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Showing 141 to 160 of 1467 Records
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2016 (4) TMI 1328 - ALLAHABAD HIGH COURT
CENVAT credit - excess availment of CENVAT credit - Revenue claims that discount which had been given to Bhushan Steel contained certain duty element and, therefore, Bhushan Steel should reverse the CENVAT credit duty contained in the discount.
Held that:- It is not disputed by learned counsel for the appellant that Tata Steel did not claim any refund of duty on the reduced price nor is it the case of the appellant that it is not on account of subsequent negotiations that had taken place between Bhushan Steel and Tata Steel that the price of inputs procured by Bhushan Steel was reduced - Such being the position when Tata Steel has not claimed any refund of duty from the department, the department was not justified in imposing any duty with interest and penalty on Bhushan Steel.
No substantial question of law, therefore, arises for consideration - appeal dismissed.
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2016 (4) TMI 1327 - ITAT MUMBAI
Penalty u/s 271(1)(c) - no notice to legal heir assessee in spite of the fact that the Assessing Officer was made aware that the assessee had expired on 20th March 2011 - order passed against a dead person - delay in filing return of income - AO while completing the assessment treated the return of income as invalid and held the income declared by the assessee as undisclosed income - Held that:- In the course of penalty proceedings under section 271(1)(c), the Authorised Representative in his letter dated 16th June 2011, not only explained the reason for delay in filing the return of income but also brought to the notice of the Assessing Officer the fact that the assessee had expired on 20th March 2011 and also furnished a copy of his death certificate.
In spite of the fact that the Assessing Officer was made aware that the assessee had expired on 20th March 2011, instead of bringing his legal heir on record, the Assessing Officer proceeded to pass the impugned penalty order in the name of deceased assessee. As rightly held by the learned Commissioner (Appeals), order passed against a dead person has no legal affect, hence, invalid in law. - Decided in favour of assessee.
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2016 (4) TMI 1326 - ITAT BANGALORE
Capital gain computation - Joint Development Agreement - AO adopting the cost of construction as sale consideration - CIT (Appeals) has directed AO to compute the capital gains by considering the sale consideration as the fair market value based on the government record - Held that:- Identical issue has been considered and decided by the co-ordinate bench of this Tribunal in the case of Shankar Vittal Motor Co. Ltd. [2016 (4) TMI 1129 - ITAT BANGALORE] wherein held because at the time of signing JDA the capital gain has to be computed only on the guidance value of the land. Even otherwise, if any capital gains to be accrued in future in favour of assessee after receiving the possession of the property. Certainly that would also be subject to capital gains. Therefore, in our final conclusion valuation of the capital gain should be appropriate to adopt the FMV/asset as deemed consideration, but not cost of the construction. - Decided against revenue
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2016 (4) TMI 1325 - KARNATAKA HIGH COURT
Validity of N/N. FD 21 CSL 2014(II), dated February 28, 2014 - Discriminatory nature of notification or not? - KVAT Act, 2003 - Levy of VAT on Liquor - classification of dealers based on value addition criteria - Held that:- Having gone through the detailed judgment of the learned single judge in M. Madhava Gowda v. Under Secretary to Government [2015 (9) TMI 1438 - KARNATAKA HIGH COURT], where it was held that The classification of dealers based on value addition criteria for the purpose of tax levy and exempting the dealers based on area criteria cannot be held to be discriminatory - this court is of the opinion that the present writ petitions also deserve to be dismissed for the same reasons - petition dismissed.
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2016 (4) TMI 1324 - ITAT AHMEDABAD
Genuineness of remuneration paid to Managing Director - extra-ordinary increase the remuneration - Disallowance u/s 40A(2)(b) as excessive and unreasonable amount paid - Held that:- section 40A(2)(b) disallowance is not to be invoked when the payees already stand assessed at maximum rate. The Central Board of Direct Taxes has also issued a circular on 06-07-1968 directing the assessing authority not to invoke the impugned disallowance in absence of any tax evasion being noticed. - Decided against the revenue.
Rejection of books of accounts - Estimation of income - reduction of GP @44.1% as compared to 49.46% in the previous year - Held that:- assessee had responded to all of the scrutiny show cause notices. The Revenue does not point out either any mis- reading of evidence or perversity in the lower appellate findings under challenge. We do not find any error in the CIT(A)’s action under challenge deleting the impugned addition. - Decided in favor of assessee.
Addition of notional income - Notional versus actual interest on delayed refund of security deposits placed with its associate enterprise - deposited in lieu of availing usages rights on industrial land for carrying out manufacturing activities. - The assessee did not pay any rent except this lumpsum refundable amount. - Held that:- he assessee has already received its security amount latest by 23-08- 2007 relevant for assessment year 2008-09 only and not to the impugned assessment year 2009-10. We hold in these facts that the deemed interest addition could not have been made in the impugned assessment year as no such interest accrues or arises in financial year 2008-09. We accept assessee’s arguments against this interest addition and reject those raised at Revenue’s behest. - Decided in favor of assessee.
Restriction on depreciation claim - bifurcation of value of the land - AO observed in assessment order that the building/bungalow was very old. No deprecation is allowable on the plot land - Held that:- Both the lower authorities discuss the location factor of the land and dilapidated state of the bungalow/building in question in arriving at the impugned value. There is no material placed on record dispelling the same - Decided against the assessee.
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2016 (4) TMI 1323 - ITAT CHENNAI
Correctness of TDS deducted by the Indian Employer - Taxability of salary income of non-resident - exemption claimed under Section 5(2) - taxability of foreign allowances - it was contended by the assessee that, assessee was sent on a foreign assignment and received salary as well as allowances. The salary was to be taxed in India. However, the allowances cannot be taxed in India, as it is received outside India and the employer deducted TDS wrongly. - Held that:- it is an admitted fact that the assessee has remained as an employee of IBM India Pvt. Ltd. and the law of land would remain applicable to the assessee and further, salary was continued to be paid under home location salary plan. As the salary was paid to assessee’s home location bank, TDS was rightly deducted by IBM India Pvt. Ltd. Accordingly, Form 16 was issued to the assessee. - Decided against the assessee.
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2016 (4) TMI 1322 - CESTAT NEW DELHI
Issuance of fresh SCN for penal provisions - power of Commissioner (Appeals) to instruct the Department for issuance of fresh SCN - Held that:- Since the Commissioner (Appeals) has held that penalty cannot be invoked under Section 11AC, he could have straightaway, allowed the appeal without insisting for issuance of fresh show cause notice seeking imposition of penalty under Rules 57AH and 173Q of erstwhile Central Excise Rules, 1944 and the present Rules 12 and 13 of Cenvat Credit Rules, 2001, which were not proposed for recovery in the original proceedings.
Since the Commissioner (Appeals) has travelled beyond the proposals made in the original show cause notice dated 11th March, 2005, directions for issuance of subsequent show cause notice is not in conformity with law - appeal allowed - decided in favor of appellant.
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2016 (4) TMI 1321 - ITAT DELHI
Addition made u/s 35 being the amount spent for purchase of plant and machinery - Held that:- AO or the ld. DR has not controverted this fact that the R & D program of the assessee has been approved by the Government of India and other relevant appropriate authorities and efforts of the assessee on R & D were awarded by National Award in 2007 and other appreciations by ACMA. We cannot ignore this fact that the assessee’s books of account are properly audited and subject to public scrutiny by other statutory bodies such as Registrar of Companies and SEBI etc. which fact cannot be ignored or rejected at the threshold which conclusively supports the claim of the assessee towards purchase of plant and machinery for R & D purpose. On the basis of foregoing discussion, we are unable to see any ambiguity or perversity or any other valid reason to interfere with the impugned order of the ld. CIT(A) and thus we uphold the same. Accordingly, we approve the conclusion of the ld. CIT(A) who deleted the baseless addition and disallowance made by the AO and hence the sole ground of the Revenue being devoid of merits is dismissed.
Disallowance of the software purchase made by the appellant for the purposes of its R&D - Held that:- One must not forget that the Revenue, which has powers regarding discovery, inspection, production and calling for evidence as well as survey, search and seizure and requisition of books of accounts and the inability of assessee to produce the supplier could not lead to an adverse inference against the assessee that the supplier was bogus or non-existent. In the present case, the AO has not made any further investigations or enquiry about the supplier and that too he accepted existence of M/s Exim for other purchases which was effected through the same period. The ld. CIT(A), despite confirmation of accounts placed before AO, incorrectly held that there is no confirmation. Per contra, the assessee has discharged the onus cast upon it to establish the genuineness and purchases and onus was shifted to the Revenue but not properly discharge by the AO for making the addition. Thus, conclusion of the AO as well as the ld. CIT(A) is not sustainable. Hence we demolish the same and Ground Nos. 1 to 3 of the assessee are allowed.
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2016 (4) TMI 1320 - ITAT DELHI
Amount of sales tax subsidy - capital receipt - grant of depreciation on the reduced value of fixed assets - Held that:- In the present case, undisputedly and admittedly the AO accepted the treatment given by the assessee to the sales tax subsidy as capital receipt in A.Ys 2005-06 and 2006-07 and for A.Ys 2007-08 and 2008-09. AO has not brought out any allegation or facts to allege that that the income does not reflect true factual income of the assessee. In this situation, we are inclined to hold that the authorities below flaunted the Rule of consistency without any justified cause or basis and in view of the proposition laid down by the Hon'ble Supreme Court in the case of CIT Vs. Woodward [2009 (4) TMI 4 - SUPREME COURT] a system of accounting following by the assessee and accepted by the Revenue during the earlier years, consistency cannot be disturbed without any reasonable cause or justified reasoning.
Addition u/s 14A - Held that:- Disallowance can be made in the situation when no exempt income was earned by the assessee in the relevant A.Y and since in the present case the AO as well as the ld. CIT(A) has not brought out any allegation or fact to allege or disturb or doubt the genuinety of the expenditure incurred by the assessee, therefore, no disallowance can be made u/s 14A of the Act in A.Y 2007-08 u/s 14A r.w.r 8D of the Rules for A.Y 2008-09. Respectfully following the decision of the Hon'ble High Court of Delhi in the case of Chem Invest Ltd [2009 (8) TMI 126 - ITAT DELHI-B]
Depreciation on computer peripherals at an estimated basis - Held that:- Depreciation of computers peripherals is available @ 60%, Relying on the lead case being CIT Vs. BSES Yamuna Power [2010 (8) TMI 58 - DELHI HIGH COURT]
Adhoc disallowance @ 10% out of foreign travelling expenses - Held that:- When the assessee went in first appeal, the ld. CIT(A) relying upon the judgment of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Kulwant Rai [2007 (2) TMI 185 - DELHI HIGH COURT] deleted the addition by holding that there was no basis to make the addition. Accordingly, finding no merits in the ground of appeal raised by the Revenue,
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2016 (4) TMI 1319 - ITAT KOLKATA
Disallowance made on account of excise duty - Held that:- As decided in assessee’s own case for Asst Year 2006-07 CIT(A) has not erred and justified in deleting the disallowances made on account of excise duty
Disallowance made on account of shifting expenses - Held that:- We find that the assessee has not constructed or set up any new factory in replacement of an existing one. It is a case where certain machineries have been shifted from an existing factory to another existing factory when the former had been closed down. In order to achieve a synergy of production line, certain assets were dismantled and transferred to an existing plant. Therefore the shifting had not been done to increase the profit earning capacity of the assessee or an enduring benefit of the asset as such - such expenditure cannot be treated as capital expenditure and in these circumstances, the ld.CIT(A) has rightly deleted the addition
Disallowance made on account of software expenses - Held that:- As decided for Asst Years 2003-04 & 2004-05 which had relied on the principle laid down by the by the Special Bench of Delhi Tribunal in the case of Amway India Enterprises [2008 (2) TMI 454 - ITAT DELHI-C] held the use of any ERP package in the case of manufacturer like the assesese-Company is generally for coordinating and rationalizing its functions and business process in order to ensure that the business is carried on more efficiently and effectively and by applying the functional test, the expenditure incurred on ERP package, in our opinion, cannot be treated as capital expenditure as it does not result in creation of any new asset or advantage of enduring nature in the capital field. We, therefore, direct the Assessing Officer to allow the deduction claimed by the assessee on account of expenditure incurred on upgradation of ERP and implementation thereof treating the same as revenue in nature
Disallowance made on account of capital work in progress - Held that:- We hold that the disallowance of interest has been made by the Learned AO merely based on surmise and conjecture. In view of the aforesaid facts and circumstances, we find no infirmity in the order of the Learned CIT -A in deleting addition - Revenue appeal dismissed.
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2016 (4) TMI 1318 - RAJASTHAN HIGH COURT
Condonation of delay in filing appeal - service of order dated 8th May, 2003 was not by the mode prescribed under the statute - Held that:- The perusal of the order does not show a prayer to receive the order on 10th June, 2003 only but other documents also, for which, the writ petition was not entertained by this Court but was disposed of. The writ petition was in fact withdrawn by the petitioner-appellant - The appellant cannot take benefit of the order passed by this Court in the writ petition. It is for the reason that copy of the order dated 8th May, 2003 had been received by the assessee and the documentary evidence to this effect has been referred by the Tribunal.
There are no grounds to condone the delay - appeal dismissed.
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2016 (4) TMI 1317 - ITAT CHANDIGARH
Addition u/s 68 - Held that:- In the facts and circumstances of the present case in the face of numerous documentary evidences crying for bonafide of the assessee as against only suspicion and surmises in favour of the Department, we do not hesitate to hold that the proposition laid down by the Hon'ble Supreme Court in DURGA PRASAD MORE [1971 (8) TMI 17 - SUPREME COURT] is not applicable in the present case. Even the Assessing Officer has not been able to bring on record any adverse material, on his own investigations, the results have been in favour of the assessee. Suspicion, howsoever strong, cannot take part of the documentary evidences. Second contention of the Department with respect to the prices being manipulated and later on the company delisted from the Stock Exchange, we want to add that the company was very much in existence at the time of transaction and whatever happen later on is of no relevance. The grounds of appeal raised by the Revenue are dismissed
Disallowance u/s 14A - Held that:- Punjab & Haryana High Court in the case of Lakhani Marketing Inc 2014 (7) TMI 44 - PUNJAB AND HARYANA HIGH COURT] is squarely applicable to the facts of the present case, as no exempt income has been earned by the assessee during the year. As regards the contention of the learned D.R. that the said judgment was delivered before the insertion of Rule 8D, we are of the view that the Rule 8D is just a mechanism provided to compute the disallowance under section 14A of the Act. The provisions of the Rules can never prevails over the provisions of the Act. The judgment has been given in the context of the provisions of the section. If the situation demands for no disallowance, the computational provision does not come into the picture at all. In view of this, we uphold the action of the learned CIT (Appeals) in deleting the disallowance. The grounds raised by the Revenue are dismissed.
Addition u/s 69 - Held that:- The submission of two capital accounts does not in anyways be correlated to the cash deposits in bank. Therefore, this contention of the Assessing Officer is totally devoid of any merits. Further, we do not understand as on what basis the Assessing Officer has made addition of ₹ 16,10,000/-. Nowhere neither in assessment order nor in remand, he has detailed his reasoning. In view of this, we do not hesitate to confirm the order of the learned CIT (Appeals). Decided against revenue
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2016 (4) TMI 1316 - ITAT MUMBAI
Deduction u/s 35(2AB) denied - claim @ 150% of the expenditure incurred - assessee has failed to furnish copy of agreement with the prescribed authority - Held that:- As decided in own case in assessment year 2002–03assessee has made requisite compliance as has been required by the prescribed competent authority and compliance of all the procedural requirements has been examined by the competent authority while granting approval. In our considered view, we should look substantive compliance of the provisions. Documentation in any particular format and its approval in a particular manner is not object of this action. - Decided in favour of assessee
Disallowance of interest on the ground of advance made to Indian subsidiary - two of the companies to whom advances were made by the assessee are 100% subsidiary of the assessee - Held that:- Following decision of CIT v/s S.A. Builders, [2006 (12) TMI 82 - SUPREME COURT] as the advance made to the subsidiary are on account of commercial business / business expediency, proportionate disallowance out of interest expenditure cannot be made. Ground no.2, is allowed
Disallowance on account of PF and ESIC - paid beyond the prescribed date under the relevant statute but before the due date of filing of return of income under the Income Tax Act - Held that:- As decided in assessee's own case for the assessment year 2002–03 [2016 (1) TMI 752 - ITAT MUMBAI] as held the amount of employees contribution etc. deposited before the filing of return, cannot be disallowed u/s 43B - we allow assessee’s claim of deduction in respect of payment made towards PF contribution and ESIC. Decided in favour of assessee
Deduction in respect of DEPB credit un/s 80HHC - Held that:- There is no income to the assessee in terms of section 28(iiid) having considered the submissions of the assessee in the light of the relevant statutory provisions and the decision of the Hon'ble Supreme Court in Topman Exports [2012 (2) TMI 100 - SUPREME COURT OF INDIA], we find force in the submissions of the assessee. Moreover, it is seen, similar issue arose in assessee’s own case for assessment year 2001–02 restore the matter back to the file of the Assessing Officer to allow assessee’s claim in terms of principle laid down by the Hon'ble Supreme Court.
Addition on account of transfer pricing adjustment - disallowance of interest on the advances made to overseas subsidiaries - interest free advances to the overseas subsidiary on account of reimbursement of expenditure - Held that:- Such type of international transaction, domestic PLR rate cannot be applied and the rate of interest has to be quantified either with reference to LIBOR or EURIBOR depending upon the country and currency in which the transaction has taken place. Considering the facts of the present case, we are of the considered opinion that LIBOR rate of 1.698% plus 300 basis point would be the appropriate interest rate applicable to the international transactions relating to advancement of interest free loan / extended credit facility to the overseas A.E. Accordingly, we direct the Assessing Officer / Transfer Pricing Officer to compute the interest on the interest free advances paid to the A.E
Disallowance of interest expenditure - advances given to overseas subsidiary - Held that:- there is a business / trade relationship between the assessee and overseas subsidiary. That being the case, it cannot be said that investments made are not wholly and exclusively for the purpose of business. - commercial expediency has to be seen through the position of a prudent businessman and the Assessing Officer cannot step into the shoes of a businessman to find out the necessity or reasonableness of expenditure incurred - no disallowance out of interest expenditure can be made. As far as the findings of the Commissioner (Appeals) that assessee is eligible for deduction under section 57(iii), only because the assessee accepted the decision of the learned Commissioner (Appeals) in assessment year 2002–03, for whatever may be the reason that will not deprive the assessee from claiming deduction of interest expenditure under section 36(1)(iii). - Decided in favour of assessee
Rejection of indirect cost by 10% of the export incentives for computing profits under section - Held that:- Tribunal for assessment year 2002–03, in assessee’s own case, [2016 (1) TMI 752 - ITAT MUMBAI], it is noticed that while upholding the order of the learned Commissioner (Appeals) in assessee’s own case claim of reduction in indirect cost by 10% of the export incentives the Tribunal followed its own order for assessment year 2001–02 in assessee’s own case wherein the Tribunal had decided the issue by following the decision of the Hon'ble Supreme Court in Hero Export v/s CIT [2007 (11) TMI 13 - SUPREME COURT OF INDIA] as held principle of attribution is applicable to cases falling u/s 80HHC(3)(b) and therefore, part of indirect cost has to be apportioned to expenses incurred for earning export incentives. 10% of total income has been held as fair estimate in this case
Treatment of foreign exchange fluctuation gain as business income for grant of deduction under section 80HHC - Held that:- There is no dispute to the fact that foreign exchange gain was directly as a result of export made by the assessee. As observed from the order of the learned Commissioner (Appeals) similar relief was also granted to the assessee in the preceding assessment year. In view of the above, we do not find any infirmity in the order of the learned Commissioner (Appeals)
Netting of interest expenditure against interest income for computation of deduction under section 80HHC - Held that:- In assessment year 2002–03, it is noticed that while dealing with identical issue, the Tribunal followed its earlier decision in assessee’s own case for assessment year 2001–02, wherein the Tribunal has allowed assessee’s claim on the basis of ratio laid down by the Hon'ble Supreme Court in ACG Associate Capsules P. Ltd. v/s CIT [2012 (2) TMI 101 - SUPREME COURT OF INDIA] by holding that netting of interest is permissible.
Exclude excise duty and sales tax from the total turnover for computation of deduction under section 80HHC - Held that:- As in assessee’s own case for the assessment year 2002–03 ollowing the decision of the Hon'ble Supreme Court in CIT v/s Lakshmi Machine Works [2007 (4) TMI 202 - SUPREME COURT] as held that excise duty should be excluded from the total turnover for the purposes of section 80HHC
Transfer pricing adjustment in respect of sale of finished goods - MAM selection - comparability - Held that:- Restore the matter back to the file of the Assessing Officer with a direction to make a fresh analysis relating to most appropriate method which could be adopted for bench marking the international transaction and, thereafter, undertake a comparably analysis.
Not to reduce the deduction computed under section 80HHC, while computing book profit under section 115JB - MAT - Held that:- This issue is directly covered in favour of the assessee by the judgment of the Hon’ble Supreme Court in the case of Ajanta Pharma Ltd. v. CIT [2010 (9) TMI 8 - SUPREME COURT] in which it has been held that clause (iv) of the Explanation to section 115JB covers full export profits of 100% as ₹eligible profits’ and the same cannot be reduced to 80% by relying on section 80HHC(1B)
Claim of deduction u/s 80HHC in respect of sales effected to SEZ unit Mission Pharma Logistic Pvt. Ltd. - Held that:- Conclusion drawn by the Assessing Officer being merely on conjecture and surmises without substantiated by positive evidence cannot be accepted. More so, when he does not dispute the fact that Mission Pharma Logistic Pvt. Ltd. is an SEZ unit. In the aforesaid facts and circumstances, department has failed to establish / demonstrate with cogent material that Mission Pharma Logistic Pvt. Ltd. is not eligible for deduction under section 10A, we are not able to interfere with the findings of the learned Commissioner (Appeals). Accordingly, upholding the order of the learned Commissioner (Appeals) on this issue,
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2016 (4) TMI 1315 - CESTAT CHENNAI
Levy of service tax - spare parts sold in the course of providing service - Held that: - Service Tax law not being a commodity taxation law, the spare parts sold in the course of providing service during the warranty period shall not be liable to levy of service tax thereon - appeal allowed.
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2016 (4) TMI 1314 - ITAT CHENNAI
Depreciation on life saving equipments - @15% OR 40% - Held that:- As the machines acquired by the assessee though may not be identical to the machinery mentioned in the Income Tax Rules specifying the rate of depreciation in Part-III (xia) (d), (n), they appear to be similar in nature. Since depreciation is a beneficial provision to the assessee, it has to be broadly viewed and applied beneficially to the assessee. Moreover these equipments either become obsolete in a short while or have short life span. Therefore, we hereby direct the learned Assessing Officer to allow the claim of depreciation @ 40% on the cost of acquisition of the above mentioned equipments considering it as life saving equipments as provided under the Rules and accordingly delete the addition made - Decided in favour of assessee
Addition on belated payment of employees’ contribution to ESI - Held that:- Now it is an admitted fact that by the various decisions of higher judiciary the remittance of employees / employers contribution of PF/ESI etc., if remitted before the due date of filing the return disallowance cannot be made by invoking the provisions of section 43B of the Act. Therefore, we hereby direct the learned Assessing Officer to verify whether these payments are made before the due date of filing of return, and if found so, delete the disallowance made by invoking the provisions of section 43B of the Act.
Disallowance u/s 37 being marketing expenses - Held that:- ere is no prohibition in the Act to make payments to Doctors for the services rendered by them. In the case of the assessee, gifts were given to Doctors by way of gold coins in appreciation to their services. It can be construed as the fees paid in kind for the services rendered by the Doctors in the hospital. The presumption of the learned Assessing Officer that these payments are made to Doctors for canvassing patients cannot be accepted without any cogent evidence. Further the Revenue has not quantified the amount for which invoices, bills are not available for the expenditure incurred and the nature of unexplained expenses. Hence, it appears to be a passing remark - we hereby direct the learned Assessing Officer to delete the addition made on account of disallowance
Disallowance being expenses incurred on consumables and on repairs under section 40A(3) - Held that:- Considering the total turnover of the assessee for the relevant assessment year 2012-13 of ₹ 39.00 crores approximately, we find this claim of expenditure to be very negligible. Therefore, in the interest of justice, we hereby direct the learned Assessing Officer to delete the disallowance - Assessee appeal allowed.
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2016 (4) TMI 1313 - ITAT PUNE
TPA - comparable selection - Held that:- Assessee is engaged in two kinds of activities i.e. software services segment and back office support services i.e. both in the field of IT services and ITES, respectively, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
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2016 (4) TMI 1312 - SUPREME COURT
Voice telephony - Allegation of the Petitioner is that the aforesaid amount at which the license for voice telephony is granted to Respondent No. 2 is a pittance inasmuch as in normal course grant of this license would have fetched a whopping sum of ₹ 25000 crores approximately. This insinuation is based upon a draft report of the Comptroller and Auditor General of India (CAG) which report estimated the aforesaid license fee/entry fee. It is also alleged that Respondent No. 1, while allowing voice telephony to Respondent No. 2, has not revised the Spectrum Usage Charges (SUC) matching with the charges which are paid by other operators who bought voice telephony.
Held that: - it follows that a policy decision was taken by the Government not only with regard to introduction of Unified Licensing regime but it also including allowing migration to UL from UASL as well as ISP to UL regime. This meant that those having UAS license which permitted data services only were allowed to migrate to Unified License enabling them to provide both data service as well as voice telephony. This was a pure policy decision after due deliberations by the experts in the fields and even TRAI had recommended allowing such migration - Such a policy decision, when not found to be arbitrary or based on irrelevant considerations or mala fide or against any statutory provisions, does not call for any interference by the Courts in exercise of power of judicial review.
Such a policy decision, when not found to be arbitrary or based on irrelevant considerations or mala fide or against any statutory provisions, does not call for any interference by the Courts in exercise of power of judicial review.
There is one more reason not to interfere with the aforesaid stipulation of SUC. The Government has taken the position that the conditions in the license granted to Respondent No. 2 empower the licenser/Government to change the terms of license and, therefore, whenever it is felt necessary and expedient in public interest, the percentage of SUC can be increased.
Petition dismissed.
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2016 (4) TMI 1311 - HIMACHAL PRADESH HIGH COURT
Rate of Tax - cell phone chargers, which were being sold along with cell phones in a single package - entry No. 60 (f) (vii) of Part-II A of Schedule A of the H.P. VAT Act, 2005 - Held that: - Identical issues relating to both of question of alternative remedy as also regarding levy of VAT @ 13.75% on the mobile chargers have already been considered by this Court in the case of M/s Samsung India Electronics Pvt. Ltd. Versus State of H.P. & ors. [2015 (6) TMI 1155 - HIMACHAL PRADESH HIGH COURT], wherein it was held that the writ petitioner has not only an alternative and efficacious, rather a proper remedy under the provisions of H.P. VAT Act, 2005 and therefore, the present petition is not maintainable - petition dismissed.
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2016 (4) TMI 1310 - GUJARAT HIGH COURT
Benefit of the Amnesty Scheme - denial of benefit on the ground that payment of tax and interest was made by them prior to the date of the notification whereas according to the respondents, the notification requires payment of tax only during the period of Amnesty Scheme - Held that: - it appears to be an admitted position that except for the fact that the petitioners had already paid the tax and interest prior to the coming into force of the Scheme, the respondents do not deny that the petitioners have otherwise satisfied all the requirements of the Scheme.
On a reading of the Preamble and the Memorandum of the Amnesty Scheme, it is clear that the benefit of the Scheme is to be given in respect of transactions commencing from 1st April, 2006 - The contention of the respondents that the Scheme is prospective in effect and, therefore, the petitioners are not entitled to the benefit thereof, therefore, is clearly based upon a misconception of the provisions of the Scheme which clearly provide for granting benefit thereof with effect from 1st April, 2006 and hence, the scheme by its very nature is retrospective in effect, viz. applicable to past transactions.
It is an admitted position that in the facts of the present case, the petitioners seek the benefit of the Scheme in relation to the years 2010-11, 2011-12 and 2012-13 which are well within the ambit of the Scheme namely, between 1st April, 2006 and 14th October, 2014.
If the interpretation put forth by the respondents were to be accepted, the same would result in a situation where dealers who have paid their taxes prior to the coming into force of the Scheme, would be denied the benefit thereof, whereas those dealers who have not paid the taxes would be granted the benefit of the Scheme, which would be clearly violative of the constitutional provisions as envisaged under Article 14 of the Constitution of India and would amount to putting a premium on non-payment of taxes whereby dealers who have not paid taxes steal a march over those dealers who have paid their taxes in time.
Petition allowed - respondents are hereby directed to forthwith grant the benefit of the Amnesty Scheme dated 14th October, 2014 to the petitioners - decided in favor of petitioner.
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2016 (4) TMI 1309 - MADRAS HIGH COURT
Validity of assessment order - reversal of input tax credit - TNVAT Act - DEPB scheme - reversal of credit on the ground that the input availed for the goods sold without Form 'C' had to be reversed and that as per Section 19(4), the input tax credit had to be availed over and above 3%, on the transfer of goods to other State otherwise by way of sale.
Can the Department deny the benefit of input tax credit for the duty paid by the petitioner on the purchase of DEPB licences, when such licences are considered to be "goods" within the meaning of Section 2 (21) and the tax paid on the purchase of such licences are considered as "input tax" under Section 2(24) and also when the charging provisions in Section 3(3) clearly entitle a registered dealer to such a benefit? - Held that: - From the scheme of Section 19(1), it appears that to become eligible for input tax credit, the following conditions should be satisfied by a person: (i) he should be a registered dealer; (ii) he must have paid or become obliged to pay a tax under this Act, to the seller on the purchase of taxable goods; and (iii) such taxable goods, on the purchase of which, he paid or became liable to pay tax under the Act, are also specified in the First Schedule.
What the petitioner claims is an input tax credit on the amount of duty paid for the purchase of a DEPB licence. The claim of the petitioner is that a DEPB licence is also a "good" within the meaning of the expression "goods" under Section 2(21) - A look at Section 19(1), which provides for input tax credit shows that the entitlement for such credit is restricted only to the amount of tax paid or payable under the Act by the registered dealer to the seller on his purchases of taxable goods specified in the First Schedule. Therefore, unless the claim for input tax credit relates to the tax paid or payable on the purchase of taxable goods specified in the First Schedule, it is not possible to grant credit - DEPB licences do not even fall under any of the categories mentioned in Section 19(2). The case of the petitioner does not even fall under Sub-Section (3) or Sub-Section (4) of Section 19. Therefore, our answer to the first question of law would be that the Department was right in denying the benefit of input tax credit in respect of the duty paid by the petitioner on the purchase of DEPB licences, despite the fact that these licences constitute goods within the meaning of Section 2(21).
DEPB licences do not even fall under any of the categories mentioned in Section 19(2). The case of the petitioner does not even fall under Sub-Section (3) or Sub-Section (4) of Section 19. Therefore, our answer to the first question of law would be that the Department was right in denying the benefit of input tax credit in respect of the duty paid by the petitioner on the purchase of DEPB licences, despite the fact that these licences constitute goods within the meaning of Section 2(21).
Is the list mentioned in Clauses (i) to (vi) of Sub-Section (2) of Section 19 enumerative or exhaustive? - Held that: - entitlement, non-entitlement, etc., are covered with reference to specifics in the other Sub-Sections of Section 19. It does not mean that the very entitlement to credit could be traced only to Sub-Sections (2) to (4) and the non-entitlement could be traced to Sub-Sections (5) to (10). If a dealer satisfies the essential conditions stipulated in Sub-Section (1), he is entitled to credit. Therefore, we are of the considered view that Sub-Section (2) of Section 19 is enumerative and not exhaustive.
Revision dismissed.
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