Commissioner (Appeals) has to give convincing reasoning while upholding order of Assessing Officer

IT: Commissioner (Appeals) has to give convincing reasoning while upholding order of Assessing Officer
IT: Where assessee did not continue as small scale industrial undertaking during assessment year under consideration, it was not entitled to claim deduction under section 80-IB
IT: Where depreciation and loss prior to initial year had already been set off against other business income of respective years, there was no need for notionally carrying forward and setting off of same depreciation and loss in computing deduction under section 80-I
IT: Benefit of weighted deduction on in-house Research and Development expenditure is allowed only from year in which assessee has made application and entered into an agreement with Department of Science and Industrial Research
■■■
[2014] 51 taxmann.com 245 (Pune - Trib.)
IN THE ITAT PUNE BENCH 'A'
Advik Hi tech (P.) Ltd.
v.
Additional Commissioner of Income-tax, Range-8, Pune*
SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER
AND R.K. PANDA, ACCOUNTANT MEMBER
IT APPEAL NOS. 1743 & 1744, 1706 & 2041 (PN.) OF 2012
[ASSESSMENT YEARS 2008-09 & 2009-10]
JULY  30, 2014
I. Section 28(i), read with section 45 of the Income-tax Act, 1961 - Business income - Chargeable as (Business income v. Capital gains - Share transactions) - Assessment year 2008-09 - Assessee Company engaged in manufacturing of auto components earned a profit from purchase and sale of shares and showed same as short-term capital gain - Assessing Officer treated same as business income and Commissioner (Appeals) confirmed same - Whether in view of assessee's own case for assessment year 2007-08 wherein identical issue was pending disposal, matter was to be restored to file of Commissioner (Appeals) for fresh adjudication - Held, yes [Para 2.3] [Matter remanded]
II. Section 80-IB of the Income-tax Act, 1961 - Deductions - Profits and gains from industrial undertakings other than infrastructure development undertakings (Small scale industrial undertaking) - Assessment year 2008-09 - Whether in order to claim deduction under section 80-IB(3)(ii), eligibility of being SSI unit continues for entire period of claim and not only in initial assessment year - Held, yes - Whether, therefore, Commissioner (Appeals) was justified in rejecting assessee's claim for deduction under section 80-IB where assessee did not qualify to be a small scale industrial undertaking in previous year relevant to year under consideration as value of its plant and machinery exceeded Rs. 3 crores - Held, yes [Para 5.2] [In favour of revenue]

Where appeal was filed before wrong forum within stipulated time leading to delay in filing appeal before proper forum, said delay must be condoned

Service Tax : Where appeal was filed before wrong forum within stipulated time leading to delay in filing appeal before proper forum, said delay must be condoned
■■■
[2014] 51 taxmann.com 179 (Kolkata - CESTAT)
CESTAT, KOLKATA BENCH
Horticulture Development Foundation
v.
Commissioner of Service Tax-Kolkata*
DR. D.M. MISRA, JUDICIAL MEMBER
ORDER NO. FO/A/75534/2014
STAY PETITION NO. 241/2012
SERVICE TAX APPEAL NO. 130/2012
SEPTEMBER  5, 2014
Section 85, of the Finance Act, 1994, read with sections 35 and 35A, of the Central Excise Act, 1944 and sections 128 and 128A, of the Customs Act, 1962 - Appeals - Condonation of Delay - Commissioner (Appeals) - Assessee filed appeal against adjudication order before Assistant Commissioner of Service Tax within prescribed period instead of before Commissioner (Appeals) - Later, assessee filed appeal before Commissioner (Appeals) claiming that delay occurred on account of filing of appeal before wrong forum was condonable - Commissioner (Appeals) held that Preamble of impugned order stated that appeal would lie before Commissioner (Appeals); in spite thereof, assessee filed appeal before wrong forum and hence, delay was not condonable - HELD : Filing of appeal before wrong forum within stipulated time but delay in filing appeal before proper forum, deserves to be condoned - Hence, delay in question was condoned and appeal was remitted back to Commissioner (Appeals) for consideration afresh [Para 7] [In favour of assessee]

Income from house property and not a business income

IT: Income derived by assessee from leasing out of its building simplicitor was because of ownership of building and not from personal exertion; hence it was an income from house property and not a business income
■■■
[2014] 50 taxmann.com 422 (Allahabad)
HIGH COURT OF ALLAHABAD
Hotel Arti Delux (P.) Ltd.
v.
Assistant Commissioner of Income-tax, Circle 2(1), Kanpur*
TARUN AGARWALA AND DR. SATISH CHANDRA, JJ.
IT APPEAL NO. 493 OF 2005†
SEPTEMBER  9, 2014
Section 22, read with section 28(i), of the Income-tax Act, 1961 - Income from house property - Chargeable as (Rental income) - Assessment year 1990-91 - Assessee leased out its building to a nursing home and showed rental receipt from building as business income - Whether building which was leased out by assessee was nothing else but a building simplicitor and was not a building, which was equipped with specialized plant and machinery - Held, yes - Whether, since income derived by assessee was from ownership of building and not from personal exertion, income derived by assessee from leasing out of its property was an income from house property and not a business income - Held, yes 

Reassessment proceedings could not be initiated after expiry of four years

IT : Reassessment proceedings could not be initiated after expiry of four years from relevant assessment year merely on ground that in view of retrospective amendment to provisions of section 80-IA, assessee was not entitled to deduction granted under said section earlier
■■■
[2014] 51 taxmann.com 369 (SC)
SUPREME COURT OF INDIA
Commissioner of Income-tax
v.
Avadh Transformers (P.) Ltd.*
R. M. LODHA AND KURIAN JOSEPH, JJ.
SPECIAL LEAVE TO APPEAL (CIVIL) NO. 21477 OF 2013†
APRIL  11, 2014
Section 80-IA, read with section 147 of the Income-tax Act, 1961 - Deductions - Profit and gains from infrastructure undertaking (Reassessment) - Assessment year 2006-07 - High Court by impugned order held that reassessment proceedings could not be initiated after expiry of four years from relevant assessment year merely on ground that in view of retrospective amendment to provisions of section 80-IA, assessee was not entitled to deduction granted under said section earlier - Whether Special Leave Petition filed against impugned order was to be dismissed - Held, yes [In favour of assessee]
--

Claim for deduction under section 80-IB(10)

IT: Where Assessing Officer allowed assessee's claim for deduction under section 80-IB(10) after making detailed enquiries, he could not initiate reassessment proceedings taking a view that said claim was wrongly allowed
■■■
[2014] 51 taxmann.com 375 (SC)
SUPREME COURT OF INDIA
Assistant, Commissioner of Income-tax
v.
Sarla Raj Kumar Varma*
MADAN B. LOKUR AND C. NAGAPPAN, JJ.
SCA NO. 125 OF 2014†
OCTOBER  8, 2014
Section 80-IB, read with section 147, of the Income-tax Act, 1961 - Deductions - Profits and gains from industrial undertakings other than infrastructure undertakings (Housing project) - Assessment year 2009-10 - Reassessment proceedings were initiated against assessee taking a view that assessee's claim for deduction under section 80-IB(10) was wrongly allowed - High Court held that since Assessing Officer allowed assessee's claim for deduction under section 80-IB(10) after making detailed enquiries, he could not initiate reassessment proceedings on basis of same material - Whether special leave petition filed against impugned order was to be dismissed - Held, yes [In favour of assessee]