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Showing 301 to 320 of 1407 Records
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2015 (2) TMI 1112
Cenvat Credit - Tribunal held that the respondent shall be deemed to be an output service provider under Rule 2(p) of the Cenvat Credit Rules, 2004 (hereinafter referred to as ‘the Rules’) and was therefore entitled to Cenvat credit for the Service Tax paid by it prior to the period 5-3-2004. - Held that:- It is an undisputed position that prior to 5-3-2004 the respondent was not an output service provider. It became an output service provider subsequent to that date after it entered into a MOU with M/s. Vallab Steels Ltd. for rendering output service. If prior to the same, the Respondent paid Service Tax on the ground that M/s. JFE Engineering Corporation, a company incorporated in Japan, from whom it received input service was not liable to pay tax and subsequently it was held that the Respondent was not liable to pay Service Tax as a deemed output service provider under the Service Tax Rules, its remedy to seek a refund, if entitled in the law, is a completely separate matter.
The Rules having come into force on 10-9-2004 only, and not having been made retrospective in operation, the Tribunal erred in holding that during the relevant period prior to 5-3-2004, the respondent would be deemed to be an output service provider under Rule 2(p) giving it retrospective effect. The Tribunal therefore erred in ultimately holding that availment of credit was permissible in view of the subsequent extended definition of output service which came into force on 10-9-2004 much after the period in question prior to 5-3-2004. - Credit not allowed - Decided against the assessee - In favor of revenue.
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2015 (2) TMI 1111
Refund Claim - Relevant Date - Period of limitation - GTA service - Held that:- the relevant date, as defined in sub-section (6) of Section 73 had to be with reference to Section 71A, and not under Section 71. In the present case, the appellant is a ‘service recipient’, and under Rule 2(d)(xii), it was liable to pay service tax for the period 16-11-1997 to 2-6-1998. The provision was struck down, on which a retrospective amendment was made, which was held valid by the Supreme Court in Gujarat Ambuja Cement Ltd.
For the relevant period in the present case, the appellant, as an assessee, was required to file return under Section 71A, and not under Section 71, and thus, the period of show cause notice had to be calculated from the date, under Section 71A, and not Section 71.
In the present case, the appellant was a service recipient. He was required to file returns for the period between 16-11-1997 to 2-6-1998, and thus, the provisions of Section 71A will be attracted, and not provisions of Section 71. - Refund allowed.
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2015 (2) TMI 1110
Wrong availment of cenvat credit - non receipt of inputs - Validity of order of tribunal - tribunal mechanically and causally approved the findings in the Order-in-Original - it was submitted that the Tribunal rendered its judgment after a good five months of the conclusion of the hearing of the appeal. Such a long gap therefore, is bound to result in inconsistencies, errors and omission to refer to vital materials placed on record.
Held that:- We are not in agreement with Mr. Nankani that the Tribunal, while affirming a finding of fact as recorded in the Order-in-Original, has omitted from consideration anything which is relevant or germane to this issue. Further, its findings cannot be termed as vitiated by non-application of mind. They are not palpably, erroneous, as contended, as well. In that regard, there is merit in the contention of Mr. Jetly, that this appeal is nothing but an attempt at re-appreciation and reappraisal of the factual findings.
Once the Tribunal has found that the transportation as claimed and of the goods has not taken place at all, then, coupled with other materials, the Tribunal rightly arrived at the conclusion that there has been a wrongful availment of Cenvat credit. In the circumstances, we do not think that the Tribunal’s order can be termed as perverse. - Decided against the appellant.
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2015 (2) TMI 1109
Validity of assessment u/s 153A - addition to income - Held that:- As all the appeals relate to the assessment years, which were not abated by the provisions of Section 153A of the Act. It has been held by the Mumbai Special Bench in the case of All Cargo Global Logistics Ltd. v. DCIT (2012 (7) TMI 222 - ITAT MUMBAI(SB)) that the additions can be made in the case of completed assessments (assessment years which were not abated) only on the basis of incriminating material found during the course of search. Admittedly, in these cases, the Department did not unearth any incriminating material warranting addition. Under these circumstances, we hold that all the additions made by the Assessing Officer were not in accordance with law. - Decided in favour of assessee
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2015 (2) TMI 1108
Waiver of pre-deposit - undue hardship - challenge to the order of Tribunal - Held that:- Except for reciting that it would cause undue hardship, there is no material pleading with regard to the circumstances or nature of the undue hardship that would be caused. We therefore find no reason to interfere with the impugned order dated 4-12-2014. If the Appellant is of the opinion that a part of the adjudicated liability had already been deposited, it may bring it to the attention of the Tribunal itself. In that event subject to the satisfaction of the Tribunal, unless already considered, nothing prevents it from passing appropriate orders for modification or clarification of its order dated 4-12-2014. - Appeal dismissed.
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2015 (2) TMI 1107
Claim of Refund - reassessment of Bill of Entry - import of Ethylene-Vinyl Acetate Co-Polymers and payment of customs duty @ 7.5% - claim of benefit of Notification No.152 of 2009-Cus/dated 31.12.2009, - Held that:- the petitioner is seeking is an amendment of the Bill of Entry which is permissible under Section 149 of the Customs Act, 1962 even after the goods have been cleared for home consumption provided the said amendment is based on documentary evidence which was in existence at the time when the goods were cleared. - the said notification was in existence at that point of time - this is a clear case where the petitioner could avail of the provisions of Section 149 of the Customs Act, 1962 and we, therefore, direct him to move an application before the proper officer seeking amendment of the Bill of Entry in terms of Section 149. - Decided in favor of assessee.
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2015 (2) TMI 1106
Penalty u/s. 271(1)(c) - additions made u/s 68 - Held that:- For levy of penalty there has to be evidence or material to show that the Assessee has deliberately furnished inaccurate particulars of income. It also a settled law that penalty proceedings are entirely distinct from assessment proceedings and howsoever relevant and good the findings in assessment proceedings may be, they are not conclusive as far as penalty proceedings are considered. It is also well settled that the parameters of judging the justification for addition made in assessment case of an assessee is different from the penalty imposed on account of concealment of income or filing inaccurate particular of income and that certain disallowances/additions could legally be made in assessment proceedings on the preponderance of probabilities but no penalty could be imposed u/s. 271(1)(c) of the Act on the preponderance of probabilities and the Revenue has to prove that the claim made by the Assessee was not genuine. In the present case LD. AR has placed on paper book the table of documentary evidence filed in respect of sundry creditors like ledger accounts, purchase bills, confirmations and has thus discharged the initial onus cast upon the Assessee. On such evidences furnished no inquiry was conducted by AO.
The purchases from the creditors and the corresponding sales have not been doubted. Before us, Revenue has not brought any material to controvert the submissions of Assessee. Considering the totality of the aforesaid facts, we are of the view that in the present case penalty u/s. 271(1)(c) could not be levied - Decided in favour of assessee
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2015 (2) TMI 1105
Penalty u/s. 271(1)(c) - unexplained cash credit under section 68 - Held that:- It is undisputed facts that on the addition of ₹ 15 lacs made u/s. 68 by A.O. penalty u/s. 271(1)(c) has been levied by A.O., which has also been confirmed by CIT(A). It is also a fact that assessee has disclosed all the material facts before the A.O. and has also submitted the explanation which has not been found to be false. It is a well settled law that penalty proceedings are entirely distinct from assessment proceedings and however relevant and good, the findings in assessment proceedings may not be conclusive so far as penalty proceedings are concerned. It is well settled that the parameters of judging the justification for addition made in the assessment proceedings is different from the penalty imposed on account of concealment of income or filing of inaccurate particulars of income and that certain disallowance/additions could legally be made in the assessment proceedings on the preponderance of probabilities but no penalty could be imposed u/s.271(1)(c) of the Act on preponderance of probability and the Revenue has to prove that the claim of the assessee was not genuine or was inflated its tax liability. Further merely because additions have confirmed in appeal or no appeal has been filed by assessee against additions made, it cannot be the sole ground for coming to the conclusion that assessee has concealed any income. Considering the aforesaid and peculiar facts of the case, we are of the view that in the present case, no case for penalty has been made - Decided in favour of assessee
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2015 (2) TMI 1104
Validity of invoking the provisions of section 263 - entitlement for claim of deduction u/s.80IC - Held that:- The assessee has placed reliance on the decision of the Coordinate Bench rendered in the case of Tirupati LG Industries Ltd., New Delhi vs. DCIT-Circle-2, Dehradun [2014 (1) TMI 1689 - ITAT DELHI] wherein it has been held that there is no prohibition or Bar into the Statute that the assessee cannot carry out substantial expansion after having carried out once.
The aforesaid decision of the Coordinate Bench was not submitted before the ld.CIT, therefore it would appropriate that the matter be restored to his file for decision afresh, taking into consideration the decision of the Coordinate Bench rendered in the case of Tirupati LPG Industries Ltd.(supra). Moreover, the Revenue has not placed any contrary binding precedent on record taking a contrary view than the view expressed by the Coordinate Bench of this Tribunal in the case of Tirupati LPG Industries Ltd.(supra). Therefore, the order of the ld.CIT is hereby set aside and the matter is restored back to his file for decision afresh. Needless to say that the ld.CIT would afford sufficient opportunity to the assessee. - Decided in favour of assessee for statistical purposes.
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2015 (2) TMI 1103
Transfer pricing adjustment - selection of comparable - Held that:- Pentamedia Graphics Ltd - the points brought out by the Ld. Representative clearly establish that the said concern has been wrongly excluded from the list of comparables. We therefore direct the Assessing Officer to consider the said concern as a comparable.
Ace Software Exports Ltd. - there is no justifiable reason to consider the Ace Software Exports Ltd. as a comparable concern in order to benchmark assessee’s international transaction of Provision of ITES to its associated enterprise. The order of the TPO is hereby affirmed and assessee fails on this aspect.
Accentia Technologies Ltd. - during the year under consideration there were extraordinary events that took place in the said concern which warranted exclusion of this company as a comparable. We therefore hold that the said concern cannot be considered as a comparable.
Coral Hubs Ltd. (formerly Vishal Information Technologies Ltd.) fit to be excluded from the final set of comparables, as not comparable to assessee as ITES provider.
Cosmic Global Ltd. is not a good comparable to be included for the purposes of comparability analysis as it operates under a different business model which impacts operating margins. As a 14 consequence, we direct the Assessing Officer to exclude the said concern from the final set of comparables.
Crossdomain Solutions Ltd. liable to be excluded from the list of comparables as there was no bifurcation available for various diversified activities being carried out by the said concern and therefore on an entity level the said concern could not be compared to a normal ITES provider.
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2015 (2) TMI 1102
Addition on account of credit in partners capital account due to remission of loan liability considered as income of the firm U/s. 2(24) r.w.s. 28(iv) - CIT(A) deleted the addition - Held that:- CIT(A) while granting relief to the Assessee has given a finding that the Assessee was not carrying on the business of obtaining loans and therefore the remission of loan cannot be considered to be a benefit arising out from the business. We find that ld. CIT(A) while deciding the issue in favour of the Assessee had relied on the decisions cited therein and also the decision of Hon’ble Gujarat High Court in the case of CIT vs. Chetan Chemicals Pvt. Ltd. [2001 (10) TMI 12 - GUJARAT High Court ]. Before us, Revenue has not brought any contrary binding decision in its support nor could point any distinguishable feature of the decisions relied by A.R. We therefore find no reason to interfere with the order of ld. CIT(A) and thus this ground of Revenue is dismissed. - Decided in favour of assessee
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2015 (2) TMI 1101
Eligibility for deduction u/s 80-IC - Held that:- The entire work was executed in conformity with technical details provided through detailed fabrication drawings of the client. The appellant had produced copies of excise returns filed, bills of purchase of machinery and raw material, and details of job work paid. The firm was found to be registered with VAT, CST, Service tax and Central Excise Authorities. Reliance was placed on the judgement of the Delhi High Court in the case of CIT vs Northern Aromatics Ltd (2005 (2) TMI 830 - DELHI HIGH COURT ) to hold that the activity of the appellant had to be regarded as manufacture irrespective of whether the products manufactured are for its own business or as job work for others. After considering the evidence furnished of fabrication and assembly of trusses, columns, gantries, etc. for the steel plant of M/s Dharmpal Premchand Ltd., it was held that the appellant was entitled to the deduction under section 80le. No new facts have been brought on record in the current year to disprove the appellant's claim. It is held accordingly that the appellant is engaged in the 'manufacture' of articles and is therefore, eligible for the deduction under section 80IC. - Decided in favour of assessee.
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2015 (2) TMI 1100
Disallowance of claim of deduction u/s.54(1) in respect of residential flats acquired by the assessees in consideration of old house sold to the builder - Held that:- It is clear from the above that residential house was given to the assessee in consideration of the sale of old house. The sale consideration was partly received in cash and partly in the form of new flats to be constructed on the plot of old house sold by assessee. The new flats agreed to be given to assessee amounts to investment by assessee in residential house. Therefore, the AO was not justified in adding back the additional consideration given in the form of allotment of three flats by declining claim of deduction u/s.54 of the I.T.Act.
In the present case before us, the assessee has purchased/constructed the new residential property and paid the consideration equivalent of price by payment in kind. Therefore, the assessee is entitled for exemption u/s.54 of I.T.Act, 1961 in respect of these flats.
An issue was also raised by the AO with regard to sharing of 3 flats between the co-owners of the property and the exemption u/s.54 allowable in case of investment in one residential flat only. In this regard, we found that the details of allocation of area of new residential property between co-owners is already on record of the AO as well as in the valuation report. Furthermore, the co-owner will get the area according to their ratio in the new residential property. Since flat no.301 & 302 are situated in the same floor and adjacent to each other and will be treated as one single residential unit for the purpose of claiming exemption u/s.54. Thus we do not find any merit in the action of the AO for decline of claim of deduction u/s.54 in respect of residential flats allotted by builder in consideration of sale of old house. - Decided in favour of assessee
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2015 (2) TMI 1099
Penalty u/s 271(1)(c) - addition in respect of non-deduction of tax - CIT(A) deleted the penalty - Held that:- The factum of deletion of addition in respect of non-deduction of tax by the assessee is not controverted by the ld. CIT-DR. Therefore, we do not see any reason to interfere with the order of the ld. CIT(A) deleting the penalty on this amount.- Decided against revenue
Additional income declared in consequence to the survey action - Held that:- We find that the fact that the penalty is levied on the amount which was reflected in the original return as income. The ld. CIT(A) has followed the decision of this Bench of the Tribunal rendered in the case of DCIT Vs. Dr. Satish B Gupta (2010 (8) TMI 641 - ITAT, AHMEDABAD ). Ld. CIT-DR has contended that the CIT(A) failed to appreciate the fact that the additional income was declared in consequence to the survey action by the Revenue. However, it is not disputed by the ld. CIT DR that the assessee has declared this income in his original Return of Income, although it was belated return. As per provisions of Section 271(1)(c), penalty can be imposed if the assessee has concealed the particulars of income or furnishing the inaccurate particulars of such income. There is no dispute with regard to the fact that the particulars of income are reflected in the Return of Income. It is not the case of the Revenue that the returns of income filed were invalid. In fact, the Assessing Officer has proceeded on the basis of the returns filed by the assessee and particulars furnished therein. Therefore, we do not see any good reason to interfere with the order of the ld. CIT(A) which is hereby confirmed. - Decided against revenue
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2015 (2) TMI 1098
Cenvat Credit / Modvat Credit - appellant claimed that ‘Welding Electrodes’ would fall in the category of ‘Capital Goods’ - Tribunal [2007 (8) TMI 558 - CESTAT, NEW DELHI] denied the credit in respect to Welding Electrodes - Held that:- For the reasons given in the judgment in M/s. Upper Ganges Sugar & Industries Ltd. v. Commissioner Customs & Central Excise [2015 (5) TMI 569 - ALLAHABAD HIGH COURT], the aforesaid question of law is answered in favour of Revenue and against Assessee.
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2015 (2) TMI 1097
Disallowance of expenses for earning Dividend Income - quantum of computation of disallowance by invoking Rule 8D(2)(iii) of the IT Rules - Held that:- The Hon’ble Delhi High Court in the case of CIT Vs. Holcim India P. Ltd. reported [2014 (9) TMI 434 - DELHI HIGH COURT ] have held that if there is no exempt income earned during the year, they cannot be disallowed by invoking the provision of Section 14A of the Act.
We direct the AO to exclude from the “average investment” those investments on which no dividend/income was received by the assessee in the current assessment year. For the above said purpose, the issue is restored to the AO. The AO shall afford reasonable opportunity of being heard to the assessee before re-computing deduction under Rule 8D(2)(iii) of the IT Rules. It is ordered accordingly. - Decided in favour of assessee for statistical purposes.
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2015 (2) TMI 1096
Levy of penalty u/s 11AC - Valuation - consignment sale - The respondent deposited the differential duty along with interest on 05/07/2006. Thereafter they were issued a show-cause notice on 31/10/2006 for imposition of penalty. - Held that:- Admittedly, in the present case when the respondents were informed about the undervaluation of the goods, they deposited the differential duty along with interest. The goods were otherwise cleared by reflecting the statutory records and as such it can be safely concluded that there was no suppression, misstatement or any clandestine activity, with an intent to evade payment of duty, on the part of the respondent, so as to attract the penal provisions. - No penalty - Decided in favor of assessee.
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2015 (2) TMI 1095
Addition on account of advance from booking - assessee had failed to provide break-up of unitwise cost, if any, against such advance bookings were made - CIT(A) deleted the addition - Held that:- Both the sides are in agreement that there is not much discussion about the factual aspects either in the assessment order or in the impugned order. The appeals filed by the Revenue in assessee’s own case for the AY 2004-05 and 2005-06 were also fixed along with this appeal. It is a common submission that the decision taken for such earlier years be directed to be followed at the AO’s end for the A.Y. under consideration.
We have passed a separate order disposing of the Revenue’s appeals for the immediately two preceding assessment years. As the necessary facts are not available on record, we set aside the impugned order and remit the matter to the file of the AO for deciding it afresh in conformity with our separate order passed for immediately preceding two assessment years. - Decided in favour of revenue for statistical purposes.
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2015 (2) TMI 1094
Revision u/s 263 - assessee had claimed deduction under section 80P(2)(d) on interest received by it on its deposits with Cooperative Banks - CIT held that Section 80P(2)(d) could not be so liberally interpreted so as to construe a Co-operative bank also as a Cooperative Society - Held that:- A reading of the computation part of the assessment, do show that AO had considered the claim of deduction made by the assessee u/s 80P(2)(d) of the Act. Out of the total claim of ₹ 9,77,821/- AO had disallowed ₹ 4,770/- being interest of TDS for the assessment year 2009-10. Therefore, it is not a case where AO failed to apply his mind at all.
Now coming to the question as to whether the interest on deposits earned by a Co-operative Society, where such deposits were with a Co-operative Bank, we are of the opinion that restrictive interpretation given by the learned CIT(A) to section 80P(2)(d) was not warranted by it wordings. This Tribunal in the case of Bagalkot District Central Co-operative Bank [2015 (1) TMI 1005 - ITAT BANGALORE ] had held that a Co-operative bank which is also a Co-operative Society cannot be excluded from the purview of benefits available to a Cooperative Society , unless the provisions of the Act so stipulate. No doubt in the said decision, the Tribunal was considering the application of Section 194A(3)(v) of the Act, wherein it was mandated that a Cooperative Society was not required to deduct tax at source if the interest credit were paid to any Co-operative Society. It had unequivocally held that the said provision applied to all Co-operative Society including a Cooperative Society engaged in the business of the bank or in other words, a Co-operative Bank. Therefore, the view taken by the AO that income by way of interest or dividends earned by the assessee society from the Cooperative bank namely Kanara Dist.Central Co-operative bank which was also a Co-operative Society was eligible for deduction cannot be faulted. We cannot say that the order of the AO was erroneous and prejudicial to the interest of the revenue - Decided in favour of assessee.
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2015 (2) TMI 1093
Validity of Letter of Undertaking - whether the CBEC Manual of supplementary instructions issued under Rule 31 shall prevail ; over the notification issued by the CBEC or not - Held that:- by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed. - appellant is not required to file details as per annexure 19 to special instruction and as such, the letter of undertaking cannot be declared invalid by the lower authorities. Therefore, I set aside the impugned order - Decided in favour of assessee.
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