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Showing 101 to 120 of 2067 Records
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2017 (11) TMI 1970
Levy of Interest - duty paid against shortage of goods noticed on the same day of the visit of the officers - levy of personal penalty on the Director and the employee - HELD THAT:- The appellant had immediately paid the entire duty on the shortage of the goods noticed, hence interest is not attracted. Further, the Director in his statement accepted that the goods have been removed without payment of duty, therefore, the Ld. Commissioner (Appeals) has rightly confirmed the penalty on the Director and the employee.
However, considering the overall circumstances of the case, and considering that the appellant company has paid 25% of the penalty imposed, in the interest of justice, the penalty on Director is reduced to ₹ 50,000/- and employee is reduced to ₹ 5,000/-.
Appeal allowed in part.
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2017 (11) TMI 1969
Dishonor of Cheque - insufficiency of funds - mortgage of property - injunction sought to restrain the defendants from dealing with or disposing of or transferring or creating any encumbrance in respect of the property pertaining to the Avani Grand project - equitable right of redemption - Order XXXIX Rule 1(b) of the Code - HELD THAT:- Since the plaintiff has not been able to show in the remotest form any modicum of a claim against the second defendant, no property of the second defendant can be attached in furtherance of the plaintiff's admitted claim against the first defendant and no order of injunction may be issued against any property of the second defendant under Order XXXIX Rule 1(b) of the Code. An order of attachment, as the interlocutory court has rightly found, is a tall order and requires both an unimpeachable claim and the likelihood of such claim remaining unrealised if no order of attachment is passed. An injunction under Order XXXIX Rule 1(b) of the Code requires the plaintiff to demonstrate that he is a creditor of the person whose property is to be affected by the order of injunction. On the material carried to court, the plaintiff does not appear to be a creditor of the second defendant.
It is with considerable regret and diffidence that it needs to be observed that the filter that was traditionally in place before a matter reached the court may have been considerably eroded in value and diluted in its moral content. The judiciary is not a system of a judges alone; the object of the exercise in a court is not to obtain an unworthy order or defeat a worthy cause, the pursuit is of justice - Even though justice cannot be pursued in the adversarial system by ensuring the removal of injustice, the shared responsibility to prevent unjust causes being espoused in court cannot be shrugged off at the Bar. The judiciary cannot stand, far less remain upright, if either pillar of the Bench or the Bar falters.
There comes a time when a system must assert itself, if only to survive against the vicious onslaught of such unscrupulous litigants and their advisors as the present plaintiff. If dockets are not to be clogged with unworthy claims and false defences, litigants who carry vexatious causes must be appropriately dealt with in the award of costs. For the plaintiff's colossal attempt to hoodwink the court and try and obtain an undeserving order, the plaintiff-appellant in this case will pay costs assessed at ₹ 15 lakh each to the second defendant and R-Com - The second defendant and R-Com will be entitled to execute this part of the order in accordance with law.
In view of the submission on behalf of the appellant that it did not seek any order of attachment in respect of Avani Aspires, the order impugned is set aside in such regard - Application disposed off.
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2017 (11) TMI 1968
TDS u/s 195 - Disallowance u/s. 40(a)(i) - non deduction of tax at source on the following payments to Opportunity International, USA (OI) a non-resident non-profit organization - assessee is in second appeal - HELD THAT:- Payments is in respect of services utilized in India and in the nature of FTS. The collateral support is, as explained during hearing, either by way of undertaking or provision of security, enforceable in India, to enable the assessee, a micro finance company, to borrow funds from banks and financial institutions for the purpose of its business. OI Membership is again to enable the assessee to secure the membership of an entity, representing a framework of organizations, i.e., to secure its membership and, thus, the various services and benefits for the conduct of its business in India under its aegis. MIS Emerge fee is again for reporting systems (for micro finance organization and finding solutions), perhaps to be followed as a member. These are clearly in the nature of managerial and technical services falling within the purview of FTS covered u/s. 9(1)(vii).
The decision in G.E India Technology Pvt. Ltd. [2010 (9) TMI 7 - SUPREME COURT] is, in ratio, clearly applicable in the facts of the case, albeit in favour of tax deduction tax at source and, consequently, applicability of s. 40(a)(i), which stands thus rightly invoked. The same, it can be appreciated, does not provide for absolute disallowance, and the assessee could, by remitting the withholding tax, grossing it up, claim deduction for the year of payment. - Decided against assessee.
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2017 (11) TMI 1967
Nature of income - income from sale of Carbon Emission Reduction Certificates (CERs) - ITAT held it as capital income - whether the same was specifically a revenue report and even the assessee has claim benefit u/s 80IA? - HELD THAT:- As decided in M/S. SUBHASH KABINI POWER CORPORATION LIMITED [2016 (5) TMI 793 - KARNATAKA HIGH COURT] When the carbon credit is generated out of environmental concerns, and it is not having the character of trading activity, the Tribunal has rightly held that it is capital receipt and it is not income out of business and hence, not liable to pay income tax. - Decided in favour of the assessee and against the department.
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2017 (11) TMI 1966
Exemption u/s 54 - assessee did not file her return of income - neither the net sale consideration was utilised towards construction of new property nor was the same kept in the Capital Gain Account Scheme - whether claim can be availed only in respect of the entire capital gains utilized within the time prescribed u/s 139(1) and not 139(4)? - HELD THAT:- The assessee has not filed her return of income within the time allotted u/s.139(1) of the Act i.e. 31.07.2010 on the reason that the income of assessee was below the taxable limit. However, the assessee invested the entire consideration in the purchase and construction of a new residential property before the time allotted to file her return of income u/s.139(4).
The argument of ld.D.R is having no merit. The income of assessee, if excluded the capital gain that the impugned amount of addition, is below the taxable income. Being so, the assessee is not liable to file her return u/s.139 of the Act. Since the assessee has invested the impugned amount in construction of a new residential house within the time is allowed u/s.139(4) of the Act, the assessee is entitled u/s.54F - Decided in favour of assessee.
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2017 (11) TMI 1965
Addition being depreciation claimed on civil work of factory building - assessee could not prove the genuineness of the transaction - CIT-A deleted the addition admitting the additional evidence - HELD THAT:- Since, prima facie, the additional evidences submitted by assessee before Ld. first appellate authority were never confronted to Ld. AO and no remand report was called against the same, we remit the matter back to the file of Ld. AO to re-appreciate the contentions of the assessee and decide as per law after affording adequate opportunity of being heard to the assessee. The assessee, in turn, is directed to substantiate his claim in this regard. This ground of revenue’s appeal stands allowed for statistical purposes.
Addition u/s 14A - expenditure incurred on earning the exempt income by invoking provision of section 14A of the I.T.Act read with rule 8D HELD THAT:- We confirm the stand of Ld.CIT(A) firstly because it was noted that own interest free funds of the assessee far exceeded the impugned investments and secondly, no exempt income has been earned by the assessee during the year and hence disallowance u/s 14A was not attracted. These facts are nowhere disputed or controverted by the revenue. Our view is fortified by a recent judgment of Hon’ble Delhi High Court rendered in PCIT Vs. IL&FS Energy Development Co. Ltd. [2017 (8) TMI 732 - DELHI HIGH COURT] where the Hon’ble court has discussed the issue elaborately in the light of statutory provisions and CBDT circular dated 11/05/2014. Thus we dismiss this ground of revenue’s appeal.
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2017 (11) TMI 1964
Rectification of mistake - error apparent on the face of record or not - typographical mistakes in the name of the Financial Creditor as well as in the name of learned counsel appearing on behalf of the Financial Creditor - Section 420 (2) of the Companies Act, 2013 - HELD THAT:- Necessary corrections are made.
Application disposed off.
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2017 (11) TMI 1963
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - existence of debt and dispute or not - HELD THAT:- Since an application under section 7 of the Code of 2016 read with Rule 4 of the Rules of 2016 has already been admitted against the CD herein and since further necessary actions which are required to be taken in accordance with Law and Rules framed there-under have already been taken, this authority is of the opinion that the FC herein be directed to approach the IRP, appointed in the aforesaid proceeding for doing needful in accordance with law in regard to the claim of the FC herein.
The FC is asked to approach IRP, appointed by this authority in Dy.No. 529 - present proceedings disposed off.
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2017 (11) TMI 1962
Levy of Excise Duty - base tank - marketable commodity or not - HELD THAT:- It is evident that the appellant was engaged in the manufacturing of the transformers. It also manufactured the base tank, for other company who is also supplied the transformers, on the basis of job work. It cannot be agreed that it has not marketable value - the base tanks has the marketable value and is a product which attracts the excise duty, as per the reasons mentioned by the original authority in its order - the order passed by the lower authority in this regard, need not be interfered.
CENVAT Credit - input - input procured from M/s Dewas Contractor - HELD THAT:- During investigation, it was found that M/s Dewas Contractor was not in the existence so, the claim was denied by the Department - When the payment is made through the cheque then the existence of the firm cannot be denied.
Matter remanded to the original authority to decide this issue (regarding the Cenvat credit) de novo but by providing a reasonable opportunity to the appellant - appeal allowed by way of remand.
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2017 (11) TMI 1961
Classification of goods - Non-cellular Rubber Sheet for heal or Sole or Heal & Sole combined for Footwear - classified under the Tariff Item No. 40082110 of schedule to Central Excise Tariff Act, 1985 or under Tariff Item No. 40082910 - samples were collected for testing and several tests undergone - complete opportunity of presenting the case not provided - principles of natural justice - HELD THAT:- Issue decided in the case of CAPSTAN RUBBER INDIA, CAPSTAN RUBBER INDIA UNIT-II, KATYAL INDUSTRIES & SHAKTI RUBBER CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, AGRA [2016 (12) TMI 1172 - CESTAT ALLAHABAD] where it was held that the principles of natural justice have not been followed by the Original Authorities in these appeals. Therefore, we remand the matter back to the Original Authority who shall given opportunity of presenting their case to the appellants once again and provide opportunity to cross-examine any of the witnesses that appellants desires to cross-examine required for arriving at just and fair conclusion in the matter.
In the present case also, the matter is remanded to the original authority with the similar direction - appeal allowed by way of remand.
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2017 (11) TMI 1960
Seizure of goods - goods was not accompanied by 'e-way' bill which is a necessary requirement - HELD THAT:- It is to be noted that the notification which requires to accompany e-way bill also recites that in case at the time of interception the e-way bill is not present with the goods, the authorities will allow the dealer to download e-way bill and in case the said e-way bill is downloaded then no further action would be taken.
In the present case, it is found that before the seizure could be made on 3.11.2017 at 2:00 p.m. the dealer had already downloaded and produced the e-way bill before the authority at 8:40 p.m. on 2.11.2017. Since the only allegation against the petitioners is of non production of e-way bill, which the petitioners had produced before the authority, the goods and vehicle are directed to be released forthwith upon the petitioners furnishing security, other than cash and bank guarantee, to the satisfaction of the authority concerned.
Petition disposed off.
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2017 (11) TMI 1959
Rectification of mistake - HELD THAT:- As per the earlier tribunal order [2016 (4) TMI 1221 - ITAT BANGALORE] Ground Nos. 14 & 15 were decided and rejected as per Para No. 18 of that tribunal order and in the M. P. order the order was not recalled for fresh decision in respect of Ground Nos. 14 & 15. In view of these facts, there is no merit in this contention that Ground No. 14 & 15 are also to be decided afresh. Therefore, there is no mistake in the tribunal order that the Ground No. 16 is general and it does not require any specific adjudication and this ground was rejected on this basis. The M. P. filed by the assessee is liable to be dismissed as we find no mistake in the tribunal order.
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2017 (11) TMI 1958
Capital gain computation - valuation of land adopted by the AO without directing the AO to refer the matter to DVO - deduction of fair market value as on 01.04.1981 - HELD THAT:- Admittedly during the year under consideration had converted his agricultural land into stock in trade and had also entered into development agreement with the said developer for development of the said project. The first step which, assessee had taken, is conversion of land into stock in trade which is deemed transfer as per Section 45(2) of the Act. However, the capital gains arising on such transfer on conversion of agricultural land into stock in trade, would only arise in the year, in which the said asset i.e. stock in trade is sold or otherwise transferred by him i.e. either asset is sold or developed and thereafter, sold.
In the present case, assessee has entered into a development agreement of said land and as per agreement to receive 37% of the sale receipts as his share. Admittedly, till 31.03.2010, even the municipal sanction of the plans for the said land for development had not been received by assessee or the said developer. Hence, the property i.e. stock in trade was not even ready for development.
CIT(A) referred to the provision of Section 45(2) of the Act but goes on to say, since the assessee has declared income from capital gains, then the same may be assessed in the hands of the assessee. However, such assessment made in the hands of the assessee is against provision of the Act, especially with reference to Section 45(2) of the Act. In view thereof, we find no merit in the findings of CIT(A) in this regard
Deduction u/s. 54B(1) and 54B(2) - Since the assessee would be liable to pay tax on the capital gain only, when the stock in trade is sold or otherwise, transferred by him. Then the question which arises is whether entering into development agreement by the assessee would result in otherwise, transferring of the said land by the assessee. We find no merit in the same and hold that the deemed transfer as envisaged under Section 45(2) of the Act, would arise only when stock in trade is sold or otherwise, transferred by him and not in the year, in which he converted his asset into stock in trade and further, entered into development agreement for development of the said land. There is no merit in the findings of CIT(A) and the assessee’s entitlement for claiming deduction u/s. 54B(1) and 54B(2) of the Act, would be seen in the year, in which the deemed transfer is to be taxed in the hands of the assessee.
Cost of acquisition as on 01.04.1981 in the hands of the assessee while computing long term capital gain on conversion of agricultural land into stock in trade i.e. deemed transfer - In the present facts of the case, Assessing Officer was of the view that value declared as on 01.04.1981 was higher than the value as on that date. In such circumstances, the provision of Section 55A(1) of the Act cannot invoke. In this regard, we find support in the ratio laid down by the Hon'ble Bombay High Court in the case of CIT Vs. Puja Prints [2014 (1) TMI 764 - BOMBAY HIGH COURT] where it was held that no reference could be made u/s. 55A(1) of the Act to determine fair market value of the property as on 01.04.1981, on the ground value declared by assessee was high. The Hon'ble High Court further held that the amendment brought in by Finance Act, 2012 was prospective. Thus, we hold that there is no merit in the stand of Assessing Officer in adopting value in ad-hoc manner. Accordingly, we hold so. Thus, the order of CIT(A) is confirmed on the first issue and is reversed on the second issue. Hence, grounds of appeal of the revenue are partly allowed.
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2017 (11) TMI 1957
Mesne profits - suit for declaration of title and possession, recovery of possession of plaint A and B schedule properties in case the defendants are found in possession of the same, and for perpetual injunction - A relief of mandatory injunction has also been sought for, for directing the defendants to vacate the plaint B schedule property - HELD THAT:- Section 32(c) of the Registration Act, 1908 also deals with power of attorney. There also, it has been specifically stated that it should be a power of attorney executed and authenticated. When Ext. A2 was not executed and authenticated within the meaning of the said provision, that could not have been relied on for permitting the execution and registration of Ext. A3. Moreover, Ext. A2 cannot be said to be a document attested within the meaning of Section 3 of the Transfer of Property Act also.
This is a case wherein even though the plaintiff had agreed in cross-examination that she was ready to examine the executants through video conferencing, the said facility was ultimately not made available. The reason mentioned by the courts below for the same is that the Malaysian Government did not grant permission. The said version is one coming from the mouth of the plaintiff alone, that too, without any documentary evidence. There is absolutely nothing to show that permission was sought for from the Malaysian Government for the said facility and the said facility was denied by the Malaysian Government.
The suit is one for declaration of title and recovery of possession. When the reliefs of declaration and recovery of possession based on title have been sought for, the plaintiff has to stand on her own legs to prove that she has title. The weakness of the defence or the absence of title on the part of the defendants cannot be encashed by the plaintiff to prove the title of the plaintiff. From all the above, this Court is satisfied that both the courts below have gone wrong in decreeing the suit. The impugned judgment and decree passed by the lower appellate court as well as the trial court are liable to be set aside. The suit is only to be dismissed.
In the result, this Regular Second Appeal is allowed and the judgments and decrees passed by both the courts below are set aside. The suit is dismissed. In the nature of the RSA, there is no order as to costs. All pending interlocutory applications in this appeal are closed.
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2017 (11) TMI 1956
Restoration of petition - Refund claim - it was held by High Court that the Court sets aside the impugned orders dated 19th January 2016 and 14th January, 2016 respectively and restores the said claims of the Petitioners to the file of the Assistant Commissioner (Refund) for a fresh decision on merits - HELD THAT:- No stay.
Tag with Civil Appeal No. 2960 of 2010.
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2017 (11) TMI 1955
Exemption from Property Tax - Demand notice issued without any notice nor any opportunity of personal hearing to the petitioners - claim of the petitioner for exemption of property tax not placed before the Corporation Council for its approval - competent authority to consider the claim of exemption regarding the property tax - violation of statutory principles - Whether the petitioners-hospitals are eligible to be exempted from paying the property taxes as demanded by the respondent - Corporation, or not? - HELD THAT:- The impugned demand notices were issued by the respondent - Corporation in all these writ petitions claiming property tax from the petitioners - hospitals for various assessment years, but, however, the petitioners - hospitals contended that they, being hospitals, are purely exempted from paying property tax as per Section 122(e) of Madurai City Municipal Corporation Act, 1971 - The respondent - Corporation resisted the writ petitions disputing the character and status of the petitioners - hospitals as they are collecting exorbitant rent from the patients who were admitted and fees were also received for rendering service in the hospital and no service was rendered free of charge to whomsoever. The plea that they were collecting only a nominal charge from the poor, distressed, disabled and needy persons, based on their income was not true and no evidence was produced to that effect. Further, the exemption granted under Section 80-G of the Income Tax Act, would not, by itself, entitle the petitioners - hospitals to seek an exemption from the payment of property tax.
When the respondent - Corporation relies upon not only the receipt of amount from the patients, but also the rent received towards Canteen and fees collected for parking the vehicles and other sources, whether those receipts would attract rent or not, has to be decided only by the assessing authority, at the instance of objection or revision by the owner of the building, even if they are charitable hospital and dispensaries. Without that process being resorted to, it may not be proper to quash the demand notice itself, assuming the receipt of the amount, by itself, would not amount to a rent.
This Court holds that the benefit conferred under Section 122(e) of Madurai City Municipal Corporation Act, 1971, is not automatic, in view of the proviso to Section 122(e) of the Act and the only course available for the petitioners - hospitals is that on receipt of the demand notice, they are at liberty to either make an objection or file a revision enclosing the material to prove that they are entitled to exemption - Petition disposed off.
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2017 (11) TMI 1954
Disallowance u/s.14A - expenditure incurred in connection with exempt dividend income - HELD THAT:- Hon’ble Jurisdictional High Court in the case of Regindton (India) Ltd [2017 (1) TMI 318 - MADRAS HIGH COURT] has held that expenditure incurred in connection with exempt dividend income would relate only to the previous year when the income was earned. In our opinion, there is no room for doubt that disallowance u/s. 14A of the Act cannot exceed income claimed as exempt by an assessee. We therefore restrict the disallowance u/s.14A - Appeal of the assessee is treated as partly allowed.
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2017 (11) TMI 1953
Disallowance u/s 14A - investments are made for the strategic purposes in - the associate and group companies to take over the control/management - whether the AO was right in disallowing expenditure incurred in relation to exempt income even though the assessee has not earned any exempt income for the year under consideration? - HELD THAT:- A similar issue has been considered by the co-ordinate bench in assessee’s own case for the assessment year 2010-11. The co-ordinate bench, after considering the relevant provisions and also relying upon the decision of Hon’ble Delhi High Court in the case of CIT vs Chemivest Ltd [2015 (9) TMI 238 - DELHI HIGH COURT] held that no disallowance u/s 14A can be made if there is no exempt income earned during the year. The co-ordinate bench further observed that there would be no adjustment of disallowance u/s 14A can be made on this score in the book profit u/s 115JB.
We are of the view that there cannot be any disallowance u/s 14A r.w.r. 8D, if there is no exempt income earned during the relevant financial year. Therefore, we direct the AO to delete addition made u/s 14A r.w.r. 8D of I.T. Rules, 1962.
We direct the AO to restrict disallowance u/s 14A to the extent of exempt income earned by the assessee. - Decided in favour of assessee.
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2017 (11) TMI 1952
Misdeclaration of goods - The goods had actually originated from Taiwan and Korea but were falsely claimed to have originated from Singapore for claiming exemption - penalty - It was held by Gujarat High Court that all such certificates were forged - HELD THAT:- The SLP is dismissed.
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2017 (11) TMI 1951
Classification of imported goods - Electrical/Gas Calcinations as well as Gas Calcined Anthracite Coal (CGA and ECA) through the EDI Systems - to be classified under CTH 2701 11 00 or under CTH 3824 90 90? - HELD THAT:- The coal has undergone the process of calcinations does not alter the nature of the product as anthracite coal. The process of calcinations itself is a common treatment process applied to many solid materials. It is commonly used in Metallurgy to concentrate ore and remove hydrates and carbonates as per the ratio laid down in the case of 20 MICRONS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAJKOT [2005 (11) TMI 144 - CESTAT, MUMBAI].
From the record, it also appears that calcine is the natural form and the same was applied in the instant case - there are no reason to interfere with the impugned order and the same is sustained - appeal dismissed.
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