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Showing 241 to 260 of 1429 Records

• 2014 (2) TMI 1191 - MADHYA PRADESH HIGH COURT
  

  Maintainability of appeal - Section 35G - Held that:- Once the appellant in MACE 6/2006 themselves admitted the position that no appeal under Section 35G was maintainable as no substantial question of law is involved in the matter and when this order dated 23-8-2006 passed in MACE No. 6/2006 above is still in existence, in ignorance of or contrary to the same, this Court cannot now take cognizance of the matter and hear this appeal on the ground that some substantial question of law is involved. The order passed on 23-8-2006 as indicated herein above operates as Res judicata so far as hearing of this appeal is concerned. That being so, till the order passed on 23-8-2006 stands and is not withdrawn, reviewed/recalled or set aside in a proper proceedings, no indulgence in this appeal can be made by this Court now.

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• 2014 (2) TMI 1190 - MADRAS HIGH COURT
  

  Validity of Tribunal's order - Whether the CESTAT is right in dismissing the appeal and vacating the mandatory penalties imposed when there is a plethora of conflicting decision on the same issue by various higher appellate forums/authorities - Held that:- Respondent has to pay Central Excise Duty in the years 1994, 1995 and 1996, but they paid duty only on 5-11-1997. Even though, the respondent has paid duty on 5-11-1997 and that too prior to issuance of show cause notice, dated 7-9-1998, the respondent cannot absolve its liability from paying penalty under the Section mentioned - CESTAT without properly considering the said provision has simply found that since before the issuance of show cause notice the respondent has paid Central Excise Duty, it need not pay penalty. Since the said Section deals with short levy or short payment or erroneous refund and non-payment, this Court is of the view that the approach made by the CESTAT with regard to penalty is totally erroneous and therefore, the order passed by the CESTAT is liable to be set aside and the substantial question of law settled in the present Civil Miscellaneous Appeal is having substance. - Decided in favour of Revenue.

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• 2014 (2) TMI 1189 - CESTAT NEW DELHI
  

  Denial of CENVAT Credit - transportation of goods - whether Cenvat credit of Service Tax can be taken for the outward freight for excisable goods delivered by the appellants at the premises of their buyer M/s. Mahindra and Mahindra - Held that:- Where the place of delivery of the goods is the customer premises and the freight is borne by the manufacturer, the place of removal has to be held as the customer’s factory gate. I find that the Board has also clarified the issue vide Circular No. F/137/85/2007-CX-IV, dated 23-8-2007. Even after the amendment of the definition of “input services” with [effect from] 1-4-2008, replacing the words ‘from the place of removal’ to “up to the removal”, the place of removal get extended up to the buyers premises in case of FOR sales and as such the said amendment would not made any difference, where the sales are on FOR basis. - In the case of FOR destination sales, the ownership and risk is transferred when the seller manufacturer delivers the goods to the buyer at his premises. As such, I find no reasons to deny the Cenvat credit of Service Tax paid on the transportation of goods. - Decided in favour of assessee.

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• 2014 (2) TMI 1188 - CESTAT AHMEDABAD
  

  Denial of refund claim - Notification No. 17/2009-S.T., dated 7-7-2009 - Export of goods - Held that:- any refund claim filed beyond one year is to be dismissed as time bar. In the case in hand since there is no dispute that refund claims which has been rejected by the lower authorities has beyond limitation of one year as provided in notification the said orders needs to be upheld and I do so. - However, refund in respect of terminal handling charges allowed following the decision of [2014 (11) TMI 973 - GUJARAT HIGH COURT] - Decision in the case of COMMISSIONER OF CENTRAL EXCISE Versus AIA ENGINEERING PVT. LTD. [2015 (1) TMI 1044 - GUJARAT HIGH COURT] followed - Decided partly in favour of assessee.

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• 2014 (2) TMI 1187 - CESTAT AHMEDABAD
  

  Denial of CENVAT Credit - construction services - Held that:- Service provider had rendered the services to appellant in respect of the activities as mentioned hereinabove on the construction/erection temporary storage/godowns were during the initial period when the factory premises of the appellant was being set up and also subsequently. - If the temporary shed which has been constructed is within the factory premises and admittedly being used for storing of cement and steel, it would be only for any one of the activities as is mentioned in the definition. In my view, the definition under Rule 2(l) allow for credit of such an amount paid as Service Tax. - Decided in favour of assessee.

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• 2014 (2) TMI 1186 - ITAT HYDERABAD
  

  Entitlement to benefit of deduction u/s 80IA - CIT(A) allowed benefit on power division on the premise that the same constitutes an independent unit de hors its existing sugar plant - Held that:- The issue in dispute is squarely covered by the decision of the ITAT in assessee’s own case for preceding AYs 2007-08 to 2009-10 [2012 (2) TMI 483 - ITAT HYDERABAD] wherein observed that the Tribunal while considering the issue of disallowance of assessee’s claim of deduction u/s 80IA by AO on the allegation that the power generation unit is a continuation of the old business and has been set up by splitting up of business in existence, negatived the finding of AO and allowed assessee’s claim of deduction observing that even if the undertaking is established by transfer of building, plant or machinery, it is not formed as a result of such transfer, in our considered view; the assessee could not be denied the benefit. We also find that a new undertaking for manufacture of power with steam as by-product was formed out of fresh funds, in separately identifiable premises, under a separate license with manifold increase in capacity with new machinery and buildings without transfer of any portion of the old buildings or machinery which pre-existed. To constitute reconstruction, there must be transfer of assets of the existing business to the new industrial undertaking. In our opinion, generation of power unit is separate and distinct undertaking for which separate approval was obtained and recognised by the IREDA and it cannot be said that splitting of existing business structure. Therefore, in our considered opinion, the lower authorities are not correct in denying the deduction under section 80IA of the Act. - Decided in favour of assessee.

  Deduction u/s 80IA claimed by assessee on cost of steam sold to sugar unit - CIT(A) delted addition - Held that:- The issue in dispute is squarely covered by the decision of the ITAT in assessee’s own case for preceding AYs 2007-08 to 2009-10 [2012 (2) TMI 483 - ITAT HYDERABAD] lower authorities did not dispute that the profit credited to Profit and Loss Account in respect of steam is only ₹ 11.43 Lakhs. Thus, even assuming that steam is not power as held by the Assessing Officer, at best the department could have treated only ₹ 11.43 lakhs as ineligible profits for the purpose of claiming the deduction under section 80IA of the Act. To hold otherwise, would be a gross error as the expenditure debited to the profit and loss account of the power unit is still being retained by the department while making the computation. The CIT [A] also agrees that steam has no value as no price was charged for the same in the earlier year but ignores the fact that in the absence of gross total income in the earlier year no exemption could have been claimed. Therefore, we direct that only ₹ 11.43 lakhs is to be treated as ineligible profits for the purpose of deduction under section 80IA of the Act and for the balance sale amount of steam to sugar division, the assessee company is eligible for deduction under section 80IA of the Act. However, the calculation of value of the steam produced by the power plant has to be determined after considering the cost and production record of respective unit and thereafter quantification of deduction has to be done in accordance with the order of the Tribunal cited supra. This issue is remitted back to the file of the Assessing Officer with a direction to the assessee to furnish necessary records for the purpose of determining the value of the steam produced and transferred to sugar unit. - Decided in favour of revenue for statistical purposes.

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• 2014 (2) TMI 1185 - CESTAT MUMBAI
  

  Denial of CENVAT Credit - Bogus invoices - Availment of credit without actual receipt of goods - Held that:- Appellant has reflected three different figures, 80990 MTs in form 3CD which is a statutory return under the income-tax law, being the total quantity of Cenvatable inputs and non-cenvatable inputs received, 92,427 MTs in the RG-23A Part I register for the quantity of cenvatable inputs received and 78,408 MTs in the daily stock statement, which is a statutory register prescribed for receipt of raw materials. In view of the variations in the receipts, the appellant was directed, during the course of hearing on 25-9-2013, to produce copy of the balance sheet and schedules showing the details of inventory held for the year 1995-96, so as to resolve the difference among the three figures reflected in the three different accounts maintained by the appellant. The appellant has produced a copy of balance sheet and the schedule. However, the said document does not reflect the opening balance, receipt and the closing balance of the raw material, but merely indicates the quantity of raw material consumed during the year. Thus, this document is of no use in ascertaining the receipt of raw materials, during 1995-96.

  As per the daily stock statement register, the quantity of receipt of raw materials during the year 1995-96 is found to be 78,408 MTs. Further, from the statement of Shri Pattanshetti, Assistant Manager (Stores) of the appellant firm, it is evident that the receipt of goods were entered as soon as they were received and the consumption of the goods were also recorded on a daily basis. If the appellant had followed this procedure as admitted by them, there is no reason to disbelieve the figures reflected in the daily stock statement maintained by the appellant. Therefore, we hold that for excise purposes reliance placed by the adjudicating authority on the figures reflected in the daily stock statement register cannot be faulted at all. - On the basis of these evidences available, we have no hesitation to conclude that the quantity of raw material received by the appellant during 1995-96 was only 78,408 MTs. and therefore, the appellant could have taken credit only on this quantity. Accordingly, we hold that the adjudicating authority has correctly confirmed the demand - However, some portion of demand is not sustainable - Penalty imposed is alsoo reduced - Decided partly in favour of assessee.

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• 2014 (2) TMI 1184 - ITAT BANGALORE
  

  Eligibility of deduction u/s. 80P(2)(a)(i) - CIT(A) allowed claim - the assessee is a cooperative bank - whether profits derived by it from the business of providing credit facilities to its members? - Held that:- As relying on case of CIT Vs. Jafari Momin Vikas Co-op Credit Society Ltd. [2014 (2) TMI 28 - GUJARAT HIGH COURT] subsection( 4) of section 80P will not apply to an assessee which is not a co-operative bank. In the case clarified by CBDT, Delhi Coop Urban Thrift & Credit Society Ltd. was under consideration. Circular clarified that the said entity not being a cooperative bank, section 80P(4) of the Act would not apply to it. In view of such clarification, we cannot entertain the Revenue’s contention that section 80P(4) would exclude not only the cooperative banks other than those fulfilling the description contained therein but also credit societies, which are not cooperative banks. In the present case, respondent assessee is admittedly not a credit co-operative bank but a credit cooperative society. Exclusion clause of sub-section(4) of section 80P, therefore, would not apply. - Decided against revenue.

  Entitlement to interest on deposits with banks u/s. 80P(2)(a)(i) denied - Held that:- In the present case, as stated above, assessee-society regularly invests funds not immediately required for business purposes. Interest on such investments, therefore, cannot fall within the meaning of the expression "profits and gains of business". Such interest income cannot be said also to be attributable to the activities of the society, namely, carrying on the business of providing credit facilities to its members or marketing of the agricultural produce of its members. When the assessee-society provides credit facilities to its members, it earns interest income. As stated above, in this case, interest held as ineligible for deduction under s. 80P(2)(a)(i) is not in respect of interest received from members. In this case, we are only concerned with interest which accrues on funds not required immediately by the assessee(s) for its business purposes and which have been only invested in specified securities as "investment". Further, as stated above, assessee(s) markets the agricultural produce of its members. It retains the sale proceeds in many cases. It is this "retained amount" which was payable to its members, from whom produce was bought, which was invested in short-term deposits/securities. Such an amount, which was retained by the assessee-society, was a liability and it was shown in the balance sheet on the liability side. Therefore, to that extent, such interest income cannot be said to be attributable either to the activity mentioned in s. 80P(2)(a)(i) of the Act or in s. 80P(2)(a)(iii) of the Act. Therefore, looking to the facts and circumstances of this case, we are of the view that the AO was right in taxing the interest income, indicated above, under s. 56 of the Act. - Decided against assessee.

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• 2014 (2) TMI 1183 - ITAT DELHI
  

  Diversion of JV receipts - whether the income of the Joint Venture (JV) is to be taxed in the hands of JV and not in the hands of its members - Held that:- The consistent and concurring opinions of CIT (A) and ITAT were that the JV was formed only to secure the contract, in terms of which the scope of each JV partner’s task was distinctly outlined. Further, the entire work was split between the two JV partners; they completed the task, through sub-contracts and were responsible for the satisfaction of the NHAI. Therefore, ITAT did not fall into error of law, in holding that the JV was not an association of persons and liable to be taxed on that basis. Decided in favour of the assessee.

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• 2014 (2) TMI 1182 - GAUHATI HIGH COURT
  

  Extension of time to make the pre deposit - Held that:- indulgence was granted to the applicant to deposit the money by 30th November, 2012 and yet he failed to avail this indulgence and waited thereafter for more than one-and-half years to make this application, is enough to dismiss the application for extension of time to deposit. - So far as this application is concerned, we do not wish to extend the period to deposit the amount already granted till 30th November, 2012. It will almost amount to reviewing our order under the garb of extension which is not permissible. Had the applicant deposited the money though late and then sought its extension till the date of deposit, then perhaps, we could have considered the case for condonation of delay and extending time to deposit. Such was not, however, the case of applicant. - Decided against assessee.

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• 2014 (2) TMI 1181 - MADRAS HIGH COURT
  

  Writ Petition Maintainable OR Not – Alternate Remedy available – Held that:- In view of decision in the case of Metal Weld Electrodes v. CESTAT, Chennai [2013 (11) TMI 240 - MADRAS HIGH COURT], Appeal is not maintainable - The petitioners are at liberty to file appeals within three weeks and the parties are directed to maintain status quo as on date till then. - Decided against assessee.

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• 2014 (2) TMI 1180 - CESTAT MUMBAI
  

  Reversal of CENVAT Credit - Non maintenance of separate accounts - Penalty u/s 11AC - held that:- issue has already been settled by the Tribunal s decision in favour of the assessee in the case of Majalgaon SSK Ltd. (2012 (7) TMI 880 - CESTAT MUMBAI), I find that the issue is no longer res integra - Decided in favour of assessee.

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• 2014 (2) TMI 1179 - SC ORDER
  

  Classification Coconut oil in small packing of 200ml and less – Chapter 33 OR Chapter 15 of Central Excise Tariff Act – Supreme Court after condoning the delay dismissed the appeal filed the Revenue against the decision of Tribunal [2013 (12) TMI 392 - CESTAT MUMBAI ] finding no merit in the appeal wherein it was held that Edible Coconut Oil packed and sold in the packing of capacity of 200ml and less is classifiable under Chapter Heading 15 of the Central Excise Tariff and not under Chapter 33 of the Tariff - The edible Coconut oil who packed in the packing of more than 200ml the same is classifiable under Chapter 15 of Excise Tariff – Relying upon AISWARYA INDUSTRIES Versus COMMISSIONER OF C. EX., PONDICHERRY [2008 (7) TMI 771 - CESTAT, CHENNAI] - When the same edible oil is packed in the packing of 200ml or less cannot be considered as preparation for use on hair in the absence of any evidence that the composition of both types of oils are different.

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• 2014 (2) TMI 1178 - RAJASTHAN HIGH COURT
  

  Penalty under section 78(10A) - Stap of check post not present on documents - Held that:- Documents produced by the driver of the vehicle were neither found to be incomplete nor forged one. The only contention raised by the learned counsel for the petitioner is that the said documents did not bear any stamp of any check-post. In the opinion of the court, the decision of this court in case of State of Rajasthan v. Tajiander Pal [2002 (9) TMI 834 - RAJASTHAN HIGH COURT], clinches the issue involved in the present petition. - court does not find any substance in the present petition. - Decided against Revenue.

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• 2014 (2) TMI 1177 - PUNJAB AND HARYANA HIGH COURT
  

  Validity of Tribunal's order [2012 (8) TMI 902 - CESTAT NEW DELHI] - Obiter dicta - Held that:- It would be apposite to refer to the order of the Tribunal dated 28-8-2012, which would show that the Tribunal has dismissed the appeal of the assessee without giving any cogent and convincing reasons - Therefore, the order dated 28-8-2012, does not satisfy the requirements as enunciated by the Apex Court in M/s. Kranti Associates Pvt. Ltd. and Another v. Sh. Masood Ahmed Khan and Others [2010 (9) TMI 886 - SUPREME COURT OF INDIA] - Therefore, matter is remanded to the Tribunal to decide afresh after affording an opportunity of hearing to the parties in accordance with law - Decided in favour of assessee.

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• 2014 (2) TMI 1176 - ITAT PUNE
  

  Eligibility of deduction u/s 80IB(5)(i)- whether the assessee is not involved in manufacturing or producing activity but is only carrying out the activity of assembling at its Silvassa Unit? - Held that:- We are not inclined to interfere with the finding of CIT(A), who has allowed the claim of assessee u/s.80IB(5)(i) by holding that assembling of various components amounts to manufacturing. See case of Jackson Engineers [2009 (12) TMI 649 - Delhi High Court] wherein held that the activity of assembling gensets from various components amounts to manufacture or production for the purpose of deduction under s. 80-IA - Decided in favour of assesse.

  Artificial inflation of profit of Silvassa Unit in order to claim higher deduction - Held that:- there is no concrete evidence that the assessee has shifted the profit of Chakan Unit to Silvassa Unit at such a magniture and hence, the addition sustained by CIT(A) could not be sustained, as such, at the same time, the objection of revenue authorities on this point cannot be rejected as in toto. Taking into all the facts and circumstances in to consideration, the deduction of claim u/s.80IB(5)(i) is restricted to 15% as against done by the CIT(A). As a result, this issue is partly allowed in favour of assesse.

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• 2014 (2) TMI 1175 - SC ORDER
  

  Exemption under Notification No. 19/2000-Cus. (N.T.) - exemption to Energy saving lamps(CFL) in terms of Indo-Sri Lanka Free Trade Agreement (ISFTA) - Supreme Court after hearing the appellant dismissed the appeal as barred by limitation filed against the decision of Tribunal [2007 (12) TMI 146 - CESTAT, BANGALORE], wherein Tribunal held that there was intention of evading Anti-dumping Duty - certificate of origin (as per ISFTA) issued by the Sri Lankan authorities based on wrong information - conditions of Rule 7(b) & 7(d) of the Origin Rules, 2000 notified vide Customs Not. 19/2000 are not fulfilled – exemption not available – rather Anti dumping duty payable.

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• 2014 (2) TMI 1174 - CALCUTTA HIGH COURT
  

  Refusal of Winding up petition - Non payment of balance price of goods - Winding up, a last resort and the Court should sparingly use it as a discretionary relief - Held that:- We have considered the rival contentions. The facts appearing from the records as discussed above, do not convincingly show, the appellant had a claim against the company that would have no plausible defence from the company. In a winding-up proceeding the principal test is to find out, whether the petitioning creditor has a claim duly raised through a statutory notice of demand and the company failed or neglected to pay or compound the same meaning thereby, once the claim is raised, it is the duty of the company to rebut by way of justification as to non-payment. If they are successful on that score, the winding-up petition cannot be admitted.

  In the present case, the company did not give any reply that would definitely raise a presumption against them. However, once the winding-up petition came up for admission after affidavits, the Court is to examine the records that would appear from the pleadings including affidavits filed by the company. The facts so discussed above, would not suggest, the petitioning creditor was successful in raising the admitted claim. In our view, the disputes so raised by the company could not be said to be sham that would deserve an order of rejection. We do not know, whether the petitioning creditor would be able to justify their claim or the company would be able to resist the same, at the final trial. It would be too early to comment on merits. We would only observe, the facts so discussed above, would not create a situation to support an order of admission.

  In the case of East India Wires Limited [2003 (4) TMI 463 - HIGH COURT OF CALCUTTA] a winding-up petition was filed on the just and equitable ground. In that context, the Court observed, “it was a last resort and the Court should sparingly use it as a discretionary relief”. The Division Bench of the Madras High Court in the case Sical-Cwt Distriparks Ltd.v [2009 (8) TMI 707 - HIGH COURT OF MADRAS] once again reiterated, “when the respondent who was sought to be wound-up was able to show that there was a bona fide dispute with regard to the liability in question, the winding-up proceeding is not the proper remedy to resolve the dispute”. This is a well-settled proposition of law that has been rendered in the general context.The learned Judge, in our view, rightly declined to admit the winding-up petition that would deserve no interference.

  We have examined the balance-sheet of the company. It is a cash rich company. The fact that the company never faced any winding-up petition, is not disputed by the petitioner. The bulk coal is generally supplied by the government coal companies. The company asserted, they had a linkage with South Indian Coalfields Company, a Government Undertaking. These facts would prevent us from directing any security to be furnished. We, however, observe, since the appellant was pursuing its claim bona fide before this Court, they should get the benefit of Section 14 of the Limitation Act. We would permit the appellant to file a suit in relation to the self-same claim before the appropriate forum within a period of six weeks from date meaning thereby, they would get the benefit of the period from the date of initiation of the winding-up proceeding the suit is filed within the stipulated period. - Decided against the appellant.

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• 2014 (2) TMI 1173 - ITAT MUMBAI
  

  Penalty u/s 271E - cash payment of ₹ 33,26,960 to the firms M/s. Chetan Grass Trading Company and M/s. ABC Grass Company were not reflected in the capital account of the assessee and as per the audit report submitted by the assessee cash payments were treated as repayment of loans - CIT(A) deleted penalty levy - Held that:- In the present case, it is an admitted fact that the assessee is a partner in the firms M/s. Chetan Grass Trading Company and M/s. ABC Grass Company from whom he received a sum of ₹ 2,00,000 and ₹ 31,26,960 respectively. These transactions were treated by the Assessing Officer as repayment of loan in cash. Thus there is no independent legal entity of the firm apart from the rights and liability of the partners constituting it and if any amount is given or taken from the firm by the partners that cannot be treated as giving or taking of a loan. In the instant case, the assessee being a partner gave the money to the partnership-firm when it was in need of business exigencies, later on the amount was received it back if the said amount had been routed through the capital account, there could have been no disallowance by the Department because a partner can deposit cash in his capital account and also he has a right to receive it in cash. Therefore, the penalty levied by AO under section 271E was not justified - Decided in favour of assesse.

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• 2014 (2) TMI 1172 - ITAT MUMBAI
  

  Registration granted under section 12A denied - DIT coming to the conclusion that the appellant is directly hit by the proviso to section 2(15)which was inserted with effect from the assessment year 2009-10 - Held that:- The charitable purposes include the objects of artistic or historic interest. In the instant case also the assessee-trust was founded to acquire art museum and art theatre for the promotion of art and culture amongst the members of the general public. Therefore, the activity of the assessee are charitable in nature is as per the provisions contained in section 2(15) of the Act. In the instant case, as we have already mentioned, that the assessee-trust was established to make it available the art museum and art theatre for the members of the general public, irrespective of their caste, community or religion, therefore, the activity of the assessee-trust is charitable in nature as per the provisions of section 2(15) of the Act.

  Whereas, the proviso inserted by the Finance (No.2) Act, 2009 by the Central Board of Direct Taxes Circular No. 1 of 2011 dated April 6, 2011, shall not be applicable in the instant case for the year under consideration. We, therefore, considering the totality of the facts as discussed hereinabove, are of the view that the learned Director of Income-tax (Exemption) was not justified in cancelling registration already granted to the assessee-trust under section 12A of the Act by invoking the provisions of section 12AA(3) of the Act. In that view of the matter, the impugned order is set aside and the registration under section 12A already granted to the assessee is restored. - Decided in favour of assesse.

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