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Case Laws
Showing 161 to 180 of 1967 Records
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2014 (1) TMI 1809
Petition for winding up to relinquish all the securities - Proceedings under the SARFAESI Act - whether respondent- banks can maintain a winding up petition without giving up security and/or can stand outside winding up in respect of secured assets and still maintain the petition for winding up for remaining debts? - Held that:- When the company petition was filed, the respondents -banks did not relinquish the security namely,. Kingfisher House. It was not binding on the respondents -banks while filing a petition for winding up to relinquish all the securities. The requirements of law is that if a secured creditor who seeks to prove "whole of his debt" in the course of proceedings of winding up, must before he could prove the debt relinquish his security for the benefit of the general body of creditors. In other words, if the secured creditor relinquish the entire security for the benefit of general body of creditors, he would have to prove whole of his debt. As against this, if the secured creditor has realised his security, he may prove for the balance due after deducting the net amount that has been realized. Thus, stage for relinquishing of security arise only when the secured creditor seeks whole of his debt in the course of winding up.
The proceedings initiated by the respondent -banks under SARFAESI are not alternate to the winding up petition. In the present case the respondents - banks did not surrender or relinquish their right in the Kingfisher House in respect of which, even before filing of company petition, they had initiated proceedings under the SARFAESI Act. That apart, the proceedings under Section 14 of the SARFAESI Act, in any case, need not be stayed or directions need not be issued not to proceed with the same, since till this date no order of winding up has been passed against the company at the instance of respondent -banks or at the instance of any other petitioner. In our opinion, the learned Judge has considered the questions raised in proper perspective and we do not find any reasonto interfere with the same. In the result, the appeal fails and dismissed as such.
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2014 (1) TMI 1808
Jurisdiction of Tribunal in Petition for refund - wrongly charged on account of wharfage and demurrage - shortage of goods received as against the goods consigned through the Railways duly received - Held that:- Jurisdiction of the Tribunal is inter alia limited to claims for refund of fares or refundable freight. Section 2(o) of the 1987 Act provides that words and expressions used and not defined in the Act of 1987 but defined in the Railways Act 1989 or the rules made thereunder shall have the meanings respectively assigned to them in that Act or the said rules.
A bare look at Section 13 (1) (b) of the 1987 Act indicates that claim before the Tribunal have to relate inter alia to the refund of the freight or fares. The Tribunal has not been conferred jurisdiction to entertain claims for refund of the wharfage or demurrage. It is worthwhile noting that charge towards freight is a contractual charge for the carriage of goods while both demurrage and wharfage are in the nature of penalty/ demage to the railways for breach of the consignee's obligation to clear the van carrying the goods and thereafter railway sidings within permissible free time. As stated earlier freight thus cannot be equated with wharfage and demurrage.
In considered opinion, in the state of conclusions drawn on the interpretation of Section 13 (1) (b) of the 1987 Act, the learned Tribunal cannot be said to have erred or otherwise wrongfully refused to exercise its jurisdiction on the claim petition filed by the claimant-appellant.
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2014 (1) TMI 1807
Validity of assessment in the name of a company which had been amalgamated - HC [2011 (8) TMI 544 - DELHI HIGH COURT] held that Section 292B are not applicable in such a case. The framing of assessment against a non-existing entity/person goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against a "dead person - Held that:- Delay condoned. Leave granted.
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2014 (1) TMI 1806
Reopening of assessment - assessment u/s 153C - Held that:- It is evident from the reasons recorded for reopening the assessment under S.147 that it is the information received from the Central Range-1, Hyderabad upon search operations carried on in the premises of M/s. Janapriya Engineers Syndicate P. Ltd., which formed the basis for initiation of the proceedings under S.147 of the Act. It is settled position of law that in all matters, emanating from search action that proceedings have to be initiated under S.153C of the Act, and not under S.147 of the Act.
Considering this statutory bar in the form of a non-obstante clause contained in S.153C of the Act, the proceedings initiated under S.147 in the present case, based on the information that came to light as a result in the course of search on the premises of Janapriya Engineers Syndicate and made available to the Assessing Officer by the Central Circle, has no legal sanctity, as the same is against the spirit of provisions of S.153C of the Act. - Decided in favour of assessee.
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2014 (1) TMI 1805
Disallowance of amortization of premium on investment - Held that:- As in the case of United Commercial Bank Vs. CIT (1999 (9) TMI 4 - SUPREME Court) the issue of valuation of stock-in-trade of securities held by the Bank was referred to the Hon'ble Supreme Court and it is held that it is open to the assessee to value it at the cost or market value whichever is lower and method of accounting adopted by the tax payer consistently and regularly cannot be discarded by the Department authority. The Law is well settled that all the securities held by the Bank are part of the stock-in-trade irrespective of the fact how the classification is made. Thus following the decision in the case of Bank of Rajasthan Ltd. (2010 (12) TMI 894 - ITAT, Mumbai ) and the Latur Urban Co-op. Bank Limited (2015 (3) TMI 920 - ITAT PUNE ) wherein held all the securities held by the Bank form part of the stock-in- trade respective of the classification made as per the RBI guidelines. We, allow the appeal filed by the assessee and delete the addition made by the Assessing Officer. Assessee’s appeal is allowed.
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2014 (1) TMI 1804
CENVAT credit - scope of SCN - Held that: - Since the SCN did not consider or did not state that the services were received by an unit providing exempted service or manufacturing exempted goods; or the credit was in excess of the service tax amount paid, the credit could not have been denied on any other ground - appeal allowed - decided in favor of appellant.
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2014 (1) TMI 1803
Revision u/s 263 - non application of mind by the Assessing Officer - Held that:- In the present case, on a perusal of the original assessment order, it is seen that the Assessing Officer has accepted the return of income as shown by the assessee. It has not been brought on record before us by the assessee, as to what were the nature of queries raised by the Assessing Officer with regard to the various expenses debited in the Profit & Loss account specifically on the issues which has been raised by the learned Commissioner. If there is application of mind by the Assessing Officer after calling for the details and examining of record, then it can be held that the Assessing Officer has framed the assessment properly and in accordance with the law.
In the present case, it has not been demonstrated before us that the Assessing Officer has raised queries on the issues raised by the learned Commissioner and called for the details for examining the relevant entries made in the books of account with reference to the evidence placed on record or otherwise there is no error in the issues raised in the show cause notice issued under section 263. Once that is so, the Commissioner (Appeals) is justified in canceling the assessment order under his revisionary jurisdiction under section 263.
The facts and the reasoning given by the Commissioner for canceling the original assessment order inasmuch is erroneous inasmuch it is prejudicial to the interests of the Revenue appears to be justified. We do not find any merits in the contention raised by the learned Counsel that the impugned order passed by the learned Commissioner is merely for carrying out roving and fishing enquiry, as the Commissioner has clearly pointed out the various discrepancies in the submissions made by the assessee before him in Para-4 and 5. Accordingly, we affirm the impugned order and the grounds raised by the assessee are treated as dismissed.
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2014 (1) TMI 1802
First sale of wheat and wheat products - sale of flour - exemption of levy of tax payable under the Act on the sale or purchase of wheat and wheat products by the roller flour mills within the State - The High Court by the impugned judgment and order has liberally interpreted the first notification and modified the language employed therein so as to achieve the intention behind the issuance of the said notification and held that the exemption stipulated under the first notification is not applicable and available to the assessee and thus, rejected the appeals.
Held that: - The language of the notification is crystal clear. That means, there is no ambiguity in the language employed in the notification by the authority issuing the notification. A plain reading of the notification would demonstrate that the Governor of Andhra Pradesh, in exercise of his powers under sub-section (1) of Section 9 of the Act, has exempted levy of tax payable under the Act on the sale or purchase of wheat and wheat products by the roller flour mills within the State for a period of five years from the date of the notification, namely, 02.05.1991 - This Court has reiterated in numerous decisions that if the language of the notification or an executive order is clear and unambiguous, the Courts need not presume anything on the issuance of such notification or order need or delve into the intention behind issuance of such notification or order.
Appeal allowed - decided in favor of appellant.
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2014 (1) TMI 1801
TPA - ALP determination - selection of TNMM as the most appropriate method as against CPM adopted by the assessee - Held that:- Therefore considering the fact that the assessee itself in the TP study has offered TNMM as an alternative method for computing the ALP, it should not have any grievance if the TPO adopts TNMM as the most appropriate method for determining the ALP. The decisions relied upon by the assessee in this regard will not apply to the facts of the present case as the assessee itself in the TP study has offered TNMM as an alternative method. We are therefore not inclined to entertain the grounds raised by the assessee on this issue.
Selection/rejection of certain comparables - Held that:- The assessee is engaged in contract programming which otherwise is known as ‘body shopping’, thus companies functionally dissimilar with that of assessee need to be dropped from final list of comparable.
Whether there is no requirement for transfer pricing adjustment as the assessee is claiming exemption u/s 10B - Held that:- As decided in DCIT V/s. Hellosoft India Pvt. Ltd. [2013 (10) TMI 747 - ITAT HYDERABAD] Arms length price is nothing but a fair price which would have been normal price. There is always a possibility of transaction between a nonresident and its associates being under valued and having regard to such tendency, a provision that income arising out of the said transaction could be computed having regard to arms length price, will not be opened to question and is within the legislative competence to effectuate the charge of taxing real income in India.
Once the benefit is exhausted, the assessee would be liable for taxation in which case, the German tax rate may be more attractive. If the pricing for the exempted years is accepted without analysis there is every chance that the assessing authority might be estopped, on the doctrine of consistency, from examining the pricing for the subsequent non-exempted years. This is quite uncalled for. See M/s SAP Labs India Pvt. Limited V/s. ACIT [2010 (8) TMI 676 - ITAT, BANGALORE] - Decided against assessee.
Calculation of ALP on the total turnover which includes non AE turnover - Held that:- Transfer pricing provision apply to the determination of ALP in respect of controlled transactions between related parties. Therefore, un-controlled transactions with third parties who have no relationship with the assessee cannot be considered for transfer pricing adjustment. We therefore direct the Assessing Officer /TPO to verify this aspect and exclude the turnover relating to non AE for determining ALP.
Exclusion of VISA processing charges and relocation charges from export turnover without deducting the same from the total turnover while computing deduction u/s 10B - Held that:- We direct the Assessing Officer to exclude VISA charges and relocation charges from the export turnover as well as total turnover while computing deduction u/s 10B of the Act.
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2014 (1) TMI 1800
Assessment u/s 153A - Held that:- The premises authorized in the warrant for search u/s 132 includes Mr. Jaswinder Singh Bajaj; Mr. Swaranjit Sijit Singh Bajaj and Punjab Sindh Dairy Products Pvt Ltd (the assessee here). Therefore, it is not correct to sate that Warrant of Authorization is not fault and faultily executed. It is an admitted position that mere failure of the Department to get the signature of the Directors on the warrant does not vitiate proceedings and make the search invalid and therefore, additions made in the assessment. Warrant is properly executed too. Considering the fact the warrant is properly authorized and the activities are done in accordance with the process of law, we find no mistake in the findings of the CIT (A)
Invoking provisions of 145(3) - Held that:- Admittedly, this is the case where the books pertaining to the production, issuance, consumption are not maintained by the assessee. Therefore, the finding of the CIT (A) on this issue is fair and does not call for any interference.
Addition on sale of milk - G.P. addition - Held that:- No sale of milk as evidenced by way of filing bills. The AO / CIT (A) have categorically stated that the assessee failed to submit the details in support of the sale of milk to the tune of 12,15,244/-. Thus, the said assessee‟s failure clubbed with the statements of the employees given on oath became relevant. The arguments relating to the retraction of the said statements by the employees are not sustainable considering the fact that the retraction was done in undated letters without giving sustainable reasons for such retraction. Therefore, in principle, the allegation of the Revenue on utilization of milk for making of the milk products by the assessee is sustainable. Accordingly, the sustenance of addition by the CIT (A) does not call for any interference. The allegation that the additions are made without any help of incriminating material is not sustainable considering the fact that there are multiple statements of the employees together with circumstantial evidences of no supporting registers showing the consumption details of milk constitutes incriminating information pertaining to the business affairs of the assessee in general and milk and dairy products in particular.
Deduction u/s 80G denied - Held that:- Onus is on the assessee to submit the details and evidence before the AO before claiming any deduction. The appellant has failed to submit the receipt before the AO, therefore, the AO has rightly disallowed the claim
Assessee appeal dismissed.
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2014 (1) TMI 1799
Non deduction of TDS - disallowance - applicability of second proviso to section 40(a)(ia) of I.T. Act - whether the Ld. CIT(A) was justified in deleting the disallowance u/s.40(a)(ia) by holding that TDS disallowance applies only to amounts ‘payable’ as on 31st March and not to amounts already paid during the year? - Held that: - this issue is covered by the order of ITAT, Cochin Bench in the case of Shri Antony D. Mundackal Vs. ACIT [2013 (12) TMI 67 - ITAT COCHIN], where it was held that sec. 40(a)(ia) of the Act, inserted by the Finance Act, 2012 with effect from 1.4,2013 is clarificatory in nature and hence the benefit of the same should be applied retrospectively - appeal restored on preliminary issue for fresh adjudication.
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2014 (1) TMI 1798
Taxability of flavoured milk - classification of the product - After arguing the matter for quite some time appellant seeks permission of this Court to withdraw the appeal, with liberty to file an appropriate Review Petition before the High Court - Held that: - Permission sought for is granted and the Civil Appeal is disposed off.
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2014 (1) TMI 1797
Addition invoking section 40(a)(ia) - plea of the assessee is that the TDS has been deposited with the state-exchequer much before the due date of filing of return of income - retrospectivity - CIT(A) deleted addition - Held that:- The point canvassed by the assessee and which has also been accepted by the CIT(A), is in line with the judgment in the case of Virgin Creations (2011 (11) TMI 348 - CALCUTTA HIGH COURT ) wherein an identical controversy has been considered. As per the Hon’ble High Court, amendment made to section 40(a)(ia) of the Act by the Finance Act, 2010 is retrospective in operation and considered in the said light, in the present case assessee has deposited the TDS on or before the due date of filing of return of income prescribed u/s 139(1) of the Act and therefore, the Assessing Officer was not justified in disallowing the corresponding expenditure u/s 40(a)(ia) of the Act. In this manner, we deem it fit and proper to affirm the order of the CIT(A) - Decided against revenue.
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2014 (1) TMI 1796
CENVAT credit - welding electrodes used for fabrication and repair and maintenance of the machinery, various iron and steel items like shapes and MS flats, HR flats, SS flats and asbestos sheets - Held that: - welding electrodes used for repair and maintenance are admissible Cenvatable goods - reliance placed in the case of M/s. Nangganj Sihori Sugar Co. Ltd. Versus Commissioner of Central Excise, Lucknow [2011 (7) TMI 623 - CESTAT, DELHI], where it was held that Cenvat credit can be availed on welding electrodes which are used for maintenance of plant and machinery.
As regards asbestos jointing sheets, the Tribunal in the case of Birla Corporation Ltd. [2011 (7) TMI 993 - CESTAT, NEW DELHI] has held that said sheets to be admissible cenvatable inputs.
The matter needs to be remanded for verification of the use of various iron and steel articles - appeal allowed by way of remand.
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2014 (1) TMI 1795
Works contract - composition scheme - benefit denied on the ground that TDS certificates were defective and were not in prescribed form - Held that: - it cannot be denied the benefit of proper assessment on the basis of new proper TDS certificates issued - The petitioner was denied the benefit of TDS certificates on a technical ground that they were defective. Therefore, after the issuance of proper TDS certificates, the petitioner is definitely entitled for their consideration - petition allowed - decided in favor of petitioner.
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2014 (1) TMI 1794
Waiver of pre-deposit and penalty - Held that: - the Ld. Commissioner has considered all aspects of the Notice and confirmed the demand on the value of taxable services received by the Applicant. Prima facie, on going through the grounds raised by the applicant in their stay petition as well as in the appeal and the impugned order we do not find any apparent error in the order of the Ld. Adjudicating authority. In the result, we direct the applicant to deposit the outstanding Service Tax amount of ₹ 23,12,868/- within a period of Eight weeks. On deposit of the said amount, the balance dues adjudged would stand waived and its recovery stayed during the pendency of the appeal - application allowed in part.
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2014 (1) TMI 1793
Application for maintenance under Section 125 of the Code of Criminal Procedure - Legitimacy of child - Held that:- As directed, the Central Forensic Science Laboratory, Hyderabad submitted its report and on that basis opined that the appellant, "Nandlal Wasudeo Badwaik can be excluded from being the biological father of Miss Neha Nandlal Badwaik", respondent No. 2 herein. As stated the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl- child.
Appellant [husband] submits that this Court twice ordered for DNA test and, hence, the question as to whether this was a fit case in which DNA profiling should or should not have been ordered is academic. We find substance in the submission of Ms. Desai. Fact of the matter is that this Court not only once, but twice gave directions for DNA test. The respondents, in fact, had not opposed the prayer of DNA test when such a prayer was being considered. It is only after the reports of the DNA test had been received, which was adverse to the respondents, that they are challenging it on the ground that such a test ought not to have been directed. We cannot go into the validity of the orders passed by a coordinate Bench of this Court at this stage. It has attained finality. Hence, we do not find any merit in the submission of the learned counsel for the respondents.
The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.
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2014 (1) TMI 1792
Refund claim - CENVAT credit - benefit of N/N. 6/2002-CE dt. 1.3.2002 - contention of the appellant is that as the credit has been rightly availed and rightly utilized on payment of duty. Therefore, the reversal of credit availed on inputs is not to be reversed at the time of availing exemption notification, therefore filed refund claim - appeal was rejected on the ground that the appellants required to reverse the credit of duty paid on inputs contained in the finished products lying in stock on the date appellant opted for exemption notification - Held that: - The Honble Punjab and Haryana High Court in the case of CCE Vs. HMT (TD) Ltd. [2010 (4) TMI 1036 - PUNJAB AND HARYANA HIGH COURT] held in favor of the manufacturer - the matter requires reconsideration by the adjudicating authority afresh - appeal allowed by way of remand.
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2014 (1) TMI 1791
Reopening of assessment - Held that:- AO Srinagar had issued notice under s. 148 on 23rd Jan., 2008 without obtaining the approval from the Addl. CIT, which approval, in fact, was taken vide letter No. 1147 dt. 30th March, 2009 which is evident from p. 1 of AO's order as reproduced hereinabove. As per s. 151(2), no notice under s. 148(1) can be issued by an AO, who is below the rank of Jt. CIT, after the expiry of four years from the end of the relevant assessment year, unless the Jt. CIT is satisfied, on the reasons recorded by such AO, that it is a fit case for the issue of such notice. In the present case, such satisfaction of Jt. CIT/Addl. GIT was taken only on 30th March, 2009 whereas notice under s. 148 was issued on 23rd Jan., 2008 which is prior to the said satisfaction or approval of Jt./Addl. CIT. Therefore, on this account, the notice issued under s. 148 is bad in law and is liable to be quashed. Therefore, the reassessment proceedings initiated are directed to be quashed. Accordingly ground of the assessee is allowed.
Jurisdiction of the case lies at New Delhi and not at Srinagar and accordingly present assessment cannot be made by the AO, Srinagar and the same is therefore, held to be invalid.
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2014 (1) TMI 1790
CENVAT credit - freight charges - outward transportation - whether during the period January 2005 to September 2006 the Cenvat credit of Service Tax on the freight charges of outward transportation from the place of removal is admissible to the respondent or not? - Held that: - The period involved in the present appeal is prior to 1-4-2008 when definition of ‘Input Service’ u/r 2(i) of the CCR, 2004 was amended in the present form - the outward transport service used by the manufacturers for transportation of finished goods from the place of removal up to the premises of the purchaser is covered within the definition of “input service” provided in Rule 2(l) of the CCR, 2004 - appeal dismissed - decided against Revenue.
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