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Showing 141 to 160 of 2152 Records
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2018 (9) TMI 2016
Disallowance u/s 43B(e) read with explanation 3D - AO made disallowance of interest on OD account maintained by the assessee on the ground that every month, the interest amount was debited to the OD account which only resulted in increasing the amount of loan/advance due to the bank from the assessee - CIT(A) deleted the disallowance while relying on various judicial decisions and relying on the order of his predecessors in assessee’s own case for AY 2011-11 by holding that the assessee had made payment of interest with respect to the OD /CC account and therefore was not covered by the provision of section 43B(e) r.w explantation 3D - HELD THAT:- We find that the identical ground has already been decided for AY 2011-12in assessee’s own case [2016 (12) TMI 1839 - ITAT MUMBAI] department declined to grant the benefit of deduction on interest paid primarily on the plea that the amount has not been actually paid and transfer of amount from one account to another account cannot be treated as paid. However, the Tribunal repelled the said plea by interpreting Section 43B of the Act and held that overdraft/cash credit accounts are not similar to loan accounts. The Tribunal further observed that the interest amount has been actually paid by the assessee through Overdraft/Cash Credit account and, therefore, set aside the disallowance made under Section 43B of the Act.
A bare reading of Explanations 3C and 3D to Section 43B of the Act provides an answer to the problem by making it clear that where interest amount has not been converted into loan or borrowing (or) loan or advance, as the case may be, there is no question of denying the benefit of deduction. In the case on hand, the interest amount has been actually paid by the assessee through Overdraft/Cash Credit account and the same has not been converted into loan or borrowing (or) loan or advance, as the case may be.
These appeals are dismissed by answering the question of law against the Revenue and in favour of the assessee
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2018 (9) TMI 2015
TP Adjustment - selection of MAM - Resale Price method (RPM), Cost Plus Method (CPM) and Transaction Net Margin Method (TNMM) - HELD THAT:- As far as international transactions for purchase of raw materials is concerned, the only reason given by the TPO in rejecting CPM as MAM is the absence of gross margins of the assessee and the manner in which it was computed. In this regard, we find that in a letter dated 14.10.2014 filed by the assessee before the TPO the assessee has given cost of sales and other indirect cost. The same is at page 525 of assessee’s PB. In these circumstances, we are of the view that the reasons given by the TPO for rejecting CPM as MAM cannot be sustained.
As far as international transaction of trading in water heaters is concerned, this Tribunal has already taken a view in assessee’s own case for AY 2010-11 that RPM is the MAM. Following the aforesaid order, we hold that the TPO is not correct in rejecting the RPM as MAM.
Determination of ALP for both international transactions are concerned, we are of the view that the provisions of section 92 mandate determination of ALP. The fact that after carrying out such exercise, the profit margins of the assessee would be abnormal cannot be the basis to accept the price paid in the international transactions as at arm’s length. In other words, it is mandatory to determine the ALP in the manner contemplated by the Act and the Rules. In our view, the DRP fell into an error in accepting the price received by the assessee in international transactions as at arm’s length without carrying out such an exercise. We therefore feel it proper to set aside the order of DRP and remand to the AO/TPO for fresh consideration the determination of ALP on the basis of MAM as adopted by the assessee in its TP study.
As assessee submitted before us that the comparables chosen by the assessee in its TP study were also chosen by the TPO, when he adopted TNMM. His prayer was that pursuant to the remand by the Tribunal, the TPO should be directed to restrict himself from choosing any fresh comparables. In our view, the TPO has to carry out the exercise in accordance with the law and no restriction can be placed on his powers to bring any relevant and appropriate data on record in the matter of determination of ALP.
Appeal by the revenue is allowed for statistical purposes.
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2018 (9) TMI 2014
Scope of Advance Ruling - Section 97(2) of the GST Act - Transfer of portion of Input Tax Credit belonging to Sandila Unit - Transfer of input tax credit belonging to an unit lying in common electronic credit ledger of one common U.P. registration opted for 7 units including the unit while migrating to the GST regime with effect from July, 2017 - HELD THAT:- The question for determination under the advance ruling does not come under the ambit of the specification as provided by the Section 97(2) of the GST Act on which Advance Ruling is being sought.
Application dismissed.
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2018 (9) TMI 2013
Refund claim - intermediary services - whether the rejection has been made in terms of the Legal provisions guiding issuance of LUT under GST? - whether the services in which the Appellant is engaged amounts to Export of services or Intermediary Services? - HELD THAT:- In the present case, the services provided by the Appellant located in India to the recipient located outside India in lieu of consideration charged for the said services amounts to ‘supply’ of services. Now, in order to determine whether the said transaction will be Export of Services, the ‘place of supply’ of such services must be determined.
Section 13 of IGST Act determines the place of supply of services where either the location of supplier or the location of recipient is outside India. Here, default Section 13(2) provides that the ‘place of supply’ shall be the ‘location of the recipient’ unless the services falls within the ambit of specified Sections from 13(3) to 13(13) of the IGST Act - In pursuance of Section 13(8)(b)of the IGST Act, 2017, the place of supply of the “Intermediary services” shall be the ‘location of the supplier of services’.
In the present case, the appellant is rendering services on behalf of the OCA and not as an independent Service provider. In terms of the aforesaid agreement/MOU, with the OCA, as applicable during the relevant period, the Appellant assists intended people to become students of OCA clients, i.e. foreign Universities/Institutions and for that purpose provides all the necessary information about the course, course fee, minimum Level of English Language proficiency etc., and assists them in completing Admission application forms and its submission with those foreign universities/institution and the services culminate in India prior to travel abroad by the student - Commission is paid to the OCA in respect of each student enrolled through the recruitment agent on the basis of converted leads i.e. on per student basis who takes admission by the foreign University/Institution. Appellant receives consideration from OCA as per terms of MOU.
Since the nature of activities or services undertaken by the appellant are as a facilitator, and hence, the Appellant is to be considered as an intermediary in terms of Section 2(13) of the IGST Act.
The appellant has failed to observe the provisions of law, so far as the facts of the case are concerned. The contraventions of various provisions of Central Goods and Services Tax Law and the Integrated Goods and Services Tax Law, stand clearly proved against the appellant, as such duty, interest and penalty, as per above provisions of law are held to be recoverable/imposable upon them.
The services of the Appellant are not ‘Export of Services’ under the GST Act and are exigible to tax - appeal dismissed.
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2018 (9) TMI 2012
Classification of goods - HSN Code - luminaire in passenger coaches of Indian Railways which exclusively works on electric supply of 110/127 Volts - rate of tax at which such LED lights shall attract GST under Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017 - HELD THAT:- It is clearly established in Notes 2(f) and (k) that electrical machinery or equipment (Chapter 85) and lamps or lighting fitting of Heading 9405 whether or not indefinable as for the goods of said Sections, cannot be treated as 'parts' and 'parts and accessories' of any vehicles, Aircraft, Vessels and Associated Transport Equipment. The implication of Note 2 of Section XVII would be that the LED based luminaire procured by the railways are to be classified in Chapter 9405 instead of 8607. Therefore, GST on LED bases luminaire is applicable by classifying the same under Chapter sub-heading 9405.
Hon'ble Supreme Court having similar issue in the case of INTEL DESIGN SYSTEMS (INDIA) P. LTD. VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE [2008 (2) TMI 5 - SUPREME COURT] upheld the order of the adjudicating authority by a verdict that Since these fall under the category of excluded goods under Chapter Notes, even though they are used specifically solely or principally with the armoured vehicles of Chapter Heading 8710, they are classifiable under Chapter Heading 8536.90 only as held by the adjudicating authority.
The contention of the party is not correct and LED based luminaire used in passenger coaches of Indian Railways should be classifiable under Chapter 9405 of the GST Tariff and the taxpayer have to pay CGST @ 6% in terms of Sr. No. 226 of Schedule-II of Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017, as amended and SGST @ 6% in terms of Schedule-II of Notification No. KANI-2-836/XI-9(47)/17-U.P.ACT-l-2017-Order-(06)-2017, dated 30-6-2017 (as amended).
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2018 (9) TMI 2011
Orders passed u/s.201(1) & 201(1A) - period of limitation - assessee in default - Scope of amendment - whether returns of TDS filed by the Assessee in the present case for the three FYs were belated and therefore the provisions of Sec.201(3)(i) does not apply in the present case? - HELD THAT:- Amending section 201 by Finance Act, 2014, it has been specifically mentioned that the same shall be applicable w.e.f. 1/10/2014 and even considering the fact that proceedings for F.Y. 2007-08 and 2008-09 had become time barred and/or for the aforesaid financial years, limitation under section 201(3)(i) of the Act had already expired on 31/3/2011 and 31/3/2012, respectively, much prior to the amendment in section 201 as amended by Finance Act, 2014 and therefore, as such a right has been accrued in favour of the assessee and considering the fact that wherever legislature wanted to give retrospective effect so specifically provided while amending section 201(3)(ii) of the Act as was amended by Finance Act, 2012 with retrospective effect from 1/4/2010, it is to be held that section 201(3), as amended by Finance Act No.2 of 2014 shall not be applicable retrospectively and therefore, no order under section 201(1) of the Act can be passed for which limitation had already expired prior to amendment to section 201(3) by Finance Act No.2 of 2014.
It is not in dispute before us that the proceedings u/s.201(1) of the Act were barred by time if the law applicable for the relevant period is the law as it prevailed prior to amendment to Sec.201(3) by the finance Act No.2 of 2014. In these circumstances, we find no error in the order of the CIT(A) in holding that the orders passed for FY 2008-09 to 2010-11 were barred by limitation and consequently quashing them. We find no grounds to interfere with the order of the CIT(A) and therefore dismiss the appeals by the revenue.
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2018 (9) TMI 2010
Rectification u/s 254 - non-adjudication of the real dispute under consideration - capital gain computation - JV entered - HELD THAT:- Due to the takeover of "LAND" by a USA- based company, the applicant exercised its option to sell all the shares of the JVCo to the other partner. Section 2(14) defines that 'capital asset' means property of any kind held by an assessee, whether or not connected with his business or profession.
How transfer has taken place in the above case. In this context reference has been made to the waiver agreement dated 15.06.2006 between the applicant and LAND.
At the time of entering the JVA, the applicant had put 50% financial stake in JVCo and was also actively involved and the business activity of the said JVCo. The right was bestowed, in lieu of, or on the consideration of such financial and managerial and HRD investment by the applicant in JVCo. We have discussed the same at para 7.5.3 of the impugned order. The applicant had acquired this right of first refusal, the date it entered into the JVA. Therefore, the applicant had not acquired this right from any previous owner.
All the more, it is an important right which enables the applicant as well as the other JV partner to carry on the business. Therefore, the cost of acquisition of such a right shall be nil as per the provisions of section 55(2)(a) of the Act. Thus, we arrived at a finding that the same is chargeable as short term capital gains because the applicant had exercised its option to sale its rights on 08.05.2006 i.e. within 12 months of the JVA dated 27.05.2005.
The applicant has not pointed out any mistake aparent from the record. A mistake apparent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record.
In fact, not a single error in the impugned order has been pointed out by the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute.
The Hon'ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [1970 (3) TMI 163 - SUPREME COURT] that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2).
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2018 (9) TMI 2009
Belated payment of Employee's Provident Fund (EPD) and Employee's State Insurance Scheme (ESI) - HELD THAT:- In view of the judgement of the Division Bench of Delhi High Court in Commissioner of Income-Tax versus Aimil Limited, [2009 (12) TMI 38 - DELHI HIGH COURT] the issue is covered against the Revenue and, therefore, no substantial question of law arises for consideration in this appeal.
The legislative intent was/is to ensure that the amount paid is allowed as an expenditure only when payment is actually made. We do not think that the legislative intent and objective is to treat belated payment of Employee's Provident Fund (EPD) and Employee's State Insurance Scheme (ESI) as deemed income of the employer under Section 2(24)(x) of the Act.
Appeal is dismissed.
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2018 (9) TMI 2008
Estimation of income - commission income of the assessee was estimated @4% on aggregate receipts reflected in the bank account of the assessee - CIT-A reduced it 0.15% of the aggregate value of the accommodation entries provided by failing to appreciate that the assessee, when accorded an opportunity to do so, failed in providing sufficient details about the margins it earned on providing accommodation entries - HELD THAT:- We find that a view has already been taken by the Tribunal for AY 2009-10 & 2011-12 wherein the stand of Ld. CIT(A) has been upheld. The impugned order is common order for all the three AYs. Therefore, following the same, we dismiss the revenue’s appeal.
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2018 (9) TMI 2007
The Supreme Court of India, in 2018 (9) TMI 2007, with Justices Rohinton Fali Nariman and Indu Malhotra, dismissed the Special Leave Petition as they found no merit in it. Pending applications were disposed of. Delay was condoned.
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2018 (9) TMI 2006
TP Adjustment - adjustment to Arm’s Length Price - comparable selection - whether the exclusion of one comparable company i.e Indusind Information Technology Ltd by the ld CITA is in order? - HELD THAT:- In assessee’s own case [2015 (6) TMI 677 - ITAT KOLKATA] for the immediately preceding assessment year, we hold that the said comparable i.e M/s Indusind Information Technology Ltd has been rightly excluded by the ld CITA considering the entirely different functional profile and hence not comparable with the assessee company as the said comparable was mainly into providing management consultancy services on information technology matters. Accordingly, the grounds raised by the revenue are dismissed.
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2018 (9) TMI 2005
TP Adjustment - (AMP) expenditure as an international transaction u/s.92B - compensation to be received by the assessee from its Associated Enterprise (AE) for creating marketing intangibles and promoting the brand name of its AE, specifically when the assessee company was promoting marketing intangibles of its AE though the brand belongs to the AE and not to the assessee - Disallowance of traveling and conveyance expenses - non deduction of tds - company neither specified the nature and purpose of expenses nor any supporting evidence was filed to justify the claim - Disallowance of miscellaneous expenses - claim neither verifiable as no supporting evidence was available and also the same could not be established to have been incurred wholly and exclusively for the purpose of business - HELD THAT:- Delay condoned. Leave granted.
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2018 (9) TMI 2004
Maintainability of appeal - Application filed by Operational Creditor under Section 9 of the ‘Insolvency and Bankruptcy Code, 2016 - HELD THAT:- During the pendency of the appeal, the parties settled the dispute and brought on record the terms of settlement dated 14th September, 2018 arrived between the parties. In terms of the said settlement, the demand draft has been handed over to Mr. Susshil Daga, learned counsel for the Appellant who on his turn handed over the same to Mr. Piyush Pareek, Proprietor of ‘B.R Construction’ who is present in the court.
In view of the settlement, no further order is required to be passed in this appeal - appeal dismissed.
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2018 (9) TMI 2003
Assumption of jurisdiction u/s 153A - as argued no incriminating material was detected as a result of search and the addition was made on the basis of post-search enquiries and statements recorded u/s 132(4) - addition u/s 68 - HELD THAT:- Addition made by the Assessing Officer u/s 68 of the Act is not based on any incriminating material and is based on statements recorded during search u/s 132(4) and post-search enquiries.
Addition of ₹ 39 lacs was not made on the basis of any incriminating material, but is based on statements recorded during the search u/s 132(4) and post-search enquiries. It has been held in various decisions that completed assessments cannot be disturbed u/s 153A in absence of any incriminating material. We shall refer to the leading cases on this aspect.
The Hon’ble Delhi High Court in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] has held that the completed assessment can be interfered with by the Assessing Officer while making the assessment u/s 153A only on the basis of some incriminating material found on or during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or not known in the course of original assessment.
Since in the instant case addition of ₹ 39 lacs was made on the basis of statements recorded u/s 132(4) and post-search enquiry and no incriminating material was found/seized during the course of search, therefore, following the decisions cited we hold that no addition could have been made u/s 153A since the assessment was not abated in the instant case. In view of the above, we hold that the ld. CIT(A) was not justified in upholding the action of the Assessing Officer in assuming jurisdiction u/s 153A - Decided in favour of assessee.
Addition applying provisions of section 56(2)(viib) - Provisions under section 56(2)(viib) of the Act cannot be made applicable to the case of the assessee inasmuch as the amount was received in the years earlier to the year under consideration. On this score the assessee succeeds. We accordingly answer the grounds in favour of the assessee and hold that the addition cannot be sustained.
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2018 (9) TMI 2002
Direction to pay tax and penal interest without issuing an assessment order - Section 61 of the Andhra Pradesh Goods and Services Tax Act, 2017 - HELD THAT:- While a show cause notice is required to be issued under Section 74(1) of the APGST Act for recovery of penalty equivalent to the tax specified in the notice, Section 74(5) of the said Act enables the dealer to pay 15% penalty on his own accord before receipt of a notice under Section 74(1) of the Act. Section 74(5) of the APGST Act enables the dealer to avoid payment of penalty beyond 15%, if penalty at 15% is paid before receipt of a show cause notice. That does not mean that, even without a show cause notice being issued, the dealer is obligated to pay penalty at 15% under Section 74(5) of the Act. Section 74(5) of the Act merely enables the petitioner to pay penalty at 15% on his own accord, in which event the assessing authority cannot thereafter issue a notice seeking recovery of the balance 85% penalty (i.e., penalty equivalent to the tax specified in the notice). Whether penalty at 15% should be paid or not is for the assessee to decide.
The impugned order, to the limited extent the petitioner was called upon to pay penalty at 15%, is set aside - As the validity of the order is not subjected to challenge in this Writ Petition on any other ground, it is wholly unnecessary for us to examine the said order on its merits.
Petition disposed off.
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2018 (9) TMI 2001
Liability of Service Tax - sum charged for providing security to various banks in the State of Punjab - Exemption of property and income of a State from Union taxation - HELD THAT:- A perusal of the Article 289 of the Constitution of India shows that the property and income of a State is exempted from Union taxation. However, the Union is not debarred from imposing or authorising or imposition of any tax by law to be framed by the Parliament in respect of a trade or business of any kind carried on by or on behalf of the State or any property used for the purpose - In the case in hand, providing security cannot be said to be a business carried on by the State, as it is otherwise the duty of the State. Security service has not been provided to any private individual. Apparently for the reason of requirement of security more than the normal being provided by the State, certain amounts have been recovered from the public sector banks and All India Radio, on which Service Tax is sought to be charged by the department, which cannot be permitted, because of constitutional bar.
The impugned orders directing recovery of Service Tax from the amount received by the State on account of service provided to the banks, etc. are set aside - Petition allowed - decided in favor of petitioner.
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2018 (9) TMI 2000
CENVAT Credit - common inputs and input services used for taxable as well as exempt services - failure to maintain separate accounts for common inputs and input services - Section 35G of the Central Excise Act, 1944 - HELD THAT:- Mere pendency of the SLP would not obliterate the law declared by a Division Bench of this Court; and the decision rendered therein would be binding on a co-ordinate Bench.
Appeal dismissed.
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2018 (9) TMI 1999
Employee’s contribution on ESI & PF - Sum not paid by the assessee as an employer within the due date of PF Act - HELD THAT:- As assessee failed to remit the PF & ESI within the due date under PF Act but the assessee had remitted the same within the due date of filing of the return of income. There is no dispute about the above said contention.
As perused the ratio laid down in the case of CIT vs. Industrial Security & Intelligence India Pvt. Ltd. [2015 (7) TMI 1063 - MADRAS HIGH COURT] wherein, it was held that there could be no deemed addition u/s.36(1)(va) r.w.s.2(24)(x) of the Act if the impound amount paid before the due date of the filing of the return. - Decided in favour of assessee.
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2018 (9) TMI 1998
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - HELD THAT:- The Insolvency and Bankruptcy Code, 2016 having come into force on 1st December, 2016 and as per Article 137 (Part II) of the Limitation Act, 1963, the application preferred within three years from the date of right to apply accrues. This apart, it is also found that there is continuous cause of action as the appellant has claimed the interest since the default, it cannot be held to be barred by limitation.
Appeal dismissed.
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2018 (9) TMI 1997
Mismatch of TDS credit claimed and 26AS (TDS data base of the Department) - HELD THAT:- From a perusal of the P&L Account, we note that the assessee has shown the commission received from Aircel which is the same figure as reflected in the letter dated 08.02.2012, which is stated in the letter written by Aircel pursuant to the notice of AO.
CIT(A) has referred to the letter dated 28.12.2010 from M/s. DWL (Aircel) wherein it has confirmed the payment which also tallies with the figure as referred to in letter dated 08.02.2012 which has been reproduced above. Commission attributable to the assessee as his income is only ₹ 3,17,699/- and , therefore, assessee cannot be saddled with the addition of amount which has not been disbursed to the assessee by Aircel. Allow the appeal of the assessee.
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