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Showing 121 to 140 of 1806 Records
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2013 (11) TMI 1691 - ITAT DELHI
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... ... ..... ere not fully verifiable. No attempt was considered necessary to point out the specific defects; infirmity or deficiency presumably noted by him. The said action cannot be upheld. The assessee can be hauled up for offering a general explanation if despite specific defects pointed out he fails to offer a specific and plausible explanation. In the absence of any specific deficiency pointed out by the AO the action of the CIT(A) in confirming the order can not be upheld. In view of the above we deem it appropriate to set aside the impugned order and restore the issue back to the AO who is directed to confront the assessee with the specific objections noted by him qua the additions made and thereafter decide the issue in accordance with law by way of a speaking order after giving the assessee a reasonable opportunity of being heard. 6. In the result the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 22nd of November 2013.
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2013 (11) TMI 1690 - ITAT JODHPUR
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... ... ..... e basis of value taken by the Registrar for stamp duty purposes, but nothing was brought on record to substantiate that the assessee had invested more than the amount shown in the books of accounts. Therefore, addition made by the AO was not justified. 17. On a similar issue, the Hon'ble jurisdictional High Court in the case of Krishna Kumar Rawat (supra) has held as under "The market rates for the purpose of registration of an immovable property as notified by the Sub-Registrar can also have no application for determining the market value under Chapter XX-C of the Act. It is limited only for payment of the stamp duty." 18. We, therefore, considering the totality of the facts and in view of the ratio laid down by the Hon'ble jurisdictional High Court in the aforesaid referred to case, are of the view that the learned CIT(A) was justified in deleting the addition made by the AO. 19. In the result, appeal of the Department is dismissed. In favour of assessee.
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2013 (11) TMI 1689 - CESTAT CHENNAI
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... ... ..... licant-company, it is very obvious that the applicant-company is the recipient of the service and the applicant paid for the service and therefore service tax is leviable in the hands of the applicant-company under Section 66A of the Finance Act, 1994. 5. We have considered the submissions on both sides. We find force in the argument of the learned advocate for the applicant, that at the time when the service was received, the applicant-company was not in existence and this was an activity for decision making of RIHL which service was provided and got consumed before formation of the applicant-company and the applicant-company cannot be considered as a recipient of service and therefore prima facie the demand on the applicant under Section 66A is not maintainable. Therefore, we grant waiver of pre-deposit of dues arising from the impugned order for admission of appeal and stay collection of such dues during pendency of the appeal. (Dictated and pronounced in open Court)
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2013 (11) TMI 1688 - CESTAT CHENNAI
Refund of service tax paid - denial on the ground that appellant has not proved that they had not passed on the incidence of such tax to anybody else - principles of unjust enrichment - reverse charge mechanism - Held that:- In the case of tax paid on reverse charge mechanism, it is very obvious that incidence has been borne by the person (appellant) who is receiving the services - the refund should be granted to the appellant instead of crediting in Consumer Welfare Fund - appeal allowed - decided in favor of appellant.
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2013 (11) TMI 1687 - CESTAT MUMBAI
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... ... ..... he formats/nature that Duphar Pharma may require.” 9. As per the agreement the appellant was streamlining distribution, C&F arrangements, arranging bank and finance, rearranging human resources department, pay roll function and overall restructuring of general administration etc. The above mentioned terms of the agreement clearly show that the activities undertaken by the appellant is advisory in nature. The definition of the Management Consultancy Services includes any person who is engaged in providing any service, either directly or indirectly in any manner and also includes rendering any consultancy or technical assistance relating to conceptualizing, devising, development, modification, rectification or upgradation of any working system of any organization. The clause 2 of the agreement clearly shows that the activities are advisory in nature and therefore there is no infirmity in the impugned order. Therefore, the appeal is dismissed. (Dictated in Court)
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2013 (11) TMI 1686 - CESTAT MUMBAI
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... ... ..... corded by the lower authorities. 5. I have carefully considered the rival submissions. Vide clause (h) of para (2) of Notification No. 41/2007, the sale proceeds in respect of the export goods have to be realized in foreign exchange under Foreign Exchange Management Act, 1999 and if it is not so realized the appellant would not be eligible for the benefit of refund. In the present case, from the records of the case, it is evident that the appellant has exported samples free-of-charge and, therefore, the appellant has violated the provisions of clause (h) of para 2 as stated above. There is no evidence placed before me to show that the value of the samples have been recovered subsequently from the goods exported. In the absence of any such evidence, the appellant is not eligible for the benefit of refund under Notification 41/2007-S.T. 6. Therefore, I do not find any merit in the appeal filed by the appellant and the same is rejected accordingly. (Dictated in Court)
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2013 (11) TMI 1685 - CESTAT MUMBAI
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... ... ..... ng such services. In this case it is an admitted fact that the invoice produced by the appellant has been issued by the C&F Agent and not by the CHA. Therefore, the conditions stipulated for availing the benefit of refund is not fulfilled by the appellant and hence, the rejection of refund on this ground is sustainable in law. 6. To sum up, the claim of the appellant towards the refund of Service Tax paid on courier charges and GTO service charges are remanded back to the adjudicating authority to consider the matter afresh subject to the condition that the appellant produces documentary evidences to substantiate that the refund claims made by them pertain to the exports made by them and nexus is established between the exports made and the services availed. As regards the refund of Service Tax paid on CHA service, the rejection of the same by the lower authorities are upheld. Thus, the appeals are partly allowed by way of remand. (Pronounced in Court on 19-11-2013)
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2013 (11) TMI 1684 - CESTAT BANGALORE
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... ... ..... of exempted goods or providing exempted services cannot be distributed; credit of Service Tax attributable to services used wholly in an unit shall be distributed only to that unit. There is no finding that any of these conditions have not been fulfilled. Further I also find that the decisions cited by the learned counsel are squarely applicable to the facts of this case. Moreover, even on limitation, appellants have a strong case since when the rule itself does not provide for denial of credit in the absence of any of the grounds, the appellants were entitled to bona fide belief of admissibility. In the absence of any finding of inadmissibility of the corporate office for the credit and in the absence of any finding regarding non-fulfilment of conditions under Rule 7 of CCR, the appeal has to be allowed. Accordingly, appeal is allowed with consequential relief, if any, to the appellant. (Operative part of this order was pronounced in the Court on conclusion of the hearing)
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2013 (11) TMI 1683 - ITAT MUMBAI
Whether the receipt treated as FTS by the AO should be included as part of total consideration of sub-contract receipt and deserves to be assessed as per provisions of Sec. 44BB of the Act and the balance receipt is also to be assessed u/s. 44BB of the Act? - Held that:- The assessee is engaged in the business of providing services or facilities in connection with its business, therefore, provisions of Sec. 44BB clearly apply on the facts of the case. The AO has grossly erred in considering part of the income of the assessee as fee for technical services without pointing out which part relates to FTS. The Ld. CIT(A) has rightly considered the entire income to be taxed u/s. 44BB of the Act.
The work/services done by the assessee do not come within the purview of Sec. 9(1)(vii) of the Act
Assessee would be liable for paying interest u/s. 234B of the Act.
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2013 (11) TMI 1682 - ITAT MUMBAI
Eligible for the benefit of DTAA between India and UAE - Held that:- CIT(A) erred by confirming the order of the assessing officer when the assessee has submitted the copy of the certificate from the Min. of Finance and Industry of UAE to the effect that the assessee is qualified in terms of the DTAA between India and UAE as resident in the United Arab Emirates to enjoy the benefit of the said agreement, for the fiscal year 1997-98, pursuant to the provisions of Article 8 of the DTAA. In view of the above discussions, we set aside the impugned order of the learned CIT(A) and direct the assessing officer to give relief / benefit of DTAA with UAE
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2013 (11) TMI 1681 - ITAT MUMBAI
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... ... ..... As regards ground No. (i), it is observed that the issue involved therein relating to assessee's claim for loss pertaining to the hotel business is similar to the one involved in ground No. (h) inasmuch as the ld. CIT(A) after having accepted that the hotel business of the assessee was commenced during the year under consideration, allowed the claim of the assessee for ₹ 8,18,327/- for the year under consideration. As we have upheld the findings of ld. CIT(A) that the hotel business of the assessee was commenced during the year under consideration while deciding ground No. (h), we uphold his impugned order allowing the consequential relief to the assessee in terms of the loss claimed in respect of hotel business of ₹ 8,18,327/-. The impugned order of the ld. CIT(A) on this issue is upheld and ground No. (i) of Revenue's appeal is dismissed. 28. In the result, appeal of the Revenue is dismissed. Order pronounced in the open court on 29th November, 2013. .
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2013 (11) TMI 1680 - ITAT CHANDIGARH
Levy of penalty u/s 272A(2)(k) - Late filing of TDS return - HELD THAT:- the penalty under section 272A(2)(k) of the Act merits to be restricted to the date of deposit of tax at source which admittedly is beyond the due date of filing the TDS returns.
The decision in support was laid down in H.M.T. Ltd. Tractors Division Vs CIT [ 274 ITR 544 (P&H) ] [2004 (8) TMI 50 - PUNJAB AND HARYANA HIGH COURT] wherein it has been held that where the tax at source had been paid in time and the necessary return in respect thereof was filed in time with the income tax department, on mere late issue of tax deduction certificate, there was no loss to the Revenue and the delay in furnishing the tax deduction certificate was merely technical or venial in nature and penalty could not be imposed. Accordingly, direction given to the Assessing Officer to recompute the penalty leviable under section 272A(2)(k) of the Act in line with our directions. The grounds of appeal raised by the assessee are, thus partly allowed.
In the result, appeal of the assessee is partly allowed.
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2013 (11) TMI 1679 - ITAT COCHIN
TDS u/s 194C - Addition u/s. 40(a)(ia) - Held that:- The provisions of sec. 194C clearly states that the assessee is liable to deduct tax at source either at the time of credit to the account of the contractor or at the time of payment thereof, whichever is earlier. It is further provided that the said liability would arise even if the amount is credited to any other account whether called “Suspense Account” or by any other name. Hence, in our view, the assessee would be liable to deduct tax at source u/s 194C on the amount provided under the head “provision for expenses”. Hence, we reject the contentions of the assessee that the TDS provisions shall not apply to the provision for expenses.
A careful reading of the provisions of sec. 194C would show that the said section is “contract” specific and not related to the income of the assessee. Hence, this argument of the assessee also fails.
No submissions would not absolve the assessee from the TDS liability u/s 194C of the Act, since a careful reading of the provisions of sec. 194C would show that the said section is “contract” specific and not related to the income of the assessee. Hence, this argument of the assessee also fails.
It is an admitted fact that the assessee has claimed the impugned amount as deduction in the succeeding assessment year, i.e., assessment year 2008-09. Though the assessee contends that it has claimed the same on protective basis, we do not find any such observation in the assessment order which is placed in the paper book filed by the assessee. The Ld. CIT(A) has rightly pointed out that the assessee has claimed the very same amount twice, i.e., in assessment year 2007-08 and also in assessment year 2008-09.- Decided against assessee.
In the preceding paragraphs, we have held that the assessee is liable to deduct tax at source on the provision for expenses created by the assessee. It an admitted fact that the assessee herein did not deduct tax at source from the amount of provision so created. We have already rejected various contentions urged by the Ld A.R. Under these circumstances, in our view, the Ld. CIT(A) was justified in confirming the disallowance made by the Assessing Officer u/s. 40(a)(ia) of the Act. Accordingly, we uphold his order on this issue.
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2013 (11) TMI 1678 - ALLAHABAD HIGH COURT
Seizure of goods - the quality of the goods ie. Supari which were in transit were better than the quality disclosed in the accompanying documents - purchasing dealer was not a registered dealer - Held that: - The seizure of the goods on the ground that they were of better quality is not a ground for seizure of the goods under the Act and the authorities are not even competent to adjudge the quality of the goods. The seizing authority has no expertise to adjudge the quality of the goods. Therefore, seizure for the reason that the Supari which was being carried was of a superior quality is not tenable in law.
The goods have also been seized for the reason that the purchasing dealer of Bihar was not registered - Held that: - genuineness of the consignor and consignee and their registration under the taxing statute are not relevant for the purposes of seizing the goods, the authorities could not have seized the goods on the above score also.
Revision allowed - decided in favor of assessee.
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2013 (11) TMI 1677 - SC ORDER
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... ... ..... ORDER Delay condoned. Leave granted.
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2013 (11) TMI 1676 - ITAT MUMBAI
Addition of deemed dividend u/s 2(22)(e) - Held that:- CIT(A) has rightly decided that the case of Sunil P.Mantri clearly falls u/s 2(22)(e) of the Act. However, we are inclined to accept the alternate arguments of the Ld.AR that the additions are to be restricted only to the extent of the accumulated profits of the lender concern up to March 31st of the previous years relevant to the assessment years under consideration during which the loans/advances have been made to various concerns. Therefore, as regards the additions made in the hands of Sunil P.Mantri for assessment years 2008-09 and 2009-10, we direct the AO to restrict the additions based on the accumulated profits of M/s Sunil Mantri Realty Ltd as on 31.03.2007 and 31.03.2008 respectively, corresponding to the loans/advances made for the relevant assessment years i.e., 2008-09 and 2009-10.
Deleting the additions made by the AO in respect the sums repaid by the recipient concerns to the lender company for the A.Y 2009-10, the decision of the Ld.CIT(A) restricting the additions to the extent of the accumulated profits of the lender concern, the decision of the Ld.CIT(A) that the gross rent estimated by AO @ 7% of cost of the property interest in respect of the property located at Ambey Valley, Lonawala is reasonable and the decision of the Ld.CIT(A) that the assessee is eligible for claim of deduction in respect of interest paid are upheld.
Decision of the Ld.CIT(A) resulting in the deletion of the additions made in the hands of the recipient concerns on protective basis, we are of the considered view that the Ld.CIT(A) has correctly relied on the decisions of Special Bench in the case of ACIT Vs. Bhaumik Colour P. Ltd. reported in (2008 (11) TMI 273 - ITAT BOMBAY-E ) wherein it has been held that the intention behind the provision of section 2(22)(e) is to tax dividend in the hands of share-holder. The deeming provisions as it applies to the case of loans or advances by a concern to concern in which its share-holder has substantial interest, is based on the presumption that the loans or advance would ultimately be made available to the share-holder of the concern giving the loans or advances. The intention of the legislature is therefore to tax dividend only in the hands of the share-holder and not in the hands the concern
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2013 (11) TMI 1675 - ITAT CHENNAI
Deduction 80IA - Held that:- valid reason to interfere with the findings and decision of the Commissioner of Income Tax (Appeals), as the Commissioner of Income Tax (Appeals) followed the decision of the jurisdictional High Court in the case of Velayudha Spinning Mills Ltd. (2010 (3) TMI 860 - Madras High Court ), while allowing the claim of the assessee under section 80IA of the Act on windmill. Therefore, we sustain the orders of the Commissioner of Income Tax (Appeals) in both the cases.
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2013 (11) TMI 1674 - GUJARAT HIGH COURT
Addition u/s 41 - Held that:- Addition was made solely on the basis that said liability is more than three years, it cannot be said that the learned ITAT has committed any error in deleting the addition of ₹ 51,37,327/- made under Section 41(1) of the Act. We see no reason to interfere with the impugned judgment and order passed by the learned Tribunal
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2013 (11) TMI 1673 - ITAT PUNE
Deduction u/s.80IB(10) - Held that:- The main limb on which deduction was denied was for the reason that area of verandah was not excluded or exempt under section 78(3) of the Bye-laws of Kolhapur Municipal Corporation. CIT(A) following the decision of his predecessor, decided the issue in favour of assessee with regard to 19 bungalows. With regard to bungalows C5 and D5 which admittedly are more than 1500 sq.ft., but were sold to the owners of the land and profit thereof has not been the subject matter of section 80IB(10). Accordingly, no adverse view has taken by CIT(A). Coming back to the issue of built up area as per bye-laws of Kolhapur Municipal Corporation with regard to 19 bungalows mentioned above, we find that Tribunal has set aside this issue to Assessing officer stating that the Finance Act of 2004 with effect from 01/04/2005 inserted the definition of built up area at subsection 14(1) of section 80IB. The 'built up area' was defined as under:
Built up area means the inner measurements of the residential unit at the floor level including the projections and balconies as increased by the thickness of the walls but does not include common areas shared with other residential areas.Technically speaking, the definition of 'built up area' as given above will be applicable only with effect from 01/04/2005. The Honourable Supreme Court in a recent Five Judge Bench decision in the case of CIT V/s Varas International Pvt. Ltd. [2006 (2) TMI 76 - SUPREME Court ] has held that for an amendment to be construed as being retrospective, the amended provision must indicate either by terms or by necessary implication that it is to operate retrospectively. Thus we restore this issue to Assessing Officer with similar directions.
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2013 (11) TMI 1672 - CESTAT NEW DELHI
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... ... ..... aken the excess credit, the same was actually not utilised by them in as much as during the period in question they always had the balance to the extent of wrong credit involved, i.e., ₹ 14,56,662/-. If that be so, the law declared by the Hon'ble Karnataka High Court in the case of C.C.E. Bangalore, Vs. Bill Forge Pvt. Ltd., reported in 2012 (279) E.L.T. 0209 (Kar) would apply. In terms of the said decision, if the wrong excess credit availed is not utilised and remains a paper entry, no interest would be leviable. In as much as the factual position is not available on record, I deem it fit to remand the matter to the adjudicating authority to examine and verify the contention of the appellant that throughout the period in question, the credit was available with them without utilisation and to decide the interest issue in terms of Hon'ble Karnataka High Court decision. 4. The appeal is disposed of in the above manner. (Dictated and pronounced in the Open Court)
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