|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1564 Records
-
2024 (8) TMI 1564
Deduction u/s 80P(2)(a)(i) - Expenses incurred against interest income earned by the appellant co-operative society on FDR(s) with the Schedule Banks - HELD THAT:- The assessee was required to justify the claim of expenses against the interest income out of the borrowed funds, but has expressed its inability to corelate the same. However, since AO has also not given any specific finding for corelation, but allowed the expenditure as per the calculation done, therefore, in our considered view, this issue is once again restored to the file AO who would go through the chart filed before us which is reproduced in the preceding paragraph, and allow the claim of assessee as per law and as per the direction of the Tribunal.
It is not the case of the assessee that only the borrowed funds were invested in short-term deposit as no such correspondence or corelation has been exhibited before us. The assessee shall be at liberty to explain the same before the ld. Assessing Officer, who will allow the claim of deduction of interest on borrowed funds utilized in making the deposits in the Scheduled Banks and others, the earning of interest from which has been assessed under the head “income from other sources” by considering the totality of the facts and circumstances. Hence, this ground of appeal of the assessee is allowed for statistical purposes.
Receipt of interest on house building loan to employees as not attributable to the business of the assessee - While granting Training and earning income from Training, the assessee had also incurred expenses and out of the common expenses of rent and taxes, insurance, depreciation, salary allowance etc. it has bifurcated the expenses and claimed the same as relating to the Training portion. Apparently, this was not furnished before the ld. AO.
The view of the ld. AO that no corresponding expenses were incurred for earning of the above receipts is not correct as the expenses relating to training and income from training are to be allowed in accordance with the direction of the Tribunal.
Hence this ground of appeal is also restored to the file of ld. AO to examine the claim of the assessee. As income from Training Institute is not attributable to the business of the assessee, therefore, it is not eligible for deduction under section 80P of the Income Tax Act.
Interest received on FD with Scheduled Banks and interest on HBL to staff u/s. 80P(2)(a)(i) - The issue does not emanate from the order of the Tribunal, it may also be mentioned that in the case of Bihar Rajya Sahakari Bhoomi Vikas Cooperative Bank Limited [2008 (9) TMI 310 - PATNA HIGH COURT] it has been held that income earned by a Cooperative Bank by way of interest on P.F. amounts of employees and rent from house property could not be treated as income attributable to the banking business and hence would not qualify for deduction.
Since it was not the business of the assessee to lend money to employees and being a Cooperative Bank, its business is to lend money to its members and since the employees do not fall under the category of members, therefore, the claim of allowing deduction under section 80P(2)(a)(i) for interest on HBL to staff is rejected primarily for the reason that the issue does not emanate from the direction of the Tribunal and secondly because the same is otherwise also not allowable. Hence, Ground No. 2 is rejected.
-
2024 (8) TMI 1563
Conversion from limited scrutiny to complete scrutiny - Addition u/s. 69 and 69A - sum invested in the construction of a new residential house was unexplained - HELD THAT:- Reliance being placed in the order of CBS International Projects Pvt. Ltd. [2019 (2) TMI 1748 - ITAT DELHI] and Best Plastics Pvt. Ltd. [2006 (4) TMI 53 - HIGH COURT, DELHI] wherein it was held that the assessment order passed by the AO disregarding the instructions of the CBDT are liable to the set aside and no substantial of law arises. The said judgment relied upon the decision of Indian Oil Corporation [2004 (2) TMI 66 - SUPREME COURT] and also UCO Bank [1999 (5) TMI 3 - SUPREME COURT] Hence, we hold that the Assessing Officer can widen the scope of scrutiny even the case is selected for limited scrutiny under CASS, however, the condition precedent for such widening of the scope is that the Assessing Officer has to seek prior approval of the authorities mentioned.
As per A.R. there was no prior approval and permission of the ld. PCIT. As such there was no reason to convert the limited scrutiny in complete scrutiny. In our opinion, these facts required to be examined at the end of ld. AO as the lower authorities have not produced concerned records for our consideration. Hence, this issue is remitted to the file of ld. AO to decide the same accordingly.
Addition u/s 69 and 69C - The claim of assessee supported by the unregistered sale agreement. This fact has been accepted by Parasmal Lodha. However, he stated that the said sale agreement has been made for limited purpose of availing housing loan from L&T Housing Finance Ltd. against which he has taken Rs. 90 lakhs from L&T Housing Finance Ltd., however, stopped the enquiry at this stage and not carried to the logical conclusion. In our opinion, it is appropriate to remit the issue to the file of ld. AO to carry out necessary enquiry on this issue and provide an opportunity of cross examining Parasmal Lodha to know what was the exact amount in respect of property. Accordingly, the issue in dispute is remitted to the file of ld. AO for fresh consideration at the end of ld. AO.
Appeal of the assessee is partly allowed for statistical purposes.
-
2024 (8) TMI 1562
Rejection of VCES declaration - independent identity of proprietorship concern from its proprietor - applicability of Best Judgment method enumerated in Section 72 of the Finance Act,1994 - non-determination of Service Tax dues correctly with an intent to evade payment of Service Tax - levy of penalties.
Whether a proprietorship concern has an identity independent of its proprietor? - HELD THAT:- There are no merits in any submissions which run contrary to the preposition that proprietorship concern has no independent identity. It has the identity of the proprietor. Commissioner has in the impugned order referred to series of decisions holding so. Hon’ble Allahabad High Court has in case of Manoj Singh [2019 (5) TMI 796 - ALLAHABAD HIGH COURT] observed that 'proprietary concern is not a company. Company in terms of the Explanation appended to Section 141 of the Negotiable Instruments Act, means any body corporate and includes a firm or other association of individuals. Director has been defined to mean in relation to a firm, a partner in the firm. Thus, whereas in relation to a company, incorporated and registered under the Companies Act, 1956 or any other statute, a person as a Director must come within the purview of the said description, so far as a firm is concerned, the same would carry the same meaning as contained in the Partnership Act.' - The preposition to the effect whereby appellant has sought to argue on the basis of two his firms being registered separately with the service tax authority would not support the case of the appellant as both the firm in their registration certificate have common PAN identifier, identifying them with the sole proprietor. It is evident from the ST-2 filed by the appellant that he had been providing same services from the same premises under the guise of two separately registered entities.
Whether the Best Judgment method enumerated in Section 72 of the Finance Act, 1994 may be applied to present proceedings? - HELD THAT:- Undoubtedly appellant has not filed the ST-3 returns regularly by the prescribed date and have not assessed the tax liability on the receipts made. The fact of the appellant having not filed or irregularly filing the return beyond the due date is noted in the impugned order and also penalties have been imposed for the same in manner as prescribed by the Finance Act, 1994. In such a situation resort made to the provisions of Section 72 prescribing for best judgement assessment cannot be faulted with - there are no merits in the submissions made by the appellant challenging findings arrived in the impugned order on the basis of best judgement assessment made as per section 72 of the Finance Act, 1994.
Whether Shri Uday Veer Singh had not determined his Service Tax dues correctly with an intent to evade payment of Service Tax? - HELD THAT:- From the perusal of the above reconciliation filed by the appellant duly certified by the Chartered Accountant in the court and it is found that amount of the service tax short paid by the appellant during the entire period of dispute has been show as same. The reconciliation made by the Chartered Accountant on the basis of the books of account in fact certifies the calculations made by the adjudicating authority in para 3.31 of the impugned order. As the figures in the impugned order have been reconciled with the books of account there are no reason to doubt the correctness of figures arrived in the para 3.31 of impugned order and hold that appellant had in fact evaded the payment of this amount as service tax.
Whether the demand should remain limited to the period covered in the VCES declaration filed by the noticee? - HELD THAT:- It is evident that mere filing of declaration under VCES scheme is not sufficient the same could have been rejected if found substantially false and proceedings initiated against the declarant in respect of the tax not paid or short paid. In present case when in the view of revenue appellant had short paid the service tax, then proceedings as per the above referred section have been contemplated. There are nothing wrong in the proceedings initiated against the appellant. Hon’ble Madhya Pradesh High Court has in the case of Yashwant Agrawal & Co. [2017 (2) TMI 1074 - MADHYA PRADESH HIGH COURT] observed that 'In the present case, petitioner submitted a declaration form in which he had wrongly declared that no inquiry or investigation or audit is pending against him which is a basic disqualification to avail the benefit of the Scheme, therefore, by virtue of Section 106 the declaration submitted by the petitioner was liable to be rejected. Section 101 is applicable to a situation where the assessee is entitled for availing the benefit of the Scheme, however, the issue in respect of tax dues not paid or short-paid is involved and in such a situation the limitation period of one year is provided. If the issue of entitlement to avail the Scheme is to be decided then provisions of Section 106 would apply and in the present case respondents/authority has rightly exercised the powers under Section 106 by passing the impugned order dated 16-10- 2014.'
Appellant have contended that the demand made on the basis of the book of accounts cannot be justified without co- relating the same with specific transaction. The book of accounts are the statutory documents made by the appellant. Balance Sheet and Profit & Loss accounts are made on the basis of entries in the book of accounts which are also required to be statutorily audited. The entries in the book of accounts could not have been brushed aside on the basis of the above submission specifically when the reconciliation made by the qualified Chartered Accountant certifies the same. The demand made on the basis of the entries in such book of accounts after allowing for all the possible adjustment cannot be set aside in absence of anything contrary on record.
Levy of penalties - HELD THAT:- The appellant have suppressed the information with intent to evade payment of Service Tax, penalty imposed on the appellant under Section 78 is upheld in view of the decisions of Hon’ble Apex Court in case of Rajasthan State Spinning and Weaving Mills Ltd. [2009 (5) TMI 15 - SUPREME COURT] - penalties for various contraventions imposed under section 77 (1), 77 (1) (b) & 77 (1) (c) of Finance Act, 1994 along with penalty imposed under Rule 7 (C) of the Service Tax Rules, 1994 upheld.
Conclusion - i) The appellant is the sole person liable for the service tax dues of both proprietary concerns. ii) Best judgment assessment under Section 72 was rightly applied to determine suppressed service tax dues. iii) The appellant suppressed taxable value and evaded payment of service tax with intent, justifying demand, interest, and penalties. iv) The VCES declaration filed was substantially false and immunity under Section 108 was withdrawn. v) Amounts collected as service tax but not deposited are recoverable under Section 73A. vi) Penalties under Sections 78, 77 and Rule 7(C) of Service Tax Rules, 1994 are validly imposed.
Appeal is dismissed.
-
2024 (8) TMI 1561
Scope and Interpretation of Contract - Seeking reimbursement of the GST paid by them for the procurement of raw materials, intermediary components etc. and the bought-out items dispatched directly from the sub-vendors to the work site - barred under clause 31 of the General Conditions of Contract or not - Doctrine of Merger - HELD THAT:- Leave granted.
Let the matters be shown in the final hearing list in the month of March, 2025.
-
2024 (8) TMI 1560
Revision u/s 263 - non-receipt of the valuation report from the District Valuation Officer (DVO) under section 142A - HELD THAT:- Even at the time of issuing the notice u/s 263 of the Act, there is no DVO report available and therefore, we are of the opinion that the PCIT cannot invoke the provisions of section 263 of the Act to get a fresh DVO report and thereafter make the assessment. The findings of the ld. PCIT, is not within the powers vested with him since there is no error in the assessment order and the ld. PCIT also cannot extend the time for getting the report u/s 142A of the Act when the DVO had failed to invoke sub-clause (5) of section 142A of the Act.
When there is ample power vested with the DVO, the DVO ought to have sent a report based on his estimation, which they failed to do so. Therefore, the present order by the PCIT directing the ld. AO to get fresh report from the DVO u/s 142A of the Act and thereafter adopt the value in the assessment order is nothing but a perverse finding and also without jurisdiction.
By passing this order the PCIT had indirectly extended the period of limitation which the AO does not have and therefore we are of the view that the provision 263 could not be pressed into service. Direction to the AO to get a fresh DVO report once again and pass a fresh assessment order is without jurisdiction.
PCIT in order to save the limitation prescribed u/s 153 of the Act had invoked the provision 263 of the Act, therefore the order of the PCIT is not sustainable. Appeal of the assessee is allowed.
-
2024 (8) TMI 1559
Suo-motu cognizance has been taken by this Court in respect of the orders passed by the learned Single Judge, where certain comments have been made lowering the majesty and dignity of Apex Court - HELD THAT:- This Court is conscious of its limited powers under the appeal, but considering the decision of Apex Court in Midnapore Peoples’ Coop. Bank Ltd. and others Vs Chunilal Nanda and others, [2006 (5) TMI 537 - SUPREME COURT], wherein it has been held in categorical terms that where the learned Single Judge passes an order, which is though not appealable before the Division Bench, but while doing so exceeds the power and jurisdiction which the learned Single Judge exercises, an appeal can very well be entertained.
In view of the above and to prevent any further damage to the reputation and majesty of the rule of law and the Supreme Court and also of this Court, the impugned order dated 17.07.2024 passed by the learned Single Judge in COCP-87-2022 shall remain stayed till the next date of hearing.
List on 22.08.2024.
-
2024 (8) TMI 1558
Condonation of delay of 15 days in filing the appeal - certified copy was never applied or obtained by the appellant - manner of calculating the period of limitation.
Manner of calculating the period of limitation - HELD THAT:- There exist a clear distinction as to when does the limitation starts and how the limitation period needs to be computed. Section 12 of the Limitation Act deals with computation of the limitation. Though much is said by the learned senior counsel for Respondent No.1 viz. per Section 29 of the Limitation Act, Sections 4 to 24 of the Limitation Act shall not be applicable in an appeal filed under other statutes, but the correct position of law is not so - A bare perusal of Section 29(2) would rather reveal the applicability of Section 4 to 24 unless expressly excluded by the Special Law. Admittedly the IBC does not exclude the applicability of Section 4 to 24 of Limitation Act.
On a combined reading of Section 238A of the Code with Sections 12 and 29(2) of the Limitation Act, it cannot be said that the Code has excluded applicability of Sections 4 to 24 of Limitation Act. Rather Section 238A of the Code says the provisions of Limitation Act shall apply as far as may applicable to the proceedings under the Code.
As per Sanket Kumar Agarwal [2023 (5) TMI 901 - SUPREME COURT], the day of pronouncement shall have to be excluded for calculating the period for Limitation. Admittedly if it is excluded in the present case the appeal shall be within the condonable period of 15 days.
Certified copy was never applied or obtained by the appellant - HELD THAT:- The facts reveal the appellant had applied for a certified copy of order on 08.04.2024 and was given application No.D-0005. The certified copy of the impugned order was given on 15.04.2024 and is annexed with this appeal and records the application number. This fact is sufficient to vibe a confusion that such copy though marked as free copy may be a certified copy as its mentions the date and application number D-0005 given by Registry on application of certified copy - on going through the reasons for delay given in para 4 to 13 of the application for condonation of delay, which with time taken in obtaining certified copy can very well be treated as sufficient cause for condoning of delay in filing the appeal beyond 30 days, but within the condonable period of 15 days. Thus, the delay is condoned.
Conclusion - The 15-day delay in filing the appeal is condoned, holding that the appeal was filed within the permissible condonable period after excluding the date of pronouncement and the time taken to obtain the certified copy.
Application allowed - Now to come up now for hearing of appeal on 21.11.2024.
-
2024 (8) TMI 1557
Correctness of observations made by a Single Judge of the High Court in the course of contempt proceedings - proceedings taken suo motu in the context of an order passed by Justice Rajbir Sehrawat, Judge of the High Court of Punjab and Haryana, while entertaining a contempt proceeding - HELD THAT:- This Court is constrained to take suo motu notice of the contents of the order dated 17 July 2024 passed by the Single Judge in view of the fact that such observations tend to bring the entire judicial machinery into disrepute. This affects not only the dignity of this Court, but of the High Courts as well - such observations were wholly unnecessary for the conduct of the judicial proceedings before the High Court and ought to have been eschewed. Though there is a merit in the submission which has been urged by the Attorney General and the Solicitor General, it is inclined to exercise a degree of restraint in pursuing a further course of action based on the observations of the Single Judge.
The order dated 17 July 2024 is compounded by a video which has been circulating indicating random, gratuitous and unwarranted remarks made by Justice Rajbir Sehrawat during the course of the hearing. In an age where there is widespread reporting of every proceeding which takes place in the Court, particularly in the context of live streaming which is intended to provide access to justice to citizens, it is all the more necessary that Judges should exercise due restraint and responsibility in the observations which are made in the course of proceedings. Observations of the nature which have proliferated in the video of the proceedings of the Single Judge can cause incalculable harm to the sanctity of the judicial process.
Conclusion - Compliance with the orders passed by the Supreme Court is not a matter of choice, but a matter of bounden constitutional obligation, bearing in mind the structure of the Indian legal system and the authority of the Supreme Court which heads the process of judicial adjudication of the country.
The present proceedings are accordingly disposed of.
-
2024 (8) TMI 1556
Time limitation - Belated issuance of show cause notices - HELD THAT:- Admittedly, the issue raised in the present Writ Petition is identical in Asia Exports and Others Vs. Union of India and Others, [2024 (8) TMI 1555 - PUNJAB AND HARYANA HIGH COURT] , wherein it is held that 'In the circumstances, a challenge made to the show cause notices before the High Court was successful inasmuch as the action of the respondent authority was held to be belated and hit by delay and latches. Consequently, the show cause notices were quashed.'
In the present case, the issue raised being identical to above case, would therefore, not required to be decided separately as the said issue is no more res integra - petition allowed.
-
2024 (8) TMI 1555
Time limitation for issuance of SCN - the period involved is Assessment Year 2013 to 2016, while the show cause notice has been issued on 1st April, 2021 - HELD THAT:- The action of the respondent authority was belated and accordingly, the show cause notice deserves to be set-aside.
Petition allowed.
-
2024 (8) TMI 1554
Unexplained Cash deposit from agricultural source - AO had not accepted the claim of agricultural income as the assessee did not file evidence in support of sale of agricultural produce and expenditure incurred for the agricultural activity - HELD THAT:- As no specific section has any where been mentioned for making impugned addition, the Bench is of the view that non-mentioning the precise provision of law makes the entire impugned addition bad in law. In this view of the matter, the appeal of the assessee is allowed.
-
2024 (8) TMI 1553
Addition made u/s 68 - denying exemption claimed u/s 10(38) for the sale proceeds of listed equity shares alleged as penny stock - HELD THAT:- Assessee cannot be put to the rigors of section 68 in respect of sale proceeds received for sale of shares on the stock exchange (BSE) and gain arising thereon.
Assessee is a regular investor with investment in shares of other companies duly reflected in his DMAT account.
We note that AO has not brought on record any material to show that assessee was part of any group which was involved in the manipulation of share prices. Suspicion by the ld. Assessing Officer on the purchase and sale of shares is baseless.
AO has referred to the theory of preponderance of probability which according to us is applied to weigh the evidence of either side and draw a conclusion in favour of a party which has more favourable factor in his side. The conclusions have to be drawn on the basis of certain admitted facts and materials and not on the basis of presumption of fact that might go against the assessee. Once nothing has been proved against the assessee with the aid of any direct material, nothing can be implicated against the assessee on the presumption or suspicion, howsoever, strong it might appear to be true.
We delete the addition made u/s 68 towards proceeds of sale of listed shares of PS IT which gave rise to Long Term Capital Gain on the said sale, claimed exempt by the assessee u/s 10(38). Accordingly, grounds taken by the assessee in this respect are allowed.
-
2024 (8) TMI 1552
Failure on the part of the respondents to refund the pre-deposit amount along with applicable interest pursuant to the termination of proceedings in terms of a final order framed by the Customs Excise and Service Tax Appellate Tribunal - interest on delayed refund - HELD THAT:- From the affidavit which has been filed by the respondents in the present proceedings, it is contended that a deficiency memo was issued to the writ petitioner on 12 July 2024 requiring further documentation. It is their case, that subject to the aforesaid compliance being affected, they would be “willing to proceed with the refund” - It is unable to appreciate the stand as struck bearing in mind the undisputed position that the claim for refund had been made as far back as in September 2019. The order of the CESTAT itself had been passed on 30 September 2019 and which had then been followed by a formal application for refund being made on 14 October 2019.
The deficiency memo has come to be issued for the first time in July 2024. Although, the aforesaid deficiency memo was also duly replied to on 29 July 2024, no further action appears to have been taken by the respondents, at least till we had taken up the writ petition for consideration today.
This Court in Flipkart India Private Limited vs. Value Added [2023 (8) TMI 987 - DELHI HIGH COURT] where the legal position with respect to pre-deposit not constituting a deposit of tax or duty’ was highlighted and it was held that 'the claim raised by the Department in the show-cause notice is thoroughly dishonest and baseless. In respect of a deposit made under section 35F, provisions of section 11B can never be applicable. A deposit under section 35F is not a payment of duty but only a pre-deposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential relief.'
Conclusion - A deposit under section 35F is not a payment of duty but only a pre-deposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed.
The respondents is directed to release amount of INR 34,72,909/- within a period of four weeks from today - petition allowed.
-
2024 (8) TMI 1551
Levy of surcharge - what should be the rate of surcharge applicable? - where the income is less than Rs. 5,00,00,000/- then rate of surcharge would be 15% OR 37% as per Finance Act, 2021 - HELD THAT:- Maximum Marginal rate shall be Maximum rate of tax which is tax and surcharge of the highest rate in case of an individual.
If the surcharge was to be charged according to the slab rates of the assessee, it was not required to be mentioned in section 2 (29C) of the Act. There would not have been any need to mention surcharge u/s 2 (29C) of the act because it would have been then computed under the finance Act as per slab applicable to income of the assessee. Thus, the purpose of mentioning surcharge in that section is to tax MMR as the Highest rate of tax for tax and surcharges. We should not read the section in the manner that word ‘surcharge’ mentioned in section 2 (29C) becomes redundant.
It is immaterial whether the CPC in one of the years accepted the ROI filed by the assessee, but when the issues are raised before us, we cannot hold that unsustainable view of revenue is in accordance with the law.
Thus, Levy of maximum marginal rate on Trust is a specific anti avoidance rule and therefore should be given a strict interpretation. Law prescribes that tax shall be charged on the whole of the income in respect of which such person is so liable at the maximum marginal rate. There is no intention to charge the assessee a bit lower than the rates of tax and surcharge applicable to an individual of maximum rate.Appeal of the assessee is dismissed.
-
2024 (8) TMI 1550
Challenge to SCN - forbearing the respondent from adjudicating the SCN being barred by limitation in terms of Section 28(9) of the Customs Act, 1962 - preliminary objection of the petitioner is that the impugned order dated 28.09.2022 is non-est in law and time barred in view of Section 28(9) of the Act - HELD THAT:- Considering the fact that the petitioner has filed his reply and the matter is pending at the stage of cross examination, the respondent is directed to complete the entire process and conclude the proceedings in terms of Section 28(9) of the Act.
Petition disposed off.
-
2024 (8) TMI 1549
Valuation of service tax - value of the books / study materials supplied by the appellant during the relevant periods be considered as a part of the gross value of commercial coaching or training services rendered during the said period or not - HELD THAT:- It is found that before the learned Commissioner though the evidences like Trial Balance Sheet duly certified by a Chartered Accountant for the period 2003-04 to 2006-07, sample copies of sales invoices of magazines, books, guides etc. evidencing sale of publication materials and fee receipts indicating consideration for services rendered on account of commercial training or coaching service to establish both activities i.e. of sale of books and coaching service was separate, but the same were not considered by the adjudicating authority. Solely on the basis of the mistake of showing a consolidated amount of income for services and sale of books in the balance sheet, for the initial years 2003-04 to 2006-07, the Commissioner has confirmed the demand.
Considering the evidences produced before the Commissioner as well as in the present case, it is found that the sale of books was a separate activity and carried out by the appellant from same or different locations/outlets and it has no connection with the rendering of ‘Commercial Training or Coaching Centre Service’. The fees collected from the students do not indicate any such collection of value of materials separately in the respective receipts without including its value in the service. In absence of any such evidence, clubbing the value of the sale of books carried out from different premises or from the outlets from where the services of ‘Commercial Training or Coaching central service’ rendered with the value of commercial coaching service in demanding service tax cannot be sustained.
Conclusion - The sale of books was a separate activity and carried out by the appellant from same or different locations/outlets and it has no connection with the rendering of ‘Commercial Training or Coaching Centre Service’. The sale of goods, such as books and study materials, should be treated as a separate activity from the provision of services unless there is clear evidence indicating otherwise.
The impugned order is set aside - Appeal allowed.
-
2024 (8) TMI 1548
Maintainability of appeal - HELD THAT:- In ABC Papers Limited [2022 (8) TMI 863 - SUPREME COURT], the Apex Court has held that 'appeals against every decision of ITAT shall lie only before the High Court within whose jurisdiction the assessing officer who passed the assessment order is situated. Even if the case or cases of an assessee are transferred in exercise of power under Section 127 of the Act, the High Court within whose jurisdiction the assessing officer has passed the order, shall continue to exercise the jurisdiction of appeal. This principle is applicable even if the transfer is under Section 127 for the same assessment year(s).'
The present STA as not maintainable before this Court. The appeal is dismissed with liberty to the appellant to prefer appeal before the jurisdictional High Court.
-
2024 (8) TMI 1547
Liability of job-worker to pay excise duty - inputs or not - lead alloy ingots manufactured from waste and scrap received from Exide Industries Limited (EIL) under Rule 4(5)(a) of the CENVAT Credit Rules, 2004 - reliance placed on Standard Input Output Norms (SION) to allege suppression of production and short payment of excise duty - levy of penalty - HELD THAT:- It is a settled legal principle that no demand can be thrusted upon an assessee, on mere wild allegations without a substantial basis and foundation thereof. There is no shred of evidence to support the proposition of short supply of finished goods as alleged by the Revenue in this case. The said allegation of the Department is thus outright baseless, presumptuous and therefore unsustainable.In fact, as the commercial transactions were based on the purchase orders issued by EIL, the veracity of which is not questioned by the Department, the allegations against the appellants are completely hollow void in the first place and therefore without any basis. As there is no challenge to the purchase orders issued by the EIL, no allegation for short supply of goods can be sustained. In case there is any clandestine manufacture and removal of goods, the onus lies on the Department to prove the same with appropriate, tangible, valid and sustainable evidence.
From the chain of events, it is clear that the lead scrap and other raw materials supplied by EIL are in the nature of inputs (semi-processed), as has also been held by the Larger Bench of the Tribunal in Wyeth Laboratories Ltd.4 (supra), and are supplied back to EIL (the principal manufacturer), against the challans issued and enclosed along with the monthly returns. The above Rule clearly states that the goods that are required to be sent by the principal manufacturer without payment of Central Excise Duty are required to be returned for further processing to the principal manufacturer for utilization in the final product (viz. lead storage battery, in the present case).
Also, with respect to the Standard Input Output Norms (SION), the appellant’s assertion is noted that quality of lead scrap is an important variable and is necessary for consideration to arrive at the recovery percentage (based on thorough testing of waste and scrap) as undertaken by EIL in their R&D section. The percentage of recovery would depend on the material contained in the waste and scrap and thus there cannot be a fixed one-to-one formula in the instant case.
Thus, in view of the fact that the goods were supplied in terms of challans as referred to aforesaid, the purchase orders as supplied by EIL indicating recovery percentages in addition to other details, there is no case made out for demand of duty of excise, if any, from the job worker.
In view of the position as settled by the Larger Bench of the Tribunal in Wyeth Laboratories Ltd. [2000 (7) TMI 109 - CEGAT, NEW DELHI], the issue involved is thus no more res integra. Therefore, the claim of the Department disentitling the waste and scrap for the benefit of Rule 4(5)(a) of the CENVAT Credit Rules, 2004 does not stand to any merit.
Thus, there is no justification for the demand of duty or imposition of penalties on the appellants in the matter.
Conclusion - The appellant is not liable for excise duty on the processed goods and that the penalties imposed on the appellant and its director were unwarranted.
Appeal allowed.
-
2024 (8) TMI 1546
TP Adjustment - determining the Arm’s Length Price of international transaction to be 50% of the amount paid by the Assessee to its AE for receipt of Intra Group Services from its AE's - TPO observed that the assessee has submitted “Performance score card” which showed evaluation of services, but failed to establish its authenticity and neither submitted any evidence regarding the details, how such services were received - HELD THAT:- Considering the profile of the Assessee and the business structure of the Assessee, we find that the T.P.O. is not correct in arriving the ALP at NIL on the ground that the Assessee has not produced the evidence for the receipt/rendering of service. TPO should have looked into all the evidences submitted by the assessee and give finding after adjudicating the same. It is an accepted fact that the transaction between the Assessee and AE will be always subjective in nature, it is fact that the assessee American Express being a running and established foreign entity and they have established the business in India. Thus, there is a considerable advantage engaged by Indian entity, hence there is a greater chance of Intra Group Services transferred to Indian entity which has to be verified by the TPO by applying applicable transfer pricing mechanism as per Income Tax Rules and determine the TP Adjustment. We once again reiterate that the TP Adjustment cannot be at ‘NIL’ as determined by the TPO. Accordingly with the above observations, we remand the matter to the file of TPO for determining the ALP afresh.
Rejection of Company selected by the Assessee CG Vak Software and Exports Ltd - No error or infirmity in the findings and conclusion of the Ld. CIT (A) in excluding M/s CG VAK Software and Exports Ltd. from the final list of comparables as failing turnover filter and are engaged in providing software development services thus the same are not comparables.
Cepha Imaging Pvt. Ltd. meets the exports earning filter as adopted by the TPO. In our considered opinion, the Ld. CIT (A) has rightly directed the A.O/TPO to verify the export earning of the Company and to include the said in the final list of the Company if Company passes the export earning filter.
R System International Ltd. - No error the action of the Ld. CIT (A) in directing the TPO to consider R System International Ltd. in final list of comparables if quarterly audited data is provided by the assessee for computing the operating profit margin for the instant Assessment Year.
Coral Hub Ltd. and Cosmic Global Ltd. be excluded from the list of comparables as a captive unit cannot be compared with a giant case.
EClerx Services and ICRA Online Companies be excluded as perused the annual report including the business over views and management discussion analysis in annual reports. The above Companies have claim to be leading knowledge process outsourcing Companies providing data analytic and data process out sources to some of the largest brand of the world and the said Companies are engaged in providing KPO Services i.e. high end ITEs. In our considered opinion the said findings and the conclusion of the Ld. CIT (A) requires no interference.
-
2024 (8) TMI 1545
Money Laundering - Seeking a direction to allow operation of the Bank Accounts - HELD THAT:- The application is not found to be tenable. Once it was filed before the High Court followed by an order. The same request between the same parties would not maintainable and, accordingly, applications is dismissed. However, it would not restrain the appellant to take the remedy, if the order of the High Court has not been complied.
Appeal disposed off.
........
|
9911796707
