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Showing 181 to 200 of 1407 Records
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2015 (2) TMI 1233
Addition on deemed dividend - Held that:- This question has been answered against the revenue “Commissioner of Income Tax-I, Ludhiana versus Amrik Singh,Prop.M/s Nexo Products(India) Ludhiana” [2015 (2) TMI 731 - PUNJAB AND HARYANA HIGH COURT] as held that as the assessee has proved business expediency the advance is not covered by Section 2(22)(e) of the Act. - Decided in favour of assessee.
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2015 (2) TMI 1232
Validity of reopening of assessment - not providing any fair and reasonable opportunity of being heard to the petitioner - Held that:- Without furnishing a copy of the statement stated to have been given by Mukesh Choksi and without notifying the petitioner regarding basis of the transaction that petitioner is said to have entered into with Mukesh Choksi, respondent has passed the impugned order. The entire basis for the impugned order is the sworn statement of Mukesh Choksi. Unless petitioner is given opportunity to have his say in the mater with regard to the said statement and its contents, it cannot be said that petitioner was given an opportunity of being heard in the matter. Hence, it has to be held that the impugned order is passed without providing any fair and reasonable opportunity of being heard to the petitioner. - Decided in favour of assessee.
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2015 (2) TMI 1231
TDS u/s 194C - Disallowance made u/s 40(a)(i) - payment of fee made to project manager - Held that:- Clearly, the revenue authorities fell in error in interpreting the relevant provision of the Act, i.e. the provision on which the authorities lay their case pertained to clause (k), which in the relevant assessment year was not in the statute, which came in only via the Finance Act, 2007, w.e.f. 01.06.2007. Hence the rigors of section 194C did not attract.
We, therefore, set aside the order of the CIT(A) on this issue and direct the AO to delete the disallowance made u/s 40(i)(ia) of the Act. - Decided in favour of assessee.
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2015 (2) TMI 1230
Tds u/s 194I - non deduction of tds on payments made to MMRDA - nature of payment - assessee in default - Held that:- The issue involved is squarely covered by the decision of the Tribunal in the case of “M/s. Starlight Systems Pvt. Ltd.” [2013 (9) TMI 1172 - ITAT MUMBAI] wherein, the Tribunal has held that the lease premium paid to MMRDA, in the facts and circumstances of the case, does not fall within the ambit of rent under section 194-I and, hence, no TDS is required to be deducted. - Decided in favour of assessee
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2015 (2) TMI 1229
Maintainability of appeal - direction to make pre-deposit - assessee could not deposit the amount due to some problems in deposit challan - Held that: - The appellant has failed to report compliance till date. Accordingly, we dismiss all the appeals for non-compliance of stay order - appeal dismissed.
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2015 (2) TMI 1228
Disallowance of 2% of the expenditure as being incidental to earning dividend income under Section 14A - Held that:- Learned counsel for the assessee fairly submits that the same is covered against the assessee by reason of decision of this Court rendered in assessee's own case
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2015 (2) TMI 1227
Disallowance of interest attributable to the share application money - addition u/s 14A - Held that:- As rightly contended by the assessee, investment made in the share application money till its conversion into shares being not capable of earning any income, which is exempt from tax, expenditure incurred by the assessee in relation to the making of such investments including interest paid on the borrowed funds to the extent invested in shares application money cannot be disallowed by invoking the provisions of S.14A. CIT(A), in our opinion, therefore, was correct in holding that the provisions of S.14A were not applicable for making disallowance on account of interest attributable to the investments made by the assessee in share application money, but finally confirming the disallowance made by the AO on account of such interest by holding that the same did not represent the expenditure wholly and exclusively incurred by the assessee for the purpose of its business. As regards quantum of interest disallowed by the Assessing Officer, we find that the disallowance of interest computed by the Assessing Officer on compounding basis was not sustainable, as the same resulted in notional disallowance, which is not permissible in law, and the learned CIT(A) therefore, was fully justified in directing the Assessing Officer to verify the actual expenditure incurred by the assessee on account of interest on the borrowed funds utilised for making payment of share application money and to restrict the disallowance to that extent.
Disallowance on account of interest attributable to the investment made by the assessee in landed property - Held that:- Learned Departmental Representative has contended that since this submission made by the learned counsel for the assessee now before the Tribunal was not made specifically in that manner before the authorities below, the Assessing Officer may be allowed an opportunity to verify the same. Since the learned counsel for the assessee has no objection in this regard, we restore this issue to the file of the Assessing Officer for deciding the same afresh, after verifying the specific submissions made by the learned counsel for the assessee before us, in accordance with law and after giving sufficient opportunity of hearing to the assessee.
Disallowance of interest attributable to the withdrawals made by the assessee out of borrowed funds - Held that:- No case was made out by the assessee before the Assessing Officer to show that the withdrawals for household purposes were made by the assessee out of the profits generated in M/s. Ushodaya News Agency and this claim apparently made by the assessee for the first time before him was accepted by the learned CIT(A) without discussing the relevant facts and figures and without referring to any documentary evidence, which supported the claim of the assessee. As contended by the learned counsel for the assessee, the assessee, however, is in a position to establish his claim by producing the relevant evidence as well as by furnishing the relevant facts and figures. Hew has requested that one more opportunity may, therefore, be given to the assessee to make out its case before the Assessing Officer. Since the Learned Departmental Representative also has no objection in this regard, we set aside the order of learned CIT(A) on this issue and restore this same to the file of the Assessing Officer for deciding it afresh.
Addition on account of interest attributable to the investment made by the assessee out of borrowed funds in fixed assets created for the purpose of tourism, but not put to business use - Held that:- a similar exercise has been done by the Assessing Officer in assessment year 2005-06, as per the direction of the learned CIT(A), and a similar direction may be given to the Assessing Officer to do such exercise even for the year under consideration. Since the Learned Departmental Representative has no objection in this regard, we set aside the impugned orders of the lower authorities on this issue, and restore the matter to the file of the Assessing Officer for the limited purpose of working out, as done in the preceding year as per the directions of the learned CIT(A) for that year, the actual quantum of interest actually paid by the assessee on the borrowed funds utilised for the construction of the relevant assets which were not put to use in the year under consideration and restrict the disallowance to that extent.
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2015 (2) TMI 1226
Validity of the appellate order dated 26.3.2014 passed by the Commissioner (Appeals) - Refund claim - unutilized input service credit - Held that: - This appeal, as already noted earlier, arises out of the Order-in-Original dated 31.10.2013 which was passed on a refund claimed by the assessee pursuant to the earliest appellate order dated 20.5.2009 and during the currency of operation of that appellate order (before its demise by the Final Order of the Tribunal dated 19.5.2014). It is axiomatic that judicial discipline demands unreserved fidelity by lower and administrative agencies to appellate orders. Since the appellate order dated 20.5.2009 had allowed assessee's refund claim in full and Revenue's application for stay was rejected by this Tribunal in Revenue's appeal No. ST/779/2009, the Assistant Commissioner could only have granted refund claimed by the appellant. He had no adjudicatory jurisdiction as he had become functus officio after passing the order dated 24.2.2009. In any event, the appellate order dated 20.5.2009, did not reinvest adjudicatory jurisdiction in the Assistant Commissioner - the order dated 31.10.2013 is patently incompetent ab initio - appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1225
Refund claim - accumulated CENVAT credit - Rule 5 of CCR, 2004 - various input services - Held that: - Since eligibility of the services has been considered in the decisions cited by assessee, I find that the assessee is eligible for refund claimed by them - Appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1224
Release of detained goods - the petitioner claims that the records like delivery notes were accompanied with the goods transported and the respondent would have released the goods after verification of records - Held that: - the Writ Petition is disposed of with a direction to the respondents to release the goods on payment of the tax component in a sum of ₹ 29,324/-. The petitioner shall furnish bank guarantee for the balance amount to be paid - petition allowed - decided in favor of petitioner.
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2015 (2) TMI 1223
Refund claim - despite applications and subsequent reminders, the respondents have not taken any step to refund the amount due to the petitioner - Held that: - respondents No. 2 and 3 are directed to decide the petitioner's claim for refund, within 2 months - petition allowed - decided in favor of petitioner.
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2015 (2) TMI 1222
Imposition of penalty u/s 11(2) of the Foreign Trade (Development & Regulation) Act - natural justice - the petitioner has exported “ Gold Medallions”, which is not the product approved in the list of authorised operators in the letter of approval - petitioner also not commenced their production within one year from the letter of approval nor sought for extention of time - Held that: - the petitioner did not have sufficient opportunity to submit their reply to the corrigendum issued to the show cause notice on 14.08.2014. Subsequently, the petitioner was not afforded opportunity of personal hearing after the corrigendum was issued and such personal hearing should have been granted to the petitioner after they had submitted their reply. The petitioner had no such opportunity to submit their reply, hence on this ground alone the impugned order is liable for interference - matter is remanded back to the respondent for fresh consideration - appeal allowed by way of remand.
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2015 (2) TMI 1221
Classification of imported item - restricted item - Whether the Digital Multifunction Printing and copying Machines (Old and used), imported prior to 5-6-2012 are hit by Para 2.17 of the Foreign Trade Policy, which placed the same under the restricted category with effect from 5-6-2012? - Held that: - the import of second-hand multifunction machines became restricted only w.e.f. 5-6-2012 and before 5-6-2012, these second-hand capital goods could be imported without any import licence.
The Technical Review Committee of the Ministry of Environment and Forest in meeting held on 16-11-2011 considered the photocopier machines and multifunction machines as different goods, though with similar function and recommended putting restrictions on import of second-hand multifunction machines. In fact, if the word ‘photocopier machines’ also covered the “Digital Multifunction Print and copying machines”, there would have been no necessity for the DGFT to specifically include the second-hand multifunction machines in Para 2.17 of the EXIM Policy.
Appeal rejected - decided against Revenue.
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2015 (2) TMI 1220
Cenvat credit - welding electrodes - inputs used for repair and maintenance of the plant and machinery - Held that:- In view thereof and for the reasons stated in judgment of date in M/s. DSM Sugar Asmoli v. Commissioner of Central Excise [2015 (2) TMI 1178 - ALLAHABAD HIGH COURT ], the substantial questions of law, formulated above, are answered in favour of Revenue and against assessee - Appeal allowed.
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2015 (2) TMI 1219
Valuation - related party transaction - time limitation - Held that: - the mala fide intention to evade payment of excise duty cannot be attributed to the appellant. The period of demand is 2004-05 whereas the SCN was issued on 1-2-2007, i.e. after almost two years. In view of these facts, the SCN is time barred as the same was issued beyond the normal period of one year. Hence the demand is time-barred - appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1218
Whether the value of the DTA clearances made by a 100% EOU should be the transaction value at which the goods have been sold to domestic buyers or it has to be the FOB value at which the same goods had been exported out of India?
Held that: - as per the Board Circular No. 330/46/97-CX., dated 20-8-1997 in respect of DTA sale of a 100% EOU the transaction value can be accepted if it conforms to Rule 3(1) of Customs Valuation Rules, 1988 - In this case, the Department has not produced any evidence to show that the transaction value at which the goods were sold by the appellant to DTA buyers is much lower than the price at which contemporaneous imports of similar goods were made into India - the impugned order is not sustainable - appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1217
Imposition of penalty - Rule 25 of Central Excise Rules - clearance of goods on execution of bond - it was alleged that the said bond was valid only for 12 calendar months from the date of execution of the bond and as such the validity of the said bond expired on 24-11-2005. A fresh bond was executed by the appellant only on 13-4-2007 and as such during the intervening period, there was contravention of provisions of Rule 19 of Central Excise Rules, 2002.
Held that: - No time-limit stand expressed in the bond or in the provisions of Rule 19. If as an administrative instruction, the bond has to be restricted to a period of 12 months, the jurisdictional officers of the appellant were well within their rights to direct the appellant to execute a new bond - Not only they did not do so but on the contrary they also allowed the assessee to keep on exporting the goods as against the executed bond. In such a scenario, it cannot be said that there was any mala fide on the part of the appellant not to renew the bond in time, so as to call for the penal provisions - penalty set aside - appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1216
Clandestine removal - demand of duty, interest and penalty - demand on the ground that the appellant has received the goods without duty paying invoice - Held that: - As per the provision of Central Excise Act, duty is payable by the manufacturer/producer of the goods - Admittedly appellant is not the manufacturer/producer of the goods. Therefore, demand is not sustainable against the appellant.
The SCN has been issued after a period of five years that also on limitation and appellant is having a good case - appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1215
Reversal of CENVAT credit - Rule 6(3) of Cenvat Credit Rules, 2004 - whether the accounts should have been maintained and segregation should have been done at the time of receipt itself? - Held that: - even subsequent reversal of credit would be sufficient and in this case before the raw materials/inputs were issued for manufacture of exempted goods, credit has been reversed - when the inputs were taken out for manufacture of exempted goods, they ceased to be cenvated inputs and since separate accounts for the inputs were maintained at this stage, it can be considered as fulfilment of obligation - appeal dismissed - decided against Revenue.
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2015 (2) TMI 1214
Refund claim - Rule 5 of CCR, 2004 read with N/N. 4/2006-C.E. (N.T.), dated 14-3-2006 - 100% production of final product is being exported and only the waste, which has arisen during the manufacture of the final product stands cleared domestically on payment of duty - whether refund claim on inputs allowed? - Held that: - Inasmuch as the appellants’ entire 100% production is for export purposes, the fact that they were using some non-duty paid inputs would not have any bearing on the refund of the accumulated credit - refund allowed - appeal allowed - decided in favor of appellant.
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