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Case Laws
Showing 121 to 140 of 1428 Records
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2015 (3) TMI 1316 - SC ORDER
The decision in the case of M/s SHRI MANJUNATH SHIPPING (P) LTD. [2014 (10) TMI 969 - KARNATAKA HIGH COURT] contested - Held that: - The petitioner(s) shall comply with the order(s) passed by the Tribunal in four weeks time - petition dismissed.
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2015 (3) TMI 1315 - KERALA HIGH COURT
Payment of tax at compounded rates - whether the petitioners who are admittedly dealers engaged in the production of granite metal with the aid of mechanized crushing machines, are entitled to claim exemption from separate assessment, in respect of the M-sand produced by them using VSI/HIS machines, that have not been reckoned for the purposes of compounding under Section 8(b) of the KVAT Act?
Held that: - Section 8(b) of the KVAT has been amended by the Finance Act, 2014 and, specific provisions, providing for payment of compounded tax on VSI/HIS machines of various sizes, have been introduced. The newly introduced amendments are substantive in nature and hence, in the absence of any express indication to the contrary, necessarily prospective in their operation. The said amendment, introduced with prospective effect, also suggests that, for the prior period, the legislature never intended to include VSI/HSI machines in the reckoning of compounded tax under Section 8(b) of the KVAT Act.
Petition allowed by declaring the impugned notices and orders issued/passed by the respondents as illegal and legally unsustainable - decided in favor of petitioner.
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2015 (3) TMI 1314 - ITAT MUMBAI
Exemption under section 11 denied - non adherence to provisions of Bombay Public Trust Act - Held that:- On perusal of the orders of both the tax authorities, we notice that the CIT(A) has given a specific finding that the assessee has not violated any of the provisions of Bombay Public Trust Act and the AO has not pointed out that the assessee has violated the conditions prescribed in sec. 13 of the Income Tax Act. Under these set of facts, we do not find any reason to interfere with the decision of the ld. CIT(A). - Decided in favour of assessee.
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2015 (3) TMI 1313 - RAJASTHAN HIGH COURT
Transfer of case u/s 127 - Whether jurisdiction of the Bench of the Income Tax Appellate Tribunal had to be determined by the place of business or residence of the assessee? - Held that:- In the present case, the office of the Assessing Officer is situate at Jhunjhunu, and thus, the Jaipur Bench of the Income Tax Appellate Tribunal had the jurisdiction to decide the Appeal. The orders of the Assessing Authority and Appellate orders have merged in the order of the Income Tax Appellate Tribunal at Jaipur, and thus the Jaipur Bench of Rajasthan High Court has the jurisdiction to entertain and decide the Appeal under Section 260A of the Act.
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2015 (3) TMI 1312 - MADRAS HIGH COURT
Refusal to draw samples for analysis - it was alleged that the consignment does not satisfy the labelling requirement under Regulation 2.2.2:6(i) of the Food Safety and Standards (Packing and Labelling) Regulation, 2011 - whether the consignment satisfies the requirement under the provisions of the Act and the Regulations more particularly, Section 25 of the Act read with Regulation 2.2.2:6 or (6), which deals with the labelling requirement?
Held that: - Before drawing samples, the Act empowers authorised officer to satisfy himself as to whether the labelling requirements as provided under the Regulation are fulfilled. It is only after due satisfaction of the requirements under the Regulation, samples will be drawn.
M/s.BMC is only a 'supplier' and he is not a 'manufacturer'. The supplier is not stationed in the country where the product is said to have been manufactured, except to state that the Port of loading is Indonesia, the name and address of the manufacturer has been withheld and not furnished.
The name and complete address of the manufacturer and in case the manufacturer is not the packer, the name and complete address of the packer are to be declared on every package of food if the article of food is manufactured or packed by a person under the written authority of the some other manufacturer under its brand name, the label shall carry the name and complete address of the manufacturing or packing unit as the case may be and also the name of complete address of the manufacturer or the company for and on whose behalf it is manufactured or packed or bottled. The consignor/exporter from Malaysia, M/s.BMC is not the 'manufacturer'. Therefore, if it is the case of the supplier that they have been authorised by the manufacturer to manufacture or pack the product, then the name of the manufacturer should have been disclosed in the packing. Mere mention that it is a product of the Indonesia does not satisfy the labelling requirement.
It is not in dispute that the petitioner, supplier is not the 'manufacturer', since they have admitted that M/s.BMC is only a 'supplier'. If that be the case, the name and full details of the manufacturer was bound to be disclosed. This is a very vital requirements, since the product imported is a food product having shelf life only till May 2015. In such circumstances, no error can be attributed to the impugned rejection report issued by the respondent.
Reliance placed in the decision of the Hon'ble Division Bench of the Calcutta High Court in the case of Food Safety and Standards Authority of India vs., Heartland Trading Company Pvt Ltd., [2014 (9) TMI 1032 - CALCUTTA HIGH COURT], wherein the Hon'ble Division Bench pointed out that the purpose of labelling is not to be ascertained by any one for diluting the rigours of the regulations and importing the concept of substantial compliance therewith and strict compliance principle seems to be the requirements of the regulations dictated by public interest that must prevail over any private interest of an importer.
Petition dismissed - decided against petitioner.
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2015 (3) TMI 1311 - SUPREME COURT
Whether a writ application is maintainable against an order of West Bengal Land Reforms and Tenancy Tribunal, refusing to initiate contempt proceedings against an authority arrayed as respondent no.5 before the Tribunal?
Held that: - we are unable to agree with the view that writ petition under Article 226/227 of the Constitution is not maintainable when the Tribunal refuses to initiate a contempt proceeding - The submission that because of similar powers of contempt vested in the Tribunal under Section 15 of the Act of 1997, the Tribunal ceases to be inferior to the High Court for exercise of writ jurisdiction is devoid of any substance because it ignores that High Courts have constitutional status and are vested with extraordinary writ jurisdiction whereas the Tribunal is only a creature of statute.
As held by the Constitution Bench in the case of L. Chandra Kumar [1997 (3) TMI 90 - SUPREME Court] the power of judicial review of the High Court under Article 226/227 of the Constitution cannot be taken away by a law or even by a constitutional amendment.
The matter is remitted back to the High Court for considering the writ petition of the appellant afresh - appeal allowed by way of remand.
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2015 (3) TMI 1310 - ITAT DELHI
Income from transaction of shares - capital gain or business income - Period of holding of shares - CIT-A treated it as income from capital gain - Held that:- We find that Ld. CIT(A) has exhaustively and extensively dealt with the issue and after verification of facts and circumstances, has arrived at the conclusion about the head of income under which the income needed to be assessed. From the facts, we find that assessee had classified the shares in its balance sheet as investment. The holding period for a number of scripts exceeds 365 days. The shares were not purchased but were contributed by partners as their part of capital. In view of the above facts and circumstances, we do not find any infirmity in the order of Ld. CIT(A) and therefore, appeal filed by Revenue is dismissed.
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2015 (3) TMI 1309 - ITAT, PUNE BENCH “B”, PUNE
Disallowance of notional interest on advances/share application money on the ground that the said advance was for acquiring shares - Held that:- Authorized Representative for the assessee has raised a new plea that factually, there was no nexus between the borrowed funds and the advances made to the said parties. In support thereof, the assessee has furnished by way of additional evidence the bank statement showing working of bank account on the relevant dates of advances. The said evidences filed by the assessee are by way of additional evidence. However, since the additional evidence goes to the root of the issue, we admit the same and restore the issue back to the file of CIT(A) to adjudicate the issue after verifying the documents furnished by the assessee by way of additional evidences. We remit the issue back to the file of CIT(A), who shall decide the issue after affording reasonable opportunity of hearing to the assessee. The grounds of appeal raised by the assessee are thus, allowed for statistical purposes.
Addition of Creditors - Held that:- The assessee had also furnished confirmations from the said parties and has also furnished the Ledger accounts of the previous years, which reflect business transactions with the said parties. However, the said ground of appeal was not pressed before the CIT(A) and hence, the same was dismissed as not pressed. The plea of the learned Authorized Representative for the assessee before us was that by some confusion, the said ground of appeal was not pressed before the CIT(A).However, creditors were genuine and verifiable. With regard to some of creditors, the assessee explained that payments were made in the subsequent years, for which the bank certificates have been furnished by way of additional evidences. In respect of the other creditors, it was pointed out that the addition is not warranted since the credit balance is the opening balance as on 01.04.2008 and no transaction has been transacted during the year. However, no such plea was raised before the authorities below. Thus we deem it fit to restore the issue to the file of CIT(A) and direct the CIT(A) to adjudicate the same after verifying the contention of the assessee and to decide the issue in accordance with the law, after affording reasonable opportunity of hearing to the assessee. The additional ground of appeal raised by the assessee is thus, allowed for statistical purposes.
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2015 (3) TMI 1308 - CESTAT, BANGALORE
Refund claim - input services - denial on the ground of nexus - Held that: - Since all the input services have already been considered and have been held to be having nexus with output services by this Tribunal itself, in the present case also the appeal filed by the Revenue cannot succeed - refund allowed - appeal dismissed - decided against Revenue.
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2015 (3) TMI 1307 - ITAT MUMBAI
Deemed rental income - Increasing the rents of protected tenants - Held that:- Assessing Officer had committed an error in considering the amount of money deposited, in court, by Bank of Punjab in the subsequent assessment years as rent due to the assessee instead of compensation/occupation charges, which is directed by the court to be paid by party (in this case Bank of Punjab) against whom eviction order had been passed, which is in direct contradiction of the Assessing Officer's own finding in Page-2 of the Assessment Order, wherein the Assessing Officer has admitted that in July,2003, Bank of Punjab was directed to pay compensation of ₹ 1,42,000/- per month by Delhi High Court.
This amount (deposited by Bank of Punjab) which the Assessing Officer treats as rental income is in reality compensation for wrongful possession which was deposited only in the subsequent assessment years by Bank of Punjab, and was received by the assessee only in A.Y.2007-2008, and A.Y.2008-09. There is wrong presumption by the Assessing Officer that Bank of Punjab and not Hem Kunt Chemicals was the assessee’s tenant without appreciating that as per Sec. 16(a) and (b) of the Delhi Rent Act no tenant without the previous consent in writing of the land lord has the right to sublet or assign the premises occupied by him. Once eviction orders are passed the relationship of land lord/tenant comes to an end. Thereafter, the land lord can be awarded only compensation by the Court till possession is handed back to the land lord by the tenant. Thus, there was a gross error in the assessment order in increasing the rents of all the Appellant's remaining 39 protected tenants (being ₹ 23,769/- per Month paid to the Appellant by its lawful/ protected tenants) by 19000% i.e. to ₹ 50, 72,233/ - Per Month because these lawful tenants are 'protected tenants' who enjoy protection under the Delhi Rent Control Act,1958. Sec 6A of the Delhi Rent Act 1958 has restricted the power of land lords (i.e. the appellant herein) to increase rents beyond 10% and that too only after every 3 years.
Section 105 and 107 of the transfer of Transfer of Property Act does not confer any right on any Civil Court to fix the rent of any premises, which is a matter between the Lessor and the Lessee subject to provisions of the Rent Act. The Appellant is expressly barred from receiving any consideration for creation of a sub-tenant or the tenants as per see 16(4) of the Delhi Rent Act. - Decided against revenue
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2015 (3) TMI 1306 - ITAT VISAKHAPATNAM
Addition of difference in stock statement furnished to bank and the one shown in the books of accounts - Held that:- As decided in CIT-IV, Hyderabad vs. M/s. Sri Taraka Jewellers [2013 (7) TMI 1091 - ANDHRA PRADESH HIGH COURT] there cannot be an addition of difference in stock statement furnished to bank and the one shown in the books of accounts.
As during survey, nothing is found or brought on record to show that on physical verification, the stock found was in excess of the stock recorded in the books of account. It was explained by the assessee that the stock statement furnished to the bank was on estimate basis but the stock shown in the assessment proceedings was based on actual physical verification. As such, there was no reason to reject the books of account of the assessee and no addition is called for solely on account of the difference in value of the stock submitted to the bank and the value of the stock shown in the accounts presented for assessment - Decided against revenue.
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2015 (3) TMI 1305 - DELHI HIGH COURT
Sales Tax Subsidy receipt pursuant to Haryana Government’s Scheme - to be treated as revenue receipt or one falling in the capital scheme - Held that:- A taking note of the salient features of the sales tax exemption scheme as well as the judgment of the Supreme Court in CIT v. Ponni Sugars and Chemicals Ltd.[2008 (9) TMI 14 - SUPREME COURT] correctly held to be as capital receipt. We are of the opinion that the impugned order of the ITAT does not disclose any infirmity. No substantial question of law arises.
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2015 (3) TMI 1304 - ITAT DELHI
Addition on account of interest on Post Dated Cheques paid out of books of accounts - Held that:- The PDCs’ have been encashed within a period of six months as is apparent from page 11 of assessment order where A.O. has noted the date of sale of properties and date of encashment of cheques. Therefore, we find that the facts in the present case are similar in one of the Sister concern i.e. case of M/s IAG Promoters and Development Pvt. Ltd [2015 (2) TMI 12 - ITAT DELHI] therefore, following the Tribunal order in the case of group company, we dismiss this appeal of Revenue.
Disallowance u/s 40A(3) in respect of which no deduction was claimed by the appellant - Held that:- The Tribunal in the group cases of the assessee on identical facts have held that the payment made for acquisition of land was not claimed as a deduction and hence the provisions of S.40A(3) of the Act is not applicable. See case of Glitz Builders and Promoters Pvt.Ltd [2015 (5) TMI 384 - ITAT DELHI] as held that when the cost of the land as well as additional payment is not claimed by the assessee as deduction, the question of any disallowance under Section 40A(3) or otherwise in the case of the assessee does not arise. - Decided in favour of assessee.
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2015 (3) TMI 1303 - SC ORDER
Grant of Additional License - renewal of its certificate of recognition as a trading house - the decision in the case of Oswal Woolen Mills Ltd. Versus Union of India [2014 (5) TMI 1159 - PUNJAB & HARYANA HIGH COURT] contested - Held that: - delay condoned - appeal dismissed.
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2015 (3) TMI 1302 - DELHI HIGH COURT
Bid process - whether the Bid submitted is substantially responsive and whether the rejection of the bid on a hyper technical ground would be in the public interest requiring wider participation of bidders to ensure healthy competition more so in view of the fact that the no unfair advantage had been gained by the petitioner in this process and the petitioners were not stealing a march over any of their competitors by altering their bid amount? - Held that:- We are of the view that the Bid of the Petitioner cannot be held to be materially non-responsive. Rejecting the Bid of the Petitioner, in these circumstances, would be hyper technical and would not be in the public interest requiring wider participation of bidders to ensure healthy competition. Further, in our view, no unfair advantage has been gained by the petitioners in this process and the petitioners are not stealing a march over any of their competitors by altering their bid amount.
In view, of the above, the respondents are directed to consider the bid of the petitioners and not to reject the same as non-responsive on this ground. The Writ Petition is allowed, with no orders as to costs.
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2015 (3) TMI 1301 - CESTAT, BANGALORE
Refund of service tax paid on input services - denial on the ground that certain services were not used in authorised operations and certain services were wholly utilised within the SEZ - Tribunal's decision in the case of TATA CONSULTANCY SERVICES LTD Versus COMMISSIONER OF CENTRAL EXCISE & ST (LTU), MUMBAI [2012 (8) TMI 500 - CESTAT, MUMBAI] referred - Held that: - As regards utilisation in authorised operations, the Tribunal had observed that the Committee which gives approval has a representative of the Revenue also as a Member and having approved being part of the Committee, subsequently Revenue cannot take a stand that input services specified and approved have no nexus or they have not been used in authorised operations and to deny the refund - refund allowed.
As regards the payment of service tax in respect of services utilised entirely within SEZ, the Tribunal took the view that even though the service receiver could have obtained the services without payment of tax, it does not bar him obtaining the services on payment of tax and claiming refund.
Appeal allowed - decided in favor of appellant.
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2015 (3) TMI 1300 - DELHI HIGH COURT
Suit for recovery for alleged detention charges upto to the date of the filing of the suit - Held that:- In the present case, despite lapse of considerable time, defendants No.1 to 5 were neither lifting the goods nor paying the detention charges. This conduct of defendants No.1 to 5 was a clear pointer to the plaintiff that the defendants No.1 to 5 had more or less abandoned the goods. There can be no reason or explanation as to why the plaintiffs have continued to keep waiting and did not take steps to mitigate their damages.
The burden is on the petitioner to produce sufficient material to suggest malafides of the authorities concerned. It is a heavy burden which can be discharged ordinarily by initiating civil proceedings. Unless malafides are established, liability on the customs cannot be established.
In the present case also in the written statement itself defendants No.1 to 4 have stated that the goods of the defendants were detained illegally as there was a demand of ₹ 50 lacs made by one of the Customs Department official for release of the goods. DW-1 in his evidence by way of affidavit has clearly pointed out the name of the official namely Mahesh Kumar Badha. It is stated that the said official has been chargesheeted for his conduct relating to the goods of Sanjeev Woolen Mills. His chargesheet has been filed alongwith affidavit though it has not been proved and has been given a mark as D-7. The said document has not been contested by the plaintiffs. It is an article of charge framed against Mahesh Kumar Badha the then Collector of Customs who was operating as Collector of Customs from January 1991 to January 1992. The allegation pertains to his conduct regarding Sanjeev Woolen Mills, namely, not allowing clearance of waste/woollen waste imported by the firm.
In the light of the above categorical averments, and the evidence of DW-1 it is clear that defendants No. 1 to 4 have established malafides on the part of defendant No.6. However, defendants No.1 to 4 have filed no counter claim. In view of the judgment of the Division Bench of this High Court in the case of CWP 17976-77/2004, no liability can be thrust on defendant No.6. Defendant No.5 is not appearing and has been proceeded ex parte. The admitted position is that when the transaction took place in 1991 he was a partner of defendant No.1. He has exited sometime in 1993. If there is no liability of defendants No.1 to 4 no liability can also fall on defendant No.5.
As already held that the plaintiffs are not entitled to claim detention charges on account of clause 18 of the Bill of Lading and the explanation to section 73 of the Contract Act for the period claimed in the suit i.e. March 1997 to March 2000.
The onus regarding this issue was on defendant nos. 1 to 4. No submission has been made by defendant nos. 1 to 4 in regard this issue. Hence, hold that there is privity of contract between the plaintiff and defendant nos. 1 to 4.
The onus to prove this issue was on defendants No.1 to 4. In the written submissions filed no submissions have been made to support this contention. In the present suit the plaintiffs claimed detention charges of only three years prior to filing of the suit. Hence, I hold that the suit is not barred by time. In view of my finding on issue no. 1 above, the present suit is dismissed with costs. The goods are still lying in a container with the plaintiff. The plaintiffs are free to take steps to destuff the container and dispose of the goods of defendant No.1 in the best possible manner. As value of the goods would have considerably reduced, no need is felt to appoint a court auctioneer. As defendants No. 1 to 5 have abandoned the goods, the plaintiff would be entitled to retain the sale proceeds from sale of such goods.
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2015 (3) TMI 1299 - ITAT MUMBAI
Applicability of section 50C - issue of rate of tax while computing the capital gains - Held that:- We direct the AO to compute the capital gain from sale of industrial units and apply the appropriate tax rate after necessary verification, as the assets have been claimed to have been owned for more than three years. Ground no.1 is decided against the assessee.
Interest under section 220(2) - Held that:- In view of the circular of CBDT vide Circle No.334 Dt.3.4.1982, the interest can be levied only from the date of default of the demand notice issued in pursuance of the fresh assessment order. The order of CIT(A) holding that interest under section 220(2) has to be levied from the date of default as per the original assessment order therefore cannot be sustained. The same is set aside and the claim of the assessee is allowed.
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2015 (3) TMI 1298 - DELHI HIGH COURT
Exclusive employment in a company - petitioner no.2’s application to continue to hold an office or a place of profit at an increased remuneration for a period of 5 years with effect from 01.10.2013 to 30.09.2018 was rejected - Rejection is based on the fact that the petitioner no.2 was working as a Director in other companies, and thus, was not in exclusive employment of petitioner no.1 company - Mr. Kapur’s contention that neither petitioner no.2 was getting remuneration from the companies referred to in Annexure VII nor, was he spending any time qua management of the said companies.
Held that:- What would have to be ascertained by the concerned authority is as to whether the submissions made hereinabove, on behalf of petitioner no.2, were grounded in facts. The impugned order, as indicated above, was passed without hearing the petitioners, and therefore, the aforementioned aspect as well as other aspects raised in the petition were obviously not noticed by the concerned officer, who passed the impugned order. The consequences of assertions made in Annexure VII of the application are not noticed in the impugned order, leading to a very unsatisfactory state of affairs. This error could have occurred, possibly, for two reasons. First, prolixity of the record. Second, on account of failure of the respondents to seek participation of the petitioners in the proceedings.
Therefore, the impugned order is set aside having regard to the peculiar facts and circumstances of this case. The respondents will, thus, issue a notice to the petitioners fixing a date on which they can present themselves for hearing in the matter.
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2015 (3) TMI 1297 - ITAT JAIPUR
Eligibility to exemption u/s 11 - eligible to benefits of set off of carried forward losses - Held that:- As decided in assessee's own case for the assessment year 2008-09 we find that assessee deserves to succeed in this ground. We have seem various assessment orders for earlier years, copies of which are placed on record and found that the respective assessing officers had allowed the net deficit to be carried forward in the respective assessment order. Therefore, there is no reason in not allowing the benefit of carry forward losses/deficit. Accordingly, we direct the AO to allow the benefit of quantified carry forward losses to the assessee against the income of the assessee.
For the sake of clarification, for the year under consideration there was a positive income and, therefore, assessee has filed its return showing the income of the year, exemption under section 11 of the Act has also been claimed. If the carry forward losses are allowed to be set off then the income will become of negative figure and, therefore, exemption under section 11 cannot be allowed. - Decided in favour of assessee.
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