|
Advanced Search Options
Case Laws
Showing 141 to 160 of 1244 Records
-
2014 (8) TMI 1104 - CESTAT MUMBAI
Manufacture - whether the goods manufactured by assessee, not obtained by the process mentioned in Chapter Note 1 to Chapter 54 will be excisable? - Held that: - the final product manufactured by the appellant is not obtained by the process mentioned in Chapter Note 1 to Chapter 54 of CCETA, 1985. Therefore, there is no hesitation to follow the decision of GPL Polyfils Ltd. [2005 (1) TMI 375 - CESTAT, NEW DELHI] to hold that the finished goods manufactured by the appellant does not fall under Chapter 54 or 55 of the CETA, 1985 - demand for the period 1-11-2009 to 28-6-2010 not sustainable.
As per the amendment in the FA, 2014, the manufactured product of the appellant which has been obtained from the input plastic waste has been exempted from 29-6-2010 to 16-3-2012. Therefore, the demands for the period 29-6-2010 to 31-3-2012 are also not sustainable.
Appeal allowed - decided in favor of assessee.
-
2014 (8) TMI 1103 - SC ORDER
Condonation of delay - Area based exemption - Exemption under Notification No.56/2002 - Whether an assessee availing of exemption under Notification No. 56/2002-C.E. can pay education cess and S & H Cess through BED Credit - the decision in the case of COMMISSIONER OF C. EX., JAMMU Versus TAWI CHEMICAL INDUSTRIES (UNIT II) [2013 (9) TMI 614 - CESTAT NEW DELHI] contested, where it was held that A unit availing of exemption under Notification No. 56/2002-C.E. cannot utilize BED credit for payment of education cess and S & H cess which were not exempted under the notification - Held that: - delay condoned - appeal allowed - decided in favor of appellant.
-
2014 (8) TMI 1102 - CESTAT BANGALORE
Taxability - commission - agreement with service providers for providing services during the guarantee period - service providers were sharing a percentage of amounts received by them with the appellant - Held that: - by naming the persons for providing aftersales service and facilitating them to do business with their customers, it can be said that appellants have promoted the business of aftersales service providers. Therefore, prima facie, we find that appellants do not have a strong case on merits. Therefore, the impugned order requiring them to deposit 75% of the duty payable was reasonable - appeal dismissed - decided against appellant.
-
2014 (8) TMI 1101 - ITAT MUMBAI
Disallowance of interest expenditure on borrowings claimed as deduction u/s 57(iii) against the interest income on fixed deposits with banks - Held that:- We find that there is a direct nexus of funds of the borrowed capital with the Fixed Deposits in question partly. The interest paid on a loan taken to avoid premature encashment of the Fixed Deposit is deductible against the interest earned on the Fixed Deposit as held in the case of Raj Kumari Agarwal vs. DCIT vide [2014 (7) TMI 867 - ITAT AGRA ]. Having decided on the issue of nexus of funds and the allowability of the interest expenses against the interest income, the remaining issue is about the interest rate of 7.81% applied by the AO in determining the interest expenses. In our opinion, this requires revisit of the issue to the file of the AO. Assessee must demonstrate before the AO the exact account of interest expenses relatable to the interest income in question. If necessary, AO shall admit the letters from the bank, if any, in the interest of justice. It is the submission of the Ld Counsel that the purpose of funds does not determine the allowability of the claim made u/s 57(iii) of the Act. The decisions relied upon by the Ld Counsel in this regard should be examined by the AO in the remand proceedings. AO shall grant a reasonable opportunity of being heard to the assessee. Accordingly, grounds raised by the assessee are allowed for statistical purposes.
Interest earned on advances paid during pre-commencement period - Held that:- In the case of Tuticorin Alkali Chemicals and Fertilizers Ltd vs. CIT [1997 (7) TMI 4 - SUPREME Court] which is relevant for the proposition that interest earned on surplus funds would need to be treated ‘income from other sources’ and accordingly interest earned on advances paid during pre-commencement period found to be linked to setting up of the plant of the assessee would need to be treated as capital receipt”. Considering the settled position of the issue at the level of the Apex Court, we are of the opinion that the decision taken by the CIT (A) while allowing the assessee’s appeal is fair and reasonable and it does not call for any interference. Accordingly, grounds raised by the Revenue are dismissed.
-
2014 (8) TMI 1100 - ITAT MUMBAI
Condonation of delay - sufficient cause for delay - Held that:- We notice that the assessee’s explanation for the delay has not been substantiated by his own action, i.e., there was a delay of about 793 days from the date of disposal of rectification petition filed by Ld CIT(A). Though the assessee claims that he has been wrongly advised by his chartered accountant, no material was placed before us to substantiate the said claim. The assessee has also not offered any explanation for the delay of 793 days after the disposal of rectification application by Ld CIT(A). We have already noticed that the assessee has to furnish the reasons for the delay for not filing the application on the last day of the limitation and must explain the delay made thereafter day-by-day till the actual date of filing of the application. In the instant case, the assessee, in our view, has failed to show sufficient cause till the date of actual date of filing of the application. Under these circumstances, we are of the view that the petition filed by the assessee is liable to be rejected and accordingly we refuse to condone the delay.
-
2014 (8) TMI 1099 - BOMBAY HIGH COURT
Addition on account of adjustment to Arm's length price - ITAT deleted the addition - revenue has raised a question and issue about the Commissioner (First Appellate Authority) and the Tribunal not following the principles of natural justice - Held that:- In the present case not only the record to the Transfer Pricing Officer was submitted and he was furnished the evidence by the assessee, but the assessee was present to give any clarification. The assessee's representative remained present and his name is also appearing in para 2 of the order passed by the Transfer Pricing Officer.
Once the computation of Arm's Length Price was discussed, after evidence in that behalf was furnished by the assessee, then, it would be the bounden duty of the Transfer Pricing Officer to pass an order in terms of sub-section (3) of section 92CA of the Income Tax Act. He having failed to do so, the Commissioner was fully justified in undertaking the exercise in terms of the statutory provisions and completing it. He has recorded a finding of fact that grounds 2 to 10 relates to transfer price adjustment. The order passed by the assessing officer under section 143(3) of the Act reveals that there is a specific material on record. The assessee is a captive service provider rendering back office support service to its affiliate enterprises. The activities undertaken by the assessee are essentially IT enabled services such as data entry, transcription and audit of shipping bills such as bill of lading. The detailed reference is made from para 4.2. onwards by the Commissioner to all the material that has been produced and failure on the part of Transfer Pricing Officer to perform his duties. The Tribunal also has referred to this material and rendered a finding of fact that if initial burden on the assessee has been discharged in this case by producing evidence, then, it is for the Transfer Pricing Officer or the assessing officer to consider it and conclude that the instances are not comparable. Any comparable cases as brought by the assessee could have been scrutinized in this backdrop and on this touchstone.
The findings of the First Appellate Authority were under challenge and they were being scrutinized by the Tribunal, then it was open for the Tribunal to consider the complaint of the revenue with regard to its findings. The Tribunal performed its duty in law when it proceeded to find out whether the Commissioner of Income Tax's (Appeals) [the First Appellate Authority] order was perverse or vitiated by any error of law apparent on the face of record. It also considered the complaint as to whether the Commissioner exercised his discretion or his powers as the First Appellate Authority arbitrarily and capriciously. Having found no basis in all these complaints and dismissing the appeals of the revenue, the Tribunal did not commit any error. To our mind, the order of the Tribunal is not vitiated by any serious legal infirmity nor is it perverse, rather it is unfortunate that a detailed and properly reasoned order of the First Appellate Authority and the Second Appellate Authority is being challenged and that too on such grounds by the revenue. We would highly appreciate the parties not discrediting the Tribunal or the First Appellate Authority in this manner. The complaints about unfair treatment or breach of principles of natural justice ought to be backed and supported by some material which would demonstrate serious prejudice and loss. A technical objection of nature will not carry the case of either parties any further.
-
2014 (8) TMI 1098 - DELHI HIGH COURT
Maintainability of appeal - Held that: - as the question involved relates to levy or chargeability of service tax, the present appeal is not maintainable before the High Court u/s 35G of the CEA, 1944 read with Section 83 of FA, 1994 - appeal dismissed.
-
2014 (8) TMI 1097 - CESTAT NEW DELHI
Commercial Training or Coaching Service - Imparting training to the construction workers for upgradation of their skills - whether the activity is exempt from Service Tax under N/N. 23/2001-S.T., dated 29-4-2001 and also under N/N. 24/2004-S.T., dated 10-9-2004? - Held that: - The exclusion clause in the definition of commercial training or coaching centre in Section 65(27) was deleted by Finance Act, 2011 w.e.f. 8-4-2011. Thus, during the period of dispute, the term “commercial training or coaching centre” did not include a training centre or any institute or establishment which issued any certificate or diploma or degree or any educational qualification recognized by law for the time being in force - Since, the impugned order passed by the Commissioner mentions that the skill upgradation programmes being conducted by the appellant were recognized by IGNOU for certification purposes, the appellant company would not be covered by the definition of “commercial training or coaching centre”, as given in Section 65(27) - training organized by them would not attract Service Tax under Section 65(105)(zzc).
These training programmes enable the trainees to seek employment or undertake self-employment directly after such training and, hence, the appellant for the purpose of this notification have to be treated as “vocational training institute” and they would be covered by the exemption N/N. 24/2004-S.T. - service tax demand not sustainable.
As regards the Service Tax demand of ₹ 6,09,621/-, this Service Tax demand is on the amount received by the appellant from CIDC for development of cost index and upgradation of cost data base and costing software of ONGC - it would not be correct to charge Service Tax once again from the appellant on the amount received by them when on the same amount ONGC have paid the Service Tax - demand set aside.
As regards the Service Tax demand of ₹ 41,668/- on alleged renting of immovable property by the appellant company - as it is not disputed that the renting of the property was for commercial purposes, demand confirmed.
Appeal disposed off - decided partly in favor of appellant.
-
2014 (8) TMI 1096 - CESTAT MUMBAI
Conversion of free shipping bills into shipping bills under ‘VKGUY scheme’ - benefit under VKGUY scheme - principles of natural justice - Held that: - ‘endorsement’ is sought on the free shipping bill based on the basis of documentary evidence, which was in existence, at the time the goods were cleared or exported. Thus, the Commissioner is in error in refusing to allow amendment and/or endorsement on the shipping bills in question, the refusal being against the mandate of Section 149 of the Act - appeal allowed - decided in favor of appellant.
-
2014 (8) TMI 1095 - CALCUTTA HIGH COURT
Principles of natural justice - personal hearing was given in relation to a show cause notice dated 16th November, 2010. That show cause notice was different from the subject matter of the application being considered by the Commissioner, which was for remission of excise duty - Held that: - the purpose of the rules of natural justice is to afford an opportunity to a party to present his case. A case may be presented by written or oral representation or by both together with examination of witnesses etc. The extent of this field has never been closed by the Court and it varies from case to case and from circumstance to circumstance. I am satisfied that the writ petitioners were able to present their case before the Commissioner.
If the writ petitioners are aggrieved by the order of the Commissioner, in my opinion, the proper remedy before them is before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) under Section 35B, as it is the alternative remedy and the Writ Court, normally, is not a fact finding Court.
Application disposed off.
-
2014 (8) TMI 1094 - DELHI HIGH COURT
Compounding of offences - Section 132 and Section 135(1)(a) of the Customs Act - The ACMM was of the view that although a specific prayer had been made by the Department before the Apex Court seeking a direction for reopening of the case but the same had not been permitted and the ACMM not being in a position to recall its order, the said application was dismissed - Held that: - a second complaint on the same facts is also not barred where the first complaint has been dismissed without assigning any reason and in such an eventuality, a second complaint can be proceeded with if there is sufficient ground made out in the said complaint.
Since the whole foundation of the order on the strength of which the order dated 15-1-2007 was passed has been set aside by the Supreme Court i.e. (order of the Compounding Authority dated 25-5-2006 and order of the High Court dated 17-10-2006) by its subsequent order dated 25-1-2008, the order dated 15-1-2007 cannot be sustained. The order dated 20-2-2010 is also wholly illegal.
Petition disposed off.
-
2014 (8) TMI 1093 - ITAT MUMBAI
Penalty u/s.271(1)(c) - dividend striping u/s. 94(7) - assessee is a share broker and a share trader - concealment of income v/s bona fide mistake - Held that:- CIT(A) after going through the explanation submitted by the assessee has observed that it was not a case of concealment of income rather of bona fide mistake. The A.O. had not detected any concealment of income but had sought the details of disallowance u/s. 94(7) in ordinary course of assessment proceedings. The ld. CIT(A), therefore held that it was not a fit case for levy of penalty.
AR submitted that the assessee has returned a total income of ₹ 12.25 crores. He, further, submitted that the disallowance prescribed u/s.94(7) is a statutory disallowance only. Accordingly, he submitted that there is no concealment of particulars of income on furnishing of inaccurate particulars of income. We find force in the submissions of the ld. AR.
There is no infirmity in the order of the ld. CIT(A). - Decided against revenue
-
2014 (8) TMI 1092 - ITAT MUMBAI
Non granting relief of liability towards interest expenditure claimed by the assessee - Held that:- We find that identical issue has been set-aside and restored to the files of the CIT(A) for afresh adjudication of the issue after granting a reasonable opportunity of being heard to the assessee. This view has been taken by the Tribunal in the case of M/s Eminent Holdings Pvt. Ltd. [2014 (7) TMI 2 - ITAT MUMBAI] wherein the Tribunal has followed the decision of the Co-ordinate Bench in the case of Hitesh S. Mehta [2013 (10) TMI 1065- ITAT MUMBAI]. Respectfully following the aforesaid order of the Tribunal, we are of the considered opinion that the issue raised in ground no.4 should set-aside to the files of the CIT(A) for afresh adjudication of the issue after granting a reasonable opportunity of being heard to the issue. Ground no.4 is allowed for statistical purposes.
Calculation of book profit u/s 115JB - Held that:- Since we have set-aside ground no. 4, this grievance is consequential to the outcome of the decision taken in respect of ground no.4. We accordingly set-aside this grievance to the files of the CIT(A) to decide afresh as per the provisions of the law after giving findings on the claim of interest as per ground no. 4 of this appeal. Ground no. 5 is allowed for statistical purposes.
Chargeability of interest u/s 234A, 234B and 234C - Held that:- Levy of interest is mandatory though consequential on the facts of the case, we accordingly set-aside this issue to the files of the CIT(A) to levy interest as per the provisions of the law.
-
2014 (8) TMI 1091 - DELHI HIGH COURT
Invoking provisions of Section 40A(2)(b)(ii) - payment made to Renu Munjal, Director the assessee company - AO had invoked Section 36(1)(ii) of the Act on the ground that Renu Munjal was also a shareholder and therefore, the commission payment should be disallowed as dividend could have been paid - Held that:- Reasoning of the Assessing Officer has been rightly rejected by the Tribunal. It is also noticeable that tax on dividend payment payable by the respondent company was much less than the tax payable by the individual assessee on income under the head ‘Salary’. In case, Renu Munjal had received dividend, she would not have paid any tax on dividend. However, she has paid tax on the commission earned. In these circumstances, we are not inclined to interfere with the impugned order.
-
2014 (8) TMI 1090 - ITAT MUMBAI
Disallowance u/s 14A - administrative expenses which has been made after taking 0.5% of the average investment value, as envisaged in rule 8D - Held that:- No effort was made or any time was consumed for making any analysis of the investment which has resulted into exempt income of ₹ 26,310, by way of dividend. The assessee has already disallowed the sum of ₹ 1,200 on account of demat charges which is sufficient and directly attributable to the exempt income. Under these facts and circumstances, we are of the opinion that simply relying on rule 8D, for the purpose of disallowance, cannot be held to be applicable, because the Assessing Officer having regard to the accounts of the assessee as well as the nature of expenses incurred which can be said to be attributable for the earning of exempt income, has not pointed out what are the expenses which could be said to be have been incurred or attributable on the administrative expenses.
Only when the Assessing Officer is not satisfied with the correctness of the claim of the assessee, he can proceed to apply rule 8D. In this case, such a requirement has not been fulfilled by the Assessing Officer. Accordingly, we do not find any merit in the disallowance made by the Assessing Officer under rule 8D and accordingly, the disallowance made by the Assessing Officer under rule 8D and confirmed by the learned Commissioner (Appeals) stands deleted. - Decided in favour of assessee
-
2014 (8) TMI 1089 - CESTAT MUMBAI
Permission to take the vessel out of India for dry docking at Colombo for 60 days - Held that: - the issue of classification is pending in the Tribunal - the differential duty amount of ₹ 6.52 crores already paid and the applicant had also executed a bank guarantee for ₹ 8.20 crores which is still alive, we direct the applicant to execute a bank guarantee of another ₹ 3.00 crores in favour of the Commissioner of Customs (Import), New Customs House, Mumbai, to safe guard the interest of revenue. On such execution of bank guarantee of ₹ 3.00 crores, the learned Commissioner of Customs (Import), Mumbai shall allow the applicant to take the vessel outside India for dry docking for 60 days from the date of export - permission granted subject to condition.
-
2014 (8) TMI 1088 - ITAT DELHI
Validity of reopening of assessment - Held that:- AO was not justified in initiating the instant reassessment proceedings based on the information received from the Director of Income-tax (Inv.), New Delhi. No individual application of mind by A0 - Decided in favour of assessee
-
2014 (8) TMI 1087 - ITAT PANAJI
Validity of the order passed u/s 263 - capital gain computation - income was divided between both the assessees as per the provisions of Sec. 5A of the Income Tax Act - Held that:- We have gone through the provisions of section 2(47). This section defines the term transfer for the purpose of charging the capital gain. Section 45 mandates that the capital gain is chargeable to tax in the year in which the capital asset is transferred. The assessing officer in our opinion was bound to inquire into the transaction which the assessee has entered into with M/s Emgee Housing Pvt Ltd on the basis of the seized material A/EB/21 dated 25.2.10.The AO, in this case, we noted, except asking for the note on the transaction with details, assessee entered into with M/s Emgee Housing P Ltd did not examine whether the provision of section 2(47) are applicable on these transaction or not during the year. Not only this, this an disputed fact that the assessee did not file any note or details on the transactions entered into by the assessee with M/s Emgee Housing P Ltd, even though the said information was duly asked for by the assessing officer, yet the assessing officer passed the assessment ignoring whether any income arises during the year. It is not a case where the AO has allowed the deduction by taking one of the possible views. It is also not a case of inadequate inquiry but a case where no inquiry has been conducted by the AO on the applicability of section 2(47) of the Income Tax Act for the gain arising on the transaction which the assessee had with M/s Emgee Housing P Ltd.
Lack of enquiry will tantamount to be that the order is erroneous and prejudicial to the interest of Revenue. Our aforesaid view is duly supported by the decision of Full Bench of Guwahati High Court in the case of CIT vs Jawahar Bhattacharjee, (2012 (4) TMI 222 - GAUHATI HIGH COURT ) in which Hon‟ble High Court took the view “ Not holding such inquiry as a normal and not applying the mind to the relevant material in making an assessment would be an erroneous assessment warranting exercise of revisional jurisdiction.” The CIT has already restored this issue to the file of the Assessing Officer and the Assessing Officer, after giving proper opportunity to the assessee has to re-decide the issue whether any capital gain arise during the year. We therefore, cannot entertain the ground relating to the merit of the issue as CIT(A) has not decided the issue on merit.
We, therefore, do not find any illegality or infirmity in the order of CIT invoking the jurisdiction u/s 263 of the Income Tax Act in all the cases. - Decided against assessee
-
2014 (8) TMI 1086 - ITAT CHENNAI
Deduction under section 80P(2)(a)(i) - whether assessee being a regional rural bank established under RRB Act, 1976, was to be treated as a co-operative bank or could be considered as a co-operative society? - Held that:- This issue has been decided in favour of the assessee in its own case for the earlier assessment years by the co-ordinate Bench of this Tribunal [2012 (8) TMI 1059 - ITAT CHENNAI] held that there is much strength in the argument of the assessee that it is to be treated as cooperative society in view of the provisions contained in RRB Act, 1976. If so, it would be eligible under section 80P(2)(a)(i) of the Act - Decided in favour of assessee
-
2014 (8) TMI 1085 - ITAT MUMBAI
Disallowance of expenditure on repairs and maintenance of building, plant and machinery - Held that:- As observed that the Tribunal in the assessee’s own case for the A.Y. 2008-09, has decided a similar expenditure on account of renovation of godown floor as revenue in nature. Following the said order, we are of the considered opinion that the expenditure on account of replacement and maintenance on building has to be treated as revenue expenditure and the assessee is entitled for the claim of deduction.
As regards the other expenditure claimed by the assessee on account of repairs and maintenance to plant and machinery, after considering the nature of the expenditure incurred by the assessee as aforementioned in the table, we are of the considered view that the said expenditure do not result in any enduring benefit to the assessee as the expenses are periodically necessary for running the business of the asseseee. Therefore, the authorities below are not justified in treating the same to be capital in nature. - Decided in favour of assessee
............
|
