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Showing 421 to 440 of 16027 Records
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2014 (12) TMI 1016
Recall of order – Rectification of mistake apparent from record u/s 254 – Ex-parte order passed by Tribunal - Held that:- Assessee contended that the Tribunal did not consider the written submissions available on record and certain errors are crept in the order - assessee’s own funds have gone into the construction of the building and the assessee is entitled for deduction u/s 54F - a residential house was constructed at his cost on the land held by his wife - a small building already existed and the assessee built a full-fledged residential building - the matter could not be presented satisfactorily before the Tribunal as the assessee's representative was not in India and could not appear before the Tribunal on the date of hearing - The Tribunal decided the issue without considering the facts with reference to the application of the decision in the case of Smt. Gousia Begum And Others Versus Dy. Commissioner of Income-tax And Others [2013 (9) TMI 559 - ITAT HYDERABAD] and entitlement of petitioner to relief u/s. 54F as his funds have gone into construction of the building – also, the Tribunal did not consider the written submissions - there are certain errors in the Tribunal order dated 7th March, 2013 – the reasons provided by the assessee are satisfactory in nature, thus, the order of the Tribunal is recalled and the matter is remitted back to the Tribunal – Decided in favour of assessee.
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2014 (12) TMI 1015
Requirement to deduct tax on payments made for acquiring satellite rights - Whether payments made by assessee for acquiring satellite rights of films is in the nature of royalty as defined u/s 9(1) Explanation 2 thereby requiring deduction of tax at source in terms with section 194J – Held that:- The payment made by assessee to the producers for acquiring satellite rights is towards outright sale, distribution or exhibition of cinematographic films, which are specifically excluded under clause (v) of Explanation 2 from being is treated as consideration paid towards royalty - the payments are outside the purview of section 194J of the Act - assessee cannot be fastened with liability u/s 201(1) and 201(1A) for having defaulted in deducting tax at source in terms of section 194J.
Relying upon Mrs. K. Bhagyalakshmi Versus The Deputy Commissioner of Income Tax [2013 (12) TMI 1215 - MADRAS HIGH COURT] wherein it has been held that payments being towards sale, distribution or exhibition of cinematographic films would fall outside the scope of royalty as defined under Explanation 2 of section 9(1) - Though the agreement speaks of perpetual transfer for a period of 99 years, in terms of Section 26 of the Copy Right Act, 1957, in the case of cinematographic film, copy right shall subsist until 60 years from the beginning of the calendar year next following the year in which the film is published - the agreement is beyond the period of 60 years, for which the copy right would be valid, the document could only be treated as one of sale – thus, the order of the FAA is upheld being rightly of the view that the transfer in favour of the assessee as sale and therefore, excluded from the definition of "Royalty" as defined under clause (v) to Explanation (2) of Section 9(1) of the Act - the payments made by assessee not being in the nature of royalty, the provisions of section 194J will not apply – Decided against revenue.
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2014 (12) TMI 1014
Confirmation of addition by CIT(A) – Deposits treated as unexplained investment u/s 69 - Held that:- The source of such cash deposits have been explained by assessee to have originated from opening cash balance of ₹ 4,67,737 and cash withdrawals - assessee’s claim of availability of opening cash balance cannot be disbelieved - assessee has made cash deposits of ₹ 5,65,000 till 11/06/2009 – it would be reasonable to infer a part of cash deposits could have been met out of the opening cash balance available with assessee as on 01/04/2009 - deposits to the extent of ₹ 4,67,737 can be said to be from explainable source - cash deposits made on 06/10/2009, of ₹ 2,00,000 and on 06/11/2009 of ₹ 75,000 and ₹ 1,00,000 can reasonably be linked to cash withdrawals made on 07/07/2009 of ₹ 1,00,000, on 02/09/2009 of ₹ 75,000 and on 22/09/2009 of ₹ 2,00,000 - cash withdrawals have been completely overlooked by CIT(A) - assessee’s contention that peak negative cash balance of ₹ 1,45,863 as on 26/01/2010 can alone be considered for addition u/s 69 is acceptable – the order of the CIT(A) modified – Decided partly in favour of assessee.
Deletions made by CIT(A) - Amounts received through cheque/RTGS ₹ 18,88,050 – Cash loan received from M/s Latabai Gupta ₹ 5,00,000 - Deposits from withdrawal made earlier ₹ 1,00,000 - Held that:- As far as the amount of ₹ 18,88,050 is concerned, it is established on record that the amount was received from six different persons through cheque/RTGS - when the source of deposits to the tune of ₹ 18,88,050 stood explained there is no justification in treating it as unexplained investment of assessee - In so far as deposits of ₹ 5 lakhs claimed to have been made out of cash loan of ₹ 5 lakhs received from Smt. Latabai Gupta is concerned, AO not only initiated but also imposed penalty u/s 271D of the Act against assessee for having received loan in cash in violation of section 269SS of the Act – the action on the part of AO is suggestive of the fact that he has accepted the cash loan to be genuine - CIT(A) was justified in deleting the addition to the extent of ₹ 5,00,000 - assessee has made cash withdrawal of ₹ 1,00,000 on 21/11/2009, whereas assessee made cash deposits of ₹ 1,00,000 on 17/12/2009 - it is reasonable on the part of CIT(A) to conclude that, cash withdrawal made earlier was utilized for making the deposit – the order of the CIT(A) is upheld – Decided against revenue.
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2014 (12) TMI 1013
Restriction of disallowance u/s 14A r.w Rule 8D(2)(ii) – Facts properly not appreciated by the lower authority - Held that:- Revenue rightly contended that neither the assessee nor AO is clear how much is to be disallowed for the reason that the details are not properly analyzed - none of the Authorities below have clearly sorted out the facts - even before the Tribunal , assessee could not substantiate, how the disallowance can be restricted at ₹ 68,69,801/- or at ₹ 74,06,707/- as the ground raised before the CIT(A) - the entire fact needs re-examination and hence, the matter is to be remitted back to the AO for fresh adjudication – Decided in favour of revenue.
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2014 (12) TMI 1012
Deletion of addition of undisclosed income – Incriminating documents found in search – Validity of admission of additional evidence in violation of Rule 46A – Held that:- In the course of search proceeding, particulars of transaction between the searched person and the proprietary concerns of the assessee were recorded - M/s Gian Chand Ramji Dass Group (the search person) were recording certain portion of their sales outside the books of account and many of these sales were made to two proprietary concerns of the assessee - assessee was asked to explain whether the purchases from M/s Gian Chand Ramji Dass Group, were duly accounted or not - There was lack of cooperation on the part of the assessee and did not provide the necessary material called for by the AO - CIT(A) deleted the disallowance for the reason that no incriminating documents against the assessee were found during course of search.
M/s Gian Chand Ramji Dass Group has sold goods outside its book of account to the proprietary concerns of the assessee The addition of ₹ 6,81,067/- would not have been warranted, had assessee cooperated and produced the details called for in the course of assessment proceeding - The assessee ought to have furnished necessary material to show that the purchases from M/s Gian Chand Ramji Dass Group were duly reflected in the regular book account maintained by the proprietary concerns - CIT(A) is not justified in deleting the addition – thus, the matter is remitted back to AO for fresh consideration.
The AO merely added the peak credit without giving any reasoning for treating the same as undisclosed income of the assessee - when the Bank accounts are reflected in the normal course of assessee’s business, there is no reason that the peak credit in the two bank accounts should be added as undisclosed income - the CIT(A)’s order deleted the addition of ₹ 10,83,460/- is upheld – Decided partly in favour of revenue.
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2014 (12) TMI 1011
Claim of set off of unabsorbed depreciation against the rental income treated as income from other sources – discontinued activity - Held that:- Assessee rightly relied upon Commissioner Of Income-Tax Versus Premchand Jute Mills Limited [1986 (3) TMI 29 - CALCUTTA High Court] wherein it has been held that the assessee was entitled to carry forward the unabsorbed depreciation u/s 32(2) without any reference to section 57 - the assessee was entitled to deduction in respect of expenditure and depreciation in accordance with section 32(2) - The specific mention of section 32(2) in section 57 permits deduction of the unabsorbed carry forward depreciation of earlier years from the income received form plant, machineries or furniture let out – what is spoken to u/s 32(2) is as regards set off of unabsorbed depreciation as per clause (ii) of sub section (1) and when the unabsorbed depreciation could not be set off as against the income from business or profession by reason of there being no income available under the said heads and where there is income from other sources, effect must be given to Section 32(2) of the Act for that assessment year - thus, the order of the CIT(A) is set aside and the AO is directed to give appropriate relief to the assessee by allowing set off of unabsorbed depreciation of the AY 2003-04 and 2004-05 against the rental income assessed to tax in the years – Decided in favour of assessee.
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2014 (12) TMI 1010
Deletion made u/s 14A – expenses attributable to earning exempt income or not - Held that:- In Maxopp Investment Ltd. & Others Versus Commissioner of Income Tax [2011 (11) TMI 267 - Delhi High Court] it has held that Rule 8D is applicable from AY 2008-09, that does not mean that prior to the introduction of this Rule, no amount can be considered as incurred for the purpose of earning tax free income - The disallowance has to be made, first examining the accounts of the assessee and if the AO is satisfied that the accounts do not depict true picture, then he can work out the disallowance on the basis of a reasonable and acceptable method of apportionment - CIT (A) ought to have not deleted the disallowance in Toto, rather ought to have examined whether any disallowance is possible or not - she should have examined whether any expenditure attributable to earning exempt income can be identified for disallowance u/s 14A of the Act - the order of the CIT (A) is not sustainable – thus, the order is set aside and the matter is remitted back to the AO for re-adjudication.
CIT in an order u/s 263 had made a clear direction that the amount disallowed u/s 14A would be adjusted in the book profit - if any disallowance is being made by the AO, in the regular course of assessment, then that disallowance would be included in the book profit, to be computed for the purpose of section 115JB - only the amount of computation can be replaced, because the Commissioner took it from the original assessment order which has been set aside – Decided in favour of assessee.
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2014 (12) TMI 1009
Claim of deduction u/s 80HHC – Export incentives to be considered as part of profits or not - Held that:- Against the claim of deduction u/s 80HHC of ₹ 7,29,536/- of the Assessee, the claim of deduction was recalculated by A.O at ₹ 83,773/- in view of the amendment made by Taxation Laws Amendment Act, 2005 – Following the decision in Avani Exports vs. CIT [2012 (7) TMI 190 - GUJARAT HIGH COURT] wherein the amendment is quashed made by the Taxation Law and (Amendment) Act, 2005 with retrospective effect from 1st April 1998 by adding, second, third, fourth & fifth proviso to Section 80HHC(3) and held that the operation of the said section could be given effect from the date of amendment and not in respect to earlier assessment years of the assessees whose export turnover is above ₹ 10 crore - revenue has not brought any binding contrary decision in its support – thus, AO could not have reduced the claim of deduction of Assessee u/s. 80HHC – Decided in favour of assessee.
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2014 (12) TMI 1008
Addition made by treating creditors as unverifiable creditors – addition u/s 41(1)(a) - Held that:- Out of the total addition made u/s 41(1), the major addition is with respect to Bhikubhai Patel - assessee has submitted that translated copy of the reply given by Bhikubhai Patel to the AO in response to the submissions issued to him u/s. 131 – assessee has not entered into any transaction with the Assessee’s firm in FY 06- 07,-07-08 & 09-10 - there is no finding either by CIT(A) or by the AO that the Assessee had entered into transaction with Bhikubhai Patel in year ending 31st March 2004 and the nature of transaction - this factual aspect needs fresh verification and for which the matter is remitted back to the AO for examination of the contentions of the assessee that the amount was payable since year ending 2004 - with respect to the other parties, there is no evidence either in the form of confirmation letter PAN number, addresses or any other form was submitted by the Assessee in support of its claim that the liability exists - no material has been placed on record by the Assessee to demonstrate that it has paid the creditors the amount in subsequent years nor there is any finding on the same of AO or CIT(A) - assessee should be granted one more opportunity and also to demonstrate the subsequent payments – thus, the matter is remitted back to AO – Decided in favour of assessee.
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2014 (12) TMI 1007
Waiver of pre deposit - transportation of iron ore from top to bottom and from one plot to another plot in the mining area - Held that:- Prima facie appellant has made out a case for waiver and in our opinion, the activity cannot be considered as a mining service. When the activity is undertaken in the mining area and it has to be treated as mining work only and he relies on Mining Act as done by the adjudicating authority. It is appropriate that in this case the requirement of predeposit is waived and stay is granted for 180 days from the date of this order and we do so - Stay granted.
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2014 (12) TMI 1006
Waiver of pre deposit - Supply of Tangible Goods service - Held that:- In this case, in the absence of any evidence to show that wagons were used for transportation of goods of other clients also, it cannot be said that there is an element of supply of wagons to the railways. The wagons are exclusively used for transporting the appellant’s goods and because the appellants have invested in the wagons they get a discount in the transportation. The transaction is similar to the case where a person may supply a crane to the service provider who mines ores for him and thereafter get some discount in the cost of mining. Can it be said that discount amount has to be treated as consideration for providing the crane. In fact it would be the additional consideration flowing from the receiver of service to the provider of service in the form of depreciation and interest element on the crane and it cannot be said that it amounts to SOTG Service. We are not convinced at this stage that revenue has been able to make out a case for levy of service tax under SOTG service against the appellant. Accordingly, the requirement of predeposit is waived and stay against recovery is granted for a period of 180 days from the date of this order - Stay granted.
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2014 (12) TMI 1005
Construction activity - primarily for commercial or industrial purposes or not - Held that:- Prima facie, we are not inclined to the view that activities of HAFED or Haryana Seeds Development Corporation are non-commercial. Further there is neither any pleading or material on record nor any submission by the petitioner before us to identify any error in the adjudication order in so far as the valuation or classification recorded by the adjudicating authority in respect of site formation. - stay granted partly.
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2014 (12) TMI 1004
Waiver of pre-deposit of service tax - renting of immovable property service - applicant contend that they had already paid the service tax under the renting of immovable property on the rent received by the applicant - However, Revenue wants to levy service tax even on the deposit received by the applicant in respect of shops under the rent of immovable property service - Held that:- prima facie as Revenue wants to levy service tax under the category of renting of Immovable property service on the deposit received by the applicant, hence the applicant had made out a strong case for waiver of pre-deposit. The pre-deposit of the remaining dues is waived and recovery thereof stayed for hearing of the appeal - Stay granted.
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2014 (12) TMI 1003
Waiver of pre deposit - Self adjustment of excess service tax - whether the payment/adjustment of Service Tax for the period 2007-08 from the excess payment of ₹ 13,25,576/- made by the appellant during 2005-06 is permissible or not - Business Auxiliary Service - Held that:- Rule 6(4A) of the Service Tax Rules, 1994 contains the provisions allowing an assessee to adjust the excess/short payment of Service Tax suo motu. It does not contain any restriction or time limit for making such adjustments. Secondly, appellant has also relied upon favourable decisions of this Bench on this issue holding that such adjustments can be made by a Service Tax assessee. A prima facie case for complete waiver of the confirmed dues and penalties has thus been made out by the appellant. Accordingly, there will be stay on recoveries of confirmed dues and penalties imposed upon the appellant till the disposal of the appeal. - Stay granted.
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2014 (12) TMI 1002
Waiver of pre deposit - Insurance service - whether the credit of Service Tax paid on insurance services is admissible to the appellant or not - Held that:- both the factory premises and the adjoining plot are owned by the appellant for which the insurance services have been availed. There is no evidence brought out on records that the vacant plot is owned by any other individual other than appellant. Insurance Services have also been availed by the appellant for which the premium is also paid by them. A case of complete waiver has prima facie been made by the appellant. Accordingly stay is granted to the appellant against recovery of confirmed dues and penalty imposed upon the appellant till the disposal of the appeal. - Stay granted.
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2014 (12) TMI 1001
Denial of refund claim - non-fulfillment of the procedural requirements - Held that:- It is observed from Notification No. 9/2009-S.T. that refund of service tax under this notification is entirely on the basis of fulfilment of procedures and conditions. It has been observed by Commissioner (Appeals) in para 7 of the OIA dated 14-6-2012 that appellant was asked to submit certain documents within 3 days and till the decision taken by the first appellate authority such documents were not furnished. When such a casual approach is shown by the appellant then it is difficult to appreciate that substantial procedural requirements required under Notification Nos. 9/2009-S.T. and 17/2011-S.T. can be considered to have been complied. There is no justification in interfering with the order dated 14-6-2012 passed by the first appellate authority which is accordingly upheld - Decided against assessee.
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2014 (12) TMI 1000
Waiver of pre deposit - activity of painting of residential premises and machinery - commercial and industrial construction services - Held that:- Show cause notice has been issued to the appellant herein demanding Service Tax on the ground that that he was engaged in painting of residential premises, copper slag work and painting of machinery in the factory and the Revenue authorities sought to classify these services under ‘commercial or industrial construction services’. We find from the definition of the ‘commercial or industrial construction services’ that the services that get covered under the said definition, would primarily be associated with the premises which are used for commerce or industry. In the case in hand, it is undisputed that the appellant has been engaged in the services of painting of residential premises, which, in our prima facie view, may not fall under the category of ‘commercial or industrial construction services’. We find that the appellant has made out a strong prima facie case for complete waiver of pre-deposit of the amounts involved. - Stay granted.
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2014 (12) TMI 999
Restoration of appeal - Non complaince of pre deposit order - Technical Inspection and Certification Service - Held that:- Appellant herein is a nodal agency for the Government of Gujarat as regards Gujarat Energy Development, more specifically for wind-mills. The appellant herein charges some amount as transfer fee for transferring developed wind farm to the clients. Revenue’s contention is that, such transfer fee is liable to be taxed under the head ‘Technical Inspection and Certification Service’. At this juncture, we find that the services rendered by the appellant and charging transfer fee, prima facie, may not get covered under ‘Technical Inspection and Certification Service’, as the appellant herein has, in our view, rendering a statutory function. This is our prima facie view and we have not considered the entire issue in detail. Accordingly, since the first appellate authority has dismissed the appeal for non-compliance, we are unable to go into the merits of the case. In order to meet the ends of justice, it would be appropriate that first appellate authority is given a chance to decide the issue on merits. - Matter remanded back - Appeal restored.
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2014 (12) TMI 998
Whether there is a "sale" under the contract - purchase value of bamboo cut bundles - Section 22(1) of Andhra Pradesh General Sales Tax Act, 1957 - Relevant clauses of the agreement between the Government of Andhra Pradesh and the respondent- company for grant of long term leases of forest land for making bamboo available, for the consumption of the respondent, at their paper mills - Held that:- Whether the subject transactions concern 'goods' or 'moveable property' or 'immovable property' - Are the bamboos delivered to the respondent-company, from the departmentally extracted coupes, exigible to tax under the APGST Act – Held that:- While several of the terms and conditions of the agreement are common, both to the bomboo industrial cuts delivered from the departmentally worked coupes and the bomboo extracted, from the allotted coupes, by the company themselves, additional terms and conditions, with regards the supply of departmentally extracted bamboos, were specified in the annexure to the agreement - These conditions related mainly to the mode of delivery, the sale price and the mode of payment - In addition, 7% of the sale price was payable by the respondent-company to compensate the Government for loss of moisture in the bamboos (condition No.6) - In view of Condition 7(ii) of the Annexure to the Agreement, the terms and conditions, as applicable for the bamboo extracted by the respondent-company, were applicable to the bamboo industrial cuts delivered to the respondent-company from the departmentally worked coupes regarding payment of the selling price for the departmentally extracted bamboo industrial cuts - Extraction and supervision charges were also payable by the respondent-company.
The "bamboos" were not removable even after they were cut unless they were weighed and permits were granted. Severance of bamboo, even in the departmentally extracted coupes, was not under the contract of sale, but was prior thereto - The bamboos, liable to be cut each year, were not in a "deliverable state" on the date of the agreement - The various clauses in the contract show that there is no "sale", on the contract date, of bamboos as the goods were not in a deliverable state - As the bamboo cannot be cut or removed except as provided therein, the contract is not an agreement to sell bamboos standing in the contract areas, with an accessory licence to enter upon such areas for the purpose of felling and removing the bamboos - Nor is it only in respect of a particular felling season - It embraces not only bamboos which are in existence on the date of the contract, but also bamboos which are to grow and come into existence thereafter.
Is the subject contract a grant of a profit a prendre – Held that:- The subject contract is not, and cannot be, a contract of sale of goods - It confers upon the respondent Company a benefit to arise out of land, namely, the right over the bamboos which grow from the soil coupled with several ancillary rights and is thus a grant of a profit a prendre - It is equally not possible to view it as a composite contract one - an agreement relating to standing bamboos agreed to be severed and the other - an agreement relating to bamboos to come into existence in the future - The terms of the Contract make it clear that it is one, integral and indivisible contract which is not capable of being severed - The terms and conditions of the contract confers upon the respondent-company a benefit to arise out of land, and it would thus be an interest in immovable property - It is a grant by the government of an interest in land - The grant of such right, not being for the beneficial enjoyment of any land of the respondent- company, would not be an easement - As the respondent-company was entitled, under the agreement, to take away the bamboos grown even in the departmentally extracted coupes, the agreement, in its entirety (including the part relating to the departmentally extracted bamboos), is a grant of a profit a prendre and is not a sale or purchase of goods exigible to tax under the APGST Act - Being a profit a prendre, or a benefit to arise out of land, any attempt on the part of the State government to tax the amounts, payable under the subject Contract, would not only be ultra vires the APGST Act but also unconstitutional as being beyond the State's taxing power under Entry 54 in List II of the Seventh Schedule to the Constitution of India.
Applicability of decision of Supreme Court in the case of Titaghur Paper Mills Co. Ltd [1985 (3) TMI 226 - SUPREME COURT OF INDIA] after the amendment - Held that:- the ratio is applicable to the present case as the relevant parts of the definition of goods continued to remain a part thereof even after its amendment - Decided against the revenue.
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2014 (12) TMI 997
Denial of rebate claim - duty was paid on exported goods from fraudulently availed cenvat credit - Held that:- condition 2(a) of Notification No.19/04-CE(NT) dated 6.9.04 stipulates that all excisable goods shall be exported after payment of duty directly from factory. The said provisions stipulate that rebate shall be granted of duty paid on excisable goods exported. In this case, payment of duty is in dispute and case for recovery of Cenvat credit & erroneously sanctioned rebate claims is pending adjudication before Commissioner (Adj.) New Delhi. Though there is no finding in the impugned order-in-appeal regarding any violation of condition/procedure as laid down in Notification No.19/04-CE (NT) yet the fact remains that duty paid nature of the exported goods is still in dispute. The fundamental condition for granting rebate is that duty paid nature of exported goods is established. The proceeding have been initiated vide the impugned show cause notice dated 23.02.2010 for recovery of wrongly availed cenvat credit as well as erroneously sanctioned rebate claims and adjudication proceedings are pending before Commissioner of Central Excise.
In view of this position, it is premature to decide the admissibility of rebate claim till the show cause notice dated 23.02.2010 pending adjudication before Commissioner of Central Excise (Adj), New Delhi is decided. The Government does not find force in argument of applicants that issue of demand of cenvat credit and rebate claims are two separate proceedings as the status of payment of duty will be decided in the said ongoing adjudication proceedings. As such, case is required to be remanded for denovo consideration in the light of outcome of adjudication proceedings in show cause notice dated 23.02.2010. - Matter remanded back - Decided in favour of assesse.
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