Kotak Securities Limited vs. DCIT (ITAT Mumbai) – When we look at the connotations of expression ‘commission or brokerage’ in its cognate sense, as in the light of the principle of noscitur a sociis as we are obliged to, in our considered view, scope of expression ‘commission’, for this purpose, will be confined to ‘an allowance, recompense or reward made to agents, factors and brokers and others for effecting sales and carrying out business transactions’ and shall not extend to the payments, such as ‘bank guarantee commission’, which are in the nature of fees for services rendered or product offered by the recipient of such payments on principal to principal basis.
ACIT vs. DICGC Ltd (ITAT Mumbai) – Sec.201 deals with the mode of recovery of taxes and once tax due has already been paid then the same demand cannot be enforced again. However, sec.40[a][ia] deals with the disallowance of expenditure itself. Therefore, merely by invoking the Heydon’s principle the statutory provisions cannot be rendered redundant. Therefore, we are of the opinion that once tax has not been deducted and even if such tax has been paid by the deductee, disallowance u/s.40[a][ia] can still be made.
ADIT Vs. Ballast Nadam Dredging (ITAT Mumbai)- It was held that retention money withheld by the contractee pending completion of contract work does not accrue to the assessee/contractor in the year in which the amount is retained. We also observe that similar issue was also considered by ITAT in the case of Spirax Marshall Ltd (supra) wherein it was held that receipt of retention money against furnishing bank guarantee cannot partake character of income since it cannot be apportioned until guarantee period was over. The retention money may be received by the assessee; it cannot be apportioned until expiry of warranty period. We observe that the Hon’ble Allahabad High Court in the case of CIT vs. Yatindra and Co. (supra) held that an amount received by assessee against bank guarantee was not accrued to the assessee during the year as no absolute right to receive the amount at that stage vested.
ACIT Vs. Mrs. Rajpal Sethi (ITAT Mumbai) – AO in the case of assessee while making the assessment for the assessment year 2004-05 has accepted the short term capital gain and the long term capital gain on sale of shares vide order dated 22.12.2006 passed u/s 143(3) of the Act, therefore, we are of the view that the assessee’s case is squarely covered in favour of the assessee by the decision of the Tribunal in the case of Shri Satpal Singh Sethi (supra). This being so and in the absence of any distinguishing features or contrary material brought on record by the Revenue, we respectfully following the consistent view of the Tribunal and the ratio of the decision of the Hon’ble Jurisdictional High Court in the aforementioned cases, hold that the ld. CIT(A) was fully justified in directing the AO to accept the appellant’s claim of short term capital gain and long term capital gain on share transactions, where the delivery has been taken or given and Security Transaction Tax has been paid.
Kushal K. Bangia Vs. ITO (ITAT Mumbai)- In principle, though the scope of ‘income’ in s. 2(24) is very wide, a capital receipt is not chargeable to tax as income unless there is a specific provision to that effect. As the residential flat owned by the assessee in the society’s building was a capital asset in his hands, the compensation was a capital receipt. The department’s argument that the cash compensation was a ‘share in profits earned by the developer’ is not acceptable because it proceeds on the fallacy that the nature of payment in the hands of the payer determines the nature in the hands of the recipient. However, as the said receipt reduced the cost of acquisition of the new flat, it had to be taken into when computing the gains from a transfer thereof in the future
DCIT Vs. R. R.Builders (ITAT Mumbai)- There is no dispute that the partners of the assessee firm are also partners of the firm M/s Adarsh Octroi Services, Mumbai. We further find that the amount of Rs. 5,25,000/- each was withdrawn by Shri Rafique Shakur Shekhani and Shri Sayed Rasul Shaikh partners of the firm on 15.4.2005 from their partnership firm M/s M/s Adarsh Octroi Services, Mumbai as per copy of cash book filed and the same amount was deposited by both the partners with the assessee firm on the same date.
Rujuta N. Shah V/s ITO (ITAT Mumbai)- At the time of hearing, the ld. counsel for the assessee submits that no proper and due opportunity was not provided to the assessee by the ld. CIT(A) inasmuch as, the ld. CIT(A) has also not considered the paper book filed by the assessee, while deciding the appeal ex-parte, therefore, in the interest of justice the order passed by the ld. CIT(A) be set aside to his file to decide the same afresh which was not objected to by the ld. DR.
Shri Dev Ashok Karvat Vs. DCIT (ITAT Mumbai)- In Mr. Chetan R.Parikh V/s ITO in ITA No. 1569/Mum/2010 (AY: 2006- 07) dated 25.05.2011, it has been held by the Tribunal that the units of mutual funds are not generally a trading instrument because of comparatively low fluctuation and number of transactions in units are also not large.
Classic Shares & Stock Brooking Services Limited Vs. ACIT (ITAT Mumbai)- This appeal was fixed for hearing on 16.01.2012. However, despite notice, none appeared on behalf of the assessee nor has it moved any application for adjournment. It is, therefore, presumed that the assessee is not interested in prosecuting its appeal. Accordingly, by applying the ratio laid down by the ITAT Delhi Bench in the case of CIT Vs. Multiplan India (P.) Ltd. [(1991) 38 ITD 320], we dismiss this appeal filed by the Appellant-assessee as not maintainable.
Taurian Iron & Steel Co. Pvt. Ltd. Vs. Ad. CIT (ITAT Mumbai)- In the case of Haji Aziz And Abdul Shakoor Brothers (supra) it was held that fine paid to the Custom Authorities was in fact penalty u/s 167 (8C) of the Customs Act. It was held by the Hon’ble Apex Court that such penalties which are incurred by an assessee in proceedings launched against him for an infraction of the law cannot be called commercial losses incurred by an assessee in carrying on his business. In the case of Rohit Pulp & Paper Industries (supra) the Deputy Collector of Customs had ordered confiscation of goods under section 111(d) of the Customs Act read with section 3 of the Imports and Exports (Control) Order.
