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Case Laws
Showing 161 to 180 of 1429 Records
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2014 (2) TMI 1272 - ITAT AMRITSAR
Undisclosed cash credit - genuineness of the transaction - creditworthiness of creditor - Held that:- There was no dispute regarding identification. As far as the genuineness of the transaction is concerned, the A.O. never doubted the same, the only reason for making the addition was the A.O. disbelieved the creditworthiness of the creditor, although, the source was duly explained to him, it appears that the A.O. doubted the source of the source.
Keeping in view the ratio laid down in S.Hastimal v. CIT reported in [1962 (12) TMI 60 - MADRAS HIGH COURT] wherein held assessee should not be placed upon the rack and called upon to explain not merely the origin and source of a capital contribution but the origin of origin and source of source as well. The difficulty on the part of any assessee to explain a transaction which took place before a decade has to be borne in mind by the department and should under no circumstances be underestimated or taken advantage of by them, we are of the view that the ld. CIT(A) was justified in deleting the additions. - Decided in favour of assessee
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2014 (2) TMI 1271 - SUPREME COURT
Punishment of dismissal - direction of dismissal punishment set aside and directed reinstatement of the respondent with continuity of service but without back wages by HC - Held that:- It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will. Learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of “habitual absenteeism” is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.
Employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.
Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do.
Consequently, the appeal is allowed and the judgments and orders passed by the High Court are set aside leaving the parties to bear their respective costs
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2014 (2) TMI 1270 - ITAT MUMBAI
Penalty u/s 271(1)(c) - incorrect claim of depreciation - Held that:- The assessee furnished all the details relating to the assets i.e. the truck and claimed the depreciation.
However, merely on the basis that an incorrect claim of depreciation was made by the assessee, it cannot be said that it was a case of furnishing of inaccurate particulars or concealment of income. Thus we are of the view that it is not a fit case for levying the penalty under section 271(1)(c) of the Act. - Decided in favour of assessee.
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2014 (2) TMI 1269 - ANDHRA PRADESH HIGH COURT
Whether CESTAT is justified in interpreting that the services rendered by respondent fall within the definition of Information Technology Services as provided in explanation to Section 65(19) of Finance Act, 1994 reported in [2008 (3) TMI 33 - CESTAT BANGALORE] - Held that:- we have seen the relevant portions in the contract, which have been recorded by the learned Tribunal. Upon reading the contract, it appears to us, as has been correctly held by the learned Tribunal, that the respondent is rendering such service, which will fall under the scope of ‘Information Technology Services’. When the interpretation on fact is one of the two possible views, this Court in exercise of its jurisdiction under Section 35G of the Central Excise Act, 1944 cannot be appreciated the fact. Therefore, we do not find any reason to interfere with the judgment and order of the learned Tribunal. - Decided against the Revenue
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2014 (2) TMI 1268 - ITAT CHENNAI
Expenditure for repair and maintenance of building, development charges of raw material storage yard and filling, levelling and development of safety area-III - revenue v/s capital expenditure - CIT(A) has merely followed the order of the ‘tribunal’ pertaining to assessment year 2004-05 in deleting the addition - Held that:- Once the ‘tribunal’ has deleted the very additions, this argument of the Revenue does not form a justifiable ground for us to adopt a different approach in the impugned assessment year. Therefore, we upholding the findings of the CIT(A).
Re-work the deduction u/s 80IA without setting off the losses on notional basis qua disallowance made in the course of ‘regular’ assessment - Held that:- CIT(A) has followed the decision of hon'ble jurisdictional high court in the case of Velayudhaswamy Spinning Mills (P) Ltd. vs ACIT [2010 (3) TMI 860 - Madras High Court] in observing that losses of earlier year prior to initial assessment year (first year of claim) which had already been set off cannot be set off once again against the profits of eligible business in determining the quantum of deduction u/s 80IA(4) of the Act. In this manner, the disallowance/addition stands deleted. In our view, once the hon'ble jurisdictional high court has decided this substantial question of law, there is no reason to interfere in the CIT(A)’s order which has followed the said judicial verdict. Accordingly, the findings under challenge stand confirmed.
Depreciation claim - Held that:- The assessee has fairly conceded to this plea of the Revenue that the value had not been arrived at in accordance with section 32(1)(ii) as in the case of other plant and machinery as it pertained to increase in the cost of windmill due to the debit of stamp charges paid during the year towards windmill purchases in earlier year. Accordingly, we restore this disallowance of depreciation as the assessee has not supported the findings of the CIT(A). The Revenue’s arguments stand accepted.
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2014 (2) TMI 1267 - DELHI HIGH COURT
Recovery of terminal excise duty earlier disbursed - civil works contract - deemed export benefits - treat supplies to such projects are equivalent to exports, with the same benefits - power of DGFT to review an order under Section 16 of the Act - the decision of the case Alstom India Ltd Through Authorized Signatory Versus Union of India & Another [2014 (2) TMI 1013 - GUJARAT HIGH COURT] is referred to.
Held that: - There can be no review of an earlier refund except in accordance with the provision of Section 16 of the FTDR Act, which only permits the DGFT or the Central Government (in case the original order was by the DGFT) to exercise the power of review. The declaration in paragraph 7 of ANF-8, that Simplex will return any excess duty refunded, cannot eclipse the narrow statutory power to review provided under the Act. - the impugned order and subsequent recovery proceedings exceeds the authority granted by law under the FTDR Act.
Recovery cannot be made. Petition allowed - decided in favor of petitioner.
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2014 (2) TMI 1266 - ITAT AGRA
TDS u/s 195 - whether notwithstanding taxability of amounts paid to non-residents, section 40(a)(ia) read with section 195 of the Income Tax Act, 1961, disallowance can not be invoked in case in which no services are rendered in India in view of pre amended section 9 (1)(vii) read with Explanation thereto? - This plea, according to the assessee applicant, was accepted by the learned CIT(A) but the Tribunal has not dealt with the same - Held that:- In view of the above discussions as also bearing in mind the fact that the Tribunal indeed did not deal with the above aspect of the matter in the order dated 4th February, 2014 and with the consent of parties we deem it fit and proper to recall the order for the limited purpose of adjudication on correctness of the above plea. Accordingly, the hearing is now fixed on 04.03.2014 for the limited purpose of dealing with the said plea, as prayed by the assessee.
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2014 (2) TMI 1265 - PUNJAB AND HARYANA HIGH COURT
Disallowance to the expenditure for earning dividend - Held that:- Deduction for interest was permissible when loan was taken for business purpose and not for diverting the same to sister concern without having nexus with the business. Observations made therein have to be read in that context. In the present case, admittedly, the assessee did not make any claim for exemption. In such a situation, section 14A could have no application. See CIT vs. Hero Cycles Limited (2009 (11) TMI 33 - PUNJAB AND HARYANA HIGH COURT) - Decided in favour of the assessee
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2014 (2) TMI 1264 - ITAT MUMBAI
Disallowance made by the AO u/s.14A r.w.8D - Held that:- As the assessee had more funds at its disposal, in form of share capital and reserves, than the investment made during the year. Therefore, respectfully, following the orders of the Tribunal, for the earlier years, we confirm the order of the FAA for the interest expenses. As far as administrative expenses are concerned; following the order of the Tribunal for the earlier years; we direct the AO to restrict the same to 5% of dividend income. Grounds of appeal taken by the AO are allowed, in part.
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2014 (2) TMI 1263 - CALCUTTA HIGH COURT
Condition of pre-deposit - the appellant submitted that the deposit contemplated under section 129E of the Customs Act can be directed only in those cases where the duty or interest or penalty has been levied in respect of the goods which are not under the control of the Customs authorities. In this case, admittedly the Customs authorities are in possession of 270 bales of the goods. Out of those 270 bales, Mr. Chowdhury, learned Advocate pointed out that by the impugned order, 70 bales were released.
Held that:- in the facts and circumstances of the case, pre-deposit could not have been claimed or directed to be made. Therefore, the order to that extent is wrong and is set aside.
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2014 (2) TMI 1262 - ITAT HYDERABAD
Applicability of sec.115JB on assessee bank - Held that:- Admittedly, the assessee has not challenged this issue in an earlier occasion before the Tribunal and stated that the assessee did not want to press the ground. After hearing both the parties, the Tribunal dismissed the ground raised by the assessee as not pressed. It means that the Tribunal adjudicated the ground and thereafter, the AO passed impugned consequential order, which is in consonance with the order of the Tribunal. Now, the assessee’s counsel wanted to re-argue the case, which is not permissible, as unless and until the earlier order of the Tribunal dated 19th March, 2010 is disturbed by any process of law. Therefore, the assessee is not at all at liberty to challenge the finding of the Tribunal in the second round of litigation by way of rearguing the issue, which has already been adjudicated by the Tribunal in an earlier occasion. It is a settled law that the Tribunal has no power to review its own order and, therefore, if the assessee wants to agitate the issue, which has already been decided by the Tribunal, the Tribunal has no power and remedy lies elsewhere. The case law relied upon by the AR in the case of Indian Oil Corporation Ltd. (1986 (8) TMI 57 - SUPREME Court) is nothing to do with the present case as it was delivered on different set of facts. - Decided against assessee.
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2014 (2) TMI 1261 - ITAT CHENNAI
Additional income brought to tax - survey operation - Held that:- The assessee has manipulated his claim of expenditure so as to offset the revenue effect of additional income of ₹ 15 lakhs offered by him in the course of survey. It is an undisputed fact that the amount of ₹ 15 lakhs was offered by the assessee as additional income over and above his regular income from the business. Therefore, it is not permissible for the assessee to dilute the said amount of additional income by overstating the expenditure.
In the facts and circumstances of the case, we find that the Assessing Officer has rightly made an addition of ₹ 15 lakhs and the same has to be sustained. We set aside the order of Commissioner of Income Tax (Appeals) on the issue of deleting the addition of ₹ 15 lakhs. - Decided in favour of revenue
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2014 (2) TMI 1260 - ITAT MUMBAI
Depreciation computation - capital subsidy reduction from the cost of machinery - Held that:- Capital subsidy is not required to be deducted from the cost of plant and machinery
Revenue v/s capital receipt - Held that:- Subsidy received as Excise duty reimbursement cannot be taken as revenue receipt
MAT computation - Held that:- AO is not entitled to add the above said two items to the book profit computed u/s 115JB of the Act. See assessee's own case [2014 (1) TMI 1747 - ITAT MUMBAI]
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2014 (2) TMI 1259 - CESTAT NEW DELHI
Seeking direction for expeditious completion for regular proceeding - Held that:- we do not find difference to such proposition since right to early justice is the right vested with the litigant. We hope that the learned Adjudicating authority shall expeditiously complete the regular proceeding. - Misc. as well as stay applications and appeal are dismissed
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2014 (2) TMI 1258 - KARNATAKA HIGH COURT
Eligibility - Chemical fertilizer mixture - Grant of exemption from the levy of turnover tax under Section 6B of the Karnataka Sales Tax Act - Notifications dated March 31, 1997, March 1, 1998, March 31, 1999 - Tribunal passed the order without considering the judgment of this Court as not a binding precedent in the case of Pali Chemical Industries, Nippani, Belgaum v. Additional Commissioner of Commercial Taxes, Zone I, Bangalore [2004 (11) TMI 545 - KARNATAKA HIGH COURT].
Held that:- discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. Therefore, the Tribunal should have kept in mind that the doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs, and, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.
Entry 11 defines what a chemical fertilizer is and what a chemical fertilizer mixture is. Both are distinct entries and so understood, as such exemption was granted only to chemical fertilizer. This benefit was not extended to chemical fertilizer mixture. Therefore, when the Legislature made a distinction between chemical fertilizer and chemical fertilizer mixture from the inception, a notification exempting from payment of turnover tax on chemical fertilizer cannot be extended to chemical fertilizer mixture. If that is done by the interpretation process, the court would be adding to the notification which the Legislature and the Government did not intend to.
The courts have no power to legislate, to add or to remove from the notification issued by the Government. When the Government notification specifically refers to the chemical fertilizer, there is no scope for interpretation also. In that view of the matter, we do not see any substance in the said contention. In fact, in the Pali Chemical Industries case (supra), the Division Bench, as stated earlier, has extracted the entries, examined the entire scheme of entry 11, followed the judgment of the apex court, looked into the very same notification and has placed interpretation, which, in our opinion, is also proper and correct. We do not see any justification to differ from the said interpretation and the judgment in Pali Chemical Industries' case (supra) equally binds this court. Therefore, the order passed by the Tribunal cannot be sustained. - Revision Petitions are allowed
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2014 (2) TMI 1257 - MADHYA PRADESH HIGH COURT
Maintainability - reopening of assessment orders of various years - recovery of Commercial Tax under M.P. Commercial Tax Act, 1994 - entire process of assessment or reassessment has been undertaken and final orders of assessment has been passed during pendency of writ petitions before this Court - Held that:- the assessment officer has conducted the assessment proceedings and now as the assessment order has been passed the petitioner should take recourse of remedy available under the statute and file an appeal before the statutory independent appellate authority, as is indicated under Section 61 of M.P. Commercial Tax Act. The question as to whether the assessment has been done properly, whether proper opportunity of hearing has been granted to the petitioner, whether relevant documents are supplied or not are all questions which can be dealt with by the competent Appellate Board. On such consideration, indulgence of this Court exercising extraordinary jurisdiction in this petition under article 226 of the Constitution is not called for.
In a matter pertaining to assessment of tax, when the assessment order is based on scrutiny of account books, ledge, vouchers and other materials, the assessment being based on certain factual aspects of the matter, such questions can be more appropriately dealt with by the statutory Appellate Board than by a writ court under Article 226 of the Constitution. Therefore, the petitioner is given the liberty to challenge the order of assessment in accordance to provisions of M.P. Commercial Tax Act before the assessment Board. - Petition disposed of
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2014 (2) TMI 1256 - CESTAT AHMEDABAD
Appeals not traceable with the registry - Held that:- We find that the files were not traceable and subsequently are reconstructed and transferred from Mumbai Bench and received on 27.01.2014 by this bench. Since the matter is of 1995, we allow the application filed by the Revenue and direct the registry to list the matter for disposal on 17.04.2014
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2014 (2) TMI 1255 - MADRAS HIGH COURT
Validity of Tribunal's order - Waiver of pre-deposit - Non-appearance of counsel of appellant - Order passed ex-parte as there was no application for adjournment and there many adjournments before to make pre-deposit a sum being entire amount of service tax demanded - Held that:- the case was adjourned for the purpose of furnishing certain materials. However, the nature of such materials is not placed before this Court. Be that as it may, the reason assigned for non-appearance, prima facie appears to be genuine in the absence of any rebuttal for the same. Therefore, in order to given an opportunity to the assessee and in the interest of justice, we deem it appropriate that the Tribunal should hear the assessee on merits on the miscellaneous application. Therefore, the impugned order is set aside and the matter is remanded back to the Tribunal. - Appeal allowed by way of remand
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2014 (2) TMI 1254 - CALCUTTA HIGH COURT
Recovery of dues - failure to deposit the amount on the ground that appeal has been filed - Petitioner contended that the impugned notice is based or founded upon circular dated 1st January, 2013, which has been quashed and set aside by different High Courts. Also the authorities cannot proceed to recover the amount when the same is the subject matter before this Court in the earlier writ petition.
Held that:- the petitioner had an opportunity to deposit the dues as indicated by this Court and having failed to do so, there is no impediment and fetter put on the department to proceed with the recovery of the said amount. The Rajasthan High Court in the case of Manglam Cement Ltd. v. Superintendent of C. Ex. Range-III, Kota [2013 (4) TMI 102 - RAJASTHAN HIGH COURT], categorically held that mere filing of an appeal does not operate as stay or suspension of an order appeal against. The interim order sought for was refused at the admission stage. Therefore, the petitioner cannot say that the authorities are denuded of its power to take steps for recovery of the amount. The petitioner has tried to demonstrate before this Court that certain observations were made when the earlier writ petition was taken up, which inevitably suggest that the Court was conscious of the situation that the authorities shall not take any coercive measures pending the said writ petition. Though this Court finds that the department cannot take advantage of a circular, which is already quashed and set aside by the High Court, but for reasons narrated above, this Court does not intend to interfere with the said recovery notice, even if the circular appears to be non est.
Furthermore if certain event has taken place and the observation is made by the Court orally, the same Hon’ble judge can only modify/clarify or indicate the happenings of such event and not by another judge or the higher forum. Since there is no interim order passed by the Court restraining the department from proceeding to recover the amount, the contemplation at the behest of the department for taking measures to recover the said amount cannot be faulted with. - Decided against the petitioner
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2014 (2) TMI 1253 - KARNATAKA HIGH COURT
Rejection of the reference by BIFR - Held that:- The Majority shareholder of the respondent is the majority shareholders of Anand Comforts Pvt. Ltd., which is also said to be carrying on a similar business as the respondent. The debts were cleared out of the sale proceeds of the personal assets of the wife of the Managing Director and also out of the personal borrowing of the Managing Director of the respondent-Company. The machinery is said to be in good condition and will be used in its business and that there are no debts except as aforesaid and even if there are any dues legitimately payable to any person, the respondent undertakes to clear the same. Hence, it is sought that the reference be rejected and the proceedings be closed.
As claimed on behalf of the respondent-Company, there are no substantial dues to be cleared except those mentioned hereinabove and therefore, on an undertaking to be filed by the respondent, by way of an affidavit and an Indemnity Bond to the effect that the amounts mentioned hereinabove shall be cleared in due course in terms as aforesaid, the reference is rejected and the proceedings stand closed. The affidavit and the Indemnity Bond shall be filed within a period of one week from today.
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