|
Advanced Search Options
Case Laws
Showing 441 to 460 of 14810 Records
-
2013 (12) TMI 1325
Waiver of pre-deposit of Service Tax - C & F agent - Held that:- appellants are only engaged for handling the railway wagons through which the final product of M/s. Oswal Chemicals and Fertilisers Ltd. is being transported. The various activities of C & F agent as enumerated in the Board’s Circular No. B-43/7/97-TRU, dated 11-7-1997 requiring C & F agents to perform various functions like receipt of material from the principal, dispatch of the same to the customers, receiving orders from principal, arranging dispatch of the goods as per direction of the principal, preparing invoices on behalf of the principal and maintaining records of receipt and dispatch of the goods. Apart from the fact that we find that the agreement entered into by the appellant and M/s. Oswal Chemicals and Fertilisers Ltd. does not satisfy the condition of C & F agent, we also note that there is clear finding of the fact by the Commissioner that the appellants was not issuing any invoice on behalf of the companies and the bills raised by them are against loading and transportation of the goods from Railways to the godown - appellant has good case on merits, making him entitled to unconditional dispensation with the requirement of pre-deposit - Stay granted.
-
2013 (12) TMI 1324
Demand of service tax - Management consultancy - Licence for manufacture of lubricating oil and providing assistance for making sale - Held that:- taxing entry in Section 65(105)(r) of the Finance Act, 1994, brings management consultancy service into the fold of service tax. Mandate of this entry is that service provided by management or business consultant in connection with the management of any organisation or business in any manner shall be management consultancy. This taxing entry read with the enabling definition in Section 65(65) of Finance Act, 1994 requires a service provider necessarily to be a management consultant and its principal activity should be so. Service Tax can be levied on the economic activity if such activity is declared by law taxable. By no stretch of imagination any activity can be taxed. In absence of existence of management consultant there is no scope to call the appellant as management consultant when terms of the agreement is read - Decided in favour of assessee.
-
2013 (12) TMI 1323
Demand of service tax - Business Auxiliary Service - Mining and grading of iron ore - Held that:- A given activity can be classified only under one Head of taxable service and such classification of taxable service is a part of the scheme of the levy. Further, we have found prima facie case for the appellant inasmuch as they have been paying service tax in respect of the same activity from 1-6-2007 (the date with effect from which “mining service” became taxable) under the Head, Mining Service after obtaining the requisite registration from the department. Apparently “Mining Service” has been accepted as the appropriate service rendered by the appellant. The fact that they have been paying service tax under this category ever since it became a taxable service under this category shows that the appellant did not want to hide anything from the department or to evade tax. Prima facie, the extended period of limitation was invoked without any basis - Following decision of CCE, Hyderabad v. Vijay Leasing Company [2010 (12) TMI 782 - CESTAT, BANGALORE] - Stay granted.
-
2013 (12) TMI 1322
Waiver of pre deposit - Commercial Training and Coaching Service - Exemption under Notification No. 24/2004-S.T., dated 10-9-2004 - Held that:- prima facie case for the appellant against the demand raised under the head ‘commercial training and coaching service’. There is substance in the submission of the learned counsel that, prior to 1-5-2011, the date with effect from which the definition of ‘commercial training and coaching centre’ was amended, appellant was not liable to pay service tax on the amounts collected by them from trainees and students attending short term courses - appellant was working as a ‘vocational training institute’ during the material period. They got affiliated with the National Council for Vocational Training in 2009. Therefore, the claim of exemption is also prima facie sustainable. Insofar as the demand under the head ‘consulting engineer service’ is concerned, the submission is that they were rendering advisory assistance to industries on the directions of the State Government and were receiving financial aid from the Government. The services were rendered to both PSU and other industries. No remuneration was collected from those industries - Following decision of Central Power Research Institute v. Commissioner of Central Excise, Bangalore-II [2006 (5) TMI 26 - CESTAT, BANGALORE] - Stay granted.
-
2013 (12) TMI 1321
Carry forward of capital loss. - Whether sale of polymer division and sale of land in Gujarat are separate transactions – Held that:- The polymer unit which is at Vizag was acquired in the year 1978 - The industrial land in Gujarat was acquired in the year 1997 to set up a polymer unit - The assessee has spent some money towards salaries, wages, conveyance, telephone, interest, etc., in connection with the land at Gujarat - That by itself would not make the said land the property of the polymer unit - These properties are separate and distinct - The first appellant authority as well as the Tribunal was justified in holding that it is not one and the same transaction - As they are two independent transactions, the loss sustained in one transaction cannot be set off against the profit made in the other transaction - Decided against Revenue.
Genuineness of commission - Held that:- Following assessee's own case [2006 (9) TMI 147 - KARNATAKA High Court] - The allowance of the commission payment requires interference - Decided in favour of Revenue.
-
2013 (12) TMI 1320
Validity of proceedings u/s 263 - Held that:- Following Commissioner of Income Tax versus Atma Ram Tulsyan [2011 (5) TMI 820 - Allahabad High Court] - At no stage, except doubting the sale transactions, the Department doubted the documents which were produced by the assessee to substantiate his claim with regard to capital gains - The Tribunal on appreciation of evidence has rightly found that the transactions in question are genuine transactions - It is a finding of fact based on appraisal of evidence - In the absence of any contrary material
the assessment order was framed on presumptions and assumptions - Decided against Revenue.
-
2013 (12) TMI 1319
Undisclosed investment in property - Held that:- The Tribunal recorded finding of fact that the document of possession (kabzanama) dated 16.1.1992 in respect of the house contained agreement with the vendor agreeing to pay Rs.2,60,000/- on her behalf to the Kanpur Development Authority for discharging liabilities of the vendor - The purchaser of the property were not party to the 'kabzanama' and no amount was paid by them in cash - Decided against Revenue.
Estimation of cost of construction on reference to valuation officer - Held that:- The Tribunal rightly held that the appellant assessee's assessment was being made in consequence of the search - The assessment was to be limited on the basis of the material discovered or information received in the search - The A.O. could not have referred the matter and relied upon the report of the Valuation Cell to work out the unexplained investment - The A.O. could not have referred the matter and relied upon the report of the Valuation Cell to work out the unexplained investment which could be relied upon under Section 158BB - Decided against Revenue.
-
2013 (12) TMI 1318
Validity of reopening of assessment - Held that:- The AO has wrongly calculated the deduction u/s 80HHC - He did not examine the issues claimed in regard to various expenses despite the fact that the respondent-assessee had clearly disclosed under the head "other income" various items of income, which were mentioned in Explanation (baa) - It was a case of remissness on the part of AO or wrong application of law to the primary facts available on record - The assessee had disclosed the material facts and there was no dispute regarding the nature and quantum of other income - When the material facts were available on record, the AO was required to apply the law correctly on the material facts available for assessment - When all materials were disclosed on the basis of which the assessment under Section 143 (3) was completed, and the revised return was treated as non-est, as it was beyond limitation - It could be taken as information only if the AO could form the opinion that the material facts were not placed on record and that the revised return contains those facts which are sufficient to form an opinion that the income had escaped assessment; or that the assessee had understated the income, or claimed excessive loss, deductions, allowance or relief in the return or on any of such grounds under Explanation-2 - Decided against Revenue.
-
2013 (12) TMI 1317
Writ petition against Notice u/s 194C and 148 - TDS on transportation charges and service charges, and on royalty under Sections 194C and 194J - alternative remedy - Held that:- When a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the notice is to file return and if assessee so desires, to seek reasons for issuing notices - The AO is bound to furnish reasons within a reasonable time - On receipt of reasons, the notice is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order - As the reasons have been disclosed in proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years.
The notices both under Section 194C, where the objections are yet to be decided, and the notices under Section 148 of the Act - All the writ petitions are thus premature - No prejudice has been caused to the petitioners at this stage nor any demands have been created, to interfere and to decide factual issues, calling for interpretation of the conditions of contract and verification of payment - All the writ petitions dismissed on the ground of alternative remedy. - Decided against petitioner.
-
2013 (12) TMI 1316
Penalty u/s 271(1)(c) - Held that:- The bald allegations against the counsel do not lend credence to the story of the assessee - He had not only made claim for false refund but had also received the refund and encashed it - If he was cheated, he should have been made complaint against the counsel - He did not make any complaint or refer the matter to any of the authorities to investigate the offence - The Tribunal has further found that the circumstance of the case shows that the assessee had connived with his Advocate - He not only claimed and filed false return but also received and encashed it - The Tribunal has rightly found that if he had voluntarily returned the amount, he could have proved the benefits - The imposition of penalty does not suffer from any error of law - Decided against assessee.
-
2013 (12) TMI 1315
Taxability of reimbursement of excise duty - Held that:- this amount has not been debited in the P & L A/c, and it was only balance sheet entry which reflected this amount - The Excise Duty was never charged from the Govt. Department to whom the goods were supplied by the appellant - On the removal of goods from the premises of the appellant, Excise duty was kept by the appellant as per the requirement from the concerned Government Department in lieu of Central Excise Duty paid earlier - In the net result, the appellant was not in receipt of any amount from the Government Department to whom goods were sold - Decided against Revenue.
-
2013 (12) TMI 1314
Deduction u/s 80I - Whether industrial alcohol is covered by the word "other alcoholic spirit" under Schedule 11 of the Act - Held that:- As per the doctrine of ejusdem generis which means"of the same kind" - It means words of similar class - Where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the some general class as those enumerated - On perusal of Item 1 of Schedule 11 of the Act, there appears to be no ambiguity - Language is clear and speaks for beer and wine followed by the words 'other alcoholic spirits' - The latter words indicate the same species i.e. of liquor falling within the category of beer and wine fit for human consumption - Legislature to their wisdom points out beer and wine and other identical or alcoholic spirits - Industrial alcohol constitute separate class seems to be undisputed fact - The order passed by tribunal does not suffer from any impropriety or illegality - Decided against Revenue.
-
2013 (12) TMI 1313
Validity of recalling its own order by Tribunal - Held that:- The AO wrongly allowed the credit of TDS to the assessee which was later on rectified by ITAT as per the provisions of Section 154 of the Income Tax Act, 1961 that mistake was rectifiable after giving an opportunity of hearing - The credit of which could not be given u/s 199 because the Sikkim state did not credit the amount deducted to the account of Government of India - As the credit of T.D.S. was wrongly given to the assessee which was subsequently rectified invoking powers under Section 154 of the Act, hence the assessee is not liable to pay interest for the late payment of Income Tax - Decided partly in favour of Revenue.
-
2013 (12) TMI 1312
Whether deduction u/s 16 is allowed on remuneration paid to directors - Held that:- There was no appointment letter or agreement specifically laying down the terms of the so-called appointment of the assessee/appellant as an employee/whole time Director - The only material placed before the Tribunal to prove the relationship of the employer and employee was in the form of Article of Association and resolutions - The Tribunal further observed that in the said resolution, there is no mention of duties and functions assigned to the assessee/appellant - The appellants failed to establish the relationship of an employee and employer - The Directors appointed as Whole Time Director cannot be considered to be the employee of the Company - Tribunal has approved the findings recorded by the Commissioner, Income Tax - Commissioner of Income Tax (Appeals) as well as the Tribunal has recorded a concurrent finding of fact that the appellant has failed to bring on record any document to prove the relationship of Master and Servant between the assessee and the company - Decided in favour of Revenue.
-
2013 (12) TMI 1311
Validity of recalling its own order by Tribunal u/s 254(2) - Held that:- Though the Tribunal had referred to the judgment in M/s. Swadeshi Cotton Mills [1979 (9) TMI 26 - ALLAHABAD High Court], but later on, on the application given by the assessee that it wrongly applied the principle of law in M/s. Swadeshi Cotton Mills to the present case, found that there is difference between hypothecation and pledge of the stock - The hypothecation of the goods could not be treated as same as in the case of pledge - The Tribunal realized its mistake in wrongly applying the principles laid down in M/s. Swadeshi Cotton Mills, and rectified the mistake - In the absence of power of review, where the tribunal finds that there was apparent mistake in its order, which has caused serious prejudice to the assessee, in view of the judgments in Honda Siel Power Products Ltd [2007 (11) TMI 8 - Supreme Court of India], it could have rectified the mistake, which was apparent on record - Decided against Revenue.
-
2013 (12) TMI 1310
Addition on gift - creditworthiness and genuineness - Onus to prove - financial capability of the donor - Word 'creditworthy'.
HELD THAT:- Once genuineness of return is not in dispute then there appears to be no reason to disbelieve that the amount was paid by Dr. Chitranjan Jain. The CIT Appeal after considering the evidence on the ground had noted that Dr. Chitranjan Jain and Nisha Jain are NRI and they have been settled in the United States of America and their income in the assessment year was 1,16,680 $. Once the income of the donor i.e. Dr. Chitranjan Jain and Mrs. Nisha Jain has not been disbelieved by the Assessing Authority then payment of meager amount of Rs. 10,00000/- by Dr. Chitranjan Jain should not be doubted.
Merely because the entire transcript of NRE account was not furnished shall not make out a case to disbelieve the amount paid by Dr. Chitranjan Jain to the assessee. It may be noted that Assessing Authority was concerned only to verify the genuineness of amount paid by Dr. Chitranjan Jain and once the income tax return filed by Dr. Chitrajan Jain was found to be genuine then there was no occasion for the assessing authority to proceed further asking to supply the entire transcript of the account of Dr. Chitrajan Jain who is not residing in India but in the United States of America. Assessing authority was not seized with the case of Dr. Chitranjan Jain to assess his income under the Income Tax Act. He was only to verify the genuineness of transaction and creditworthiness.
Thus, a finding recorded by the CIT Appeal and Tribunal does not seem to suffer from any impropriety or illegality. The appeal is devoid of merit. Dismissed.
Question answered in favour of assessee against the revenue.
No order as to costs.
-
2013 (12) TMI 1309
Unexplained cash credit - Held that:- The Assessing Officer did not record any finding regarding the explanation offered by the assessee - AO did not record that the explanation was not found to be satisfactory - Only additions were made without considering the explanation, which were found to be sufficient by the appellate authority - Decided against Revenue.
-
2013 (12) TMI 1308
Whether non-issuance of notice u/s 143(2) affect the validity of block assessment order - Held that:- In the present case the admitted position is that the notice under Section 143 (2) of the Act was not issued, and thus question of service, or improper service is not relevant. The question nos.(i) to (v), framed by the Court are thus decided in favour of the assessee and against the department. - Decided in favor of assessee.
-
2013 (12) TMI 1307
Validity of notice u/s 148 - Held that:- The assessing authority have relevant material or that the reasons given by him under Section 148 (2) of the Act are not required to be considered by us for adjudication at this stage - The petitioner has been served with notice under Section 148 - It was open to him to file objections - If the matter has not been decided by the assessing authority, it is still open to him to file objections to the issuance of notice, which the assessing authority is bound to consider and decide by passing speaking order.
The petitioner was to be assessed by the Asstt. Commissioner of Income Tax, Range-4, Agra. The matter was transferred, in accordance with the assignments made by the Chief Commissioner of Income Tax - Partly allowed in favour of assessee.
-
2013 (12) TMI 1306
Compulsory levy of interest under section 234B - Held that:- Following CIT-II Kanpur versus M/s Deep Awadh Hotels P Ltd., Kanpur [2012 (5) TMI 320 - ALLAHABAD HIGH COURT] - In the absence of any mention of charging of interest in the assessment order, interest cannot be charged by issuing a notice of demand - If the assessment order contained the imposition of interest, only then, a notice of demand of interest could be issued under section 156 of the Act - The expression "shall" used in the sections 234A, 234B, 234C cannot be construed as "may" - Prior to the Finance Act 1987, the corresponding sections pertaining to imposition of interest used the expression "may". The change thus brought about by the Finance Act 1987 is indicative of the intention of the Legislature to make the collection of interest mandatory - The said expression "shall" has been used deliberately - Decided against Revenue.
............
|
9911796707
