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Showing 301 to 320 of 1232 Records
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2012 (9) TMI 942 - ITAT AHMEDABAD
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... ... ..... and submitted before me on 25- 3-2010 that both the grounds are covered by my appellate order dt 31-3-2009 for A Y 2006-07. In earlier assessment year i.e. A.Y. 2004-05 to A.Y. 2005-06, this issue has been decided by me in favour of the appellant vide appellate order No.CIT(A)- XVI/DCIT.10/059/07-08 and No.CIT(A)-XVI/DCIT.10/0220/06- 07 dt. 28-01-2009 and 31-3-2009 respectively. Since the facts are identical, this ground is decided in favour of the appellant.” 5. At the time of hearing both the parties agreed that the issue is now covered in favour of the assessee and against the Revenue by the decision of Hon’ble ITAT, Ahmedabad Bench in assessee’s own case for the Asst. Year 2004-05 vide ITA No.1032/Ahd/2009 and ITA Nos.1930 & 1824/Ahd/2009 for Asst. Years 2005-06 & 2006-07. Following the same, we dismiss the appeals of Revenue for both the years. 7. In the result, Revenue’s appeals are dismissed. Order pronounced in open Court on 21.09.2012
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2012 (9) TMI 941 - ALLAHABAD HIGH COURT
Taxability - loading, unloading and shifting of sugar bags from the floor of the mill house to the godown and from one godown to another godown - whether the service comes within the ambit of service tax under 'Cargo Handling Service' or not? - Held that: - In common parlance 'cargo' means load, which is to be carried by ship, aeroplane, rail or truck. The handling of transportation of goods, by itself unless it is an organised activity, which is connected with carrying cargo (load) by ship, aeroplane, rail or truck is involved would not fall within the definition of cargo handling service. The definition specifically excludes handling of export cargo or passenger baggage or mere transportation of goods
In the present case, the transportation of goods namely the sugar bags is within the factory. The respondent firm was engaged for loading, unloading, packing, unpacking, stacking, re-stacking and shifting of bags from floor of mills, from godowns and from one godown to another. The firm with its partners and other labourers handled bags of sugar under a contract, within the factory premises. The sugar bags were not to be loaded or unloaded for any movement outside the factory on public roads, on any ships, airplane or trucks for onward movement to any destination. The activities will fall within the meaning of transportation of goods, and would certainly not be included in the definition of 'Cargo Handling Service', which is the service exigible to service tax.
Appeal dismissed - decided against Revenue.
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2012 (9) TMI 940 - ITAT AHMEDABAD
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... ... ..... he net profit declared by the assessee for computing book profit for the purpose of determining the allowable deduction of remuneration payable to the partners under S. 40(b).” 10. In the case of ACIT vs. Sheth Brothers, Rajkot, the co-ordinate Bench has held as under - “Whole income embedded in the net profit as appearing in the P & L a/c of the assessee-firm is to be taken into consideration for allowing deduction of remuneration paid to partners under S. 40(b) without excluding the interest income which formed part of the book profit.” 11. Respectfully following the above decisions of the co-ordinate Bench, we are of the view that the interest income which is part of the Profit and loss which has been taxed as business income, need to be reduced for calculating the remuneration payable to partners u/s. 40(b). We accordingly delete the addition made by the A.O. and allow the appeal of the assessee. 12. In the result, appeal of the assessee is allowed.
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2012 (9) TMI 939 - CALCUTTA HIGH COURT
Restriction on operation of Bank Account - Duty Drawback - Held that: - Section 121 of the Customs Act on which reliance was placed by Mr. Dey provides that where any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation - The section can only be invoked on a specific finding that smuggled goods have been sold. Operations can only be prevented in respect of the sale proceeds of smuggled goods.
In this case there is admittedly no adjudication as yet.
The petitioner be allowed to operate his bank accounts - application disposed off.
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2012 (9) TMI 938 - ALLAHABAD HIGH COURT
Refund claim - Whether the Modvat credit availed by the parties on replaced old CPT’s with new one should not be recovered along with interest? - penalties - Held that: - until it is found that repaired and defective colour picture tubes received from the company were not replaced and that new colour pictures were cleared from the same factory without payment of duty, refund could not be refused - appeal dismissed - decided against Revenue.
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2012 (9) TMI 937 - ITAT JODHPUR
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... ... ..... 0 322 ITR (St.)4 . In the present case also, after revoking the prohibitory order u/s 132(3) of the Act on 13.4.2009, no fresh prohibitory order was passed and the Panchnama dated 3.2.1999 did not show that the search remained incomplete or was continued to be completed on any subsequent date in the close proximity or in continuity. In the instant case, nothing was done on 13.4.1999 except merely preparing the Panchnama and the search commenced at 2.30 PM which was concluded at 3.00 PM. Therefore, in view of the ratio laid by the Hon'ble Supreme Court in the aforesaid referred to case, the said exercise would not extend the time limit for passing an order of block assessment. In that view of the matter, we do not see any infirmity in the order of ld CIT(A) on this issue. Accordingly, we do not see any merit in the appeal of the Department and dismiss the same. . 9. In the result, appeal of the Revenue is dismissed. (Order Pronounced in the Open Court on this 12.09.2012 )
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2012 (9) TMI 936 - ITAT AHMEDABAD
Computation of capital gain - Held that:- The stamp duty rate for a big and small plot is not different. Hence, in our considered opinion, the adjustment made by Ld. CIT(A) by reducing land area to the extent of 35% is not justified. We reverse the same..
The entire share of the assessee in the fair market value of the land to the extent of 18.10% should be considered for working out the capital gain of the assessee and as and when the assessee receives any amount out of the dispute amount of ₹ 1,78,16,427/-, in that event, such actual receipt should be brought to tax in its totality without any reduction on account of indexed cost of acquisition but in the present year, the cost of acquisition cannot be reduced. We hold accordingly.
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2012 (9) TMI 935 - MADRAS HIGH COURT
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... ... ..... o further verification, so that, the link between the seized materials and the assessee's business would have been made clear. It is a matter of relevancy that even at the time of inspection, the enforcement officers had not come across any stock of arecanut. 8. Taking note of the consistent stand of the assessee that they were all rough sheets used for jottings and even as per the Department's verification, most of the bills pertained to other dealer transactions and had nothing to do with the assessee's business, we do not find any justification to restore the assessment based on these slips. 9. In the light of the view we have taken that there are no materials conclusively to point out that the seized slips related to the assessee's transactions, we have no hesitation in setting aside the order of the Joint Commissioner, thereby confirmed the order of the Appellate Assistant Commissioner. 10. In the result, the above tax case (appeal) is allowed. No costs.
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2012 (9) TMI 934 - ITAT CHENNAI
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... ... ..... m of depreciation allowed thereafter. However, after granting such depreciation, if the income goes below the returned income, then the A.O. shall assess the income at the returned level itself. With these directions, the appeals are disposed of. 8. Though the learned A.R. placed reliance on a decision of co-ordinate Bench of this Tribunal in the case of ACIT v. M/s Standard Roads in I.T.A. No. 564/Mds/09, which was later confirmed by the jurisdictional High Court on Revenue’s appeal, we are of the opinion that this decision will have no application on facts here for the reason that there the assessee was a sub-contractor and a finding was given by the Tribunal considering the fact that assessee was a sub-contractor whose profit rates were generally lower than the principal contractor. 9. In the result, both the appeals filed by the Revenue are allowed for statistical purposes. The order was pronounced in the Court on Thursday, the sixth of September, 2012, at Chennai.
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2012 (9) TMI 933 - BOMBAY HIGH COURT
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... ... ..... risdiction and hence the Hon'ble Supreme Court held that the High Court ought to have entertained the Writ Petition. In the result, we uphold the preliminary objection raised on behalf of the respondents and dismiss the writ petition. The petition stands dismissed with no order as to costs. At this juncture, the learned senior counsel appearing on behalf of the petitioner states that since the petition is dismissed on the ground of existence of alternate remedy and since the petitioner was bona fide prosecuting the matter in this court on the belief that the alternate remedy would not be a bar in this case, the petitioner may be granted liberty to file an appeal within a period of one month. The request made on behalf of the petitioner is just and reasonable. In case an appeal is filed by the petitioner within a period of one month, the appellate authority should decide the same on merits. All the questions raised in this writ petitioner are kept open. Order accordingly.
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2012 (9) TMI 932 - CESTAT KOLKATA
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... ... ..... e provisions of Section 35F of the Central Excise Act, 1944 on 14.05.2012. 4. In the present Application, the Applicant contended that they debited the amount of ₹ 79,27,639/- from CENVAT Credit Account of Ghaziabad Factory falling under the jurisdiction of different Commissionerate. The learned A.R. objected to the same and contended that it is not acceptable and would amount to non-compliance of the Order. In these circumstances, the Miscellaneous Application for restoration of the Appeal is dismissed. Dictated and pronounced in the open court.
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2012 (9) TMI 931 - SUPREME COURT
Whether the appellants herein have made out a case for amendment of the plaint in terms of Order VI Rule 17 of the Code?
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2012 (9) TMI 930 - CESTAT NEW DELHI
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... ... ..... plications and directed the appellant company to pre-deposit sum of ₹ 3.5 crore within twelve weeks and observed that in the event of the compliance of stay order pre-deposit of balance dues from the respective appellant shall stand dispensed with. 4. The appellants have not complied with the order of pre-deposit. Ld. Counsel for the appellant have failed to give any explanation for non-compliance nor a prayer for extension of time to deposit the amount has been made. Since the appellant M/s. Parasrampuria Synthetics Ltd. has failed to deposit the amount as directed, the company cannot he heard on its appeal in view of the provisions of Section 35F of the Central Excise Act, 1944. The appeal of the company is therefore rejected. As regards the appellant Shri Alok Parasrampuria he is directed to pre-deposit ₹ 50 lakhs the amount of penalty imposed upon him within four weeks from the date of this order. 5. His appeal be listed for compliance on 5-10-2012.
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2012 (9) TMI 929 - ITAT PUNE
Income derived from the letting out of premises of the 'Cyber City' - whether to be assessed as business income or House Property - Held that:- assessee has provided various complex integrated services as mentioned in Schedule-II to the lease agreement with the I.T. Company. The services are vast and the amenities provided were in the nature of plant and machinery as contended by the assessee and it has been established by the clauses of the agreements that the cost of providing these services was also included in the lease rent of ₹ 14.30 per sq.ft. The assessee also clarified that cost involved in the services provided to the particular company i.e., exl Services.com was ₹ 2.83 crores which was almost 40% of the land and building cost of that tower. By no stretch of imagination such extensive and specialized services which could only be utilised by the IT/Software/BPOs businesses to be located in the I.T. Park could be treated as forming part of income from house property. It is certainly a constitution of organised structure for carrying out business activities. Section 22 provides only for rental income out of building or land appurtenant thereto, whereas in the case before us, complex and varied services provided and the huge investment therein were in the nature of plant and machinery which could be included within the expression building or land appurtenant thereto. Thus, the assessee has conducted systematic activity to earn profit and accordingly income was to be assessed as income from business. In view of the submissions made on behalf of the assessee, and analysis of various clauses and Schedule-II of the agreement entered with the I.T. company, CIT(A) was justified in holding that in assessee’s case the said income was to be assessed as business income. This reasoned factual finding need no interference from our side. - Decided against revenue.
Claim of deduction u/s.80IB(10) in respect of disallowance made u/s. 40(a)(ia)/43B - CIT(A) allowed claim - Held that:- We are not inclined to interfere in the finding of the CIT(A) on the issue. The CIT(A) observed that turnover was from the same source in respect of the claim u/s.80IB(10). Therefore, it was entitled for deduction after including the statutory disallowance i.e., on correspondingly enhanced income. Assessee was held entitled for deduction u/s.80IB(10) in case there was enhanced income on account of statutory disallowance u/s.43B, 40(a)(ia) and 36(1)(va), etc. In the instant case nature of receipts on credit side of Profit and Loss Account for eligible housing projects u/s.80IB(10) was the same and disallowance of expenditure on the debit side would only result into enhancement of net profit. Accordingly, the assessee’s claim was liable to be allowed in view of the ratio of the decisions cited (supra). As stated above, assessee is not eligible for deduction u/s.80IB(10) pertaining to its Cosmos project. The Assessing Officer has held in assessment order that sum of claim u/s. 80IB(10) was allowable to assessee for its Heliconia project. Thus, if any disallowance u/s.43B, 40(a)(ia) or 36(10(va) etc., relate to Heliconia project that only can be considered for claim u/s.80IB(10) and corresponding enhanced income. This reasoned finding of the CIT(A) on the issue needs no interference from our side. - Decided against revenue.
Deduction u/s.80IB(10) in respect of the Cosmos Project - AO denied the deduction on the ground that the built up area of the units in building Prime included in the said project exceeded 1500 sq.ft. - Held that:- CIT(A) was not justified in holding that flats in building Prime had built up area exceeding 1500 sq.ft., the entire Cosmos Project did not qualify for deduction u/s.80IB(10) in respect of its profits. There is nothing on record to suggest that assessee has claimed deduction in respect of building Prime wherein built up area of its units is exceeding 1500 sq.ft. In fact there were 25 buildings in Cosmos Project out of which except building Prime, all other buildings satisfy the conditions of built up area limit of 1500 sq.ft. Therefore, deduction u/s.80IB(10) should be allowed in respect of profit from such buildings. This view is fortified by the decisions in Vandana Properties (supra) and Aditya Developers (supra) discussed above. As regards two flats combined together, the allegation is that some units were combined into one, so deduction u/s.80IB(10) should not be allowed. In this regard, assessee’s stand has been that assessee conceived the flats as independent units and these were constructed as independent units. There is nothing on record to suggest that assessee himself has joined the adjacent flats. In this situation, assessee should not suffer for its no fault if purchaser join the adjoining flats. Thus we hold that assessee is entitled for deduction u/s.80IB(10) in respect of entire profits computed after making additions/disallowances in respect of Cosmos Project consisting of 24 buildings excluding Prime building. See Haware Constructions Pvt. Ltd. (2011 (8) TMI 1080 - ITAT MUMBAI), Emgeen Holdings P. Ltd. (2011 (7) TMI 199 - ITAT MUMBAI) and Arcade Bhoomi Enterprises [2013 (7) TMI 210 - ITAT MUMBAI]. Decided in favour of assessee.
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2012 (9) TMI 928 - ANDHRA PRADESH HIGH COURT
Manufacture - The respondent-assessee received duty paid MS angles, MS Rods, MS Plates and MS Channels and undertook the process of cutting of the angles, rods, plates and channels as per customer specification and drilled holes to the cut pieces, to facilitate fastening with bolts and nuts while erecting towers. The assessee was supplying these parts for erection of towers - Whether the items cleared by the respondents are dutiable and excisable? - Held that: - the parts fabricated by the respondents are not dutiable and there was no process of manufacture involved - appeal dismissed - decided against Revenue.
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2012 (9) TMI 927 - CESTAT MUMBAI
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... ... ..... order of Commissioner (Appeals) dated 28-5-2008 was challenged by the Revenue before this Tribunal. Therefore, the assessment of bills of entry were still in dispute before this Tribunal at the time of filing the refund claim. This Tribunal has set aside the original assessment of bills of entry vide order dated 5-8-2011 and said order has been accepted by the department. Therefore, as per the provisions of Section 27 of the Customs Act, 1962, the limitation for filing the refund claim shall start from 5-8-2011 and within six months from 5-8-2011, the appellant can file the refund claim. In these circumstances, I hold that the refund claim filed by the appellant is within time. 9. In view of this, I set aside the impugned order and allow the appeal with consequential relief. The adjudicating authority is directed to consider the bar of unjust enrichment and shall pass the order in accordance with law within 30 days of the communication of this order. (Dictated in Court)
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2012 (9) TMI 926 - ANDHRA PRADESH HIGH COURT
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... ... ..... AT in CC, Tuticorin v. KTV Oil Mills 2005 (182) E.L.T. 376 (Tri.-Chennai) and held that the Chemical Examiner’s report relied upon by the department is vitiated. Though the Tribunal recorded that the samples were tested after a lapse of nine months from its drawal. This finding does not appear to be correct in view of the fact that the samples were drawn (as recorded by the primary and appellate authorities) within 35 days of import. We however find no error in the conclusion recorded by the Tribunal, that the imposition of the differential Basic Customs Duty is unsustainable since the acid value of the samples must reflect the quality of the imported Crude Palm Oil as on the date of import and not after a lapse of time thereafter. On the aforesaid analysis, we find no question of law let alone a substantial question of law arising for consideration in this appeal under Section 130 of the Customs Act, 1962. The appeal is accordingly dismissed at the stage of admission.
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2012 (9) TMI 925 - SUPREME COURT
Whether the Respondents should be permitted to complete the remaining work on the land and the petitioner should be left with the option of raising a claim before the appropriate forum for such loss and compensation, if any, to which he may be entitled to in law?
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2012 (9) TMI 924 - ITAT BANGALORE
Extension of stay on collection of outstanding demand - Held that:- We are of the opinion that the stay on collection of outstanding demand be extended for a further period of 180 days from 7.9.2012 or till the disposal of appeal whichever is earlier. The appeal is posted for hearing on 29th October, 2012.
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2012 (9) TMI 923 - DELHI HIGH COURT
Waiver of pre deposit - whether Tribunal could have directed pre-deposit of the amount of excise duty once it set aside the adjudicating authority’s order and remitted the matter for fresh consideration - Held that:- once the Tribunal remits the matter for consideration, there is no need of pre-deposit of the amount as no demand stands. In these circumstances the direction of the Tribunal cannot be supported in law at all. This Court has considered the submissions. The show cause notice issued to the assessee culminated into a demand of penalty. The order of the Tribunal had the effect of setting at nought the determination of the adjudicating authority fixing the duty and penalty liability. In these circumstances, the Tribunal by no stretch of imagination could have directed the very same amount to be deposited - Court is conscious of the fact that that appeal is pending. Having regard to these contentions of the appellant, it is the impugned order has to be set aside to the extent the appellant is aggrieved. The direction to pre-deposit the amounts demanded, made by the Tribunal is accordingly set aside. - Decided in favour of assessee.
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