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Showing 201 to 220 of 1407 Records
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2015 (2) TMI 1213
CENVAT credit - excess duty paid by the supplier - Held that: - Proviso to Rule 3 of Central Excise Rules, provides that the assessee is entitled to take credit of duty paid on the inputs but the learned AR failed to appreciate the said proviso. Admittedly, the appellant has taken the Cenvat credit of duty paid by them - the appellant has correctly taken the Cenvat credit - credit allowed - appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1212
Unexplained cash deposits in bank - application for admission of additional evidence - Held that:- two persons i.e. Shri. Chaman Lal and Shri. Manoj Kumar straightway refused that they have undertaken any transaction with assessee and even during the cross examination the assessee’s counsel could not explain the statement or filed any evidence to show that they have undertaken any transaction with the assessee. This fact clearly shows that assessee is trying to build a story as an afterthought. We further find that the evidence which is sought to be filed now as additional evidence consists of copy of the ledger account and PAN numbers of various people and in some cases Bank pass book is also there. But in no case any confirmation has been filed from such persons from whom cash is supposed to have been received. Therefore, assessee is trying to make a half hearted effort just to gain a remand so that assessee can go back and cook something before AO. In these circumstances we are not inclined to admit the additional evidence and therefore reject these applications for admission of additional evidence. Thus additions confirmed - Decided against assessee
Income from share transactions - business income or capital gain - Held that:- assessee was a trader. Further assessee has dealt in large numbers of shares totaling to 64 scripts in various transactions during the year. AO has also noted that total number of shares purchased during the year were 11,12,741 for a sum of ₹ 1,87,76,103, and sold 11,12,741 shares for a sum of ₹ 1,94,69,637/-. In any case AO has rightly noted that shares have been shown as stock in trade in the balance sheet and not as investment. Once the share have been shown in stock in trade by the assessee itself then it cannot be said that assessee had made investment in such shares therefore in our opinion the AO and CIT(A) has correctly held these transactions to be in the nature or trading transactions and we find nothing wrong in the same and uphold the order of Ld. CIT(A).- Decided against assessee
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2015 (2) TMI 1211
Clandestine removal - the burning loss excess of 2% is not correct claimed by the respondents but they have cleared the goods clandestinely in the guise of showing excess burning loss - Held that: - the allegation of claim of excess burning loss is alleged in the SCN without any tangible evidence why the burning loss is not more than 2%. But Chief Commissioner, Chandigarh himself observed in the circular dated 13-11-2011 that burning loss in respect of hot re-rolling mill may vary from 1-2% to 6-7% - in such industry burning loss may extend to 6-7% on the basis of certificate from National Institute of Secondary Steel Technology dated 1-9-2011. The same is acceptable and reliable evidence in support of the respondent - charge of clandestine removal fails - appeal dismissed - decided against Revenue.
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2015 (2) TMI 1210
The High Court of Madras directed the respondents to release goods covered under specific Bills of Entry as per the final order of the Commissioner (Appeals-II) Chennai within four weeks from the date of receipt of the court's order. The writ petition was ordered accordingly with no costs.
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2015 (2) TMI 1209
Penalty u/s. 271(1)(c) - disallowance made u/s. 94(7) - Held that:- As decided in the case of City Group Global Markets India Pvt. Ltd. [2011 (12) TMI 658 - ITAT MUMBAI ] since no malafide intention can be attributed to assessee in claiming loss in these transactions, we are of the view that penalty under section 271(1)(C) is not warranted. Various case law relied upon by the assessee also supports the contentions made. However, without getting into the legal parameters, on facts of the case we are of the view that there occurred a bonafide mistake in not examining the provisions of section 94(7) on these transactions. Moreover, though there are disallowances in the course of the assessment proceedings, mere disallowance does not attract penalty proceedings under section 271(1)(C). - Decided in favour of assessee
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2015 (2) TMI 1208
AMP expenses - application of Bright-line test - Held that:- We find that the issues in dispute are similar and identical to the issues raised in assessee’s own case for A.Y. 2008-09, therefore, we respectfully follow the orders of the ITAT, Delhi as well as the order passed in the case of Sony Mobile Communications India Pvt. Ltd. vs. Addl. CIT [ 2015 (9) TMI 484 - ITAT DELHI], we set aside the issues in dispute to the file of the AO with the direction to decide the same, in view of the ITAT, Special Bench decision in the case of LG Electronics (2013 (6) TMI 217 - ITAT DELHI).
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2015 (2) TMI 1207
Payment of tax at compounded rates - Section 8(f) of the KVAT Act, 2003 - the petitioners had exercised their option, to pay tax in accordance with the provisions of Section 8(f) of KVAT Act, at a time when the Finance Act, 2011 had not yet been enacted, the permission of which was granted by respondent - whether payment of tax u/s 8(f) of KVAT Act in the present case applicable? - Held that: - It is trite that, when an assessee opts to pay tax at compounded rates, and such an option is accepted by the authorities under the KVAT Act, either expressly through an order or impliedly through their conduct, there comes into existence a contract from which neither side can resile. This legal position with regard to the binding nature of compounding proceedings has been reiterated in a number of judgments of the Supreme Court, the latest being the decision in Bhima Jewellery v. Assistant Commissioner (Assessment), Kerala & Another [2014 (10) TMI 411 - Supreme Court of India] - there was no justification in the respondents proceeding against the petitioners with a demand for differential tax based on the amended provisions introduced through the Finance Act, 2011.
The Finance Act, 2011, when enacted, contained a validation clause that made it clear that, the passage of the Finance Act would not affect any action taken in terms of the provisions of the Kerala Finance Bill, 2011 (Bill No.426 of the 12th Kerala Legislative Assembly). In the instant cases, the payment of tax at compounded rates, and the acceptance of the said tax by the respondents, all took place when the provisions of the Kerala Finance Bill, 2011 (Bill No.426 of the 12th Kerala Legislative Assembly), were in force. That being the case, by virtue of the validation clause in the Finance Act, 2011, those actions cannot be revisited, and it would be legally impermissible, and patently unfair, to permit the respondents to proceed against the petitioners with a demand for differential tax under Section 8 (f) of the Act.
The actions of the respondents in demanding differential tax amounts from the petitioners after having accepted the payment of tax by the petitioners in accordance with the applications submitted by them for the assessment year 2011 – 2012, cannot be legally sustained - penalty set aside.
The payment of the tax by the assessee on the basis of the provisions of the Kerala Finance Bill, 2009, could only be viewed as one effected under a mistake of law and hence the enhanced tax consequent to the enactment of the Finance Act could be validly collected from the assessee - the petitioners become entitled to any amounts by way of refund of excess tax paid to the Government, then, the respondents shall take steps to either refund the amounts to the petitioners or adjust the same towards the future tax liability of the petitioners.
Petition allowed - decided in favor of petitioner.
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2015 (2) TMI 1206
The Delhi High Court allowed exemption subject to exceptions in a case where notice was issued to respondents for filing counter affidavits within four weeks. The petitioner was permitted to file an appeal before CESTAT without pre-deposit until further orders from the Court.
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2015 (2) TMI 1205
Accrued Interest on loans classified as NPAs - whether the interest accrued in NPAs which are doubtful of being recovered should be recognised as the assessed income on accrual or on receipt basis - Held that:- On an appreciation of the material on record, we find that the assessee is in the banking business and governed by RBI Guidelines and Regulations.
CIT(A) has rendered a detailed finding deciding the issue in favour of the assessee and deleting the addition on account of interest accrual / receivable on NPAs, by following the decisions in the case of Canfin Homes Ltd. (2011 (8) TMI 178 - KARNATAKA HIGH COURT ) and Shiva Sahakari Bank Niyamitha (2012 (12) TMI 1021 - ITAT BANGALORE) for Assessment Year 2008-09.
As also seen that the learned CIT(A), following the decision in the case of Karnavati Co-operative Bank Ltd. (2011 (11) TMI 367 - ITAT AHMEDABAD) held that co-operative banks being governed by RBI Guidelines, the provisions of section 43D of the Act are also applicable to cooperative banks like the assessee and that there is nothing in section 43D of the Act which makes the interest income of the co-operative bank from NPA’s taxable on accrual basis. Before us, Revenue has not been able to controvert these findings of the learned CIT(A) in the impugned order. - Decided against revenue
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2015 (2) TMI 1204
Income from sale of shares - capital gain or business income - Held that:- The assessee has not used any borrowed funds and the transactions done by him are within the assessee’s financial capacity. The entries in the books of account reveal that the shares are shown as investments. Assessing Officer has not brought any case of repetitive transactions too. The decision of the ITAT in the case of Naishadh V. Vachharajani [2011 (2) TMI 84 - ITAT MUMBAI] is relevant for the proposition that the transaction as a whole has to be taken in consideration and the magnitude of the transaction does not alter the nature of transaction. Considering the same, we are of the opinion that the CIT (A) has rightly adjudicated the issue in directing the Assessing Officer to treat the said amount as short term capital gains only and not as the business income. Therefore, the decision of the CIT (A) is fair and reasonable and we find no infirmity in the order of the CIT (A). - Decided against revenue
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2015 (2) TMI 1203
Revision u/s 263 - CIT took the view that the interest on loans relatable to dividend so declared is not allowable as deduction under Section 36(1)(iii) - Held that:- As already noticed that the Ld. CIT has passed the impugned revision order only on the reasoning that the interest on borrowings, if any made, for disbursing dividend is not allowable as deduction under Section 36(1)(iii) of the Act. However, the various case laws relied on by the Ld. counsel make it very clear that the interest on the amounts borrowed for payment of dividend is allowable as deduction. Thus, it is seen that the very foundation on which the impugned revision order has been passed by Ld. CIT fails, in which case we are not able to sustain the same. Accordingly, we set aside the revision order passed by the Ld. CIT. - Decided in favour of assessee
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2015 (2) TMI 1202
Reopening of assessment - Held that:- The reasons recorded by the Assessing officer are specific, definite and relevant to the matter under dispute. The return of income was filed by the assessee was accepted without any scrutiny and hence it cannot be said that the Assessing officer had expressed his opinion while processing the return of income u/s. 143(1) of the Act. In our view, the assumption of jurisdiction by the Assessing officer under the main provision of section 147 meets all the requirements of law.
Further, the survey material recovered during the course of survey u/s. 133 of the Act on 24-09-2009 at the Kollam lab of the assessee , accompanied by the sworn statement of the Manager of the Kollam lab of the assessee, Shri Philip Varghese, show that the assessee has suppressed receipts for conducting MRI CT scan etc. Though the assessee issued receipts to the patients for fees collected by it for conducting various tests, copy of these receipts were not maintained in its books of accounts and only adhoc amounts were recorded in the books of account without any basis. There is variation between actual receipts and declared receipts in the books of accounts. Being so, the Assessing officer has reason to believe that the income has escaped from assessment so that the Assessing officer issued notice u/s. 148 of the Act to assess the escaped income of the assessee.
Quantification of the unaccounted income - Held that:- There is clear case of suppression of collections on daily basis for the assessment year 2009-10 and 2010-11 having been found during the course of survey carried out by the Department and the same was admitted by the assessee’s Manager, Shri Philip Varghese in his sworn statement. The ratio laid down by the Supreme Court in the case of Commissioner of Sales Tax, Madhya Pradesh vs. H.M. Esufali H.M. Abdulali (1973 (4) TMI 49 - SUPREME Court 1) is squarely applicable to the facts of the present case wherein it was held that if the estimate made by the assessing authority is a bona fide estimate and is based on a rational basis, the fact that there is no proof in support of that estimate is immaterial and it is his best judgment assessment.
The actual collection of Kottrakkara lab as found during the survey for four months is ₹ 27,14,505/- as against shown in the books of accounts for the corresponding period at ₹ 23,76,750/-. The difference for four months is worked out at ₹ 3,37,755/-. Thus, for the whole year, the suppressed collection for the Kottarakkara lab is worked out on the basis of the actual suppressed collection at ₹ 10,13,265/-. In our opinion, it would be reasonable if the estimation of unaccounted collection is made on the basis of actual suppressed collection found during the course of survey and and increase it for the whole year by multiplying by three (i.e.,12 months divided by 4 months).
For Kollam lab there is increase of 24% per annum in declared receipts as compared to the assessment year 2009-10 with the assessment year 2010-11. Accordingly, the suppressed receipts is to be estimated at the increased rate of 24% of ₹ 24,35,576/- for the assessment year 2010-11, i.e., 28,97,354/-. Thus, the addition would be ₹ 24,35,576/- for the assessment year 2009-10 and ₹ 28,97,354/- for the assessment year 2010-11 is to be made which would be over and above the returned income. There cannot be any further deduction towards expenses against the suppressed income for both the assessment years. Since in our opinion, all the expenses relating to the business are said to have been taken care of in the regular books of account. With this observation, the Revenue ground in both the appeals is partly allowed.
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2015 (2) TMI 1201
Request for bail - offence punishable under Section 135 of the Customs Act, 1962 - offence bailable or not - Held that: - on perusal of the bail application along with its annexures and after giving close look into the order of the learned Chief Metropolitan Magistrate, Calcutta dated 20.02.2015, I find that the value of the smuggled gold, alleged to have been seized from the possession of the petitioner herein, is only ₹ 8,98,214/‐. Therefore, it is very much within the statutory limit as provided under Section 135 of the Customs Act. As such, the petitioner is entitled to be enlarged on bail - Therefore, the petitioner/accused, namely, Anurag Jalan ,be released on bail upon furnishing a bond of ₹ 20,000/‐ with two sureties of ₹ 10,000/‐ each, one of whom must be local, to the satisfaction of the learned Chief Metropolitan Magistrate, Calcutta.
Application for bail allowed.
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2015 (2) TMI 1200
The Gujarat High Court adjourned the matter sine die at the request of the advocate for the applicant. The matter will be listed only after an appropriate application is filed.
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2015 (2) TMI 1199
Exemption U/s 10BA - Held that:- As decided in assessee's own case for A.Y. 2004-05, 2005-06 and 2006-07 1% labour expenses are incurred on private labourer engaged by the assessee on job work got done by the assessee, otherwise the assessee has its own manufacturing premises where permanent employees are employed and if this expenditure is taken into consideration then it is not 1% but it is substantial expenditure. This aspect has also been examined by the ld. CIT (A) and found that the assessee has incurred substantial expenditure on its manufacturing activity. Statements of 12 persons were recorded by AO during remand proceedings and those persons have categorically stated that they sold unfinished goods to the assessee and major portion of work on those goods have been done by the assessee itself in their premises. Neither the facts narrated by the supplier were found incorrect nor there was any other evidence to hold that the assessee is only doing manufacturing process.
On similar facts, the Tribunal in case of Mangalam Arts [2008 (6) TMI 248 - ITAT JAIPUR-A] has held that the assessee is entitled for deduction under section 10BA. We are of the considered view that the assessee was in manufacturing of goods and eligible for deduction U/s 10BA of the Act - Decided in favour of assessee
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2015 (2) TMI 1198
Eligibility of deduction u/s 80-IB - whether scrap generation was part of manufacturing activities of the industrial undertaking run by the assessee - Held that:- For claiming deduction u/s 80-IB direct nexus between the activities of the industrial undertaking and profits/gains is not a pre-condition. Therefore, income generated out of the sale of scrap is part of activities carried out by the -firm and is eligible for deduction u/s 80IB.
We find that Hon'ble Delhi High Court in the case of Sadhu Forging Ltd.(2011 (6) TMI 9 - DELHI HIGH COURT ) has held as under: “With the consent of the counsel for the parties, we have heard the matter finally. To answer the questions in both the appeals, we need to consider, firstly, as to whether the scrap, generated at various stages of manufacturing process, was part of manufacturing activity of the industrial unit and thus represented profits and gains derived from the industrial undertaking on this account were entitled to deduction under section 80-IB.- There cannot be any two opinions that manufacturing activity of the type of material being undertaken by the would also generate scrap in the process of manufacturing. The receipts of sale of scrap being part and parcel of the activity and being proximate thereto would also be within the ambit of gains derived from the industrial undertaking for the purpose of computing deduction under section 80-IB.” - Decided in favour of assessee
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2015 (2) TMI 1197
Entitlement to pension - request for voluntary retirement - Held that:- In the case at hand, it is clear as day that the Rule carves out two categories of retirement, one, normal retirement on superannuation and second, retirement on request i.e. voluntary retirement, ordinarily called the golden handshake and, therefore, the scheme was floated. In the instant case, as I perceive, the Scheme which is more beneficial was provided. It had the pension and the ex-gratia. However, it had a condition as enumerated in the Rule that if an employee had not completed 20 years of service, as per Rule 22(i)(c), he would not get pension.
As there is no provision for computation of broken period and, therefore, unless an employee has completed 20 years of service, he would not be entitled to pension.
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2015 (2) TMI 1196
Attachment of property involved in money laundering - Held that:- A perusal of Section 5 of the Act makes it clear that the order passed under sub-section 1 is a provisional measure and valid for maximum period of 180 days. The provisional attachment has to be approved by the Adjudicating Authority after proper adjudication within 180 days. The act envisages three layers of the grievance redressal in addition to safeguards incorporated in Section 5(1) of the Act.
The Adjudicating Authority may confirm or set aside the provisional attachment order on the basis of material produced by the parties before it. If Adjudicating Authority confirms the order of provisional attachment, the Act envisages appeal before the Appellate Tribunal. Section 42 of the Act provides further appeal to the High Court. Thus, it is clear that petitioner has an effective alternative remedy upto the High Court by way of adjudicating proceedings, appeal to the Appellate Tribunal and finally, appeal to the High Court. Petitioner can raise all the pleas including that of the jurisdiction before the Adjudicating Authority.
It is one thing to say that in exercise of power vested in it under Article 226 of the Constitution, this High Court entertain a writ petition against any order passed by or action taken by the State and/or its agency or any public authority or order passed by quasi-judicial authority and it is altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Thus not inclined to entertain the writ petition and the same is dismissed.
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2015 (2) TMI 1195
Waiver of pre-deposit - Held that: - The order dated 18.11.2014 has set out the conflict which resulted in the order of reference and granted waiver of pre-deposit of duty along with interest and penalty till disposal of the appeals vide paragraph 15 of the order - we waive pre-deposit of the liability of duty, interest thereon and penalty and grant stay of all further proceedings pursuant to the impugned orders, pending disposal of the appeals. The miscellaneous applications are also for stay purpose and the same are dismissed as infructuous
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2015 (2) TMI 1194
Levy of interest and penalty - Revenue Officials authority to levy penalty under the repealed provision - Held that:- HC order confirmed [2014 (9) TMI 714 - MADRAS HIGH COURT] stating that the notifications of the Government of India, in the Ministry of Finance (Department of Revenue), numbers G.S.R.448 (E) dated the 1st August, 1997 G.S.R. 503 (E) dated the 30th August, 1997 and G.S.R.130(E) dated 10th March 1998, issued under Section 37 of the Central Excise Act, shall stand amended and shall be deemed to have been amended retrospectively in the manner as specified against each of them in column (3) of the Fourth Schedule, on and from the corresponding date mentioned in column (4) of that Schedule and accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or any authority, any action taken or anything done or purported to have been taken or done under the said notifications, shall be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done as if, the notifications as amended by this sub-section had been in force at all material times
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