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Showing 161 to 180 of 16027 Records
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2014 (12) TMI 1277
Assessment of income in the hands of the director of the company - Short Term Capital Gain - sale of land - whether land was in the name of the Director, which was subsequently transferred in the name of the company i.e. M/s GFFR Pvt. Ltd.? - Held that:- The agricultural land was purchased on behalf of the company in the name of the director, which has been reflected in the balance sheet of the company M/s GFFR Pvt. Ltd. as on 31/3/2008. The property was also sold through director on behalf of the company and short term capital gain has been shown in the return of the company. Therefore, there is no logic to assess the same in the income in the hands of the director of the company. Accordingly, we confirm the order of the learned CIT(A). - Decided against revenue
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2014 (12) TMI 1276
Transfer Pricing Adjustment - Selection of comparable - Held that:- As the assessee is engaged in legal process outsourcing which is a high end service akin to KPO, thus companies with dissimilar as that of assessee need to be de-selected as good comparable.
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2014 (12) TMI 1275
Disallowance u/s 10A - Assessee company had already commenced manufacturing even before approval was granted by software technology park of India (STPI) - Held that:- We find that the appellant authority has accepted the contention of the assessee that after receipt of the approval of STPI from 23rd September 2008, the assessee is entitled to the exemption u/s 10A of the Act. However he denied the claim since he was handicapped from determining the amount of exemption post 23.09.2008 because the assessee could not place the necessary details apportioning the profits before him. We further find that in the subsequent Assessment Year, the AO himself has allowed the assessee exemption u/s10A by order dated 17.02.2014 for Assessment Year 2011-12. Therefore we find that the limited issue that is before us is to determine the profits derived by the assessee from the date of approval from STPI i.e. post 23rd September 2008. For that we are inclined to remit the issue back to the file of AO to determine the profits eligible for exemption to the assessee from 23rd September 2008. For that, the assessee shall produce all the relevant documents necessary for the AO to determine the profits derived by the assessee from 23rd September 2008 and the AO shall pass fresh order on this issue.
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2014 (12) TMI 1274
Reopening of assessment - as per assessee already income tax return is filed for the Assessment Year 2006- 07 which is well within time and the same has been accepted by the respondent-Authority - Held that:- As per Annexure-D there is an assessment order passed, since the petitioner did not file another return as sought for by the respondent-Authority under Section 148 of the Act. It is submitted by the learned counsel for the respondent-Authority that the reassessment made by the Revenue could be challenged before the Appellate Authority. Hence, it is too premature for the petitioner to approach this Court.
The reasons to be assigned for the purpose of re-filing which is sought by the petitioner herein, could be considered after filing of the return once again as per the notice issued under Section 148 of the Act. Therefore, it is for the petitioner to approach the Appellate Authority within two months as per the proviso under Sec.146(a) of the Act.
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2014 (12) TMI 1273
Payment of admitted tax - Held that:- It is not in dispute that the admitted tax has been paid. If the assessee has paid the admitted tax, the order passed by the tribunal cannot be found fault with and therefore, we do not see any merit in the appeal. Accordingly, appeal is dismissed.
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2014 (12) TMI 1272
Disallowance of employee cost, office and administrative expenses and selling and administrative expenses - method of accounting followed - Held that:- The percentage completion method of accounting has been regularly followed by the assessee. In the succeeding assessment year 2010-11, the AO has accepted the deductibility of the identical nature of expenses in the assessment order passed u/s 143(3) of the I.T. Act. We agree with contention of the Ld. Counsel for the assessee that the employee cost refers to salary paid to the employees who are looking after the administration of office and not directly related to construction of the project but is part of the administrative expenses. Similarly, the office and administrative expenses and selling and marketing expenses are to be charged to the profit & loss account in the very same year in which they are incurred and have to be excluded from the cost of inventories for working out closing WIP as per the guidelines issued by the ICAI, Accounting Standard AS-2 and AS-7.
The assessee has regularly and consistently been following the said method of accounting as per the provisions of section 145A of the I.T. Act. The AO has not assigned any cogent reason as to why the method, which has been consistently followed by assessee and accepted by the department in past as well in succeeding assessment years and which is in accordance with the recognized principles of accounting by ICAI, is being rejected. In our view, the action of the Revenue Authorities in rejecting the assessee's accounting method, without assigning any reason is not justified. The accounting method followed by the assessee and thereby excluding the indirect expenses such as office employees’ salary, administrative expenses and marketing & selling expenses is as per the recognized principles of accountings and as such the claim of the assessee deserves to be allowed. We hold accordingly. The additions made by the lower authorities on this issue are hereby ordered to be deleted. - Decided in favour of assessee
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2014 (12) TMI 1271
Claim of pensionary benefits to the deceased-employee - whether letter dated 8th October, 2007 sent by late Shri Mauzi Ram, husband of the appellant, was in essence a letter seeking pre-mature retirement on medical grounds or a letter of resignation from the service of the respondent-bank ? - Held that:- For a waiver of a legally enforceable right earned by an employee, it is necessary that the same is clear and unequivocal, conscious and with full knowledge of the consequences. No such intention can be gathered from the facts and circumstances of the instant case. The employee's subsequent letters and communication which are placed on record cannot be said to be an afterthought. Being proximate in point of time letter dated 8th October, 2007 must be treated to be a part of the subsequent communication making the employee's intentions clear, at least for purposes of determining the true intention underlying the act of the employee.
The beneficial provisions of a Pension Scheme or Pension Regulations have been interpreted rather liberally so as to promote the object underlying the same rather than denying benefits due to beneficiaries under such provisions. In cases where an employee has the requisite years of qualifying service for grant of pension, and where he could under the service conditions applicable seek voluntary retirement, the benefit of pension has been allowed by treating the purported resignation to be a request for voluntary retirement. We see no compelling reasons for doing so even in the present case, which in our opinion is in essence a case of the deceased employee seeking voluntary retirement rather than resigning.
In the result this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is, hereby, set aside and the writ petition filed by the deceased-employee allowed with a direction to the respondent-bank to treat letter dated 8th October, 2007 as a notice for voluntary retirement of the employee and for curtailment for three months notice period. Depending upon the view the competent authority may take on the question of curtailment of the notice period and/or deduction of three months salary from out of the retiral benefits of the deceased-employee, the deceased-employee's claim for payment of retiral benefits due under the relevant rules including pension shall be processed and released in favour of the appellant-widow as expeditiously as possible but not later than six months from the date a copy of this order is served upon the bank. In the event of the bank's failure to comply with the directions within six months as indicated above, the amount payable to the employee and after his death his widow, shall start earning interest @ 10% p.a. from the date the period of six months expires.
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2014 (12) TMI 1270
Betel nuts - seizure - whether the goods are indigenous or imported? - whether the goods can be released when the matter has not attained finality? - Held that: - After seizure u/s 110 of the said Act, the goods may be released to the owner, pending adjudication, upon taking a bond from him or her in a proper form - It would be better for the respondent authorities to take security from the writ petitioner in accordance with the regulations, read with the said circular - Department will be free to determine the security to be furnished by the petitioner to cover duty redemption fine etc., but the same should not exceed 25% of the value of the goods - application disposed off - decided partly in favor of applicant.
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2014 (12) TMI 1269
Waiver of pre-deposit - Cenvat credit - ‘input services’ ‘inputs’ or capital goods - Penalty - The undisputed facts are that the appellant manufacture panmasala in retail pouches of different MRPs in respect of which duty liability is being discharged under Section 3A of the Central Excise Act, 1944 read with PMPM Rules, 2008 - Held that: - From a perusal of this Rule 15 of PMPM Rules, 2008, it is clear that it is a non obstante provision prohibiting taking of Cenvat credit of any Central Excise Duty paid on any input and capital goods or service tax paid on any input service used for manufacture of notified goods and also requiring that the duty on notified goods shall be paid in cash - The prohibition in Rule 15 of PMPM Rules is not in respect of ‘‘input service’’ as defined in Rule 2(l) of Cenvat Credit Rules, 2004, but is in respect of input services used for manufacture of the notified goods.
Moreover, prima facie, there appears to be merit in the appellant’s plea that such retail pouches and 100 gm tins of pan masala are used by different section of consumers and advertisement for 100 gm. tins cannot be treated as having promoted the sale of retail pan masala pouches - Stay application allowed - decided in favor of the assessee.
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2014 (12) TMI 1268
Pre-deposit - Section 129C of the Customs Act, 1962 - Held that: - since there is a default in pre-deposit as directed by the order dated 8.9.14, the appeal is dismissed for failure of pre-deposit in terms of Section 129C of the Customs Act, 1962.
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2014 (12) TMI 1267
Maintainability of appeal - appeals have been filed without obtaining proper authorization u/s 35B(2) of the Central Excise Act, 1944 - Held that: - On going through the authorization I find that the Committee of Commissioners consist of two Commissioners and this authorization has been signed by only one Commissioner. Therefore, the authorization signed by the Commissioners is defective - appeals dismissed as defective and non-maintainable.
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2014 (12) TMI 1266
Rejection of books of account - taking into consideration the report of the auditor’s obtained u/s 142(2A) and after giving valid reasons for doing so - NP estimation - Held that:- As it is noted by special auditor that the assessee has denied to have carried out physical verification of WIP as on 31/03/2004 and hence, it can be reliably confirmed that the WIP is an approximation. It is also observed by the special auditor that they are not in a position to quantify the deviation to the revenue and balance sheet. In our considered opinion, correct figure of closing stock is very important for determining the income of the assessee and since the closing stock has been not properly ascertained by the assessee by physical verification etc., the rejection of book result cannot be faulted.
It may be that the reasons for which the assessee could not maintain proper books is that the assessee was working under abnormal business conditions but then also, such improper books cannot be relied upon to assess the income of the assessee and for such a situation, the only course open is to reject the book result and estimate the income of the assessee. The Assessing Officer has adopted the net profit rate of 2.5% for estimating the income of the assessee at ₹ 7,50,112/-. AO also allowed deduction of ₹ 2.28 lac being admissible salary to partners. Adopting net profit rate of 2.28% is not excessive and it could not be shown by the assessee that the rate adopted by the Assessing Officer is excessive and unreasonable. Under these facts, we hold that the order of CIT(A) is not sustainable in the facts of the present case and therefore, we reverse the order of CIT(A) and restore that of the Assessing Officer. - Decided in favour of revenue.
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2014 (12) TMI 1265
Denial of deduction u/s. 80P by invoking the provisions of sec. 80A(5) - Assessee filed return of income beyond the time limit prescribed u/s. 139 and the time given in notice u/s. 142(1)- Held that:- After considering the provisions of section 80A(5) and the judgment of the Apex Court in Prakash Nath Khanna & Another vs CIT (2004 (2) TMI 3 - SUPREME Court ) found that the assessee is not eligible for exemption u/s 80P unless return is filed either u/s 139(1) or 139(4) or within the time provided by the assessee in the notice issued u/s 142(1) of the Act or u/s 148 of the Act and a claim was made for deduction u/s 80P of the Act. See case of Ramanthali Service Co-operative Bank Ltd. vs. ITO [2014 (11) TMI 1108 - ITAT COCHIN] - Decided against assessee
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2014 (12) TMI 1264
Reopening of assessment - Held that:- Allegation levelled against the writ petitioner in the reasons for another assessment year is that they have allegedly taken service from non-existing service providers. In that process they have transferred their unaccounted money.
More particulars are required. If at all there is a network through which the assessee is operating, the main circuits have to be identified. In those circumstances, the communications dated 7th March, 2014 being ‘P-8’ collectively, are set aside. The respondents are directed to issue fresh communications containing details to substantiate the allegations of the department by 27th February, 2015. If they are not issued, the Sections 147, 148 proceedings in respect of the above assessment years will automatically stand dropped.
If the fresh reasons are supplied, the writ petitioner will have the right to reply to them within four weeks after communication of the reasons. In that event, the Sections 147, 148 proceedings in respect of the above assessment years will remain suspended till the reply is received and processed by the Income Tax department, by a decision. Affidavits were not invited. Hence, the allegations contained in the application are deemed not to be admitted.
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2014 (12) TMI 1263
Issues:
Claim of depreciation by a trust for Assessment Year 2010-11.
Analysis:
The appeal was filed by the Revenue against the order of the Commissioner of Income Tax (Appeals) regarding the claim of depreciation by the assessee trust for the Assessment Year 2010-11. The Assessing Officer disallowed the claim of depreciation, stating that it amounts to double deduction as the trust had already claimed capital expenditure as a deduction. The Revenue argued that depreciation is not a cash expenditure and remains with the trust, thus not utilized for charitable purposes. The CIT(Appeals) allowed the claim of depreciation based on precedents set by the Tribunal in similar cases. The Revenue contended that depreciation should not be considered as an application/expenditure in the case of trusts, citing a Supreme Court decision. Despite notice, no one appeared on behalf of the assessee during the proceedings.
The Tribunal noted that the issue of depreciation for trusts had been previously adjudicated in favor of the assessee by a co-ordinate bench in various cases. The Tribunal relied on judgments from different High Courts and previous Tribunal decisions to conclude that in the case of trusts registered under section 12A, the claim of depreciation does not amount to double deduction. The High Court held that since the income of the assessee is exempt, claiming depreciation does not lead to double deduction as argued by the Revenue. The Tribunal found no infirmity in the order of the CIT(Appeals) based on the settled legal position and precedents.
The Revenue relied on a Supreme Court decision regarding double deduction in a different context, but the Tribunal distinguished the facts of that case from the present situation. Various High Courts have consistently ruled that the claim of depreciation by trusts does not constitute double deduction. The Tribunal dismissed the Revenue's appeal based on these reasons, upholding the order of the CIT(Appeals) in favor of the assessee trust.
This detailed analysis of the judgment highlights the key legal arguments, precedents, and decisions that led to the dismissal of the Revenue's appeal regarding the claim of depreciation by the trust for the Assessment Year 2010-11.
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2014 (12) TMI 1262
Addition u/s 80P(2)(a)(i) - Revenue submits that the lower appellate authority ought not to have granted the impugned deduction qua jewel loans facility availed by the aforesaid associate members - Held that:- We find from the assessee’s regulations that these jewel loans come in the array of its byelaws. The Deputy Registrar of Co-operative Societies, Udhagamandalam has also approved the same on 11.7.1994.
Therefore, we observe that this activity is as per its byelaws. The Revenue’s next argument that it ought not to have allowed this facilities to the associate members not having voting and other rights for section 80P deduction stands rejected by a co-ordinate bench of the 'tribunal' in case of M/s SL(SPL) 151, Karkudalpatty Primary Agricultural Co-operative Credit Society Ltd [2014 (5) TMI 556 - ITAT CHENNAI] . It stands held that allowing associate members to avail these facilities does not disentitle a co-operative society from availing section 80P deduction. The relevant provisions of the State Co-operative law have also been discussed therein. The Revenue fails to draw any distinction on facts. Thus, we affirm the CIT(A)’s findings. - Decided against revenue
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2014 (12) TMI 1261
Bail application - Offence of money laundering - Held that:- After going into all the details furnished by the respondent/ Directorate of Enforcement in the form of reply, without expressing any opinion on merits, feel that at this stage, the release of the petitioner would hamper further investigation as it may influence the witnesses. Though, it is pointed out by learned senior counsel for the petitioner that the petitioner is in no way connected with this case, however, in my view, the apprehension raised by the respondent cannot be ignored considering the fact that the petitioner is the beneficiary and the prime conspirator in the said money laundering transactions.
It has also to be kept in mind that for the purpose of granting bail the legislature has used the words reasonable grounds for believing" instead of the evidence" which means the Court dealing with the grant of bail can only be satisfied as to whether there is a genuine case against the accused if the prosecution will be able to produce prima facie evidence in support of the charge. At this stage, it is not expected to have the evidence establishing the guilt of the accused beyond reasonable doubt. Thus the petitioner cannot be released on bail at this stage.
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2014 (12) TMI 1260
Classification of the product - Pediasure - classified under CTH 21.06 as “food preparation not elsewhere specified or included” or CTH 1901 as “Preparations of Malt extract" - Held that: - the main ingredients in terms of weight are sugar 35.01%; carbohydrates 50.21% and the balance other ingredients and various proteins. Therefore there is merit in the contention of the appellant that product cannot fall under CTH 1901 at all and classification under CTH 2106 as not elsewhere specified or included appears to be merited. We further notice that in respect of the import of the same product subsequently, the department has classified the goods under CTH 21.06. Since this point has not been considered by the lower authorities, the matter should go back to original authority for fresh consideration. Therefore, we remand the matter back to the adjudicating authority for de novo consideration to consider the specific claim of the appellant that appropriate classification of the impugned goods is CTH 2106 - the appeal allowed by the way of remand.
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2014 (12) TMI 1259
Maintainability of appeal - both the Commissioners have signed the notesheet on different dates, but no date has been mentioned in the authorization - On going through the Review order, it is found that there are two different dates, therefore, it cannot be considered that both the Commissioners have signed the Review order on 5-7-2013 - reliance placed on the decision of the case of CST v. L.R. Sharma [2014 (4) TMI 403 - DELHI HIGH COURT] by the learned AR - Held that: - authorization is undated and the case law relied upon by the learned AR is not relevant to the facts of the present case as in those cases the authorization was granted on two dates but in this case, no date has been mentioned in the authorization. Therefore, as held by this Tribunal in the case of Paswara Papers Ltd. [2013 (12) TMI 1136 - CESTAT NEW DELHI] wherein it has been observed that part of the authorization is yet to be dated therefore such authorization is not being acceptable to law. Admittedly, the authorization is not dated. In these circumstances, relying on the decision of Paswara Papers, I hold that authorization is not proper. - the appeal is not maintainable.
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2014 (12) TMI 1258
Demand of CENVAT credit - imposition of interest and penalty - clearance of imported/indigenous batteries as warranty replacements without payment of duty and without expunging the Cenvat credit amount availed by the petitioner - Held that: - It is settled legal principle that, the scope of interference of the order passed by the Settlement Commissioner is circumscribed, considering the scheme of Act and the power vested with the Commission so as to bring about a resolution to the dispute in a proper manner thereby balancing the interest of the assessee and protecting the interest of the Revenue. Bearing that legal principle in mind, if the impugned order is examined, the Settlement Commission has given elaborate reasons to justify their stand with regard to the demand of duty. With regard to the fixation of amount to be remitted to have the benefit of settlement, this Court cannot make a roving enquiry into the factual issues which has been dealt with by the Commission after taking note of the submission of the petitioner as well as the report submitted by the Revenue. Therefore, the findings rendered by the Commission directing the petitioner to pay the Central Excise duty at ₹ 37,80,089/- is confirmed.
With regard to the levy of penalty on the first applicant/petitioner and the demand of interest, it is seen that the Settlement Commission did not give a specific finding that the conduct of the applicant/petitioner is contumacious or wilful with an intention to evade the duty. In fact, the Settlement Commission observed that the department’s case has been proved by applying the yardstick of possibility and probability and not because of the availability of adequate evidence. If such is the case, obviously, there is no reason to levy penalty of ₹ 2 lakhs on the first, applicant/petitioner nor to levy interest.
Petition disposed off - decided partly in favor of petitioner.
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