Home Case Index All Cases Income Tax Section Wise 2009 2009 (11) This

Law	-- All -- GST Income Tax Benami Property Customs Corporate Laws Securities / SEBI Insolvency & Bankruptcy FEMA PMLA Service Tax Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws
Court	-- Any -- Supreme Court SC Orders / Highlights High Court Appellate Tribunal Tribunal Appellate authority for Advance Ruling Advance Ruling Authority National Financial Reporting Authority Competition Commission of India ANTI-PROFITEERING AUTHORITY Commission Central Government Board DISTRICT/ SESSIONS Court Commissioner / Appellate Authority Other
Citation	--Year-- 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1976 1975 1974 1973 1972 1971 1970 1969 1968 1967 1966 1965 1964 1963 1962 1961 1960 1959 1958 1957 1956 1955 1954 1953 1952 1951 1950 Upto 1949 - -Volume- 1 2 3 4 5 6 7 8 9 10 11 12 -
Landmark	Nil - N/A Referred in >= 3 Cases Referred in >= 4 Cases Referred in >= 5 Cases Referred in >= 10 Cases Referred in >= 15 Cases Referred in >= 25 Cases Referred in >= 50 Cases Referred in >= 100 Cases
Order by	TMI Citation Date of Decision

Advanced Search Options

Case Laws

Showing 421 to 440 of 735 Records

• 2009 (11) TMI 568
  

  Foreign exchange violation – summons - Act has deliberately chosen not to apply the concept of summons used either under the Code of Civil Procedure or under the Code of Criminal Procedure, but has chosen to apply analogous provisions found in the Income Tax Act - while interpreting the scope and width of Section 37 of FEMA, one cannot apply the concept of summons as available to a Civil Court under the Code of Civil Procedure, only because the power of a Civil Court was conferred on the authorities

  Apex court has held that in respect of Section 40 of the FERA, held that when a person is summoned and examined under Section 40, it cannot be presumed that a statement will be obtained under pressure or duress. In fact it was held in that case that such a statement obtained does not infringe the constitutional guarantee of protection against self-incrimination under Article 20(3) of the Constitution.

  The petitioner in essence seeks for a writ of prohibition against the department for having issued the summons by the exercise of the powers vested on them under Section 37 read with Section 131 of the Income Tax Act. In Standard Chartered Bank and Others v. Directorate of Enforcement and Others which arose out of the FERA violation, the Supreme Court spelt out the parameters in entertaining a writ petition against initiation of adjudication proceedings. - the attempt by the petitioner to stall the summons issued by the respondent has to be necessarily rejected

  ---

• 2009 (11) TMI 566
  

  Fund borrowed from bank - Interest free advance to sister concern - In the first ground of appeal, the issue involved is regarding the disallowance of interest paid to the bank - AO observed that it cannot be held that the money borrowed by the assessee and later on advanced by its sister concern and others free of interest was not utilized for the purposes of its own business and the assessee has not derived any benefit of the same. - Disallowance made by AO confirmed by CIT(A) - Held that: - if an issue under consideration before a Bench of a Tribunal on same facts has already been considered and adjudicated upon by a co-ordinate Bench in the case of same assessee for an earlier assessment year, the Tribunal is bound to follow the decision of the co-ordinate Bench. As a result of the discussion hereinabove, the ground No. 1 of the cross-objection filed by the assessee is rejected.

  Polishing expenses - disallowance of Rs. 3,03,54,472 at the rate of 15 per cent of the polishing charges - In its reply, the assessee submitted that the polishing workers are petty artisans moving from place to place and have mostly no permanent residential addresses - Assessing Officer observed that from the reply of the assessee, the assessee has not been able to satisfactorily explain the identity and genuineness of the transactions - From the orders of tax authorities below, it becomes clear that they have not disputed that in the manufacturing business of utensils, the assessee has to incur the polishing expenses - the order of the ld. CIT(A) in restricting the disallowance at the rate of 15 per cent as detailed in his order is upheld - In the result, the appeal filed by the assessee and the appeal filed by the revenue are dismissed

  ---

• 2009 (11) TMI 564
  

  Medicaments – Vicks tablet whether medicaments or confectionery - Vicks tablets and Balm may contain certain added medicaments and in common parlance it is not treated as a medicine as appearing in Entry 36 of 3rd schedule - Whether ‘Vicks Vaporub’ and ‘Vicks inhaler’ known in common parlance as Ayurvedic medicines classifiable under Tariff Heading 3003.30 “Medicaments including those used in Ayurvedic system” - The Tribunal found that there is no definition of Ayurvedic medicine in the Central Excise Tariff Act though Ayurvedic medicine is defined under Section 3(a) of the Drugs and Cosmetics Act, but that definition cannot apply for the purpose of classification of the product under the Central Excise Tariff Act and the Central Excise Salt Act – Held that the product satisfy the test of common parlance be known as Ayurvedic medicine and therefore fall under Entry 36 attracting VAT @ 4% – Kerala Value Added Tax Act, 2003

  Appeal to High Court – Aggrieved person - Though the appellant is the manufacturer of the products, a clarification was sought for by the dealer – Order passed by Commissioner under the provision of Section 94 of KVAT Act, 2003 binding on all authorities subordinate to Commissioner – Person affected by the order has the right to file an appeal against the order – Section 62 and 94

  Appeal to High Court – Limitation - The period of 90 days is to be reckoned from the date on which the order was served on the person, in the manner prescribed – The period starts from the ‘date of knowledge’ when clarification not sought before Commissioner by person filling appeal to High Court – Section 62 of Kerala Value Added Tax Act, 2003

  ---

• 2009 (11) TMI 562
  

  Income from other sources – Deduction – Interest on borrowed capital – Held that: it is very clear that the assessee had not borrowed any funds for making deposit with the same bank for the purpose of earning interest. Since no amount is borrowed from the bank for making deposit, the claim of deduction of interest paid on borrowed funds in the computation of income from other sources under section 57(iii) of the Income-tax Act is not tenable.

  It is obvious from the provision of 57(iii) that unless funds are borrowed for making the deposit to earn interest, such interest paid on borrowed funds cannot be allowed as deduction in the computation of income from other sources which in this case is interest earned on deposit. From the facts stated above, there can be no doubt that funds transferred from cash credit/packing credit are nothing but the assessee's amount credited in such account and not borrowed funds converted to deposit account by the assessee. - Decided in favor of revenue.

  ---

• 2009 (11) TMI 560
  

  Question of Law - Whether interest for non-performing assets cannot be fixed on accrual basis - The assessee is a non-banking finance company - The Central Board of Direct Taxes circular permitted such interest to be excluded from income, if for three years such interest was not actually received - In the present case, the assessee has classified its assets on the basis of the notification issued by the Reserve Bank of India and found that the appellant under the category of non-performing assets - The issue is answered against the Revenue - Appeal was dismissed

  ---

• 2009 (11) TMI 558
  

  Penalty - search and seizure - the assessee, a partnership firm is engaged in the business as Katcha Artiya and derives income mainly from commission on sale of agricultural commodities -concealment of income - Held that: The authorized officer concluded the action taken under s. 132 of the Act without recording statement of the appellant during the course of search proceedings. No reasons are spell out, on record as to why the authorized officer did not record appellant's statement even on 13th Jan., 1995 when he resumed the proceedings under s. 132 of the Act. At least the appellant cannot be blamed for non-action on the part of the authorized officer.

  Explanation 5 to s. 271(1)(c) of the Act bestows immunity on the assessee for making a disclosure of his income in the manner as specified therein. There is, however, nothing in the hands of an assessee to compel authorized officer and require him to record a statement during the course of search. It was an act to be performed by the authorized officer as it was his legal duty to have recorded the statement, particularly when by non-recording of the statement under s. 132(4) of the Act, assessee is shown to have deprived of a benefit conveyed by Expln. 5 to s. 271(1)(c) of the Act. The expression 'may' as used in s. 132(4) of the Act in such a case needs to be read as 'shall'.

  Assessee has acted bona fidely in filing the return of his income by disclosing additional income that stood assessed without any variation. In a case like this, there being failure on the part of the authorized officer to record a statement under s. 132(4) of the Act in the course of search under s. 132 of the Act, the provision deeming concealment of the particulars of income for the purpose of imposition of penalty can neither be read in isolation nor taken as divorced from the obligatory statement to be recorded under s. 132(4) of the Act. It also cannot be read to the disadvantage of the appellant particularly when the assessee is shown to have made a substantive compliance of making the disclosure and bona fidely acting thereon as well.

  ---

• 2009 (11) TMI 556
  

  Assessment u/s 143(3) - Assessment is legal and valid - Depreciation @ 80 per cent on windmill on the ground that the assessees did not exercise option as per second proviso to r. 5(1A) before the due date of furnishing the return of income under s. 139(1) of the IT Act - The returns filed by the assessees in all these cases were processed under s. 143(1) of the IT Act originally - The cases fall under the main provisions of s. 147 and not under the proviso to s. 147 of the Act - the contention of the learned counsel for the assessee against the reopening - Issue is decided against the assessee and in favour of the Revenue

  Windmill as energy saving device being 'G' at S. No. (xiii) in Appendix providing the rate of depreciation - There is no mandatory requirement under s. 11 (1) of the Act requiring the assessee to exercise the option when he seeks relief under s. 11(1) of the Act, as it is enough for the assessee to submit a statement along with the return to exercise such option. - As per the third proviso to r. 5(1A) when an option once exercised shall be final and shall apply to all the subsequent assessment years, then for the subsequent years there is no requirement of exercising any separate option. - appeals have satisfied the requirement of second proviso to r. 5(1A) - Issue is decided in favour of assessee.

  ---

• 2009 (11) TMI 554
  

  Capital Gain - Assessee sold certain lands and it was claimed that since only an agreement to sell was entered in the year before us and the sale deeds were executed in piecemeal, therefore, capital gain tax arose from asst. yrs. 2002-03 to 2005-06 - The AO was of the view that the entire capital gain was taxable in asst. yr. 2002-03 - Above all, as per paras 6 and 8 of the sale agreement, the entire proceeds of Rs. 14 crores has to be paid to the assessee during the financial year relevant for the asst. yr. 2002-03 - Held that: transfer took place within the accounting period relevant to the assessment year under consideration as contemplated under s. 2(47)(v). Therefore, capital gain is attracted in this year only and the AO has rightly taxed the same in this year and the learned CIT(A) is neither factually nor legally correct to hold that the entire capital gain is not taxable within the year under consideration. - in view of Hon'ble Supreme Court in the case of ITO vs. Murlidhar Bhagwan Das (1964 -TMI - 49393)(SC) and on the same analogy, direction cannot be issued for subsequent years

  Deduction u/s 80HHC – Exclusion of Excise Duty of Rs. 47013935 from total turnover for the purposes of computation of deduction - Supreme Court in the case of CIT vs. Lakshmi Machine Works (2007 -TMI - 6557 SC) – Accordingly this issue was decided in the favour of assessee

  Since there was no difference of opinion on the point of taxability on capital gain in the year under consideration, the appeal of the Revenue on this point is accepted and the learned CIT(A)'s order in this regard is reversed and that of the AO order is restored – Appeal is partly allowed

  ---

• 2009 (11) TMI 553
  

  100% EOU – misdeclaration of imports – jurisdiction of Central Excise Departemetn to issue SCN - goods were imported at Bombay Port - Held that: - Department has brought to the notice of the Court Circular No. 88/98-Cus., dated 2-12-1998 issued by the Government of India, Ministry of Finance, Department of Revenue which provides for degree of supervision of the department officers on movement of raw materials, components, finished goods and manufacturing process and accounting of the same in an EOU. Clause (iii) of the said Circular is with respect to movement of non-duty paid goods, which empower the officer incharge of the sending EOU and receiving units shall watch movements and to see whether the goods have been actually received in the unit or not. - Excise Department is vested with the powers of Customs as well - It cannot be said that notices are issued without jurisdiction

  ---

• 2009 (11) TMI 552
  

  Income from house property – Whether or not the interest is deductible u/s 24(vi) - In the present case, the original loan was not taken for the purpose as prescribed under cl. (vi) of sub-s. (1) of s. 24 and the same was taken for business purposes - The undisputed fact emerging from the records is that the deceased father of the assessee took the loan of Rs. 1 crore from EBSL for business purposes by mortgaging the property in question - When the interest payable on the original loan is not allowable under s. 24(1)(vi), then the interest paid or payable on the second loan for repayment of original loan is also not allowable - the loan taken from HSBC for repayment of earlier loan does not fall under the category of loan for discharging the liability of the loan taken for acquisition or construction etc. of the property – Appeal is dismissed

  ---

• 2009 (11) TMI 551
  

  Revision – Limitation – Amount offered for assessment in year 1979-80 but not included for that year as sum already included in assessment for 1977-78 and assessment affirmed in appeal – Assessing Officer reversing right to assess income in 979-80 if sum ultimately held not taxable in 1977-78 – High Court in 1998 excluding income from assessment in 1977-78 – Consequently reassessment for 1979-80 within four years from date of judgment of High Court, not barred by limitation

  Once the assessment of the very same amount for 1977-78 is ultimately cancelled by HC in the reference case, the exclusion of the amount in the original assessment for 1979-80 becomes a mistake by virtue of the condition imposed by the Assessing Officer. - In other words, the original assessment for 1979-80 on this issue gets finalized only when this court decided the reference case for the year 1977-78. Therefore, in our view, the original assessment for 1979-80 becomes a mistaken order on account of operation of the judgment of this court with regard to the assessment of the very same amount of refund of excess power charges from the KSEB for the assessment year 1977-78. We, therefore, hold that within four years from the date of judgment of this court in the reference case for 1977-78, the Assessing Officer is entitled to revise the assessment for 1979-80 by virtue of the right reserved for revision of assessment in the original assessment which is extracted above.

  ---

• 2009 (11) TMI 550
  

  Deduction u /s 10A – Export of Computer Software - Software Technology Parks of India has expressed its inability to certify the exports of the assessee in the absence of guidelines - actual exports out of India - assessee has shifted its operations from H.R. services to software development in the subsequent assessment year thereby the possibility of recruiting and sending further candidates abroad - many of the candidates allegedly recruited had denied having been trained or offered employment abroad – Board's circular dt. 26th Sept., 2000 - Held that: - Supreme Court in the case of UCO Bank vs. CIT (1999 -TMI - 5746 - SUPREME Court). - the Board has power, inter alia, to tone down the rigour of the law and ensure a fair enforcement of its provisions, by issuing circulars in exercise of its statutory powers under s. 119 of the Act, which are binding on the authorities - the task of interpretation of the laws is the exclusive domain of the Courts. However, the Board has the statutory power under s. 119 to tone down the rigour of the law for the benefit of the assessee by issuing circulars to ensure a proper administration of the fiscal statute and such circulars would be binding on the authorities administering the Act.

  Considering this ever-expanding horizon of software products and services, the Board has been given the power to notify such products and services which in its opinion should qualify for deduction under s. 10A. In other words, this power of the Board when exercised, it will ensure proper administration of the fiscal statute as observed by the Supreme Court in UCO Bank's case. It is in this sense the learned AM has observed that the Board's circular has made the job of the AO quite simple.

  While deciding these issues, the principle of ejusdem generis will have to be kept in mind. However, so far as services which are ITE are concerned, the assessee can take the benefit of deduction only if they are notified by the Board. If this power of notifying the services was not given to the Board, principle of ejusdem generis would have applied. Since the power is exercised under the specific provision of s. 10A, it is presupposed that the services in respect of which the assessee is claiming deduction are information technology enabled (ITE). Of course, as a matter of normal precaution taken while making an assessment, the AO will satisfy himself as to whether the customised data is in electronic form or not and whether it is electronically transmitted outside India or not. If the data of recruitment and training collected by the present assessee is in a manual form and is sent to US by post, the assessee will not be entitled to deduction under s. 10A.

  When undisputedly the entire data is in electronic form, the assessee is entitled to avail benefit of exemption.

  ---

• 2009 (11) TMI 549
  

  Carry forward and Set Off - set off of unabsorbed depreciation against income under the head 'Salaries' - sub-s. (2) of s. 71 of the Act again, it clearly specifies that if the net result of computation of the income under the head 'Profits and gains of business or profession' is a loss, then a set off of such loss cannot be made against income assessable under the head salaries - AO as well as the CIT (A) was well justified in not allowing the claim of the assessee for having its unabsorbed depreciation from earlier years to be set off against salary income – appeal dismissed

  ---

• 2009 (11) TMI 548
  

  Income from House Property - there was no manufacturing activity during the relevant previous year and it had sold its machinery. The lease was for a period of five years and only the land and building were leased. Assessee had no case that such a lease was on account of a temporary lull in business or that it had resumed the possession of the property. But on the other hand the lease was continuing. This being so, the lease rental is clearly from exploitation of property which was neither a complex commercial activity nor a lease of property along with machinery, furniture and fittings. Therefore learned CIT(A) was justified in holding that such lease income had to be assessed under income from house property.

  Carry forward business losses - set off against lease rentals assessed under the head 'Income from house property – cl. (i) of sub-s. (1) of s. 72 clearly stipulates that carry forward loss of business shall be set off only against profits and gains of any business or profession carried on by an assessee. - Clearly assessee was not carrying on any business during the relevant previous year. Therefore its claim that carry forward business losses ought to have been considered for set off against lease rentals cannot be accepted.

  ---

• 2009 (11) TMI 547
  

  Search - Undisclosed income of Rs. 2213480 were found - The assessee made a statement that Rs. 5,43,000 was withdrawn from the Manacaud Tourist Home and Rs. 4,04,000 was withdrawn from the Manacaud Tourist Paradise - the theory of safe deposit of huge cash in the assessee' s house is unbelievable because the assessee maintains four bank accounts, details of which are available in the Tribunal's order - Appeal are allowed

  ---

• 2009 (11) TMI 546
  

  Waiver of pre-deposit - order traversed beyond the proposals contained in the show cause notice which had been adjudicated by the original authority - original authority vide his order denied the benefit of Notifications No. 32/04 on the sole ground that the benefit was not available to persons like the appellants who paid tax in terms of Section 68(2) of the Act – Held that: - demand not in accordance with proposal in show cause notice and prima facie not sustainable – pre-deposit waived

  ---

• 2009 (11) TMI 545
  

  Waiver of pre-deposit – GTA – assessee incurred freight for inward, transportation of materials and did not pay Service tax under GTA services - truck operator involved was a goods transport agency and was not operating its own trucks – Held that: - Tribunal held that individual truck owner not liable to service tax under GTA service - appellants have made out a prima facie case for waiver

  ---

• 2009 (11) TMI 544
  

  Commercial Training or Coaching Centre’ and ‘Convention services - funds raised for carrying on its activities through fees, donations or gifts, government grants, subscriptions, membership fees, course fees and other modes of raising money including the sale of publications towards attainment of main objects – Held that: - activities undertaken by the respondents are not covered under the category of ‘Commercial Training or Coaching Services’ and they are not liable for payment of Service Tax - appeal filed by the Revenue is devoid of merits and rejected

  ---

• 2009 (11) TMI 543
  

  Transport subsidy - deduction u/s 80IA - Income derived from industrial undertakings - Held that: - the Apex Court held that the duty draw backs could not be deemed to be profits derived from business. It is apparent that the Apex court held that it is only the profits generated i.e. operational profits which are entitled to the benefit under Section 80-1A. In Sterling Food (1999 -TMI - 5740 - SUPREME Court) the Apex Court has also laid down a test as to what is the source of income. In the present case the source of income transport subsidy is not the business of the assessee but the scheme framed by the Central Government. Applying the tests laid down in Liberty India's case (2009 -TMI - 34471 - SUPREME COURT) and Sterling Food's case (1999 -TMI - 5740 - SUPREME Court) it is apparent that the transport subsidy received by the assessee is not a profit derived from business since it is not an operational profit. - Decided in favor of revenue.

  ---

• 2009 (11) TMI 542
  

  Freight Subsidy - deduction u/s 80-IA - Held that: - the Apex Court held that the duty draw backs could not be deemed to be profits derived from business. It is apparent that the Apex court held that it is only the profits generated i.e. operational profits which are entitled to the benefit under Section 80-1A. In Sterling Food (1999 -TMI - 5740 - SUPREME Court) the Apex Court has also laid down a test as to what is the source of income. In the present case the source of income transport subsidy is not the business of the assessee but the scheme framed by the Central Government. Applying the tests laid down in Liberty India's case (2009 -TMI - 34471 - SUPREME COURT) and Sterling Food's case (1999 -TMI - 5740 - SUPREME Court) it is apparent that the transport subsidy received by the assessee is not a profit derived from business since it is not an operational profit. - Decided in favor of revenue.

  ---

1 ....181920212223242526........ 37