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Showing 201 to 220 of 2844 Records
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2015 (10) TMI 2651 - CESTAT BANGALORE
Pre-deposit - maintainability of appeal - Levy of service tax - commission earned by the appellant acting as foreman conducting the chit funds - Held that: - the applicant directed to deposit 50% of the service tax falling within the limitation period as a condition of hearing their appeals within a period of 6 weeks from today - application disposed off.
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2015 (10) TMI 2650 - CESTAT ALLAHABAD
Utilisation of CENVAT credit - accumulated money credit by use of unconventional/minor oils - Held that: - the appellant is entitled to utilise the Cenvat credit lying in its balance as on 1/3/2003 and the said credit had not lapsed - reliance placed in the case of M/s Madhusudan Industries Ltd Vs. Union of India [2013 (1) TMI 525 - ALLAHABAD HIGH COURT], where it was held that money credit was a mandatory right earned by manufacturers on purchasing and use of unconventional/minor oils, for which the manufacturer may have changed manufacturing process and plant hoping of getting the money credit. Thus such vested right cannot be taken away due to the rescision of the notification - appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2649 - ITAT CHENNAI
Reopening of assessment - AO denied the benefit of 80lA by treating all the windmills together and there was net loss from the windmill activity all put together - Held that:- According to the Assessing Officer, all the windmills are to be treated as a single undertaking and therefore, the assessee would not be entitled to the relief allowed in the assessment passed u/s 143(3) of the Act. The CIT(A) rejected the claim of the Assessing Officer and observed that each windmill is to be considered independent and separate and as a consequence deduction u/s 80IA to be computed. As such, the issue in dispute travelled upto the Tribunal also at the instance of the Department. The Tribunal vide order [2014 (11) TMI 1121 - ITAT CHENNAI] agreed with the view of the CIT(A) and decided the issue in favour of the assessee.
As issue is already settled in favour of the assessee and the Assessing Officer precluded by taking the same issue for reopening of assessment after four years from the end of the relevant assessment year by reopening the concluded issue. - Decided in favour of assessee.
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2015 (10) TMI 2648 - DELHI HIGH COURT
Additions made under Section 68 - Accommodation entries - Addition made in the case of the conduit companies - Held that:- In view of the orders passed by this Court in Pr. Commissioner of Income Tax v. Vijay Conductors India Pvt. Ltd. (2015 (9) TMI 1519 - DELHI HIGH COURT) and connected matters, the appeal is dismissed.
Considering the logical consequences of the order of the Settlement Commission as well as of Additional CIT under Section 144A, no hesitation to hold that the addition under Section 68 cannot be made in the case of the conduit companies. Therefore, we delete the addition made u/s 68 in the case of all the nine companies, which are admittedly conduit companies of Shri S.K. Gupta. - Decided in favour of assessee
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2015 (10) TMI 2647 - ITAT HYDERABAD
TPA - comparable selection - Held that:- Assessee is engaged in providing software development services. The assessee has two software development centers in Chennai and Hyderabad, both of which are registered under the STPI scheme of Government of India as 100% export oriented units, thus companies dissimilar with that of assessee need to be deselected from final list of comparable.
Since the information considered by the A.O. said to be belonging to e-Infochips Bangalore Ltd., and the information filed by the assessee before us are at variance with each other, we deem it fit and proper to remand the comparability of this company with the assessee to the file of A.O./TPO to ascertain the correct facts and take a decision in accordance with law. It is no doubt settled by various judicial precedents that where segmental data is not available, such company cannot be taken as a comparable. Further, it has also been held that if there is an extraordinary event such as merger/amalgamation, even then, such company cannot be taken as a comparable to an assessee. The A.O./TPO shall take into consideration such judicial precedents before taking a decision about the comparability of e-Infochips Bangalore Ltd., with the assessee company. Accordingly, assessee’s appeal is treated as partly allowed for statistical purposes.
Infosys Technology Ltd., be excluded from the list of comparables on account of functional dissimilarity and owning of significant intangibles and brand value. As regards L & T Infotech Ltd.be excluded as segmental data is not available and was rejected by the TPO in the earlier years on this ground alone. As regards Tata Elxsi Ltd. this company be excluded on functional dissimilarity.
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2015 (10) TMI 2646 - ITAT CHANDIGARH
Addition u/s 14A - Held that:- From the perusal of Profit & Loss Account, it appears that no interest to bank or otherwise was paid in the earlier year, which goes to prove that the investments having been made in earlier year were made out of owned funds of the assessee and no borrowed funds were used for such investments. As regards interest of ₹ 66,91,327/- being paid this year, it is seen from the perusal of Annexure-3 of the balance sheet that ICICI working capital limit amounting to ₹ 49,99,98,560/- was raised during the year, which was not there in the preceding year, which further goes to prove that the interest paid during the year does not have any nexus to the investments and thus not to the tax-free income from these investments having earned. Therefore, any disallowance of interest expenditure being related to earning tax-free income cannot be made in this case.
There is no need to go further on the issue of disallowance of interest part of the expenses related to earning tax-free income, as from the explanation and evidences brought on record by the assessee, as stated hereinabove, it is proved beyond doubt that the interest expenditure incurred by the assessee during the year does not have any nexus to earning of tax-free income.
As regards the administrative expenses part of the disallowance under section 14A the assessee has all along been contending before the lower authorities that there was no need for it to incur any such expenditure and it has in fact incurred no such expenditure, the Assessing Officer straightaway, without commenting on such claim of the assessee, embarked upon computation under Rule 8D of the Income Tax Rules for the purpose of section 14A of the Act. She has nowhere recorded her satisfaction that how such claim of the assessee is not acceptable to her. From the perusal of the whole order of the Assessing Officer, no such satisfaction can be inferred directly or indirectly. In such circumstances, the recording of satisfaction of the Assessing Officer is a must, as held in the case of CIT Vs. Deepak Mittal. (2013 (9) TMI 764 - PUNJAB & HARYANA HIGH COURT ). Therefore, in the circumstances, no disallowance on account of expenses under section 14A of the Act can be made. - Decided in favour of assessee.
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2015 (10) TMI 2645 - ITAT BANGALORE
TPA - selection of comparable - Held that:- Assessee being a software development services provider thus companies dissimilar with that of assessee need to be deselected from final list of comparable.
Risk adjustment - Held that:- We of the opinion that the risk borne by the comparables as well as the assesee were of the very same nature and therefore the effect of the risk on the profitability already stood discounted in the operational results of the comparables. We therefore find no merit in this ground raised by the assessee. In the result, assessee’s ground relating to risk adjustment is dismissed.
Deduction u/s.10A computation - Held that:- Travel expenditure and telecommunication expenditure incurred in foreign currency ought not have been excluded from export turnover. Alternately it says that if they were excluded from export turnover, similar exclusion was to be done in the total turnover also for working out deduction u/s.10A of the Act.
In so far as the contention of the assessee that foreign currency expenditure should not be excluded from the export turnover, we are unable to appreciate in view of the definition of ‘export turnover’ given in Explanation 2 (iv) to Section 10A does not warrant such an interpretation. However in respect of parity between the export turnover and total turnover, in view of the decision of the Hon’ble jurisdictional High Court in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT], assessee has to succeed. We direct the AO / TPO to exclude what has been excluded from the export turnover from the total turnover also while computing deduction u/s.10A of the Act
Direct that assessee be given deduction u/s.10A of the Act without setting off brought forward loss and unabsorbed depreciation of non-eligible units.
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2015 (10) TMI 2644 - ITAT MUMBAI
Penalty u/s 271(1)(c) - addition made on account of short term capital gain was under section 50C - Held that:- On a plain reading of the sec 50 provision, it is absolutely clear that in a case where the declared sale consideration by the assessee is lesser than the value adopted by the stamp valuation authority for stamp duty purpose such value shall be the sale consideration deemed to have been received by the assessee of course, subject to the provisions contained under sub–sections (2) and (3) of the Act.
Thus for applying the said provision, the Assessing Officer need not have to establish whether actual sale consideration received by assessee is the value adopted by the stamp valuing authority for stamp duty purpose. However, as far as imposition of penalty under section 271(1)(c) of the Act is concerned, the Assessing Officer has to prove the fact that the assessee actually received as sale consideration, the amount determined as the value for stamp duty purpose. There is not even a single evidence brought on record by the Assessing Officer which could even remotely establish that the assessee has received anything over and above the declared sale consideration. Merely because the addition was made by applying the provisions of section 50C of the Act on the basis of value determined by the stamp valuation authority, the assessee cannot be saddled with penalty under section 271(1)(c) of the Act either for furnishing of inaccurate particulars of income or for concealment of income. - Decided in favour of assessee.
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2015 (10) TMI 2643 - BOMBAY HIGH COURT
Whether the sub-contractor of a main contractor is liable to discharge the service tax liability on the services provided by him - Applicability of old circulars - penalty - Held that: - the decision in the case of SUNIL HI-TECH ENGINEERS LTD Versus COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2014 (10) TMI 524 - CESTAT MUMBAI (LB)] contested, where it was held that the appellant is liable to pay service tax on the taxable services rendered by him in the capacity of a sub-contractor - the substantial questions of law were admitted - respondent waives service.
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2015 (10) TMI 2642 - DELHI HIGH COURT
Validity of assessment u/s 153A in the case of Assessee stood dissolved on amalgamation - non existent company - Held that:- In the present case, a search took place on 20th October, 2008 in the cases of Mr B. K. Dhingra, Smt. Poonam Dhingra and M/s Madhusudan Buildcon Pvt. Ltd. On the basis that in the course of search certain documents belonging to the Assessee company were found, notice was issued to the Assessee under Section 153C (1) on 10th September, 2010. Therefore, not only on the date on which notice was issued but even on the date of the search, the Assessee had ceased to exist in the eyes of law.
In Pr. Commissioner of Income Tax (Central-II) v. Images Credit And Portfolio Pvt. Ltd.[2015 (9) TMI 234 - DELHI HIGH COURT] invalidated the assessment proceedings against the Assessee in those cases which, on account of having merged with another entity with effect from a date anterior to the search, also no longer existed on the date of search, on the date of the issue of notice and consequent assessment order passed under Section 153 C of the Act. - Decided against revenue
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2015 (10) TMI 2641 - ITAT CHANDIGARH
Penalty under section 271(1)(c) - capital gain addition - Held that:- The issue is covered in favour of the assessee by order of ITAT Chandigarh Bench in the case of Shri Balwinder Singh Dhillon [2015 (8) TMI 1384 - ITAT CHANDIGARH] on identical facts penalty has been cancelled and the departmental appeal has been dismissed. Further, when Hon'ble High Court has deleted the addition in the cases of assessees by following decision in the case of Shri C.S. Atwal V CIT [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] therefore, nothing survives in favour of the revenue to levy the penalty under section 271 (1) (c) of the Act. In the result, there are no merits in the departmental appeals, the same are accordingly, dismissed. - Decided in favour of assessee
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2015 (10) TMI 2640 - ITAT MUMBAI
Addition u/s 14A - as per assessee investments made in the companies are strategic investments which have been made for business purposes and therefore should not be considered when computing the average value of investments for the purpose of Rule 8D(2)(ii) and 8D(2)(iii) - Held that:- The claim of strategic investments made by the assessee need verification. We, therefore, restore the entire issue to the file of the AO. The AO is directed to verify the claim of the assessee that the investments are made for strategic purposes and decide this issue afresh in the light of the findings given by the Tribunal in assessee’s own case in earlier assessment years and also keeping in mind that if investments are found to be of strategic in nature then to decide the issue as per the decision of the Tribunal given in the case of J.M. Financial Ltd.[2014 (4) TMI 752 - ITAT MUMBAI] read with M/s. Garware Wall Ropes Ltd. [2015 (2) TMI 628 - ITAT MUMBAI]. With the above directions, ground are treated as allowed for statistical purpose.
Disallowance of amortization of premium paid for leasehold land - Held that:- Tribunal has followed the decision of the Co-ordinate Bench in assessee’s own case for A.Y. 2005-06 [2010 (10) TMI 214 - ITAT MUMBAI ] and dismissed the appeal of the assessee.
Addition on account of unutilized cenvat credit - Held that:- This issue has been decided in favour of the assessee and against the Revenue by the Tribunal [2014 (9) TMI 1099 - ITAT MUMBAI] wherein the Tribunal has observed the directions given to the AO to recast the accounts of the assessee by considering the element of Excise duty and other taxes in opening stock, purchases, sales and inventory has to be decided as per the findings given in A.Y. 2006-07. Respectfully following the directions given by the Co-ordinate Bench, we direct accordingly.
Value to be adopted with regard to the opening written down value of the block of assets - Held that:- This issue has been decided against the assessee by the Tribunal in assessee’s own case for A.Y. 2006-07
Disallowance on account of the provision for diminution in the value of investments while computing Book profits u/s. 115JB -Held that:- This issue is now decided against the assessee and in favour of the Revenue in view of the retrospective amendment by the Finance Act No.2 of 2009 with effect from 1.4.2001, now that this issue is covered by the Amendment against the assessee
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2015 (10) TMI 2639 - ITAT LUCKNOW
Penalty u/s 271(1)(c ) - income found in the locker - Held that:- Concealment and furnishing inaccurate particulars are different. The AO, while issuing notice, has to come to the conclusion as to whether it is a case of concealment of income or whether it is a case of furnishing of inaccurate particulars. The Hon’ble Apex Court in the case of T. Ashok Pai vs. CIT (2007 (5) TMI 199 - SUPREME Court) has held that concealment of income and furnishing inaccurate particulars of income carry different connotations.
As in the present case the penalty order does not make it clear as to whether the penalty has been imposed for concealing particulars of income or for furnishing inaccurate particulars of income we respectfully following the decision in the case of Commissioner of Income Tax & Another vs. Manjunatha Cotton & Ginning Factory (2013 (7) TMI 620 - KARNATAKA HIGH COURT) wherein held that Notice u/s 274 of the Act should specifically state the grounds mentioned in section 271(1)(c) , i.e. whether it is for concealment of income or for furnishing of inaccurate particulars of income. Sending printed form where all the ground mentioned in section 271 are mentioned would not satisfy requirement of law, thus we hold that the penalty imposed u/s 271(1)(c) of the Act was improperly imposed by the AO - Decided in favour of assessee
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2015 (10) TMI 2638 - SC ORDER
Interest u/s 18(4) - Delay in sanction of refund - the decision in the case of COMMISSIONER OF CUSTOMS (EXPORT), NHAVA SHEVA Versus INDO ZINC LTD. [2014 (12) TMI 646 - BOMBAY HIGH COURT] contested - Held that: - appeal dismissed - decided against appellant.
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2015 (10) TMI 2637 - SC ORDER
Exemption under Exemption N/N. 6/2002-CE dated 01.3.2002, read with list -6(5), or N/N. 6/2006-CE dated 01.3.2006 - the decision in the case of Commissioner of Central Excise & ST., Surat and others Versus M/s. Bhagyarekha Engineers Pvt. Limited and others [2014 (8) TMI 778 - CESTAT AHMEDABAD] contested - Held that: - we do not see any good ground to interfere with the judgment(s) and order(s) passed by the Customs, Excise and Service Tax Appellate Tribunal - appeal dismissed - decided against appellant.
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2015 (10) TMI 2636 - CESTAT NEW DELHI
Refund claim - whether the appellant is entitled to refund of the Education Cess and Higher Education Cess in terms of area based exemption N/N. 56/2002 or not? - Held that: - The issue has been examined by this Tribunal in the case of M/s. Jindal Drugs Ltd. [2009 (8) TMI 812 - CESTAT, NEW DELHI] wherein it has been held that Education Cess and Higher Education Cess is not exempted in terms of said notification - appellant is not entitled to claim refund of Education Cess and High Education Cess - appeal dismissed - decided against appellant.
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2015 (10) TMI 2635 - GUJARAT HIGH COURT
Maintainability of appeal - Court has no jurisdiction to entertain and adjudicate the appeal and that the same is required to be filed before the Supreme Court in view of the provisions of Section 130E of the CA, 1962 - whether the present case falls within the ambit of Section 130 of the Act or not? - Held that: - none of the findings touch any issue relating to the determination of the rate of duty or value of goods for the purposes of assessment. The entire controversy relates only to the description of the goods in the IGM in connection with the question as to whether such goods are liable to confiscation. None of the issues decided by the Tribunal are in the context of determination of the rate of duty or the value of goods for the purposes of assessment. Under the circumstances, the appeal squarely falls within the ambit of Section 130 of the Act and has, therefore, rightly been filed before this Court.
Application rejected - decided against appellant.
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2015 (10) TMI 2634 - CESTAT AHMEDABAD
Conversion of shipping bills - free shipping bills into drawback shipping bills - denial on the ground that no sample was drawn at the time of shipment of the goods - the appellant's case is that they have produced the certificate of M/s. Geo-Chem Laboratories Pvt. Ltd. before the adjudicating authority which was not considered - Held that: - the adjudicating authority had not considered the certificate of M/s. Geo-Chem Laboratories Pvt. Ltd. In our considered view, the Adjudicating Authority should have examined the case in respect of the certificate of M/s. Geo-Chem Laboratories Pvt. Ltd. - matter is remanded to the Adjudicating Authority to decide afresh - appeal allowed by way of remand.
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2015 (10) TMI 2633 - ITAT MUMBAI
Validity of reopening of assessment u/s. 147 - Held that:- We find that in the reasons supplied to the assessee, at the time of issuing unsigned reasons the AO had not mentioned anything as what was the basis of arriving at the conclusion of escapement of income, that also in the reasons recorded he had not mentioned that the escapement of income was due to failure of the assessee to disclose truly and fully the material facts.
Considering the various factors-like supplying unsigned reasons, existence of two different sets of reasons for issuing 148 notice, not adjudicating objections raised by the assessee, reopening of assessment after a very long period, relying on the statements of third party that were not confronted to the assessee etc.-we are of the opinion, that the notice u/s.148 had been issued without the jurisdictional foundation u/s.147 being available to the AO and that the notice and the subsequent proceedings were without jurisdiction. - Decided in favour of the assessee.
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2015 (10) TMI 2632 - KERALA HIGH COURT
Penalty u/s 67 (1)(d) of the KVAT Act - works contract - tripartite agreement or not - Held that: - orders suffer from a patent non-application of mind and therefore, deserve to be quashed for that reason alone. I also find however, that there is no consideration by the respondent Intelligence Officer, of the aspect of whether the petitioner had willfully evaded payment of tax that was due and payable by him. This aspect assumes importance in matters of penalty.
Writ petitions, challenging a proposed assessment of the petitioner for the relevant assessment year u/s 25 (1) of the KVAT Act, were subsequently withdrawn by the petitioner and the said assessments are now pending before the assessing authority, that I felt it would be in the interests of justice, and to avoid a multiplicity of proceedings, that directions should be issued to the assessing authority of the petitioner namely, the Commercial Tax Officer, Works Contract, Kozhikode, to consider the issue of imposition of penalty on the petitioner as well.
Appeal allowed by way of remand.
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