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Showing 141 to 160 of 1760 Records
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2015 (9) TMI 1629
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with the dropping of Section 9(b) of the Foreign Awards Act, while enacting Part-II of the Arbitration Act, 1996, which repealed all the three earlier laws and put the law of arbitration into one statute, albeit in four different parts.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
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
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
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
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
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
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
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
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
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
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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2015 (9) TMI 1618
Deduction u/s 80P(2)(a)(i) denied - Assessee co-operative society providing credit facilities to members and not registered with the RBI - Held that:- Hon'ble High Court of Karnataka in the case of Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha [2015 (1) TMI 821 - KARNATAKA HIGH COURT] held when the status of the assessee is a Co-operative society and is not a Co- operative bank, the order passed by the Assessing Authority extending the benefit of exemption from payment of tax under Section 80P(2)(a)(i) of the Act is correct.
A co-operative society registered as cooperative society, providing credit facilities to members and not registered with the RBI cannot be denied the exemption under section 80P(2)(a)(i) - Decided in favour of assessee
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2015 (9) TMI 1617
Captive Consumption of Molasses - Manufacturing of Rectified Spirit and ENA - the decision in the case of RAJSHREE SUGARS AND CHEMICALS LTD. AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY AND OTHERS [2014 (11) TMI 919 - CESTAT CHENNAI] contested.
Delay condoned - issue notice.
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2015 (9) TMI 1616
Revision u/s 263 - estimating the profit at 2.5% of the total turnover - business of sale of IMFL - Held that:- AO has called for books of account of the assessee but the assessee had failed to produce the same. - AO had estimated the income of the assessee at 2.5% of the turnover. CIT wants the same to be estimated at 5% of the total turnover because the Tribunal in the case of an assessee carrying on the same business of sale of IMFL has estimated the income at 5% of the turnover. This, in our view, is not justified as held by the Coordinate Bench of this Tribunal.
The uniform net profit cannot be adopted in each and every case of similar business. Estimation of net profit must be on the basis of facts involved in each and every case. Therefore, in our view, there is no error committed by the AO in estimating the profit at 2.5% of the total turnover.
Status of the assessee being AOP or a firm - Held that:- Assessee fairly admitted that the same has not been verified by the AO during the assessment proceedings. Therefore, according to him, the assessment order is erroneous to that extent. As rightly pointed out by the CIT, the AOP attracts the maximum marginal rate of tax and therefore, non verification of the same also makes the assessment order erroneous as well as prejudicial to the interests of the Revenue. In view of the same, we reject the ground of appeal No.4.
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2015 (9) TMI 1615
Addition of interest attributable to capital work in progress - Whether the interest attributable to capital work in progress are hundi discount charges for material purchases? - Held that:- Assessee had generated ₹ 229.51 crores from its operating activities - against this, investments in fixed assets, and capital work-in-progress was only ₹ 122.81 crores which means that assessee had more than sufficient own funds for financing the capital work-in-progress - also there were no loans raised by the assessee during the relevant previous year - interest disallowance was only presumptive without any basis. - thus appeal by revenue is dismissed.
Disallowance of provision of warranty - Held that:- Provisioning should be for the present obligation arising from past events which is expected to result in out-flow of resources in respect of which reliable estimate is possible for the amount of obligation - assessee could not furnish evidence for the actual warranty expenditure debited in P/L account and could not give historical data for showing that the warranty provisioning was done on a scientific basis - Issue requires a fresh look by the AO - thus allowed for statistical purpose.
Nature of royalty paid on sales - revenue out go or a capital out-go? - Held that:- Just because the consideration was calculated as a percentage applied on net ex-factory selling price, we cannot say that it was a revenue outgo - assessee was free to use the technical knowhow obtained by it from HCCL even after the period of agreement - the agreement between the parties resulted in an enduring benefit to the assessee and thus the consideration paid by the assessee to HCCL was a percentage of the sale value, still it retained all qualities of a capital out go - addition made by the AO is reinstated.
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2015 (9) TMI 1614
Renting of immovable property service - Non-payment of service tax - rent for allotment of plots of vacant land to various persons on lease for industrial and commercial purposes - the decision in the case of Greater Noida Industrial Dev. Authority Versus Commr. of Cus., C. Ex. [2015 (4) TMI 1231 - ALLAHABAD HIGH COURT] contested - Held that: - There shall be interim stay of the impugned judgment and order passed by the High Court of Allahabad in In The Matter of Greater Noida Industrial Development Auth. Versus Commissioner of Customs, Central Excise And 6 Others [2015 (4) TMI 661 - ALLAHABAD HIGH COURT].
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2015 (9) TMI 1613
MRP based valuation under central excise - Section 4A - industrial supply or not - use for shopping malls, large residential complexes, commercial buildings etc. - the decision in the case of LARSEN & TOUBRO LIMITED Versus UNION OF INDIA [2008 (2) TMI 645 - BOMBAY HIGH COURT] contested - Held that: - appeal tagged with other appeal to be referred to Larger Bench.
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2015 (9) TMI 1612
Reducing expenditure in foreign currency on telecommunication and travel, both from export turn over as well as total turnover for computation of deduction u/s. 10A - Held that:- High Court in the case of CIT v. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT]. Just because the judgment has not been accepted by the Revenue and it has moved an SLP before the Hon'ble Apex Court would not be a reason for not following the judgment. We find no error in the order of AO in this regard. Ground. 1 is dismissed.
Comparable selection criteria - Held that:- DRP was justified in directing exclusion of comparables having turnover in excess of ₹ 200 crores. No reason to interfere. Ground 2 is dismissed.
There is a clear finding given by the Tribunal in the case of selecting comparables, 15% is the threshould limit of RPTS. Accordingly, we set aside the order of DRP and direct the AO/TPO to consider 15% as threshold limit for RP transactions and consider all the comparables in the list of comparables which do not have RPT exceeding 15%, for the analysis of international transactions of the assessee for the impugned assessment year, provided other conditions for comparability are satisfied. Ordered accordingly. Ground 3 of the Revenue is treated as allowed for statistical purpose.
Remit this issue of comparability of Akshay Software Technologies back to the file of the AO/TPO for fresh consideration in accordance with law, after considering the correct RPT of the said company.
Kals Information Systems was not a proper comparable to a software development services company.
Web site services is generally considered as falling within ITES segment. That ICRA Techno Analytics was also involved in web-development and hosting is clear from the background information mentioned in its significant accounting policies reproduced supra. Hence, in our opinion before considering ICRA Techno analytics as a proper comparable, it is necessary for a segmental analysis of its results. This issue, in our opinion, requires a fresh look by the AO/TPO so that necessary inputs are taken from the said company for proper analysis of its segmental results and deciding the comparability with that of the assessee.
AO/TPO is directed to consider both Kals Information Systems Ltd and ICRA Techno Analytics Ltd, for comparability after ensuring that they pass the RPT filter, and if required segmental data can be obtained. We, therefore, set aside the orders of lower authorities with regard to Kals Information Systems Ltd (seg) and ICRA Techno Analytics (seg) back to the file of AO/TPO for consideration afresh.
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2015 (9) TMI 1611
Incriminating materials and money found in search - presumption under section 132(4A) - Held that:- Merely because the findings of the Assessing Officer was approved by the Appellate Tribunal, the order of the Tribunal could not be said to be vitiated. That apart, on going through the order of the Appellate Tribunal, we found that each and every circumstances pointed out by the assessee during the course of the arguments were considered by the Tribunal and has found that the evidence recorded by AO during the course of the search was corroborative in nature and, therefore, were acceptable in law.
Tribunal has also found that the amount recovered from the hotel premises was proved to be the amount belonging to the company and this conclusion is corroborated by the evidence taken on oath. So also, the Tribunal has found that the slips recovered from the office premises were not explained by the assessee and also that having regard to the quantum of contract work undertaken by the assessee, it would be reasonable to presume that the amounts noted in the seized materials represented amounts in lakhs
Revision u/s 263 - Held that:- As under section 263 the Commissioner had every power to direct the Assessing Officer to take into account materials, accounts and other circumstances which were not considered when the original assessment order was prepared.
On a query from the Bench as to whether the reassessment done which was the subject matter was on the basis of the materials which were not considered by the Assessing Officer in the original assessment, learned senior counsel has informed that so far as the assessment which gave effect to the order under section 263, the materials considered were entirely different. Therefore, we are of the considered opinion that the finding of the Tribunal that the order of the Commissioner of Income-tax invoking the power under section 263 was in order does not require any interference in this appeal.
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2015 (9) TMI 1610
Whether quantitative discount, which the petitioner has claimed as trade discount, could be included in the taxable turn over to the petitioning Company or not, for the purpose of assessment under the Act?
Held that: - the petitioner had not received any amount, for the supply of products, free to its customers under the scheme, as referred to above, the said discount could not have been added to the taxable turn over of the petitioner, no “sale” of goods within the meaning of Section 2(t) of the Act having been taken place and no “sale price” having been received by the petitioner.
The respondents were not justified in including the quantitative discount/trade discount allowed by the Company to its customers, to his taxable turn over for the assessment year 2000-2001. The said discount to the tune of ₹ 20,68,257/- has been wrongly assessed to be included in the taxable turn over.
Application allowed.
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