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Showing 121 to 140 of 1439 Records
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2015 (7) TMI 1326
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
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
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
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
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
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
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2015 (7) TMI 1319
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
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
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
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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2015 (7) TMI 1315
Reopening of assessment u/s. 148 - assessee has set off the losses arising in Future & Option business against the profit earned in share trading activity - contention of the assessee is that he had not transacted Gaur Seeds F&O which is wrongly mentioned by the AO - HELD THAT:- There is no whisper in the assessment order passed u/s.143(3) (original assessment proceedings) of the above referred Annexure. This goes to demonstrate that the AO had not examined this aspect.
Therefore, there is no infirmity into re-opening of the assessment when the assessee himself has shown to have transacted in Guar future. Moreover, there is no material placed on record suggesting that the auditor clarified it to be typographical error, coupled with the fact that CIT(A) had given a finding on fact that no evidence is furnished in support of the transportation and storage of the Guar seeds. The assessee has stated that the delivery of Guar seeds were taken, however, no evidence is furnished to rebut the finding of CIT(A). In the light of above discussion Ground Nos.1 & 2 of the Assessee’s appeal are dismissed.
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2015 (7) TMI 1314
Fees for Technical Service u/s 44D V/S u/s 44BB as services or facilities in the prospecting for or extracting or production of mineral oils - transfer of technical knowledge and skill - payment made by the assesses ‘ONGC’ to foreign company M/s Gaffney Cline & Associates, UK for audit of reserves for Mumbai High field - test of “Make Available” - HELD THAT:- The scope of work of the contract included audit of ONGC’s current Proved, Proved +Probable and Proved +Probable + Possible ultimate Reserves and Reserves of oil condensate, associated gas and free gas. The above services were thus related to the activity of prospecting for or exploration of mineral oils, which are covered under the provisions of section 44 BB of the Act.
Moreover, the test of “Make Available” is not satisfied as the assessee could not derive an enduring benefit and utilize the knowledge or know how on his own in future without the aid of the service provider for carrying out identical activities. There is no transfer of technical knowledge and skill enabling the assessee to perform similar activities in future at its own. Hence, the payment cannot be taxed as fees for technical services even otherwise in the light of the proposition of law laid down in the case of “De beers India Minerals Pvt. Ltd.” [2012 (5) TMI 191 - KARNATAKA HIGH COURT]. - decided against revenue
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2015 (7) TMI 1313
Offence under PMLA - Application for bail under Section 439 of the Code of Criminal Procedure - HELD THAT:- Considered the statements of the Assistant General Manager of RBI, Kolkata, Seizure List, statements of some Directors of Rose Valley, statements of some office bearers of Rose Valley, statements of some debenture trustees of Rose Valley, statements of some debenture holders of Rose Valley, statements of AGM of Accounts of Rose Valley and statements of some Regional Managers of Rose Valley for formation of opinion whether the petitioner is involved in the offence of money laundering as alleged by the opposite party.
On consideration of the above statements and other materials collected during investigation I cannot persuade myself to hold that no offence of money laundering is made out against the petitioner. The question whether the opposite party is entitled to file supplementary petition of complaint to prosecute the petitioner under Section 4 of the P.M.L. Act remains open for decision by the trial court.
By making a pragmatic approach to the provision of Section 45(1) of the P.M.L. Act and on consideration of the antecedents of the petitioner in collection of money from open market for issuing secured debenture in violation of the guidelines of SEBI and on further consideration of the manner of keeping accounts of the Rose Valley, unable to hold that the petitioner is not likely to commit any offence while on bail. As a result, cannot persuade myself to grant bail to the petitioner at this stage. So, prayer for bail is rejected. The application is dismissed.
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2015 (7) TMI 1312
Deduction u/s 80IC - claim exceeding ten assessment years - Held that:- Section 80IC sub section 6 reads as under: - "Notwithstanding anything contained in this Act, no deduction shall be allowed to any undertaking or enterprise under this section, where the total period of deduction inclusive of the period of deduction under this section, or under the second proviso to sub-section (4) of section 80-IB or under section 10C, as the case may be, exceeds ten assessment years."
It is to be noticed that this sub section starts with "non obstante" clause which means that this section is applicable to all kinds of states wherever section 80IC is applicable. The period of deduction has been clearly restricted to period of ten years inclusive of the deduction claimed under section 80IB. Since assessee has already claimed deduction under section 80IB for ten years therefore assessee is not entitled for the deduction in the present year. - Decided against assessee.
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2015 (7) TMI 1311
Non-representation on the date of hearing - when the appeal was called out, no one was present on behalf of the assessee - Held that:- Till the end of the Board neither the assessee was present nor any request for adjournment had been placed before us. Since in the third round also the position remained the same.
As considered that the assessee may not be serious in pursuing the appeal filed. It is further seen that the notice issued on 15.06.2015 sent to the assessee by speed post at the address indicated in Column No-10 in the memo of appeal filed by the assessee returned unserved with comment “left without address”. Accordingly in the absence of any representation on the part of the assessee seeking time etc. right till the time of the hearing and in fact till the passing of this order, the appeal is dismissed in limine. Support is drawn from the order of the Tribunal in Commissioner of Income-Tax vs. Multi Plan India (P) Ltd.[1991 (5) TMI 120 - ITAT DELHI-D] and Estate of Late Tukojirao Holkar vs. CWT [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT]. - Decided against assessee
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2015 (7) TMI 1310
Grant of the decree of partition of her share in the ‘B’ suit schedule property - self acquired property of the deceased-first defendant - Whether the property bearing No.45, Sant Nagar, East of Kailash, New Delhi, has been constructed out of joint family funds or out of funds received by the first defendant from late Shri R.D. Singh, the husband of the plaintiff? - Held that:- The First Appellate Court was not right in making an observation in the impugned judgment that the plaintiff is only entitled for the refund of the said amount from the deceased first defendant even though there is substantive and positive evidence on record to the effect that the amount sent by the deceased husband of the plaintiff was utilised by the deceased first defendant for the purpose of construction of the building upon the suit schedule ‘B’ property.
The physical possession of the entire suit schedule ‘B’ property could not have been given to the second defendant in the light of the undisputed fact that the physical possession of the second floor of the schedule ‘B’ property is with the plaintiff. Further, the plaintiff is in the possession of the second floor in her independent right of her husband’s share after they separated from the family. Therefore, the alleged gift deed executed by the deceased-first defendant in favour of the second defendant during the pendency of the proceedings with respect to the suit schedule ‘B’ property is not legally correct as it is the joint family property and even otherwise the same cannot be acted upon by the parties - the courts below have failed to exercise their jurisdiction and power properly, thereby causing a grave miscarriage of justice to the rights of the plaintiff upon the ‘B’ schedule property.
The plaintiff must succeed for one more alternate reason viz. that the deceased-first defendant died during the pendency of the proceedings and therefore, Section 8 of the Hindu Succession Act, 1956, will come into operation in respect of the suit schedule ‘B’ property even if it is considered that the said property is a self acquired property of the deceased-first defendant.
The said property of the deceased-first defendant would devolve upon the deceased husband of the plaintiff along with the second defendant and the other daughters of the deceased-first defendant as they are the joint owners of the said property by virtue of being Class I legal heirs of the deceased-first defendant as per the schedule to the Hindu Succession Act, 1956, upon the death of the first defendant - the plaintiff is entitled for 1/4th share in the suit schedule “B” property.
The impugned judgments and decree passed by the trial court and the First Appellate Court are hereby set aside, in so far as ‘B’ schedule property is concerned - civil appeal allowed.
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2015 (7) TMI 1309
Undisclosed income surrendered - addition on account of stock - addition was made solely and wholly on the basis of statement recorded on 16.10.2006 and the surrender made there-under by the assessee - Held that:- CIT(A) has recorded a finding that inventory of stock prepared on the date of survey on 05.10.2006 does not mention the location in which the said raw material has been found and inventorised when the same raw material has already been inventorised at page No. 2 of the list, as reproduced by the CIT(A).
CIT(A) has recorded that on 05.10.2007, after receiving copy of stock statement and valuation of stock as on 05.09.2007, the assessee has retracted from the statement made on account of stock vide letter dated 05.10.2007. The account books of the assessee could not be relied upon as the same do not reflect correct state of affairs of the assessee. However, the addition made of ₹ 24,09,475/- was on higher side due to the facts narrated above and the ends of justice shall met if the addition is restricted to ₹ 10,00,000/- by way of estimate and preponderance of probabilities as against ₹ 24,09,475/- made by the AO on account of stock variation found at the time of survey. Ground No. 1 of appeal of the Revenue is partly allowed.
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2015 (7) TMI 1308
Addition made on account of provision for mark to market loss of the derivative transactions - Held that:- As decided in assessee's own case ITAT had been pleased to allow the appeal against disallowance of provisions for loss on mark to market basis in respect of trading in derivatives which included equity index and stock futures observing that the provisions reflected in substance is the loss arising on account of valuation of closing stock
Disallowance made u/s. 14A r.w. Rule 8D - Held that:- It is an undisputed fact that assessee’s own funds are more than the investment. Therefore, the decision of the Hon’ble High Court of Bombay in the case of Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] and HDFC Bank (2014 (8) TMI 119 - BOMBAY HIGH COURT) squarely apply. To this extent, no disallowance can be made.
In A.Y. 2008-09, the Tribunal has accepted the suo moto disallowance @ 5% of dividend income. We find that in this year, the assessee has given a complete break-up of proportionate expenses allocated by it which is exhibited at page-71 of the Paper book. Except for this, all other facts are identical to the facts of assessment year 2008- 09. Since assessee has given a detailed break-up as mentioned hereinabove, we direct the AO to restrict the disallowance to ₹ 9,49,475/- as made by the assessee.
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2015 (7) TMI 1307
Prohibition on Benami transactions - exception contained in Section 4(3)(b) of the Benami Act - fiduciary relationship with respondent or not - time limitation - Whether the claim in the suit is barred by the provisions of Benami Transactions Prohibition Act, 1988?
Held that:- Since Section 7 of the Benami Act repealed certain provisions, hence, the relationship of trust comprised in such provisions necessarily would be excluded from the sweep of the expression trust/fiduciary relationship found in Section 4(3)(b) of the Benami Act because what is excluded by Section 7 of the Benami Act cannot be got included in Section 4(3)(b) of the Benami Act.
Since the plaintiff in the plaint himself states that the property was purchased as a benami property in the name of the father, late Sh. Jai Gopal Gugnani, merely and although the plaintiff has used the expressions fiduciary relationship and trustee, yet these expressions of fiduciary relationship and trustee are not those expressions which will cause the transaction to fall under the exception of Section 4(3)(b) of the Benami Act, but these expressions are those expressions which fall under Sections 81, 82, and 94 of the Trusts Act and which have been repealed by Section 7 of the Benami Act - the suit is barred by the provision of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988.
The suit is dismissed.
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