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Showing 221 to 240 of 1510 Records
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2015 (1) TMI 1297
Disallowance made u/s 14A - Held that:- The claim of the assessee is that the companies in which the investment have been made are subsidiary and Group companies. However, we are of the view that the said claim requires verification at the end of the AO.
Further, we are of the view that the fresh contention put forth by the Ld A.R also needs to be examined at the end of the assessing officer. Accordingly, we set aside the order of ld. CIT(A) on this issue and restore the matter to the file of the AO with a direction to examine the claim of the assessee afresh and take appropriate decision in accordance with law.
Appeal filed by the assessee is allowed for statistical purposes.
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2015 (1) TMI 1296
Direction to deposit fifty per cent of the pre-deposited amount - Section 35F of the Central Excise Act, 1944 - contrary to the statutory provision - according to the circular of the Central Excise and Service Tax (Annex.A/2), dated 16-9-2014, appellant is only required to deposit 10% of the taxable amount - Held that:- it is seen that these facts were not brought to the notice of the Tribunal and it seems that the appellant agreed to deposit 50% of the pre-deposited amount. That being so, for the present, we see no reason to interfere in the matter. Instead, it would be appropriate to direct the appellant to bring these facts to the notice of the Tribunal and thereafter seek review or modification of the order passed by the Tribunal. - Petition disposed of
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2015 (1) TMI 1295
Eligibility to claim deduction under sec.80P(2)(a)(i) - Held that:- The activities in the nature of accepting deposits, advancing loans etc.,carried on by the assessee are confined to its members only and that too in a particular geographical area. The activities of the assessee are not regulated by the RBI or the provisions of the Banking Regulation Act. Thus, in view of the above stated fact we do not find any infirmity in the order of the CIT(Appeals) holding that the assessee is eligible to claim deduction under sec.80P(2)(a)(i) - Decided in favour of assessee
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2015 (1) TMI 1294
Nature of income - Share transaction - Short term capital gain v/s business income - ITAT confirmed gain as STCG - Held that:- The bulk of the shares held by the assessee were for a substantial period; this persuaded the appellate authorities to hold that the test indicated by the previous rulings of the Supreme Court, as to whether the income was derived on account of liquidation of investments, stood satisfied. In similar circumstances, in Commissioner of Income Tax v. Devasan Investments Pvt. Ltd. (2014 (4) TMI 682 - DELHI HIGH COURT ) and other decisions, this Court has held that there cannot be a single factor or criterion to determine whether income falls under the head of short term capital gain or of business income. The ITAT has followed the reasoning indicated in the judgment of the Supreme Court and appropriately applied the tests. Consequently, we find no infirmity in this order.
As urged on behalf of the appellant that no claim for expenditure could have been allowed, given that the income is not a business income. Consequently, we hereby direct that while giving effect to the order of the ITAT, the AO shall examine the permissibility of expenditure in relation to the short term capital gain as well as in relation to the business income, in accordance with law.
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2015 (1) TMI 1293
Exemption under Section 11 - assessee is receiving amounts in excess of the amount prescribed by the government by way of developmental fee - whether if the assessee recovers amounts in excess of what is prescribed in law, either under a statute or by way of notification, it amounts to a commercial activity and take the case out of Section 11 of the Act ? - Held that:- In the instant case, it is not in dispute, the assessee has collected money from the students belonging to the government quota, as prescribed by the government, in the notification. From the students belonging to the management quota, they have collected the fees prescribed by the government and in addition, they have also collected developmental charges. All these amounts received, are accounted for in their books of accounts. All these amounts are invested in the activities of the Trust. In fact they have taken loan to the extent of ₹ 3,01,75,330/-, as the amount received by way of developmental charges, is not sufficient for the activities of the Trust. The said loan is also raised to carry out the objects of the Trust. As pointed out by the Tribunal, there is not even an iota of evidence in regard to mal application of the funds. Merely because the assessee has collected huge amounts by way of developmental charges, the Trust does not cease to be a charitable Trust and the activities carried on by the Trust would not transform itself into a commercial activity. Therefore the Tribunal was justified in upholding the order of the First Appellate Authority and dismissing the appeal preferred by the Revenue. In that view of the matter, the substantial questions of law which are framed in these appeals, are answered in favour of the assessee and against the Revenue.
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2015 (1) TMI 1292
Eligibility of Cenvat credit - whether the capital goods brought to the factory for R&D work during the period from March 08 to November 2012 would be eligible for Cenvat Credit or not? - Held that:- The definition of capital goods in as given Rule 2(a) of Cenvat Credit Rules, 2004 covers the goods listed in this sub Rule, which have been "used in the factory of manufacture of final product". Thus, for capital goods Cenvat Credit, their use in or in relation to manufacture of final product is not required and their use in the factory of manufacture for the any purpose whether in or in relation to manufacture or for any other purpose including R&D would be enough for permitting the Cenvat Credit. In view of this, the impugned order is not sustainable. The same is set aside. The appeals are allowed in favour of assessee.
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2015 (1) TMI 1291
Harassment of the petitioner - demand of VAT illegally - Estimation of turnover escaped from VAT - Bihar Value Added Tax Act, 2005 - in view of the inspection report, it was estimated that in two years the petitioner must have made turnover of a sale of ₹ 36,00,000 and taking a minimum amount the tax was calculated at ₹ 1,44,000/- and penalty of the same amount was imposed under Section 28 of the Act.
Held that:- In our view, the report of the District Magistrate, Khagaria clearly goes to show that there was only one shop at the location, Station Road, Khagaria by the name of Shiv Shiva Readymade Dresses. It is also not in dispute that the petitioner has obtained registration certificate under the Bihar VAT Act and has TIN number duly allotted under the said Act by the name of Shiv Shiva Readymade Dresses. Once these two facts are taken into consideration, it is evident that the officers of the Commercial Tax Department have acted in this matter only to harass the petitioner with motive known only to them. If the basic fact remains that the shop was being run in the name of Shiv Shiva Readymade Dresses, which fact has been verified by an authority no less than the District Magistrate, Khagaria, then every statement made in the impugned order of the Commercial Tax Officer is based entirely on conjectures and surmises and does not have any basis to support the same.
If it is a case of evasion of tax then appropriate provisions of the Bihar Value Added Tax ought to have been applied for proceedings against the petitioner but no action could have been taken under Section 28 of the Act treating the petitioner as a dealer having no registration certificate. - writ applications allowed - Decided in favor of assessee.
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2015 (1) TMI 1290
Validity of exparte assessment order without giving any opportunity of being heard - service of notice - Jharkhand Value Added Tax Act, 2005 - it was contended that, there is no sale of the goods as mentioned in the exparte assessment order, but, it is stock transfer of machineries from different branches of the petitioner situated in different States - Held that:- It ought to be kept in mind by the State that when the State is imposing such a huge liability of tax of approximately ₹ 90 Lakhs, more care shouldhave been taken by the State to serve the notice upon the petitioner or uponthe assesse Not only orthodox methods of service of notice should have been followed, but, over and above the orthodox methods, the State should have served the notice upon assessee by sending any employee of the State. The State has several vehicles and persons with them. When such a huge liability of tax is imposed or is going to be imposed, the State should have served the notice upon the assessee by sending any responsible employee instead of passing exparte order.
As a cumulative effect of the aforesaid facts and reasons, we hereby remand the matter to the Commercial Taxes Officer, Koderma Circle, Koderma to decide afresh the tax liability, if any, of the petitioner. The relaxation of the time limit as mentioned in Subsection 2 of Section 42 which is applicable in the case of appellate order or revisional order, is also applicable whenever any order is passed in the writ petition under Article 226 of the Constitution of India. Hence, there is no question of limitation whatsoever arises in this case, if the assessing officer is deciding within the time limit, as stated in Subsection 2 of Section 42 of the Act, 2005. - Decided in favor of petitioner.
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2015 (1) TMI 1289
Disallowance u/s 14A - exclusion of investment made in the companies which are strategic in nature - Held that:- In the case of Interglobe Enterprises Ltd. vs. DCIT [2014 (4) TMI 269 - ITAT DELHI ] held that the calculation of disallowance under Rule 8D(iii) made by the Assessing Officer and upheld by the ld. CIT(A) is not correct in view of the fact that Assessing Officer had included the value of total investments for calculation of disallowance whereas in our opinion the value of those investments should have been included which were made for the purpose of earning exempt income. The assessee had made significant investments in the shares of subsidiary companies which are definitely not for the purpose of earning exempt income
Since this aspect of strategic investment has not examined by lower authorities, we restore the matter for both the assessment years back to the file of the A.O. for recomputing afresh the disallowances made u/s 14 A read with Rule 8-D. - Decided in favour of assessee for statistical purpose.
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2015 (1) TMI 1288
Validity of assessment - non issue of notice - Held that:- Very foundation of the jurisdiction of the Assessing Officer is issuance of notice u/s 143(2) of the Act. Thus, in view of the factual matrix that no notice u/s 143(2) of the Act was issued/served upon the assessee, after filing of return, therefore, the basic mandatory requirement of the Act, is not fulfilled,consequently, the defect is not curable, therefore, the assessment is not valid.- Decided in favour of assessee
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2015 (1) TMI 1287
Sale of carbon credit - deduction under section 80IA - Held that:- The income from sale of carbon credit is capital receipt. See My Home Power Ltd. Versus Deputy Commissioner of Income-tax, Central Circle - 7 [2012 (11) TMI 288 - ITAT HYDERABAD]. Assessing Officer is directed to allow the deduction claimed by the assessee u/s.80IA
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2015 (1) TMI 1286
Disallowance of bank charges and interest by invoking the provisions of 14A - Held that:- As far as interest and bank charges of ₹ 12,20,049/- the assessee contested that the entire secured loan has been utilized for acquisition of capital assets relating to business of mining and sale of coal where the assessee’s turnover is more than ₹ 45.73 cr. We find from the accounts of assessee that it has been demonstrated by Ld. Counsel for the assessee that the major secured loans were utilized for the purpose of acquisition of assets relating to mining business and interest paid to the bank is for the purpose of business and not for the purposes of acquiring assets giving exempted income. Accordingly, we are of the view that the CIT(A) has rightly made disallowance of interest and bank charges to the tune of ₹ 12,20,049/- and we confirm the same
Disallowance made on account of provisions for bonus u/s. 43B - Held that:- As per the provisions of section 43B of the Act, the provision for bonus is to be allowed as a deduction in the year of actual payment and not otherwise. Once the provision is not allowed as deduction, the right back of the provision for bonus cannot be treated as income. In term of the above, we confirm the order of CIT(A) and this issue of revenue’s appeal is dismissed.
Disallowance for provision of leave encashment - Held that:- Deduction on account of provision of leave encashment was made on the basis of the judgment of Hon'ble jurisdictional High Court in the case of Exide Industries Ltd. Vs. Union of India (2007 (6) TMI 175 - CALCUTTA High Court ) wherein it was held that insertion of clause (f) in section 43B is unconstitutional. Subsequently, the Hon’ble Apex Court [2008 (9) TMI 921 - SUPREME COURT ] has stayed the operation of this judgment of the Hon’ble Calcutta High Court rendered in the case of Exide Industries Ltd. v. UOI (supra) and therefore, the order of the ld. CIT (Appeals) by following this judgment of the Hon’ble Calcutta High Court cannot be approved. Thus we set aside this issue to the file of the AO to await the decision of Hon'ble Supreme Court and decide the issue accordingly. This issue of assessee’s cross objection appeal is remitted back to the file of AO and allowed for statistical purposes.
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2015 (1) TMI 1285
Import under SFIS Scheme - permitted to be sold/ reexport/ alienated inasmuch as three years have elapsed from the date of import/ procurement in terms of the foreign trade policy of 2009-2014 - Held that:- this is being permitted on the specific condition that the petitioner shall furnish a bank guarantee in favour of the respondent for an amount of ₹ 12 crores. This amount is being taken because, according to the petitioner, the assessed customs duty was ₹ 9.18 crores approximately at the time of importation which was exempted because of the SFIS Scheme. There may be other incidental charges and, therefore, to cover the same, the figure of ₹ 12 crores has been arrived at. The vessel may be sold/ re-exported/ alienated only after furnishing of the bank guarantee for ₹ 12 crores.
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2015 (1) TMI 1284
Waiver of pre-deposit - Demand of Service tax - Mining Service - Transportation of coal from coal quarries/faces/bunkers/surface, etc., to various railway siding/dumps/stock yards, etc., within the mining areas - Appellant contended that the service clearly falls in the scope of GTA service and the service recipient, is paying service tax accordingly under reverse charge mechanism - Held that:- prima facie the activity would fall under the scope of GTA and not under the scope of mining service. The fact that the service recipient, namely, SECL, has already deposited the service tax for this service under GTA service under reverse charge mechanism further strengthens the contention of the appellants. Indeed prima facie the C.B.E. & C. Circular No. 232/2/2006-CX-4, dated 12-11-2007 did not consider the impugned service to be mining service. - Waiver granted
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2015 (1) TMI 1283
Rectification of alleged mistake - Section 74(2) of the Finance Act, 1994 - Collection of Service tax - Petitioner claimed that by inadvertence and due to a typographical error, the amount was shown as ₹ 41,14,69,442/- instead of ₹ 4,14,69,442/- in his communications with the Revenue.
Held that:- the power of rectification is available to the original authority as regards any issue, as long as it has not been considered and decided in appeal or revision. In so far as the quantum of service tax payable by the petitioner is concerned, his appeal before the Tribunal is still pending consideration. The issue is therefore still open and it has not yet been considered and decided. In that view of the matter, the understanding of the Revenue that the power of rectification of a mistake under Section 74(2) of the Finance Act, 1994 cannot be exercised during the pendency of the appeal before the Tribunal cannot be countenanced. The Order dated 05.06.2014 holding to this effect is unsustainable and is therefore, set aside. There shall be a consequential direction to the respondents to consider the application of the petitioner for rectification of the mistake, under Section 74(2) of the Finance Act, 1994, on its own merits in accordance with law and pass a reasoned order thereon. An opportunity shall be afforded to the petitioner to make good his claim of the alleged typographical error. - Decided in favour of petitioner
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2015 (1) TMI 1282
Demand of interest and penalty - Deposit made in erroneous account - self-assessment of service tax - Petitioner contended that since the tax has been deposited in due time and the money remained in the suspense account without being credited to the appropriate account by reason of the mistaken code indicated in the documents, no prejudice has been suffered by the department or the revenue and the petitioner should not be visited with any penalty or claim on account of interest - Held that:- since it is open to the petitioner to make a representation to the appropriate Commissioner and it is evident that the perceived non-payment of the service tax for the relevant year will result in the matter travelling to the Commissioner, the present writ petition is disposed of by leaving the Commissioner free to take an appropriate decision upon the matter, whether on the petitioner’s representation or otherwise, by having due regard to the nature of the error, the fact that the money remained in the suspense account and earned interest to the Revenue and that there may not have been any mala fides on the part of the petitioner. - Petition disposed of
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2015 (1) TMI 1281
Disallowance of loss in trading of shares invoking Explanation to section 73 - assessee raised a new issue that if AO treats the loss arising from shares as speculation loss the profits from derivatives is to be set off, since both the transactions are speculative in nature - Held that:- In view of the alternative plea of the assessee, we are in agreement with the argument of Ld. counsel for the assessee that the income from derivatives is defined in section 43(5) of the Act and since it excludes such transactions from the nature of speculative transaction and AO treats that the transaction has not been excluded from section 73 of the Act, therefore, the assessee was entitled to claim the loss of shares against the income of derivatives. Respectfully following the decision of Hon'ble Delhi High Court in the case of DLF Commercial Developers Ltd. [2013 (7) TMI 334 - DELHI HIGH COURT], we allow the alternative claim of the assessee and direct the AO to allow this loss against derivative incomes. - Decided against revenue
Disallowance u/s 14A - Held that:- We find that relevant assessment year involved is 2007-08 and rule 8D will not apply being prospective as held by Hon’ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. vs. DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT ]. We find that the Tribunal is consistently estimating the net profit @1% of the exempted income and we find no infirmity in the order of the CIT(A). - Decided against revenue
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2015 (1) TMI 1280
Additional depreciation u/s 32 on ready mix concrete” (RMC) - Held that:- Assessee’s appeal are restored to the file of AO for the limited purpose of examination and verification of the following factual issues:-
i) Whether RMC manufactured by the assessee during relevant periods was consumed in house or sold to outside third parties?
ii) Whether the assessee is entitled for additional depreciation on the machinery/equipment used for the said activities/purpose of manufacturing of the RMC which was sold to outside third parties in the light of decision of Hon’ble Apex Court in the case of N.C. Buddhiraja (1993 (9) TMI 6 - SUPREME Court )?
The Assessing Officer is directed to allow additional depreciation as per outcome of aforementioned factual issues
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2015 (1) TMI 1279
CHA - Imposition of prohibition under regulation 23 - prohibited from operating in three land Customs stations on the basis of some perceived irregularity committed several years back - Violation of principles of natural justice - Licence suspended and thereafter revoked i.e. temporary revokation - Held that:- the scheme of the said Regulations of 2013 is such that the authority to impose prohibition under Regulation 23 thereof must be regarded as an extraordinary power which is to be sparingly used. Ideally, if a broker who has been granted a licence is found to have acted in derogation of the conditions of the grant, regular proceedings for revocation of the licence should ensue. A broker’s licence may be prohibited in respect of a particular Customs station or a group of stations when it is perceived to be in the interest of revenue so to do; but Regulation 23 cannot be resorted to on a permanent basis without the procedure applicable for the revocation of a licence being adhered to.
Even when a broker is handed down an order of prohibition under Regulation 23 of the said Regulations, he must be informed of the reasons therefor. The extraordinary nature of the power conferred by Regulation 23 has to be retained, but a balance has to be struck by providing for the reasons therefor to be immediately disclosed, may not be by the same document but by another. Since an order of prohibition amounts to the revocation of the licence limited to the customs stations specified by the order, such order cannot be for an indefinite period. Quite apart from the fact that reasons should be furnished for prohibiting a licencee from a Customs station even temporarily, if the intention is to debar him altogether from the relevant stations, the procedure for revocation or alteration of the conditions of the grant has to be adopted. Therefore, the order of prohibition is set aside. - Decided in favour of petitioner
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2015 (1) TMI 1278
Condonation of delay - Held that:- It is not a fit case where the delay can be condoned. Similar view has been taken by the Hon'ble Delhi High Court in the case of Surinder Kumar Boveja vs. CWT, (2006 (5) TMI 73 - DELHI High Court ) wherein held that in order to get condonation of delay in filing of an appeal, a party has to show sufficient cause. Sufficient cause means a cause beyond the control of the party, e.g., a mistake made in good faith in respect of exercise of due care and attention. But where there is want of due care and attention or want of due diligence or sufficient cause the delay cannot be condoned. The delay in filing the appeal is abnormal.
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