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Case Laws
Showing 141 to 160 of 1749 Records
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2015 (9) TMI 1618 - ITAT PANAJI
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 - SC ORDER
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 - ITAT HYDERABAD
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 - ITAT BANGALORE
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 - SC ORDER
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 - SC ORDER
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 - ITAT BANGALORE
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 - KERALA HIGH COURT
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 - PATNA HIGH COURT
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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2015 (9) TMI 1609 - RAJASTHAN HIGH COURT
Penalty u/s 78(5) of the Rajasthan Sales Tax Act, 1994 - It was noticed that declaration form ST 18-A, which was mandatory, was not found with the vehicle nor produced - Held that: - order of the Tax Board cannot be sustained because the Tax Board, which is the final fact finding authority has clearly gone only on the basis that prior to 22.3.2002 the penalty could have been imposed only on the in-charge/driver of the vehicle from whom the goods were found. The Tax Board has not gone into any other issue.
The matter requires to be considered afresh as the Tax Board did not decide on merits in the light of material already on record - appeal allowed by way of remand.
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2015 (9) TMI 1608 - SUPREME COURT
Discretionary relief for specific performance - failure to prove agreement of sale dated 2.9.1967 - lease agreement.
Held that: - There is no dispute that even a decree for specific performance can be granted on the basis of oral contract - while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement.
However, in a case where the Plaintiff come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the Plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immoveable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the Plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties.
It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions.
In the instant case while deciding the issue as to whether the agreement of 1967, allegedly executed by the Defendants, can be enforced, the Court had to consider various discrepancies and series of legal proceedings before the agreement alleged to have been executed. In the agreement dated 2.9.1967, there is reference of earlier agreement dated 29.11.1965 where under ₹ 18,000/- was paid to the Defendant-Appellant which was denied and disputed. Curiously enough that agreement dated 29.11.1965 was neither filed nor exhibited to substantiate the case of the Plaintiff - Indisputably, various documents including order-sheets in the earlier proceedings including execution case were filed to nullify the claim of the Plaintiff regarding possession of the suit property but these documents have not been considered by the High Court. In our considered opinion the evidence and the finding recorded by the criminal courts in a criminal proceeding cannot be the conclusive proof of existence of any fact, particularly, the existence of agreement to grant a decree for specific performance without independent finding recorded by the Civil Court.
It is not a fit case where the discretionary relief for specific performance is to be granted in favour of the Plaintiff-Respondent - The High Court in the impugned judgment has failed to consider the scope of Section 20 of the Specific Relief Act and the law laid down by this Court.
Suit liable to be dismissed - appeal allowed.
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2015 (9) TMI 1607 - CESTAT NEW DELHI
Refund of excess duty paid - Held that: - the classification or valuation is not being contested by the assessee. It was just the case that due to ignorance/oversight, the appellant failed to claim the benefit of a notification which exempts the impugned goods from payment of duty in excess of 7.5% ad valorem - Delhi High Court in the case of Aman Medical Products Ltd. v. CC, Delhi [2009 (9) TMI 41 - DELHI HIGH COURT] held that when higher duties paid by inadvertence without taking benefit of a notification due to ignorance, refund claim can be filed subsequently without challenging the assessment order - appellant entitled to claim the refund without challenging the assessment.
The refund claim should be considered on merit - If the refund is found to be admissible, it should be granted to the appellant only if the appellant discharges the burden of establishing that it had not passed on the burden to any person - appeal allowed by way of remand.
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2015 (9) TMI 1606 - BOMBAY HIGH COURT
Whether the Suit as filed is barred under the provisions of the Benami Transactions Act? - Whether the Suit is barred by limitation? - Section 9-A of the Code of Civil Procedure, 1908 - Sabita's refusal to give evidence in the matter.
Held that: - the entirety of her case, from start to finish, demands evidence. She says that after the 1995-96 Family Arrangement, the family business continued to be closely-held, and run as a joint family quasi-partnership. This needs evidence. She says that "no member of the Gopal Raheja Group ever asserted any rights independently as shareholder and/or Director but always acted in a fiduciary capacity and in trust for each other". That needs evidence.
Sabita had the opportunity to establish this fiduciary relationship, even outside the exclusions of the Benami Act, and relying on the second part of Section 4(3)(b), i.e., "other fiduciary capacity". She might have shown, say, that while assets were held in one name, the benefits or income from those assets were shared in a 23 of 27 manner inconsistent with a sole or personal holding. Sabita repeatedly refers to 'intentions', 'understandings', 'practices' and more. Of this, there is no evidence whatever. All that I have is a surmise piled on conjecture wrapped up in speculation. - the first preliminary issue must be answered in the affirmative - The suit is barred under the provisions of the Benami Transactions (Prohibition) Act, 1988.
Time limitation - Held that: - It is a mixed question of fact and law. No facts are proved as required by Section 9A of the CPC - In any case, what appears to be material is that if according to the Plaintiff in 2005-2006 there was an agreement or understanding by which certain properties were transferred to Sandeep Raheja, and if this was in derogation of the 1995-1996 Family Arrangement, then that must surely be a starting point of limitation of this suit - it is not possible to hold in favour of the Plaintiff in the absence of necessary evidence. A mere pleading is insufficient - Without evidence, a segregation of these claims is impossible. The second issue is also answered in the affirmative. The suit is barred by limitation.
Suit dismissed.
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2015 (9) TMI 1605 - CESTAT CHENNAI
Levy of service tax - renting of immovable property service - Held that: - The conduct of the assessee does not appear to be contumacious but the fact remains is that there was collection of the tax by the appellant during introduction stage of levy which was crystallized by judicial pronouncement in the case of Home Solutions Retail Ltd. Vs Union of India [2010 (5) TMI 3 - DELHI HIGH COURT] holding the levy constitutional. Therefore, he has to discharge levy of service tax liability without raising any doubt on that.
Penalty - Held that: - Penalty for intention to cause evasion does not arise in the circumstances of the case. When retrospective levy imposed an obligation which otherwise was in question, prior to the amendment of law and assessee discharged tax liability as well as liability for the default period, it would be contrary to the legal jurisdiction to penalize the person in a quasi-criminal proceeding of levy of penalty - waiver of penalty justified.
Appeal allowed in part.
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2015 (9) TMI 1604 - SETTLEMENT COMMISSION KOLKATA
Settlement Commission - The application has been filed for settlement of a case under Section 32E of the Central Excise Act, 1944, made applicable to service tax vide Section 83 of the Finance Act, 1994 (32 of 1994) - Held that: - The Bench finds that the applicant has not filed returns as prescribed in clause (a) of the first proviso to Section 32E(1), as made applicable to Service Tax as per Section 83 of the Finance Act, 1994. This clause states that no application shall be made unless the applicant has filed returns showing production, clearance and central excise duty paid in the prescribed manner - The Bench finds that even after having been intimated that the ST-3 returns had not been filed in contradiction to the contentions in the application for settlement, the applicant has neither availed the opportunities offered to him to be heard in the matter nor explained the contradiction in his averments made in the application and the position as intimated by the jurisdictional Commissioner. Thus, the Bench considering the case record including the report received from the jurisdictional Commissioner and statement dated 7-3-2015 of the applicant, concludes that the applicant has, not only, not filed the requisite ST-3 returns, but also tried to mislead the Bench by enclosing documents purported to be ST-3 returns filed with the Department.
The applicant has not fulfilled the condition for approaching the Settlement Commission as stipulated in clause (a) of the first proviso to sub-section (1) of Section 32E of the Central Excise Act, 1944, read with Section 83 of Finance Act, 1994, and also not cooperated with the Settlement Commission in the proceedings - the Bench holds that M/s. Saujannaya Enterprises are not eligible to make an application to the Settlement Commission and consequently without going into the merits of his Service Tax liability, rejects the application for settlement filed by M/s. Saujannaya Enterprises.
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2015 (9) TMI 1603 - ITAT, CHANDIGARH
Reopening of assessment - addition of long term capital gain - notice issues prior to recording of reasons - Held that:- AO issued the notice u/s 148 dated 19.09.2011 prior to recording of the reasons under section 148 of the Act. Therefore, the notice issued under section 148 is wholly null and void and liable to be quashed because it was not in consonance with the provisions contained under section 148(2) of the Act. The ld. DR submitted that the notice under section 148 has been served upon assessee on 23.09.2011 and there may be a typographical error in the notice under section 148 of the Act. However, no material or evidence has been produced on record to justify such a contention.
Therefore, contention of ld. DR is rejected. In view of the above, it is clear that since notice under section 148 have been issued prior to recording of the reasons, therefore, entire re-assessment proceedings have been vitiated and the same are null and void and liable to be quashed. - Decided in favour of assessee
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2015 (9) TMI 1602 - APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI
Non filing the Cash Transaction Report (in short CTR) in respect of two cash transactions - Held that:- A careful consideration of the provisions as contained in Rule 3(1)(B) of the rules prescribe that banking company shall maintain the record of all transactions including the record of all series of cash transactions integrally connected to each other which has been valued below rupees ten lakh or its equivalent in foreign currency where such series of transactions have taken place within a month and Rule 7(2) of the Rules provides that the Principal Officer of the banking company shall furnish the information referred to in Rule 3(1)(B) of the Rules to Director. The provisions of Rule 3(1)(B) of the Rules clearly states in respect of all series cash transactions integrally connected to each other which have been valued below rupees ten lakh (emphasis supplied) and it does not provide that the total value of all series of integrally connected cash transactions should be over rupees ten lakh. Thus in the present case even if the service charges are excluded from consideration, the value of integrally connected cash transactions i.e. two demand drafts is ₹ 10 lakh which was valued below rupees ten lakh by splitting into two demand drafts of ₹ 2 lakh and ₹ 8 lakh and thus falls within the four corners of the provisions of Rule 3(1)(B) of the Rules.
The show cause notice was clearly on account of failure of the appellant to report cash transactions integrally connected to each other which have been valued below ₹ 10 lakh where such series of transactions have taken place within a month. Show cause notice did not say that the aggregate value of the integrally connected cash transactions is more than Rs. ten lakh.
As regards argument of the appellant that service/bank charges for issue of demand draft should be excluded from the value of transactions as it does not form part of the transactions as it is directly credited by the appellant to bank charges account and in view of the guidelines issued by the regulator RBI vide para 2.20(a)(iv) of the Master Circular, is without merits and the same cannot be sustained
Further the plea of the appellant that the above cash transactions were bona fide in nature is also without merits as the provisions of PMLA and Rules made there under does not provide any such exclusion in respect of CTR. All the cash transactions irrespective of their bona fide nature which are covered by the provisions prescribed at the relevant time as per PMLA and Rules made thereunder are to be reported in CTR and if any cash transaction is suspicious in nature then irrespective of its value, the same is also to be reported in Suspicious Transaction Report. If it were a clear and bona fide transaction, there could have been no need to split up the payment of ₹ 10 lakh to the same recipient on same day at the same time so that each component remains below ₹ 10 lakh. If such a transaction did not raise an alert, then the internal system of the bank is inadequate.
As regards argument of the appellant that in case any question arises relating to the interpretation of the Rules, the Director should have referred the matter to the Central Government for its decision under Rule 11 of the Rules, the same is without merit as there is no ambiguity in the interpretation of the Rules as propounded by the appellant bank.
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2015 (9) TMI 1601 - ITAT MUMBAI
Reopening of assessment u/s 147 - notice under Section 143(2) mandatory - Held that:- Assessment completed u/s. 147 of the Act without issuing a notice u/s. 143(2)is not a valid assessment and that provisions of section 292BB cannot cure the basic defect non issuance of 143(2)notice. In the case before us, there in evidence of service of notice issued, u/s. 143(2)of the Act, by the AO. Therefore, we are of the opinion that the FAA was not justified in holding that the order passed by the AO u/s. 147 was a valid order. Reversing his order, we decide the effective ground of appeal in favour of the assessee. As a result, appeal filed by the assessee stands allowed.
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2015 (9) TMI 1600 - DELHI HIGH COURT
TPA - revenue challenges the exclusion of companies on the basis of lower or higher depreciation as a percentage of total costs and on the basis of sales either less than ₹ 5 crores or more than ₹ 50 crores - Held that:- On perusal of the order of the CIT (A) it is plain that the TPO has accepted the filter on the basis of depreciation to the total costs less than 5% and more than 50%. Taking into account that the Assessee‟s sales was in the vicinity of approximately ₹ 10 crores, the CIT (A) held that the companies having turnover of more than 50% should not be included as comparables. The decision in Chryscapital Investment (2015 (4) TMI 949 - DELHI HIGH COURT) also underscores that any one parameter cannot ipso facto be determinative of how an ALP has to be determined.
In the facts and circumstances of the present case, where the TPO has accepted both filters, i.e. the filter on the basis of depreciation to the total costs less than 5% and more than 50% as well as the turnover filter, the Assessee is right in contending, on the strength of the decision MCorp Global (P) Ltd. v. CIT, Ghaziabad (2009 (2) TMI 5 - SUPREME COURT), that the benefit granted to the Assessee by the AO, who has accepted and acted upon the report of the TPO, could not have been taken away by the ITAT.
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2015 (9) TMI 1599 - CESTAT, CHENNAI
CENVAT credit - Courier service - interpretation of statute - whether Courier service can be equated with the GTA Services? - Held that: - Courier service cannot be equated with the GTA Services - When appellant's case was that his documents were to be consigned "availing services of the courier", it is inconceivable how that shall be equated with the character of GTA Service. Service of courier in business being indispensable necessity, the assessee is entitled to Cenvat credit - appeal allowed - decided in favor of appellant.
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