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Showing 121 to 140 of 1749 Records
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2015 (9) TMI 1639 - ITAT MUMBAI
Reopening of assessment - denying the deduction u/s. 80IA in respect of the receipts from transfer of sales tax benefits - Held that:- In assessee’s own case for A.Y 2003-04 to 2006-07 we find that the Tribunal has treated the sale consideration received on the transfer of Sales tax benefits/incentive as a benefit directly arising from the business and therefore the same was treated as a revenue receipt.
Coming to the reasons recorded for the reopening of the assessment as mentioned elsewhere in this order, the allegation of the Revenue is that, the sales tax benefit is not an income derived from the business of the industrial undertaking. This view of the AO is not matching with the decision of the Tribunal in assessee’s own case in earlier assessment years as mentioned hereinabove.
Once the issue has been thoroughtly examined/scrutinized and has met the higher judicial forum, reopening of the assessment based on the same set of facts is nothing but a change of opinion which is not permissible as per the ratio laid down by the Hon’ble Supreme Court in the case of Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT OF INDIA]. - Decided against revenue
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2015 (9) TMI 1637 - ITAT AHMEDABAD
Accumulation of the income derived from property held under the Trust under section 11(1)(a) - @15% of the income derives from property held under the Trust under section 11(1)(a) or its accumulation can only be restricted to 15% of the balance amount remained with the assessee after applying for charitable purpose - CIT(A) held that exemption available under section 11(1)(a) i.e. 15% of the income is unfettered and not subject to any conditions - Held that:- With the assistance of the ld.representative, we have gone through the record carefully. The ld.counsel for the assessee has placed on record a copy of the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Programme for Community Organisation [2000 (11) TMI 4 - SUPREME COURT] as held it is clear that a charitable or religious trust is entitled to accumulated twenty-five percent of income derived from property held under trust. For the present purposes the donations the assessee received, in the sum of ₹ 2,57,376, would constitute its property and it is entitled to accumulate twenty five per cent thereout. - Decided against revenue
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2015 (9) TMI 1636 - ITAT CHANDIGARH
Levy of penalty u/s 272A(2)(k) - assessee had failed to file the quarterly TDS return in Form No. 26Q for the second quarter by the due date and there was a delay of 191 days in filing the same - reasonable cause for delay - Held that:- The reason for the delay as being on account of systems error and delay in filing return by Chartered Accountant on account of data mismatch. All that the Ld. Joint Commissioner found was that the reason was insufficient / unreasonable. The explanation of the assessee was not controverted. Such un-controverted explanation of the assessee constitutes reasonable cause within the meaning of Section 273B, which provides that no penalty shall be levied if reasonable cause for the failure is established by the assessee. Therefore the penalty could not be levied u/s 272A(2)(K) of the Act.
Also an admitted fact that the Tax deducted at source, to which the F.No. 26 Q pertained, was paid within the prescribed time. No loss as such has therefore been caused to the Revenue. Delay in filing return is at best a technical or venial breach of law and no contumacious conduct can be attributed to the assessee. - Decided in favour of assessee.
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2015 (9) TMI 1635 - ITAT BANGALORE
TPA - comparability analysis - functinal similarity - Held that:- M/s Accentia Echnologies Ltd., during the relevant year, and the said company therefore, cannot be considered as comparable due to this extraordinary event which occurred in the relevant year as rightly held by the Tribunal inter-alia in the case of Excellence Data Research Pvt. Ltd (2014 (9) TMI 126 - ITAT HYDERABAD).
Direct the TPO to consider M/s MIcroland Ltd., as a good comparable for the purpose of analyzing the pricing of the international transaction undertaken by the assessee.
Credit of tds - Held that:- We direct the AO/TPO to verify the claim of the assessee with regard to the tax deducted at source and allow credit if found correct.
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2015 (9) TMI 1634 - ITAT INDORE
Penalty u/s 271(1)(c) - unexplained cash u/s 69A - cash was seized by the Department and ex parte assessment u/s 144 was made - Held that:- As relying on case of T.Kodeswaran v. ITO [2008 (10) TMI 273 - ITAT MADRAS-B] wherein the similar issue had come up and similar facts were there. In that case, the AO has passed the assessment order ex-parte u/s 144 and the AO has levied penalty u/s 271(1)(c) of the Act, which was deleted and Tribunal has deleted the penalty - Decided against revenue.
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2015 (9) TMI 1633 - KERALA HIGH COURT
Imposition of penalty - Section 67 of the KVAT Act - misclassification of the product - Held that:- In the instant case, inasmuch as the petitioner was justified in adopting a classification of the product based on the classification adopted by the supplier of the product to the petitioner, the orders passed by the 3rd respondent confirming a penalty on the petitioner, merely because it was the view of the 3rd respondent that a classification of the product ought to have been under a different entry, cannot be legally sustained.
Impugned order set aside - petition allowed.
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2015 (9) TMI 1632 - ITAT PUNE
Rectification of mistake u/s 154 - additional depreciation u/s. 32(1)(iia) - whether mistake of incorrect claim is clearly apparent on plain reading of section 32(1)(iia) - Held that:- Additional depreciation is allowable to the assessee to the extent of 20% on the cost of plant & machinery and where the assessee has purchased an asset in the preceding year and has been allowed only 10% of the cost of asset as additional depreciation, the correct position of law is that balance 10% of additional depreciation is to be allowed to the assessee.
Where the AO failed to apply the correct provisions of law, the assessment order passed by the Assessing Officer is amenable to rectification under section 154. We uphold the invoking of provisions of section 154 against the assessee. Further, in view of the concession made by the AR for the assessee, where the assessee was only entitled to 10% of the cost of machinery to be allowed as additional depreciation in the instant assessment year, since the balance 10% of cost of machinery has been allowed as additional depreciation in the preceding year, we reverse the order of CIT(A) and direct the Assessing Officer to allow depreciation @ 10% of the cost of machinery as additional depreciation on plant & machinery purchased by the assessee in the preceding year. - Decided in favour of assessee.
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2015 (9) TMI 1631 - DELHI HIGH COURT
Repayment of loan by trust - to be treated as application of income as disallowed “because the loan was never taken as income at the time of receipt” - Held that:- The question that the Revenue seeks to urge in this appeal, and on which notice was issued by this Court on 10th July, 2015 did not arise for consideration before the AO. Since such contention was not raised by the Revenue before the AO, the Respondent Assessee had no occasion to be heard on such issue at the appropriate stage. The Court, therefore, cannot permit the Revenue to urge the said issue at this stage.
Moreover, the Respondent Assessee is stated to have a deficit of ₹ 33,67,78,348 for the AY in question and, therefore, there is no tax effect for the said AY. What is sought to be projected by the Revenue is only a notional tax effect. Appeal dismissed.
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2015 (9) TMI 1630 - ITAT BANGALORE
Adjustment in the arm’s length price(ALP) of international transaction entered into by the Assessee with it’s Associated Enterprise (AE) u/s 92 - Assessee provided Software Development Services to its AE - Comparable selection - Held that:- Assessee providing IT Software development Services thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Excluding Comparable from the list of comparable chosen by the TPO, the arithmetic mean of profit margin of the remaining comparable is directed to be reworked by the TPO/AO after allowing +/- 5% adjustment, if permissible, u/s.92C(2) of the Act. None of the other grounds are adjudicated except comparability of companies chosen by the Assessee, as the exclusion of comparable companies chosen by TPO and confirmed by the DRP would itself result in the price charged in the international transaction to be one at Arm’s Length.
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2015 (9) TMI 1629 - SUPREME COURT
Maintainability of petition - Section 14 of the Arbitration and Conciliation Act, 1996 - Foreign Awards - venue of conciliation or arbitration proceedings pursuant to this Article chosen is London, England and shall be conducted in the English Language - arbitration agreement was governed by the law of India - applicability of Part-I of the Arbitration Act, 1996 - Held that:- This Court has held that since the substantive law of the contract was Indian law and since the arbitration clause was part of the contract, the arbitration clause would be governed by Indian law and not by the Rules of the International Chamber of Commerce. This being the case, it was held that the mere fact that the venue chosen by the ICC Court for the conduct of the arbitration proceeding was London does not exclude the operation of the Act which dealt with domestic awards i.e. the Act of 1940.
The theory of concurrent jurisdiction was expressly given a go-by with the dropping of Section 9(b) of the Foreign Awards Act, while enacting Part-II of the Arbitration Act, 1996, which repealed all the three earlier laws and put the law of arbitration into one statute, albeit in four different parts.
This Court has already determined both that the juridical seat of the arbitration is at London and that the arbitration agreement is governed by English law. This being the case, it is not open to the Union of India to argue that Part-I of the Arbitration Act, 1996 would be applicable. A Section 14 application made under Part-I would consequently not be maintainable - SLP dismissed.
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2015 (9) TMI 1628 - ITAT DELHI
Addition u/s 68 - bogus credit - Denial of natural justice by providing no opportunity of being heard to the assessee - Held that:- Both the A.O. as well as CIT(A) being judicial authorities, were under obligation to adhere to the rule of natural justice by providing opportunity of being heard to the assessee to produce nine sundry creditors whose confirmations have been duly placed on record during assessment / remand proceedings.
When the assessee has discharged its onus u/s 68 of the Act by providing confirmation letter from the sundry creditors, the onus stands shifted to the A.O. to controvert the same by bringing cogent evidence on record, that the said parties are not existing and their creditworthiness and genuineness is highly doubtful.A.O. has rather summarily dismissed the confirmation letters on the sole ground that the same are stereotyped and has never given findings that the confirmation filed by the assessee in respect of the nine sundry creditors are fake one and of non existing entities;
No doubt Inspector, income tax deputed by the A.O. reported that M/s. R. K. Enterprises, Natraj Sanitary and Verma Engineering works are non-existing, but the assessee has never been provided opportunity to produce them, or to fill their latest addresses but outrightly, ignored the confirmations and business transactions submitted by the assessee;
Notices sent to nine parties shown to have been received back unserved but thereafter, no opportunity has been provided to the assessee to provide their latest address or to produce the parties before the A.O. nor any effort has been made to serve them through substitute service;
Confirmation filed by assessee pertaining to nine parties/sundry creditors ought not to have been rejected merely on the ground that the letters sent to them by the A.O. have been received back unserved except with thorough probe;
Thus A.O. has failed to verify confirmations filed by the assessee rather rejected the same on the basis of conjectures and surmises. - Decided in favour of assessee.
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2015 (9) TMI 1627 - CESTAT, CHENNAI
CENVAT Credit - Man-power Recruitment or Supply Agency Security - whether Cenvat credit on the service of Man-power Recruitment or Supply Agency availed by respondent is permissible to the respondent?
Held that:- There is no finding in the appellate order as to no use of such service nor also any finding as to no requirement of man-power for running the canteen which was part of the factory - appeal dismissed - decided against Revenue.
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2015 (9) TMI 1626 - SUPREME COURT
Application u/s 256(2) - rectification of mistake - Held that:- High Court [1987 (4) TMI 20 - BOMBAY HIGH COURT]] is clearly wrong in observing that the proceedings got finality on 8.4.1987 when the reference application under Section 256(2) of the Act was dismissed by the High Court. Admittedly, it is this order dated 8.4.1987 which was the subject matter of appeal before this Court and the appeal was dismissed on 16.01.2001. Therefore, the order dated 8.4.1987 passed by the Bombay High Court had not attained finality.
We find that the proceedings got finalized only on 16.01.2001 [2001 (1) TMI 1001 - SUPREME COURT] when the appeal of the assessee was dismissed by this Court. If the period of limitation is reckoned from that date the certificate issued on 15.7.2004 is well within four years of limitation provided under law. The recovery certificate was, therefore, not time barred as held by the High Court in the impugned judgment.
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2015 (9) TMI 1625 - ITAT CHANDIGARH
Reopening of assessment - deduction under section 80-IC claimed - Held that:- From the perusal of reasons recorded and material available on record, we do not come across any tangible material coming in the notice of the Assessing Officer for formation of belief. The words used time and again in the reasons recorded are 'it is noticed that'. No reference to any other material is given. Even at the time of hearing before us, no such material could be brought to our notice. Therefore, admittedly, what triggered the AO to reopen the case after issuing intimation under section 143(1) of the Act, is not coming out of records. In view of this, we proceed to discuss whether the provisions of section 147 of the Act, read with section 148 of the Act are still applicable to the present case or not.
There can be no dispute that the main ingredients for initiating these provisions are presence of material and live link between the material and the belief formed by the Assessing Officer, which makes the 'reasonable belief' as propounded in the provisions itself. Coming to the "reason to believe", we may be guided by another judgment of the Hon'ble Apex Court in the case of Kelvinator of India Ltd.[2010 (1) TMI 11 - SUPREME COURT OF INDIA]. The case was rendered surely in the context of original assessment having been made under section 143(3) of the Act however, the interpretation made was that of the phrase 'reason to believe', which is applicable equally to the cases made under section 143(1)(a) as well as 143(3) of the Act - Decided in favour of assessee.
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2015 (9) TMI 1624 - ITAT DELHI
Scope of revision u/s 263 - eligibility to revise a non est order - Held that:- There is no quarrel with the proposition advanced by ld. DR that the proceedings u/s 263 are for the benefit of revenue and not for assessee.
As u/s 263 Commissioner cannot revise a non est order in the eye of law. Since the assessment order was passed in pursuance to the notice u/s 143(2), which was beyond time, therefore, the assessment order passed in pursuance to the barred notice had no legs to stand as the same was non est in the eyes of law. All proceedings subsequent to the said notice are of no consequence. Case of CIT Vs. Gitsons Engineering Co. [2014 (11) TMI 59 - MADRAS HIGH COURT] clearly holds that the objection in relation to non service of notice could be raised for the first time before the Tribunal as the same was legal, which went to the root of the matter.
If ld. Commissioner revises such an assessment order which is non est in the eye of law, then it would imply extending/ granting fresh limitation for passing fresh assessment order. It is settled law that by the action of the authorities the limitation cannot be extended, because the provisions of limitation are provided in the statute. - Decided in favour of assessee
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2015 (9) TMI 1623 - ITAT ALLAHABAD
Liability of the assessee to collect tax u/s.206C(1C) - Applicability of the provision of Section 206C - Whether amount collected by the appellant by way of Tehbazari, Tehbazari-Vahan Stand and Balu- Morang, Gitti- Bolder-Vahan Shulk could not be treated as amount collected towards use of 'parking lot' or 'toll plaza' so as to make obligatory for the appellant to collect tax at source (TCS) from its licenses? - Held that:- It is an undisputed fact that Tahbazari is collected by the assessee from temporary vendor squatting on the specified places for selling their goods. Thus, this is an issue of granting of a license in respect of using temporary place by the hawkers or the vendors for selling the goods. Toll has also been collected from the parking stand and market places in rural areas therefore in our opinion it cannot be different from toll plaza as well as parking lot. No illegality or infirmity in the order of the CIT(A) sustaining the order of the Assessing Officer for treating the assessee in default in each of the assessment year as the assessee fails to collect the tax at source from these licensee. - Decided against assessee
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2015 (9) TMI 1622 - ITAT DELHI
Validity of the proceedings u/s 153C - Held that:- Considering the facts in the light of Order of the Tribunal [2017 (11) TMI 909 (ITAT-Delhi)] the issue is covered in favour of the assessee by the above Order for subsequent A.Ys. 2009-2010 to 2011-2012. Following the same, we set aside the orders of the authorities below and quash the proceedings initiated under section 153C. Resultantly, the addition made by the A.O. stands deleted.
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2015 (9) TMI 1621 - CESTAT NEW DELHI
Banking and other financial services - Held that:- The issue stands decided by the Larger Bench of the Tribunal in the case of Standard Chartered Bank Vs. CST, Mumbai-I [2015 (8) TMI 686 - CESTAT DELHI (LB)] wherein Larger Bench has held that prior to 01.05.2006, credit card services or other payment card services to be classified banking/financial services only these services provided by an issuing bank to an acquiring bank - appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1620 - CESTAT MUMBAI
Refund of service tax paid - services which was utilized for export of the goods - case of the Revenue is that the service under section 65 (105) (zzn) is for the port services and the service provider has not discharged the service tax under this category - whether the service tax paid by the service providers on Terminal Handling Charges are eligible for refund under notification no. 41/2007-ST or otherwise? - Held that:- The issue is no more res-integra as Hon’ble High Court of Gujarat in the case of Commissioner of Central Excise AIA Engineering Pvt. Ltd. [2015 (1) TMI 1044 - GUJARAT HIGH COURT] has, on a question of law on the same issue, held that Exemption Notification No. 17/2009-S.T., provided total exemption from payment of Service Tax paid on services commonly known as terminal handling charges. Such exemption was available for service classified under sub-clause (zn) of Clause 105 of Section 65 of the Finance Act, 1994 - refund allowed - appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1619 - CESTAT KOLKATA
Valuation - autoparts - inclusion of Drawing & designs cost (D & D Cost) in the cost of parts manufactured by the appellants - Held that:- This bench while passing final orders in the case of COMMISSIONER OF CENTRAL EXCISE JAMSHEDPUR VERSUS TATA MOTORS [2008 (12) TMI 129 - CESTAT KOLKATA] held that 0.085% of cost of component has to be added while arriving of the assessable value of the components manufactured by appellants and matter was remanded to the Original Authority for re-determining the additional duty and interest, if payable in accordance with law, for the normal period of limitation.
Appeal dismissed.
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