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Showing 181 to 200 of 1510 Records
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2015 (1) TMI 1338
Treatment of the transaction of purchase and sale of shares - capital gain OR profits and gains of business - magnitude and frequency of the transaction - Held that:- The assessee is full time involved in other activity of being Executive Director of Serum Institute of India Ltd.. There is no material to suggest that any organizational structure or infrastructure is possessed by the assessee to undertake trading in shares as a business activity. There is no material to say that assessee acted as a frequent dealer in shares over an extended period of time. No doubt, for a short spell of time in the months of February and March, assessee has undertaken transactions in the shares of HCL Technologies Ltd..
But the same by itself cannot be categorized as a business activity, as it is not a continuous activity. Moreover, we also find weight in the plea setup by the Ld. Representative before us that if the intention was to incur loss, as canvassed by the Assessing Officer, then obviously such an activity cannot be categorized as ‘business’. It is well understood that no business is carried out with an intention of making a loss, rather the intention is always to make profits. Therefore, by taking an overall view of the facts and circumstances of the present case, we are unable to uphold the stand of the lower authorities that the transaction in the shares of HCL Technologies Ltd. is a business transaction. We hereby set-aside the order of the CIT(A) on this aspect and direct the Assessing Officer to re-compute the capital gain/loss on the sale of shares of HCL Technologies Ltd. considering it to be assessable under the 20 head capital gains as per law. Thus, on this aspect assessee succeeds.
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2015 (1) TMI 1337
CENVAT credit - job-work - Held that: - the Larger Bench in the case of STERLITE INDUSTRIES (I) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE [2004 (12) TMI 108 - CESTAT, MUMBAI], took the view that MODVAT credit of duty paid on inputs used in the manufacture of final products cleared without payment of duty for further utilization in the manufacture of final products which are cleared on payment of duty by the principle manufacturer would not be hit by provisions of Rule 57C - appeal allowed - decided in favor of appellant.
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2015 (1) TMI 1336
CENVAT credit - duty paying invoices - the said credit is not available as the appellant had not produced the proper invoices and documents on the basis of which the same was availed - scope of SCN - Held that: - it was not open to the adjudicating authority to travel beyond the allegations made in the SCN and to deny the credit based on an altogether new ground.
The adjudicating authority has also disallowed the credit of ₹ 94,611/- as excess credit availed. Learned advocate has tried to establish the figures of the entire credit availed and the credit attributable to each and every service and submits that there is no reason for the Commissioner to come to the finding of the excess credit - appeal allowed by way of remand.
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2015 (1) TMI 1335
TPA - determination of ALP - selection of comparable - Held that:- Assessee is an IT solution company that provides software development service in the areas of ERP solutions design, implementation & maintenance and Internet technology solutions to its customers. The company has a hundred percent Export Oriented Undertaking (EOU) registered with the software Technology Parks of India {STIP}, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
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2015 (1) TMI 1334
Addition u/s 68 - Held that:- What will be the implication after section 68 is applied to the opening balance of a little over ₹ 12 lakhs in this case vis- a -vis the further transactions is a serious question of fact which has to be considered and for that purpose we are of the opinion that a remand is required. We should not be deemed to have expressed any opinion as to whether the peak credit theory is applicable to the facts and circumstances of the case or is not applicable to the facts and circumstances of the case. That question is left to be decided by the Tribunal on the basis of evidence, which may be adduced before them and they shall allow letting in of necessary evidence, if the assessee so desires. The limited question to be considered is whether the assessee is entitled to any benefit on the basis of peak credit theory.
In the result, the order under challenge is set aside and the matter is remanded to the learned Tribunal for re-hearing. The learned Tribunal is requested to hear out the matter within a period of six months from the date of communication of this order.
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2015 (1) TMI 1333
Treatment to assessee Samiti as registered under Section 12-A - the assessee got itself registered under Section 12-A w.e.f. 26.9.2005 - Held that:- Section 11 of the Act of 1961 provides that subject to the provisions of Sections 60 to 63, the income derived from property held under trust wholly for charitable or religious purpose shall not be included in the total income of the previous year of the person in receipt of the income. The Krishi Upaj Mandi Samiti being created under a statute is discharging public charitable functions from the date of its establishment and as such merely the fact of certification at a belated stage will not make it disentitled to have benefit of Section 11 ibid. Looking to peculiar fact that the instant assessee was created under the Rajasthan Agriculture Produce Market Act, 1961 with its statutory duties and liabilities, we are of the view that the Income Tax Appellate Tribunal was justified in holding that the Samiti is a charitable institution from inception and, thus, is entitled for getting its income computed by taking into consideration provisions of Section 11(1) of the Act of 1961, even for the years prior to having certificate under Section 12-A of the Act of 1961.
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2015 (1) TMI 1332
Offence made out against the appellant under the provisions of Prevention of Corruption Act - Held that:- The Magistrate, having seen the records and having heard the parties, has come to the conclusion that no offence is made out against the appellant under the provisions of the PC Act so as to prosecute him. Even according to the High Court, "the crux of the matter is the conversation between the complainant and the accused no.1 of 22.11.2010". That conversation is inaudible and the same is not to be taken in evidence. Therefore, once the 'crux' goes, the superstructure also falls, lacking in legs. Hence, prosecution becomes a futile exercise as the materials available do not show that an offence is made out as against the appellant. This part, unfortunately, the High Court missed.
Once the prosecution is of the view that no case is made out so as to prosecute an accused, unless the court finds otherwise, there is no point in making a request for sanction for prosecution. If the prosecution is simply vexatious, sanction for prosecution is not to be granted. That is one of the main considerations to be borne in mind by the competent authority while considering whether the sanction is to be granted or not. In Mansukhlal Vithaldas Chauhan v. State of Gujarat[(1997) 7 SCC 622], this Court has in unmistakable terms made it clear that no court can issue a positive direction to an authority to give sanction for prosecution.
The High Court exceeded in its jurisdiction in substituting its views and that too without any legal basis. The impugned order is hence set aside. Appeal is allowed.
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2015 (1) TMI 1331
Pre-deposit - maintainability of petition - Held that: - taking into consideration the financial status of the company, Tribunal passed the order impugned. The order does not suffer from any error that may warrant interference of this Court while exercising powers under Article 226 of the Constitution of India - petition dismissed.
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2015 (1) TMI 1330
Levy of CST instead of Jharkhand VAT - petitioner's case is that petitioner is e-auction purchaser of coal within the State of Jharkhand. He is a registered dealer within the State of Jharkhand. The seller and purchaser of the goods are within the State of Jharkhand. The whole transaction of sale has been completed within the State of Jharkhand and, therefore, the Annexure 4 as CST Invoice cannot be issued. In fact, it should have been VAT and respondent No.6 is at no loss at all , because the VAT is also at the rate of 5% and the CST is at the rate of 5%, but it would make a difference for this petitioner for getting input tax credit.
Held that: - even if the movement of goods have taken place out of one State to another State, by per se, CST is not leviable. One has to draw his attention, whether the movement of goods from one State to another has taken place due to e-auction or not. If answer is negative, the CST is not leviable. There may be second sale. Subsequent purchaser may purchase the same goods. Now, if due to subsequent sale, if, the very same goods are moving from one State to another, therefore seller of goods of first transaction cannot levy CST but he can levy only VAT - the CST, levied at the rate of 5% by respondent no.6 is impermissible in the eyes of law. Instead of that, it should have been VAT under the Jharkhand Value Added Tax Act, 2005 - petition allowed - decided in favor of petitioner.
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2015 (1) TMI 1329
Admit on the following substantial questions of law:-
(A) Whether on the facts and in the circumstances of the case and in law, the Tribunal grossly erred in not, at the outset, deciding the application for admission of additional evidence filed under Rule 29 of the Income Tax Appellate Tribunal Rules,1963 read with the additional evidence paper book before proceeding to pass an order on the merits of the controversies involved in the appeal ?
(B) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in approving the denial of exemption under Section 54F ?
(C) Whether the Tribunal infringed the principles of natural justice in not providing an opportunity to the Appellant to rebut the detrimental conclusions inferred by the Tribunal based on the additional evidences adduced by the Appellant and the Circular No.495 dated 22.09.1987 ?”
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2015 (1) TMI 1328
Claim of deduction under Section 36(1)(viia) - Assessing Authority took population figures of the Census 2001 to be adopted for the purpose but was computed by the assessee in respect of population of the places in which the assessee's Rural Banks were situated with reference to the population figures of the Census 1991 - Held that:- The word published has to be understood as final population as contended by the learned counsel appearing for the assessee. If other words are added it would amount to re-writing which is impermissible in law. Keeping in mind the object, before the bank is entitled to the said benefit all that is to be seen is whether in that village where the rural branch is situated population is less than 10,000 or exceeding 10,000. Census is conducted once in ten years. After conclusion of the Census, provisional figure will be published and then final publication is made. If from the date of provisional population totals being published it has crossed the 10,000 limit as prescribed under the Law, then it does not satisfies the requirements of the rural branch and consequently assessee would not be entitled to the benefit granted to the rural branches. The publication of the final population total is only a formality. If after provisional population total shows more than 10,000 and in the final population total figure shown is less than 10,000 then it will make difference.
But in both the provisional population total and the final population total if figure is mentioned above 10,000 it makes no different in the instant case. It is not the case of the assessee though the provisional figure mentioned is above 10,000 and in the final population total it has gone below 10,000. Therefore, provisional population total cannot be acted and in that view of the matter the Tribunal was justified in upholding the order passed by the assessing authority where they have acted on the Census figures of 2001 as reflected in the provisional population totals and denied the benefit to the assessee. We do not find any error committed by the authorities. In that view of the matter, the substantial question of law is answered in favour of the revenue and against the assessee.
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2015 (1) TMI 1327
Addition being 10% of telephone and conveyance expenses - rejection of books of accounts - Held that:- Find merit in the arguments of learned counsel for the assessee that when the books of account are rejected and trading additions are made, there is no justification in making further ad hoc disallowance qua telephone and conveyance expenditure. This view is supported the ITAT in assessee's own case for preceding year. In view thereof, the addition is deleted. - Decided in favour of assessee
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2015 (1) TMI 1326
Speaking order - respondent No.2 was required to pass a speaking order on the re-assessment of assessable value within 15 days from the date of reassessment of the bill of entries as required u/s 17(5) of the Act - Held that: - the competent officer to pass a speaking order on the re-assessment of the assessable value within a period of four weeks - petition allowed - decided in favor of petitioner.
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2015 (1) TMI 1325
Benefit of N/N. 63/95-CE dated 16.03.1995 - goods manufactured by the appellant, which were cleared to M/s. HAL, were further supplied to defence, the same were being cleared by the appellant without payment of duty - denial of benefit of notification on the ground that the notifications in question grant exemption to M/s. HAL and not to the vendors of HAL - time limitation - Held that: - certificates handed over to the appellant duly signed by CSIO or aeronautic development agency and based on which the appellant availed the benefit of notification. Even if the fact that they were not signed by the proper officer is admitted, no suppression or mis-declaration can be attributed to the assessee so as to invoke the longer period of limitation - as is seen from the certificate, the person signing the same is holding the rank in pay scale higher than the Deputy Secretary to Government of India in which case even though the certificates were not signed by Deputy Secretary, the same should be accepted. Further the Superintendent in his letter dated 28.10.2013 has also verified the said certificates and has reported that the same appears to be adequate - demand cannot be held sustainable on the point of limitation itself - appeal allowed by way of remand.
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2015 (1) TMI 1324
Penalty u/s 271(1)(c) - Held that:- AO has not brought out any specific charge for which the penalty has been imposed on the assessee u/s 271(1) (c) of the Act. He has not brought out whether the assessee has concealed the particulars of income or whether the assessee has furnished inaccurate particulars of income.
None of the decision of Hon’ble Supreme Court as relied by the AO, it has been held that the penalty u/s 271 (1) (c) is mandatory or automatic wherever the addition or disallowances are made by the AO. The assessing officer merely observed that the penalty is mandatory as he was fully aware of that no charge as specified u/s 271 (1) (c) was leviable against the assessee. On this basis also, the penalty was wrongly levied just for the purpose of levying the penalty. We, accordingly set aside the order of CIT(A) and delete the penalty imposed u/s 271(1)(c). - Decided in favour of assessee
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2015 (1) TMI 1323
Validity of Show-cause Notice - Two show cause notices dated 21.4.2010 and 20.4.2011 were issued for the period April 2008 to March 2011 alleging that the assesee had provided Business Auxiliary Service and had failed to remit tax on amounts received for providing such service - the decision in the case of COMMISSIONER OF SERVICE TAX Versus ITC LTD. [2015 (1) TMI 810 - DELHI HIGH COURT] contested - matter was remanded for fresh consideration - appeal dismissed.
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2015 (1) TMI 1322
Maintainability of appeal - rejection on the ground of non-compliance of the interim order - Held that: - If the appellant has not complied with the interim order, the Tribunal should have vacated the interim order and rejected the stay application but non-compliance of the interim order cannot be a ground to reject the appeal of the appellant, which in our opinion was required to be adjudicated on merits - appeal restored - decided in favor of appellant.
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2015 (1) TMI 1321
Benefit of N/N. 43/2001-C.E. (N.T.), dated 26-6-2001 - procurement of duty free Acrylic Knitted Panels for use in the manufacture and export of “Suede Leather Garments with Acrylic Knitted Panels” - denial of benefit on the ground that the respondents had not submitted application in Form ARE-2 in respect of garments exported.
Held that: - There is no dispute that conditions of exemption notification should be construed strictly - In the present case, the condition of exemption notification is that the duty free input has to be used in the exported goods. It is evident that the duty free inputs were used in the manufacture of export goods and duly recorded in the registers and therefore, the conditions of notification are substantially complied with by the respondent - appeal rejected - decided in favor of respondent-assessee.
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2015 (1) TMI 1320
100% EOU - refund claim - appellant could not have filed the claim every month relying upon Paragraph 2 which deals with filing of such refund claims, refund claim has been rejected - Held that: - A 100% EOU can file refund claim for each calendar month. The quantum of export principle is applicable only for domestic units and if intention was to incorporate such a condition, it would have been mentioned in Paragraph 2(b) also. In the absence of such mention, the clause cannot be read into paragraph ‘b’.
When the deemed exports are made, it results in accumulation of Cenvat credit also - value of deemed exports cannot be taken into account also cannot be accepted.
Appeal allowed - decided in favor of appellant.
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2015 (1) TMI 1319
SSI exemption - use of brand name of others - Held that: - the appellants used the brand name “FAMCOM” which is owned by other unit M/s. Farm Manufacturing Co. Delhi, a proprietorship firm. One of the Directors of the appellant company is the proprietor of the said unit. It is also contended by the appellant that after clubbing the value of the clearances of both the units are within the prescribed limit of exemption during the relevant period - exemption allowed - appeal allowed - decided in favor of appellant.
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