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Showing 201 to 220 of 14810 Records
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2013 (12) TMI 1566
Proceedings under s.153C - Held that:- Assessing officer having issued a notice u/s 153A of the Act, could not have completed proceedings which are supposed to be done u/s 153C of the Act if there is any incriminating material and accordingly, the proceedings itself become bad in law.
Computation of income - Held that:- Estimation of income at 9.5% by the CIT(A) is on higher side. Considering the past record of the assessee, we are of the opinion that it is reasonable to estimate 5% income net of depreciation on sub-contract payments and 8% net of depreciation on the balance of the contract receipts, out of the total turnover shown by the assessee. This should meet the end of justice on the facts of the case. However, other incomes offered by the assessee, with reference to undisclosed income being added in A.Y. 2009-10 and other incomes not connected with the contract receipts should be accepted as such. This estimation of 8% on assessee’s contract works and 5% on sub-contract works is only limited to the contract receipts. With these directions, the assessing officer is directed to modify the computation of income accordingly. Assessee’s grounds are considered allowed accordingly.
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2013 (12) TMI 1565
Issues involved: The judgment involves the detention of goods by Customs Authorities on the grounds of being hazardous and/or toxic, the request for release or re-export of the goods, the legal provisions regarding handling of hazardous wastes, and the liability for detention and demurrage charges.
Detention of Goods: The writ petition was filed for the release of goods detained by Customs Authorities due to concerns of being hazardous and toxic. The Customs Authorities sent samples for testing to determine the nature of the goods. The petitioner sought re-export of the goods as the foreign exporters agreed to take them back and cover voyage freight.
Legal Provisions: The Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008, contain provisions regarding handling of hazardous wastes. Rule 17 states that illegal import of hazardous wastes must be re-exported within ninety days. Supreme Court judgments emphasize re-export or proper disposal of hazardous wastes in accordance with rules.
Re-export of Goods: The Court directed Customs Authorities to allow the consignments to be re-exported to the foreign seller, subject to necessary testing and procedures. The petitioner must inform Customs Authorities of re-export details. Port authorities should facilitate re-export upon satisfaction of any applicable claims.
Liability for Charges: Previous judgments discussed liability for detention and demurrage charges. The Court did not address this issue as charges were not levied in the present case. The petitioner's reliance on past cases regarding charges was deemed inapplicable.
Conclusion: The writ petition was disposed of with no order as to costs. The Court directed re-export of the goods to the foreign seller, following necessary procedures. Urgent copies of the order were to be provided to the parties upon request.
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2013 (12) TMI 1564
Reopening of assessment - Held that:- There was true disclosure of all material and primary facts at the time of original assessment and assessment was reopened in respect of the matter already covered by the disclosure made by the assessee during original assessment proceedings and initiation of reassessment proceedings on the same material would obviously amount to change of opinion. Consequently, we hold that the initiation of reassessment, in absence of any new tangible material was change of opinion which is not permissible as per statutory provisions of the Act. Accordingly, the act of the Assessing Officer in initiation of reassessment proceedings and notice issued u/s 148 of the Act is quashed.
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2013 (12) TMI 1563
Issues involved: Application for waiver of predeposit of duty u/s Central Excise Tariff Act, 1985 for clearance to Special Economic Zone without payment of duty.
Summary:
The applicant, engaged in the manufacture of industrial alcohol and chemicals, filed an application for waiver of predeposit of duty amounting to Rs. 1,19,665/- along with interest and penalty of Rs. 10,000. The demand of duty arose due to the clearance of Acetic Acid, Ethyl Acetate, and Anhydride to a Special Economic Zone without payment of duty. The adjudicating authority noted that duty should be paid on intermediary products used in the factory for manufacturing the final products, as the final product is exempted. The applicant's advocate referred to a previous Tribunal stay order in their own case, where unconditional stay was granted.
The Revenue representative argued that Notification 65/95 does not allow exemption for clearances to SEZ, emphasizing that notifications should be strictly interpreted as per decisions of the Hon'ble Supreme Court. After considering both sides, the Tribunal found that in the applicant's own previous case, unconditional stay was granted on the same issue. The Tribunal cited previous decisions where exports to SEZ were not considered as exempted goods, and pre-deposit was waived in similar cases. Consequently, the Tribunal waived the requirement of pre-deposit in the current case pending the appeal's disposal, following the precedent set by previous decisions. The predeposit of duty, interest, and penalty was waived, and the recovery was stayed until the appeal's final disposal. The stay application was allowed, and the decision was pronounced in open court.
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2013 (12) TMI 1562
Deduction under Section 80IB of the Act is allowable for the income from sale of scrap - The receipts from sale of scrap being part and parcel of the activity and being proximate thereto would also be within the ambit of gains derived from the industrial undertaking for the purpose of computing deduction under Section 80IB.
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2013 (12) TMI 1561
The Appellate Tribunal CESTAT Bangalore granted waiver of predeposit and stay of further proceedings in a case where CENVAT credit was disallowed for MS angles, beams, channels used in providing support structures for belt conveyor system. The decision was based on a strong prima facie case for relief as per a previous judgment of the Andhra Pradesh High Court. The impugned order disallowed availed CENVAT credit of Rs. 77,21,700 and ordered recovery of interest and penalties.
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2013 (12) TMI 1560
Issues involved:
The judgment pertains to the issue of reversal of Modvat credit under a special scheme announced on 4-1-1997.
Judgment Details:
Issue 1: Reversal of Modvat Credit
The writ petition filed in 1997 sought relief regarding the reversal of Modvat credit under the Special Scheme announced on 4-1-1997. Similar writ petitions by other companies were disposed of earlier, directing the appointment of a Cost Accountant to determine the correct amount of Modvat Credit to be reversed. The petitioners were to provide figures and calculations for this exercise, and the Cost Accountant was to submit a report to the Excise Department. The adjudicating authority would then decide the correct amount of Modvat credit to be reversed, with provisions for interest in case of short reversal or benefit in case of excess reversal. The petitioners were allowed to challenge the adjudication order on merits but not on the rate of interest.
Issue 2: Appointment of Cost Accountant
The present petition remained pending as the respondents were seeking instructions on appointing a Cost Accountant, similar to previous cases. The counsel for the respondents informed the court that no decision had been communicated by the Commissioner of Central Excise, Jaipur, as the records of the case were not traceable. However, the issue in the present petition was deemed identical to previous cases, and it was suggested that the Chief Commissioner/Commissioner should be permitted to appoint a Cost Accountant for verification of records, as per Circular No. 318/34/97-CX.
Conclusion:
The court directed that similar orders to previous cases be passed, allowing the Chief Commissioner/Commissioner to appoint a Cost Accountant for conducting the necessary enquiry and verification of records. The petitioner was permitted to submit records to assist in reconstructing the files. The writ petition was disposed of in line with the directions given in the previous case of Apollo Tyres Ltd., with provisions for approaching the court for any clarification or modification if needed.
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2013 (12) TMI 1559
Delay in deposit of Employees contributions of Provident Fund - Held that:- EPF was paid before the due date of filing the return. Thus we direct the A.O. to allow the payment of EPF contributions since the same has been paid before the due date of filing the return.
Claim of deduction u/s 80IB - Held that:- As the assessee has supplied DG sets to the customers which includes installation, testing and commissioning, which is intricate and inseparable part of manufacturing activity and therefore, any surplus arising therefrom shall be termed as derived from an industrial undertaking and eligible for deduction u/s 80IB of the Act Accordingly, the order of the Ld. CIT(A) is reversed and the AO is directed to allow deduction u/s 80IB
Violation of provisions of section 40A(3) - Held that:- There is no dispute to the fact that the rent has been paid in cash in violation of provisions of section 40A(3) and the Ld. CIT(A) has rightly confirmed the action of the AO in disallowing the same. It is also fact that the disallowance of sum claimed enhances the income of the assessee and the income so enhanced is available u/s 80IB of the Act. Therefore, in the facts and circumstances of the case, the ld. CIT(A) is not justified in not allowing deduction u/s 80IB of the Act.
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2013 (12) TMI 1558
Issues involved:
The issues involved in the judgment are the denial of MODVAT credit, imposition of penalties, demand for interest, interpretation of Rule 57-I, and the liability to pay interest on wrongly availed credit.
Denial of MODVAT credit and penalties:
A show-cause notice was issued to deny MODVAT credit u/s Rule 57-I, leading to penalties being imposed. The Commissioner (Appeals) set aside the order, but the Tribunal allowed the department's appeal, resulting in the appellant paying the amount wrongly availed. A subsequent show-cause notice demanded interest, which was confirmed by lower authorities. However, the Tribunal, in an earlier order, held that no interest was payable due to the timing of the show-cause notice and the introduction of interest liability in the statute.
Demand for interest and Rule 57-I interpretation:
The Revenue filed for rectification, citing a mistake in the earlier order regarding the effective date of interest liability under Rule 57-I. The Tribunal considered the appellant's lack of seriousness in pursuing the appeal and the history of adjournments. The learned A.R. argued that interest payment was mandatory under Rule 57-I(3) and Section 11AA, despite no explicit mention in the original adjudication or show-cause notice. The difference in wording between Section 11AA and Rule 57-I was highlighted to support the obligation to pay interest once the amount is determined.
Interpretation of relevant provisions and case law:
The Tribunal examined the provisions of Section 11AA and Rule 57-I, emphasizing the mandatory nature of interest payment as per the latter. The appellant's reliance on a previous decision was dismissed, as the show-cause notice in this case postdated the amendment to Rule 57-I. The judgment concluded that the appeal lacked merit, and it was rejected accordingly.
(Order dictated and pronounced in open court)
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2013 (12) TMI 1557
Issues Involved:
1. Validity of the invocation of Section 263 of the Income-tax Act, 1961 by the Commissioner.
2. Whether the Assessing Officer (AO) conducted proper inquiries regarding the deduction under Section 80IAB.
3. Whether the sale of bare shell buildings qualifies as an authorized operation under the SEZ Act and is eligible for deduction under Section 80IAB.
Detailed Analysis:
1. Validity of the Invocation of Section 263:
The primary grievance of the assessee revolves around the invocation of Section 263 by the Commissioner, who deemed the assessment order as erroneous and prejudicial to the interest of the revenue. The Commissioner issued a show-cause notice stating that the AO allowed a deduction under Section 80IAB without proper inquiry, particularly concerning the sale of bare shell buildings, which he argued did not qualify as an authorized operation under the SEZ Act.
2. Inquiry Conducted by the AO:
The AO had issued a detailed questionnaire under Section 142(1) and received responses from the assessee, including various documents like the approval letter for SEZ development, the MOU with the co-developer, and the definitive co-developer agreement. The AO discussed the deduction under Section 80IAB in the assessment order, revising the deduction amount after considering the details provided. The ITAT observed that the AO had indeed conducted inquiries and applied his mind before allowing the deduction, thus fulfilling his role as both investigator and adjudicator.
3. Sale of Bare Shell Buildings as Authorized Operation:
The assessee argued that the sale of bare shell buildings to the co-developer was an authorized operation under the SEZ Act, supported by approvals and clarifications from the Ministry of Commerce & Industries. The SEZ Act allows co-developers to be treated at par with developers, and the transfer of bare shell buildings was recognized as an authorized activity by the Board of Approval (BOA). The ITAT noted that the BOA's approval and subsequent clarifications confirmed that such transfers were authorized operations, making the income derived from these transactions eligible for deduction under Section 80IAB.
Conclusion:
The ITAT concluded that the AO had conducted adequate inquiries and that the assessment order was not erroneous. The Commissioner's invocation of Section 263 was based on a misinterpretation of the SEZ Act and the nature of the transactions. The ITAT quashed the Commissioner's order, allowing the assessee's appeal and upholding the deduction under Section 80IAB. The decision emphasized that the AO had taken one of the possible views, and merely because the Commissioner had a different interpretation did not render the assessment order erroneous or prejudicial to the revenue.
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2013 (12) TMI 1556
Issues involved:
The issues involved in this legal judgment are the rejection of refund claims u/s Article 226 of the Constitution of India, rejection of rebate claims on the ground of limitation, and the consideration of rebate claims with respect to specific export transactions.
Rejection of Refund Claims:
The petitioners, a Private Ltd. Company and its Director, filed a petition seeking to quash an order rejecting their refund claim for duty paid on exported goods. The company exported Alloy Steel Ingots and Carbon Steel Forged Flanges, paying the duty using available Cenvat credit. Despite timely export and receipt of relevant documents, the shipping bill marked as "Shipping Bill for Export" was not received initially. The claim was rejected by Respondent No. 4 citing limitation, leading to an appeal dismissed by the Commissioner (Appeals).
Rejection of Rebate Claims on Ground of Limitation:
The authorities rejected the rebate claims solely on the ground of limitation, despite the petitioners' argument that the delay was due to the non-receipt of the required shipping bill. The petitioners relied on a court decision stating that claims filed beyond the limitation period should be condoned if due to departmental lapses. The authorities rejected the claims even after receiving the required documents, leading to the petition u/s Article 226 of the Constitution of India.
Consideration of Rebate Claims for Specific Transactions:
The court considered the delay in submitting rebate claims for specific transactions, ARE-1 Nos. 44 and 48, where the shipping bills were received on specific dates and claims were submitted promptly. The court found no delay in these cases and remanded the matter to the adjudicating authority to reconsider these claims on their merits.
In conclusion, the court confirmed the rejection of rebate claims for certain transactions due to delays beyond explanation. However, the court quashed and remanded the rejection of rebate claims for specific transactions where no delay was found, emphasizing the need for a case-by-case assessment of claims.
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2013 (12) TMI 1555
Nature of receipts - Held that:- Nature of receipt in this case if ₹ 5.75 crore has clearly been established as being the capital receipt. The provision of Income Tax Act does not provide for taxation of such capital receipt, even if it is forfeiture of amount. Accordingly, in the background of the aforesaid discussions and precedents, we do not find any infirmity in the order of the Ld. CIT(A). Accordingly, we uphold the same.
Depreciation @ 60% on the printers and UPS & computer peripherals to the assessee.
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2013 (12) TMI 1554
Value adopted by the Assessee for part of the stock in accordance with the order of the Hon'ble Bombay High Court - Held that:- Even the stock of iron ore at that time was also divided. The liability arising due to the order of the Hon'ble Bombay High Court, in our opinion, cannot be a business liability as the price realized by the Assessee can also not be the market price but the price put by the Hon'ble Bombay High Court is for the purpose of settling the dispute mutually among the family members and distribute the various assets and liabilities by putting certain value to them. It cannot be regarded to be sale at the open market. If any loss is incurred by the Assessee, that cannot be regarded to have been incurred during the course of the business.
Commissioner (Appeals) was not correct in directing the Income-tax Officer to revalue the opening stock also consistently along with the closing stock when the assessee wanted to adopt the “works cost” method for the relevant assessment year.
Direction to be given to the assessing officer to take the opening stock of ROM and screened fines for the assessment year 2007-08 in consequence of making an adjustment to the closing stock as on 31.3.2006 - Held that:- Value of the closing stock of the impugned assessment year will become the value of the opening stock of the succeeding assessment year. Since the appeal before us relate to the assessment year 2006-07 our jurisdiction are limited to give the finding in respect of the ground of appeal relating to the impugned assessment year we cannot decide the grievance of the assessee relating to the assessment year 2007-08. This issue can be taken by the assessee during the assessment year 2007-08 in accordance with the law before the appropriate authorities.
As we have already confirmed the addition in the valuation of the closing stock for the A.Y 2006-07, we direct the assessing officer to take the same value of the opening stock as on 1.4.2006 for determining the profits and gains of the business of the assessee for computing the taxable income.
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2013 (12) TMI 1553
Issues Involved:
1. Legality of the CIT(A)'s order.
2. Addressing of arguments by CIT(A).
3. Justification of penalty imposition under Section 271(1)(c) of the Income Tax Act, 1961.
4. Right to amend grounds of appeal.
Issue-wise Detailed Analysis:
1. Legality of the CIT(A)'s Order:
The assessee challenged the legality of the CIT(A)'s order dated 23.11.2012. The primary contention was that the order was "bad in law." The tribunal examined the procedural and substantive aspects of the order to determine its legality but found no substantial procedural irregularity that would render the order invalid.
2. Addressing of Arguments by CIT(A):
The assessee argued that the CIT(A) failed to address all arguments raised during the appeal. The tribunal reviewed whether the CIT(A) had considered all material arguments and evidence presented by the assessee. It was noted that the CIT(A) had indeed reviewed the explanations and documents provided by the assessee, including the letter dated 21.2.2011, which contained detailed explanations of the impounded documents.
3. Justification of Penalty Imposition Under Section 271(1)(c):
The core issue was the justification for upholding the penalty of Rs. 9,14,750/- levied under Section 271(1)(c) of the Income Tax Act, 1961. The tribunal scrutinized whether the conditions for imposing such a penalty were met. It was highlighted that the penalty proceedings are distinct from assessment proceedings and require fresh inquiry to prove concealment or furnishing of inaccurate particulars of income.
The assessee had surrendered Rs. 25 lakhs during a survey operation with the condition that no penalty or prosecution would be initiated. However, this amount was not included in the return of income. The Assessing Officer added the amount, and the CIT(A) upheld this addition. The tribunal examined whether the surrender was voluntary and whether the penalty was justifiable based on the quantum addition.
It was emphasized that for penalty imposition, there must be conclusive evidence of concealment or furnishing of inaccurate particulars. The tribunal found that the Assessing Officer's reasoning was based on inferences rather than concrete evidence, such as cross-verification from third parties. The surrender was conditional, and the assessee had provided explanations for the impounded documents, which were not factually disproven by the Assessing Officer.
4. Right to Amend Grounds of Appeal:
The tribunal acknowledged the appellant's right to add, alter, amend, or modify any grounds of appeal during the proceedings. This procedural right ensures that the appellant can address any additional issues or arguments that may arise during the hearing.
Conclusion:
The tribunal concluded that the penalty under Section 271(1)(c) was not justified. The explanations provided by the assessee were not conclusively disproven, and the surrender was made with the condition of no penalty imposition. The tribunal allowed the appeal, deleting the penalty imposed by the Assessing Officer and upheld by the CIT(A). The order was pronounced in the open court on 31st December 2013.
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2013 (12) TMI 1552
Addition to capital gain declared by disallowing expenses for transfer - Disallowance of the expenditure related to the land sold - Held that:- The payments were made by bank cheques and the fact that the said deeds and confirmation letters were filed the contention of the assessee stands proved even in the absence of affidavits of the payees filed at the appellate stage. In view of the above, the Assessing Officer was not justified in making addition
Assessee was entitled to claim deduction u/s.54B
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2013 (12) TMI 1551
Issues involved: Dispute over Modvat credit eligibility for processors of cotton fabrics regarding grey fabrics as specified inputs.
Summary:
Issue 1: Modvat credit eligibility for grey fabrics
The Revenue challenged the allowance of Modvat credit to processors of cotton fabrics for grey fabrics, arguing that grey fabrics were not specified inputs despite yarn, dye, and chemicals being specified. The original adjudicating authority dropped proceedings against the respondents, a decision upheld by the Commissioner (Appeals) citing relevant circulars and precedents. The Revenue, unsatisfied, appealed to the Tribunal.
Issue 2: Precedents and settled law
The Tribunal, led by Ms. Archana Wadhwa, noted that the issue had been settled by previous decisions, including those of the Tribunal and the High Court of Delhi. Citing cases such as CCE vs. Suzuki Synthetics, Delite Processors vs. CCE, and Damini Printers vs. CCE, the Tribunal found no reason to deviate from the established legal position. Consequently, all appeals filed by the Revenue were rejected.
This judgment clarifies the Modvat credit eligibility for processors of cotton fabrics concerning grey fabrics and reaffirms the importance of adhering to settled legal precedents in tax matters.
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2013 (12) TMI 1550
Rectification of mistake - Income considered to be liable for tax - Held that:- Income was considered to be liable for tax at the rate of 15% by the assessee itself in its return of income. No material has been brought on record to show that applicability of rate of 15% was examined by the AO during the course of original assessment proceedings. Even during the course of rectification proceedings, the assessee did not submit any reply to the AO. It is also not the case of the assessee that AO did not give opportunity to explain that as to why 15% rate of tax was justified. In these circumstances, we are of the opinion that there was no “change of opinion” as has been argued by Ld. AR. The levy rate of tax has to be in accordance with the statutory provisions. If there is less levy, then it is liable for rectification.
Accordingly, we hold that AO was not wrong in exercising his right u/s. 154 of the Act.
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2013 (12) TMI 1549
Land in question was liable to be excluded from the definition of ‘capital assets’ on account of section 2(14)(iii) of the Act. Accordingly, the surplus on the sale of such asset has been rightly held to be outside the purview of capital gains tax.
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2013 (12) TMI 1548
No merit in the conclusion drawn by the lower authorities for treating the gains arising out of sale of shares as business income rather than capital gain.
Addition u/s 2(22)(e) on account of deemed dividend - Held that:- We found that Shri Anoop Karwa has more than 10 % voting rights in the share capital of Krishi Dham Seeds Limited, therefore, the provisions of Section 2(22)(e) is clearly applicable for loans and advances so taken by the assessee. Accordingly, the addition made by the Assessing Officer u/s 2(22)(e) was perfectly justified.
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2013 (12) TMI 1547
Registration u/s.12AA denied - Held that:- The assessee did not furnish the trust-deed/memorandum of article/memorandum of association, whereby the objects and notifications can be ascertained. On the contrary, the contention of the ld.counsel for the assessee is that the trust is registered under Gujarat Private University Act and as per the Gujarat Government Gazette dated 11/04/2012, it is mentioned the trust registration No.5539 dated 01/08/1996. After hearing the rival submissions and the documents filed by the assessee during the course of hearing, it would be appropriate if the matter is restored back to the file of ld.DIT(E) for fresh decision. The order of ld.DIT(E) is hereby set aside and the appeal is restored back to the file of DIT(E) for fresh decision. The DIT(E) is directed to consider the documents as filed by the assessee, i.e. deed of trust and decide this issue in the light of various case-laws relied upon by the ld.counsel for the assessee. The assessee shall furnish all the required details in support of its contention before the ld.DIT(E). Thus, grounds of assessee’s appeal are allowed for statistical purposes only.
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9911796707
