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Showing 101 to 120 of 1428 Records
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2015 (7) TMI 1335 - SUPREME COURT
Pension - benefit of revision of the pay scale - Rajasthan Civil Services (Revised Pay Scales for Government College Teachers) Rules, 1988 - HELD THAT:- The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar [1971 (5) TMI 65 - SUPREME COURT] wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules.
It will be appropriate and apposite on the part of the employers to remember the same and ingeminate it time and again so that unnecessary litigation do not travel to the Court and the employers show a definite and correct attitude towards employees. We are compelled to say so as we find that the intention of the State Government from paragraph 5 of the circular/memorandum has been litigated at various stages to deny the benefits to the Respondents. It is the duty of the State Government to avoid unwarranted litigations and not to encourage any litigation for the sake of litigation.
Appeal dismissed.
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2015 (7) TMI 1334 - ITAT CHANDIGARH
Deduction u/s 80IC - reducing the profit eligible for deduction for Duty Draw Back and Misc. Receipts - HELD THAT:- We are of the view that no interference is called for in the matter. Under Section 80IC, deduction is allowable to the assessee where the gross total income of the assessee includes any profits and gains derived by an undertaking or an enterprise from any eligible business referred to in the said Section. The Duty Draw Back is paid by the government under various incentive schemes and thus, are not derived from eligible business.
Hon'ble Supreme Court in the case of Liberty India Vs CIT [2009 (8) TMI 63 - SUPREME COURT] held that, “The connotation of the words “derived from” is narrower as compared to that of the words “attributable to”. By using the expression “derived from” Parliament intended to cover sources not beyond the first degree.” The issue is, therefore, covered against the assessee by judgement of Hon'ble Supreme Court in the case of Liberty India (supra). This ground of appeal of the assessee is accordingly, dismissed.
Brokerage on account of ocean freight is business income as was already held by the Tribunal in the case of the same assessee vide order dated 10.02.2015. Therefore, assessee would be entitled for deduction under section 80IC of the Act on said amount. The orders of authorities below are accordingly, set aside and Assessing Officer is directed to grant deduction under section 80IC to the assessee.
Reducing the profits eligible for deduction u/s 80IC being 70% of excess provisions written back - HELD THAT:- CIT(Appeals) noted that Assessing Officer has not held that the provisions written back are not eligible for deduction under section 80IC of the Act because Assessing Officer has merely disallowed 70% claim of the assessee. The submissions of the assessee show that when provision was created in the previous year, it would result net profit of the assessee reduced in preceding assessment year 2006-07. Therefore, assessee would have also got lesser deduction under section 80IB of the Act, as such, the income of the assessee was reduced in preceding assessment year. Therefore, assessee correctly claimed that when provision was taken care in the year under appeal, it would enhance the income of the assessee. Since the income earned by the assessee was not disputed by the Assessing Officer and Assessing Officer allowed part claim of the assessee to the extent of 30%, would clearly show that assessee was entitled for deduction under section 80IC of the Act on the entire amount of provisions written back in the year under consideration. We, therefore, set aside the orders of authorities below and direct the Assessing Officer to allow claim of assessee under section 80IC of the Act on the entire claim made by the assessee.
Not calculating minimum alternate tax to be carried forward to subsequent year in the correct manner - admission of additional ground of appeal - HELD THAT:- Since this issue is not arising out of the order of ld. CIT(Appeals) and assessee has not shown any justification for admission of the additional ground of appeal, therefore, the oral request of ld. counsel for the assessee cannot be accepted at this stage. In the absence of any request in writing for admission of the additional ground of appeal, ld. DR was justified in contending that department would be seriously prejudiced in their contention because no opportunity had been given to the revenue to counter the request of the assessee. This issue is also not arising from the order of the ld. CIT(Appeals) and that no reason or justification had been explained why such request should be admitted. Therefore, considering the totality of the facts and circumstances of the case, we do not find any justification to accept the oral request by ld. counsel for the assessee in admitting additional ground of appeal so raised in ground No. 4 of the appeal of the assessee.
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2015 (7) TMI 1333 - ITAT MUMBAI
Deduction u/s. 80IA - income from sale of Certified Emission Reduction (CER) - capital receipts OR Business and Profession - HELD THAT:- As per the Hon’ble High Court in M/S. MY HOME POWER LTD., [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT] the income on sale of excess Carbon Credits was a capital receipt and not a business receipt/income. Notably, even in the case of assessee before the Hon’ble Andhra Pradesh High Court, assessee had earned income on sale of Carbon Credits in the course of carrying on the business of power generation, which is also the fact-position before us. The Hon’ble High Court has held that the income received on sale of excess Carbon Credits was a capital receipt not chargeable to tax. Quite clearly, the said Judgment supports the plea of assessee in the instant case that the receipts on sale of CERs is a capital receipt not chargeable to tax. Following the said Judgment we uphold the plea of the assessee.
The Ground of appeal no. 1 relating to claim of exemption u/s. 80IA of the Act on the income from sale of Carbon Credits is rendered academic in view of our decision on Ground of appeal no. 2.
Disallowance u/s 14A - HELD THAT:- Representative for the assessee has not seriously disputed the disallowance made by the Assessing Officer on account of direct interest expenditure related to earning of exempt income. Ostensibly, the said working was provided by the assessee itself in the course of hearing before the Assessing Officer. Nevertheless, it is to be noted that the entire issue of the disallowance made by invoking section 14A is quite redundant because the CIT(A) agreed to an omnibus alternate plea of the assessee to the effect that the amount disallowed u/s 14A of the Act resulted in increased profits, which qualified for the benefits of section 80IA of the Act. The aforesaid decision of the CIT(A) is challenged by the Revenue by way of Ground of appeal No.2.
We find no reason to interfere with the same inasmuch as the same are unexceptional. The CIT (A) has factually concluded that the disallowance of administrative expenses u/s 14A r.w.r 8D(2)(iii) of the Rules leads to enhanced profits of the eligible business of the generation of power and, therefore, such enhanced profits have been rightly held to be eligible for benefits of section 80IA of the Act. No material has been lead by the Revenue before us which would enable us to distract from the above finding of the CIT(A), which is hereby affirmed and Revenue fails in Ground of appeal no. 2.
Whatever income was enhanced on account of disallowance computed u/s 14A of the Act, it has been offset by the exemption available on such enhanced profit in terms of section 80IA of the Act. Thus, on facts it is quite clear that the disallowance u/s 14A of the Act does not impact the net taxable profits as assessee becomes eligible to higher exemption u/s 80IA. Therefore, the dispute pertaining to the efficacy of the disallowance u/s 14A of the Act, r.w. rule 8D(2) of the Rules, which is manifested in Ground of appeal no. 4 of the assessee and in Ground of appeal no. 1 of the Revenue, is academic in nature. Thus, we refrain from adjudicating the same at the present.
Determination of ‘Book Profits’ for the purpose of section 115JB - HELD THAT:- Considering the entirety of facts and circumstances and the position of law explained by the Hon’ble Supreme Court in the case of National Thermal Power Corporation [1996 (12) TMI 7 - SUPREME COURT] and by the Hon’ble Bombay High Court in the case of Pruthvi Brokers & Share Holders Pvt. Ltd. [2012 (7) TMI 158 - BOMBAY HIGH COURT] we deem it fit and proper to admit the aforesaid Additional Ground of Appeal no. 2 also. Insofar as the merit of said ground is concerned, it would be in the fitness of things that the same is restored back to the file of Assessing Officer for adjudication, since the same was not before the lower authorities. Needless to say the Assessing Officer shall allow the assessee a reasonable opportunity of being heard in support of the aforesaid Additional Ground of Appeal and thereafter pass an order afresh as per law.
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2015 (7) TMI 1332 - MADRAS HIGH COURT
Issuance of speaking order - assessment of the aluminium scrap covered by Bills of Entry Number and Dates as specified in the Annexure to the writ petitions - Valuation of imported goods - enhancement of value - HELD THAT:- This Court finds no embargo to direct the third respondent-The Deputy Commissioner of Customs, to pass a speaking reasoned order. Accordingly, the third respondent is directed to pass a speaking reasoned order under Section 17(5) of Customs Act in respect of assessment of aluminium scrap covered by Bills of Entry specified by the petitioner-firm, within a period of one week from the date of receipt of a copy of this order.
Petition disposed off.
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2015 (7) TMI 1331 - ITAT CHANDIGARH
Capital gain computation - AO rejecting market valuation as on 01.04.1981 as calculated by the Registered Valuer as against calculated fair market value without taking expert opinion - HELD THAT:- The assessee filed report of Registered Valuer in support of the market value as on 01.04.1981. AO was not having any evidence or material before him to contradict the report of the Registered Valuer. AO, if was not satisfied with the report of the Registered Valuer, could have made a reference to the Departmental Valuation Officer under section 55A for the purpose of computing income from capital gains.
AO has thus, not acted in accordance with law and without any basis or evidence in his possession, did not accept report of the Registered Valuer. In the absence of any material on record, AO should not have made his own calculation for the purpose of computing the capital gains. The orders of the authorities below, thus, cannot be sustained in law. We, accordingly, set aside the orders of authorities below and direct AO to accept valuation reported by the assessee as per report of the Registered Valuer as on 01.04.1981 and accept the computation filed by the assessee. - Decided in favour of assessee.
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2015 (7) TMI 1330 - SC ORDER
Business auxiliary service - Market promotion in India - Export of services or not - Difference of opinion - majority order - whether the appellant, who is subsidiary company and had entered in the market development agreement with foreign principal located at Singapore is liable to Service tax on the services so rendered by them to its principal company.
HELD THAT:- Appeal admitted.
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2015 (7) TMI 1329 - DELHI HIGH COURT
Demand for payment of property tax on the suit property - coercive steps for recovery of the impugned amount of property tax - Right to file an appeal - HELD THAT:- A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit - Courts have the jurisdiction to try all suits of a civil nature with the only limitation being the right expressly or impliedly barred by law.
Many statutes contain express bars with respect to the right to file a civil suit. For instance, Section 293 of the Income Tax Act contains such a bar. Similarly there are a number of other statutes containing such a bar - except where a civil suit is specifically barred under a particular statute there can be no bar to a civil suit. A suit for its maintainability requires no authority of law. It is enough that no statute bars the suit. The jurisdiction of civil court is all embracing. It is determined on the basis of pleadings of the plaintiff in the suit.
The mere fact that a statute provides for certain remedies is not sufficient to exclude jurisdiction of civil courts. The right to approach the civil courts is an inherent right which normally cannot be taken away or presumed to be taken away. The right is too strong to be denied by indirect means. Only a specific bar could take it away.
While on the question of express or implied bar to a civil suit, the Division Bench noted that elsewhere in the Delhi Municipal Corporation Act, 1957, where the legislature intended to create a specific bar to exercise of right to file a civil suit, it had specifically provided for it. In this connection the Division Bench made a reference to Sections 347A, 347B and 347E of the Act, in matters relating to unauthorised construction in properties and demolition of such construction, the statute having established an Appellate Tribunal before which the parties were entitled to agitate their grievances. In all such cases appeals were provided to the Appellate Tribunal and further appeal was provided from the order of the Appellate Tribunal to the Administrator under Section 347B. Section 347E was providing for a complete bar on the power of a civil court to entertain any suit/application or other proceedings in respect of any order or notice appealable under Section 343 or Section 347B.
Since the learned Single Judge has not looked into the issue required by law to be looked into and the error in the impugned decision is to overlook the distinction where jurisdiction of a civil court is expressly barred under a statute and where the jurisdiction is impliedly barred due to a remedy available under a statute but the remedy is onerous and has also not looked into the pleadings to determine whether a limited window was opened to the plaintiffs to maintain the civil action - We dispose of the two appeals declaring that there is no absolute bar to the maintainability of a suit challenging assessment and levy of property tax under the Delhi Municipal Corporation Act, 1957, but the scope of the suit would be limited i.e. the challenge would be limited in light of the law declared.
The Registry is directed to list the suit for directions before the Roster Bench on August 10, 2015.
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2015 (7) TMI 1328 - ITAT PATNA
Registration as a charitable institution u/s.12AA rejected - assessee society to be formed for the benefit of the Christians community - HELD THAT:- Applicability or otherwise of s. 13(1)(b) as a valid ground while considering the issue of registration u/s. 12AA of the Act in-as-much as registration is a pre-requisite for availing the benefit of ss. 11 & 12
In the facts of the case, we have found the assessee society to be formed for the benefit of the Christians community and which therefore definitely could form a ground for denial of its registration in-as-much as its income is liable to be excluded for consideration u/ss. 11 and 12 of the Act. Nothing has been brought on record to exhibit, or otherwise any case made out of, the assessee-society undertaking any (charitable) project in a wholly impartisan manner, i.e., devoid of any consideration as to religion, either in terms of the people employed; provided support (refer Cl. 3(vi)), or served thereby. - Decided against assessee.
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2015 (7) TMI 1327 - ITAT PATNA
Charitable institution registration u/s.12AA withdrawn - assessee-society to be formed for the benefit of the Christian community - HELD THAT:- What is meant by or the scope of the words ‘primarily for Catholics’, to which he admitted is to imply a clear preference to the practitioners of the said faith in regard to the conduct and affairs of the institution, including the admission thereto and its management, even as sought to be clarified per its Charter.
Referring to words ‘secular and scientific’ as appearing in clause 3(b)(supra) of the object clause. That, to our mind, would be of little relevance inasmuch as the same concerns the nature or the qualitative aspect of the education, while the issue or the aspect being considered by us is the identity of the recipient of the education, i.e., who stand to benefit therefrom and to whom the same is targeted, i.e., its beneficiary. In this context, the expression ‘in particular’ came for the consideration by the Apex Court in CIT vs. Kamla Town Trust [1995 (11) TMI 1 - SUPREME COURT]. In the facts of that case the object of the trust included construction of houses for workmen in general and, in particular, for the workmen, staff and other employees of the settler company - the provision relating to workmen in general did constitute a charitable object, the words ‘in particular for the workmen of the company’, negatived its public character, so that the trust could not be considered to have been established wholly for charitable purposes.
As consider the issue as to if the assessee could be denied registration in view of attraction of section 13(1)(b) of the Act, i.e., considering that the same is expressed to preclude sections 11 and 12 of the Act. We consider it as so inasmuch as the same forms an abiding or defining feature of the applicant, in which case, to what effect or purpose, one may ask, is the registration, i.e., if not toward grant of exemption u/ss. 11 and 12 of the Act.
In the case of CIT vs. Dawoodi Bohra Jamat [2014 (3) TMI 652 - SUPREME COURT] wherein the Hon’ble Court approved the applicability of s. 13(1)(b) as a valid ground while considering the issue of registration u/s. 12AA of the Act inasmuch as registration is a prerequisite for availing the benefit of ss. 11 & 12 (pg. 41), approving of registration on a finding of non-applicability of s. 13(1)(b). In the facts of the present case, we have found the assessee-society to be formed for the benefit of the Christian community, and which therefore could definitely form a ground for withdrawal of its registration inasmuch as its income is liable to be excluded for consideration u/ss. 11 and 12 - Decided against assessee.
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2015 (7) TMI 1326 - ALLAHABAD HIGH COURT
Input Tax Credit - credit denied only for the reason that the dealers were not registered - whether Commercial Tax Tribunal was legally justified in granting the benefit of input tax credit to the dealer without verifying the nature of transaction as discussed by the assessing authority as well as by first appellate authority? - HELD THAT:- The ground on which the input tax credit was denied is not sustainable and therefore the orders of assessing authority have rightly been set aside.
Sri Pandey further argued that in view of Rule 21 (3) of the Rules framed under the U.P. Value Added Tax Act, 2008 the benefit of input tax credit can also be disallowed, if there is no actual sale/purchase of goods - In this regard the assessing authority has not returned any finding. However, a careful perusal of the order of the tribunal reveals that documents were produced before the assessing authority to establish the actual purchase of goods which on verification were found to be correct as per the finding of the tribunal - also the argument that benefit of input tax credit is not admissible as there is no actual sale/purchase of goods is of no substance.
The assessee herein are entitle to the benefit of input tax credit in the relevant years and the consequentially the provisions of entry tax would not be attracted - revision dismissed.
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2015 (7) TMI 1325 - ITAT AHMEDABAD
MAT - Adjustment of book profit u/s 115JB by the estimated gratuity provision made on the basis of actuarial valuation which is unascertained liability - HELD THAT:- In view of the above discussion, we hereby recall the order [2013 (8) TMI 810 - ITAT AHMEDABAD] the limited purpose of disposing of ground no.7a and fix the matter for this purpose on 21st September, 2015. As the date of hearing has been announced in the open court, there is no need to issue fresh notice to the parties.
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2015 (7) TMI 1324 - MADRAS HIGH COURT
Offence under PMLA - Provisional Order of Attachment - availability of alternate remedy - Defective notice - provision for stay in respect of the appeals to be preferred under Section 26 of PMLA - HELD THAT:- Notice under Section 8(1) of PMLA is not in consonance with the provisions of PMLA, cannot be gone into by this Court at this stage, as the petitioners were granted liberty to approach the Appellate Authority.
Other submission made by the petitioners, that the second respondent had also seized ₹ 50 lakhs being proceeds of crime and is also attempting to open the two lockers and take away it's contents, the legality of the said act cannot be considered by this Court at this stage, in these writ petitions, for the reason that the petitioners are having an effective alternate remedy under Section 26 of PMLA.
No doubt, there is no provision for stay in respect of the appeals to be preferred under Section 26 of PMLA. However, it is settled position of law that the Appellate Authority being the creature of a Statute, is having inherent power, to grant interim orders pending disposal of the appeal, and in such a view of the matter, it is always open to the petitioners to move applications for stay.
This Court is of the view that the writ petitions are not maintainable on the ground of availability of alternate remedy.
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2015 (7) TMI 1323 - ITAT INDORE
Denial of natural justice - CIT(A) has not given opportunity of hearing to the assessee - assessee could not remain present before the ld. CIT(A) and appeal was decided ex-parte - HELD THAT:- We find that the CIT(A) in his order has written that none appeared on behalf of the Department and as per the decision of in the case of CIT vs. Amritlal Bhogilal & Co. [1958 (4) TMI 3 - SUPREME COURT] wherein it is held that the appellate authority exercises the power if found to hear ITO or his Representative.
In the case of CIT v. Multiplan India Ltd., [1991 (5) TMI 120 - ITAT DELHI-D] the appeal filed by the revenue before the Tribunal, which was fixed for hearing. But on the date of hearing, nobody represented the revenue/appellant nor any communication for adjournment was received. There was no communication or information as to why the revenue chose to remain absent on date. The Tribunal on the basis of inherent powers, treated the appeal filed by the revenue as unadmitted in view of the provisions of Rule 19 of the Appellate Tribunal Rules, 1963.
We find that in this case the AO was not heard. Therefore, we restore this issue back to the file of ld. CIT(A) and CIT(A) is directed to give notice of hearing to the assessee and decide the matter afresh
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2015 (7) TMI 1322 - SUPREME COURT
Levy of service tax on Supply of food and beverages in a restaurant - Constitutional validity of sub clauses (zzzzv) and (zzzzw) of Clause 105 of Section 65 of the Finance Act, 1994, as amended by Finance Act, 2011 - HELD THAT:- Issue notice.
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2015 (7) TMI 1321 - ITAT BANGALORE
TDS u/s 194H - Non-deduction of tax on discounts extended to distributors of prepaid simcard / talktime - HELD THAT:- In TATA TELESERVICES LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX (TDS). CIRCLE 18(1). BANGALORE [2013 (1) TMI 480 - ITAT BANGALORE] held that Section 194H of the Act is not applicable in similar type of transactions and deleted the action of the AO treating the assessee as one in default. However this Tribunal being a sub-ordinate body to the Hon’ble jurisdictional High Court in the State of Karnataka, is bound by the judgment of Hon’ble jurisdictional Hgih Court and cannot give any directions beyond what has been given by the Hon’ble jurisdictional High Court in the case of Bharti Airtel Ltd [2014 (12) TMI 642 - KARNATAKA HIGH COURT]. Accordingly we are of the opinion that the matter requires a fresh look by the AO. We set aside the orders of the authorities below and remit the issue back to the file of AO for consideration afresh in accordance with the directions of the Hon’ble jurisdictional High Court in the case of Bharti Airtel Ltd (supra). Ordered accordingly. Ground 2 of the assessee for all the years are treated as allowed for statistical purposes.
Non deducting tax at source u/s.194J - roaming charges paid to other telecom operators - whether roaming charges paid by assessee to other service providers for using their services by assessee’s customers could be treated as technical services falling u/s.194J - HELD THAT:- Reading of the above order clearly show that fact-situation was essentially similar to the one here in the case of the assessee. Assessee was also treated as one in default for failure to deduct tax at source on roaming charges paid to other distributors. Therefore the coordinate bench of the Tribunal in the case of Bharti Hexacom Ltd [2015 (7) TMI 175 - ITAT JAIPUR] would squarely apply as held these charges are not fees for rendering any technical services as envisaged in Section 194J of the Act. Therefore, we reverse the order of the ld CIT(A) and assessee’s appeal is allowed on this ground also.Also see VODAFONE ESSAR GUJARAT LIMITED AHMEDABAD VERSUS ASSISTANT COMMISSIONER OF INCOME TAX, TDS CIRCLE, AHMEDABAD [2015 (7) TMI 474 - ITAT AHMEDABAD] - Decided in favour of assessee.
Levy of interest u/s.201(1A) - HELD THAT:- As lready held that assessee is not at default for deduction of tax on roaming charges and interest levied on the assessee on such amount u/s.201(1A) of the Act, stands deleted. However, in so far as interest u/s.201(1A) of the Act in relation to discounts / commission on prepaid sim cards and talk time is concerned, we have remitted the issue back to the file of the AO for consideration afresh
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2015 (7) TMI 1320 - ITAT DELHI
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2015 (7) TMI 1319 - ITAT BANGALORE
Deduction u/s 10A - compensation received by the assessee on account of termination of contract - whether it would be part of profit of the business for the purpose of computing deduction u/s 10A ? - HELD THAT:- In the case in hand, the assessee is 100% export oriented unit (EOU) and particularly, the export of software. The contract in question was for supply/export of software and on cancellation of that contract for supply of software, the assessee received the compensation which is nothing but income derived from the said undertaking from the main business activity of the supply/export of software. Therefore following the decision of the Delhi Bench in the case Sony India Pvt. [2008 (9) TMI 420 - ITAT DELHI-H] , we are of the view that the amount received by the assessee as compensation on account of cancellation of the contract in relation to export of software would constitute as its business income and will be part of profits of business of the undertaking and, therefore, eligible for deduction u/s 10A.
Exclusion of the expenses both from export turnover as well as from the total turnover for the purpose of computing deduction u/s 10A. - This issue of exclusion of the expenses incurred in foreign exchange from the export turnover as well as from the total turnover is settled by the judgment of Hon’ble Jurisdictional High Court in the case of Tata Elxsi [2011 (8) TMI 782 - KARNATAKA HIGH COURT] wherein held that here should be uniformity in the ingredients of both the numerator and the denominator of the formula, Section 10-A is a beneficial section.
Setting off of brought forward losses - HELD THAT:- The issue on the setting off of brought forward losses after allowing the deduction u/s 10A is now covered by the judgment of Hon’ble Jurisdictional High Court in the case of CIT(A) Vs. Yokogowa [2011 (8) TMI 845 - KARNATAKA HIGH COURT] wherein Hon’ble High Court has held that the deduction u/s 10A is allowable on the relevant years profits of the eligible unit without brought forward losses and unabsorbed depreciation being set off.
Re-imbursement of travelling expenses to be included in the profit of the business while computing deduction u/s 10A of the Act. - AR has pointed that this issue has not been adjudicated by the CIT(A) - HELD THAT:- . Since this issue has not been adjudicated by the CIT(A), therefore, we remit this issue to the record of the CIT(A) for adjudication of the same on merit after giving an opportunity of being heard to the assessee.
Disallowance of deduction u/s 10A in respect of deemed export on account of sale to another STP unit - HELD THAT:- As far as the allowability of deduction u/s 10A in respect of the sale to another STP unit in convertible foreign exchange, this issue is now covered by the above decision of Hon’ble jurisdictional High Court. However, this issue has not been examined by the CIT(A), therefore, only for the limited purpose of giving a finding that the sale in question is to the another STP unit, the issue is remitted to the record of the AO for verification and then allowing the claim of the assessee if sale in question is to the another STP unit.
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2015 (7) TMI 1318 - ITAT MUMBAI
Non service of the jurisdictional notice u/s.143(2) - Notice not being not within the stipulated time period - prescribed mode of service u/s.282(1)(a) - HELD THAT:- Service on the assessee to be on 30.09.2010, invoking the presumption of section 27 and section 114(f) of the General Clauses Act and the Indian Evidence Act respectively, as well as noticing and appreciating the material placed on record. This, despite, we may reiterate, the position in law, i.e., as to the controversy arising, in view of the objection raised by the assessee during the assessment proceedings being limited to the time of service, which itself therefore becomes undisputable. Whichever way one may thus look at the matter, service on the assessee-firm on 30/9/2010 is in law proved under the given facts and circumstances of the case. The same being within the time limitation stipulated under proviso to s. 143(2), assailing the assessment for want of jurisdiction on that score is misplaced. We decide accordingly.
Estimation of income - rejection of books of accounts - HELD THAT:- We only consider it fit and proper to estimate the assessee’s income for the year holding of a change in the assessee’s business for the current year, so that trading in paper, as stated in its SOF, was also added to the existing business of printing. We estimate the income for the year by ascribing the incremental sales to the trading business (in printing paper), retaining the sales and the net profit of the existing business to the level as disclosed for the immediately preceding year, i.e., at ₹ 70 lacs and 5.0% respectively (by rounding of the same). For the balance sales of ₹ 4469.32 lacs for the current year, we estimate the net profit at 1.0%, i.e., at 1/5 of the profit on the manufacturing activity, and is also in line with the industry average, at least apparently. The Revenue has also not brought or even relied upon any material in this regard. This, i.e., the said estimation by us, shall also take care of the Revenue’s appeal as well, which impugns the allowance of the indirect expenditure as claimed by the assessee.
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2015 (7) TMI 1317 - ITAT AHMEDABAD
Addition u/s. 40(a)(ia) and u/s. 37(1) - Assessee has not produced any supporting evidence to prove assessee's claim - non-compliance of third proviso - authenticity of freight expenses - TDS u/s 194C - Non submission of Form No. 15-J to the Commissioner within the time prescribed in Rule 29D - HELD THAT:- When we look into section 194C(3)(i) for the purposes of invoking 40(a)(ia), we find that only second proviso to it is sufficient to decide whether tax was deductible or not. Time factor involved for compliance of the conditions mentioned in two provisions are different. Second proviso is to be complied with at the time of making payment to the sub-contractor, whereas compliance of third proviso can be deferred till 30th June of next financial year.
The contractor can wait to comply with third proviso till 30th June of next financial year after complying with second proviso. However, the decision on deducibility of tax from the payment made to the sub-contractor cannot be deferred till 30th June Of next financial year. He has to take this decision (about deductibility of tax from payments being made by it to the sub-contractors) just at the time when he is releasing the payments to the sub-contractors.
It is at this point of time second proviso would come into play and when form No. 15-I are submitted by the subcontractors to the contractor then contractor was not required to deduct tax from such payments. Once deductibility of tax depends upon submission or non- submission of form No. 15-I from the sub-contractor to the assessee then non-compliance of third proviso becomes merely technical without affecting in substance the deductibility or non-deductibility of tax on payments made by the assessee to the sub-contractors. Non-compliance of third proviso becomes merely a technical default which remained non-complied would not affect the provision of section 40(a)(ia). - Decided against revenue
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2015 (7) TMI 1316 - CESTAT CHENNAI
Adjustment of excess paid and short paid duty - Finalization of provisional assessment - demand of differential duty without adjustment of excess payment made against while finalising the assessment in a particular year - Held that:- The issue decided in the case of TOYOTA KIRLOSKAR AUTO PARTS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALOR [2011 (10) TMI 201 - KARNATAKA HIGH COURT], where it was held that Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration.
The appellants are eligible for adjustment of excess duty paid while finalizing the provisional assessment for the year 2005-06 and for the subsequent years question of unjust enrichment does not arise - appeal allowed - decided in favor of appellant.
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