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Showing 161 to 180 of 1404 Records
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2016 (10) TMI 1244
Penalty u/s 271AAA - assessee has filed a letter dated 10. 09. 1013 requesting for time to make payment of taxes and time was granted till 30.09.2013 but the assessee did not pay taxes - assessee has not complied with the specific requirements of sub section (2) of section 271AAA about payment of taxes and interest - payment of tax and interest on raising the demand u/s 156 - Held that:- The assessee made payment of tax and interest in full on getting the demand notice in that case u/s 156 and under these facts, the tribunal held that since no time limit is prescribed for payment of tax and interest, the payment of tax and interest on raising the demand u/s 156 is good compliance of this payment requirement and the A. O. cannot insist that such payment should have been made before filing of return but in the present case, payment of tax and interest has not been made till now because no such evidence of payment has been brought on record before us or before lower authorities.
Hence this tribunal order in PIONEER MARBLES & INTERIORS PVT LTD [2012 (2) TMI 261 - ITAT, KOLKATA] is not applicable. Moreover, since the assessee has not complied with the specific requirements of sub section (2) of section 271AAA about payment of taxes and interest and therefore, the assessee is not eligible for the benefit of this sub section (2) of section 271AAA. - Appeal of the assessee is dismissed.
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2016 (10) TMI 1243
Addition on undervaluation of closing stock - raw material was valued at lower of cost or market price and finished goods was valued at lower of estimated cost or market price - whether assessee deliberately undervaluing stock by following LIFO method of valuation of gold stock and proposed FIFO method of valuation of stock of gold to be appropriate for valuation of gold stock? - Held that:- We find that the observation of the Coordinate Bench that the AO did not give any justifiable reason for rejection of LIFO method which has been followed consistently by the Assessee and which method the Revenue has been accepting for earlier years.
Decision of Cochin Tribunal in the case of jeweler in ITO vs Sree Padmanabha Jewellery Mart [1986 (8) TMI 120 - ITAT COCHIN] as relied by the Assessee wherein it approved the LIFO method. The Coordinate bench also discussed the decision of DCIT vs Vipin Aggarwal [2010 (7) TMI 1069 - ITAT CHANDIGARH] which found no merit in not adopting the method of valuation of stock being consistently followed by the assessee which is being accepted from year to year in the absence of any contrary findings by the Assessing Officer. We hold that no addition is maintainable made on account of value of closing stock and the order of the CIT-A is justified and the grounds raised are dismissed. - Decided in favour of assessee.
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2016 (10) TMI 1242
Entitlement to deduction of interest on loans when assessee has extended interest free loans to directors & sister concerns- Held that:- Not only has assessee own funds, well covering the loans and advances, but in the previous year the advances had gone down. In none of the earlier assessment year viz. by 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 were any disallowance for interest on loans for non-business purpose made. Cases of COMMISSIONER OF INCOME-TAX VERSUS RAGHUVIR SYNTHETICS LTD. [2013 (7) TMI 806 - GUJARAT HIGH COURT] and THE COMMISSIONER OF INCOME TAX VERSUS RELIANCE UTILITIES & POWER LTD. [2009 (1) TMI 4 - BOMBAY HIGH COURT] to be followed. - Decided against revenue
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2016 (10) TMI 1241
Reopening of assessment u/s 147 - assessment passed in the name of dead person - addition on account of enhanced compensation and assessing the same as capital gain and also not granting the exemption under section 10(37) - Held that:- Notice under section 148 dated 25.03.2013 issued is invalid and have not been served upon deceased assessee or the legal heirs which is essential to make re-assessment order. No valid re-assessment order have been passed being it is passed in the name of dead person. In this view of the matter, we set aside and quash notice under section 148 of the Act as well as the re-assessment order under section 143(3)/147 dated 28.02.2014. The ld. CIT(Appeals) was, therefore, not justified in upholding the re-opening of the assessment in the matter. Resultantly, we quash the impugned order as well. - decided in favour of assessee.
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2016 (10) TMI 1240
CENVAT Credit - denial of credit on the ground that the process not amounting to manufacture - activity of processing aluminium sheets in coils by reducing the thickness of the same - Held that:- Merely the fact that the raw material and the resultant product fall under the same sub heading of the Tariff cannot be a deciding test of manufacture, as a sub heading may cover many products - there is mo reason to hold that the activity of reducing the thickness of aluminium sheets by cold rolling which involves process of tempering and annealing does not amount to manufacture - credit allowed - appeal dismissed - decided against Revenue.
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2016 (10) TMI 1239
Payment of royalty - revenue or capital expenditure - Held that:- We find that the Revenue has accepted the royalty as revenue expenditure in the preceding as well as subsequent years. Thus, there would be no justification for treating the same to be capital expenditure in some of the intervening years
Case of Radhasoami Satsang Vs. CIT [1991 (11) TMI 2 - SUPREME COURT] would be squarely applicable to the facts of the assessee’s case because the payment of royalty in the case of the assessee is also on year to year basis on the net sales of the assessee and at no point of time, the assessee is entitled to become the exclusive owner of know-how and the trademark. - Decided against revenue
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2016 (10) TMI 1238
Deduction u/s. 10A - disallowance made under the provisions of section 40(a)(ia) and 43B - Held that:- We find the Tribunal following the order of the Tribunal in assessee’s own case for A.Y. 2007-08 has decided the issue and directed the AO to allow deduction u/s.10A to the assessee on account of disallowance made under the provisions of section 40(a)(ia) and 43B.
Addition u/s.92CA - Comparable selection - functinal dis-similarity - Held that:- Assessee is engaged in providing Software Development Services and Sales Support Services to Deere and Co., USA, thus companies functionally dissimilar with that of assessee and on account of different operating models/different business spheres and distinct mode of operation need to be deselected from list.
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2016 (10) TMI 1237
Re–opening of the assessment u/s 147 - addition u/s 14A - mere change of opinion - reopening on the basis of audited account of the assessee which were not only available at the time of original assessment - Held that:- This issue having already merged with the order of the Commissioner (Appeals) cannot be a subject matter of re–opening. Further, it is evident from the reasons recorded that the re–opening of assessment is on the basis of audited account of the assessee which were not only available at the time of original assessment but the Assessing Officer in the course of original assessment proceedings, had examined the accounts of the assessee and the nature of receipts and expenditure also.
Therefore, the issue having already been examined at the time of original assessment and there being no fresh material before the Assessing Officer the re–opening of assessment on re–appreciation / reappraisal of the very same material considered at the time of original assessment amounts to re–opening on a mere change of opinion, hence, invalid. Further, from the office note available in the assessment order it appears that the assessment was re–opened only due to the revenue audit objection. Therefore, there is also lack of application of mind by the Assessing Officer while recording reasons for re–opening of assessment and on this count also, the re–assessment is invalid. Thus, no reason to interfere with the order of the learned Commissioner (Appeals) on the issue. - decided against revenue
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2016 (10) TMI 1236
Time limit for initiating the proceedings - Default u/s 206C(6) read with section 206C(7) - tax at source as per provisions of section 206C(1) was not collected and Form No. 27C was not filed within the stipulated time - period of limitation - Held that:- CIT (A) has not considered the case laws and has merely rejected the ground by observing that the provisions contained in section 206C of the Act do not prescribe any time limit for initiating the proceedings or for passing the order thereunder. The above finding of CIT (A) is contrary to the case laws as relied by the assessee.
In the present case the order has been passed beyond 6 years from the date of assessment is under challenge. Therefore, respectfully following the decision of the Coordinate Bench rendered in the case of State Bank of India vs. ITO [2013 (4) TMI 858 - ITAT LUCKNOW] wherein considered the conflicting view and applied the judgment in the case of CIT vs. Vegetable Products [1973 (1) TMI 1 - SUPREME COURT] we hereby quash the order declaring assessee in default on the ground that action taken by AO suffers from delay and latches and the Revenue has not explained the cause of such delay. - Decided in favour of assessee.
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2016 (10) TMI 1235
CENVAT Credit - input services - rent-a-cab, which is used for bringing the employees from the residence to the factory - insurance paid on plant, machinery and equipments - insurance paid on the goods exported - Held that:- Tribunal vide its decision in the case of Oudh Sugar Mills Ltd. Vs. CCE, Lucknow [2012 (12) TMI 265 - CESTAT, NEW DELHI] has held that insurance paid on plant, machinery and equipment has to be held as input service.
Honble High Court of Karnataka in the case of COMMISSIONER OF CENTRAL EXCISE, BANGALORE-III, COMMISSIONERATE VERSUS STANZEN TOYOTETSU INDIA (P.) LTD. [2011 (4) TMI 201 - KARNATAKA HIGH COURT] has held that service tax paid on all services utilised directly or indirectly in or in relation to final product is eligible for Cenvat credit.
Appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1234
Classification of services - conversion of aluminium ingots to various aluminium articles in the factory premises of M/s. Jayashree Die Casting Pvt. Ltd. with his own manpower - whether classified as supply of manpower or otherwise? - Held that:- On perusal of the purchase order placed by M/s. Jayashree Die Casting Pvt. Ltd. it is not found that the said purchase orders specifically indicate the items which needs to be manufactured and delivered by appellant and the rates for per piece of such items are also indicated - appellant had not rendered the services of "Manpower Recruitment or Supply Agency services" - demand set aside - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1233
Ownership and possession of portion of land (which is a part of entire area classified as Government Burial Poramboke) situated in Kurnool (AP) - eviction of the respondents from the suit-land - Whether the second appeal filed by the respondents involved any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure Code, 1908?
Whether the High Court was justified in admitting the respondents’ second appeal on the questions framed and if so whether the questions framed can be regarded as substantial questions of law arising out of the case?
Whether the High Court was justified in remanding the case to the trial court for de novo trial in all the five civil suits?
Whether the respondents were able to prove their title over the suit-land so also whether the appellants were able to prove the existence of relationship of landlord and tenant between the appellants and the respondents.
Held that:- The High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 CPC.
In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants’ suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.
The questions raised by High Court cannot be regarded as satisfying the test of being a "substantial questions of law" within the meaning of Section 100 of CPC. These questions, in our view, are essentially questions of fact. In any event, the second appeal did not involve any substantial questions of law as contemplated under Section 100 of CPC and lastly no case was made out by the respondents before the High Court for remanding of the case to the trial court for de novo trial in all the civil suits.
We also find that no party to the appeals complained at any stage of the proceedings that the trial in the suits was unsatisfactory which caused prejudice to them requiring remand of the cases to the trial court to enable them to lead additional evidence. In any event, we find that the High Court also did not frame any substantial question of law on the question as to whether any case for remand of the case to the trial court has been made out and if so on what grounds?
The High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to that effect.
It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand - it is not proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.
The only question which, therefore, arose for consideration before the courts below was whether the respondents were able to establish their adverse possession over the suit-land as against the State so as to entitle them to claim title in their favour over the suit-land - The respondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs.
The alleged gift whether executed between the two members of respondents’ family or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 of CPC.
The reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside - appeal allowed.
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2016 (10) TMI 1232
TDS u/s 194G - non deduction of tds on commission paid to the sub agents - Held that:- The provisions contained in section 194G of the Act provides for deduction of TDS by any person who is responsible for paying to any person, who is stocking, distributing, purchasing or selling lottery tickets, any income by way of commission, remuneration or prize on such tickets, at the time of credit of such income to the account of the payee. Thus the requirement of deduction of tax will only arise when there is a payment of income by way of commission, remuneration or prize on lottery tickets
In the present case, the assessee is not giving any commission to the sub agents as there is a sale being effected between the assessee and the sub agents and the assessee after transferring the lottery tickets to the sub agents has no control over the same. Moreover, it is not a case where the assessee is giving any remuneration or prize to the sub agents, in as much as the value of prize winning lottery tickets is claimed from the government agency supplying the lottery tickets to the assessee. The government agency after deduction of TDS credits the value to the account of the assessee who, thereafter, passes on the same to the sub agents. In the facts of the present case we find that the application of section 194G/194H of the Act was not warranted. - Decided in favour of assessee.
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2016 (10) TMI 1231
Gains from sale of land - Gain being taxed under the head "Income from business" and also treating one such sale as not of an agricultural land - Held that:- Nature of use of adjacent land was not relevant in deciding the nature of land sold by an assessee. Their lordship had also held that a presumption could never be taken regarding the purpose for which the buyer purchased the land. Lordship also observed that nature of classification of land by the Revenue authorities in the revenue record was of prime importance in determining the nature of land sold by the assessee.
Considering the facts and circumstances of the case and also applying the law laid down by Hon’ble Jurisdictional High Court in the case of Sakunthala Vedachalam vs. Vanitha Manickavasagam (2014 (9) TMI 3 - MADRAS HIGH COURT), we are of the opinion that lower authorities fell in error in considering the land measuring 4.34 acres at Othakalmandapam sold by the assessee to M/s. Hindustan Educational and Charitable Trust as non agricultural in nature and exigible to capital gains. The said land could not be considered as capital asset by virtue of Sec. 2(14)(iii) of the Act. Assessee was justified in claiming that surplus arising out of sale of land as not exigible to capital gains tax. - Decided in favour of assessee.
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2016 (10) TMI 1230
Liability of VAT - transaction of sale - section 55 of MVAT ACT, 2002.
Whether the sale of imported goods by the Applicant to the license holders from a customs bonded warehouse (hereinafter referred to as warehouse)is a sale, liable to be taxed under the provisions of the Act?
Whether ex-bond sales of imported goods effected to duty free shops is a 'sale in the course of imports' and hence exempt from the levy of tax under Act? Presently, dealer is not effecting this type of transactions?
Whether the Applicant is liable to discharge tax in respect of the above mentioned sales transactions?
Held that:- The sale from warehouse to duty free shop is neither export nor sale in the course of import. Hence, such sale is taxable in the state of Maharashtra at the schedule rate prescribed under MVAT ACT, 2002. The sale to duty free shop cannot be treated as export. It does not have destination where it can be said to be imported, and so long as it does not satisfy this test laid by Hon apex court in the case of Burmah Shell Oil Storage and Distributing Co. [1960 (9) TMI 70 - SUPREME COURT OF INDIA], it cannot be said that the sale was in the course of export.
Ruling:- Sale of imported goods by the Applicant to the license holders from a customs bonded warehouse - Held that:- Sale liable to tax as per relevant schedule entry under MVAT Act.
Whether ex-bond sales of imported goods to duty free shops is a 'sale in the course of imports' and hence exempt from the levy of tax under MVAT Act? - Held that:- The exbond sale to duty free shop is neither sale in the course of import nor it is export. Hence, sale to duty Free shop is liable to tax as per schedule entry D-3 appended to MVAT ACT, 2002.
Whether the Applicant is liable to discharge tax in respect of the above mentioned sale transaction? - Held that:- The applicant is not holding any license under State Excise Act (Prohibition Act).Hence, liable to tax as per schedule entry D-3 appended to MVAT ACT, 2002.
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2016 (10) TMI 1229
Constitutional validity of Sub-section (3) of Section 5 of the Andhra Pradesh (Agricultural Produce and Livestock) Markets (Amendment) Act, 2015 - the term of the market committee was reduced from three years to one year by giving retrospective effect in the Amendment Act - Whether the State Legislature could have legislated for the period prior to coming into existence of the State? - Held that:- The scheme of the States Reorganization Acts makes the laws applicable to the new areas until superseded, amended or altered by the appropriate legislature in the new States. This is what the legislature has done and there is nothing that can be said against such amendment - after the legislature came into existence, it has the competence to enact any law retrospectively or prospectively within the constitutional parameters.
Whether the base of earlier judgment has been removed to erase the effect of the judgment? - Held that:- The legislature cannot, by way of an enactment, declare a decision of the court as erroneous or a nullity, but can amend the statute or the provision so as to make it applicable to the past. The legislature has the power to rectify, through an amendment, a defect in law noticed in the enactment and even highlighted in the decision of the court. This plenary power to bring the statute in conformity with the legislative intent and correct the flaw pointed out by the court, can have a curative and neutralizing effect. When such a correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. This does not amount to statutory overruling by the legislature. In this manner, the earlier decision of the court becomes non-existent and unenforceable for interpretation of the new legislation. No doubt, the new legislation can be tested and challenged on its own merits and on the question whether the legislature possesses the competence to legislate on the subject matter in question, but not on the ground of over-reach or colourable legislation.
A nominated member, in praesenti, can also be removed by adopting the procedure during the period. Otherwise, he shall continue till his term is over; and the term is one year. The plea of vested right is like building a castle in Spain. It has no legs to stand upon and, therefore, we unhesitatingly repel the said submission.
Different kinds of delineation with regard to market committee and the special market committees - Held that:- Their composition, function and purpose are different. They basically fall into different categories. It is difficult to weigh them in the scale of Article 14. The equality clause, in our considered view, is not affected. The characteristics of the committees being different, Article 14 is not attracted. Thus, the said submission is sans substratum.
Appeal dismissed.
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2016 (10) TMI 1228
JCIT exercise the powers and perform the function as conferred on or assigned to an Assessing Officer - Validity of the assessment order - Additional Commissioner of Income Tax authority of law to act as an Assessing Officer and to pass the impugned assessment order - Held that:- It is noted that Ld. CIT-DR as well as the Assessing Officer (present incumbent) who was personally present during the course of hearing before us, jointly stated that no such order (as prescribed under section 127(1) required to be passed by the jurisdictional Commissioner of Income tax) is available in the records. Thus, it is clear that there was no valid transfer of jurisdiction to the Additional Commissioner of Income Tax who had passed the impugned assessment order. Thus, impugned assessment order had been passed without assuming jurisdiction as per law.
Similar view has been expressed by Jodhpur Bench of ITA in the case City Garden Vs. ITO (2012 (6) TMI 109 - ITAT JODHPUR) wherein it has been held that in the absence of a specific order issued in pursuance to Section 120(4)(b) specifically authorizing Joint Commissioner of Income Tax to exercise the powers and perform the function as conferred on or assigned to an Assessing Officer by or under the Act or a notification under section 120 of the Act, he is not competent to act as an Assessing Officer and pass an assessment order.
It is clear that impugned assessment order has been passed without authority of law in as much as Revenue has not been able to demonstrate that the Additional Commissioner of Income tax who had passed the assessment order had valid authority to perform and exercise the powers and functions of an Assessing Officer of the assessee and to pass the impugned assessment order. Under these circumstances, we have no other option but to hold the same as nullity and, therefore, the impugned assessment order is quashed having been passed without authority of law. Quash the assessment order on jurisdictional ground.
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2016 (10) TMI 1227
Renting of immovable property Service - Time Limitation - Held that:- Tribunal in the cases of Sujala Pipes Pvt. Ltd. Vs. CCE [2014 (7) TMI 932 - CESTAT BANGALORE] has held that the longer period of limitation would not be available to the Revenue - Inasmuch as admittedly a part of demand falls within the limitation period, matter remanded to the original adjudicating authority for requantifying the demand within the limitation period - appeal allowed by way of remand.
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2016 (10) TMI 1226
The Gujarat High Court ordered the petitioner to deposit Rs. 3 crores and odd as per the impugned order, with the right to contest the order. The deposit is without prejudice to the petitioner's rights, and the impugned order is stayed until final disposal on 20th October 2016. The court noted discrepancies in the operation of a pouch packing machine, contrary to Section 32F (5) of the Central Excise Act, 1944.
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2016 (10) TMI 1225
Levy of tax - sale by way of export - Section 3(4) of the TNGST Act 1959 - Held that:- In cases where the manufactured goods are sold by way of export, no such transfer of goods can be construed to have taken place outside the State to attract the requirement of payment of additional tax at 1% as provided for in Sub-Section 4 of Section 3 of the Act - In Tube Investments of India Ltd., vs. State of Tamil Nadu reported in (2010) 36 VST 67 (Mad), a Division Bench of this Court has held that Section 3(4) of the Act will have no application to export sales.
The sales effected by the petitioner by way of export sub-section (4) of Section 3 of the Act would not get attracted - tax case revision allowed.
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