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Showing 241 to 260 of 1407 Records
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2015 (2) TMI 1173
Classification of aluminium composite panel under the APVAT Act, 2005 - validity of order passed by the Authority for Clarification and Advance Ruling - Held that:- It appears that earlier orders are passed on the application filed by the companies, which manufacture the goods falling under Schedule V of the Act, which include purchase and sale of aluminium composite panels. As the petitioner is involved in the business of purchase and sale of aluminium composite panels, based on the earlier orders dated December 8, 2005 and September 2, 2005, they were paying tax at four per cent. to five per cent. In view of the provisions under section 67(5) of the Act, the fifth respondent-Authority can review its own orders, however, it is empowered to do so only by showing good and sufficient cause and by giving an opportunity of hearing to the affected parties.
Therefore, having regard to the fact that no sufficient reasons are indicated in the clarificatory/reviewing order dated October 1, 2014, we deem it appropriate to set aside the order dated October 1, 2014 issued by the fifth respondent-Authority and the consequential assessment order dated December 24, 2014 issued by the second respondent-Deputy Commercial Tax Officer. However, we grant liberty to the fifth respondent-Authority under section 67 of the Act to review its earlier orders dated December 8, 2005 and September 2, 2005 by giving proper notice and opportunity of hearing to the petitioner and indicating the reasons for such review/clarification. Based on such ruling by the fifth respondent-Authority, it is equally open to the assessing authority to pass appropriate assessment orders afresh. - Decided in favor of assessee.
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2015 (2) TMI 1172
Levy of tax and penalty - Non-issuance of bill from the regular bill book for sale of Kota stone - Inter-state trade and commerce - Held that:- the assessing authority has rightly found that the said bills were not issued from the regular bill book of the petitioner firm and the petitioner firm had duplicate bill book as it could not get the aforesaid bills verified to have been issued from the regular bill books. Bill No.71 was issued from the original bill book of the petitioner firm, thus it is clear that bill no.71 was issued from duplicate bill book and thus petitioner firm has escaped that transactions from assessment. The petitioner firm was also provided full opportunity of hearing before levy of tax and imposition of penalty but it failed to prove that the the bills were issued from regular bill book. The Deputy Commissioner (Appeal) has already reduced the amount of excess interest. The Rajasthan Tax Board has rightly maintained the levy of tax, penalty and interest on the alleged inter-state transactions. - Decided against the petitioner
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2015 (2) TMI 1171
Addition u/s 68 - proof of genuineness of the transaction - Held that:- Hon'ble Calcutta High Court in the cases Bharati Private Limited, [1977 (7) TMI 49 - CALCUTTA High Court] and United Commercial & Industrial Company Pvt. Ltd., [1989 (5) TMI 18 - CALCUTTA High Court], in which the Hon'ble High Court held that for proving the ingredients under section 68 of the Act, the assessee shall have to prove the identity of the creditors, their capacity and genuineness of the transaction in the matter. Mere filing of the confirmation is not enough to prove the genuineness of the credits in the matter. In view of the above, we are of the view that the learned CIT (Appeals) was justified in refusing to admit the additional evidence because mere confirmation could not establish anything in favour of the assessee. Further no reason has been explained as to why the confirmation of the donors were not filed before the Assessing Officer. The Hon'ble Supreme Court in the case of Durga Prasad More [1971 (8) TMI 17 - SUPREME Court ] and in the case of Sumati Dayal [1995 (3) TMI 3 - SUPREME Court] held that “Courts of Tribunals have to judge the evidence before them by applying the test of human probabilities”. If the said test is applied in this matter, it is clearly established that the assessee has failed to prove genuine gifts in the matter - Decided against assessee
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2015 (2) TMI 1170
Classiffication - Maize Starch Powder - Whether to be classifiable under heading 11.03 as Maize Starch Powder as per assessee or under heading 35.05 as other modified starches, as per Revenue - Period of dispute is from 1.1.2003 to 30.09.2003 and from 1.10.2003 to 31.03.2004 - Held that:- there is no chemical test report on record, on the basis of which, it can be said that the goods, in question, are Modified Starch. Moreover, as observed by the Tribunal in appellant's own case reported in [2011 (4) TMI 970 - CESTAT, BANGALORE], the appellant have produced the test reports in respect of the samples of Starch Powder tested by South India Textile Research Association and on the basis of the characteristics like moisture content, ash content, pH, free acidity, cold water solubility, viscosity and starch content, the goods, in question, have to be treated as Native Starch and not the Modified Starch. In view of this, the classification of the Maize Starch Powder is upheld under Chapter 11 of the Central Excise Tariff Act, as contended by the appellant. - Decided in favour of appellant with consequential relief
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2015 (2) TMI 1169
Entertainment tax exemption in respect of Multiplexes - revenue or capital receipt - non exigibility to tax - whether the subsidy received by the assessee was after the completion of the cinema house and commencement of operation and used entirely for the business operation, and therefore, revenue in nature? - Held that:- Since the object of subsidy was to promote construction of multiplex theater complexes, in our opinion, receipt of subsidy would be on capital account. The fact that the subsidy was not meant for repaying the loan taken for construction of multiplexes cannot be a ground to hold that subsidy receipt was on revenue account, because, if the object of the scheme was to promote cinema houses by constructing multiplex theaters, then irrespective of the fact that the multiplexes have been constructed out of own funds or borrowed funds, the receipt of subsidy would be on capital account. In the light of the aforesaid objects of the Scheme framed by the State Government, the decision of the Income Tax Appellate Tribunal that the amount of subsidy received by the assessee is on capital account cannot be faulted.
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2015 (2) TMI 1168
Printing activity of a news paper publisher - whether amount to manufacturing activity to make that assessee eligible for grant of additional depreciation - Held that:- The issue raised by the Revenue is directly covered against it by the decision of the Delhi High Court in CIT v. Delhi Press Patra Prakashan Ltd. [2013 (6) TMI 70 - DELHI HIGH COURT]. We are in complete agreement with the ratio of that decision, which has been rightly followed by the Income Tax Appellate Tribunal. Under such circumstances, we do not find any ground to entertain this appeal. - Decided against revenue.
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2015 (2) TMI 1167
Waiver of pre-deposit - Amount of service tax liability, interest thereof and penaltied imposed - Amount received are not for service rendered - Applicant submitted that amount received towards incentives from Mahindra & Mahindra Ltd. are target based and on sale of the vehicles - Held that:- the issue needs deeper consideration as to come to a conclusion that incentives which are given to the applicant are for the sale of vehicles by the Mahindra & Mahindra or otherwise. It is seen from the letter of Mahindra & Mahindra, the manufacturer, indicates that an amount for incentives have been credited to the account of the applicant for various sales promotion schemes, incentives and support to boost the sales of your dealership. Therefore, the issue needs deeper consideration though the applicant would rely on the decision of CST, Mumbai-I Vs. Sai Service Station Ltd. [2013 (10) TMI 1155 - CESTAT MUMBAI](T) wherein it has been held that sales/target incentive is not taxable. Since, factual matrix has to be gone into detail, the applicant has not made out a prima facie case for complete waiver. The applicant should put to condition for hearing and dispose of the appeal. - Complete waiver not granted
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2015 (2) TMI 1166
Denial of Cenvat credit - Service tax paid for the rent of factory premises - No nexus with the manufacturing activity of the respondent - Held that:- no person shall answer in affirmative as the factory is directly related to the manufacturing activity of the assessee. This fact has been ignored by the Revenue while proposing to file this appeal before this Tribunal. On going through the Review order, it is found that they have not given any credence to the decision of Hon’ble High Court of Bombay in the case of CCE, Nagpur Vs. Ultratech Cement [2010 (10) TMI 13 - BOMBAY HIGH COURT]. In these circumstances, the impugned order does not have any infirmity and is upheld. - Decided against the revenue
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2015 (2) TMI 1165
Evasion or Attempted evasion of duty - Bail Application was filed by accused-petitioner in respect of Case filed for offences under Sections 132 and 135 (1) (i) (A) and (B) of Customs Act, 1962 – Whether goods imported on previous occasion without declaration and paying customs duty can be clubbed with present goods which were imported without declaration and without paying customs duty - High Court held that each of the petitioner should be treated to have attempted evasion of duty not only on present consignment of gold, but also for evasion of duty on import of gold on previous several occasions. As market price of gold imported exceeds one crore of rupees and value of customs duty attempted to be evaded exceeds fifty lakh of rupees, thus offence committed was non-bailable offence and were not entitled to be released on bail. Apex Court dismissed the special leave petition filed by the petitioner
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2015 (2) TMI 1164
Transfer pricing adjustment - Held that:- Appeal admitted on the following reframed substantial questions of law:“(
a) Whether on the facts and circumstances of the case and in law, the Tribunal was justified in admitting the fresh evidence in the form of calculations, submitted in the chart furnished before the Tribunal by the Respondent Assessee for the first time during the hearing, in violation of Rule 29 of the Appellate Tribunal Rules and these calculations were also not validated by the statutory auditors of the RespondentAssessee?
(b) Whether on the facts and circumstances of the case and in law, the Tribunal was right in directing the A. O. to simply verify the calculations submitted before it for the first time and not instead either upholding the order of the A. O or else setting aside the order to be made denovo as no statutorily audited AE & nonAE segment was available in the audit report of the Assessee?
(c) Whether on the facts and circumstances of the case and in law, the Tribunal was justified in giving directions to the A. O. to work out the ALP only with respect to international transactions of the Assessee with its AEs though the TNMM analysis was done by the TPO at the entity level as no statutorily audited AE and nonAE segment was available in the audit report of the Assessee and this was done by the A. O. in the spirit of the recognition in the OECD guidelines that in these circumstances comparison of net margin at entity level is the only practical way?”
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2015 (2) TMI 1163
Exemption under Section 10(10C) - Held that:- Issues arising in present appeal are covered against the revenue as Exit Option Scheme of S.B.I. Employees fulfill all the conditions laid down in Rule 2BA r.w.s. 10(10C) of the I.T. Act, 1961. See Vijay Ganpatrao Patil case [2015 (11) TMI 868 - BOMBAY HIGH COURT] - Decided in favour of assessee
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2015 (2) TMI 1162
Revision of already concluded assessment - Petitioner submitted that assessment order was passed by the DETC, Hisar. The show cause notice for re-assessment under Section 40(2) of the Act was, therefore, required to be issued by an officer senior to the DETC, Hisar, but has been issued by an officer of co-ordinate rank, namely, the DETC (Inspection-cum-Revisional Authority), thereby rendering the impugned notice null and void - Held that:- in view of statement made by the State of Haryana, on instructions from Mr. Ajay Sihag, Excise and Taxation Officer, Hisar, the show cause notice impugned in the present petition may be treated as withdrawn but with liberty to the State to serve a fresh notice under Section 40(2) of the 1973 Act, after following procedure prescribed by law and the show cause notice is set aside. - Decided in favour of petitioner
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2015 (2) TMI 1161
Penalty u/s 271(1)(c) - Held that:- We find that the penalty was deleted by CIT(A) on two basis. First basis is that the assessee was under bonafide belief that he has shown correct income in the return of income on the basis of TDS certificates issued to him. The second basis is that the Assessing Officer has not recorded the satisfaction for initiation of penalty proceedings u/s 271(1)(c) in a proper manner.
In the assessment order also, we find that it was explained by the assessee before the Assessing Officer that at the time of filing return of income, interest income has been disclosed in part and balance amount of ₹ 15,13,676/- remained undisclosed due to incomplete details provided by bank S.B.I. and U.P. Gramin Bank. This goes to show that the omission on the part of the assessee is bonafide omission because when the deductor has issued a wrong TDS certificate, it cannot be said that the assessee has concealed income or furnished inaccurate particulars of income. For the second addition of ₹ 13,882/- regarding excess claim of deduction u/s 80C, it is noted by the Assessing Officer that the assessee could furnish documents of only ₹ 86,118/- whereas deduction claimed was for Rs. One lac u/s 80C. Hence, it is seen that on this account also, the addition was made for the failure of the assessee to produce relevant documents without a finding that the claim itself is wrong or false. Hence, on this aspect, we do not find any reason to interfere in the order of CIT(A). - Decided against revenue
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2015 (2) TMI 1160
Penalty under Section 13(1) of Foreign Exchange Management Act, 1999 - direction to the fourth respondent seeked to release the balance amount directed to be released to the petitioner under Ext.P1 order - Held that:- As a statutory appeal under Section 17 of the Act is pending before the fifth respondent and the said amount cannot be released during the pendency of the said appeal thus find some force in the objection raised by the revenue.
The grievances of the petitioner can be redressed by directing the fifth respondent to dispose the statutory appeal at the earliest. The fifth respondent is directed to dispose Ext.P5 appeal at the earliest, at any rate, within a period of two months from today.
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2015 (2) TMI 1159
Recomputation of deduction under section 10B - Held that:- A.O. is not justified in reducing the export turnover claimed by the appellant for the purpose of computing deduction u/s 10B of the Act. The deduction u/s 10B of the Act is, therefore, worked out at ₹ 7,30,16,357/-by considering business profit at ₹ 15,50,66,523/-, export turnover at ₹ 58,46,09,183/- and total turnover at ₹ 1,24,15,48,014/-. The addition made by the A.O. is, therefore, confirmed to the extent of ₹ 15,96,439/- (Rs.7,46,12,796/- - ₹ 7,30,16,357/-).
Addition made on account of GP addition on export sales - Held that:- Assessing Officer had compared the results shown by the assessee in the export sales to the results shown by the assessee in domestic sales and was of the view that the profits from export sales have been shown at high percentage as compared to the consolidated gross profit by the assessee for the year under consideration. In the first instance, we hold that the Assessing Officer is not correct in this approach as under the provisions of section 80IA(10), the comparison has to be made between the assessee and any other person; whereas in the facts of the present case; the comparison has been made between the results of export sales of manufactured items with the domestic sales of manufactured items carried on by the assessee itself. The provisions of section 80IA(7) of the Act are not attracted in such a scenario and have been incorrectly applied by the Assessing Officer while computing the deduction under section10B of the Act in the hands of the assessee. Also the profits declared by the assessee against export sales were found to be correct and no addition was suggested on account of arm’s length price of such transaction of sale of manufactured goods to parties outside India. In such circumstances, where the export sales have been found by the TPO to be at arm’s length price and no adjustment in this regard has been made by the Assessing Officer while completing assessment under section143(3) r.w.s.144C of the Act, we find no merit that while computing the exemption under section10B of the Act, the Assessing Officer has re-worked the profits eligible for such deduction by applying the consolidated gross profit of the year under appeal as the basis for earning the said income. We uphold the order of CIT(A) in deleting addition made on account of re-working exemption under section 10B
Addition made under section 41(1) and Explanation 10 to section 43(1) of the Act on account of special capital incentive - Held that:- The order of the CIT(A) in holding that the grant of ₹ 30 lakhs received by the assessee during the year under consideration was a capital receipt and not taxable in the hands of the assessee. Further, there is no merit in invoking of the provisions of either section 41(1) or section 43(1)(b) of the Act.
Working of the total turnover by excluding Excise Duty paid/payable, while computing the exemption under section 10B of the Act. - Held that:- As decided in assessee's own case for assessment year 2003-04 Excise Duty is to be excluded from total turnover while computing exemption under section 10B of the Act. Following the same parity of reasoning, we direct the Assessing Officer to re-compute the deduction under section 10B of the Act.
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2015 (2) TMI 1158
Disallowance of interest under section 36(1)(iii) - Held that:- It is an undisputed fact that assessee was having own funds at ₹ 219.86 crores at the beginning of the year and ₹ 180.05 crores at the end of the year. It is also an undisputed fact that assessee advanced ₹ 29.18 lacs only during the year under consideration. Since the assessee is having sufficient own funds to meet out the advances we do not find any reasons for disallowance of the proportionate interest. On the facts of the case we set aside the findings of Ld. CIT(A) and direct the AO to delete the addition - Decided in favour of assessee
Addition being mark to market losses treating it as only notional and contingent - Held that:- As relying on the decision of DCIT vs. Bank of Bahrain and Kuwait (2010 (8) TMI 578 - ITAT, MUMBAI) to hold that the liabilities for foreign exchange was incurred during the normal course of assessee’s business and in fact the gain earned on such revaluation having been accepted and brought to tax in the respective years, there is no reason to arrive at a different conclusion in this year merely because there is a loss. Thus directing the AO to delete the addition - Decided in favour of assessee
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2015 (2) TMI 1157
Winding up petition - Held that:- The case of an afterthought is quite different. To my mind, an afterthought is an explanation, or a defence, that has occurred to someone later on; i.e., after the opportunity to give his explanation had already been given to him; and he chose to offer some other explanation at that time, but not the one he is seeking to put forward now; even though all the relevant facts had already been brought home to him beforehand. This is not the factual situation here. Here the opportunity given in the form of a notice of demand discloses no material particulars at all. It follows therefore that the stand taken by the respondent in its reply to the petition for winding up filed in the Court, which is in response to further material particulars disclosed for the first time by the petitioner in the petition, cannot be said to an afterthought.
In the case at hand, no attempt has been made to press any facts demonstrating the admission of any amount that could have become due and payable to the petitioner by the respondent. All that the respondent has been saying is that the petitioner should render complete and material particulars of all transactions, invoices etc. between the parties; and to come forward for a proper reconciliation of accounts.
Keeping in view the unique and peculiar circumstances of this case, especially the type of notice for winding up that was issued by the petitioner to the respondent, do not think that the respondent has taken any unreasonable position.
All this, coupled with the nature of the threat held out by the petitioner in the concluding paragraph of the notice of demand, makes it obvious that the petitioner has sought to abuse the jurisdiction of this Court with a view to coercing and pressurising the respondent to pay its demands, including interest demanded by it, without standing the test of evidence and cross-examination or even paying the court fee to recover its dues from the petitioner at civil law.
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2015 (2) TMI 1156
RTI - whether the petitioner-trust can be allowed to contend that it is not covered by the Right to Information Act? - Held that:- Indisputably, the petitioner-trust is a body constituted under law made by the State Legislature, namely, Shri Sanwaliaji Temple Act, 1992, it has to be thus held as “public authority” in the meaning of Section 2(h) of the Right to Information Act, 2005.
What the Chief Information Commissioner has directed in the present case is that the petitioner-trust should provide to respondent no.3 the copy of agenda of the Board meeting dated 01.12.2013, copy of resolution passed by the Board in the said meeting and copy of the proceedings registered of that day. None of these informations is covered by any of the exception clauses referred in list of exemption from disclosure of certain/specific kind of informations.
The Information Commission has examined the matter thoroughly and has upheld the order passed by the appellate authority. This court, on analysis of the impugned order, does not find any infirmity in the order passed by the Information Commission. Neither the desired information can be said to fall in any of the exception clauses, nor can the petitioenr-trust claim to be not a public authority in the meaning of Section 2(h) of the Right to Information Act, 2005.
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2015 (2) TMI 1155
Estimation of annual letting value - (ALV) of the property taken at 8.5% on the total investments for the purpose of determination from house property u/s. 22 by CIT(A) - Held that:- Perusal of the order of CIT(A) shows that annual value for the property in question has been determined by BBMP at ₹ 29,722 for the relevant financial year. The Hon'ble High Court of Karnataka in the case of Shri P. Balakrishnan v. CIT, ITRC No.59/1982 dated 26.2.1982 has taken the view that in the absence of any other details, the ALV fixed by the Corporation is the yardstick for determination of ALV u/s. 23 of the Act. If that yardstick is applied, then the actual rent received by the assessee would be much greater than the ALV determined by the BBMP. The CIT(A), has however determined the ALV u/s. 22/23 of the Act on the basis of Hon'ble Gujarat High Court referred to in the grounds of appeal by the Revenue. The course adopted by the CIT(A) is favourable to the Revenue, but the assessee has not chosen to challenge the same. In the light of law as declared by the Hon'ble High Court of Karnataka and in view of the fact that the CIT(A) has determined the ALV at a much higher figure than what is contemplated by the decision of Hon'ble High Court of Karnataka and in view of the fact that the assessee has not challenged the said determination of ALV by the CIT(A), we are of the view that the order of CIT(A) calls for no interference and should be confirmed - Decided in favour of assessee
Disallowance of interest on borrowings made - CIT(A) allowed the claim - Held that:- The findings of the CIT(A) clearly show that assessee had borrowed loans for the purpose of acquiring the property. There is no material on record brought out by the Revenue to dislodge the findings of CIT(A). - Decided in favour of assessee
Deemed dividend addition u/s. 2(22)(e) - Held that:- Since the Assessee in the present case is not a shareholder in the lender company, we are of the view that loan or advance to a non-shareholder cannot be taxed as Deemed Dividend in the hands of a non-shareholder - Decided in favour of assessee
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2015 (2) TMI 1154
Admissibility of Cenvat credit - in view of the definition of "Capital Goods" under Rule 2(b) of Rules, 2004 - CENVAT Credit availed treating Welding Electrodes consumed as capital good - Appellant contended that as per Rule 2(a)(A)(iii), 'Welding Electrodes' would come within the term 'components' so as to fall within the category of 'capital goods' - Held that:- Section 2(a)(A)(iii) says that in respect to items mentioned in 2(a)(A)(i) and (ii), components, spares and accessories of the goods specified thereunder would also fall within the category of 'capital goods'. Having failed to point out application of any other provision under Rule 2 (a), the stress on the part of assessee was on the term 'components' under Rule 2 (a)(A) (iii) and it is contended that 'Welding Electrodes', being used for maintenance and repair of machineries and factories, would fall in the category of components, hence would be entitled for CENVAT Credit being 'capital goods'. It is found that 'capital goods' as defined under Rule 2(a) of Rules 2004, in substance, are pari-materia with the 'capital goods' specified in Rule 57-Q of Rules, 1944 and there is no substantial difference therein. Considering a similar argument in the context of Rule 57-Q of Rules, 1944, as it stood in 1999, similar question and submissions have already been considered by this Court recently in M/s Upper Ganges Sugar & Industries Ltd. Vs. Commissioner Customs & Central Excise [2015 (5) TMI 569 - ALLAHABAD HIGH COURT]. therefore, by following the same, Cenvat credit is not admissible in view of the definition of "Capital Goods" under Rule 2(b) of Rules, 2004. - Decided against the assessee
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