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Showing 501 to 520 of 548 Records

• 2012 (2) TMI 97
  

  Option u/s 23(4) to choose one property as self-occupied - assessee in possession of 3 properties out of which one is partly let out and partly self occupied – property at Malviya Nagar, Delhi stated to be self-occupied in ROI – assessee during assessment proceedings exercised the option u/s 23(4) in favor of property at GK-1 and offered Malviya nagar property as deemed to be let out – Revenue contending otherwise - Held that:- In addition to aforesaid, even Palam Vihar property is stated to be partly let out and partly self occupied in ROI. We find that neither the AO nor CIT(A) recorded any findings as to which are the properties in the instant case which fall within the purview of s. 23(2) In these circumstances, we restore the matter to the file of the AO with the directions to identify the properties which fall within the purview of s. 23(2) and allow the assessee option mentioned in s.23(4) - Decided in favor of assessee for statistical purposes.

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• 2012 (2) TMI 96
  

  Penalty u/s 271(1)(c) – dis-allowance u/s 40A(2)(b) on estimate basis – Held that:- Assessee has made complete disclosure of payment of commission in its relevant tax audit reports. However, Revenue without pointing out any material to show that no such payment was made or the same was denied by the recipient, while invoking the provisions of section 40A(2)(b) allowed the payment of commission on estimate basis at the rate of 5% as against 12.5% claimed by the assessee. Thus, there is no dispute that the dis-allowance of commission is purely on estimate basis. Therefore, we hold that there is no concealment on the part of the assessee which may call for levy of penalty u/s 271(1)(c) and accordingly the penalty stands deleted. See CIT vs. Reliance Petroproducts Pvt. Ltd. (2010 - TMI - 75701 - Supreme Court) – Decided in favor of assessee.

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• 2012 (2) TMI 95
  

  Best judgment assessment - CIT (A) while upholding various dis-allowances gave partial relief – deleted dis-allowance made on account of unexplained credit – Revenue contending that CIT(A) admitted the additional evidence in contravention of Rule 46A – assessee contesting upholding of various dis-allowances – A.Y. 05-06 - Held that:- When the relevant books of accounts/vouchers have not been produced before the AO or the CIT(A) nor the relevant evidence has been examined by these authorities, we consider it fair and appropriate to vacate the findings of CIT(A) and restore the matter to the file of the AO to decide afresh.

  Further with regard to transfer of amount from share application money to general account not categorized by CIT(A) as cessation of liability in A.Y. 07-08 – Held that:- Since the Revenue have not placed before us any material controverting the aforesaid findings of facts recorded by the CIT(A) so as to enable us to take a different view in the matter therefore, appeal of revenue is dismissed – Decided in favor of Revenue & assessee for statistical purposes.

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• 2012 (2) TMI 87
  

  Expenses in relation to income not forming part of total income – section 14A – dis-allowance - dividend income earned during the year – assessee submitted that no expenses were incurred to earn the dividend income – A.Y. 06-07 - Held that:- A.O. is duty bound to determine the expenditure which has been incurred in relation to exempt income on reasonable basis. See Godrej & Boyce Mfg. Co. Ltd vs DCIT (2010 (8) TMI 77 - BOMBAY HIGH COURT). Therefore, matter is send back to the file of the A.O. to decide the same afresh - Decided partly in favor of assessee for statistical purposes.

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• 2012 (2) TMI 86
  

  Plea for condonation of delay – appeal filed before Tribunal - ex-parte order framed u/s 144 by A.O. confirmed by CIT - non-vigilance of AR - Held that:- When a person has a good case on merits, defeat of his claim on technical plea of limitation would ultimately lead to injustice. In the present case, AR was not vigilant and was not attending the proceedings since starting either before the AO or before the CIT (A) and neither filed the appeal against the order of the CIT(A) before the Tribunal, whereas all the papers were handed over to him in time.Therefore, we hold that there was reasonable and sufficient cause in not filing the appeal before the Tribunal. Accordingly, we condone the delay and remit the matter back to the file of the AO with the direction to pass order afresh. See The Collector, Land Acquisition vs. MST Katiji (1987 - TMI - 40082 - Supreme Court)– Decided in favor of assessee.

  Similar facts are involved in the case of Sh. Lala Ram Choudhary. Hence the same is also remitted back to file of A.O.

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• 2012 (2) TMI 85
  

  Reasons to believe under 147 - Provisions other than ascertained liabilities not added while computing Book profit under 115JB - Invoking 148 after 4 years requires failure on part of assessee to disclose all material fact - Held That:- When there was no such failure on part of assessee revocation under 148 not justified.

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• 2012 (2) TMI 84
  

  Deemed Dividends - 70 laks was advanced to respondent/assessee - Revenue claimed respondent was registered holder thus beneficial ownership is inconsequential - Held That:- In view of Bhaumik Colour Lab Pvt. Ltd (2008 -TMI - 59371 - ITAT BOMBAY-E) for applicability of deemed dividends beneficial ownership to be established.

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• 2012 (2) TMI 83
  

  Power of commissioner to invoke section 263 - deduction u/s 54F was wrongly allowed – original assessment order framed u/s 147 r.w.s. 143(3) – capital gains – agricultural land sold in A.Y. 06-07 - amount deposited for purchase of plot before filing the return - ownership of the plot not transferred to the assessee by colonizer - non-construction of residential house – Held that:- Till the hearing of this appeal, no construction of the new asset has yet started, therefore the benefit of the exemption provided u/s 54F is not available to the assessee. The Legislation has specifically provided the period of three years, therefore, it cannot be enlarged to indefinite period even if non-construction is due to failure on part of colonizer to hand over the plot. Moreover, stipulated period of three years had already expired when the revisional jurisdiction by CIT was invoked. See CIT v. V. Pradeep Kumar (2006 - TMI - 13259 - Madras High Court), Usha Gupta v. CIT (2005 - TMI - 13751 - Rajasthan High Court)

  Further, allowing unproved deduction/exemption renders the order of A.O. both erroneous and prejudicial to the interest of Revenue therefore, we find justification in invoking the revisional jurisdictional u/s 263 by CIT – Decided against the assessee.

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• 2012 (2) TMI 82
  

  Cost of Repair/ Reconstruction on tenanted price - Capital Expenditure OR Revenue Expenditure - Held That:- Appeal relates prior to the insertion of the Explanation to Section 30 by the Finance Act of 2003 with effect from 1 April 2004 in this view amount shall be admissible as revenue expenditure.

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• 2012 (2) TMI 81
  

  Unclaimed credit balances written back - Amount represented small credit balances out of advance received from supplier which could not be adjusted - Amount written back as period of limitation had expired - Salary, wages & Bonus amounting to Rs 59,088 - Explanation 1 to Section 41(1) writing of liability will amount to cessation of liability thus taxable however explanation was inserted from 1st April 97 and have prospective effect and not apply to A/Y 95-96.

  For Supplier Credit balance - same reasoning is applicable for the year under consideration.

  Uncashed Cheques amounting to Rs 1,97,758 - there was no claim for deduction in any of the earlier years and, therefore, the amount cannot be added under Section 41(1) of the Act.

  Unclaimed Dividend - Dividend is appropriation - If it is not allowable as deduction excess cannot be taxed.

  Provision for doubtful debts - Provision was never allowed as deduction thus cannot be taxed under 41(1)

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• 2012 (2) TMI 80
  

  Non-deduction of tax at source - dairy business - milk sold to concessionaires – Revenue contending concessionaires to be agents and assessed difference between MRP of the product & purchase price to be commission – TDS u/s 194H - Held that:- In present case, concessionaire becomes the owner of the milk and the products on taking delivery of the same from the Dairy. He thus purchased the milk and the products from the Dairy and sold them at the MRP. The difference between the MRP and the price which he pays to the Dairy is his income from business. It cannot be categorized as commission.

  The Dairy may have fixed the MRP but ownership of products vests and is transferred to the concessionaires. The sale is subject to conditions, and stipulations. This by itself does not show and establish principal and agent relationship. The supervision and control required in case of agency is missing. It is irrelevant that the concessionaires were operating from the booths owned by the Dairy and were also using the equipment and furniture provided by the Dairy – Decided against the Revenue.

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• 2012 (2) TMI 79
  
  Issues:
  Release of goods on payment of differential duty and furnishing personal bond, confirmation of previous orders by Division Bench, challenge to previous order, validity of contract for importing apples, direction to assessing authority for assessment.
  
  Release of Goods on Payment of Differential Duty and Furnishing Personal Bond:
  The petitioner proposed to pay 30% of the differential duty for the release of the goods and to furnish a personal bond for the balance amount. The petitioner cited previous orders by the Court where similar conditions were imposed for the release of goods. The Court, after considering submissions from both parties, directed the respondents to release the goods upon the petitioner fulfilling the specified conditions. The petitioner was also required to cooperate fully in any customs duty assessment proceedings initiated by the respondents.
  
  Confirmation of Previous Orders by Division Bench and Challenge to Previous Order:
  The respondents referred to a previous order dated 24.3.2011, directing the release of goods upon payment of 50% of the differential duty and furnishing a personal bond for the balance amount. The petitioner had challenged this order in W.A.No.599 of 2011. However, the First Bench of the Court confirmed the order and directed the assessing authority to conclude the assessment expeditiously within a specified time frame.
  
  Validity of Contract for Importing Apples:
  The petitioner argued that the contract for importing apples from the United States of America had been upheld by a previous order in Appeal dated 27.9.2011 by the Commissioner of Customs (Appeals). The order cited a judgment by the Apex Court in a similar case, emphasizing that in the absence of any evidence of overpayment or extra commercial considerations influencing the price, the transaction value cannot be rejected as per valuation rules. The Court noted the validity of the contract and directed the respondents to release the goods based on the conditions specified.
  
  Direction to Assessing Authority for Assessment:
  The Court directed the assessing authority to consider the claims made by the petitioner, proceed with the assessment, and pass an appropriate order expeditiously within eight weeks from the date of receipt of the Court's order. The writ petition was ordered accordingly, with no costs imposed on either party.

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• 2012 (2) TMI 78
  

  Interest on Refund - Interest of ₹ 1.36 Crores rejected on the ground as was not admissible under Section 11BB of Excise Act - Date of refund - Held That:- In view of Ranbaxy laboratories (2011 -TMI - 206520 - Supreme Court of India), section 11BB commences from the expiry of three months from the date of receipt of the application for refund under Section 11B(1) and not on the expiry of the said period from the date on which an order for refund is made.

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• 2012 (2) TMI 77
  

  Non-deduction of tax at source from bank guarantee commission - stock broking business – bank guarantees furnished in lieu of margin deposits, to various agencies, such as BSE and NSE – Revenue contended that tax to be withhold u/s 194 – interest imposed u/s 201(1A) – Held that:- Principal agent relationship is a sine qua non for invoking the provisions of Section 194 H. While it is termed as 'guarantee commission', it is not in the nature of 'commission' as it is understood in common business parlance and in the context of the section 194H. This transaction, in our considered view, is not a transaction between principal and agent so as to attract the tax deduction requirements u/s 194H. As we have held that the assessee was not required to deduct tax at source u/s 194 H, the question of levy of interest u/s 201(1A) cannot arise – Decided in favor of assessee.

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• 2012 (2) TMI 76
  

  2G Spectrum Scam – PIL for appointment of a group of independent persons to assist the Court in monitoring the investigation being carried out by the CBI, the Enforcement Directorate and the Income Tax Department in '2G case' – Held that:- Though power of superintendence cannot be used by the Central Vigilance Commission for interfering with the manner and method of investigation or consideration of any case by the CBI in a particular manner. However, keeping in view the nature of the case and involvement of large number of influential persons, we feel that it will be appropriate to require the Central Vigilance Commissioner and the Senior Vigilance Commissioner appointed u/s 3(2) of the Central Vigilance Commission Act, 2003 to render assistance to the Court in effectively monitoring the further investigation of the case. This course will be perfectly in tune with the mandate of Section 8(1) of the 2003 Act. Directions for compliance of aforesaid are issued – Decided in favor of petitioner.

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• 2012 (2) TMI 75
  

  Off-shore supplies & services - applicant being Hong Kong company – project awarded by Petronet - consortium formed with an Indian company(CINDA), to execute the project - CTCI responsible for off-shore supplies & services & CINDA for onshore supplies - Revenue contending that the consortium formed by CTCI and CINDA is an AOP and payments made by Petronet should be taxed in India – Held that:- All that is income in the transaction for supplies has not arisen in India as the right, title, payments, etc, in the supplies have passed on to Petronet which is importing these supplies outside India. The ownership vests with Petronet who imported these supplies. Further, all such issues, including whether the contract is composite and indivisible, have been addressed in the case of Ishikawajima Harima Heavy Industry (2007 - TMI - 3467 - Supreme Court ). Therefore, amount received/receivable by applicant for offshore supplies is not liable to tax in India under the provisions of the Act, in view of the decision of Supreme Court in IHHI - Decided in favor of assessee.

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• 2012 (2) TMI 74
  

  Off- shore supply contract – India-China Double Taxation Avoidance Convention - applicant being company of China – contract for supply of equipment to Indian company - Indian company, defined as the 'owner' in the contract - passing of the title to the equipment outside the country - title passed at the port of loading : Shanghai - Bill of Lading, Bill of Entry shows owner to be Indian company – Transit insurance in name of owner - taxability of the payment received under the contract – Revenue contending that pre-commissioning and commissioning activities must be taken as one and indivisible and the liability to tax should be determined on that basis - Held that:- On perusal of aforesaid, it is found that this would be an offshore sale in the light of the decision in case of Ishikawajima-Harima Heavy Industries Ltd (2007 - TMI - 3467 - Supreme Court ) and hence not liable to tax in India. We clarify that the ruling relates only to off-shore supplies – Decided in favor of assessee.

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• 2012 (2) TMI 73
  

  Condonation of Delay - Period of limitation – Tribunal dismissed the appeal against order of CIT(A) dated 16.03.07 passed u/s 263 – delay of 1049 days – CIT(A) restored the matter to A.O. vide its order dated 16.03.07 – A.O. passed order on 31.08.07 - Held that:- There is no perversity in the Tribunal's order dismissing the appeal on the ground that several proceedings have taken place pursuant to the said order of CIT (A) which had become final – Decided against the assessee.

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• 2012 (2) TMI 72
  

  Nature of income – capital gain vs business income - purchase & sale of shares – A.Y. 07-08 - Held that:- Issue was covered in favour of the assessee by the decision of the Tribunal in A.Y. 2005-06 and 2006-07 in which the Tribunal on identical facts accepted the claim of the assessee that it was an investor. Merely on the ground that volume of transaction was heavy and capital gain earned was large, it could not be held that the assessee was trading in shares. Hence, order of CIT(A) accepting the claim of the assessee as capital gain is upheld – Decided against the Revenue.

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• 2012 (2) TMI 71
  

  Penalty u/s 271(1)(c) – revised return filed - deduction u/s 80G claimed on property gifted to Trust – deduction disallowed - Held that:- The ratio of the decision of Supreme Court in case of CIT Vs. Reliance Petro Products Pvt. Ltd.(2010 (3) TMI 80 - SUPREME COURT) is squarely applicable to the facts and circumstances of the present case as assessee has not furnished any inaccurate particulars. She filed certificate for donation of the property to the Trust which is registered u/s 80G. However, the claim was denied because of the reason that deduction u/s 80G is not allowable on fixed assets. This was a bonafide mistake and nothing else. If wrong claim was to be made then assessee could have claimed in the original return. Therefore, penalty levied was not justified – Decided in favor of assessee.

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