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Showing 501 to 520 of 770 Records
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2012 (4) TMI 327 - BOMBAY HIGH COURT
Non-compliance of pre-deposit order - SCN was issued – assessee contented that the amounts received were for procuring orders on behalf of their principals which did not constitute taxable service - appeal before the CESTAT – direction to the assessee to make pre-deposit of ₹ 30,00,000/- for entertaining the appeal - Held that:- contracts entered into by the assessee with various parties do not appear to be simply placing orders and earning commission - the credit notes clearly disclose that the Assessee has directly dealt with the goods in lifting providing of the vehicles and delivery of the goods - the decision of the Tribunal in directing the assessee to make predeposit of ₹ 30,00,000/- out of the demand of ₹ 91,07,006/- and dismissing the appeal for non compliance of the predeposit order cannot be faulted – against assessee.
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2012 (4) TMI 326 - GUJARAT HIGH COURT
Co-operative Society rendering rent-a-cab service under the contract agreement - SCN was issued for the period from 1/4/2000 to 30/9/2004 for demand service tax with further penalty under section 75(A), 76, 77 and 78 – Held that:- the levy of service tax was w.e.f. 1/4/2000 on rent a cab service hence assessee may be unaware with regard to this new levy of tax - there was a confusion over applicability of this levy as appellant a cooperative society rendering under the Contract for many years - there were divergent views of different benches of Tribunal, which added appellant’s confusion - if the appellant had persuaded their right of reimbursement of payment of service tax with the ONGC by way of conciliation and arbitration that fact can not negate them the defense of bona fide belief of applicability of service tax - the appellants were unable to pay the amount on the ground of dispute with the ONGC though they were aware of the levy of service tax in absence of any fraud, misrepresentation, collusion or willful mis-statement or suppression, there is no justification in levying the penalty – in favour of assessee.
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2012 (4) TMI 325 - DELHI HIGH COURT
Appellant in relation to respondent No.2 firm, brother of the appellant, moved application under the provisions of Right to Information Act, 2005 related to the returns filed with the Sales Tax Commissioner - CPIO and CIC refused to divulge the aforesaid information – Held that :- Section 8(1)(d) levies no obligation to give any citizen information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information - present appeal is nothing but misuse of the process of law and hereby dismiss with costs of Rs. 50,000/- and cost of Rs. 25,000/-imposed by the learned Single Judge.
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2012 (4) TMI 324 - ITAT JAIPUR
Validity of the order passed u/s 153A r.w.s 143(2) - Search and seizure - held that:- the warrant is issued in the name of the assessee and the address of the premises searched is also the official address of the assessee viz. E-127, Industrial Area, Bhiwadi. The panchnama is prepared for the search operation conducted at this premises and the name of the assessee very much appears in the panchnama. In view of these facts, it is clear that a valid search and seizure operation has been conducted u/s 132 and the order u/s 153A passed by the A.O is as per law. - it is not disputed by the assessee company that search warrant was not issued against the assessee company. A single search warrant can be issued in the name of number of concerns. Once search warrant has been issued then the AO is required to pass the assessment order u/s 153A read with Section 143(3) of the Act.
Tax evasion - Fluctuation of share price - Indo-Mauritius DTAA - held that:- The shareholders having the shares as on 17-07-2006 have offered the gain arising from sale of shares by treating the sale consideration at Rs. 318/- per share. Hence, it is not the case that there is a tax evasion. The entities which purchased the shares before 17-07-2006 and has offered the profit. It is not the case of the revenue that such entities have given back profit to the persons from whom such shares were purchased before 17-07-2006. Hence, it is not the case of tax evasion.
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2012 (4) TMI 323 - ITAT AHMEDABAD
Penalty u/s.271 (1)(c) - assessee, Gujarat State Road Transport Corporation engaged in the business of Mass Transport facilities and allied services - CIT (A) deleted the penalty in respect of loss of Rs. 33,55,15,227/- on the ground of bonafideness of the assessee, however, the CIT (A) confirmed the penalty u/s. 271(1)(c) of Rs. 2 crore as the assessee disclosed this amount of loss only in response to notice u/s. 148 and the assessee has failed to discharge the onus cast upon it within the meaning of Explanation-1 to section 271(1) (c) - In the assessment proceedings the AO while ascertaining the total income chargeable to tax would be in a position to detect the specific or definite particulars of income concealed or of which false particulars are furnished - The deemed concealment is provided in explanations often a question arose whether in cases where additions or disallowances made by the AO the penal provisions of section 271(1)(c) would attract - The essence of part B of the explanation is that the person must provide an explanation which is bona fide and he should substantiate that explanation by some evidence with him - Held that: when the assessee is able to offer reasonable explanation based on some evidence, the AO cannot invoke Part B of the explanation unless he has given finding based on some contradictory evidence to disapprove that explanation offered by the assessee - There is no finding of the AO based on some contradictory evidence to disapprove that explanation offered by the assessee was false or the assessee was not able to substantiate the explanation furnished or fails to prove that such explanation is not bona fide and that all the facts relating to the same and material to the computation of his total income has not been disclosed by him - Decided in favor of the assessee
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2012 (4) TMI 322 - ALLAHABAD HIGH COURT
Deduction claim under section 80 IB - penalty order was issued under section 271(1)(c) - claim allowed by Tribunal - department appeal - Held that:- The Apex Court in the case of CIT vs. Reliance Petroleum Products (P) Ltd (2010 (3) TMI 80 - SUPREME COURT) has laid down that a mere making of a claim which is not sustainable in law, but itself, will not amount to furnishing of inaccurate particulars regarding the income of the assessee - there is no finding that any details supplied by the assessee in its return were found to be incorrect or erroneous or false - no question of inviting the penalty under section 271(1)(c) of the Act - no error in the order of the Tribunal dismissing the appeal of the Department.
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2012 (4) TMI 321 - ALLAHABAD HIGH COURT
Addition made in the income as an unexplained investment - AO noticing the valuation report from DVO made an addition – Held that:- the seller of the property was not called by the AO nor there was any material to come to a conclusion that the amount which has been added in the income was actually paid by the assessee - DVO's reported value as 17 lacs does not leads to the conclusion that unexplained consideration of Rs. 5 lacs was actually paid by the assessee -the burden is on the Department to show that the fair market value of the assets as on the date of purchase was more than the value declared by the assessee and that the amount paid has been understated and the assessee has actually paid more than what has been declared – in favour of assessee.
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2012 (4) TMI 319 - DELHI HIGH COURT
Slump Sale - The contention of the petitioner is that the ‘transfer’ under the Scheme of Arrangement is not a sale under Section 50B of the Act. The Scheme of Arrangement was sanctioned by the High Court of Calcutta under Section 391 to 394 of the Companies Act, 1956 and is statutory in nature and character. It is pleaded that Section 50B of the Act has no applicability as the ‘transaction’ was under the Scheme of Arrangement and the same is not a ‘slump sale’ as contemplated under Section 2(42C) of the Act. - Held that:– The term ‘transfer’ is used in Section 2(42C) is with reference to the transaction in the nature of ‘slump sale’. Thus any type of “transfer” which is in nature of slump sale i.e. when lump sum consideration is paid without values being assigned to individual assets and liabilities are covered by the definition clause 2(42C) and then by Section 50B of the Act - decision of the Supreme Court in Vania Silk Mills (P) Ltd. Vs. CIT (1991 (8) TMI 2 - SUPREME Court) gave definition of “transfer” in Section 2(47) of the Act is inclusive, and therefore, extends to events and transactions which may not otherwise be “transfer” according to its ordinary, popular and natural sense.
The Act i.e. Income Tax Act, 1961 was enacted to tax the income or gains made by an assessee. The Companies Act, 1956, on the other hand serves, and is intended to serve a different purpose and, therefore, when a scheme under Sections 391-394 of the Companies Act, 1956 is sanctioned by the Court, it is treated as a binding statutory scheme because the scheme has to be implemented and enforced. This cannot, or is not, a ground to escape tax on ‘transfer’ of a capital asset under and as per provisions of the Act.
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2012 (4) TMI 318 - ITAT, PUNE
Search and seizure action at the business and residential premises - Notice u/s.153C and assessment u/s. 153C r.w.s. 144 framed for all the 4 A.Ys - assessee challenged the validity of assessment order in absence of approval of the Joint Commissioner of Income Tax as provided u/s.153D of the Act and the validity of addition of the amount made by A.O. u/s. 69C - revenue submitted that Sec 153 D talks of only approval of the Joint Commissioner of Income Tax for assessment order passed u/s. 153A of the Act - Held that:- that requirement u/s. 153 D for obtaining approval of JCIT is not procedural only but a mandatory requirement - conjoint reading of Sec. 153 A, Sec. 153 B and Sec. 153 D makes it clear that the approval as prescribed u/s. 153 D is also required to be obtained in cases where notice u/s. 153 C had been served -reliance on the decision of Hon’ble Bombay High Court in the case of CIT Vs. Mrs. Ratnabai N.K. Dubhash (1997 - TMI - 17266 - BOMBAY High Court)mentioning cases falling under section 144B of the Act, the quasi-judicial function of the Income-tax Officer as an assessing authority comes to an end the moment the assessee files objections to the draft order and the power to determine the income of the assessee thereafter gets vested in the Inspecting Assistant Commissioner to whom the Income-tax Officer is required to forward the draft order together with objections – in favour of assessee.
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2012 (4) TMI 317 - ITAT BANGALORE
Tax deducted at source - Grossing up of TDS - AO disallowed the assessee’s claim of TDS without actually deducting the same from the payments and added it back – held that:- From the literal reading of the above provision, it is clear that the provision for grossing up of the tax can be made only if the same forms part of the income concerned, where there is an agreement or arrangement to pay the income-tax by the prayer itself. In the case before us, the assessee has not stated anywhere that the labour charges to be paid are agreed to be paid tax free or that the assessee has to bear the taxes.
Deposit of TDS before due date of filing of return - Held that:- Assessee has made the provision for such payment of tax at the end of the year, it is to be presumed that there is an arrangement for paying tax free income to the labourers – tax deducted at source at the end of the year can be deposited before the due date of filing of the return of income as decided in co-ordinate Bench of the Tribunal at Mumbai in the case of Bapu Saheb Nanasaheb Dhumal v. ACIT (2010 - TMI - 204337 - ITAT MUMBAI ) given a finding that Sec.40(a)(ia) cannot be invoked if the assessee remitted the TDS within the due date of filing of the return prescribed u/s 139(1) of the IT Act - appeal of the revenue dismissed.
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2012 (4) TMI 316 - ITAT MUMBAI
Procedure of Appellate Tribunal – whether order proposed by AM while giving effect to the opinion of the majority consequent to the opinion expressed by the Third Member, can be said to be a valid or lawful order passed in accordance with the provisions of Section 255 – difference of opinion in respect of additions made u/s 68 and allowability of expenses - Held that:- Third Member was called upon to answer two questions on which there was difference of opinion among the two members who framed the questions and the Third Member in a well considered order, answered the reference by giving sound and valid reasons agreeing with the views of the Judicial Member. Thus, the majority view was in favour of the assessee. We further hold that the proposed order dated 18.2.2010 of the Accountant Member who is in the minority and had become functus officio wherein he has expressed his inability to give effect to the opinion of the majority and proceeded to frame three new questions to be referred to the President, ITAT again for resolving the controversy cannot be said to be a valid or lawful order passed in accordance with the provisions of section 255(4) and, hence, the said order proposed by the AM is not sustainable in law.
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2012 (4) TMI 315 - GUJARAT HIGH COURT
Unexplained cash credit - assessee filled appeal stating that the Tribunal without setting-aside the positive findings of the CIT(Appeals) has chosen to deal with the issue - Held that:- It will be difficult to uphold the contention of the appellant that Tribunal has decided this issue disregarding the orders of the lower authorities. In our opinion not only the Tribunal, has taken note of decisions of both, the Assessing Officer and that of CIT(Appeals), it also categorically made mention of the observations of CIT(Appeals) of absence of any positive material made available by the Revenue to disprove the claim of the assessee which was prima facie proved by furnishing the necessary confirmation. From the overall facts and circumstances, Tribunal noted that there was no sufficient material adduced by the appellant-assessee towards the proof of all the deposits and the depositors. There was absence of PAN numbers in certain cases and addresses of many depositors were lacking. This nowhere indicates that there was any prejudicial approach on the part of Tribunal nor did it conclude either in favour or against the appellant or Revenue. - Decided against the assessee.
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2012 (4) TMI 314 - KERALA HIGH COURT
Scope of deduction under Section 10B(4) - the sale proceeds received in convertible foreign exchange i.e. export turnover, the AO reduced there from the canvassing commission paid by the assessee to foreign agents and took only the net export turnover realized for the computation of export profit for deduction - Revenue stated since the assessee has DTA sales, the eligible export profit for deduction has to be worked out in terms of Section 10B(4) of the Act, which provides for working out proportionate profit on export turnover from the total profit - Held that:- There is nothing to indicate in the records or in any of the orders including the assessment order that the agent, who rendered service and to whom payment is made by the assessee, has rendered any technical or professional service answering the definition of "technical service" - no deduction is called for in terms of Explanation 2(iii) of sub Section (9A) of Section 10B for the purpose of computation of deduction under sub Section (4) of Section 10B
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2012 (4) TMI 313 - MADRAS HIGH COURT
Import of two consignments of non-alloy steel slabs - The petitioner sought for clearance of the goods, availing the benefits of the Customs Notification No.21/2002, Sl.No.190B – one consignment was detained and samples were drawn - the petitioner sought for drawal of fresh samples for the purpose of re-test, by a reputed International Agency as per the notification dated 21.5.1955 - test report was in favour - communication by Assistant Commissioner of Customs, the second to carry out a further test, in respect of the 25% of the cargo detained by the authorities of the Customs Department – Held that:- the second respondent does not have the authority or power to order re-testing of the cargo detained by the authorities of the Customs Department, based on the reason that the report of the earlier test done, in respect of the said goods, is in favour of the petitioner - not be open to order re-testing after a lapse of a number of years – in favour of assessee.
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2012 (4) TMI 312 - COMPANY LAW BOARD, MUMBAI
Transmission of shares and to rectify the register of members - The petitioner is kept completely in the dark as to the status of the company, position of fixed assets, present valuation of the assets etc. Section 109A of the Companies Act is clear as to transmission of shares to the legal heirs in case of members who have appointed a nominee - it is settled law that the board of directors of the company even should not make any roving enquiry - When the petitioner does not have locus standi, there is no valid petition in the eyes of law. By continuing with the petition without any locus standi, the petitioner has abused the process of law - respondent No. 1 is not empowered to decide this issue of succession under the law and is bound to rely upon the succession certificate issued by a competent authority designated for this purpose From the perusal of documents filed by the petitioner along with the petition it is seen that he addressed letters dated February 15, 2010, February 17, 2010 and July 12, 2010 to the company requesting transmission of shares on the ground that he is the only legal heir of deceased shareholder - The said fact has been concealed by the petitioner and tried to obtain the orders from this Bench keeping in the dark, and this Bench presumes that the said act is with a mala fide intention and with ulterior motive, and this Bench can dismiss the petition even on that ground. However, the matter is decided on merits - . The stand of the respondent is absolutely correct and this Bench cannot interfere in absence of required documents as per the law or articles of the company - Petition is dismissed
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2012 (4) TMI 311 - CESTAT, MUMBAI
Department alleged that assessee being not registered as "Input Service Distributor" are not entitled to CENVAT credit in respect of invoices pertaining to period prior to their obtaining registration – Held that:- Under the rule 7 of CENVAT credit rules there is no bar denying the credit in respect of the invoices of the period prior to date of the registration – decided in favour of assessee as requirement of pre-deposit for hearing of the appeal is waived and recovery of the dues is stayed till disposal of the appeal.
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2012 (4) TMI 310 - ANDHRA PRADESH HIGH COURT
Assessee under compulsion began paying central excise duty on the Cable Jointing Kits though there is no manufacture of any excisable goods - assessee challenged the exibility and also claimed MODVAT credit on the inputs - Held that:- the assessee is not a manufacturer of goods as held by this Court that the assessee was only assembling Cable Jointing Kits - availment of MODVAT credit at the relevant time was justified since it was compelled to pay central excise duty on Cable Jointing Kits - the assessee did not act in an illegal manner and for this reason the action taken under the show cause notice issued to the assessee was not justified.
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2012 (4) TMI 309 - GUJARAT HIGH COURT
Voluntary payment of duty u/s 11A(2B) - Time limitation - Interest as per the provisions of Explanation 2 to Section 11A(2B) - Rule 25 of the Central Excise Rules - learned counsel for the Department and having perused the documents on record, as already noted, the finding of the Commissioner that there was no suppression or mis-declaration on the part of the respondent has achieved finality - It can be seen that under sub-Section (1) period of limitation for issuing notice for recovery of duty not paid, short paid or erroneously refunded is one year unless, of course, such non-payment, short payment, or erroneous refund of duty arises by the reason of fraud, collusion or wilful misstatement or suppression of facts or contraventions of the provisions of the Act or the Rules with intent to evade payment of duty - In the present case, when the period of limitation had already expired and when the extended period beyond one year was not available to the department as held by the Commissioner himself in his order in original, to our mind the respondent was not liable to pay even the basic duty - If by efflux of time and in absence of availability of extended period of limitation, such show cause notice itself had become time barred, any payment made voluntarily by the manufacturer cannot be viewed as one made under sub-Section (2B) of Section 11A - Appeal is dismissed
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2012 (4) TMI 308 - ITAT DELHI
Educational Institution – exemption denied u/s 10(23C)(iiiad) on ground that institution is not active in field of education, and it is in process of establishing - AY 2003-04 & 2004-05 Held that:- It is undisputed that Institution has been granted registration u/s 12A though on 29th September 2009 which infers aims and objects of the society was to run an educational institution and they are not for the purpose of profit. Apex court in case of ACIT v. Surat Art Silk Cloth Manufacturer Association(1979 - TMI - 5217 - Supreme Court - Income Tax) held that the test of pre-dominant object of the activity is to be seen whether it exists solely for education and not to earn profit. In the present case, society is in existence but actual educational activity has not taken place. Therefore in view of decisions of Calcutta High Court, Kerala High Court, wherein it has been observed that from construction period it is to be stated that educational institution is existing, we direct the A.O. to grant benefit of section 10(23C)(iiiad) – Decided in favor of assessee.
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2012 (4) TMI 307 - ITAT JAIPUR
Withdrawal of exemption u/s. 80G(5) – Charitable Trust - CIT(A) withdrew approval u/s 80G(5) on finding that Trust has spend about 78% of its total receipt for organizing 'Bhagwat Katha' i.e. activities of religious nature, which is in violation of Section 80G(5B) in FY 07-08 – AY 08-08, 09-10 - Held that:- Expenditure of religious nature exceeds the qualifying limit of 5%, in AY 2008-09. The withdrawal of the approval once for all on the basis of an activity restricted to a particular year would be unjust, amount as it would to castigating a person acting bona fide, particularly considering that its objects are purely charitable in nature. The charge of un-genuineness in our view would imply that the institution is not undertaking any charitable work or engaged in impermissible activity/s in the guise of charitable objects, which would be, a very un-charitable and unwarranted view to take. Therefore, withdrawal of approval u/s. 80G would be sustainable in law only in respect of the first year, i.e., AY 2008-09, while the matter would require a review for the subsequent years. In other words, the section would continue to apply, and the approval valid, for the years for which the said limit is not exceeded – Decided partly in favor of assessee for statistical purposes.
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