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Showing 161 to 180 of 1515 Records
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2016 (1) TMI 1362
100% EOU - Refund of CENVAT credit - outdoor catering services - medical insurance services of employees - denial on account of nexus - Held that: - It has to be mentioned that the dispute related to the period April 2010 to June, 2010 during which time the definition of input services was very wide and included any activities relating to business - In a catena of judgments, it is held the credit is available on insurance services and outdoor catering services prior to 01-04-2011 - refund allowed - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1361
Maintainability of petition - challenge to election - it is the case of the petitioner that the respondent no.1 University has unreasonably, arbitrarily and unauthorizedly interfered with the process of election of DUTA and thus a writ petition is maintainable - Held that: - the petitioner, without being a candidate in the election which was admittedly due, cannot challenge the same especially when it is not in dispute that the election was due. Only a candidate desirous of participating in the elections and wrongfully denied such participation or a candidate who has contested in the election and the result whereof is claimed to be vitiated, in such circumstances have cause of action to challenge the result of the election - The position may be different if the statute or the Rules and Regulations of the body / society vest such a right.
The petitioner could have challenged the election only if had been an aspirant thereto and not otherwise. None can be permitted to perpetuate his / her term of elected office by contending that the result of the next election is vitiated - without participating in that election. If the same were to be permitted, it would vest a right in each and every member of outgoing elected body to challenge the election and may lead to multiple challenges indefinitely delaying the taking over of reigns by the newly elected body.
The petition is thus dismissed with liberty however to the petitioner to avail of the suit remedy with respect to the affairs of the respondent no.2 DUWA.
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2016 (1) TMI 1360
Income from house property Estimation of annual value by adding notional interest on interest free security security deposit - Held that:- As decided in assessee's own case for the assessment year 2007-08 we find the identical issue on the basis of which the FAA upheld the order of AO was decided in favour of the assessee wherein held that the determination of the ALV by the Revenue authorities is erroneous as the Municipal rateable value exhibited is much less than the annual let out value disclosed by the assessee. We, therefore, do not find any reason for making the impugned addition. - Decided in favour of assessee.
Disallowance of interest expenses - assessee advanced interest free loans out of interest bearing funds - Held that:- As decided in assessee's own case for the assessment year 2007-08 we find that the loan was given on the grounds of commercial expediency and therefore the proportionate disallowance of interest is uncalled for and deserves to be deleted. In so far as the proportionate disallowance of interest on the debit balance of the partners is concerned, the same has to be considered in the light of the partnership deed and as the partnership deed is silent on charging of such interest, we do not find any reason for such disallowances - Decided in favour of assessee.
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2016 (1) TMI 1359
TPA - comparable selection criteria - Held that:- Assessee is engaged in providing software development services of its holding company, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Computing deduction u/s.10A - excluding leaseline expenses from the export turnover on the ground that these expenses are attributable to delivery of software outside India from the export turnover - Held that:- Taking into consideration the decision rendered by the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] we are of the view that it would be just and appropriate to direct the Assessing Officer to exclude telecommunication charges and insurance charges incurred be excluded both from export turnover and total turnover, as has been prayed for by the assessee in the alternative.
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2016 (1) TMI 1358
Filing of false affidavits - imposition of costs - whether the High Court was correct in imposing costs of ₹ 10 lakhs on the petitioner for filing a false or misleading affidavit in this Court?
Held that: - In Muthu Karuppan v. Parithi Ilamvazhuthi [2011 (4) TMI 1481 - SUPREME COURT] this Court expressed the view that the filing of a false affidavit should be effectively curbed with a strong hand. It is true that the observation was made in the context of contempt of Court proceedings, but the view expressed must be generally endorsed to preserve the purity of judicial proceedings.
The imposition of costs by the High Court was justified - petition dismissed - decided against petitioner.
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2016 (1) TMI 1357
Penalty u/s. 271(1)(c) - income disclosed in the returns filed u/s. 139(1) and the income assessed u/s. 153A of the Act - no satisfaction for initiation of penalty proceedings - Held that:- In the present case also satisfaction for initiation of penalty proceedings u/s. 271(1)(c) is not discernible from the order of assessment. The show cause notice u/s. 274 is also defective. We hold that the penalty imposed on the Assessee u/s. 271(1)(c) of the Act cannot be sustained and the same is directed to be cancelled.
Assessee also advanced arguments on the availability of immunity to the Assessee under Explanation 5 to Sec. 271(1)(c). We are not dealing with those contentions as the penalty is being deleted on the basis of the other arguments referred to above. - Decided in favour of assessee.
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2016 (1) TMI 1356
Entitled to exemption u/s 10(23C)(iiiad) - Held that:- Respectfully following the aforesaid decision of the Hon’ble Supreme Court the case of “M/s. Queen’s Educational Society [2015 (3) TMI 619 - SUPREME COURT] 13th proviso to Section 10(23C) is of great importance in that assessing authorities must continuously monitor from assessment year to assessment year whether such institutions continue to apply their income and invest or deposit their funds in accordance with the law laid down. Further, it is of great importance that the activities of such institutions be looked at carefully.
If they are not genuine, or are not being carried out in accordance with all or any of the conditions subject to which approval has been given, such approval and exemption must forthwith be withdrawn. All these cases are disposed of making it clear that revenue is at liberty to pass fresh orders if such necessity is felt after taking into consideration the various provisions of law contained in Section 10(23C) read with Section 11 of the Income Tax Act. - Decided in favour of assessee.
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2016 (1) TMI 1355
Disallowance u/s 14A read with Rule 8D - investment yielding tax free return were made out of borrowed funds - Held that:- We delete the addition under rule 8D(2)(ii) - merely because there was a common pool of funds and a presumption cannot be drawn that investment yielding tax free return were made out of borrowed funds. In the case of Pr. CIT Vs. India Gelatine and Chemicals Ltd.(2015 (11) TMI 392 - GUJARAT HIGH COURT) it was held that tribunal categorically found on the basis of material on record that assessee has tax free return out of which the investments was made and the deletion of disallowance u/s 14A read with Rule 8D was justified.
The case of the assessee is squarely covered by the above decisions and we, therefore, delete the disallowance of ₹ 23,58,695/- on account of interest made under rule 8D(ii). As regards the disallowance u/s 14A read with Rule 8D(iii) of ₹ 21,65,696/-, it is pertinent to state that Rule 8D was made applicable w.e.f. AY 2008-09. We are of the view that Rule 8D is not applicable to the AY 2007-08 in view of the judgment of the Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. Vs. CIT (2010 (8) TMI 77 - BOMBAY HIGH COURT). Moreover, the disallowance of ₹ 21,65,696/- was excessive. We, therefore, set aside the order of the CIT(A) and restore back the matter to the file of the AO with the direction to work out disallowance u/s 14A on a reasonable basis - Decided in favour of assessee for statistical purposes
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2016 (1) TMI 1354
Revision of order - it is the grievance of the petitioner that since they could not obtain form C and form I inspite of several reminders, they were unable to file it before the respondent. Thereafter, on getting the form C and form I, the petitioner, by invoking section 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957, filed the same - Held that: - The facts which are not disputed in the cases on hand show that the petitioner is regularly filing their monthly returns and complying with the statutory requirements. The respondent has also accepted the turnover reported by the petitioner as correct and determined the same. However, for want of form C and form I, the respondent adopted higher rate of tax at 14.5 per cent, which in my view, cannot be sustained in view of a circular dated February 1, 2000 issued by the Commissioner of Commercial Taxes, Chennai.
The writ petition is allowed by setting aside the impugned orders dated December 16, 2015 and January 21, 2016 and directing the respondent to accept form I filed by the petitioner on January 19, 2016 for the sales made to "SEZ" for the assessment year 2011-2012 and pass orders afresh in accordance with law.
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2016 (1) TMI 1353
Date for reckoning the interest on refund under Section 244A(1)(b) - the subsequent decision in Engineers India (supra) by a DB of the same bench strength cannot co-exist with the decision in Sutlej Industries Ltd. (supra) and that there is a conflict brought about as a result of the two decisions which cannot be resolved except by referring it to a larger Bench of the three learned Judges of this Court. - matter referred for decision to the larger Bench.
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2016 (1) TMI 1352
Assessment u/s 153A - Held that:- Additional legal ground raised by the assessee for AY 2006-07 that search assessment was ab initio void as the original assessment remained unabated cannot be accepted in as much as the 143(3) assessment is completed after search only. A technical ground could have been raised as to how the assessment u/s 143(3) can be framed when 153A assessment is pending; be that as it may since no such ground is raised the additional ground does not help the cause of the assessee. However it helps the assessee’s case for AY 2006-07 to the limited extent that no additions in the search assessment can be made when no incriminating material is found on or relied on. Consequently, additional ground raised by assessee is dismissed with above observations.
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2016 (1) TMI 1351
Classification of importers of poppy seeds - cap on import of poppy seeds - CAs there were numerous importers, a policy was evolved to allot specified quantities of imported poppy seeds on ''first come first serve basis'' - Subsequently, the policy changed through public notice by classifying the importer into two categories - Held that:- Nothing survives for adjudication in this writ petition, In view of the subsequent writ petition [2016 (3) TMI 794 - MADRAS HIGH COURT] filed challenging the policy decision evolved after the filing of this writ petition - petition dismissed.
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2016 (1) TMI 1350
Disallowing the interest expenditure against the interest income - CIT-A treating the interest income as “business income” - Held that:- DR has not brought anything contrary to the submission of the assessee. We also observe that the assessee is at liberty to utilize the borrowed fund in the best possible manner. There is nobody who can interfere in the working of the assessee. The fund utilized in the earlier year for investment in securities can be used for different activity like investment in FD. There is no bar as such regarding the utilization of fund. So in the instant case the plea of the AO that fund borrowed for investment in securities was not utilized for the FD do not hold good. As regards the interest income of the assessee on the loan given to a party for an amount of 19,144/- we deem it to classify such income from other sources as the assessee is not into the money lending business. In view of above, we reverse the order of lower authorities. This ground of assessee’s appeal is allowed.
Disallowance on account of interest expenses and other expenses u/s 14A r.w.r. 8D - Held that:- Taking a consistent view in the case of M/s Trade Apartment Ltd. (2012 (3) TMI 421 - ITAT KOLKATA) we restore this file to the AO for fresh adjudication as per law with the direction that :-
i) Regarding the disallowance as per rule 8D(ii), the net figures of interest should be taken into consideration.
ii) Regarding the disallowance as per rule 8D(iii), the disallowance should not exceed the total expenses claimed by the assessee. Hence, in terms of above, this ground of appeal of the assessee is allowed for statistical purposes.
Treating the receipt as income from other sources - disallowing the depreciation - Held that:- In the instant case the activity of letting out the use of the trademark is to be seen whether it is business of the assessee or not. There is no bar under the Act that if the commercial asset is used by the third party then the income will not be treated as “business income”. In the instant case, the “commercial assets” is being exploited by the third party and the receipt arising from the exploitation of the commercial assets has been regarded as “business receipts”. Besides this, even otherwise the income from the exploitation of commercial assets is shown as income from other sources then also the assessee is also entitled for depreciation on the trademarks being intangible assets. In view of above, we are inclined to treat the income arising from the exploitation of commercial assets as business income. Accordingly, we reverse the orders of authorities below and allow this ground raised by assessee.
Treating the receipt as income from other sources - disallowing expenses incurred for earning such income - Held that:- The assessee during the year has claimed an expense of ₹ 18.34 lacs towards the maintenance activity. The above said expenses were inclusive of ₹ 12 lacs which were paid to the third party to whom the maintenance work was outsourced. The AO disallowed all the expenses except ₹ 12 lacs. Since the same income has been held as business income of the assessee in the immediate preceding assessment year, we are not inclined to treat the same as income from other sources. Therefore to maintain the consistency we reverse the order of the lower authorities and treat the same as income from business. Regarding the disallowance of the expenses we find that in the immediate preceding assessment year, the AO has disallowed the expenses to the tune of ₹ 3,16,752.00 only. Now to maintain the consistency in the order of lower authorities, we are inclined to restore this file to the AO with the direction to work out the disallowance of the expenses in the light of assessment order of the earlier year. Hence this ground of appeal is allowed for statistical purpose.
TDS u/s 194C - Non deduction of tds on the maintenance expenses - Held that:- The party to whom the maintenance charges were paid, have duly disclosed the receipt in its return of income and paid the due taxes on it. Now as per the amended provisions of the Finance Act 2012, the assessee shall not be treated as assessee in default if the recipient of the income has duly shown in its return of income. Accordingly we reverse the order of the lower authorities, hence, ground raised by assessee is allowed.
Allowing the loss of future & options against the speculation income - Held that:- The brought forward speculation loss was not allowed for set off against the current year speculation income on the ground that the assessee failed to set off the same in the immediate preceding year. However from the submission of the Ld.AR we find that there was no speculation profit for set off in the immediate assessment year. We also observe from the order of AO that in the immediate preceding assessment year that there was no speculation profit. We reverse the order of the lower authorities and this ground of appeal of assessee is allowed.
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2016 (1) TMI 1349
Offence under PMLA - attachment of properties provisionally attached - violation of principles of natural justice premised on the plea of not serving the show cause notice in accordance with the provisions of PMLA and Adjudicating Authority Regulations, on account of not supplying the copy of Original Complaint and for not giving fair opportunity i.e. hearing the respondent on 9-3-2011 in his absence Held that:- The appellant has completely failed to demonstrate before us if any prejudice is caused to him on account of these infractions.
Whether any purpose would be served in remitting the case to Adjudicating Authority for fresh adjudication after serving show cause notice u/s 8(1) of PMLA and after serving copy of Original Complaint and relied upon documents to the appellant? - Held that:- In the light of the facts of present case as discussed above, we find that such an exercise would be totally futile having regard to the fact that the appellant has totally failed to bring any material on record to refute the allegations of laundering proceeds of crime generated by Shri Madhu Koda, in the form of share capital money and unsecured loans procured by Shri Binod Sinha and his associates through accommodation entries from entry operators, made in the Provisional Attachment Order and in the Original Complaint.
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2016 (1) TMI 1348
Eligibility for deduction u/s.10A/10B on interest income - income derived from export of ITES services - Held that:- Interest income earned by the assessee has a direct nexus and was derived from the assessee’s business and was, therefore, entitled to be considered for deduction u/s.10A of the Act. Following the aforesaid decision of the Co-ordinate Bench in the case of M/s. Syntel Limit (2015 (9) TMI 897 - ITAT MUMBAI), we uphold the impugned order of the Ld. CIT(A) in directing the Assessing Officer to consider the interest income earned by the assessee in the relevant period as having a direct nexus with and being derived from its ITES business and, therefore, to include it while computing the eligible deduction u/s.10A - Decided against revenue
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2016 (1) TMI 1347
Disallowance u/s 40(a)(ia) - non-deduction of tax at source (TDS) on interest paid on borrowings from India Bulls Finance Ltd., a non-banking finance company (NBFC)- as per assessee has as per amendment made by Finance Act, 2012, w.e.f. 01.04.2013 the assessee ought not to be treated in default when the payee has discharged the tax liability on its corresponding income - Held that:- We find that the Co-ordinate Bench of the Tribunal on the identical point has decided the issue in favour of the assessee in the case of The Beed District Central Co-op. Bank Ltd. vs. ACIT [2015 (12) TMI 1747 - ITAT PUNE] wherein restored the matter back to the file of the Assessing Officer who shall consider the plea of the assessee based on the second proviso to section 40(a)(ia) of the Act inserted by the Finance Act w.e.f. 01.04.2013.
Following the parity of reasoning, we deem it fit and proper to restore the matter back to the file of Assessing Officer, who shall consider the plea of the assessee based on the provisions of the Act inserted by the Finance Act, 2012 w.e.f. 01.04.2013 - Decided in favour of assessee for statistical purposes
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2016 (1) TMI 1346
Set off of unabsorbed depreciation allowance after the lapse of 8 years - Held that:- Once Circular No.14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation got carried forward to next A.Y.2002-03 and became a part thereof, it came to be governed by the provisions of section 32(2) as amended by Finance Act 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever. See General Motors India P. Ltd. Vs. DCIT [2012 (8) TMI 714 - GUJARAT HIGH COURT] - Decided in favour of assessee.
Addition u/s 14A - Held that:- AO has not considered the supportive documents placed on record specifically entries at page No. 5 & 8 of the paper book. Having regard to the facts and circumstances of the case as well as concurring with the principles laid down in the case of Garware Wall Ropes Ltd. (2015 (2) TMI 628 - ITAT MUMBAI) we are of the considered opinion that the matter deserves to be remanded back to the file of the Assessing Officer for analyzing and consideration of the paper book
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2016 (1) TMI 1345
Provisional Assessment - Demand of interest on payment of differential duty before formal finalization of assessment - the decision in the case of CEAT Limited Versus The Commissioner of Central Excise & Customs, Nashik [2015 (2) TMI 794 - BOMBAY HIGH COURT], contested, where it was held that The liability to pay interest arises on any amount payable to Central Government and consequent to order for final assessment under Rule 7 subrule (3) - Held that: - the decision in the above case upheld - delay condoned - SLP dismissed.
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2016 (1) TMI 1344
Excluding sale proceed of sale tax entitlement from profits derived from its wind mill installed at Ahmadnagar (Maharastra) for the purpose of claiming section 80IA - Held that:- The assessee files a tabulation chart and copy of various tribunal orders in its own case in support of the above stated grounds. The Revenue is fair enough in not disputing correctness thereof. It is to be seen from the case record that a co-ordinate bench in assessee’s own case [2014 (1) TMI 234 - ITAT AHMEDABAD] has remitted the first issue of sales tax sale proceeds back to the Assessing Officer for fresh adjudication. We feel that the instant ground deserves to follow suit in absence of any distinction on facts of law. Thus remitting the issue back to Assessing Officer after considering the scheme sales tax entitlement of the Maharastra Govt. under which the assessee has received its entitlement after taking into consideration of hon’ble jurisdictional high court in case of CIT vs. Birla VXL Ltd (2013 (7) TMI 655 - GUJARAT HIGH COURT)
Deduction u/s 80IA - Held that:- It is not in dispute that the initial Assessment Year in the case of Jivraj Tea & Industries Ltd. is the Assessment Year 2004-05 and in the case of Jivraj Tea Ltd. is Assessment Year 2007-08 and it is also not in dispute that the assessee has not suffered any loss in the said year, therefore, in our considered opinion no brought forward loss or depreciation could be reduced for determining the amount in which the deduction is to be allowed u/s. 80IA of the Act. We, therefore, set aside the orders of the lower authorities on this issue and allow the ground of appeal of the assessee.
Challenging section 14A disallowance - Held that:- Restrict the impugned disallowance of ₹ 86,223/- to the extent of assessee’s exempt income only
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2016 (1) TMI 1343
Provisional attachment order - offence under PMLA - Held that:- It is not in dispute that the respondent filed rejoinder dated 4-8-2014 before the Adjudicating Authority after close of hearing and their right to file rejoinder on 22-7-2014 which rejoinder has been considered by the Adjudicating Authority while returning finding u/s 8(2) of PMLA against the appellants to confirm the provisional attachment of appellants’ properties vide impugned order dated 29-8-2014.
Under these circumstances, the allegation of appellants that as the rejoinder alleged substantial averments on facts as well as on law which have been considered by the Adjudicating Authority for returning findings as per provisions of Section 8(2) of PMLA without affording any opportunity of hearing to the appellants to answer/respond the averments made on behalf of the respondent vide rejoinder dated 4-8-2014, therefore, the impugned order dated 29-8-2014 is vitiated and has become bad in law, has considerable force. In our opinion the Adjudicating Authority has not proceeded fairly by not affording any opportunity to the appellants on receipt of rejoinder dated 4-8-2014 making factual averments as well as raising legal pleas some of which appears to have been raised only in the rejoinder. It would be a futile exercise to speculate what could have been the consequences or change in the final outcome if the appellants were granted an opportunity to respond to the rejoinder.
There is an infraction of principles of natural justice on the part of Adjudicating Authority as argued on behalf of the appellants.
Consequently, the impugned order dated 29-8-2014 to the extent of confirming provisional attachment of the appellants’ properties is set aside and remanded to the Adjudicating Authority for re-adjudication within 180 days from the date of this order. The Adjudicating Authority shall give a fair opportunity to the parties to present their case. The appellants shall file their reply to the rejoinder dated 4-8-2014 within 30 days from the date of this order or on a date as may be fixed by the Adjudicating Authority and shall also supply a copy of same to the respondent. This Tribunal has not expressed any opinion on merits of the case. During the pendency of proceedings before the Adjudicating Authority, the Provisional Attachment Order shall continue and all the parties shall maintain status quo in respect of the attached properties.
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9911796707
