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Showing 161 to 180 of 14810 Records
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2013 (12) TMI 1606
Issues:
The appeal involves the interpretation of Notification No. 19/2001-Cus regarding the exemption of Special Additional Duty (SAD) and whether the appellant is eligible for the benefit of this exemption.
Summary:
The appellant, M/s. Medi Caps Ltd., imported 412 cartons of Empty Hard Gelatin Capsules as a return of defective goods and claimed exemption of duty under Notification No. 94/96. The goods were assessed at 0% Basic Duty + 16% CVD + 4% SAD. The appellant paid the 4% SAD duty under protest and filed a refund claim for the CVD amount paid. The refund claim was rejected on the grounds that the goods were not exempted from both Basic Customs Duty and CVD as required by Notification No. 19/2001-Cus. The lower appellate authority also rejected the appeal. The main contention was the eligibility of the appellant for the benefit of SAD under the said notification.
The appellant did not appear before the tribunal despite notice. The tribunal considered the case for the second time and proceeded with the appeal. The sole ground in the appeal was the appellant's claim for the benefit of SAD under Notification No. 19/2001-Cus.
The Revenue's representative reiterated that to claim the benefit of the notification, the goods must be exempted from both Basic Customs Duty (BCD) and CVD. Since the appellant had already paid the CVD, they were deemed ineligible for the benefit of the notification. The tribunal upheld the Revenue's argument and dismissed the appeal, stating that the appellant did not meet the criteria for exemption under Notification No. 19/2001-Cus.
Upon careful consideration of the submissions and relevant notifications, the tribunal found that the appellant had claimed exemption under Notification No. 94/96, which exempted from BCD but not from CVD. As the appellant had paid the CVD at the time of importation, they were not eligible for the benefit of exemption under Notification No. 19/2001-Cus, which required exemption from both BCD and CVD for the SAD exemption to apply. Therefore, the tribunal concluded that the appeal lacked merit and dismissed it accordingly.
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2013 (12) TMI 1605
Addition to be made under section 40A(3)- payments made on Sundays and Holidays - Held that:- In the present case, there is no denying the fact that persons to whom payments were made in cash are villagers and may not be having bank accounts. It is also a fact that payment has to be made to them immediately to secure the lands in question which may require the payments to be made in cash on Holidays and Sundays, otherwise, they would have sold the lands to some other persons. In these circumstances, if the assessee would have insisted for payment by way of cheque or DD or have deferred it, it might have resulted in a loss of business opportunities as the land owners would not have agreed to sale the lands to the assessee. Therefore, the expression ‘required to be made’ understood in this context and keeping the intention of legislature in mind can be construed to mean that payments required to be made for the purpose of the business of the assessee. In these circumstances, payments made on Sundays and Holidays have to be held to be coming within the ambit of Rule 6DD(j), hence provisions of section 40A(3) will not apply to such payments. Therefore, payments made in cash atleast to the extent made on Sundays and Holidays cannot be disallowed u/s.40A(3) of the Act. We, therefore, direct the AO to verify such payments made on Sundays and Holidays and delete the addition of these amounts.
So far as addition of the rest of the amount sustained by the CIT(A) we do not find any infirmity in the impugned order to interfere with the same. It is not only a fact that assessee has paid the amount of ₹ 2,32,20,500/- to third parties but such payments have also been made through cheques. The assessee has also furnished back account copies, TDS particulars, PAN of the said parties. Therefore, the entire transactions having been made through proper banking channel is transparent. Only because third parties have withdrawn the amount and paid the same in cash to landlords, assessee cannot be brought within the mischief of section 40A(3) of the Act. Accordingly, we confirm the order of ld CIT(A) on this issue.
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2013 (12) TMI 1604
Issues involved:
The issues involved in the judgment are the deduction of Tax at Source (TDS) by the Treasury Department for stamp papers sold by a registered society of Stamp Vendor Association, and whether the stamp vendors are liable to pay income tax on the amount received from the Treasury Department.
Details of the Judgment:
Issue 1: TDS deduction on stamp papers sold by the association
The petitioner, a registered society of Stamp Vendor Association, challenged the action of the Treasury Department in deducting TDS for stamp papers sold to the members of the association. The Treasury Department relied on Section 194H of the Income Tax Act, 1961, which mandates the deduction of income tax on commission or brokerage payments. The challenge was based on the communication directing TDS deduction for stamp papers sold by the association's members.
Issue 2: Nature of payment received by stamp vendors
The main issue was whether the amount received by stamp vendors from the Treasury Department for selling stamp papers constitutes commission or brokerage, making them liable for TDS deduction. The petitioner argued that the payment was in the nature of a discount, not commission, citing a decision of the Gujarat High Court. The court examined whether the stamp vendors acted as agents of the Treasury Department or engaged in a contract of sale.
Judicial Interpretation and Decision:
The Division Bench of the Gujarat High Court determined that the payment received by stamp vendors was a discount, not commission, as it was part of a sale transaction rather than an agency relationship. The court distinguished between commission and discount, emphasizing the transfer of ownership in the sale of stamp papers. The court held that the stamp vendors were not agents of the State Government and were not liable for TDS deduction.
Precedent and Application:
The judgment of the Gujarat High Court was followed by the Kerala High Court, supporting the position that stamp vendors are not liable for TDS deduction on payments received for selling stamp papers. The Uttarakhand High Court upheld the Gujarat High Court's decision, quashing the communication for TDS deduction and allowing stamp vendors to seek refunds from the Income Tax Department.
Conclusion:
The judgment clarified that the payment received by stamp vendors for selling stamp papers was a discount, not commission, and they were not liable for TDS deduction. Stamp vendors were deemed not to be agents of the State Government, and the communication directing TDS deduction was quashed, allowing for potential refunds to the affected vendors.
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2013 (12) TMI 1603
Penalty u/s 271(1)(c) - additional income declared and assessed in the returns filed u/s 153A(1)(a) of the Act over and above the income declared earlier in the returns filed u/s 139 - Held that:- The only point raised by the assessee is that the ground canvassed before the CIT(A) to the effect that the quantum of concealed income for the purposes of section 271(1)(c) of the Act could not be equated to the ‘additional income’, has not been addressed by the CIT(A). This is primarily for the reason that the CIT(A) has allowed relief to the assessee by setting-aside the penalty levied on a point of law canvassed before him, which we have already discussed in earlier paragraphs, wherein the stand of the CIT(A) has been disapproved. Therefore, under these circumstances it would be in fitness of things that the instant plea of the assessee, which was raised before the CIT(A) but not considered by him, be remanded back for consideration and adjudication as per law. The point raised by the learned Departmental Representative against the plea of the assessee on this aspect, in our view, touches upon the merits of the plea, with which we are not presently concerned with. Therefore, we uphold the plea of the assessee for remanding the matter back to the file of the CIT(A) to address the grounds raised by the assessee with regard to the quantification of 15 concealed income liable for penalty of section 271(1)(c) of the Act. - Appeals of the Revenue are allowed for statistical purposes.
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2013 (12) TMI 1602
Issues Involved:
1. Whether the Commissioner of Income Tax(A) erred in upholding the penalty levied u/s 271(1)(d) of the Income Tax Act, 1961.
2. Whether the appellant's suo moto offer of disallowed expenses affects the imposition of penalty.
3. Whether the penalty was justified given the circumstances of the case.
Summary:
Issue 1: Penalty u/s 271(1)(d)
The assessee appealed against the order of the Commissioner of Income Tax(A) upholding the penalty levied by the Assessing Officer (AO) u/s 271(1)(d) of the Income Tax Act, 1961. The AO had observed that an amount of Rs. 11,55,634/- on account of conveyance was not included in the value of fringe benefit, leading to a disallowance of 20% of these expenses. The AO imposed the penalty citing judicial precedents, including Commissioner of Income Tax vs Gurbachan Lal and UOI vs Dharmendra Textile Processors. The Commissioner of Income Tax(A) upheld the penalty, stating that the appellant had furnished inaccurate particulars leading to a false claim.
Issue 2: Suo Moto Offer of Disallowed Expenses
The assessee contended that the disallowance was suo moto offered during the course of hearing and not due to any concealment or inaccurate particulars detected by the AO. The assessee argued that the mistake was a bona fide error in calculating the value for FBT and not a deliberate act of concealment. The Tribunal noted that the assessee had declared a significant amount of Rs. 2.54 crore as the value of fringe benefit and the impugned amount was relatively meager. The Tribunal referenced the ITAT Delhi judgment in Mr. Saket Agarwal vs ITO, which held that voluntary surrender to avoid litigation does not automatically justify penalty imposition.
Issue 3: Justification of Penalty
The Tribunal considered the rival arguments and legal precedents. The Tribunal observed that the assessee's explanation was not disproved and there was no evidence of deliberate concealment. The Tribunal highlighted that the penalty u/s 271(1)(d) can only be imposed if the explanation is found to be false or if the assessee fails to substantiate the explanation. The Tribunal found that the authorities below did not properly adjudicate the explanation provided by the assessee. The Tribunal concluded that the explanation offered by the assessee was acceptable and the penalty was not imposable. The Tribunal canceled the penalty orders, allowing the appeal of the assessee.
Conclusion:
The appeal of the assessee was allowed, and the penalty u/s 271(1)(d) was canceled. The Tribunal emphasized that the voluntary surrender of the impugned amount and the bona fide nature of the mistake did not justify the imposition of the penalty.
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2013 (12) TMI 1601
Adjournment - seeking of time to reply affidavit - Held that: - The time prayed for is granted - List the case on 20.01.2014 - In the meanwhile, petitioner No.1 shall be exempted from the operation of the Plastic Wastes (Management and Handling) Rules, 2011 - decided in favor of repondents.
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2013 (12) TMI 1600
Revision u/s 263 - Held that:- Once the Tribunal had come to the conclusion that the loan advanced was on account of commercial expediency as well as in the orders of the BIFR, we do not find any ground to disturb the said finding. Rightly, the Revenue had not raised any question of law on this. Even though on the aspect of jurisdiction, the Revenue succeeds, yet, the further question on the merits being a pure question of fact and rightly not raised, we do not find, any useful purpose would be achieved in setting aside the order of the Tribunal and further remanding the matter. In the circumstances, except for holding that the Revenue is justified in its plea in invoking jurisdiction under Section 263 of the Act, we do not think, the order calls for any interference to remand the matter.
Advancing of funds by the assessee into the sister concern was in terms of the BIFR's order. That being the case, no useful purpose would be served by again directing a remand on the merits of the claim of the assessee.
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2013 (12) TMI 1599
Disallowed u/s 40(a)(ia) - TDS u/s 194C - Transportation charges - non-submission of Form No. 15J within time-limit - Sub-Contract or not - HELD THAT - Mere non submission of Form No. 15J (having received Form No. 151 from his subcontractor for non deduction of TDS under Rule 29D to the AO within prescribed time limit cannot pave way for disallowance of expenses under section 40(a)(ia).
Payments to lorry owners is not a sub-contract, hence, TDS provisions are not applicable. It was contended by the assessee that assessee himself executed the contract of transportation and the lorry owners have simple placed the vehicle at the disposal of the assessee without involving themselves in carrying out any part of the work undertaken by the assessee.
The decisions in the case of Mythri Transport Corporation vs ACIT, 124 ITD 40(Vis) [2009 (1) TMI 337 - ITAT VISAKHAPATNAM] and VALIBHAI KHANBHAI MANKAD VERSUS DEPUTY COMMISSIONER OF INCOME-TAX (OSD), CIRCLE-9, AHMEDABAD [2011 (4) TMI 887 - ITAT, AHMEDABAD] are followed.
In the result, the appeal of the revenue as well as cross objection filed by the assessee are dismissed.
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2013 (12) TMI 1598
Short-payment of duty - value of diesel and explosives supplied free by the service recipient M/s. SCCL - Held that: - the Honble High Court of Delhi in Intercontinental Consultants & Technocrats Pvt. Ltd. Vs. Union of India, [2012 (12) TMI 150 - DELHI HIGH COURT] held that the value of diesel supplied free of cost by a service recipient to the appellant/service provider for providing the taxable site formation and clearance, excavation and earthmoving and demolition service would not be a component of the gross value charged for the service provided for computation of tax under Section 67 of the Act - appeal allowed - decided in favor of appellant.
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2013 (12) TMI 1597
Issues:
The appeal against the OIA No.62/2009/(STC)/LMR/Commr.(A)/Ahd., issued on dt.14.03.2009 by upholding the OIO No.STC/24/Joint Commr./07-08, dt.14.11.2007.
Penalties Waiver under Section 80 of the Finance Act, 1994:
The appellant argued that there was a reasonable cause for not discharging the service tax as clients did not pay in time, hence penalties should not be imposed u/s Section 80 of the Finance Act, 1994. However, the respondent contended that the appellant, registered since 1998, did not file any ST-3 return from April 2000 to March 2006 despite collecting service tax from clients. The respondent highlighted that the service tax collected was used for other purposes, indicating no reasonable cause. The bench observed that the appellant failed to provide a valid reason for not paying service tax periodically and not filing the prescribed ST-3 returns, leading to the correct imposition of penalties by the authorities.
Decision:
After hearing both sides and examining the case records, it was determined that the penalties imposed on the appellant were justified as the appellant did not establish a reasonable cause for the delay in discharging the service tax obligations. The appellant's argument regarding clients' delayed payments was deemed insufficient, considering the appellant's responsibility as a registered service tax assessee to pay the tax proportionately and file the required returns. Consequently, the appeal filed by the appellant was rejected, affirming the penalties imposed by the adjudicating authority and upheld by the first appellate authority.
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2013 (12) TMI 1596
Issues Involved: Appeal rejection due to delay, non-receipt of order-in-original, violation of principles of natural justice, interpretation of dispatch by speed post.
Appeal Rejection Due to Delay: The appeal was rejected as it was filed beyond the condonable period of delay, following the decision in the case of Singh Enterprises Vs. CCE, Jamshedpur. The delay was considered not condonable, leading to the rejection of the appeal.
Non-Receipt of Order-in-Original: The appellant claimed that they did not receive the order dispatched on 01.11.2012 and only became aware of it when a copy was given to them on 10.07.2013. The appellant argued that the appeal was filed in time on 05.08.2013. However, the Revenue stated that the order was dispatched on 01.11.2012 and the appellant's claim was different. The Commissioner found that the order was dispatched and not returned undelivered, rejecting the appellant's claim of non-receipt.
Violation of Principles of Natural Justice: The appellant was not given an opportunity to explain their case based on the report by the Additional Commissioner. This lack of opportunity for the appellant to present their case was seen as a violation of principles of natural justice, especially since the delivery status of the letter was uncertain.
Interpretation of Dispatch by Speed Post: The argument was made that dispatch by speed post should be considered sufficient for delivery. However, the introduction of speed post as a mode of delivery in the Central Excise Act raised questions about the proper mode of delivery. Section 37C was referenced, suggesting that deemed delivery date should align with the actual delivery date. The issue was deemed legal, requiring different interpretations and a better understanding of the facts and application of the law.
Conclusion: The impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a fresh decision after providing the appellants with an opportunity to present their case. The need for a reconsideration of the issue was emphasized to ensure a fair process and proper application of the law.
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2013 (12) TMI 1595
Registration granted u/s 12AA (1) (b) cancelled - Held that:- The observation of the CIT is only a general observation and is not substantiated by any facts. It is pertinent to note that CIT has not pointed out that any part of the income spent other than the objects of the trust. In the absence of any such factual findings recorded by CIT, it cannot be said that the tribunal committed an error in setting aside the order of CIT and directing the CIT to renew the registration under Section 80G and also grant registration under Section 12AA of the I.T Act. - Decided in favour of assessee.
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2013 (12) TMI 1594
Money received attributable to within India activities - P.E. in India - Held that:- One has to read Article 5 of the Agreement in order to understand what a permanent establishment is, in terms whereof "permanent establishment" means a fixed place of business through which business of an enterprise is wholly or partly carried on. In the instant case, according to the revenue, the Project Office of the appellant in Mumbai is the "permanent establishment" of the appellant in India through which it carried on business during the relevant assessment year and 25 per cent of the gross receipt is attributable to the said business. Neither the Assessing Officer, nor the Tribunal has made any effort to bring on record any evidence to justify the same.
That being the situation, we allow the appeal, set aside the judgment and order under appeal as well as the assessment order in so far as the same relates to imposition of tax liability on the 25 per cent of the gross receipt upon the appellant in the circumstances mentioned above, and observe that the questions of law formulated by us, while admitting the appeal, have not, in fact, arisen on the facts and circumstances of the case, but the real question was, whether the tax liability could be fastened without establishing that the same is attributable to the tax identity or permanent establishment of the enterprise situate in India and the same, we think, is answered in the negative and in favour of the appellant.
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2013 (12) TMI 1593
The Appellate Tribunal CESTAT New Delhi dismissed the appeals as the appellant failed to carry out the order of the Apex Court. The appeals are subject to the result of a modification application likely to reach the Bench by 03.01.2014.
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2013 (12) TMI 1592
Issues Involved:
1. Whether the Appellate Tribunal was right in law in upholding the order of the CIT(A) directing to exclude sales tax and excise duty while computing total turnover for the purpose of deduction u/s. 80HHC of the I.T. Act?
Issue-wise Detailed Analysis:
1. Substantial Question of Law:
The primary issue in the appeal was whether the Appellate Tribunal was correct in law in upholding the CIT(A)'s decision to exclude sales tax and excise duty from the total turnover for the purpose of deduction under Section 80HHC of the Income Tax Act, 1961.
2. Legal Precedents and Applicability:
The court noted that the substantial question of law raised is not res integra (an unsettled question) and has been settled against the Revenue by the Supreme Court in the cases of Commissioner of Income Tax vs. Lakshmi Machine Works and Commissioner of Income Tax vs. Shiva Tex Yarn Ltd. The Supreme Court in these cases held that excise duty and sales tax should be excluded from the total turnover for the purpose of Section 80HHC.
3. Arguments by Revenue:
The Revenue's counsel attempted to distinguish the aforementioned Supreme Court decisions by arguing that Section 145A of the Income Tax Act had not been considered in those decisions. However, the court observed that there had been no amendment to Section 80HHC and that the Supreme Court's observations in the Lakshmi Machine Works case were still applicable.
4. Supreme Court Observations:
The Supreme Court in Lakshmi Machine Works emphasized that the formula in Section 80HHC is intended to exclude receipts like brokerage, commission, interest, and rent from business profits as they do not have a nexus with export activity. The court highlighted that excise duty and sales tax do not involve any element of turnover and should be excluded from the total turnover to make the formula workable.
5. Purposeful Interpretation:
The court noted that a purposeful interpretation of Section 80HHC is necessary. The section is based on a formula designed to segregate export profits from business profits. Including excise duty and sales tax in total turnover would distort the calculation of export profits, which is not the legislature's intent.
6. Subsequent Decisions:
The court also referenced the Supreme Court's decision in Shiva Tex Yarn Ltd., which followed the Lakshmi Machine Works ruling even after considering Section 145A, reinforcing that excise duty and sales tax should be excluded from total turnover.
Conclusion:
Applying the Supreme Court's ratio decidendi from the Lakshmi Machine Works and Shiva Tex Yarn Ltd. cases, the Gujarat High Court concluded that the Tribunal had not erred in excluding excise duty and sales tax from the total turnover for the purpose of Section 80HHC deduction. Consequently, the Tax Appeal was dismissed with no costs.
Final Judgment:
The Tax Appeal was dismissed, affirming that the exclusion of excise duty and sales tax from the total turnover for Section 80HHC deductions was correct.
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2013 (12) TMI 1591
Disallowance made u/s.43B(b) - unpaid PF/ESI amount which remained unpaid even during the grace period available - Held that:- It was the case with respect to employer's contribution as per section 43B(b) of the Act and it is not in dispute that employer's contribution with respect to PF/ESI amount was as such deposited before the due date of filing of the return under section 139 of the Act. Considering the fact that second proviso to section 43B came to be deleted and as per the decision of the Hon'ble Supreme Court in the case of Aloma Extrusions Ltd. [2009 (11) TMI 27 - SUPREME COURT] the deletion of second proviso to section 43B of the Act and amendment in the first proviso to section 43B is held to be retrospective in operation, it cannot be said that the learned Tribunal has committed any error and/or illegality in deleting the disallowance made under section 43B(b) - Decided against the revenue.
Ee-compute the interest under section 234B of the Act after allowing credit of MAT.
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2013 (12) TMI 1590
TPA - determination of ALP - comparable selection - Held that:- Tax payer is not stopped from pointing out a mistake in the assessment though such mistake is the result of evidence adduced by the taxpayer. It has further held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. Further the other side cannot claim to have a vested right in injustice being done due to some mistakes on its part. In view of the aforesaid facts and considering the peculiarity of the facts of the present case we are of the view that Vakrangee Software should be excluded while working out the OP/TC%. We therefore restore the matter to the file of AO for fresh consideration after considering the foregoing and thereafter decide the issue as per law and after giving a reasonable opportunity of hearing to the Assessee. Thus this ground of the Assessee is allowed for statistical purposes.
Expenditure incurred by the assessee as community welfare expenses is allowable.
Computation of deduction u/s 10B - brokerage on sea freight and insurance claim non considered to be part of profit for deduction u/s 10B - Held that:- It is seen that the respected Special Bench of the Tribunal in Maral Overseas Ltd. case [2012 (4) TMI 345 - ITAT INDORE] has held that once an income forms part of the business of the undertaking, the same would be included in the profits of the business of the undertaking and will be eligible for deduction. Respectfully following the aforesaid Special Bench decision, we are of the view that the Assessee is eligible for deduction on the brokerage on sea freight and insurance claim which it has credited to its profit and loss account. Thus this ground of the Assessee is allowed.
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2013 (12) TMI 1589
Claim for deduction u/s 54F - Held that:- Board vide circular no. 672 after referring Circular No. 471 extended the facility of exemption u/s 54 & 54F in respect of allotment of flat/house. Thus, as per the CBDT Circular also, the assessee acquired the rights/title in the flat by way of allotment letter on 22.1.2005. This allotment letter was duly confirmed by the assessee by making various payment as narrated above. Out of total payment of ₹ 33.15 lakhs, the assessee made payment of ₹ 6.23 lakhs in the month of allotment itself i.e. January, 2005. Subsequent payment was also made as per the terms agreed with the builder. Only after receipt of entire amount, the builder has executed agreement with the assessee on 27.2.2009. The assessee has sold the said flat on 05.03.2009. Since the assessee has acquired all the rights in the flat on 22.01.2005, the period of holding is to be computed with respect to the date of allotment i.e. 22.01.2005. Taking the date of sale as 05.03.2009, the holding period of flat with the assessee was more than 36 months, therefore, there is no infirmity in the order of CIT(A) for allowing assessee's claim for exemption u/s 54/54F, by treating the capital assets so sold as long term capital assets.
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2013 (12) TMI 1588
Attachment proceedings under PMLA - Proceeds of crime or not - Overriding provision of PMLA over Income Tax Act - Seizure of amount in bank account by the Income Tax Authority - Untainted money - Burden of Proof - HELD THAT- The ambit and scope of trial under the PMLA is totally different from that of the Indian Penal Code. - In case of offences under the Indian Penal Code under the criminal jurisprudence, it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. But in a proceeding under the PMLA, the onus is on the accused to prove that the properties seized are untainted and not the proceedings of any crime. The facts of the present case were considered and the provisions of the PMLA, being a Special Statute, it has overriding effect on the Income Tax Act and further considering the huge amounts of money, which are lying in the bank in the accounts of the petitioners as well as the nature of proceeding under the PMLA, more specifically, section 24 which provides that burden of proof is upon the person who has committed crime under Section-3 of PMLA and that the proceeds of crime are untainted property shall be on the accused. Thus Court opined that even if the petitioner no. 2 has been acquitted of the charges framed against him in the sessions trial, a proceeding under the PMLA 2002 cannot amount to double jeopardy, where the procedure and nature of proof are totally different from a criminal proceeding under the Indian Penal Code.
Decision on this case Union of India v. Hassan Ali Khan and another,, while dealing with an order, by which the accused persons were granted bail by the High Court [2011 (9) TMI 847 - SUPREME COURT] was observed.
It may be made clear that the question as to whether the inherent power available under section 482 Cr.P.C. can be exercised for quashing a proceeding initiated under the IMLA or not, is left open.
In the result, the CRLMC, being devoid of merit, stands dismissed.
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2013 (12) TMI 1587
The Appellate Tribunal CESTAT Bangalore remanded the case to the Commissioner (Appeals) for fresh decision after considering a Larger Bench decision in favor of the revenue. The respondents are to be given an opportunity to refute the decision before a new ruling is made. The appeals are allowed by way of remand.
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