial statement, whereby the assessee is required to prepare the financial statements in the manner provided in the said regulation. The said regulation read with relevant rules given in the schedules therein, provides that debts securities including, Government securities shall be considered as “held to maturity” and shall be measured at historical cost subject to amortization. This IRDA regulation are binding on the insurance companies. we hold that such an amortization claimed by the assessee as revenue expenditure is allowable . As relying on TATA AIG GENERAL INSURANCE CO. LTD. VERSUS ITO [2010 (10) TMI 764 - ITAT, MUMBAI] we hold that such an amortization claimed by the assessee as revenue expenditure is allowable.
Applicability of MAT u/s 115JB to the General Insurance Company - HELD THAT:- Since the assessee’s P&L account is prepared in accordance with Insurance Act 1938, as specifically provided in Section 44 read with First schedule, therefore, the provision of section 115JB will not apply in case of assessee. This has been held in the case of General Insurance Corporation Cited Cases GENERAL INSURANCE CORPORATION OF INDIA VERSUS ADDL. CIT RANGE (13) [2012 (2) TMI 522 - ITAT MUMBAI]
Applicability of section 69B - HELD THAT:- The assessee has sold the shares and buyers have failed to take the delivery, then in such a case how the provision of 69B gets attracted because here it is not a case that the investment exceeds the amount recorded in the books of account. On these facts alone, the addition cannot be sustained. Accordingly, the same is deleted.
Addition on account of taxes paid on foreign dividend - HELD THAT:- We find merit in the reasoning given by the AO as well as Ld. CIT(A) because taxed paid do not qualify as expenditure for the purpose of business and entire gross dividend should have accounted for in the P&L account. Thus Ground no. 5 is treated as dismissed.
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2015 (2) TMI 1322
Revision u/s 263 - claim relating to the Investment written off - HELD THAT:- As brought to our notice that this issue was decided in favour of the assessee by the coordinate bench of Tribunal while considering the appeal filed against the revision order passed by Ld CIT u/s 263 of the Act, vide its order dated 29-7-2011 passed in [2011 (7) TMI 391 - ITAT MUMBAI] to AY 2004-05. We notice from paragraph 15.7 of the order that the Tribunal has expressed the view that, neither the loss on account of diminution in the value of investment shall be allowed as deduction nor any income on investment shall be subjected to the tax. Following the said decision of the Tribunal, we uphold the order of Ld CIT(A) on this issue.
Disallowance of leave encashment claim - This issue was also decided by the Co-ordinate bench in [2011 (7) TMI 391 - ITAT MUMBAI] of the order. Following the same, we uphold the order of Ld CIT(A) on this issue.
Relief granted in respect of claim relating to the contribution made to Pension and Gratuity fund - Both the parties agreed that this issue is decided against the assessee by the Tribunal [2011 (7) TMI 391 - ITAT MUMBAI]. By following the same, we set aside the order of Ld CIT(A) on this issue and direct the AO to follow the decision rendered by the Co-ordinate bench in its order referred supra.
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2015 (2) TMI 1321
TP Adjustment - assessee had adopted TNMM method as the most appropriate method for bench marking the international transactions entered with its AE - whether purchase price of the goods exported cannot be applied as CUP for sale price charged to the AE? - HELD THAT:- As decided in own case [2015 (1) TMI 1430 - ITAT MUMBAI] assessee is providing the services to the AE and receiving the remuneration and in turn getting part of the job done through sub agent GESA and remunerating it by paying the commission as per sub agency agreement. Out of the total services provided by the assessee a part is performed through sub-agent and the remaining is performed by the assessee itself. It is like export of goods partly manufactured by the assessee and partly purchased from third party. However, purchase price of the goods exported cannot be applied as CUP for sale price charged to the AE. Accordingly considering the price received by GESA as CUP is contrary to the transfer pricing regulation. We do not rule out the CUP as most appropriate method for determination of ALP of international transaction in question. However, the comparable uncontrolled price must be a proper uncontrolled price in compliance of provisions of transfer pricing.
There is one more fallacy in the TPO's order regarding bifurcating the international transactions into two segments for determining the ALP. The TPO accepted the price charged by the assessee in respect of services provided through sub- agency, but while computing the ALP it had ignored the CUP and took the price charged by the assessee as ALP. Further, the services provided by the assessee on its own were compared with CUP. Therefore, two separate ALP were determined by the TPO for the same service provided by the assessee to AE. Even if the CUP is adopted as most appropriate method ALP cannot be more than price received by GESA. Whereas the TPO has taken into consideration the price charged by the assessee with 10% mark-up. Hence, the computation of ALP is otherwise not based on correct uncontrolled price.
We may clarify that the international transaction in question should be considered as one and price received by the assessee in total has to be compared with the ALP. The assessee received the price for providing the service as per the agency agreement. Therefore, the service provided by the assessee to the AE are closely interlinked and price of one part is dependent on the price of the other part. Therefore, the entire services provided by the assessee has to be treated as one international transaction for the purpose of determining the ALP - Consistent with the view taken in AY 2008-09, we set aside the order of Ld DRP on this issue and restore the same to the file of TPO/AO with the direction to decide the same afresh in the light of directions issued in the above said order.
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2015 (2) TMI 1320
Registration u/s 12AA - denial of claim as material required for formation of the satisfaction mandated by the Act is unavailable - HELD THAT:- CIT in the order passed by him for rejecting the claim for registration u/s 12AA that the material required for formation of the satisfaction mandated by the Act is unavailable and therefore, it is held by CIT that the assessee has failed to fulfill the conditions for grant of registration u/s 12A of the Act. Similarly, in his order for rejecting the claim of the assessee for registration u/s 80G, he has given a finding that the assessee has failed to fulfill the conditions for approval u/s 80G of the Act. Hence, we do not find any justification to interfere in these orders of learned CIT. - Decided against assessee.
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2015 (2) TMI 1319
Territorial Jurisdiction - transfer of session case to any other Sessions Court - framing of charges under Indian Penal Code - HELD THAT:- There are difference of opinion on the said issue.
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2015 (2) TMI 1318
Penalty u/s 271D of the Act - Exception to section 269SS of the Act - Cash accepted exceeding the limit - Genuineness of loan/ deposit transaction - HELD THAT:- Delay condoned. Leave granted.
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2015 (2) TMI 1317
Deduction u/s 80-IB at Silvassa unit - proof of manufacturing or production of electrical generators - HELD THAT:- As per JACKSON ENGINEERS LTD. [2009 (12) TMI 649 - DELHI HIGH COURT] the activity involving assembling of various components and achieving a final product of a generator amounts to manufacture or production of an article or thing within the meaning of section 80-IB of the Act. Moreover as in the case of Tata Locomotive And Engineering Company Limited [1967 (2) TMI 22 - BOMBAY HIGH COURT] has also held that assembling of various components which results into a different product which is distinct then the individual components, such an activity amounts to manufacture or production. As a consequence, we therefore do not agree with the first objection of the Assessing Officer to deny assessee’s claim for deduction u/s 80-IB(4) of the Act. Thus, on this aspect assessee succeeds.
Silvassa unit of the assessee did not begin to manufacture or produce the Generators before 31.03.2004. - Assessing Officer relied upon the statement of the transporter to infer that there was neither transportation of raw material to Silvassa unit and nor the manufactured generator set was transported from Silvassa unit to M/s SNA Industries, Chakan Pune - need for cross-examination - HELD THAT: Ostensibly, there are apparent contradictions in the statements furnished by the transporter at the different points of time. The assessee pointed out that earlier it had contended that due to the contradictory position taken by the transporter a report of the handwriting expert be called for to establish as to whether the signature on the transport bills were that of Shri Padwal or not. It was also asserted by the assessee that the cross-examination would not serve any purpose when the appropriate preparation was not possible at a short notice. No doubt, technically speaking, an opportunity was allowed to the assessee to cross-examine the transporter. The assessment order has been passed on 31.12.2010 and obviously the cross-examination opportunity was allowed at the fagend of the proceedings.
Of-course, one of the reasons for the cross-examination to be allowed at the fagend was that the investigation itself were started late by the Assessing Officer. But the moot question is that can it be conclusively established on the basis of the apparently inconsistent stand of the transporter that there was no transaction effected with M/s Kavita Industries Pvt. Ltd. or M/s SNA Industries prior to 31.03.2004. In-fact, in the Excise return furnished by the assessee, a copy of which has been placed at pages 131 to 132 of the Paper Book, it is revealed that assessee returned the quantity manufactured and also showed its liability for excise duty on the quantity manufactured and sold. The said return of income is dated 05.04.2004 and at the time of hearing, the original copies of the said were also called for and perused. The said return corresponded to the quarter ending on 31.03.2004. The reflection of quantity of goods manufactured and liability of excise duty thereof in the said return has not been disapproved by the Revenue at any stage. There is also no reason for us to disregard the same. Nevertheless, it is also emerging that so far as the evidence of transportation is concerned it does not clinchingly establish the case either way. It was not only imperative but also prudent that the cross-examination of the transporter was undertaken so as to enable the Assessing Officer to come to appropriate findings.
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2015 (2) TMI 1316
Recall of Winding up order - appellant was not even a shareholder of the Company in liquidation - time limitation - procedure for revival of the Company - HELD THAT:- It is absolutely clear that the only interest of the appellant is to the extent that he is a guarantor of the loan taken by the Company from the State Bank of India. He has no share holding in the Company and had voluntarily exited from the Company in the year 2006 when he transferred his share holdings in favour of Sri S.N. Ladhani and his family members.
The assets of the Company have to be distributed as per the terms of the Companies Act. A guarantor, even though may be the initial promoter of the Company, cannot be said to be a party interested in the revival of the Company as none of the provisions of the Companies Act give any right to such a person to revive a Company, who is not even a shareholder. The Company consists of shareholders and not outsiders.
In the absence of the appellant having been able to place before us any provision under which a guarantor can be handed over the assets of the Company for its revival, (for which there is no proposal even filed by the appellant before the learned Company Judge or in appeal), the prayer for recalling the order of winding up at the instance of such guarantor (appellant) has been rightly rejected by the learned Company Judge.
Appeal dismissed.
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2015 (2) TMI 1315
Revision u/s 263 - Disallowance under section 40A(3) - no opportunity to assessee to explain before the A.O. whether the cash payments are coming within the exceptions provided under Rule 6DD - HELD THAT:- CIT was not justified in directing the A.O. to apply section 40A(3) to the cash payments made by assessee straightaway. Assessee deserves an opportunity to explain before the A.O. whether the cash payments are coming within the exceptions provided under Rule 6DD. The decisions relied upon by A.R. also say section 40A(3) has to be looked into in conjunction with Rule 6DD. We, therefore, direct the A.O. to examine whether the cash payments are coming within exceptions of Rule 6DD of the Rules and only thereafter, may decide whether to apply section 40A(3) to such cash payments. The A.O. must afford reasonable opportunity of being heard to the assessee in the matter.
CIT herself has admitted the fact that as far as interest to the creditors are concerned, most of the creditors were brought forward from earlier years. Even in respect of balance two creditors assessee has not only established the identity but has also furnished confirmation letters and it is also fact that the credits are through regular banking channel. Without bringing some material on record to show that these two creditors are not genuine or they do not have creditworthiness, CIT cannot hold the assessment order to be erroneous and prejudicial to the interest of Revenue.
As it appears from record at the time of assessment proceedings, assessee has also produced confirmation letters from creditors. Therefore, it cannot be said that the A.O. has not examined the credits. In these circumstances, the assessment order passed cannot be held to be erroneous and prejudicial to the interests of Revenue.
Similarly, in so far as cash deposits made to the S.B. Account is concerned, it is manifest from the revision order that CIT has accepted that the deposits have been reflected in the books of accounts. Moreover, assessee has also explained the source of such deposits - at assessment proceedings, A.O. has examined the books of accounts as well as the bank statement. Therefore, when the assessee has produced its books of accounts before the A.O. as well as before the Ld. CIT and has also explained the source for deposit which have not been disputed or found to be incorrect by the Ld. CIT, in our view, it was not proper on the part of CIT to set aside the assessment order on that issue as the directions given by the CIT, without any positive finding of error or prejudice to the Revenue, is only in the nature of a roving and fishing enquiry to be conducted by the A.O. which is not the intent and purpose of section 263. We direct the A.O. to only examine the issue of applicability of section 40A(3) with reference to Rule 6DD after giving due opportunity of being heard to the assessee. The order of Ld. CIT is modified to this extent. Appeal of assessee is partly allowed for statistical purposes.
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2015 (2) TMI 1314
Maintainability of petition - Delay in compliance with the pre-deposit - HELD THAT:- It is an admitted fact that after the disposalof the appeal by the Appellate Deputy Commissioner, the appellant had deposited the pre-deposit as directed by the Appellate Deputy Commissioner (CT), Vishakhapatnam.
The High Court ought to have condone the delay in complying with the order passed by the Appellate Deputy Commissioner (CT), Vishakhapatnam and should have directed him to decide the appeal on merits. Since that has not been done by the High Court, we take exception to the said order.
The appeal filed by the appellant-herein is restored to the Appellate Deputy Commissioner (CT), Vishakhapatnam to decide the same on merits.
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2015 (2) TMI 1313
Reopening of assessment u/s 147 - denial of natural justice - assessee denied an opportunity of fair hearing - petitioner holding that certain shares were purchased by the petitioner out of the income that had escaped from the assessment - HELD THAT:- As the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount, matter requires to be re-considered by the respondent by providing fair and reasonable opportunity of hearing to the petitioner and by furnishing the details/copy of the statement based on which the impugned assessment order has been passed. Writ petition is allowed. The impugned order is set aside. The matter is remitted for fresh consideration to the respondent. See SRI SURESH KUMAR KOTHARI (HUF) VERSUS INCOME TAX OFFICER, BANGALORE [2015 (1) TMI 1426 - KARNATAKA HIGH COURT ]
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2015 (2) TMI 1312
Unexplained cash credit u/s. 68 - as per assessee the amount was received being advance on account of sale of potato seeds to the farmers and later adjusted the same with the sales within the same year and there is no carry forward credit. According to assessee, these are merely a trade creditor - HELD THAT:- We find that the plea of assessee is quite reasonable that this being trade advance by very nature of activity of the assessee and the same has been adjusted against the sales made to various parties and the area particularly farmer community. This being the nature, these advances are surely trade advances and not cash credit as assumed by AO and upheld by CIT(A). In view of the above facts and circumstances, we are of the view that trade advances cannot be treated as cash credit u/s. 68 and addition made and confirmed by lower authorities is deleted. - Decided in favour of assessee
Addition being advance on account of amusement tax - addition under the sub head ‘advance of amusement tax - HELD THAT:- Assessee made no argument qua this addition and even otherwise the assessee before CIT(A) also did not argue on this. The assessee has disclosed this amount as loans and advance under the head ‘loans’ with revenue authorities under the sub head ‘advance of amusement tax’. It is not clear from the records that whether this is paid or not. Once this is not paid it will not be claimed as deduction and the assessee is unable to prove that this is advance on account of amusement tax. As the assessee could not explain neither before lower authorities nor before us, we confirm this addition. This ground of appeal of assessee is dismissed.
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2015 (2) TMI 1311
Disallowance of deduction u/s. 80P by invoking the provisions of sec. 80P(5) - assessee neither complied with this notice u/s. 142(1) nor filed return of income in terms of section 139 or in terms of notice u/s. 142(1) and hence, the AO proceeded to initiate best judgment assessment u/s. 144 of the Act as per the notice issued u/s. 142(1) - HELD THAT:- As decided in KADACHIRA SERVICE CO-OP. BANK LTD. VERSUS INCOME-TAX OFFICER, WARD-1, KANNUR THE MAVILAYI SERVICE CO-OP BANK LTD VS ITO [2013 (2) TMI 208 - ITAT COCHIN] Under section 80A(5), the legislature made it mandatory that the claim under Chapter VIA under the heading "C.- Deductions in respect of certain income" has to be made in the return. If the contention of the assessee is accepted, then the person, who files the return of income and fails to make a claim of deduction in the return of income either by ignorance or otherwise may not get the benefit, but a person who has not filed the return of income may be in a better position to claim the benefit. It is settled principles of law that in order to avail benefits under the beneficial provision, the conditions provided by the legislature has to be complied with. Therefore,the mandatory provisions contained in section 139(1) r.w.s. 80A(5) it is mandatory for every cooperative society for claiming deduction u/s 80P to file the return of income and to make a claim of deduction in the return itself - Decided against assessee.
Exemption u/s 80P - HELD THAT:- It is not a dispute that the assessees are accepting deposits from general public, maintaining savings account, providing cheque facilities, etc. as a banking business. The question arises for our consideration whether the assessees providing banking services to the general public and their members are eligible for exemption u/s. 80P of the Act. This Tribunal has discussed this issue elaborately in Kunnamangalam Co-operative Bank Ltd. [2014 (10) TMI 350 - ITAT COCHIN] and Pinarayi Services Cooprative Bank Ltd. [2014 (7) TMI 1176 - ITAT COCHIN] and also followed by the CIT(A) wherein it was held that the assessee are not eligible for exemption u/s. 80P of the Act. Therefore, we do not find any infirmity in the order of the CIT(A). Accordingly, the same is confirmed.
Disallowance u/s. 40(a)(ia) - contention of the assessee before the lower authorities was that section 40(a)(i) is applicable only for the amount remaining to be paid as at the accounting year end and it is not applicable to the amounts already paid - HELD THAT:- CIT(A) followed the order of this Tribunal in the case of Karivelloor Service Cooperative Bank Ltd. vs. ITO [2013 (3) TMI 673 - ITAT COCHIN] and Smt. Prasanna Radhakrishnan Dawson vs. ITO [2015 (10) TMI 802 - ITAT COCHIN] and found that the decision of the Special Bench of the Visakhapatnam Bench of this Tribunal in Merilyn Shipping & Transports [2012 (4) TMI 290 - ITAT VISAKHAPATNAM] is not applicable in these cases. In fact, this Tribunal in the case of Orchid Marine Vs. ITO [2014 (9) TMI 1020 - ITAT COCHIN] by following the judgment of CIT vs. Sikandarkhan N Tunvar [2013 (5) TMI 457 - GUJARAT HIGH COURT] found that the provisions of section 40(a)(ia) are applicable not only in respect of the amount paid but also the amounts remain to be paid as on the last day of the financial year. The CIT(A) has followed the order of this Tribunal. Therefore, we do not find any infirmity in the order of the lower authorities. Accordingly, the same is confirmed.
Disallowance u/s 36(1)(viia) - HELD THAT:- As AR submitted that even though the judgment of the Jurisdictional High Court in Lord Krishna Bank Ltd. vs. CIT [2010 (10) TMI 860 - KERALA HIGH COURT] is against the assessee, the assessee is eligible for exemption. The CIT(A) has followed the binding decision of the Jurisdictional High Court in Lord Krishna Bank (supra). We are of the opinion that the judgment of the Kerala High Court is binding on all authorities including this Tribunal. We find that similar issue came up for consideration in the case of Kannur Co-operative Bank Ltd. [2014 (6) TMI 930 - ITAT COCHIN] wherein the Tribunal decided the issue against the assessee.
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2015 (2) TMI 1310
Penalty u/s 271(1)(c) - assessee had not complied with notice under section 142(1) - HELD THAT:- AO had not contravened the assertion made by the assessee that the FAA has not considered that vital issue while deciding the appeal that in the assessment order the AO has mentioned that the AR of the assessee has appeared before him time to time that the assessed income is same as the returned income. As the assessee had appeared before the AO so there was no justification for levy of penalty u/s.271(1)(b) of the Act. We also find that the predecessor of the FAA had deleted the penalty levied by the AO u/s. 271(1)(b) .
Secondly, in the matter of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust [2007 (8) TMI 386 - ITAT DELHI-G] held that assessee had not complied with notice under section 142(1) but assessment order was passed under section 143(3) and not under section 144, that meant that subsequent compliance in assessment proceedings was considered as good compliance and defaults committed earlier were ignored by AO and, therefore levy of penalty under section 271(1 )(b) was not justified - Decided in favour of the assessee.
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2015 (2) TMI 1309
Condonation of delay in filing appeal - time limitation - HELD THAT:- It is fairly well-settled that the State functions in an impersonal fashion and that the ordinary standards, applicable to a litigant pursuing his own case, do not at times apply stricto sensu to the action or inaction of the State. That apart the enquiry conducted by the Registrar (Vigilance) of the High Court has not in the instant case suggested any collusion at the level of the State Government. What appears to have actually happened is that the appeal papers were presented within the time but repeatedly re-presented without fully removing the defects, in which process there was considerable delay.
The report no doubt confines the charge of dereliction to the two range officers, mentioned earlier. We are of the view that the range officers being themselves under the supervisory control of their higher officers the latter were as much responsible for ensuring that the former perform their duties diligently. The enquiry report has not gone into that aspect.
The Secretary, Department of Environment and Forest, Government of Tamil Nadu, shall call for an explanation of the officers who were, during the relevant period, supervising the two range officers, mentioned in the report. The officers would be called upon to explain as to why they were unable to take note of the neglect/dereliction of duties by the range officers concerned and explain their failure to do so - Appeal allowed.
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2015 (2) TMI 1308
Penalty u/s 271(1)(c) - change of head of income during the reassessment proceedings - rental income from warehousing premises was treated as business income OR Income from house properties - Reopening of assessment - HELD THAT:- In the reopened assessment proceedings, the assessee fairly conceded to the change of head of income as proposed by the AO. There was neither furnishing of inaccurate particulars of income nor of concealment of income.
We agree with the contention of the assessee that it was not a case of furnishing of inaccurate particulars of income or concealment of income. The assessee even had fairly agreed to the change of head of income during the reassessment proceedings. Every case where the claim of the assessee is not accepted cannot be said to be a case of concealment of income.
The addition in this case has been made because of change of head of income and not because of furnishing of inaccurate particulars of income or concealment of income. It is not a case where the assessee had deliberately shown the income under a wrong head but under a bonafide belief that the income of the assessee was assessable as business income. We do not think it to be a case for levy of penalty under section 271(1)(c). The penalty levied by lower authorities is therefore ordered to be deleted. - Decided in favour of assessee.
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2015 (2) TMI 1307
Imposition of penalty - KVAT Act - mis-classification of a item - sanitary equipments and fittings that are made of brass - HELD THAT:- There is no consideration in the said orders of the specific entry that deals with articles of brass, where there is a reference to an eight digit HSN code. Exts.P16 to P20 orders do not indicate as to why the products in question would not merit classification under the specific entry, and would rather be classifiable under the residual entry - In my view, such an exercise has necessarily to be done by an authority who proposes to impose a penalty on an assessee on the ground of mis-classification of an item. The issue of classification being a mixed question of law and fact, it is incumbent upon the taxing authority to correctly determine the classification of the item, before arriving at a finding that the item in question has been misclassified by the assessee dealer.
The 1st respondent is required to re-consider the aspect of imposition of penalty on the petitioner, for the assessment years in question - petition allowed in part.
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