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Case Laws
Showing 461 to 480 of 871 Records
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2012 (5) TMI 415
Interest of unsecured loans - utilization of borrowed funds - business nexus - Held that:- A.O. has wrongly considered the amounts as on 31.03.2004 for making the disallowance on the basis of the statement of affairs without examining the fund flow or the payment of interest - A.O. has not made out a proper case for disallowance under section 36(1)(iii) by examining the funds borrowed on which interest was paid and its utilization in the business on which interest was claimed - A.O. also has not considered the interest received from some of the advances in calculating the proportionate disallowance - Appeal is allowed by way of remand the matter back to the file of the A.O. by setting aside the orders to examine assessee's contentions and to obtain a fund flow statement and see whether the borrowed funds were diverted for non-business purposes
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2012 (5) TMI 414
Transfer pricing - arm's length price - Order of DRP u/s 144C - selection of comparable - According to the assessee, it is a small public limited company and cannot be compared with the companies whose turnover is large - held that:- neither the assessee in its TP report nor the TPO in the TP order have spelt out the functions performed, risk borne and assets used by the assessee as well as associated enterprises. Function and risk assessment has not been performed between the assessee and the comparable companies. Any difference in the function and risk which will affect profitability ought to be identified and adjustment made to arrive at the ALP. Without analysis of the above, we are of the view that the choice of comparable companies itself would become questionable.
Overall profitability cannot be taken as a yardstick but if transactions or set of transactions undertaken by the assessee and the comparable companies are substantially the same, there can be no objection to applying the overall profitability. However proper adjustments have to be made to the margin arrived at by the AO for any differences at transaction level between the transaction of the assessee and that of the comparable companies.
Appeal allowed by way of remand.
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2012 (5) TMI 413
Revision of the value in order to arrive at the Assessable Value – Held that:- it is upto the proper officer of Customs to determine the assessable value and upto the assessee to pay up the duty thereon. This aspect of determination of assessable value and payment of duty thereon is, however, beyond the scope of the show-cause notice and hence beyond the scope of the present proceedings, case remanded to the original authority directing it to pass a speaking order in de novo adjudication of the show-cause notice, appeals are disposed of
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2012 (5) TMI 412
Prayer was to enhance the quantum of penalty imposed – Held that:- Commissioner imposed a penalty of ₹ 10 lakhs under Section 114 (i) of the Act on M/s Trini Impex and a penalty of ₹ 20 lakhs under the same provision on M/s Corum Impex. Considering the value of the goods exported by these parties (Rs 2.09 crores in the case of M/s Trini Impex and ₹ 4.33 crores in respect of M/s Corum Impex), and also considering the totality of the facts and circumstances of their cases, we are of the view that the penalties imposed on these exporters by the learned Commissioner are fair and reasonable, appeals of the Revenue get dismissed
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2012 (5) TMI 411
Refund claims - duty which was claimed to have been paid in excess on a Bill of Entry – Held that:- no material relating to contemporary import prices was disclosed by the original authority. The Orders-in-Assessment/Original merely state that the contemporary import price during the relevant time was verified and it was found that the prices of the goods cleared during the relevant time were at par with the loaded value. The Orders-in-Original do not reveal that the relevant records indicating contemporary import prices were supplied to the assessee, case remanded to the original authority for fresh decision on the refund claims
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2012 (5) TMI 410
Availability of Cenvat Credit - Manufacturing process - Section 2(f) of central excise - fabrication of Steel Tubular Poles - process of cutting MS black pipes according to the required length, swaging of the pipes, the pipes of different diameters are then welded and then painting of the same in the steel tube section. - held that:- the processes of swaging and welding carried out by the applicant result into manufacture of tubular poles and pipes of different sizes within Section 2 (f) of CEA, 1944. - prima facie case for total waiver of pre deposit of duty and penalty.
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2012 (5) TMI 409
Production based duty of excise - section 3A - held that:- law laid down by the Hon ble Supreme Court in Venus Castings case(2000 (4) TMI 37 (SC)), is fairly applicable to the facts of the case for determination of the dispute. - Their Lordship had ruled against a hybrid system of facility both under Rule 96ZP(1) and under Rule 96ZP(3) of the erstwhile Central Excise Rules, 1944, in discharging duty under Section 3A of the Central Excise Act, 1944. - matter remanded back to the lower Adjudicating Authority for determining afresh as to whether the Appellant during the relevant period, i.e.1999-2000, had exercised their option under Rule 96ZP(1) or Rule 96ZP(3) of the erstwhile Central Excise Rules, 1944 and consequently, determine their liability for the said period.
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2012 (5) TMI 408
Review Order - Appeal filed against order of Commissioner dropping proceedings – Held that:- As per Section 35E of the Act, the Committee of Chief Commissioner are required to examine the legality and propriety of any such decision or order passed by the Commissioner, whereas in present case Chief Commissioners have differed on the issue of acceptance or filing appeal against the Commissioner’s order. Therefore, Review Order is not in accordance with the provisions of Section 35E of the Act. The appeal filed by the Revenue is not maintainable and the same is dismissed.
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2012 (5) TMI 407
Revisions application – Cenvat credit - clearance of goods on payment of duty and receiving back of 92.748 Kgs of goods in the factory and re-credit of Cenvat of such payment - Respondents got cenvat credit of duty involved against 92.748 Kgs in terms of Rule 16(1) of the Central Excise Rules, 2002, subsequently they exported 36.3 Kgs of aforesaid goods against claim for rebate under Rule 18 of the Central Excise Rules, 2002 - paid the duty by debiting their cenvat account under Rule 16(2) of the Central Excise Rules, 2002 – Held that:- Rule 16(2), it is provided that the amount paid under this sub-section shall be allowed as CENVAT Credit as if it was a duty paid by the manufacturer, who removes the goods. So provision of 16(2) makes it clear that the amount actually paid is nothing but duty and as such payment by the Respondents should be treated as payment of duty, Respondents are eligible for rebate on payment of duty paid against export product by way of debiting of Cenvat Credit - Revision Application by revenue rejected.
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2012 (5) TMI 406
Revision application - show cause notice was issued to the applicants for recovery of erroneously refund amount under rebate claim – Held that:- sanction of refund claim involves an administrative adjustment of funds disbursed as rebate for statistical purposes. Government observes that applicant cannot be penalized by ordering recovery of already sanctioned rebate claims on the grounds for a mistake committed by ACCE who sanctioned the claim without having jurisdiction. Since the payment of duty and export of goods is not in dispute, the rebate cannot be denied on merit also, show cause notice was time barred and therefore proceeding initiated under said SCN is liable to be dropped, revision application succeeds
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2012 (5) TMI 405
Demand of duty – whether CENVAT credit attributable to the inputs contained in the semi-finished and finished goods destroyed in flood was inadmissible and was required to be reversed – Held that:- Asian Paints (I) Ltd. (2004 - TMI - 53041 - CESTAT, WEST ZONAL BENCH, MUMBAI) , once the inputs are issued to the manufacturing floor from the stores after receipt in the factory, further utilisation of the same cannot be normally questioned. They can be lost due to normal process of a technological loss, reversals are therefore not called for, appeal filed by the Revenue is rejected
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2012 (5) TMI 404
Activity of sponsoring the IPL - sponsorship service - section 65 (99a) of Finance Act, 1994 read with sub-clause (zzzn) of section 65(105) - sponsorship is in relation to sports events - Circular Letter D.O.F. No. 334/1/2010-TRU, dt. 26.2.2010 - held that:- admittedly, sponsorship of sports event, is not covered by the definition of sponsorship appearing in the relevant provisions of the Finance Act. The adjudicating authority for arriving at finding against the appellant has simpliciter followed the Board's circular. - IPL was considered a cricket tournament, as is clearly shown in the official website of IPL and as such, has to be considered as sport event.
The Commissioner, as independent quasi-judicial authority was under legal obligation, independently was required to examine the issue before him instead of following the Board's circulars. It is only in respect of those circulars which are in favour of the assessee that the departmental officer cannot take view against the same and are required to follow the said circulars in favour of the assessee.
Prima facie, the existing provisions of Finance Act provide an exclusion of said cricket match etc. from ambit of service tax and legislative intent is there to amend the same so as to bring the same into service tax net. - Stay granted unconditionally.
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2012 (5) TMI 403
Reconstitution of firm - relinquishment of right and interest in the erstwhile firm - transfer u/s 2(47) - admission of the new partners and assignment of right in the firm to the new partners out of the rights of the assessee for consideration - held that:- the firm is not taxed. It is the individual partners who are taxed. More over, in the instant case, the erstwhile partners have not retired, they also continued to be the partners along with the incoming partners. All that has happened is that the shares of the erstwhile partners are reduced. - No transfer - decided in favor of assessee.
Decision in the matter of Commissioner of Income-tax v. Gurunath Talkies (2009 (7) TMI 738 (HC)) distinguished.
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2012 (5) TMI 402
Cenvat Credit on outward GTA – Held that:- in ABB Ltd (2011 - TMI - 203985 - KARNATAKA HIGH COURT - Service Tax) held that, till the amendment (effective from 1/4/2008) of clause (ii) of Rule 2(l) of the CCR through substitution of the word 'upto' for the word 'from', transportation charges incurred by a manufacturer for clearance of final products from the place of removal stood included in the definition of 'input service' Availment of Cenvat credit on outward transportation of goods and C&F Agent service – Held that:- in Metro Shoes Pvt. Ltd. (2008 - TMI - 4278 - CESTAT, MUMBAI - Service Tax) wherein it had been held that services rendered by various service providers like C&F agents during the course of transportation of the final products from the factory of the manufacturer to their own showrooms located at various places were 'input services' for the manufacturer as these services were used by the manufacturer, directly or indirectly, in or in relation to the clearance of the final product from the place of removal. appeals are allowed
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2012 (5) TMI 401
Waiver of pre-deposit of Service Tax - Cenvat credit - applicant has contended that regarding mobile phone that it is for the official use or director of the company. Board has issued a Circular allowing the CENVAT credit on mobile phones. So far as insurance premium on vehicles is concerned the applicant has admitted that the vehicles are used for transportation of inputs and capital goods except in case of one vehicle. pre-deposit of service tax, interest and penalty is waived
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2012 (5) TMI 400
Whether the assessee is entitled for input service credit on outward transportation service - Held that:- in the case of CCE&ST v. ABB Ltd. (2011 -TMI - 203985 - KARNATAKA HIGH COUR) assessee is entitled to take input service on outward transportation service. appeal filed by the Revenue is dismissed
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2012 (5) TMI 399
Refund claim - Additional Commissioner stated that 'the revenue involved in this appeal is only Rs.2.6 lakhs and there is no point of law involved, therefore, it has been decided, following the guidelines issued under Office Memo No. F.No. 1/26/5-T/2008-LC dated 07.04.2008, not to make reference to the Committee of Dispute for approval as the amount involved in this case is less than Rs.5 lakhs - SDR submitted that the Revenue may be given liberty to withdraw the appeal. appeal is dismissed as withdrawn
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2012 (5) TMI 398
Manpower Recruitment and Supply Agency services - non payment of service tax - extended period of limitation - suppression of facts - contention of the appellants is that, since the issue pertains to interpretation of relevant clauses of Finance Act, 1994, neither could penalty under Section 76, 77 and 78 of Finance Act, 1994 be imposed nor the extended period of limitation, for the purpose of confirming demand be invoked – Held that:- in the case of Lanxess ABS Limited (2010 - TMI - 202555 - CESTAT, AHMEDABAD - Central Excise) issue involves interpretation of relevant clauses of Finance Act, appellant cannot be held responsible for interpreting the same in such that it could be beneficial to them. no penalty under Section 78 of the Finance Act, 1994 is imposable as also extended period of limitation for the purpose of confirming demand is also not invokable. appeal filed by the appellant is allowed
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2012 (5) TMI 397
Power of the AO to make Adjustments u/s 143(1)(a) - held that:- Where it is evident from the return as filed, along with the documents in support thereof, that a claim of the assessee is inadmissible, only then an adjustment under the said proviso can be made. If proof in support of the claim is not, furnished by an assessee, then for the lack of proof, no dis-allowance or an adjustment can be made. The only option which is open to the Income-tax Officer, in such a case, is that he can require the assessee to furnish proof in which case he will presumably have to issue notice under section 143(2). - Decided in favor of assessee.
Adjustment with reference to section 43B - retrospective amendment - it has been held by the Supreme Court that the first proviso to Section 43B has to be treated as retrospective and should be read as a part of the Act with effect from 1.4.1984 itself. The Supreme Court observed that the amendment would not serve its objective unless it is construed as retrospective. Without first proviso, and explanation 2 would not obviate the hardship of Section 43B. - Addition made u/s 143(1)(a) deleted.
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2012 (5) TMI 396
Disallowance u/s 40(a) while computing exemption u/s 11 on account of non deduction of TDS - held that:- Section 40 is applicable only when deductions under Sections 30 to 38 are being made in computing the income chargeable under the head "profits and gains of business or profession" under Section 28. The exception in Section 40 is carved out, only for the purpose of Section 28 and not for computing the exemption of income of a charitable trust under Section 11. - Decided in favor of assessee.
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9911796707
