|
Advanced Search Options
Case Laws
Showing 61 to 80 of 1429 Records
-
2014 (12) TMI 1377
Importing drug Benfotiamine - allowing the importer to use the provision of Rule 43 of the Rules there is a possibility of spurious drugs being circulated to the human use which will be neither allowable nor permissible - HELD THAT:- Admittedly the goods have since been cleared. Under the circumstances, we find no reason to interfere with impugned judgment/order passed by the High Court.
SLP dismissed.
-
2014 (12) TMI 1376
Depreciation on computers and peripherals - @60% OR 15% - finding recorded by the Tribunal is that the laptops, printer, scanner, mouse, IBM san switches, projector, pen drive, network equipment, router pack, desktop with monitor, visual impex etc., are all computer peripherals and are accordingly covered under the head 'Computer and Peripherals', which are entitled to depreciation @ 60% - HELD THAT:- The aforesaid finding is essentially a finding of fact. We also find that the issue is covered by the decision of this Court in several cases starting from CIT versus BSES Rajdhani Power Limited [2010 (8) TMI 58 - DELHI HIGH COURT], CIT versus Citicorp Maruti Finance LImited [2010 (11) TMI 802 - DELHI HIGH COURT] and CIT versus Bonanza Portfolio Limited[2011 (8) TMI 1058 - DELHI HIGH COURT]. Assessee, who is present on advance notice, has drawn our attention to another decision in CIT versus Birlasoft Limited [2011 (12) TMI 608 - DELHI HIGH COURT] Special Leave to Appeal filed against the said decision was dismissed by order dated 14th February, 2014.
-
2014 (12) TMI 1375
Murder - dowry demands - death within four months of marriage - offences punishable Under Section 302 read with Section 34 of the Indian Penal Code, Section 304B read with Section 34 of Indian Penal Code, Section 498A of Indian Penal Code and Section 201 of Indian Penal Code - HELD THAT:- Since, the victim in the case is a married woman and the death being within seven years of marriage, apparently, the court has gone only on one tangent, to treat the same as a dowry death. No doubt, the death is in unnatural circumstances but if there are definite indications of the death being homicide, the first approach of the prosecution and the court should be to find out as to who caused that murder. Section 304B of Indian Penal Code is not a substitute for Section 302 of Indian Penal Code. The genesis of Section 304B of Indian Penal Code introduced w.e.f. 19.11.1986 as per Act 43 of 1986 relates back to the 91st Report of the Law Commission of India - However, it is generally seen that in cases where a married woman dies within seven years of marriage, otherwise than under normal circumstances, no inquiry is usually conducted to see whether there is evidence, direct or circumstantial, as to whether the offence falls Under Section 302 of Indian Penal Code. Sometimes, Section 302 of Indian Penal Code is put as an alternate charge. In cases where there is evidence, direct or circumstantial, to show that the offence falls Under Section 302 of Indian Penal Code, the trial court should frame the charge Under Section 302 of Indian Penal Code even if the police has not expressed any opinion in that regard in the report Under Section 173(2) of the Code of Criminal Procedure Section 304B of Indian Penal Code can be put as an alternate charge if the trial court so feels.
In the instant case, the prosecution has not made any attempt to explain the ante-mortem injuries which conclusively point to the cause of death as asphyxia caused by strangulation. Yet, no serious attempt, it is disturbing to note, was done to connect the murder to its author(s).
Now, the question as to why the High Court, having entered a conclusion that it is a case of murder at the hands of the Appellants, yet chose to convict them only Under Section 304B of Indian Penal Code. As we have already indicated, it could have been a case for the High Court or for that matter this Court for issuing notice for enhancement of punishment to those against whom there is evidence to connect them with the murder. The incident being of 1991, the prosecution having not chosen to link all the circumstances in a chain with no missing links to reach the irresistible and conclusive finding on involvement of the accused, the High Court would have thought it more prudent to convict the accused only Under Section 304B of Indian Penal Code. No doubt, in such a case, the High Court should not have entered a categoric finding on murder since once the court enters such a finding, the punishment can only be Under Section 302 of Indian Penal Code. Having regard to the circumstances which we have referred to above, we are of the view that though this case could have been dealt with Under Section 302 of Indian Penal Code, at this distance of time and in view of the lack of evidence on the chain of circumstances, it will not be proper for this Court to proceed Under Section 302 of Indian Penal Code for enhancement of punishment.
Now, the last question as to whether the case should be remitted back to the High Court for the purpose of Section 235 of Code of Criminal Procedure, we are of the view that in the present case, it is not necessary. The conviction is Under Section 304B Indian Penal Code. The mandatory minimum punishment is seven years. of course, there is no such minimum punishment Under Section 498A of Indian Penal Code or Section 201 of Indian Penal Code. Since the sentence in respect of offence Under Section 498A of Indian Penal Code for two years rigorous imprisonment and one year Under Section 201 of Indian Penal Code are to run concurrently, no prejudice whatsoever is caused to the two Appellants. Therefore, this is not a fit case for following the procedure Under Section 235 of Code of Criminal Procedure by this Court or for remand in that regard to the High Court.
The conviction and sentence against the third and fourth accused/Appellants, Rakesh Singh and Gyan Chandra, respectively, are set aside. The conviction and sentence as against first and second Appellants, Vijay Pal Singh and Narendra Singh, respectively, Under Section 304B of Indian Penal Code read with Section 34 of Indian Penal Code, Section 498A of Indian Penal Code and Section 201 of Indian Penal Code are upheld - Appeal allowed in part.
-
2014 (12) TMI 1373
Deduction u/s 80IB(10) - project was constructed was less than 1 acre - Claim denied on profits derived from the housing project 'Ved Vihar' - CIT(A) held that the area of the plot on which the said project was constructed was less than 1 acre and hence, the deduction u/s 80IB(10) was not allowable to the assessee in respect of the said project - HELD THAT:- Assessee had bought the TDR rights and had been sanctioned to construct 12 additional flats in the existing building Nos.A and B of the said project and where it had already completed the originally sanctioned 80 flats within the stipulated period, the assessee was eligible to the claim of deduction under section 80IB(10) of the Act.
The assessee had constructed 80 flats originally sanctioned by the commencement certificate dated 21.05.2004 before 31.03.2009 and the PMC had issued occupancy certificate on 30.03.2009 for the said 80 flats in building Nos.A and B. The assessee thus, was entitled to the claim of deduction under section 80IB(10) of the Act in respect of the said 80 flats in building Nos.A and B which were completed within the stipulated period as provided under section 80IB(10)(b) of the Act, for which an occupancy certificate was also issued by the local authority.
Merely because the assessee had received the sanction for the construction of 12 additional flats in the same building itself against the purchase of TDR rights, which admittedly, was not constructed before 31.03.2009 does not dis-entitle the assessee to the claim of deduction under section 80IB(10) of the Act in respect of the originally sanctioned 80 flats. The provisions of section 80IB(10) of the Act are benevolent and have to be interpreted in the manner which is beneficial to the assessee.
The assessee admittedly, has not claimed any deduction in respect of balance 12 flats which were not constructed before 31.03.2009. In the entirety of the above facts and circumstances, we hold that the assessee is entitled to the claim of deduction under section 80IB(10) of the Act on the completion of the project which comprised of construction of 80 flats, which was originally sanctioned vide commencement certificate dated 21.05.2004 against which, the occupancy certificate dated 30.03.2009 has been issued. Under the provisions of section 80IB(10)(a) of the Act, the assessee had to complete the construction on or before 31.03.2009 and the assessee having been issued the occupancy certificate dated 30.03.2009 had also complied with the said provisions of the said Act and was entitled to the claim of deduction under section 80IB(10) of the Act, subject to fulfillment of the basic condition that the plot area of the project was one acre or more. We have also remitted the said issue of measurement of the plot back to the file of Assessing Officer and in case, it is established that the assessee has fulfilled the said condition, wherein area of the plot on which the project has been constructed is one acre or more, then the assessee would be entitled to the claim of deduction under section 80IB(10) of the Act.
Assessee's alternate plea as to allowance of proportionate deduction on account of the flats constructed, is not maintainable in either case, where the claim of the assessee under section 80IB(10) of the Act has been found to be maintainable. However, if the assessee fails to justify the basic condition of the area of plot being one acre or more, even the alternate plea of the assessee is not maintainable. Grounds of appeal raised by the assessee are thus, allowed as indicated above.
-
2014 (12) TMI 1372
Disallowance of interest expenditure - rejection of books of accounts as the books of account is the basis for computation of book profits u/s 115JA - HELD THAT:- As Revenue Authorities as well as the order of the Tribunal in the case of Hitesh S. Mehta [2013 (10) TMI 1065 - ITAT MUMBAI] Whether the interest liabilities constitutes ascertained one or not is also linked to the issue of rejection of books of accounts as the books of account is the basis for computation of book profits u/s 115JA of the Act. This is common issue qua the issue adjudicated in the case of the Hitesh S. Mehta (supra) and matter was set aside. Respectfully following the said order the issue raised in ground no. 4 should be set aside to the files of the CIT (A) for fresh adjudication.
Charging of interest u/s 234A & 234B - HELD THAT:- As assessee submitted that the assessee being a ‘notified person’, there is no change of interest. It is his further submission that the receipts of the assessee are subjected to TDS. On the contrary, Special Counsel for the Revenue filed various decisions of the Tribunal in support of the change of interest. The judgment of the jurisdictional High Court in the case of CIT vs. Devine Holdings Pvt Ltd [2012 (4) TMI 100 - BOMBAY HIGH COURT] was relied on by the Spl. Counsel for the Revenue. During the rebuttal time, Ld Counsel submitted that this issue should also revisit the file of the AO for removal of certain inaccuracies in calculating the interest. We order accordingly. Thus, ground is allowed for statistical purposes.
-
2014 (12) TMI 1371
Classification of goods - mobile phones/cell phones - taxable at 14.5% under Schedule V of the Andhra Pradesh Value Added Tax Act, 2005 or not - validity of circular of the Commissioner of Commercial Taxes dated 20.09.2014 - HELD THAT:- The question, whether or not mobile phones/cell phones fall under Entry 39 (15) of the IV Schedule to the Act, must be examined by the assessing authority while exercising his quasi-judicial powers to pass an assessment order, and it is not for the Commissioner, (Commercial Taxes) to issue an administrative circular directing them to treat the subject goods as unclassified goods falling under Schedule V to the Act, more so in the absence of any statutory sanction for issuing such a circular. The impugned circular of the Commissioner, (Commercial Taxes) is, therefore, set aside. It is made clear that this Court has not expressed any opinion on whether the mobile phones/cell phones fall under Entry 39 (15) of the IV Schedule to the Act or whether they are liable to be treated as unclassified goods under Schedule V to the Act, or on any of the other contentions urged by the petitioner in the Writ Petitions, for these are matters which the assessing authority has to consider.
While the submission of the learned Senior Counsel has considerable force, the fact also remains that the Assistant Commissioner has invited objections from the petitioner herein. It is considered appropriate, in such circumstances, to treat the proceedings dated 06.11.2014 as a show cause notice, and to permit the petitioner to submit their objections thereto within two weeks from today - petition disposed off.
-
2014 (12) TMI 1370
Revision u/s 263 - HELD THAT:- The section starts from the wordings, “The Commissioner may call for and examine the record of any proceeding under the Act …”. Here we have to make a distinction between record and order, because, both these terms have distinct connotations. An order is the mind of the AO/Officer to incorporate or not to incorporate any point in the order, whereas the record forms the basis for formation and construction of the order. It is the record of the case, from which, one can ascertain, as to whether the AO had conducted adequate enquiry to form a legally correct inference. It is, then upto the AO/revenue authorities to incorporate his inference drawn in the order.
DR could neither elaborate nor assist us to convince us that the inference drawn by the AO, after conducting exhaustive enquiry was an erroneous view.
We also find that the CIT did not initiate the proceedings himself but initiated the proceedings on the proposal received from the AO.
This in our opinion, too is against the legislative spirit, because, the provision contemplates independent application of mind by the CIT, because the section says “Commissioner may call for and examine the records of any proceedings under the Act and if he considers …”, which means that the proposal for initiation of revision proceedings must be initiated by the CIT, because, it is the CIT who has to call for examine the record”, as held by the Coordinate Bench in the case of Ashok Kumar Shivpuri [2014 (11) TMI 1176 - ITAT MUMBAI]
Looking at the issue from this angle also, the initiation of revision proceeding become infirm and illegal. - Decided in favour of assessee.
-
2014 (12) TMI 1369
Application for de-tagging of writ petition - HELD THAT:- It has been agreed that the writ petition No. 5283 of 2011 and Misc. Bench No. 9613 of 2014 shall be placed for hearing and final disposal before the Bench assigning for hearing of PIL cases on Monday i.e. 12.01.2015.
Parties are directed to complete their pleadings by that date so that the hearing, before the assigned Bench granted roster, can proceed on 12.01.2015. In terms of the request which has been made before the Court, the hearing of the petition is peremptorily fixed on 12.01.2015. The de-tagging application has not been pressed before this Court.
-
2014 (12) TMI 1368
Levy of penalty u/s 271(1)(c) - addition being confirmed in quantum proceedings before the Tribunal - HELD THAT:- Commissioner of Income-tax (Appeals) as well as the Tribunal committed grave errors in dismissing the appeals of the assessee, inasmuch as they failed to appreciate the material on record in its proper perspective. Commissioner of Income-tax (Appeals) as well as the Tribunal ought to have appreciated that addition of certain amount is not a ground to impose penalty on the assessee. He, then, invited our attention to a decision of this court in [2014 (11) TMI 1234 - GUJARAT HIGH COURT] wherein, under more or less similar circumstances, the assessee's appeal was allowed for the assessment year 1994-95.
In the result, this appeal is allowed and the question of law raised in this appeal is answered in favour of the appellant-assessee and against the Revenue
-
2014 (12) TMI 1367
Addition to Interest Income - Additions made on account of accrued interest on loans and advances without appreciating that after the amendment to section 145 of the Act w.e.f. 1.4.1997, banks are required to follow the mercantile system of accounting.-CIT-A deleted that addition - DR submitted that the assessee has to follow the provisions of section 145 of the Act for the purposes of computation of income under the normal provisions of the Act - HELD THAT:- Respectfully following the decision of the Hon'ble High Court of Karnataka in the case of CIT V Urban Co-operative Bank [2014 (10) TMI 740 - KARNATAKA HIGH COURT] and the decision of the co-ordinate bench of this Tribunal in the assessee's own case for Assessment Year 2007-08 2014 (11) TMI 94 - ITAT BANGALORE], we decide the issue in favour of the assessee. Consequently, the grounds raised at S.Nos.3 & 4 and amended ground No.3 raised by revenue are dismissed.
Provision for Non-Performing Assets (‘NPA’) - HELD THAT:- Tribunal in the assessee's own case for Assessment Year 2007-08 [2014 (11) TMI 94 - ITAT BANGALORE], we uphold the order of the learned CIT (Appeals) in allowing the assessee's claim of deduction on account of provision for NPA.
-
2014 (12) TMI 1366
No interest in prosecuting appeal by assessee - HELD THAT:- In this case, notice fixing hearing on 28.11.2014 was sent to Assessee on 10.10.2014 through Registered A.D. but the notice was returned unserved by postal authorities with the remark “Left”. On the date of hearing i.e. on 28.11.2014 none appeared on behalf of Assessee nor any adjournment application was filed on behalf of the Assessee.
Assessee has also not placed on record its present address and this indicates that the Assessee is no more interested in prosecuting the appeal, therefore, following the decision of ITAT Delhi Bench in the case of CIT Vs Multiplan India (Pvt.) Ltd.[1991 (5) TMI 120 - ITAT DELHI-D] we dismiss the appeal of the assessee. The assessee shall however be at liberty to approach the Tribunal for recalling of this order, if prevented by sufficient cause for non-appearance on the date of hearing. Appeal of the Assessee is dismissed.
-
2014 (12) TMI 1365
Penalty levied u/s 271(1)(c) v/s 271AAA - search and seizure action carried out - As per revenue disclosure of the income was not made voluntarily by the assessee company and such income would not have been disclosed by the assessee in the absence of a search - Whether case comes under the purview of section 271AAA? - HELD THAT:- As per the mandate u/s 271AAA of the Act after search initiated u/s 132 on or after 1st June, 2007 but before 1st July, 2012 penalty was leviable u/s 271AAA of the Act. Sub-section (3) of 271AAA clearly provides that in such case no penalty u/s 271(1)(c) of the Act can be imposed.
We agree with the ld.counsel of the assessee that no penalty u/s 271(1)(c) of the Act was leviable, in as much as the case comes under the purview of section 271AAA of the Act. There is no ambiguity in this regard, and the view is also supported by the tribunal decision in the case of Cario International
[2013 (10) TMI 1543 - ITAT DELHI]- Decided in favour of assessee.
-
2014 (12) TMI 1364
Territorial Jurisdiction - Dishonor of Cheque - territorial jurisdiction to entertain and try cases filed under Section 138 of NI Act - whether Delhi Courts would have territorial jurisdiction to try the cases instituted under Section 138 of NI Act merely because the cheques in question are 'payable at par' at all branches of drawee bank being 'multi-city cheques' and one of the branches of drawee bank is situated at Delhi?
HELD THAT:- No doubt, a cheque which is made 'payable at par'/ 'multi-city' cheque can be presented at any of the branches of bank, which has been nominated as CBS branch of the drawee bank in terms of the recent guidelines issued by Reserve Bank of India vide circular dated 10.08.2012 (Annexure P-5 with the petition) . However, it is to be noticed that the said guidelines had been issued by Reserve Bank of India with altogether different object. The said object is to facilitate speedy encashment of amount against cheques more particularly in cases of out stationed cheques. It is a matter of common knowledge that in the past, there used to be considerable delay in collection of out- stationed cheques which led to number of complaints from customers and members of public at large. The average time consumed in the out-stationed cheque used to be somewhere between seven days to one month. In order to improve the service with regard to collection of out-stationed cheques, facility of cheques which are 'payable at par'/ 'multi-city cheques' was introduced in the banking system. In order to regulate the same, Reserve Bank of India also issued policy which is known as Policy on Multi-city/payable at par CTS 2010 Standard Cheques. A perusal of the said policy would reveal that certain limit has been prescribed on payment of multi-city cheques at non-home branches as mentioned therein.
There is another reason due to which the contention raised on behalf of petitioner/ complainant cannot be sustained. The cheque amount is supposed to be paid from the account of accused/respondents maintained at home branch of drawee bank. It is merely as a result of computerization of all the branches of bank, facility has been provided for encashment of cheques payable at par at any branch irrespective of the fact that account holder was not having bank account in the branch where the cheque is presented. Merely because the cheque has been presented at non-home of drawee bank, it does not in any manner, become the drawee bank for the obvious reason that before encashing the cheque payable at par, the non-home branch is still required to verify from home branch of the drawee branch as to whether or not there was any impediment in encashment of the cheque drawn at home branch.
Delhi Courts have no territorial jurisdiction to entertain and try the complaint(s) which are subject matter of the present petition - petition dismissed.
-
2014 (12) TMI 1363
Principles of Habeas Corpus - Validity of Detention Order - Section 3 (1)(a)of the National Security Act 1980 - detention order challenged mainly on the ground that the detenu was detained on the solitary ground case and the sponsoring authority has failed to place any material before the detaining authority to show that either the detenu himself or his relatives have taken any step to file bail application in a solitary ground case - Whether if the impugned order passed by the High Court is quashed, can the detenu be then asked to undergo the remaining period of detention?
HELD THAT:- The impugned order passed by the High Court quashing the order of detention on solitary ground case is erroneous in law.
The detenu was taken into custody in September, 2012, and the order of detention was passed in December, 2012. The said order of detention was finally quashed by the High Court in terms of Order dated 26.4.2013. Apparently, therefore, a long time has lapsed inasmuch as the period of detention fixed in the order of detention has already expired in April, 2014. Even if the impugned order passed by the High Court is set aside, the detenu cannot and shall not be taken into custody for serving the remaining period of detention unless there still exist materials to the satisfaction of the detaining authority for putting him under detention. In other words, initial detention order having been expired long back, it is for the detaining authority to take a decision in accordance with law.
The impugned order passed by the High Court cannot be sustained - Appeal allowed.
-
2014 (12) TMI 1362
Enforcement and execution of Foreign Award - Sections 47 and 48 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- There may not be any dispute with regard to the settled proposition of law that an agreement even if not signed by the parties can be spelt out from correspondence exchanged between the parties. However, it is the duty of the court to construe correspondence with a view to arrive at the conclusion whether there was any meeting of mind between the parties which could create a binding contract between them. It is necessary for the court to find out from the correspondence as to whether the parties were ad idem to the terms of contract.
It is equally well settled that while construing an arbitration agreement or arbitration clause, the courts have to adopt a pragmatic and not a technical approach.
An arbitration agreement even though in writing need not be signed by the parties if the record of agreement is provided by exchange of letters, telex, telegrams or other means of telecommunication. Section 7(4)(c) provides that there can be an arbitration agreement in the exchange of statements of claims and defence in which the existence of the agreement is alleged by one party and not denied by the other. If it can be prima facie shown that the parties are at ad idem, then the mere fact of one party not signing the agreement cannot absolve him from the liability under the agreement. In the present day of e-commerce, in cases of internet purchases, tele purchases, ticket booking on internet and in standard forms of contract, terms and conditions are agreed upon. In such agreements, if the identity of the parties is established, and there is a record of agreement it becomes an arbitration agreement if there is an arbitration clause showing ad idem between the parties. Therefore, signature is not a formal requirement under Section 7(4)(b) or 7(4)(c) or under Section 7(5) of the Act.
In the instant case, admittedly, the respondent issued a sales contract for supply of goods incorporating in the said sales contract various terms including hundred per cent payment against letter of credit and also providing the governing terms as “Singapore Commodity Exchange”. Though the appellant issued purchase order dated 21-8-2008 on terms and conditions set out therein but the appellant requested the respondent to change the payment terms mentioned in the sales contract. The request for amendment was accepted by the respondent.
It is true that the question in the present case is a question of competence of the arbitrator which in a sense is a question of jurisdiction, but it is not like the jurisdiction of a court, because the jurisdiction of arbitrators is derived from consent of the parties - It is clear that for construing an arbitration agreement, the intention of the parties must be looked into. The materials on record which have been discussed hereinabove make it very clear that the appellant was prima facie acting pursuant to the sale contract issued by the respondent. So, it is not very material whether it was signed by the second respondent or not.
There are no valid ground to oppose the enforcement of the foreign award. The High Court in the impugned order has rightly held that the foreign award is enforceable under Part II and is binding for all purposes on the parties - appeal dismissed.
-
2014 (12) TMI 1361
Unaccounted income deposited in undisclosed bank account - Whether only peak amount worked out, in accordance with accepted principles of accountancy, should have been added as income in the hands of the assessee - HELD THAT:- We are unable to accept the stand of the Revenue that the assessee should be put to prove that the there was a direct nexus between the debit and credit entries in the bank account of the assessee with ICICI Bank.
Assessee claimed that the peak amount in this case, with regard to ICICI Bank comes to ₹ 2,97,297/-. In these facts of the case, we restore the issue in the grounds of the appeal of the assessee to the file of the AO with direction to make the addition of only the peak amount in the bank account of the assessee with ICICI Bank. The claim of the assessee that the peak amount comes to ₹ 2,97,297/- should be verified by the AO and the after verification, the correct figure of peak amount may be added as income in the hands of the assessee. We direct accordingly, and the ground of the appeal of the assessee is partly allowed.
-
2014 (12) TMI 1360
Deduction u/s 80IA(4) - generation of power for captive consumption - HELD THAT:- Appeal ADMITTED to consider the following questions of law;
“(i) Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in upholding the decision of CIT(A) that deduction u/s 80IA(4) is allowable to the assessee for generation of power for captive consumption?”
(ii) Whether the Tribunal was right in law in allowing the assessee’s claim of deduction of ₹ 1954 Crores u/s 80IA(4) of the I.T. Act, 1961, when the assessee had adopted rate of power generation at ₹ 4.73 per unit, rate on which the GEB supplied power to its consumers, ignoring the rate of ₹ 2.36 per unit, the rate on which power generating company supplied its power to GEB?
(iii) Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in holding that adjustment made on account of disallowance u/s 14A of the Act in computation of Book Profit u/s 115JB of the Act is not as per law without appreciating that the amount disallowable under section 14A is covered under clause (f) of Explanation 1 to section 115JB(2) and, thus, said amount has to be added back while computing amount of book profits?
(iv) Whether that ITAT was justified in law in not following the decision of its own division bench on this issue in the case of Gujarat State Fertilizers and Chemicals Ltd.[ 2013 (1) TMI 135 - ITAT AHMEDABAD ] which was also confirmed by the Hon’ble Gujarat High Court vide order [2013 (6) TMI 776 - GUJARAT HIGH COURT]?”
-
2014 (12) TMI 1359
TDS u/s 194J - payments to the stockiests - order u/s 201(1) read with section 201(1A) - Whether relationship between the assessee and the stockiest is of “principal to principal‟ basis ? - HELD THAT:- As decided in PIRAMAL HEALTHCARE LTD. [2012 (5) TMI 203 - ITAT MUMBAI] relationship between the assessee and the stockiests is in the nature of “principal to principal‟ relationship and not that the appointment of the Manager by the assessee. The same was answered by the assessee and against the Revenue. It is the finding of the Hon‟ble High Court [2015 (1) TMI 873 - BOMBAY HIGH COURT] .that the provisions of section 194J of the Act are not to be invoked with assessee is not making any payments to the stockiests. When the provisions of section 115J are not attracted by such transactions, it is the finding of the Hon‟ble High Court that the question is to whether there is a relationship of “principal to principal‟ or relationship of Manager becomes academic.
TDS u/s 194J to the payments made by the assessee towards “Director‟s Sitting Fees" - Non deduction of tds - HELD THAT:-Provisions of section 194J of the Act need not be invoked in respect of the payments made to the Director‟s sitting fees considering the newly inserted provisions of section 194J(1)(ba) of the Act. Accordingly, we grant relief to the assessee in respect of ground no.2.
-
2014 (12) TMI 1358
Condonation of procedural lapse of supplying goods to SEZ only under ARE-1 without Bills of Exports - advance authorization scheme - deemed exports - According to the petitioner, the products supplied to the SEZ would qualify as exports and would discharge the petitioner from its export obligations against the Advance Authorizations - HELD THAT:- The petition is disposed of with liberty to the petitioner to make a fresh representation alongwith all documents relied upon by the petitioner within a period of two weeks from today. It is directed that if such representation is made, the DGFT shall consider and dispose of the same within a period of eight weeks after affording the petitioner an opportunity of being heard.
-
2014 (12) TMI 1357
Disallowance of Lease Equalization Reserve - Disallowance of expenditure it is not a prescribed expenditure u/s 30 to 37 - HELD THAT:- We have gone through the order passed by the Tribunal for AY 1998-99, wherein the Tribunal has extracted the observations made by the co-ordinate bench in the order passed for AY 1994-95 to 1997-98, wherein the Tribunal has explained the concept of Lease equalization charge and accordingly restored the matter back to the file of the assessing officer for carrying out fresh examination. Consistent with the view taken by the Tribunal in the earlier years, we set aside the orders of Ld CIT(A) in this year and restore the same to the file of the assessing officer with the direction to decide the issue afresh in the light of discussions made by the Tribunal in AY 1994-95 to 1997-98.
MAT Computation - addition of “Provision for Non-Performing Assets” while computing the book profit u/s 115JB - assessing officer added the same by treating as “unascertained liability” - HELD THAT:- We notice that the Finance Act 2009 has made amendment in sec. 115JB of the Act with retrospective effect from 1.4.2001 by inserting the following item to be added to the book profit:- “(i) the amount or amounts set aside as provision for diminution in the value of any asset.”
Hence, the provision for non-performing assets”, being a provision for diminution in the value of asset, the same is required to be added to the book profits. Accordingly, we confirm the order of Ld CIT(A) on this issue.
Addition of “Provision for diminution in the value securities” - HELD THAT:- We notice that the claim of the assessee that the securities are forming part of stock in trade has not been examined by the tax authorities. Further the claim of the assessee that it was following the system of valuing the securities under the principle, viz., “cost or market value whichever is lower” also requires examination at the end of the assessing officer. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the assessing officer to examine the claim of the assessee afresh and take appropriate decision in accordance with the law.
Expenditure incurred on clubs - Allowable revenue expenditure u/s 37 - HELD THAT:- A.R submitted that this issue is now covered by the decision of Hon’ble Supreme Court in the case of CIT Vs. United Glass Mfg. Co. Ltd [2012 (9) TMI 914 - SUPREME COURT] as held that the club membership fees paid for employees is allowable u/s 37 of the Act. Hence, we are of the view this issue requires fresh examination in the light of decision rendered. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the AO for fresh consideration.
Claim of depreciation made on leased assets - HELD THAT:- Tribunal has allowed the claim of depreciation on leased assets by following the decision of Hon’ble Supreme Court in the case of ICDS Limited [2013 (1) TMI 344 - SUPREME COURT] There should not be any dispute that the assessee is entitled to depreciation, if it has leased out the assets under operating lease. AO had taken the view that the lease transactions entered into by the assessee were not genuine lease transactions. CIT(A) has come to the conclusion that the lease transactions were genuine in nature and he held so by placing reliance on the decision rendered in the preceding years. It was submitted that the lease transactions has been accepted by the Tribunal in the earlier years and accordingly depreciation was allowed. Accordingly, consistent with the view taken in the earlier years, we uphold the order of Ld CIT(A) on this issue.
........
|
9911796707
