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Showing 421 to 440 of 1256 Records
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2015 (5) TMI 842
CENVAT Credit - input services - whether Packaging Services, Security Services, Telephone Services & Chartered Account Services would be considered as input services for of Lending of trademark to others - Payment of service tax on royalty received as output services - Held that:- In the certificate/opinion obtained from Y.J. Trivedi & Co. Patents & Trade Marks Attorney & Advocate, Ahmedabad also no provisions of the Trade Marks Act or any Rules made there under are mentioned under which it is obligatory on the part of the appellant to compulsorily use the Trade Mark himself. Lending its trade mark, getting royalty & paying service tax on the part of appellant should be sufficient to establish that his Trade Mark has been used. Under the present factual matrix it can not be held that packaging Services are availed by the appellant directly for protecting their Trade Mark/Brand Name. Therefore, the packaging Services availed by the appellant has to be considered to have been utilized for making of tea bags and can not be considered to be availed directly or indirectly in maintaining/protection of appellant s Trade Mark.
As per Rule 6 (5) of the Cenvat Credit Rules, 2005 full credit of Security Services credit is permissible if, the credit of such services is not exclusively used in relation to exempted goods or providing exempted services. According credit of service tax on security services is correctly availed by the appellant
So far as credit of Chartered Accounts Services & Telephone Services is concerned, As no separate figures are available for such services it will be appropriate that appellant only takes proportionate value wise credit on such services used commonly in providing trading activity and providing Intellectual Property Right Services and pay the remaining amounts with interest.
So far as invokation of extended period is concerned it is observed that improper credit taken which was detected by the department officers only. At no stage of appellant approached the department for any guidance that there was any confusion in admissibility of credit on the impugned services. Therefore, extended period will be applicable - However, penalties are waived off. - Decided partly in favour of assessee.
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2015 (5) TMI 841
Denial of refund claim - Bar of limitation - Determination of relevant date for filing refund claim - Held that:- Regarding the relevant date for deciding the refund claim on limitation, the issue is no more res-integra as the Hon'ble Delhi High Court in the case of Arya Exports and Industries (2005 (4) TMI 90 - HIGH COURT OF DELHI) has decided the issue and held that date of filing claim should be considered as relevant date even if the same is not filed in prescribed form and the documents are not submitted alongwith the refund application. - The initial refund claim having been filed well within time, the same is required to be considered within limitation. Accordingly I set aside the impugned order and remand the matter to Commissioner (Appeals) for decision on merits. - Decided in favour of assessee.
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2015 (5) TMI 840
Refund claim - jurisdiction of sanctioning such refund - Export made from Akola factory - Revenue contends that jurisdiction of sanctioning such refund would arose only at Indore Commissionerate as the documents i.e., export documents were prepared from the registered office of the assessee - Held that:- there is no dispute that the consignments which were exported were cleared from the Akola factory; the jurisdiction for claiming the refund of service tax paid on such services which are in connection with the export of goods cannot be shifted to their Indore Commissionerate as the registered office of the respondent-assessee being at Indore cannot be a reason for shifting the jurisdiction to Indore. It is undisputed that the manufacturing activity has taken place at Akola and falls within the jurisdiction of the Commissionerate at Nagpur. - there is no dispute as to that the respondent is a manufacturer-exporter, a category which is covered under Notification No. 41/2007-ST. - Decided against Revenue.
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2015 (5) TMI 839
Validity of Tribunal's order - Allowing of objection after lapse of 8 months - Where on the expiry of time specified in section 74(7) of the Delhi Value Added Tax Act, 2004 the Commissioner has not exercised either of the options set out in section 74(7)(a) or 74(7)(b), whether the objection pending before the Commissioner shall be deemed to be allowed - Held that:- Since the decision in M/s Behl Constructions (2009 (1) TMI 787 - DELHI HIGH COURT) has ultimately settled the law i.e. the objections cannot automatically deemed to have been allowed if they are not decided within 8 months, the matter is remitted to the first appellate authority/objection hearing authority who shall hear and decide the contentions of the parties after issuing due notice to the parties and granting due liberty in that regard - Decided in favour of Revenue.
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2015 (5) TMI 838
Validity of assessment notice issued - Bar of limitation - Section 34 - Held that:- Preconditions for invoking the extended period are that the Commissioner should record reasons to believe that the tax has not been paid and that the reason for non payment of tax should be concealment, omission or failure to disclose full material particulars on the part of the assessee. In the present case no such ‘reason to believe’ has been recorded - it would be a virtually impossible task for the appellate authority to first find and decipher the unknown and unrecorded ‘reasons to believe’ and thereupon decide whether the requisite conditions for invoking the proviso under section 34(1) of the said Act were actually satisfied or not. The issue or question raised would be answered on guess work or mere probabilities as to what the ‘reason to believe’ was. It is for these reasons that the Division Bench held that the “reasons to believe” must be disclosed clearly in the record prior to the issuance of the default assessment notice/order or in the said notice/order itself. - reasons for extending the time for completing the re-assessment proceedings were not the reasons indicated in the proviso to section 34(1) but other purported reasons of pendency of cases, election duty etc. etc. Those purported reasons did not permit the respondent to invoke the extended period of limitation given in the proviso to section 34(1) of the said Act. - Default assessment notice dated 09.07.2014 is time barred and is quashed. - Decided in favour of assessee.
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2015 (5) TMI 837
Stay application - Mandatory pre deposit - Section 35F - Held that:- During the pendency of proceedings or after the order passed by the adjudicating authority, if the law is amended and a condition of pre-deposit is also amended in Section 35F of the Central Excise Act, the appellant would have to comply with the provisions as the amended provisions would apply to all the appeals which are filed after coming into force of the amended Act. - appeal of the appellant before the CESTAT would not be maintainable in absence of deposit of an amount equivalent to 7.5% of the confirmed amount of duty liability. The other aspect of the matter is that if the argument of the learned counsel for the petitioner is accepted then he is required to pre-deposit 100% of the excise duty levied on him as he has not filed any waiver application under the old provision before the Tribunal exempting him from making any pre-deposit. The Legislature has granted benefit to the assessees by fixing pre-deposit equivalent to 7.5% or 10% of the confirmed amount of duty liability as per the provisions of Section 35F of the Central Excise Act, 1944. Therefore, we do not find any illegality in the impugned order passed by the Tribunal. - Decided against Assessee.
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2015 (5) TMI 836
Duty drawback - Circular No.1/2011-Customs dated 4.11.2011 and Circular No.30/2013-Customs dated 5.8.2013 - Under weighing of goods - Held that:- Circulars require exporter to execute a bond of an amount equal to the value of goods and furnish appropriate security in order to cover the redemption fine and penalty in case goods are found to be liable to confiscation. We have directed the petitioner to furnish bond of 100% value of the goods. Therefore, our order is in consonance with the Circulars issued by the Customs Department - goods of the petitioner shall be released for export expeditiously preferably within a period of one week from the date of copy of this order is produced before respondent No.2 provided the petitioner furnishes bond equal to the amount of seized goods other than cash and bank guarantee. - Decided conditionally in favour of assessee.
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2015 (5) TMI 835
Non release of goods - Bank guarantee already furnished - Non adjudication of SCN alleging overvaluation - Held that:- Respondent needs to quickly close the proceedings and adjudicate upon the show cause notice dated 05.11.2013. The petitioner's contention that the bank guarantee has served its purpose, has some merit - respondent is directed to adjudicate upon the show cause notice as expeditiously as possible, though not later than four weeks. While doing so, the concerned authority will also take a decision on the plea with regard to release of the bank guarantee in issue. - an interim reply was filed to the show cause notice dated 05.11.2013, as relied upon documents were not furnished by the respondent. Accordingly, the respondent will furnish all documents to the petitioner if, a request is made in that behalf. After documents are supplied, if filing of an additional reply is necessitated, an opportunity for that purpose will be given to the petitioner - Appeal disposed of.
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2015 (5) TMI 834
Import of aluminum waste and scrap to manufacture of circles and tubes - Exemption of customs duty - Notification No.12/2012 – Held that:- So far as the circle is concerned, this objection was raised by the Revenue in the very first assessment order passed by the Assessing Authority dated 9.3.2011 which was not accepted by the Commissioner of Customs (Appeals), Ahmedabad by judgment dated 2.9.2011 and the Commissioner of Customs (Appeals) was pleased to allow the appeal of the petitioners. Therefore, we are of the considered opinion that there was no new facts which came into light on the basis of which the Commissioner of Customs (Appeals), Ahmedabad jumped to the conclusion that new facts are emerged and the petitioner is manufacturing circles. When there were already six orders – as pointed out by learned counsel for the petitioner -, in favour of petitioner passed by the Commissioner of Customs (Appeals), Ahmedabad as well as by the Assessing Officer, in such situation the Commissioner of Customs (Appeals), Ahmedabad was not justified in holding that new fact has come into existence over-looking the finding of fact recorded by the Commissioner of Customs (Appeals), Ahmedabad in its earlier judgment dated 2.9.2011. Therefore, the order passed by the Commissioner of Customs (Appeals), Ahmedabad cannot be maintained. - Decided in favour of assessee.
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2015 (5) TMI 833
Application for proposed scheme of Amalgamation - Dispensation of requirement of convening the meetings of their equity shareholders, secured and unsecured creditors - Held that:- All the equity shareholders / secured creditors or unsecured creditors of transferor company and transferee company have given their consents/no objections in writing to the proposed Scheme of Amalgamation. Their consents/no objections have been placed on record. They have been examined and found in order. - Application approved.
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2015 (5) TMI 832
Application for Scheme of Arrangement under Sections 391(2) and 394 read with Section 100 of the Companies Act, 1956 - Held that:- The Chairpersons of the ordered meetings of the secured and unsecured creditors of the demerged company have filed their reports stating that the meetings were duly convened and re-convened, as directed, and that the Scheme of Arrangement has been approved unanimously by the secured and unsecured creditors of the demerged company, present and voting, in the meetings.
No observations from Regional Director. No objection has been received to the Scheme of Arrangement from any other party. Considering the approval accorded by the shareholders and creditors of the petitioner companies to the proposed Scheme of Arrangement and the affidavit filed by the Regional Director, Northern Region, not raising any objection to the proposed Scheme of Arrangement, there appears to be no impediment to the grant of sanction to the Scheme of Arrangement. - Application approved.
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2015 (5) TMI 831
Imposition of tax on horseracing / betting - powers of Commercial Tax Department - Seizure of books of accounts - Scope of Hyderabad Horse Racing and betting Tax Regulation of 1358 F., (for short the Regulations which are framed in the erstwhile Hyderabad State in 1358 Fasli. - Held that:- The petitioner is a licensed book-maker, as defined under Regulation 12(c) of the Regulations. Regulation 16 clearly provides for payment of tax at 12.5% towards betting. As per Regulation 18(2) of the Regulations, all licensed book-makers shall keep the accounts as prescribed and officers permitted by the Government are also empowered to make inspection and take copies of such accounts. As per Regulation 19(2), all monies which a licensed book-maker is liable to make over to the prescribed officer under Section 17, shall be recovered from the licensed book-maker as public demand.
Under the Scheme of the Regulations and the Rules made thereunder, if any amounts are withheld by the licensed book-maker, or in the event of suppression of turnover, there is no provision for the assessment of tax recoverable from the book- maker. The Regulations provide that all the monies which a licensed book-maker is liable to make over to the prescribed officer under Section 17, shall be recovered from the licensed book-maker as public demand. But, such recovery can be made only for the demand of tax payable by the petitioner. But, in the absence of any provision for assessment and determination of tax payable by the petitioner-book-maker, respondent does not have any authority or jurisdiction to initiate proceedings for recovery of tax from the petitioner. As the levy pertains to betting tax, unless there is specific and definite jurisdiction conferred on the respondent, it is not open to initiate such proceedings and make an assessment by issuing show-cause notice.
The officer authorised by the Government is empowered to inspect and take copies of such accounts or any other material from the place other than Race Course area also, when there are allegations of suppression of turnover or illegal retention of collected tax monies. - Decided against appellant.
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2015 (5) TMI 830
Unexplained investment under Section 69 - Held that:- Tribunal was fully justified in upholding the conclusion of the lower authorities that the explanation of the appellant in so far as the investment in question was totally unsatisfactory and in such factual circumstances, we do not find any question of law arising consideration of this Court and, in our view, even the questions of law framed by the appellant also disclose only factual issues. - Decided against assesse.
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2015 (5) TMI 829
Reopening of assessment - CIT (Appeals) did not offer any opportunity to the assessee to make submissions with respect to the materials obtained from the survey and unilaterally rendered findings - Held that:- Having primarily recorded that the CIT (Appeals)’s order was bad for the reason that he did not follow the procedure prescribed by the law to the condition that reasonable opportunity is to be afforded to the assessee, the ITAT ought not to have followed in the same manner, in appreciating the facts in the first instance as it did. We are conscious that this Court in its ruling in Ericsson (2011 (12) TMI 91 - Delhi High Court) had rendered findings on the question of taxability of the transaction of supply and concluded that the supply contracts did not lead to any inferences that income had arisen or accrued in India. The facts found by this Court also pointed that there was PE. However, that decision has to be seen in the light of the facts available to Court at that time. The question as to what was the material collected during the survey and what are the inferences drawn and whether the question of PE or any other issue would arise, is something this Court ought not to surmise. Thus remit the matter to the CIT (Appeals) who shall give reasonable opportunity to the assessee, in the light of the materials collected during the survey conducted on 22.11.2007 for the assessment years in question i.e. 1999-2000 to 2004-05 - Decided in favour of assesse by way of remand.
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2015 (5) TMI 828
Share transactions - Capital gain or business income - Held that:- Keeping in view of the fact that the assessee has shown the shares which are declared by him either long term or short term capital gains in the investment portfolio and there is no dispute that the same are being valued at cost and on the share holding of the assessee which are stock-in-trade has been valued either at market rate or costs in trade. We find no justification of the Assessing Officer to treat the capital gains arising out of which are short term as well as long term investments portfolio to treat the same as business income.
To begin with motive is something, which is locked in the mind of the person. No direct evidence as regards motive is possible. Motive can be inferred from the conduct of the person concerned but that is bound to remain an inference, which may or may not be correct. For the aforesaid reasons, we are of the opinion that the views expressed both by the CIT and the Tribunal for reasons expressed therein are a possible view. It is, therefore, not open to the revenue to contend that the view taken by the Tribunal is perverse - Decided against revenue.
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2015 (5) TMI 827
Entitlement to deduction under section 80HHBA - sale of scrap - Held that:- As relying on Fenner (India) Ltd. Versus CIT (No. 2) [1998 (4) TMI 67 - MADRAS High Court] the scrap materials come within the manufacturing process of the industrial undertaking in the manufacture of certain products such as V-belts, oil seals. O-rings and certain rubber moulded products, etc. In this view of the matter, we are of the view that profits and gains from the sale of scrap materials are eligible to deduction in an amount equal to twenty per cent under section 80HH, inasmuch as such gains or profits are derived from the industrial undertaking and includible in the gross total income of the assessee and the question relatable to the profit on the sale of scrap is thus answered in favour of the assesse.
Accrual of interest - ITAT deleted the addition - Held that:- there is no dispute to the fact that the assessee-company had passed requisite Board Resolutions not to charge interest from aforesaid 3 parties on the advances given by it to them. Therefore, we hold that the Assessing Officer was not justified to consider that the interest income has accrued to the assessee on the outstanding advances as the assessee has agreed not to charge interest on the outstanding advances before the interest income had accrued to it. - Decided in favour of assesse.
Disallowance of registration charges - ITAT deleted disallowance - Held that:- It was essentially a question of fact whether apportionment of the registration charges and the stamp duty had been made by the assessee and the question of fact was answered concurrently in favour of the assessee both by the CIT(A) and the learned Tribunal. The amount allowed to be treated as revenue expenditure pertained to that part of the expenditure, which related to the construction raised by the assessee for the purpose of real estate business.Therefore, the investments made were all in the nature of revenue expenditure - Decided in favour of assesse.
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2015 (5) TMI 826
Validity of prima facie conclusions of the Settlement Commission - bogus purchases - revenue alleges that the disclosure was not full and true - order of the Settlement Commission not declaring the application of the Assessee firm as invalid under section 245D (2C) - Held that:- The Commission has recorded by a majority that disclosure of additional income at this stage appears to be prima facie full and true and at present there is no material to reject the contentions of the second Respondent. However, this would require detailed examination in the subsequent proceedings and therefore, it is left open. We also find that the majority has made separate orders and for assessment years 2010-11 to 2012-13. In paras 8 and 9 of its order dated 26th March, 2013, the Commission has recorded distinct conclusions on this aspect. It noted that there is a difference in perception on the requirement of true and full disclosure of income. It does not wish to express a final opinion on the adequacy of disclosure.
Thus, the disclosure is not termed to be untrue and incomplete. What is held is whether the disclosure as made is adequate and complete would require detailed examination. A disclosure is termed as true and full but a difference in the perception of the Assessee and the Revenue has been noted. Equally, the Commission did not ignore the reports of the Commissioner as complained. There is a reference to it and the contentions of the Revenue qua them in the order dated 10th May, 2013. Thus, all statutory requirements and conditions are complied with. The admission of the Assessee's application for settlement causes no prejudice to the Revenue nor does it conclude the matter in favour of Respondent No. 2. The dissenting Member, however, concludes that the application is not maintainable for all three assessment years, but at the same time, finds force in the argument of the Commissioner that without the statement of the two bank accounts, it is not possible for the Commission to quantify the additional income as it has a direct bearing on the cash deposits made by the Assessee in the bank accounts. His contrary reasoning in para 7 of the order at pages 86 and 87 has been noted by us above. It is in these circumstances that we do not find the reliance placed by Mr.Chhotaray on the Judgment of the Division Bench to be well placed.
The view that we have taken, it is not necessary to make any reference to the Judgments cited by Mr. Mistri or other Judgments outlining the ambit and scope of the powers of the Settlement Commission. Suffice it to hold that we are not inclined to interfere in the prima facie conclusions of the Settlement Commission as they are not vitiated by perversity, arbitrariness or malafides. W.P. dismissed.
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2015 (5) TMI 825
Loss incurred in business of power generation entitled to deduction u/s 80 IA - whether can be set off against business income from manufacturing unit ignoring the provision of section 80-IA(5)? - Held that:- No reason in our referring to the legislative background and these provisions in further details or considering and interpreting them for the present appeals. Once the statement of facts about which there can be no dispute show that there was no deduction claimed under section 80-IA for the assessment years in question, then, there was no occasion for the Tribunal and equally us to have gone into these questions. In any event, merely because the Tribunal has gone into and considered them, we are not obliged to go into the same given the above admitted factual background. Therefore, by clarifying that as and when this question arises and in relation to the same assessee in future, if the deduction is claimed under section 80- IA for eligible unit, then, it would be open for the Revenue to project all questions and propose them as substantial questions of law. In that event, they can raise all contentions and equally pertaining to the setting off of the said losses and in relation to the eligible section 80- IA unit from the income of the non section 80-IA ineligible unit. NO substantial questions of law - Decided against revenue.
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2015 (5) TMI 824
Liability to pay compensation - motor vehicle accident - whether once the vehicle was insured, the Government would not be liable to pay the compensation? - Held that:- As per the evidence placed before the Tribunal, no proof was produced to effect the service of requisition order. The Tribunal on facts found that the requisition order was not served upon the owner. Under these circumstances, if the owner had not paid the amount and the vehicle was under the requisition and in possession of the Government, if the Tribunal has fastened the liability upon the Government, such approach on the part of the Tribunal could not be said to be erroneous on the ground sought to be canvassed. - Decided against revenue.
Higher amount of compensation awarded - Held that:- In Accounting Year 2005 – 2006, the exemption limit was up to ₹ 1,00,000/- and, therefore, upto ₹ 1,00,000/- there was no question of making any deduction of income tax. So far as the amount of income above ₹ 1,00,000/- i.e. ₹ 1,48,161/-, the tax would be ₹ 48,461/- on the basis of tax slab of 10%. It would be roughly ₹ 4,800/- per year and if multiplier of 14 is considered, the said amount would be ₹ 67,200/- towards deduction of income tax. At the same time, another relevant aspect is that the Tribunal has awarded a meager amount of ₹ 10,000/- towards loss of consortium, ₹ 10,000/- towards loss of love and affection and ₹ 10,000/- towards loss of estate totaling to ₹ 30,000/-. Thus for the conjoint heads of loss of estate, loss of love and affection and loss of consortium, the amount of ₹ 1,00,000/- was required to be awarded by the Tribunal. If the difference is considered, it is less by ₹ 70,000/-. As against the same, as observed earlier, towards income tax deduction, such amount would come to ₹ 67,00/- and hence, both the aforesaid aspects if considered, ultimately, there will not be any substantial difference in the total amount awarded by the Tribunal. Hence, we find that the amount already awarded by the Tribunal would meet with principle of just compensation and, therefore, we find that on such ground, no interference would be called for and the said contention, therefore, would fail. - Decided against revenue.
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2015 (5) TMI 823
Disallowance u/s 14A - Tribunal setting aside and restoring back the issue to the file of the AO for denovo adjudication by relying on the judgment of M/s. Godrej & Boyce Mfg. Co. Ltd [2010 (8) TMI 77 - BOMBAY HIGH COURT] - Held that:- The tribunal directed that the matter is required to be reconsidered by the assessing officer. He shall examine the relevant accounts, the nature of term loans and availability of interest free funds with the assessee. After examining all these details and account, and only if some reasonable disallowance can be adopted that should be worked out and in relation to earning of the dividend. The asssesee was also directed to furnish necessary details and working before the assessing officer.
Addition u/s.14A r.w. Explanation 1 of section 115JB deleted by ITAT FOR the purpose of computing book profit u/s.115JB - Held that:- Once the accounts are prepared in accordance with Indian Companies Act, 1956, they have been approved by the Registrar of Companies, then, the assessing officer must take those accounts into consideration. If the assessee has not debited any actual expenditure relating to the earning of the exempt income, therefore, the provisions of section 14A cannot be imported into the computation of book profit under section 115JB of the Income Tax Act, 1961. Therefore, even clause (f) of Explanation to section 115JB which refers to those amounts which are debited to the Profit and Loss account, alone can be added to the book profit, cannot apply . Having held that the matter is sent back to the assessing officer for reconsideration and while working out the deduction in terms of section 14A read with Rule-8D, the asssessing officer must take note of clause (f) of Explanation to section 115JB of the I.T. Act, then we do not think that questions 1 and 3 could be entertained. The same clarification as is given in the case of M/s. Essar Teleholdings Ltd. [2015 (5) TMI 810 - BOMBAY HIGH COURT]would govern the present case. The facts and circumstances being identical, we do not think that the appeal should be entertained on question nos.1 and 3 above - Decided against revenue.
Interest under section 234B - Held that:- The liability to pay interest would only arise on default and is really in the nature of a quasi punishment. The liability to tax although credited retrospectively could not entail the punishment of payment of interest with retrospective effect.We do not think that the assessee before us can be called upon to pay interest in terms of section 234B, once the explanation was introduced or brought in with retrospective effect but by Finance Act, 2008. Then, there was no liability to pay interest in terms of this provision. That was because the assessee cannot be termed as defaulter in payment of advance tax. The advance tax computation on the basis of the unamended provision therefore could not have been entertained.- Decided against revenue.
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