|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1390 Records
-
2023 (6) TMI 1390 - CESTAT MUMBAI
Amendment in shipping bills - Section 149 of the Customs Act, 1962 - HELD THAT:- After exportation of the goods, an exporter can file the application for amendment of the Shipping Bills, subject to fulfillment of the condition that the documents required for amendment of the Shipping Bills were in existence at the time of exportation of the goods. It is not the case of Revenue that the appellant was not entitled for the benefit of MEIS Scheme as per the provisions of Foreign Trade Policy 2015-2020.
Section 149 ibid has not provided any time limit for filing of the application for amendment of the bill of entry of Shipping Bills. Thus, in the absence of any specific provisions contained in the Customs statute, the Board is not empowered to issue any circular prescribing the time limit for filing of the said application.
There are no justification in allowing the contention of Revenue for not amending the Shipping Bills filed by the appellant.
Appeal allowed by way of remand.
-
2023 (6) TMI 1389 - ITAT KOLKATA
Validity of assessment proceedings completed u/s. 143(3) r.w.s 147 by non- jurisdictional ACIT - validity of the notice issued u/s 143(2) by ACIT, Circle-33, Kolkata - HELD THAT:- ACIT, Circle-31, Kolkata had no valid jurisdiction over the assessee on the date of issuing notice u/s. 143(2) of the Act. Revenue has not controverted this fact by placing any other contrary material on record to indicate otherwise. Since a valid notice u/s. 143(2) has not been issued, the assessment proceedings carried thereafter deserves to be quashed. We, therefore, respectfully following the ratio laid down in the case of PCIT Vs. Shree Shoppers Ltd.[2023 (3) TMI 1432 - CALCUTTA HIGH COURT] allow the additional grounds raised by the assessee and quash the assessment proceedings completed u/s. 143(3) r.w.s 147 of the Act. Decided in favour of assessee.
-
2023 (6) TMI 1388 - ITAT MUMBAI
TP Adjustment - Addition on account of notional interest - HELD THAT:- Tribunal in assessee’s own case for A.Y. 2010-11 [2023 (5) TMI 1101 - ITAT MUMBAI] wherein the identical issue as to making investment by the assessee in its overseas AEs but share had not been allotted during the year under consideration, which has been decided in favour of the assessee wherein as held no income has accrued from the share application money to the assessee and therefore such transactions could not be subjected to transfer pricing provisions. The Hon’ble Jurisdictional Bombay High Court in the case of Shell India Markets Pvt Ltd. [2014 (11) TMI 897 - BOMBAY HIGH COURT] has also held that the provisions of chapter 10 of the Act would apply only when income arises from the international transactions.
Disallowance of FCCB Issue Expenses u/s 35D - Assessee’s claim of 1/5th issue expenses of foreign currency convertible bonds (FCCB) disallowed by the AO on the ground that there is no provision under section 35D for amortization of the said issue expenses on FCCB over a period and since expenses are not incurred during the year under consideration no deduction in respect of the issue expenses can be allowed - HELD THAT:- We have perused in [2022 (9) TMI 1594 - ITAT MUMBAI] which is on the identical facts and grounds deleted the said disallowances.
Disallowance u/s 14A r.w.r.8D and adjustment to book profit u/s 115JB - suo-moto addition made by assessee - HELD THAT:- As in case of CIT vs. Prithvi Brokers and Shareholders Pvt. Ltd [2012 (7) TMI 158 - BOMBAY HIGH COURT] and decision of Gujarat Gas Company Ltd. [2000 (4) TMI 19 - GUJARAT HIGH COURT] AO is directed to delete the addition made by him as well as suo-moto disallowance made by the assessee and reduce the same while determining the taxable income as no exempt income has been derived by the assessee during the year under consideration. Similarly when there could be no disallowance under section 14A no adjustment could be made to the book profit computed in terms of section 115JB of the Act with respect to disallowance under section 14A. Consequently ground Nos.6 & 7 and additional ground No. 1 are allowed.
Set off brought forward Long Term Capital Loss (LTCL) of earlier years against the income from LTCG of the captioned years - HELD THAT:- AO is directed to examine the same and to allow the same as per law. So additional ground is allowed for statistical purposes.
-
2023 (6) TMI 1387 - ITAT DELHI
Denial of foreign tax credit - form 67 submitted after the due date of filing of the return of income - procedural / directory OR mandatory requirement - HELD THAT:- The undisputed fact is that the assessee holds a foreign tax credit certificate - In our considered opinion filing of form 67 is a procedural / directory requirement and is not a mandatory requirement.
Therefore, violation of procedural norms does not extinguish the substantive right of claiming the credit of FTC. We accordingly direct the AO to allow the credit of FTC and hold that rule 128(9) of the Rules does not provide for disallowance FTC in case of delay filing of form 67 is not mandatory but a directory requirement and DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. Appeal filed by the assessee is allowed.
-
2023 (6) TMI 1386 - CESTAT NEW DELHI
Refund of service tax - Refund claim not filed within time limitation as per Section 11B of the Central Excise Act, 1944 - refund for the amount paid by Cenvat credit - Bifurcation of duty payment has not been provided which was made in the month of June-2015.
Timeliness of the refund claim u/s 11B of the Central Excise Act, 1944 - HELD THAT:- The relevant date in such circumstances has to be the date of refunding the amount including service tax amount to the service recipient/the buyer of residential units - No doubt as per Section 11B of the Central Excise Act, the date from where the period of one year for filing the refund has to reckon is the date of payment of duty.
It is observed from the provision that it defines relevant date to have different meanings. Clause (eb) no doubt is for the cases where duty has been paid provisionally but to my understanding the interpretation of the provision is such that the provision is applicable in the given set of circumstances also. The phrase ‘date of adjustment of duty’ shall be restricted only to the cases of provisional assessment of duty shall be a very narrow interpretation of the provision especially when provision foresees several possibilities and circumstances where the relevant date may vary. There are no reasonable prudence to deny extending the said phrase to the circumstance as the one in the question.
Once no service no law authorizes payment of tax by the service provider. The refund of the service tax as was paid by the service provider after receiving the payments from service recipient, has to be sanctioned in full, due to this reason, by the department itself. With these observations, it is held that the refund claim in question is not barred by time.
Whether the refund of duty which was paid by Cenvat credit is not maintainable? - HELD THAT:- The fact remains is that the total amount stands deposited with the department as the duty liability of the appellant. Once the appellant becomes no more liable for the duty as stands already deposited with the department. In view of the Article 265 of Constitution of India, department cannot retain the said amount as the article prohibits levy/collection of such amount which is otherwise not leviable. Resultantly, there are no reason to deny the refund for such amount which was paid by way of Cenvat credit.
Bifurcation of duty payment - HELD THAT:- The original adjudicating authority has well discussed both the issues as were raised in the show cause notice while proposing the rejection of the impugned refund claim - The original adjudicating authority since has dealt with both the issues, the said order gets merged with the Order-in-Appeal. It is further observed that certificate issued by the Chartered Accountant of the appellant has also been placed on record to certify that the refund claim of service tax amount of Rs.7,40,816/- as was filed by M/s. New Modern Buildwell Private Limited, the latter has not passed on the burden of service tax on another person. Nothing is found on record to falsify that certificate. The presumption of correctness is otherwise attached thereto. In light of the said certificate, there is no reason to hold any unjust enrichment of the appellant in case the refund is sanctioned.
The appellant is entitled for the refund of service tax for the simple reason that he has not provided any service and as such has not been liable to pay the tax which was already paid by him. His application is not barred by time for the reasons as explained above. Hence appellant is held entitled for refund of the amount as was paid by using the accumulated Cenvat credit - the claim is within the prescribed time limit of one year from the relevant date.
The impugned order is set aside - appeal allowed.
-
2023 (6) TMI 1385 - ITAT BANGALORE
TP adjustment in respect of payment of royalty - assessee had benchmarked the transaction of payment of royalty by using Comparable Uncontrolled Price (CUP) method to justify the arm’s length of the transaction - HELD THAT:- TPO rejected the methods adopted by the assessee and determined the ALP transaction at 1%. TPO had relied on earlier Assessment Orders which was upheld by the DRP. In earlier Assessment Years, the ALP of payment of royalty was restricted to 1%. The DRP rejected the objections of the assessee by relying on the directions issued in assessee’s own case for Assessment Years 2011-12 to 2014-15 and 2016-17 [2023 (3) TMI 1296 - ITAT BANGALORE] We find that the Tribunal on identical issue in assessee’s own case for Assessment Years 2009-10 to 2016-17 and Assessment Year 2018-19 [2023 (2) TMI 1306 - ITAT BENGALURU] had held that the payment of royalty is to be accepted as being at arm’s length.
Thus we hold that the payment of royalty by the assessee is to be treated at arm’s length. It is ordered accordingly. In the result, grounds are allowed.
Payment of interest on CCDs, premium expenditure on repayment of CCDs and interest on RDBs - TPO treated the CCDs as equity and held that the payments made to the AEs are not in the nature of interest - TPO, upon holding the arm’s length price of interest payment on CCDs to be NIL - HELD THAT:- As in assessee’s own case for Assessment Years 2014-15 and 2015-16 [2022 (12) TMI 534 - ITAT BANGALORE] had restored the matter to the files of the AO/TPO wherein as admittedly held that finding of TPO is not by invoking Thin Capitalisation principle and therefore, it has to be decided independently. We find that the decision of TPO is bases on RBI policy of FDI. We all know that RBI policy of FDI is governed by this that what will be future repayment obligation in convertible foreign currency and since, CCDs does not have any repayment obligation, the same was considered by RBI as equity for FDI policy. Now the question is that such treatment given by RBI for FDI policy can be applied in every aspect of CCDs. Whether the holder of CCDs before ins conversion can have voting rights? Whether dividend can be paid on CCDs before its conversion? In our considered opinion, the reply to these questions is a BIG NO. On the same logic, in our considered opinion, till the date of conversion, for allowability of interest u/s 36 (1) (iii) of Income tax Act also, such CCDs are to be considered as Debt only and interest thereon has to be allowed and it cannot be disallowed by saying that CCDs are equity and not debt.
Admittedly, the CCDs are issued in INR, interest is paid in INR and CCD’s are repaid also in INR. Therefore, placing reliance on the judgment of Cotton Naturals (I) Pvt. Ltd. [2015 (3) TMI 1031 - DELHI HIGH COURT], we hold that the TP study of the assessee to justify the interest rate by arriving at average rupee cost and comparing the same with SBI prime lending rate is correct. It is ordered accordingly.
Short deduction of TDS - As contended that assessee is eligible for credit of tax deducted at source - HELD THAT:- AO is directed to examine whether the assessee is entitled to the entire credit claimed and pass order after affording a reasonable opportunity of being heard to the assessee. In the result, ground No.5 is allowed for statistical purposes
-
2023 (6) TMI 1384 - ITAT HYDERABAD
TP Adjustment - shortfall of Corporate Guarantee Fee - HELD THAT:- As relying on assessee own case [2023 (4) TMI 1254 - ITAT HYDERABAD] we hereby restrict the addition with respect to corporate guarantee fee to the tune of 0.5% on the amount granted on corporate guarantee commission. Thus, these grounds are partly allowed.
Trade Receivables - We hereby direct the computation of interest on trade receivables adding notional interest of 6% on trade receivables beyond a period of 60 days. Thus, these grounds are partly allowed.
Weighted Deduction u/s 35(2)(AB) - We hereby allow the weighted deduction u/s 35(2)(AB) for the expenditure incurred by the assessee after getting approval in Form 3CL from DSR approving the expenditure for clinical trial expenses incurred outside approved R & D facilities. Thus, this ground is allowed.
Allocation of Head Office expenses - contention of the assessee that allocation of the Head Office expenses should be based on net sales as against the export sales made by the SEZ and the said method of accounting had been continuously followed by the assessee for the earlier assessment years also - HELD THAT:- No such submissions / practice were cited before the Assessing Officer/TPO or before the DRP or before us to buttress its contention. Further, the contention raised by the assessee in its written submissions were fully considered by the TPO while passing the order, reproduced hereinabove and we do not find any reasons to agree with the contentions of the assessee, more particularly, when the assessee has not filed any document in support of the bifurcation of forex exchange loss for import of raw material used for domestic sales as well as for the exports. Hence, we do not find any reasons to interfere with the order of the TPO and accordingly, this ground is dismissed.
-
2023 (6) TMI 1383 - ITAT GAUHATI
Merger of intimation u/s 143(1) into assessment order u/s 143(3) and u/s 153A - first appeal against the assessment order passed u/s. 143(3) was disposed off by quashing the said assessment order, it being an abated year owing to search - HELD THAT:- We note that once an assessment order has been passed u/s. 143(3), the intimation u/s. 143(1) merges in the said assessment order and looses its standalone existence. In the present case before us, appeal is against the intimation u/s. 143(1) which merges into the assessment order passed u/s. 143(3) of the Act. The said assessment order has been quashed in the first appeal, consequent to conduct of search, by holding it an abated year, as submitted by the Ld. Counsel which revives the intimation u/s. 143(1). However, yet another assessment is completed u/s. 153A for the same year for which the first appeal is pending before the Ld. CIT(A). Accordingly, the impugned intimation u/s. 143(1) again merges into the assessment order passed u/s. 153A since it is an abated year.
Thus we find that the present appeal being against intimation u/s. 143(1) is rendered as infructuous owing to its merger into the assessment order passed u/s. 153A, it being abated year and pending before Ld. CIT(A). Accordingly, we dismiss the present appeal as infructuous after condoning the delay.
-
2023 (6) TMI 1382 - ITAT GAUHATI
Doctrine of merger - Validity of intimation passed u/s. 143(1)(a) for adjustment already been taken into consideration for the purpose of addition in the assessment completed u/s. 143(3) - processing of return by Centralised Processing Centre (CPC) - adjustment has been made in respect of claim under Income and Computation Disclosure Standard (ICDS)-III towards value of contract in progress at net realisable value - CIT(A) has given relief by holding that the adjustment made in processing of return is beyond the scope of prima facie adjustment prescribed u/s. 143(1) - HELD THAT:- We note that once an assessment order has been passed u/s. 143(3), the intimation u/s. 143(1) merges into the said assessment order and looses its standalone existence
The present appeal being against intimation u/s. 143(1) challenging the adjustment made which has already been taken into consideration for the purpose of addition in the assessment completed u/s. 143(3) of the Act, is rendered as infructuous. Accordingly, we dismiss the present appeal as infructuous. Appeal of the revenue is dismissed.
-
2023 (6) TMI 1381 - ITAT COCHIN
Deduction u/s 80P - assessee is a Primary Rural Agricultural Co-operative Credit Society duly registered u/s 7(1) of Kerala Co-operative Society Act, 1969 - Adjustment u/s 143(1) - HELD THAT:- Taking note of the certificate issued by the assistant Registrar of Co-operative Society that the assessee is a Primary Rural Agricultural Co-operative Credit Society duly registered u/s 7(1) of Kerala Co-operative Society Act, 1969 (Act 21 of 1969), we hold that it is eligible for exemption/deduction and no adjustment could have been made under section 143(1)(a) of the Act, unless notice was issued proviso to section 143(1)(a) of the act and in the light of the fact that assessee has made the claim u/s 80P(2) of the Act albeit in Schedule BP clearly filing up the column of exempted income of Co-operative Society u/s 80P(2) of the Act, the deduction ought to have been allowed; and since adjustment has been made by disallowing the same u/s 143(1) of the Act, without intimation, and failure to consider the response to it as provided by proviso to subsection (1) of section 143 of the Act cannot be sustained and directed to be deleted. Appeal of the assessee is allowed.
-
2023 (6) TMI 1380 - ITAT KOLKATA
Validity of Revision u/s 263 - transactions of receiving share capital and share premium - as per CIT AO has taken wrong figures and has neither examined nor gathered any evidence from any source/witnesses - HELD THAT:- We notice that the AO in order to make independent enquiry with the share applicants, called information u/s 133(6) of the Act from all the three share applicants commonly calling therefrom the informations - In compliance to these notices, details were filed by the share applicants addressing them directly to the Assessing Officer providing the copies of share application forms, source of funds, copy of bank statement, copy of board resolution, copy of audited balance sheet etc.
After having conducted all these enquiries, in order to satisfy about the identity and creditworthiness of the share applicants and genuineness of the transactions, the ld. Assessing Officer moved a step forward and issued summons to the directors of the assessee company as well as investing companies to which necessary compliance was made and all the summoned persons appeared before the Assessing Officer and recorded under oath on 05/05/2016 and they form part of the assessment records.
We find that AO has conducted extensive enquiry on the issues and directions mentioned u/s 263 and further on perusal of the impugned order, we notice that all the issue which the ld. Pr. CIT has referred has already been addressed by the AO in the detailed enquiry conducted in the course of assessment proceedings.
It is neither a case of no enquiry nor a case of incomplete enquiry but it is a case where extensive enquiry has been conducted on which all the issues which have been raised in the impugned order and based on these detailed examination, ld. Assessing Officer came to a conclusion that the assessee has successfully satisfied, with documentary evidence as well as the evidence collected from the share applicants that the transactions of issuing shares at premium and received the share application money is a genuine transaction and the share applicants have successfully proved the identity and the creditworthiness to have invested in the equity shares capital of the assessee company.
It is well settled that when an issue on which detailed examination has been carried out by the Assessing Officer, before holding such assessment order as erroneous and so far as prejudicial to the interest of the revenue, the ld. Pr. CIT is required to conduct an enquiry and bring such information on record, failing which assumption of jurisdiction u/s 263 of the Act cannot be held to be justified. Assessee appeal allowed.
-
2023 (6) TMI 1379 - CALCUTTA HIGH COURT
Validity of Reopening of assessment - notice u/s 148A(b) issued without taking approval from the “specified authority” u/s 151 - HELD THAT:- On plain reading of provisions of Section 151 it appears that for passing any order u/s 148A of the Act an approval from the “specified authority” as described in Section 151 of the Act has to be taken but by no stretch of imagination it can be interpreted in a way that a notice u/s 148A(b) of the Act is also an order and as such it is of the considered view that before issuance of notice u/s 148A(b) of the Act no approval from “specified authority” is required u/s 151 of the Act.
For the reason that the impugned order u/s 148A(d) is neither a final assessment order nor any demand arises out of it and petitioner has ample opportunity to make a case if it has in its favour, in course of proceeding subsequent to the order u/s 148A(d) of the Act for dropping the proceedings, we are not inclined to interfere with the impugned order. This writ petition is disposed of by only granting liberty to the petitioner to raise any point of merit of the re-assessment before the assessing officer in course of the proceeding subsequent to the order under Section 148A(d) of the Act.
-
2023 (6) TMI 1378 - ITAT AMRITSAR
Validity of scrutiny assessment on non-issuance of notice u/s 143(2) - HELD THAT:- From departmental assessment folder, it is clear that the department was not able to find any notice u/s 143(2) initiating the assessment proceeding. AR also placed the online record before the bench but there is no trace of the notice U/s 143(2) of the Act. The Without issuance of notice u/s 143(2) is caused the assessment bad in law. We respectfully relied on the order of Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] and Laxman Das Khandelwal [2019 (8) TMI 660 - SUPREME COURT]
We conclude that there was no issuance of the valid statutory notice u/s 143(2) of the Act within the prescribed time. DR has also not brought anything on record contrary to the arguments advanced by the AR for the assessee. Thus, in the absence of the valid statutory notice, the assessment framed u/s 144 of the Act is not sustainable. Decided in favour of assessee.
-
2023 (6) TMI 1377 - CALCUTTA HIGH COURT
Penalty u/s 129(3) of the WBGST Act, 2017 - expiry of e-way bill which is lesser than a day - It is the case of the petitioner that such delay was neither willful nor deliberate on the part of the petitioner and the same was occurred due the reason beyond the control of the petitioner - HELD THAT:- Taking into consideration the fact that the period of expiry of e-way bill is lesser than a day and that such delay was not deliberate and willful and the delay has been caused for the reason beyond control of the petitioner, this writ petition is disposed of by setting aside the impugned order dated 8th March, 2023.
-
2023 (6) TMI 1376 - ITAT MUMBAI
Validity of assessment order u/s 144C (1) without passing the draft assessment order - HELD THAT:- In the instant case, it an undisputed fact that the AO has passed the final assessment order on 31/12/2019 without passing draft assessment order. Following the decision of Co-ordinate Bench [2018 (3) TMI 2036 - ITAT MUMBAI] and [2023 (2) TMI 1294 - ITAT MUMBAI] on parity of facts and reasons we hold the assessment order dated 31/12/2019 is invalid. Consequently, assessment order is quashed and the appeal of assessee is allowed.
-
2023 (6) TMI 1375 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Professional misconduct by CA - penalty order u/s 132 (4)(c) of the Companies Act, 2013 - submission is that after filing of the Appeal and deposit of 10% of penalty, further proceedings as contemplated in Rule 12 regarding the intimation cannot take place - HELD THAT:- Rule 12, sub-rule (3), uses expression imposition of penalty or debars the Auditors from practices. Sub-rule (3) requires sending of the order to every company or body corporate in which the Auditor is functioning as Auditor. Sub-rule (3) of Rule 12 is, thus, independent provision. Thus, Rule 12, sub-rule (2) provides that action against Auditor in event the Appeal is filed under Rule 12, sub-rule (1), after depositing the 10% penalty amount, the consequences as contemplated under Rule 12, sub-rule (2) shall not take place. Thus, in case when an Appeal is filed with deposit of 10% of penalty, it is not obligatory to the company or body corporate to appoint a new Auditor as required by sub-section (2) of Rule 12. However, sub-rule (1) and (2) are only confine to cases where only monetary penalty has been imposed. These two sub-rules have no application with regard to cases where penalty of ‘debarment’ has been imposed. Omission of ‘debarment’ in sub-rules (1) and (2) are with the purpose and object.
The learned Counsel for the Respondent has placed reliance on judgment of Hon’ble Supreme Court in MD. ALAUDDIN KHAN VERSUS KARAM THAMARJIT SINGH [2010 (7) TMI 1006 - SUPREME COURT] where Hon’ble Supreme Court while considering the principle of statutory construction has noted the principle that express inclusion of one thing is the exclusion of all others.
The consequence of subrule (4), Rule 12 is that when procedure under Rule 12, sub-rule (2) has been initiated, company or body corporate has to appoint a new Auditor, the clear intendment is that in case of a debarment, the Auditor is not entitled to continue to discharge his functions and a new Auditor as contemplated is to be appointed - Rule 11, sub-rules (6) and (7), which provides that the orders passed under sub-rules (6) and (7) shall not become effective until thirty days have elapsed from the date of issue of the order unless the Division states otherwise in the order along with the reason for the same.
Present are cases where the orders were not to become effective until thirty days have elapsed. There is purpose and reason for providing the thirty days period. Thirty days period is provided for Auditors against whom orders have been passed to wound up their affairs in company or body corporate where they have been functioning.
Filing of the Appeal by the Appellant(s) with deposit of 10% of the penalty shall have no effect on the order of ‘debarment’ passed against the Appellant(s) under Section 132(4)(c) and under head (B). Order of ‘debarment’ shall continue to operate unless an order is passed by the Appellate Tribunal - it is deemed fit and appropriate to give an opportunity to the Appellant(s) to make their submissions on the merit and this Tribunal after hearing the Appellant(s) as well as Respondents shall take appropriate decision on the application filed for the interim relief in each of the Appeal(s).
All these Appeal(s) be listed for admission and consideration of application for interim relief on 3rd July, 2023.
-
2023 (6) TMI 1374 - BOMBAY HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - appealable order or not - Suspension of Petitioner’s license as a Customs Cargo Service Provider - HELD THAT:- Having heard learned counsel for the parties and having perused the record, in our opinion, it would be appropriate for the Petitioner to avail of the remedy of an appeal, so that the rival contentions of the parties on the aspects of facts and law can be adjudicated before the Tribunal - the merits of the rival contentions need not be dwelled upon.
Insofar as the protection granted by this Court as noted above is concerned, the protection needs to be continued till the Petitioner approaches the Tribunal alongwith a stay application and till the orders are passed on the stay application - petition disposed off.
-
2023 (6) TMI 1373 - TELANGANA HIGH COURT
Allowability of the claim as bad debt - when the assessee did not satisfy the conditions under Sections 36(1)(vii) r.w.s. 36(2) of the Act with regard to his claim of bad debts - whether the claim for deduction as bad debt was allowable u/s 36(1)(vii)? - HELD THAT:- Tribunal has given good reasons as to why the claim of bad debt is an allowable deduction under Section 36(1)(vii) of the Act. That apart, Tribunal took the view that bad debts can be allowed to the extent of the instalments defaulted by the prized subscriber and written off as bad debt in the books by the assessee, but at the same time clarifying that for future instalments that are likely and yet to be defaulted no claim for bad debt can be allowed. However, to allow such a claim to the extent indicated, Tribunal observed that more facts and figures were required and therefore, relegated the matter back to the file of the assessing officer. We see no error or infirmity in the view taken by the Tribunal on the issue of bad debts covering both the facets.
Disallowance of royalty payment - distinction between capital and revenue expenditure - Tribunal took note of the fact that the only ground for the disallowance was that in the prior assessment years no such payment was made - HELD THAT:- As undisputed fact is that the logo and the words “Shriram Chits” is owned by M/s. Shriram Chits and Investments (Private) Limited. Assessee had used the logo and the above words while carrying on its business.
Honda Siel Cars India Limited [2017 (6) TMI 524 - SUPREME COURT], Supreme Court once again examined the distinction between capital and revenue expenditure. Referring to its earlier decision in CIT v. Ciba of India Limited [1967 (12) TMI 3 - SUPREME COURT] Supreme Court held that royalty paid for use of technical information or knowhow would be in the nature of revenue expenditure as no enduring benefit is acquired thereby. As per Shriram Transport Finance Company Limited. [2022 (6) TMI 1428 - MADRAS HIGH COURT] royalty payment made by the assessee for use of logo or trademark for a particular period for improvement/ expansion of business would qualify as revenue expenditure
This issue is no longer res integra. In the case of Wavin (India) Limited [1981 (6) TMI 5 - MADRAS HIGH COURT] as examined such a claim in the context of amount paid to a foreign collaborator as contribution towards research and development expenditure. Madras High Court held that such expenditure could not be regarded as capital expenditure. It being a business expenditure, assessee was entitled to claim deduction. This decision of the Madras High Court was upheld by the Supreme Court in Waven (India) Limited [1997 (9) TMI 6 - SC ORDER] wherein Supreme Court agreed with the reasoning given by the Madras High Court while upholding the expenditure to be of revenue nature. The expenditures were incurred to obtain benefit of development and research made by the foreign company; such an expenditure could not be said to be for acquisition of any asset at all. Therefore, we have no hesitation in answering this issue in favour of the assessee.
Accrual of income - Commission on removed chits - according to the Tribunal, from out of the amount that is payable to the defaulting subscriber, subscription to his replacement by another person, the assessee is entitled to deduct 5% as commission. This commission amount has got nothing to do with the regular commission income of the assessee - HELD THAT:- Stand of the assessee that the commission income accrues when the accounts have been finally settled with the defaulting non-subscriber is the correct position. We are in agreement with the view expressed by the Tribunal on this issue. Thus, this issue is also answered in favour of the assessee.
-
2023 (6) TMI 1372 - CESTAT KOLKATA
Classification of service - transportation service or Cargo Handling Service? - transportation of materials, loading and unloading there for while shifting of the various materials within the said Steel Works and other incidental work related thereto - HELD THAT:- The Appellant has undertaken the work of shifting of various materials within the Tata Steel Works factory. A perusal of the contract revealed that it was a composite contract in which Transportation was the primary service. Loading, unloading and stacking of the cargo was incidental to the main work. Accordingly, service tax was payable on Transportation service on the total value received. However, the Appellant has paid service tax under the category of Cargo Handling Service, towards the receipts made for loading, unloading and stacking work. Just because they have paid service tax under Cargo Handling Service for the unloading, loading and stacking services, it does not mean that the Appellant were liable to pay service tax under cargo Handling Service on the total value.
The Appellant is not liable to pay service tax under the category of Cargo Handling Service'. Hence, the demand confirmed in the impugned order is not sustainable. Since demand of service tax is not sustainable, the demand of interest and imposition of penalty is also not sustainable.
The impugned order set aside - appeal allowed.
-
2023 (6) TMI 1371 - CESTAT KOLKATA
Condonation of delay in filing appeal - adjudication order dated 24.08.2016 was received by the appellant on 07.09.2016 and the appeals against the said orders have been field on 22.12.2016 i.e. after 105(one hundred and five) days of the receipt of the adjudication order - HELD THAT:- As per the provisions of section 85(3)(A) of the Finance Act, 1994, w.e.f. 28.05.2012 any person aggrieved by the adjudication order can file an appeal before the Ld.Commissioner(Appeals) within two months of the receipt of the adjudication order and the said time can be extended by another one month if sufficient cause for non-filing the appeal has been explained. Therefore, as per the said provisions, the appeal is required to be filed within 3(three) months form the receipt of the adjudication order.
In this case, the appeals have been filed by the appellant beyond the time limit prescribed in terms of section 85(3)(A) of the Finance Act, 1994, therefore Ld.Commissioner(Appeals) has rightly dismissed the appeals as time barred.
There are no infirmity in the impugned orders. The same are upheld - appeal dismissed.
........
|
