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Showing 401 to 420 of 1239 Records
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2012 (12) TMI 841 - ITAT MUMBAI
Disallowance of motor car expenses – Depreciation on motor car – Expense in relation to personal usage of car – Held that:- Since assessee is not maintaining any log book and, therefore, there is no proof that the car has been used only for the purpose of business. The estimate disallowance of such expenses @5% is justified. In favour of revenue
Estimate disallowance out of telephone expenses – Mobile expense for personal usage – Held that:- Personal usages of telephone/mobile is quite common and cannot be ruled out and in the absence of full details of call records etc., it is not established that these have been used only for the purpose of business. Therefore, the estimated disallowance is justified. In favour of revenue
Estimate disallowance of expenses - Business promotion expenses - Conveyance expenses - Miscellaneous expenses - Office expenses - AO had disallowed 20% of such expenses on estimate which has been reduced by the CIT(A) to 10% - Held that:- The case of the assessee is that the nature of many of the expenses under these heads is such that no proper vouchers are possible. We agree that it may not be possible to have proper evidence in respect of conveyance and miscellaneous expenses etc, but since the expenses are not supported by the proper evidence, the estimated disallowance of such expenses is justified. The estimate disallowance of Rs. 50,000/- out of these expenses will meet the ends of justice. Partly allowed in favour of assessee
Nature of income - Sale and purchase of shares – Investment activity or trading activity - Capital gain or business income – Held that:- All delivery based shares cannot be treated as an investment activity. Some shares have also been sold after a short duration of holding. Thus most of the transactions are speculative in nature. The share transactions from which the assessee has shown short term capital gain were of the nature of trading activity of the assessee. In favour of assessee
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2012 (12) TMI 840 - KARNATAKA HIGH COURT
Disallowance of lease rent – lease of plant & machinery used for business – Hire purchase - AO has allowed such deduction for the previous and subsequent assessment years – AO on the ground that machinery would become the property of the Lessee even though there is no agreement to that effect and ownership remains with the Lessor - Held that:- As concluding from the facts of the case that books of Lessor and taken into account as income of the Lessor and paid tax thereon. There is no material placed on record to show that the transaction is that of hire purchase and not lease agreement. The Revenue has not denied that it did not allow such deduction for the previous years and subsequent year of assessment year in question. AO has disallowed the deduction only for the A.Y 1997-98. Following the decision in case of S. A. BUILDERS LTD. (2006 (12) TMI 82 - SUPREME COURT) appeal decides in favour of assessee
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2012 (12) TMI 839 - ITAT AGRA
Gold deposit scheme, 1999 – Redemption of Gold Bond - Capital Gain – Long term capital gain or short term of capital gain – Period of holding – Cost of acquition – Board's circular No. 415 - Assessee compute capital gain from cost and date of acquisition of the gold i.e. the date on which the gold has been received to assessee on the redemption of the gold bond – AO computes capital gain from day and cost on which sum it was deposited with gold bond scheme – Sale of gold acquired on the redemption of gold bond - Assessee deposited gold on 22.11.1999 - Redemption certificate of gold was issued on 22.11.2006 - Sold gold on 07.11.2007
Period of holding - Held that:- In the Board's circular No. 415, it was decided that for the purpose of computation of capital gains, the cost of acquisition of the gold would be the market value of the bonds on the date of redemption. On the date of maturity, i.e., 22.11.2006, the certificates of gold were redeemed, therefore, 22.11.2006 should be considered as the date of acquisition of the gold for the purpose of computation of capital gains.
Cost of acquition – Held that:- The cost of acquisition of the gold is to be taken, i.e., value of gold on the date of redemption of certificates when a new capital asset has come into existence in possession of the assessee. Earlier, the gold in possession of the assessee had lost its identity when the same was converted into bonds. The Bonds cannot be treated as gold nor the gold can be treated as bonds.
Therefore, the cost and the date of acquisition of the gold for the purpose of computing the capital gains be taken as the date on which the gold has been received by assessee on redemption of the gold bonds, i.e., 22.11.2006. In favour of assessee
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2012 (12) TMI 838 - ITAT DELHI
Non-deduction of TDS on payment of Export Commission - disallowance u/s 40(a)(ia) - CIT(A) deleted the addition - Held that:- Incontrovertible evidence on record that the payment of commission has been made to agents outside India for services rendered outside India. The relationship between the assessee and the agents are principal to principal. The agents to not have any PE in India. Any tax that would accrue or arise is only outside the country and not in India. Very importantly this payment does not also fall within the ambit of Section 9(1)(vii) as the services under consideration is not for any technical service rendered nor could be taken as a job which was managerial in nature. It is only for facilitation of the sales of the assessee outside India. There was no agreement between the assessee and the agents and no such agreement was even required, since the transaction was of payment of commission for services rendered- as decided in CIT, A. P. Versus Toshoku Limited (and Another Appeal) [1980 (8) TMI 2 - SUPREME COURT] sales commission which were earned by the non resident for services rendered outside India could not be deemed to be income which had either accrued or arisen in India - Thus the assessee was held not to be liable for TDS under Chapter XVII-B of the Act - against revenue.
Addition on account of retention money - Held that:- The facts are that the customer retains money in respect of a completed contract for satisfactory performance of the contract for which the due diligence is undertaken. On demonstration of satisfactory performance of the contract, the money as released finally to the assessee, otherwise it has to repair the fault or pay liquidated damages. Thus such money withheld by the customer does not accrue as income to the assessee on completion of the turn-key project, the reason being that right to receive the money does not accrue to the assessee. This money accrues as income when the stipulated condition is satisfied which may be in the nature of showing satisfactory performance of the project. Therefore, the amount is taxable on accrual basis in the year in which stipulated condition is satisfied. Thus following the Tribunal's order in the assessee's own case for AY 2007-08 the amount in question does not accrue as income to the assessee on raising the bill after completion of the project. Rather, the income arises on performance of the conditionalities of the agreement - against revenue.
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2012 (12) TMI 837 - GUJARAT HIGH COURT
Rebate claim rejected - fake and non-existent weavers from whom unprocessed fabrics were procured as declared by Alert Circulars issued by the Surat Central Excise Commissioner - contravention of Rule 7(2) of the Cenvat Credit Rules, 2002 - Held that:- In order to get the credit of CENVAT, Rule 7(2) cast a duty upon the appellants to take all reasonable steps to ensure that the inputs or the capital goods in respect of which the appellants had taken credit of CENVAT are the goods on which appropriate duty of excise as indicated in the documents accompanying the goods, has been paid - See Sheela Dyeing & Printing Mills P. Ltd. vs. C.C.E. & E, Surat-1 [2008 (7) TMI 209 - HIGH COURT GUJARAT]
As in the present case the petitioners have admittedly not taken the steps enumerated in the Explanation to Rule 7(2) of the Cenvat Credit Rules thus the Revenue Authority rightly denied rebate of duty - against assessee.
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2012 (12) TMI 836 - KERALA HIGH COURT
Outstanding refund claim - assessee seeking refund the amounts due to them with interest - Held that:- As decided in SHREE SIMANDAR ENTERPRISES case [2012 (9) TMI 538 - KERALA HIGH COURT] which arose from 2012 (8) TMI 176 - KERALA HIGH COURT the event of the petitioners producing documents pertaining to the identity of the person to whom refund is to be made along with proof of address and also bank account number and executing an indemnity bond undertaking to keep the department indemnified against future claims by someone else who might produce the original of the duty paid challan, the respondent will refund the amount payable to the petitioners. Also to pay interest at 6% per annum was also vacated - directions for refund of excess fine and penalty without interest.
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2012 (12) TMI 835 - DELHI HIGH COURT
Scheme of Amalgamation - Held that:- No proceedings under sections 235 and 251 of the Companies Act, 1956 are pending against any of the Applicant Company as on date of the present Application & the scheme has been approved by the Board of Directors of the Applicant Companies.
In view of the written consent / NOC given, the requirement of convening meetings of Shareholders, Unsecured Creditors of Applicant Company nos. 1, 3 & 4 & Five Secured Creditors, holding 99.99% of total debts of Secured of Applicant Company no. 5 / the Transferee Company is dispensed with.
Direct the meeting of Un- Secured Creditors of Applicant Company no. 5 / Transferee Company on 09.02.2012 (Saturday) at 10.30 a.m & Unsecured Creditors of Applicant Company no. 2 / Transferor Company no. 2 shall be held on 09.02.2013 (Saturday) at 1.30 Noon at Sri Sathya Sai International Auditorium, Bheeshm Pitahmah Marg, Pragati Vihar, Near Nehru Stadium, New Delhi -110003 to be headed by appointed Chairperson and the Alternate Chairperson - direction to publish advance notice of aforesaid meetings in defined newspapers & Individual notices minimum 21 days in advance.
If the quorum is not present in the meeting, the meeting would be adjourned for 30 minutes and the persons present in the meeting would be treated as proper quorum - Voting and proxy is permitted as filed with the companies at their registered offices, not later than 48 hours before the said meeting. The Chairmen / Alternate Chairmen shall file their reports within 2 weeks of the conclusion of the meeting.
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2012 (12) TMI 834 - DELHI HIGH COURT
Scheme of Amalgamation - Held that:- No proceeding under Sections 235 to 251 is pending against the Applicant Company as on the date of the present Application.The proposed Scheme has been approved by the Board of Directors of Applicant Company.
Unanimous consent accorded to the Scheme of Arrangement from Shareholders, Secured and Un-secured Creditors of both the companies - the requirement of convening meetings of Shareholders, Secured Creditors and Un-secured Creditors of the Transferor Company is dispensed with - scheme allowed.
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2012 (12) TMI 833 - DELHI HIGH COURT
Scheme of Arrangement for de-merger - Held that:- The proposed Scheme has been approved by the Board of Directors of both the Applicant Companies.
In view of the written consents/NOC given, the requirement of convening meetings of Shareholders of the Demerged Company and the Resultant Company are dispensed with.
As both the Un-secured Creditors of the Resultant Company have given their written consents/NOC to the proposed Scheme accordingly, the requirement of convening meeting of Un-secured Creditors of the Resultant Company is also dispensed with. No requirement of convening the meetings of the Secured/Un-secured Creditors of the Applicant Demerged Company & secured creditor in the Applicant Resultant Company as they do not have any - application of demerger so allowed.
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2012 (12) TMI 832 - CESTAT MUMBAI
Rejection of refund claim - Doctrine of Unjust enrichment - Held that:- Both the lower authorities failed to appreciate the fact that when it is apparent on record that the appellant is availing the benefit of SSI exemption under Notification no. 8/2003 and clearing the goods without payment of duty, the question of unjust enrichment does not arise - as the appellant has paid a sum of Rs.1.5 lakhs during the course of investigation & no show-cause notice has been served on the appellant for appropriation of the amount collected by them during the course of investigation impugned order is not sustainable in the eyes of law and same is set aside and appeal is allowed with consequential relief.
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2012 (12) TMI 831 - CESTAT BANGALORE
Classification of sugarfree chewing gum – Sub-heading 2106 90 99 v/s 2106 90 91 - Held that:- The products in question are "food preparations not elsewhere specified or included" (Heading 21.06). Explanatory Notes to HSN Heading 21.06 also justify this classification. As per these notes, Heading 21.06 includes, inter alia , "Sweets, gums and the like (for diabetics in particular) containing synthetic sweetening agents (Eg: Sorbitol) instead of sugar”. Admittedly, the subject products are gums containing synthetic sweetening agents instead of sugar. Therefore they have been rightly classified under Heading 2106 of the CETA Schedule.
However, the HSN Explanatory Notes appear to be of no aid to sub-classification of the goods, therefore, classification of the goods as “diabetic foods” must be based on evidence of the chewing gums having been medically prescribed as “diabetic foods” and marketed as “diabetic foods”. The Revenue whose burden it was to gather such evidence to justify classification of the chewing gums as diabetic foods under S.H. 2106 90 91 failed to do so. On the contrary the assessee has been able to show that the subject products were not marketed as diabetic foods, thus the “orbit” chewing gums were rightly classified under the residuary sub-heading 2106 90 99 - in favour of assessee.
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2012 (12) TMI 830 - CESTAT NEW DELHI
Eligibility to take Cenvat credit – Whether storage up to the place of removal used in the definition of input service will cover storage at the place of removal also – Held that:- The place where goods are stored after clearance from the factory on payment of duty can be considered as "place of removal" for the purpose of Rule 2(l) of Cenvat Credit Rules, 2004 is no longer res integra because of the clarification issued by the CBEC in the matter and approved by the decision in the case of LG Electronics (2010 (4) TMI 322 - CESTAT, NEW DELHI) and Ambuja Cements v. Union of India [2009 (2) TMI 50 - PUNJAB & HARYANA HIGH COURT]. Therefore the godowns at Agra and Farrukhabad are to be considered as "place of removal" for the appellant notwithstanding the fact that sugar is an item subjected to specific rate of duty.
Rule 2(l) of Cenvat Credit Rules specifically includes many post manufacturing activities like service relating to sales, promotion etc and therefore standard prescribed for inputs cannot be adopted for input services. Therefore not convinced by the argument advanced by Revenue that these services have no nexus the goods manufactured.
No reason to deny Cenvat credit of tax paid on Rent of godown at Agra/ Farrukhabad, Sugar handling charges at the said godowns & Security services availed at the said godowns - cash disbursement is for procurement of raw material, and has direct nexus with the manufacturing activity & so is the case of insurance of cashier. In the matter of Vehicle Hire charges and insurance of company owned vehicles already there are decisions of the High Courts allowing credit of service tax paid on such service. In the case of charges of gay rope mask, assessee submits that this is services required for their efficient functioning at the place of procurement of raw material and it has got direct nexus in the manufacturing activity - appellants are eligible for the disputed Cenvat credits.
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2012 (12) TMI 829 - CESTAT NEW DELHI
Refund of pre-deposit - Held that:- The actions of the adjudicating authority and the appellate authority show a design to refuse the refund under one pretext or the other. This cannot be approved of at all.
Amount involved should be refunded forthwith along with interest from the day commencing after expiry of three months from the date of filing of the original refund application to the date of actual refund of money to the appellant - matter can be referred before the Tribunal if the refund is not sanctioned before 30.9.2012 for appropriate further action in the matter - appeal allowed in above terms.
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2012 (12) TMI 828 - SUPREME COURT
Penalty invoking Rule 633 of the Excise Manual - assessee contested agianst non granting of opportunity of being heard - Held that:- Principles of natural justice demand that a show-cause notice should be issued and an opportunity of hearing should be afforded to the person concerned before an order under the said Rule is made, notwithstanding the fact that the said Rule does not contain any express provision for the affected party being given an opportunity of being heard.
Vide letter dated 2nd October 1992, the Excise Commissioner called upon the appellant to deposit an amount of Rs.14,20,943/- towards Excise duty and interest on account of default on their part to furnish PD-25 pass duly certified by the competent authority at Kandla Port. The letter /notice does not indicate the exact quantity of rectified spirit on which duty @ Rs.40/- per alcoholic litre has been charged, though the total amount of duty payable is mentioned. Similarly, in the final show-cause notice dated 6th April 1994, threatening action for black listing for future exports on account of non-payment of the aforenoted amount, there is not even a whisper as to how and why rectified spirit in question was being subjected to Excise duty by the State.
As stated above, this Court having categorically held in Synthetics And Chemicals (1989 (10) TMI 214 - SUPREME COURT OF INDIA) that the State Legislature had no legislative competence to impose Excise duty on rectified spirit (industrial alcohol), the Commissioner of Excise could not demand Excise duty on rectified spirit contained in the tank wagon which, later on, was found to be empty, without returning a finding that the said spirit had been diverted/converted into potable alcoholic liquor fit for human consumption, on which the State was empowered to impose duty. It bears repetition that such a finding could not be recorded by the Commissioner without affording due opportunity to the appellant to explain its stand in this regard for which, the onus lay on them as transporter and the executant of the bond. We are convinced that in the present case, before imposing the impugned demand of penalty and interest, there was absolutely no adjudication by any authority as regards the breach committed by the appellant, except the allegation that the appellant had failed to furnish the PD-25 pass certified by the Collector, therefore, the action of the respondents for the recovery of penalty and interest, being violative of principles of natural justice, is null and void.
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2012 (12) TMI 827 - SUPREME COURT
The expression "party" – Delivery of copy of copy of Award to the party - Arbitration and Conciliation Act, 1996 - Section 31(5) and Section 34(3) – held that:- . It is one thing for an Advocate to act and plead on behalf of a party in a proceeding and it is another for an Advocate to act as the party himself. The expression "party", as defined in Section 2(h) of the 1996 Act, clearly indicates a person who is a party to an arbitration agreement. The said definition is not qualified in any way so as to include the agent of the party to such agreement. Any reference, therefore, made in Section 31(5) and Section 34(2) of the 1996 Act can only mean the party himself and not his or her agent, or Advocate empowered to act on the basis of a Vakalatnama. In such circumstances, proper compliance with Section 31(5) would mean delivery of a signed copy of the Arbitral Award on the party himself and not on his Advocate, which gives the party concerned the right to proceed under Section 34(3) of the aforesaid Act.
In the instant case, since a signed copy of the Award had not been delivered to the party itself and the party obtained the same on 15th December, 2004, and the Petition under Section 34 of the Act was filed on 3rd February, 2005, it has to be held that the said petition was filed within the stipulated period of three months as contemplated under Section 34(3) of the aforesaid Act. Consequently, the objection taken on behalf of the Petitioner herein cannot be sustained and, in our view, was rightly rejected by the Division Bench of the Delhi High Court.
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2012 (12) TMI 826 - DELHI HIGH COURT
Inclusion of sales transaction of the cars into total turnover - main business of the petitioner is manufacture and sale of pharmaceutical products - Held that:- The vehicles are used by Petitioner company in the course of business which may not lead to the inference that proceeds from the sales of such vehicles should have been included in the turnover and must be taxed accordingly. The selling of used cars cannot by any stretch of the imagination be characterized as “ancillary” or incidental to the business of a pharmaceutical company. It is not shown that the cars were of a special character e.g. air conditioned vehicles especially designed to store and ferry pharmacy products. They were purchased for use of company employees and executives, for office purposes. At the stage of purchase, they suffered sales tax, which the assessee, as buyer, was bound to pay. However, the assessee never held them for the purpose of sale and purchase, but for using them. After their use, having regard to lapse of time, and their wear and tear, the assessee decided to replace them, thus sold them. Their sales, in a sense are twice removed from the business of the assessee. They cannot be called “incidental” or “ancillary” to the manufacture and sale of pharmaceutical products, which the assesse is engaged in.
The vehicles had already been taxed once under the first point tax regime then in cases of transactions which are redundant and cannot be considered under the definition of “business” as they were aimed mainly to get rid of old vehicles which are carried on by persons in normal course of their lives as well and previous orders of the Appellate Tribunal have also been in favour of the petitioner itself, the levy of sales tax on an already taxed vehicle with little relation to the business will give rise to an anomaly - thus the view taken regarding inclusion of the sales transaction of the cars in question, in the turnover of the petitioner is unsustainable in law - writ petition allowed.
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2012 (12) TMI 825 - CESTAT MUMBAI
Business Auxiliary Services – Export of service – Refund claim for the service tax paid on input services - under Rule 5 of CENVAT Credit Rules, 2004 – Held that:- Input services received by the appellant and the nature of the services received, it is evident that all the services are essential in running the business of rendering the output service ‘Business Auxiliary Service' which is exported. Following the decision in case of Ultratech Cement Ltd., (2010 (10) TMI 13 - BOMBAY HIGH COURT) held that any service which has nexus with the business activity of the appellant, whether it is manufacturing or rendering service, has to be treated as “input service” coming within the purview of Rule 2(l) of the CENVAT Credit Rules, 2004. Therefore, appellant is rightly entitled for the refund of the service tax paid on input services which have been used in the rendering of output services has been exported. In favour of assessee
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2012 (12) TMI 824 - CESTAT NEW DELHI
Stay petition - Input service distributor – Cenvat Credit – GTA service - Credit was distributed by issuing invoices as ISD by branch sales office to plants – ST -3 - Required returns in this regard as ISD was not filed - Commissioner confirming the cenvat credit demand with interest - Impose penalty of equal amount - Rule 15 of the Cenvat Credit Rules, 2004 – Held that:- the cenvat credit cannot be denied, more so, when the appellant's contention that SAIL (BSO) during that period of dispute, were filing the ST-3 Returns in which their transactions as input service distributor were also reflected, have not been disputed by the department
Cenvat credit - Rent-a-cab service – Input service – for bringing the workers to the steel plant and dropping them back – Held that:- This service is covered by the definition of 'input service' and hence the cenvat credit of service tax paid in respect of the same would be admissible
Appellants have strong prima facie case in their favour. Stay Granted
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2012 (12) TMI 823 - CESTAT MUMBAI
Waiver of Pre-deposit - Service Tax, interest and penalty - Demand is confirmed that the applicant provided club or association services to their members, which is a taxable service - Held that:- We find that now vide Section 145, the services provided by Club or Association in relation to common facilities set up for treatment and recycling effluent and solid water, with the financial assistance from the Central & State Government, has been given retrospective amendment with effect from 16.6.2005. Stay petition allowed.
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2012 (12) TMI 822 - DELHI HIGH COURT
Interest u/s 2(28A) - Discounting charges earned by Singapore Company from Indian parties by discounting bills of exchange and promissory note - Taxability and TDS u/s 195 - Held that:- Confirming the previous ruling of the Tribunal [2009 (10) TMI 70 - ITAT DELHI-B] reported in CIT v. Cargill Global Trading Ltd. [2011 (2) TMI 209 - DELHI HIGH COURT] the definition of 'interest' under section 2(28A) and analyzing the contents of two circulars issued by the CBDT No. 65 dated 02.09.1971 and subsequent one dated 22.03.1993 (Circular No. 647)(sic) that discounting charges did not amount to interest and was not subject to tax - deletion of disallowance u/s 40(a)(i) of the Income-tax Act - no substantial question of law arises.
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