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Showing 381 to 400 of 871 Records
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2012 (5) TMI 495
Maturity proceeds/redemption amounts under section 205C of the Companies Act - Investment in bonds with an option of premature redemption petitioner applied for redemption of their bonds - respondent No. 1 refused to make the payment and informed the petitioner that they had exercised the call option for early redemption in 2001 - As the petitioner did not submit the bond certificates respondent No. 1 transferred the maturity proceeds/redemption amounts under section 205C of the Companies Act, 1956 to the Ministry of Corporate Affairs Held that:- petitioner is aggrieved because she did not stake her claim for refund within seven years. She did not inform change of address and, therefore, could not be communicated and informed about the premature redemption. The petitioner also did not bother to read the terms and conditions of allotment including the early redemption clause. These are serious lapses on the part of the petitioner
Applicability of act Held that:- Act deal with the deposits or promissory notes. There is no such limitation or prohibition in the Act. The Act itself is a principal enactment and not a delegated legislation
Retrospective effect Held that:- contention of the petitioner that section 205C has been given retrospective effect has no merit. The aforesaid section was introduced by Companies (Amendment) Act, 1999 with effect from 31st October, 1998. The call option was exercised by the respondent in January, 2001 and the bonds became due and payable in July 2001. The contention of the petitioner that they were not aware of this provision also does not merit acceptance. writ petition dismissed
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2012 (5) TMI 494
Demand of duty by classifying the products under Heading 84.38 not under 84.33 goods are to be classified as excisable and have wrongly availed the benefit of SSI exemption notifications - Revenue contended that Chapter Heading 84.33 does not cover Tea Sorting Machine and Tea Extractor Machine manufactured by assessee Held that:- The Assistant Commissioner has rightly held that the classification list effective from 1.4.95 was duly approved by the proper officer and similar classification lists/declarations were filed by the respondent for the periods under question - the show-cause notice itself was silent as to whether the machineries were cleared for some purposes other than tea industry the assessee had been paying the duty under the same Chapter Heading by availing the benefit of Notification and the Department did not raise any objection, so far as the approved Classification List effective from 01.04.95 rightly held that when classification lists are filed and approved allegation of suppression or willful mis-statement in order to invoke extended period for demand is not sustainable - adjudicating authority cannot alter the classification accepted by the Assistant Commissioner who is the proper officer under Central Excise Law to finalize classification against revenue.
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2012 (5) TMI 493
Export - acts of commission and omission were imputed against the appellant - penalty - appeal, the challenge to the order of the Tribunal is on the ground that though the Tribunal has specifically taken note of the statements made by the appellant in para 28 of the impugned order but the statements are not dealt with and no conclusions/findings are arrived at by the CESTAT qua the appellant - violation of natural justice Held that:- appellant herein had issued airway bills; he had acted as an agent of the 5 concerns which were owned by Shri Tejwant Singh; he played his role on specific instructions of Shri Tejwant Singh; and he was dealing with the Customs Officers in respect of export of these very goods. The Tribunal is thus categorical that the appellant was connected with the procurement of the goods by the exporters and there were other statements and sufficient material to implicate the appellant, no merit in these appeals accordingly dismissed
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2012 (5) TMI 492
Extended Period of Limitation - Service Tax demand on the ground that the value of material used in providing photographic service was required to be added in the value of services - Held That:- As the demand is admittedly beyond the normal period of limitation and the Tribunal in the case SHOBHA DIGITAL LAB. Versus COMMISSIONER OF CENTRAL EXCISE, BHOPAL [2011 (8) TMI 721 (Tri)] held in favour of the applicant at similarly situation - set aside the impugned demand alongwith setting aside of penalty imposed upon the applicant - in favour of assessee.
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2012 (5) TMI 491
Waiver of pre-deposit of interest and penalty denial of utilisation Cenvat credit for payment of service tax on the Goods Transport Agency as recipient of the service Held that:- Commissioner (Appeals) has dismissed the appeal for non-compliance to the provisions of Section 35F of the Central Excise Act without going into the merits of the Appeal. in the case of Nahar Industrial Enterprises Ltd. (2008 (10) TMI 38 (Tri)) whereby the payment of service tax from Cevant amount was upheld. order is set aside and the matter is remanded to the Commissioner (Appeals) to pass afresh order without insisting upon any pre-deposit. Appeal is disposed of by way of remand. Stay petition and appeal is allowed
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2012 (5) TMI 490
Coaching or training to the employees of the buyer concerns - Held that:- Respondent was not providing any coaching or training to outsiders except the employees of the buyer concerns who were to use the machines purchased. The training is not appearing to be a primary commercial activity of the appellant nor also commercial activity of such nature as known to the fiscal laws was carried out by Respondent. stay application and appeal of Revenue are dismissed.
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2012 (5) TMI 489
Mandap Keeping-Service - receipt of the amount on account of renting out land and open ground Held that:- There is nothing whisper in the show cause notice as to whether the receipt made by the respondent was in relation to or in respect of any of the functions envisaged by law to be performed using the immovable property. Finding no substance in the show cause notice, there is no need to dilate the matter further. both stay application and appeal of Revenue are dismissed.
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2012 (5) TMI 488
Assessee in default Trade discount provided by newspaper publishers to advertising agencies under Rules and regulations of Indian Newspaper Society - Revenue contended that said discount are deemed commission and that the assessee ought to have deducted TDS u/s 194H and was liable as assessee-in-default u/s 201 demand of taxes and interest - Held that:- Two conditions, which are required to be fulfilled before holding a person liable for deduction at source u/s 194H, are the payment is received by a person as agent of principal and secondly payment is for services rendered (not being professional services). In present case, it is clear that advertising agency has never been appointed as agent of the petitioner. The relationship between the assessee and the advertising agency in accordance with the INS Rules is that of a principal to principal because (a) the assessee has no control over the advertising agency, (b) the advertising agency is responsible for payment even if the advertiser has not paid the advertising agency, (c) the advertising agencies are rendering service to the advertisers/ customers & other terms. Therefore, trade discount provided cannot be termed as Commission.
Deductor who fails to deduct income tax at source shall be deemed to be an assessee in default only when the assessee has also failed to pay such tax directly. Thus, it flows that there is no occasion to treat the deductor as an assessee in default unless the assessee has not paid the tax directly. Even in case of short deduction, tax cannot be realised from the deductor and he is at best liable for interest and penalty only;
Assessing authority has not considered the relevant materials i.e. rules & Regulations of INS, Circular No. 715 dated 8-8-1995 issued by CBDT to determine nature of relationship and applicability of TDS provisions while passing the assessment order, rather placed reliance on the article published in a newspaper, which was an irrelevant material. Hence, said reliance on irrelevant material clearly vitiates the assessment order.
Maintainability of writ petition - Since huge liability running in several crores have been fastened on the petitioner and multiplicity of proceedings will increase the assessees sufferings even though s. 194H is clearly not applicable; therefore we are of the view that the petitioner has rightly invoked the jurisdiction of this Court under Article 226 and the petition cannot be thrown out on the ground of alternative remedy.
Principle of natural Justice - It is the duty of the Department to make a correct assessment and not to make an excessive assessment merely on the ground of shortage of time, since it puts citizens to great harassment as exorbitant demands are raised and it breaches the principles of natural justice - Decided in favor of petitioner.
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2012 (5) TMI 487
Deduction u/s 80HHC - denial of benefit of netting of interest - Held that:- Apex court held in case of ACG Associated Capsules Private Limited v. Commissioner of Income Tax, Central-IV, Mumbai[2012 (2) TMI 101 (SC)] that 90% of not the gross interest/rent but only the net interest/rent, which has been included in the profits of the business of the assessee as computed under the heads PGBP is to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business. Matter remanded back to A.O. to work out the deductions Decided in favor of assessee.
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2012 (5) TMI 486
Addition u/s 68 - Addition of a sum of ₹ 27,61,50,000 and a sum of ₹ 6,42,00,000, being amount received on allotment of preference share capital and share application money received (pending allotment) - violation of the principles of natural justice - During the course of assessment proceedings, the AO noticed that the assessee had repaid loan to the tune of ₹ 16.90 crores by allotting preference shares to private corporate bodies - Tribunal in ITA No.3859/Mum/2009 for assessment year 2006-07 in the case of Chat Computers Ltd. vs. DCIT - The statements of the persons who allowed their bank accounts to be used for depositing cash and issuing account payee cheques for a commission,were recorded - Held that: The mode of payment of application money has been through banking channels and these details are available in the application forms. Thus the genuineness of the transaction has been prima facie established by the Assessee. The Assessee has given the Income Tax Permanent Account Number (PAN) in almost all the share applicants. This would be prima facie proof of the creditworthiness of the Assessee - It is settled proposition of law that the statement recorded during the course of investigation without corroborative evidence has no evidentiary value - Decided in favor of the assessee
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2012 (5) TMI 485
Deduction u/s 80-IB - Held that:- in the A.Y. 2003-04 the order of the Ld. CIT (A) was challenged before the Tribunal by filing appeals being ITAs 6033 and 6143/M/2007 and Tribunal allowed the claim of the assessee following the decision of the Special Bench in the case of M/s. Brahma Associates (2009 (4) TMI 215 (Tri)), copy of the Tribunal order is placed on record - Decided in favor of the assessee
Eligible deduction under Section 80-IB(10) - the assessee has collected the development charges, electricity charges, worked done to the buyers of the flats etc. and the said receipts are having direct nexus with the project of the assessee - Assessee has collected the different charges from the flat buyers as builder for the specific purposes but as comparative expenditure is lesser hence, the balance credit was taken to the profit and loss account - Held that: that to the extent of Rs. 4,173,230.60 referred to the above, the same should be excluded from the eligible profit and balance has to be treated as part of the profit derived from the housing project - Appeal is partly allowed
Deduction u/s.80IB(10) in respect of 'Sai Jyot' project as it relates to that project - Ld. Counsel argued that apart from the common office expenses relating to the 'Sai Jyot' Project of Rs. 23,96,673/- eligible profit of the 'Sai Jyot' has been reduced for working of deduction u/s.80IB(10) - Held that: the assessee should not have any grievance as M/s. Ganga Developers is one of the assessee's sister concern having identical issue for adjudication - Appeal is allowed by way of direction to A.O. to look into the grievance of the assessee in respect of double deduction and if it is so, then also to give consequential relief
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2012 (5) TMI 484
CIT(A) directing AO to exclude telecommunication expenses amounting from the total turnover for the purpose of computation of deduction u/s 10A Held that:- For the purpose of applying the formula under sub-section (4) of section 10B, the freight, telecom charges or insurance attributable to the delivery of articles or things or computer software outside India or the expenses, if any, incurred in foreign exchange in providing the technical services outside India are to be excluded both from the export turnover and from the total turnover, which are the numerator and the denominator respectively in the formula as the provisions of sections 10A and 10B are identical on all material aspects the order of the CIT(A) cannot be perverse - against revenue
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2012 (5) TMI 483
Exemption u/s 11 - Disallowance of salary - salary paid to Smt Shanta Kumar, member of the society section 13(3) - Held that: the payment of salary falls under the bar placed by section 13 of the Act, however, having regard to her qualifications and services rendered to the assessee, the case of the assessee falls under section 13(2)(c) of the Act as the salary paid is not unreasonable. In view of this, the assessee goes out of the bar placed by the provisions of section 13 of the Act, as the salary paid is reasonable - Decided in favor of the assessee
Regarding disallowance of advertisement expense - Held that: the nature of professional services rendered by Shri Varun Bharati, who possesses requisite professional qualifications and evidence filed to prove the factum of rendering of such services, the impugned payment cannot be disallowed as it goes out of the mischief of the provision of section 13 - Decided in favor of the assessee
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2012 (5) TMI 482
Disallowance of expenses under section 14A - held that:- the claim that expenses such as salary etc. which are not directly relatable to earning of dividend income cannot be disallowed, is not legally tenable. The disallowance of expenses has however to be made on a reasonable basis. - suo-moto disallowance computed by the assessee can be reasonably taken as the expenditure relatable to the exempt income - disallowance under section 14A @ 10% if general expenses in the PD division upheld.
Regarding interest u/s 234C - held that:- Once there is shortfall in payment of advance tax installment, the levy of interest is mandatory as we have pointed out earlier. In case, under estimate of income for advance tax payment was due to conditions beyond the control of the assessee, it could always apply to the competent authority, for waiver of interest in terms of the CBDT Circular - Decided against the assessee
Regarding validity of opening of assessment under section 147 - reason to believe - held that:- The only requirement is that there should be some relevant material for formation of belief and the sufficiency of material cannot be questioned. There was material available before AO clearly showed that no expenses in relation to exempt income had been disallowed by the assessee under section 14A which in our view was relevant material for formation of reasonable belief that some income had escaped assessment as it was not possible to earn such huge dividend without incurring any expenses. - Decided against the assessee
Speculation loss - setting off - section 73 - held that:- profit from purchase and sale of shares are not to be excluded from the deeming provisions of Explanation to section 73. It was accordingly held that the assessee was entitled to set off brought forward speculation loss against profit from sale and purchase of shares in the current year. - Decided in favor of assessee.
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2012 (5) TMI 481
Bad debt - Held that:- The amount has been correctly disallowed as bad debt because the conditions prescribed u/s.36[2] that either such amount should have been considered for computing the income or the amount could have been lent in the ordinary course of business, are not fulfilled.
Loan to sister concerns without interest - Held that: The AO has made his case very clear that a specific amount was borrowed for the purpose of Narsonar Bala project and the loan proceeds were deposited in Kotak Mahindra Bank. Admittedly, the money has been given out of such loan to the sister concern. Therefore, there is a direct nexus between the interest bearing loan and the interest free advances granted to the sister concern. The Ld. Counsel for the assessee made a general submission that in Narsonar Bala project funds of more than Rs.10 crores were used but he has not given any source of such funds or any evidence that assessee was having some interest free funds which were used in this project. - Decided against the assessee.
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2012 (5) TMI 480
Deemed dividend u/s 2(22)(e) - Advance against rent or security deposit - During the course of hearing it is submitted that the assessee company received the said amount not as advance rent but a security deposit through journal entry and there was no actual movement of cash from the bank account - According to the assessee, this security deposit does not come under the ambit of sec. 2(22)(e) of the Act, whereas according to the A.O. this security deposit was nothing but deemed dividend inasmuch as two of the beneficial shareholders of lessee-company were also shareholders and substantially interested in the assessee - It is a principle of interpretation of statutes that where once certain words in an Act have received a subsequent statute, the legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given them - Deemed dividend can be assessed only in the hands of a person who is a shareholder of the lender company and not in the hands of a person other than a shareholder.
The deeming provision as it applies to the case of loans or advances by a company to a concern in which its shareholder has substantial interest is based on the presumption that the loan or advances would ultimately be made available to the shareholders of the company giving the loan or advance - the provisions are not applicable to the present facts of the case the nature of transactions has no effect. - Decided in favor of the assessee
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2012 (5) TMI 479
Income from house property - Vacancy allowance - Tenant stopped payment rent and stopped using the premises but did not handover the possession back to assessee owner - held that:- Since the above flats were not vacant, during the period July 2005 to December 2005 and it is not the case of the assessee that these premises were let out on higher rent, the explanation of the assessee cannot be accepted that these flats were let out for the period 1.1.2006 to 31st March 2006 on decreased rent as suitable tenants were not available. Thus, there is no question of application of the provision of section 23(1)(c) of the Act as pleaded by the Ld. A.R. The A.O thus has rightly applied the provision of section 23(1)(a) of the Act for computing the rent for this period. - Decided against the assessee.
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2012 (5) TMI 478
Registration u/s 12AA - Assessee-Society had earlier been granted registration u/s 12AA by the then CIT, Madurai, vide his order in C.No.464/24/07- 08/CIT-I dated 12.10.2007, for the assessment year 2007-08 and onwards, but the application for recognition u/s 80G was rejected by the same CIT vide his order dated 24.12.2008 - It is clear that the ld. CIT has been empowered to either continue registration, once granted u/s 12A(a) or else, he can cancel the same if the requisite conditions are no longer found to be fulfilled - From the Income and Expenditure Account of these years, it is clearly seen that the Society was receiving income from laces and embroidery articles, income from coconut shell, SHGs contribution, own contribution, grants received, donations received, interest received, etc. The financing activities undertaken by the Society is clearly evidenced from these facts - It is true that certain amount of commercial activity is permitted under the provisions of the Act, but this has to be only a by-product of 'charitable activities' with a certitude that surplus so generated out of commercial activity are utilized for the charitable objects of the Trust/Society and not for personal use of settlers/beneficiaries - commercial activity in such cases is permissible as per the requirement of section 11(4)/11(4A) and not as per the provisions of section 11(1)(a) of the Act. The commercial activity should aim at achieving end of the trust which is furtherance of its objects and it should not be the motive of the Trust to work for profit - Under these circumstances, we are also satisfied that the Society has ceased to be a genuine Society to be eligible for registration u/s 12AA - Decided against the assessee
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2012 (5) TMI 477
Demand of Anti-Dumping Duty in respect of imports of CFL contention of revenue that the parts imported by the appellants constitute 90% of the total requirement of manufacture of CFL and in terms of provisions of Rule 2(a) of Interpretative Rules to be treated as complete lamps - Held that:- It is not appropriate inasmuch as the provisions of Rule 2(a) of the Interpretative Rules are in the form of a legal fiction created for the limited purpose of classification of incomplete or unfinished article in relation to any reference in a heading to an article in schedule and cannot be used to modify physical identity of an article mentioned in notification imposing a duty on that article, which has to be interpreted strictly - The Directorate General of Anti Dumping and Allied Duties have clarified that anti-dumping duties were not recommended on parts/ components of CFL - the notification No. 138/2002-Cus., dated 10-12-2002 stated that the anti-dumping was recommended only in respect of two types of CFLs (i) Complete, ready to use compact fluorescent lamps wherein choke is integrated within the lamp (ii) Complete, ready to use compact fluorescent lamps wherein choke is external - Admittedly in the present case, the appellants have not imported CFLs, in a ready to use condition but have only imported parts of the same in favour of assessee.
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2012 (5) TMI 476
Whether Commissioner of Customs (Preventive), has jurisdiction to issue the show-cause notice - Counsel submits that he was not 'proper officer' as defined under Section 2(34) of the Customs Act inasmuch as there is no documentary material to show that the learned Commissioner had been assigned the function of issuing show-cause notice and adjudicating the same in relation to imports Held that:- no evidence has been brought on record by the respondent to show that the Commissioner of Customs (Preventive) was specifically assigned the function of issuing the show-cause notice and adjudicating the same in relation to the subject imports, lack of jurisdiction for the Commissioner of Customs (Preventive) in this case becomes the common ground for allowing all the three appeals, order is set aside, appeals are allowed
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9911796707
