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Showing 281 to 300 of 927 Records

2011 (8) TMI 1094 - SUPREME COURT

Whether the plaintiff may be given an opportunity to put forth its stand that the Central Government issued impugned Notifications/Orders without proper guidelines and affording opportunity to the parties concerned?
2011 (8) TMI 1093 - CESTAT CHENNAI

... ...
... ... ..... owed in the case of Commissioner Central Excise, Ghaziabad vs. Explicit Trading and Marketing (P) Ltd. 2004 (169) E.L.T. 205 (Tri.-Del.) and this decision has been upheld by the apex court as seen from 2009 (240) E.L.T.A.16 (S.C) by dismissing the SLP filed by the assessees. Although the learned counsel for the assessees relies upon the recent decision of the Himachal Pradesh High Court in Commissioner of Central Excise, Chandigarh vs. Tyre Tops 2010 (250) E.L.T. 338 (H.P) holding that assessee cannot be asked to reverse MODVAT credit already taken, even though final product is exempt, the decision of the apex court's decision in Albert David is required to be followed and following the same, I set aside the impugned order and allow the appeal insofar as it relates to duty demand. However, this is not a fit case for imposition of penalty as the issue involved is interpretation of MODVAT rules. The appeal is thus partly allowed as above. Pronounced in court on 18-08-2011.
2011 (8) TMI 1092 - ITAT MUMBAI

Delayed payment of PF of employees contribution - addition on account of staff welfare expenditure - nature of expenditure -
2011 (8) TMI 1091 - ALLAHABAD HIGH COURT

Whether the liability for payment of an amount equal to 8 % of the value of the exempted goods u/r 6(3)(b) of CCR 2002/2004 can be fulfilled by mere reversal of credit involved in the inputs contained in the exempted product? - Held that: - Rule 6(3)(b) of the CCR 2004 provides that if the exempted goods are other than those described in condition (a), the manufacturer shall pay an amount equal to ten percent of the total price, excluding sales tax and other taxes if any, paid on such goods, of the exempted final product charged by the manufacturer for the sale of such goods at the time of their clearance from the factory -
We do not find substance in the contention of the department-appellant that the Company cannot reverse the credit until separate accounts were maintained, for which no finding has been recorded by the Tribunal - Rule 6(3)(b) is not attracted in the present case.
Appeal dismissed - decided against Revenue.
2011 (8) TMI 1090 - SUPREME COURT

Whether total non-compliance with the provisions sub-section (1) and (2) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is impermissible but delayed compliance with a satisfactory explanation for the delay can, however, be countenanced?
2011 (8) TMI 1089 - SUPREME COURT

Whether as the land in question belongs to the Revenue Department of the State of Rajasthan and the PHED had no jurisdiction whatsoever to restore 460.15 bighas of land in favour of the respondents herein?
2011 (8) TMI 1088 - SC ORDER

Waiver of pre deposit - exemption Notification No. 5/98-C.E., dated 2-6-1998, 5/99-C.E., dated 28-2-1999, 6/2000-C.E., dated 1-3-2000 and 3/2001-C.E., dated 1-3-2001 - appeal dismissed for non compliance.
2011 (8) TMI 1087 - SC ORDER

Duty demand - Clandestine removal of goods - Assessee had indulged in the activity of manufacturing, transporting, depositing or in any other manner indulge in manufacturing and removing of excisable goods namely impregnated diamond scalves in contravention of provisions of rules and thereby rendered themselves liable for penal action under Rules 173Q(1) and 209A of the Central Excise Rules.
2011 (8) TMI 1086 - SUPREME COURT

Whether the Committee so constituted may not be justified in submitting the report stating that the entire uniform system of education be scrapped and the text books already provided for be discarded?
Whether the Expert Committee has mis-directed itself as it ought to have proceeded primarily to examine the ways and means of implementing the uniform system of education, curiously the Committee, in its final report concluded that no text book can be used for the academic year 2011-12.?
Whether the Committee members were not of the unanimous opinion that the uniform syllabus and common text books have to be discarded from the current year?
Whether the High Court directed the Government to notify the approved text books after conducting the study with a view to comply with the direction issued earlier on 30.4.2010. This direction was issued to enable the schools to choose from the multiple text books?
Whether the State has exceeded its power in bringing the Amending Act to postpone an enactment which has already come into force?
Whether if the law was passed only ostensibly but was in truth and substance, one for accomplishing an unauthorized object, the court would be entitled to lift the veil and judicially review the case.
Whether the State has sought to achieve indirectly what could not be achieved directly as it was prevented from doing so in view of the judgment of the Division Bench which upheld the validity of the Parent Act 2010?
Whether the Amendment Act 2011 is an arbitrary piece of legislation and violative of Article 14 of the Constitution and the Amendment Act 2011 was merely a pretence to do away with the uniform system of education under the guise of putting on hold the implementation of the Parent Act, which the State was not empowered to do so?
Whether if the impugned Amending Act has to be given effect to, it would result in unsettling various issues and the larger interest of children would be jeopardized?
2011 (8) TMI 1085 - ITAT AHMEDABAD

Computation of Capital Gain - Market value should be considered or not? - Assessee adopted lower price of Rs. 0.26 against the quotation of Bombay stock exchnage. Assessee contended that there is no provision in the Income tax to consider market value for the purpose of computing the capital gain - HELD THAT:- As per section 48, capital gain has to be worked out after reducing the cost of acquisition of capital asset along with cost of improvement thereto and the expenses incurred on transfer of a capital asset from full value of the consideration received or accruing as a result of the transfer of the capital asset. There is no reference to the market value of the capital asset transferred in section 48 or in any other section except section 50C, which is applicable only in case of sale of landed property.

Ratio in the decision of COMMISSIONER OF INCOME TAX-II VERSUS GIRISH DAMJIBHAI PATEL [2011 (3) TMI 1593 - GUJARAT HIGH COURT] is this that for the purpose of working out capital gain, the sale consideration received by the assessee or accrued sale consideration has to be adopted because there is no reference in section 48 to the market value of the asset for the purpose of computing the capital gain. In that judgment, reference has been made to section 45(2) also where it is specified that market value of the asset in question has to be considered where there is conversion by the owner of the capital asset into stock in trade but it was held that provision of section 45(2) are not applicable in the case of sale of capital asset and the same is applicable where there is conversion of capital asset into stock in trade.

Also, in the present case reasons for adoption of lower price of ₹ 0.26 per share against the quotation at Bombay Stock Exchange of ₹ 1.52 per share is also given by assessee. Respectfully following this judgment and considering the facts of present case, we are of the considered opinion that for the computation of capital gain in the present case, the A.O. shall work out the capital gain/capital loss on the basis of consideration received by the assessee and not on the basis of alleged market value of the shares sold by the assessee. We direct the A.O. accordingly -Decision in favour of Assessee.
2011 (8) TMI 1084 - ITAT CHENNAI

Deduction under section 80-P(2)(a)(ii) - reason pointed out by AO to deny the benefit of cottage industry to the assessee is that the size of the assessee’s establishment is too big that it employed more than 2000 workers; its turnover are crores and crores of rupees and it is a very big co-operate society engaged in producing handloom goods etc. - Held that:- These objections raised by the Assessing Officer on the size and extent of the operation of the assessee-society are legally valid to disqualify the assessee from the category of cottage industry for the purpose of the Income-tax Act, 1961. The Industrial Development and Regulation Act has classified the para meters necessary to qualify something as a cottage industry. The assessee is having the recognized status as a cottage industry under that Act. In normal sense, one should take the said recognition as the conclusive proof that the assessee is a cottage industry. This conclusive statutory proof is further strengthened by the fact that the assessee is working under the umbrella of the Commissioner of Handloom and Textiles, Government of Tamilnadu and obtaining various concessions like subsidies, rebates etc. in promoting the sale of its products. These concessions and facilities are given both by the State and Central Governments to protect the employment and interest of traditional workers and artisans in different fields of cottage industries. Handloom is a traditional industry in India deploying a large number of workers.As a matter of fact, it is to be stated that the Central and State Governments are promoting such societies to develop and expand the area of operation of cottage industries. When the assessee has grown itself into a big institution, it shows that the assessee is in fact, following the policies declared by the State and Central Governments. Since the society is performing well, it is able to expand and provide more and more employment to traditional handloom workers.
We agree with the Commissioner of Income-tax (Appeals) that the assessee-society is entitled for the benefit of exemption under sec.80P(2)(a)(ii) of the Income-tax Act, 1961
2011 (8) TMI 1083 - ITAT PUNE

Depreciation on leasehold land - Depreciable Asset u/s 32 or not? - Assessee said leasehold rights in the land are entitled to depreciation - A.O disagreed on the basis that the Act does not envisage depreciation on land or the leasehold rights over the land, thus disallowed the depreciation - HELD THAT:- The depreciation even under the amended Sec. 32 is allowable only on the restricted categories of tangible/intangible assets which are specifically enumerated in the Section - Under these circumstances, we fully concur with the submission of the assessee that the provisions of the Act cannot be interpreted to mean that leasehold rights granting such type of ownership over land etc., would also qualify as intangible assets for the purpose of depreciation under the Act - Decision against Assessee.

Depreciation on Intangible assets u/s 32(1)(ii) - Assessee was allowed to use brandname for a period of 3 years. The A.O. disallowed the depreciation claim u/s 32(1)(ii) because though the agreement mentions about knowhow, in the Balance sheet of the transferor company it was not disclosed - HELD THAT:- Following the ratio laid down in the case of AMWAY INDIA ENTERPRISES. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 1(1), NEW DELHI. [2008 (2) TMI 454 - ITAT DELHI-C], we come to the conclusion that in the present case, since the assessee had purchased the user of brand name, trademark, logo for 3 years, we hold that the expenditure incurred in this regard as valued by the approved valuer is capital expenditure on which the claimed depreciation was allowable. We accordingly direct the A.O to allow the claimed depreciation on the above assets - Decision in favour of Assessee.

Method for determination of ALP in respect of Exports - Assessee adopted comparable Un-controlled price method (CUP) for determining (ALP) in respect of Exports transaction undertaken with the AE. TPO held such method is not applicable for determining ALP, thus adopted Cost Plus Method(CPM) - HELD THAT:- . In our view, the Ld TPO was not justified in comparing the gross margin in export segment vis-à-vis gorss margins in domestic segment. There are various differences in the functions performed and the risk assumed in these two segments and therefore, the same cannot be considered as comparable cases for determining the ALP. There is no marketing risk in the export segment, no risk of bad debts, no product liability risk in export segments whereas the assessee has to bear all these risks in the domestic segment. Thus, we are of the view that it is very difficult to make suitable adjustments for these differences, hence the CMA Method is not appropriate method.

On the basis that the assessee had a Joint Facility Arrangement or a Long Term Buy and Supply Arrangement with its AE, we find that there was no sufficient reasons with the Ld TPO to reject CUP method - Decision in favour of Assessee.
2011 (8) TMI 1082 - SC ORDER

Reassessment – income escaped assessment under section 147 of the Act – Addition subsequently in the course of assessment proceedings.
2011 (8) TMI 1081 - DELHI HIGH COURT

Condonation of delay - petitioner was granted liberty by CESTAT, who refused to condone the delay, to approach revisional authority, who can condone the delay if thinks fit and proper - matter on remand.
2011 (8) TMI 1080 - ITAT MUMBAI

Enhancement Notice u/s 251(2) - Appellant's income was enhanced without issuing a notice to that effect - HELD THAT:- We find merit in the submissions of the assessee that the learned CIT(A) while enhancing the income of the assessee has not issued the enhancement notice which is statutorily required as per the provisions of sec. 251(2), for which his order has to be set aside.

Revenue Recognition as per AS 7 regarding Percentage Completion Method - Applicable on Developers/ Builders or not? - Deduction u/s 80-IB - As per CIT(A), AS 7 is applicable only for contractors engaged in the civil construction business and the same does not apply to builders/developers - Therefore, CIT (A) didn't grant deduction u/s 80-IB(10) - CIT(A) also held, all risks and rewards in the property sold has been transferred to buyer as per the sale agreement

HELD THAT:- Since the assessee was regularly following the project completion method and has offered the income in the year of completion of project, therefore, we do not find any sound reason as to why the same should be rejected and percentage completion method be followed.

The Bangalore Bench of the Tribunal in the case of PRESTIGE ESTATE PROJECTS (P) LIMITED. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX. [2009 (9) TMI 627 - ITAT BANGALORE-B] and relying on the decision of the Hon'ble Supreme Court in the case of COMMISSIONER OF INCOME TAX, CHENNAI VERSUS M/S BILAHARI INVESTMENT (P) LTD [2008 (2) TMI 23 - SUPREME COURT] has held that "the assessee developer having regularly employed project completion method, which is an accepted method of accounting and the Central Government having not notified AS-7 under sec. 145(2), the AO could not reject the accounts u/s 145(3) on the ground that the assessee has not followed percentage completion method of accounting."

We find merit in the submission of assessee that he has to construct the complete building as per the specifications over a period and receive the purchase consideration from time to time from the purchasers and hand over the possession of the building when the building is fully completed, it is only at that time the risks and rewards are transferred to the purchaser.

Therefore, Revenue authorities are not justified in rejecting the project completion method. In our opinion, merely on the basis of one sample agreement, the learned CIT(A) cannot come to the conclusion that all the risks and rewards in the property sold as per the sale agreement have been transferred to the buyer.

Since the project completion method of the assessee has been accepted by us, the without prejudice ground of the assessee challenging non-granting of deduction u/s 80-IB(10) becomes academic in nature and hence the same is not being adjudicated.

Deduction u/s 80-IB (10) - Maximum Permissible Commercial Area - Commercial area constructed by the assessee works out to 6.75% and is more than 2000 sq. ft. which is more than permissible area i.e 5% of total project area or 2000 sq.ft whichever is less - Therefore, deduction was denied by AO

HELD THAT:- We find that Co-ordinate Bench of the Tribunal in the case of ACIT – CIRCLE -2, KALYAN VERSUS SHRI GIRDHARILAL K. LULLA, SHREE GANESH BUILDERS & OSHO DHARA DEVELOPERS [2011 (5) TMI 867 - ITAT MUMBAI], found that - "the condition of 2,000 sq. ft. or 5 per cent of the project was brought to the statute by the Finance (No. 2) Act, 2004 w.e.f. 1st April, 2005. Prior to this insertion, there was no such condition. Further, in the case of HIRANANDANI AKRUTI JV VERSUS DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 36, MUMBAI [2010 (3) TMI 876 - ITAT MUMBAI], it was held that "we find the issue stands decided in favour of the assessee by the decision of the Hon'ble jurisdictional High Court in the case of Brahma Associates where the decision of Special Bench of the Tribunal in the case of BRAHMA ASSOCIATES. VERSUS JOINT COMMISSIONER OF INCOME-TAX., DHARESHWAR PROMOTERS AND BUILDERS, TUSHAR DEVELOPERS VS ITO AND KUMAR BEHARY RATHI AND RAVIRAJ KOTHARI PUNJABI ASSOCIATES VS DCIT [2009 (4) TMI 215 - ITAT PUNE] has been upheld according to which the project having commercial area upto 10 per cent of the project is eligible for deduction u/s 80-IB(10). Since admittedly the commercial area in the instant case is less than 10 per cent of the built-up area, therefore, the assessee is entitled to the deduction u/s 80-IB(10) and the learned CIT(A) was not justified in restricting the deduction""

Since the approval in the instant case was obtained on 10th Oct., 2003 i.e. prior to 1st April, 2005, we hold that the amendment as introduced by the Finance Act, 2004 w.e.f. 1st April, 2005 i.e. asst. yr. 2005-06, is not applicable to assessee's case. The project undisputedly was approved before 1st April, 2005 therefore the provisions of the old law will apply. Therefore, the assessee cannot be denied the benefit of deduction under sec. 80-IB(10) for the commercial area exceeding 5 per cent of the built-up area or 2,000 sq. ft. whichever is less - Decision in favour of Assesee

Deduction u/s 80- IB - Purchasers combined more than one flat- Exceeds Permissible Build Up Area - Revenue objected that the assessee has sold two or more than two flats to one party, the combined area of which is more than 1,000 sq. ft

HELD THAT:- We find merit in the submission of assessee that the area of two flats should not be combined even though the two flats were sold to one person as the built-up area of each flat as approved by CIDCO is less than 1,000 sq. ft. as per the approved plan and occupancy certificate received. Also, there is no evidence with the Department that the assessee has sold after combining the two flats together and sold to one party.

Therefore, merely because some of the purchasers have purchased more than one flat and combined the same, the same in our opinion, will not disentitle the assessee to claim the deduction under sec. 80-IB(10)

Further the condition that not more than one residential unit in the housing project is allotted to any person not being an individual has been inserted by the Finance (No. 2) Act, 2009 w.e.f. 1st April, 2010 - Decision in favour of Assessee.

Balcony and Terrace included in "Build- Up Area"u/s 80-IB or not? - As per Revenue, if the terrace area is included, the total built-up area in some of the cases exceeds 1,000 sq. ft - Denied benefits of deduction

HELD THAT:- In the instant case, undisputedly the project was approved on 10th Oct., 2003 i.e. prior to 1st April, 2005, therefore, we are of the opinion, that the Revenue authorities are not justified in including the balcony/terrace in the built-up area so as to deny the benefit of deduction u/s 80-IB(10).

Further, if some of the flats in a housing project exceed the permissible limit, then the benefit of deduction under s. 80-IB(10) has to be granted on pro rata basis and the assessee cannot be denied the exemption. However, since the area of none of the flats exceeds 1,000 sq. ft. after excluding the balcony/terrace, the assessee, in our opinion, has not violated this condition.

We therefore, direct the AO to grant the benefit of deduction.

Taxability of income from wings where Occupancy Certificate were already Received - Assessee submitted though Occupancy Certificate was received by assessee in 2006 but possession was handed over in next year after meeting specifications of purchasers

HELD THAT:- The assessee is right in recognizing the revenue in assessment year when flats were handed over. Further, we also find merit in the submission of the learned counsel for the assessee that since the assessee fulfils all the conditions prescribed under s. 80-IB(10), the entire profit has to be allowed as deduction under sec. 80-IB(10) and it does not affect the computation.

Deemed Dividends u/s 2(22)(e) - Assessee company took unsecured loan from Haware Engineers & Builders (P) Ltd.(HEBPL) - Mrs. Ujjwala Haware holds more than 20% equity capital in assessee company and (HEBPL) - AO treated unsecured loan as receipt of deemed dividend and made addition in income of Assessee

HELD THAT:- It is clear that the assessee is not a registered shareholder in HEBPL nor HEBPL is a registered shareholder in the assessee company. It has been held by the Special Bench of the Tribunal in the case of ASSISTANT COMMISSIONER OF INCOME-TAX. VERSUS BHAUMIK COLOUR (P) LIMITED. [2008 (11) TMI 273 - ITAT BOMBAY-E] that "deemed dividend can be assessed only in the hands of the person who is a shareholder of the lender company and not in the hands of a person other than a shareholder and not in the hands of the borrowing concern in which such shareholder is member or partner having substantial interest."

Since the assessee company is not a shareholder in HEBPL, therefore, merely because Smt. Ujjwal Haware is a shareholder in both the concerns having 20 per cent equity share no amount can be taxed in the hands of the assessee company under sec. 2(22)(e) - Addition made deleted - Decision in favour of Assessee
2011 (8) TMI 1079 - RAJASTHAN HIGH COURT

... ...
... ... ..... nexus between the impugned consignment and the appellant. The CESTAT after considering the evidence in appeal had confirmed the order of penalty passed by the Commissioner of Customs against the present appellant, it is true that on the date of passing of the order by the CESTAT, the learned Advocate for the appellant, had not remained present as directed earlier, however one Mr. U.K. Sharma had already appeared earlier as the counsel for the appellant on 2-5-2009 on which date he was heard. Since the CESTAT has passed the reasoned order after considering the evidence on record, it could not be said that the impugned order passed by the CESTAT is illegal or improper. Even otherwise Mr. G.K. Rana, learned Advocate for the appellant has failed to point out any question of law much less substantial question of law being involved in the present appeal and hence the appeal deserves to be dismissed. In that view of the matter, the appeal being devoid of merits is hereby dismissed.
2011 (8) TMI 1078 - ITAT CHENNAI

... ...
... ... ..... the transactions were genuine and was unable to get loans by account payee' cheques for bonafide reasons. There was business exigency forcing me to take cash loans for the purpose of honoring business commitments. The lenders were genuine and they have confirmed the payments and the receipts ... 23. By rejecting the above explanation, the Assessing Officer has levied penalty u/s 271D of the Act which was confirmed by the ld. CIT(A). 24. As we have held in quantum appeal that all these loans are genuine and we have deleted the entire amount from the assessee’s hands. We find it a genuine case of taking hand-loans considering the assessee’s business as detailed in the quantum appeal. Therefore, we order to delete the entire penalty by accepting assessee’s explanation. 25. In the result, the appeal of the assessee stands allowed. 26. To summarize the result, all the appeals of the assessee stand allowed. Order pronounced in the open court on 18-08-2011. (
2011 (8) TMI 1077 - MADRAS HIGH COURT

Diversion of imported goods - raw silk which was duty free imported goods under Advance Licence Scheme - whether penalty can be imposed based on the statements of co-accused or co-noticee in the absence of any corroborative evidences? - Held that: - penalty cannot be imposed based on the statement of co-accused or co-noticee in the absence of corroborative evidence - appeal dismissed - decided against Revenue.
2011 (8) TMI 1076 - KARNATAKA HIGH COURT

... ...
... ... ..... so as to attract levy of excise duty, (h) Whether a particular goods fall within which heading, sub-heading, or tariff item or the description of goods as mentioned in Column No. 3 of the Central Excise Tariff Act, 1985. 43. From the aforesaid discussion, it is clear that an order passed by the Appellate Tribunal relating to the determination of any question having relation to the rate of duty of excise or to the value of goods for the purposes of assessment lies to the Supreme Court under Section 35L(b) of the Act and not to the High Court under Section 35G.” 4. In view of the above said proposition laid down by this Court in CEA No. 6/2007, following the said order, we hold that this appeal is not maintainable under Section 35G of the Central Excise Act, 1944 and it is disposed of as such, with liberty to the Revenue to file an appeal before the Hon’ble Supreme Court under Section 35L of the Central Excise Act. Accordingly, the appeal is disposed of.
2011 (8) TMI 1075 - SUPREME COURT

What was the effect of possession of land subsequent to notification issued under Section 4(1) of the Land Acquisition Act?
Whether the provisions of Section 11A of the Act would apply to the acquisition under Section 17(1) read with Section 17(4) of the Act?
How the market value should be determined?