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Case Laws
Showing 141 to 160 of 1255 Records
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2015 (5) TMI 1124
CENVAT credit - duty paid defective goods received in the factory - Rule 16 of the Central Excise Rules, 2002 - Held that: - It is an undisputed fact that the appellant had paid the duty on the final product at the time of clearance from the factory, which was returned back as defective for accomplishing the purpose indicated in Rule 16 (1) of the CER, 2002 - it is erroneous to assume that the goods were not identifiable and relatable to the duty paid documents and also it is not proper to conclude that no records have been maintained for return of defective goods. It is not in dispute that the Daily Stock Account has not been maintained properly by the appellant.
CENVAT credit taken by the appellant on such duty paid defective goods received in the factory for carrying out the processes u/r 16(1) of the rules are eligible for CENVAT credit - credit allowed - appeal allowed - decided in favor of appellant.
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2015 (5) TMI 1123
100% EOU - Clandestine removal - Capital goods - it appeared that appeared that the duty-free imported goods and indigenous goods were procured by UAIL under bond which were subsequently, improperly removed and production for export have not commenced and no ex-bonding has taken place in respect of duty-free goods - Held that: - it is an admitted fact that there was no activity of clandestine removal of the Capital goods lying under bond in the bonded premises till February, 1997 or May 1997, when the present appellant and the other promoters sold their equity in UAIL to Cherry Fashions Ltd. under proper permission granted by SEBI and also proper intimation was given to the revenue. It is admitted fact that the alleged clandestine clearance from the bonded premises have taken much thereafter for which the erstwhile management of UAIL including the present appellant, cannot be held liable to any penalty under Section 112 of the Act - also, the penalty is bad, as neither in the show cause notice, any particular clause of Section 112 have been invoked nor-in the impugned order - the order of penalty is vitiated and is bad in law - penalty set aside - appeal allowed - decided in favor of appellant.
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2015 (5) TMI 1121
Disallowance u/s 40(a)(ia) - payments without making TDS - Held that:- The revenue has filed an appeal before the Hon’ble Gujarat High Court against the order dated 8-11-2013 passed in [2013 (11) TMI 582 - ITAT AHMEDABAD]. The instant miscellaneous applications are arising out of the very same order of the Tribunal. We further find that the Hon’ble High Court has already passed an order on 3 March 2015 in tax appeals numbers [2015 (3) TMI 809 - GUJARAT HIGH COURT] in respect of the appeals so filed by the revenue. Thus the order of the tribunal has already merged with the order of the Hon’ble High Court. As on date operative order is of the Hon’ble High Court and not of the Tribunal, therefore the Miscellaneous Applications have become infructous and accordingly the same are dismissed.
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2015 (5) TMI 1120
Issuance of a writ in the nature of Habeas Corpus in the matter of detention of the petitioner, who is detained passed by the Joint Secretary, Government of India (COFEPOSA), New Delhi - Held that:- Having regard to the categorical assertions made by the learned Additional Solicitor General we are of the view that since a copy of the representation was only marked to the Advisory Board and no copy was supplied to either the Central Government or the detaining authority, it is not open for the petitioner to say that the representation was not decided by them, irrespective of the fact that the representation was addressed to the Advisory Board. Undoubtedly, in case the representation had been served upon the Central Government or the detaining authority, it would have been mandatory for them to have decided the same.
The additional ground raised by counsel for the petitioner i.e., in the absence of documents as admitted by the respondents in the time-chart, the detention order is bad in law and is liable to be quashed, is also without any force, as the time-chart leaves no room for doubt that prior to the passing of the detention order all documents sought to be relied upon were received.
Having carefully examined the time-chart, relevant portion of which has been reproduced above, would show that it is only after all the documents were received and examined the detention order was passed. Hence, the submission of counsel for the petitioner that the detention order is bad in law and is liable to be quashed, as the same is passed in the absence of the relevant documents, is also without any force. No other ground has been urged before this court. In view of the reasons aforestated, we do not find any reason to entertain the present petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
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2015 (5) TMI 1119
Debarment orders - Utilization of wrongful credit - Imposition of penalty - decision in the case of M/s K.K. Kohli & Brothers P Ltd., Faridabad Versus Union of India and others [2015 (5) TMI 911 - PUNJAB & HARYANA HIGH COURT] contested, where it was held that the Tribunal was charitable enough to allow credit to be adjusted towards duty at the time of clearance of final products on the premise that it would otherwise lead to the payment of double duty by the appellant - delay condoned - appeal dismissed.
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2015 (5) TMI 1118
Petition for divorce filed under Section 13(i)(a) of the Hindu Marriage Act was - dismissal of petition as the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act - direction to the respondent to amend the divorce petition - Held that:- The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5 CPC or Order 1 Rule 10 CPC to pass an order which may be warranted under law in those contingencies. As has already been discussed in the previous paras, the learned Trial Judge, in my considered opinion, has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13(1) (a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act.
When a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v.Munshilal; (1981 (4) TMI 255 - SUPREME COURT), the Hon'ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party.
In the light of the aforesaid facts, the appeal is partly allowed holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. In case such an application is filed, it shall be dealt within accordance with law.
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2015 (5) TMI 1117
Oppression and mismanagement - petition is filed under sections 397 and 398 read with section 402 and 403 of the Companies Act, 1956 - Whether the petitioner has made out any case seeking injunction restraining the respondents from removing the petitioner from the post of director of the RI Company? - Held that:- Invariably in settlement of disputes, the interest of the company is paramount. As regards the removal of Director is concerned the decision of the shareholders is sovereign. A decision taken by the majority of shareholders is final and binding on the shareholders of the company. A director cannot claim any right to continue in the office against the collective decision of the shareholders under the garb of family company. Though the members of the family may start a business in the name of the company, due to its groom over a period of time it may lose its sheen as a family in the long run. As the business and family grows simultaneously, it is quite probable and inevitable that differences also arise among members of family in control of the business due to varied opinions. In a family run business such differences arise not due to any business/commercial decisions but rather giving importance or nurturing the growth of their own kin. Thus as long as the thread of goodwill runs through the family any decision taken for the sustenance of the family bond would survive the test of time. The notion of family company may be lost, if members of the family start fighting among themselves to further their self-interest rather than the interest of the company. It is not uncommon, that we find that fully grown family companies of yester years have of late been in news about rift between members of family as every members Of the family wanted to independently run a business. Once a bond is broken or severed, it is difticult to unite. In such a scenario, it cannot be called a family company, as the underlying principle of 'give and take' does not subsist.
Whether the petitioner is entitled to seek a permanent injunction restraining the respondents from interfering with the carrying on duties enjoined on the petitioner in relation of Unit 'C' of the RI Company - Held that:- In view of the aforesaid the petitioner cannot seek any relief against the Articles of Association of the company. Hence the petitioner is not entitled to seek a permanent injunction restraining the respondents from interfering with the carrying on duties enjoined on the petitioner in relation of Unit C or the RI Company. Accordingly, the issue is answered against the petitioner.
The petitioner has not made out any case either on oppression or on mismanagement and the petition is miserably failed and liable to be dismissed.
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2015 (5) TMI 1116
Exemption u/s 10(23C) - Held that:- The aggregate annual receipts of the institution/hospital from all sources including the running of the hospital received by the assessee for providing treatment should be covered by section 10(23C)(iiiae) of the Act. When the hospital has house property which was held under the trust, the income earned by the assessee from such house property shall also form part of the aggregate annual receipts of the institution provided the same is utilized for providing treatment. It is well settled principles of law that the taxation law has to be interpreted without adding any word to the language employed by the Parliament. When the Parliament does not say that the income shall be derived from hospital for medical relief, it may not be proper for the Assessing Officer to say that income shall be derived from the hospital. When the assessee has income from other sources including the income from house property and the aggregate annual receipts exceeds ₹ 1 crore, the assessee is not entitled for exemption u/s 10(23C)(iiiae). However, if the annual receipts do not exceed ₹ 1 crore, the assessee is definitely entitled for exemption u/s 10(23C)(iiiae) of the Act.
Standard deduction allowed u/s 24(a) while computing income from house property - Held that:- The gross income from house property has to be taken without allowing any deduction u/s 24(a) of the Act. Accordingly, the order of the lower authority is set aside and the Assessing Officer is directed to take the gross rental income from house property without any deduction u/s 24(a) of the Act. However, it is made clear that the actual expenditure incurred by the assessee for maintenance of the building shall be allowed as application of income either u/s 11 or 10(23C) of the Act.
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2015 (5) TMI 1115
Sale of property - capital gain or business income - applicability of section 50C - Held that:- On perusal of main objects and other objects mentioned in the Memorandum of Association of the appellant company, in our understanding, there was no clause enabling the appellant company to deal in the properties. The main objects for which the company was incorporated is to carry on business of manufactures, processors, importers, exporters and dealers in all kinds of ferrous and non-ferrous material meant for any industrial or non-industrial use whatsoever and to carry on the business of castings, fabrication, cold and hot rolling, re-rolling, slitting, adgemilting, sheeting, stamping, pressing, extruding, forging, drawing, flattening, straightening, heat treatment of all kinds of steel and other metals or any other stripes, sheets, foils, tapes, wires, rods, plates and any other sections, shapes or forms.
Keeping in view the above, we hold that the appellant sold the property only as investor. The version of the appellant that the property is held as stock in trade cannot be believed. Having held that the property sold was held as investment or capital asset, then the provisions of Section 50C are clearly applicable. The fact that the appellant had not received consideration over above sale proceeds stated in the registered document shall have any bearing on the applicability of the provisions of Section 50C of the Act.
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2015 (5) TMI 1114
Capital gain on conversion of land as stock in trade - business income treatment - Held that:- The land was to be treated as capital asset upto conversion of it into stock in trade and the assessee is liable for capital gain on conversion of it as stock in trade and provisions of section 45(2) is applicable and after this when the land was actually sold, the income arising from sale to be considered as “Business Income” which is to be assessed in this assessment year. As the Assessing Officer computed the entire sale consideration under the head” business income”, he did not apply the provisions of sec.45(2) of the Act, which is not proper. In view of this, we direct the AO to compute the capital gains upto the date of conversion into stock in trade by applying provisions of section 45(2) of act and thereafter, on actual sale of the land i.e. difference between the value of sale and stock in trade to be considered as” business income” and to be assessed in this assessment year, accordingly. Appeal of the assessee is partly allowed.
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2015 (5) TMI 1113
CENVAT credit - welding electrodes used for repair and maintenance of Plant & Machinery - Held that: - the Tribunal in the case of Kisan Cooperative Sugar Factory Ltd Vs CCE Meerut [2013 (8) TMI 98 - CESTAT NEW DELHI], has held that welding electrodes for repair and maintenance of Plant and Machinery are eligible for CENVAT credit - credit allowed - appeal dismissed - decided against Revenue.
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2015 (5) TMI 1112
Extension of warehousing period - power of Commissioner to extend warehousing period - natural justice - interpretation of statute - Held that: - liberal interpretation is possible in the fitness of the circumstances of the case following the law laid down by apex Court in Sambhaji Vs. Gangabai [2008 (11) TMI 393 - SUPREME COURT OF INDIA] holding that rules cannot be tyrant of law but should be servant thereof and procedure being handmade of justice it should not cause obstruction to render substantial justice - appeal allowed by way of remand.
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2015 (5) TMI 1111
Revision u/s 263 - Claim u/s 80IB(10) - Held that:- We find that the ld. Assessing Officer has made an elaborate discussion of facts by placing reliance upon various decisions of higher authorities. We note that the ld. Assessing Officer has taken one of the possible view, more specifically, when the Tribunal upheld the decision of the ld. Commissioner of Income Tax (Appeals) holding the assessee as a joint developer along with M/s Dhruv Construction. No appeal was filed by the Department against the decision of the Tribunal. Even, no contrary decision has been mentioned more specifically when the assessment was framed, the decision from a higher forum was available before the Assessing Officer. The ld. Assessing Officer has also made discussion about other disallowances in the assessment order along with other details and computation of total income as is evident from page-6 of the assessment order.
Assessment order is neither erroneous nor prejudicial to the interest of revenue, therefore, we allow the appeal of the assessee
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2015 (5) TMI 1109
Penalty u/s.271(1)(c) - 50% of revenues attributable to India-Royalty income, 25% of revenues attributable to India-FTS and 70% of revenues attributable to India- Business Income - Held that:- Assessment has been made on the basis of difference of opinion regarding the interpretation of law on the question of PE, existence of agency PE, royalty and FTS. There is no concealment of any fact nor have any additional facts been discovered proving the earlier disclosure in the return to be false or wrong. The findings recorded by the CIT(A) are just and proper and after consideration of various judicial pronouncements. Respectfully following the order of the Tribunal in assessee’s own case, which has been upheld by the Hon’ble Bombay High Court as well as the judgment of the Hon’ble Supreme Court in the case of Reliance Petroproducts Ltd. (2010 (3) TMI 80 - SUPREME COURT ), we see no reason to interfere in the findings of the CIT(A) deleting the penalty so levied by the AO. - Decided against revenue
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2015 (5) TMI 1108
TPA - Adjustment to ALP to an international transaction carried out by the assessee u/s. 92CA - selection of comparable - Held that:- Assessee is a company as rendered software development Services to its Associated Enterprise(AE) thus companies with functional dissimilarity need to be deselected from final list of comparable.
Deduction u/s.10A computation - Held that:- Taking into consideration the decision rendered by the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT ] we are of the view that it would be just and appropriate to direct the Assessing Officer to exclude telecommunication charges and traveling expenses incurred in foreign currency both from export turnover and total turnover, as has been prayed for in the alternative by the assessee
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2015 (5) TMI 1107
Condonation of delay in filing the applications to set aside the ex-parte decrees - pre-deposit - Held that:- The trial court should not have imposed such an unreasonable and onerous condition of depositing the entire suit claim of ₹ 1,50,00,000/- and ₹ 10,00,000/- respectively in the suits when the issues are yet to be decided on merits. While considering the revision, the High Court should have kept in view that the parties are yet to go for trial and the appellants ought to have been afforded the opportunity to contest the suits on merits. When the S.L.Ps came up for admission on 1.08.2013, this Court passed the conditional order that subject to deposit a sum of ₹ 50,00,000/- before the trial court, notice shall be issued to the respondents. In compliance with the order dated 1.08.2013, the appellants have deposited ₹ 50,00,000/- before the trial court. Since the appellants have satisfactorily explained the reasons for the delay and with a view to provide an opportunity to the appellants to contest the suit, the impugned order is liable to be set aside.
Delay in filing the applications to set aside the ex- parte decrees is condoned and the ex-parte decrees passed are set aside and the suits are ordered to be restored to file
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2015 (5) TMI 1106
Technically valid application under Section 245C - Settlement Commission - Held that:- When the petitioner was permitted to withdraw the petition with liberty to prosecute the matter before the settlement commission, we see no reason to interfere into the matter on such consideration. Accordingly, finding no merit, the petition is dismissed.
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2015 (5) TMI 1105
TPA - selection of comparable - Held that:- The assessee company is engaged in the business of software development and export. thus companies functionally dissimilar with that of assessee need to be deleted from final list of comparable.
Reimbursement of expenditure - Held that:- A.O. himself has agreed that the reimbursement of expenditure does not figure in the P & L account and perusing the paper book at pages 1, 3 and 11 we are convinced that it is only a balance sheet entry and not debited to the P & L account. Hence, we allow the ground with respect to reimbursement of expenditure raised by the assessee before us.
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2015 (5) TMI 1104
CENVAT credit - capital goods used in the factory - denial of credit on the ground that appellant has recovered the cost of the capital goods from their foreign buyers, therefore, they have lost the ownership of the capital goods, consequently, the Cenvat credit is required to be reversed by the appellant as they had removed the goods as such from the factory - Held that: - it is not in dispute that capital goods have been procured by the appellant and are still lying in their factory and are being used by the appellant themselves for manufacturing the final product - appellant is still using these capital goods in their factory and moreover the owner of the capital goods - appellant has correctly taken the Cenvat credit and not required to reverse the Cenvat credit - appeal allowed - decided in favor of appellant.
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2015 (5) TMI 1103
Transfer pricing adjustment - AMP expenses - Held that:- This Court notices that the ITAT in its impugned order in para 7.3 noticed that the Special Bench decision in L.G. Electronics India Pvt. Ltd. versus Assistant Commissioner of Income Tax,(2013 (6) TMI 217 - ITAT DELHI)), it is not disputed by the parties that law has been since clarified by the Division Bench ruling in Sony Erricson Mobile Communications India Pvt. Ltd. vs. Commissioner of Income Tax-III (2015 (3) TMI 580 - DELHI HIGH COURT) . In these circumstances the order of the ITAT is modified. instead of applying the ratio of LG Electronics (supra), the matter is remitted to the ITAT for considering the merits of the appeal including the assessee’s comprehension that AMP determination itself, by taking into consideration that the AMP expenses is not warranted in these circumstances.
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