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Showing 161 to 180 of 1752 Records

• 2016 (11) TMI 1596 - ITAT CHENNAI
  

  Disallowance u/s 10A - splitting up or reconstruction of the existing unit - Held that:- For the assessment year 2007-08 the CIT(A) has examined the Business Transfer Agreement and found that there was no case of splitting up or reconstruction of the existing unit and allowed the claim of the assessee u/s 10A of the Act. However, both the CIT(A) and the Assessing Officer have not considered the CBDT Circular No.1 of 2013 while deciding the issue. Therefore, we set aside the orders of the lower authorities for both the assessment years under consideration and remit the matter back to the Assessing Officer to examine the case in the light of CBDT Circular No.1 of 2013 and decide on merits after giving due opportunity to the assessee. - Appeals of the Revenue are allowed for statistical purposes.

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• 2016 (11) TMI 1595 - BOMBAY HIGH COURT
  

  Fresh claims on account of disallowance u/s 43B pertaining to payment on account of Royalty and interest thereon - Held that:- In case of the Commissioner of Income Tax Vs. Pruthvi Brokers and Shareholders Ltd [2012 (7) TMI 158 - BOMBAY HIGH COURT] has held that an assessee is entitled to raise an issue before the Appellate Authorities even if the same had not been claimed during the assessment proceedings. The above view of this Court was by following the decision of the Apex Court in National Thermal Power Corporation Ltd. Vs. Commissioner of Income Tax [1996 (12) TMI 7 - SUPREME COURT] and Jute Corporation of India Vs. Commissioner of Income Tax [1990 (9) TMI 6 - SUPREME COURT].

  Disallowance made in respect of payments made under Voluntary retirement Scheme of the company - Held that:- The decision of this Court in Godrej GE Applicances Ltd. [2008 (9) TMI 1002 - BOMBAY HIGH COURT] does conclude the issue against revenue and in favour of the respondent – assessee.

  Disallowance made for delayed payment of employees contribution to Provident Fund - Held that:- Issue arising herein stands concluded by the decisions of this Court in Commissioner of Income Tax Vs. Hindustan Organics Chemicals Ltd. (2014 (7) TMI 477 - BOMBAY HIGH COURT) and the Commissioner of Income Tax Vs. Ghatge Patil Transports Ltd. (2014 (10) TMI 402 - BOMBAY HIGH COURT) decided in favour of the respondent – assessee and against the revenue.

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• 2016 (11) TMI 1594 - ITAT INDORE
  

  Disallowance of interest u/s 14A r.w.r. 8D - Held that:- we find that the only disallowance of interest under section 14A read with rule 8D of the IT Rules, the assessee had share of Girdharilal Sugar & Allied Ind Ltd. costing ₹ 88 lacs and as per rule 8D the interest disallowance can be made 050% of average investment which comes to ₹ 44,006/-. Accordingly, we allow the appeals of the assessee for the assessment years 2007-08, 2008-09 and 2009-10 because the same investment of ₹ 88 lacs is coming out from the assessment year 2006-07, 2007-08, 2008-09 and 2009-10

  Disallowance u/s 40(a)(ia) - Non deduction of tds on printing and stationary expenses - amount already paid during the year or amount shown payable as on 31st March of every year - Held that:- After the amendment in section 40(a)(ia) of the Act with effect from 1.4.2015 it was held that disallowance u/s 40(a)(ia) of the Act should be restricted to 30% of the amount of interest paid - Respectfully following the judgment of this Bench in the case of ACIT, Circle-4, Jaipur vs. Shri Girdhari Lal Bargoti [2015 (11) TMI 746 - ITAT JAIPUR], the disallowance made by the A.O. u/s 40(a)(ia) of the Act as raised in the grounds of appeal is deleted. Thus, the solitary ground of the assessee is allowed. Restrict the disallowance u/s 40(a)(ia) of the Act to 30% which comes to ₹ 11,400/- in the assessment year 2008- 09 and ₹ 12,161/- in the assessment year 2009-10

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• 2016 (11) TMI 1593 - ITAT MUMBAI
  

  TDS u/s 195 - Disallowance of expenses on payment of training fees royalty - non-deduction of TDS - PE in India - Held that:- Tribunal order in assessee’s own case for the A.Y. 2008-09 [2015 (5) TMI 1169 - ITAT MUMBAI] wherein exactly identical issue is dealt with as regards to the payment of training fees, service fees and royalty payments for the subject matter as in the present case and Tribunal has deleted the disallowance holding that the assessee is engaged in sales and services of safety equipments installed on board marine vessels, that it would get business from the equipment manufacturers, that after completing the servicing of safety equipments it would issues a certificate to the vessels operating in International waters, that it would purchase blank certificates from equipment manufacturers, that it also undertook servicing of life boats and its lunching appliances, that to carry out the servicing of such equipments service personnel would be sent outside India for training, that the training fee included accommodation and conveyance, that both these payments were reimbursement of actual expenditure, that no TDS is required to be deducted for such payments

  As non-residents had no PE in India, that the assessee was not liable to deduct tax at source for these payments. - Decided in favour of assessee.

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• 2016 (11) TMI 1592 - ITAT CHENNAI
  

  Disallowance of pension paid to the retired partners - Expenditure allowable u/s 37(1) - addition made by both on diversion of income by overriding title as well as the revenue expenditure u/s 37(1) - Held that:- When the partnership deed specifies that the payment made to the retiring partner is with regard to the work done by them during the tenure as a partner and towards the settlement of their income for the work done and to allow the partnership firm to continue its business, the payment cannot be held as an application of income or gratuitous payment. We therefore hold that the payment is a diversion by overriding title and cannot be included in the total income.

  Allowance of expenditure u/s 37(1) - As the payment made to retiring partners is diversion of income by overriding title, the ground raised by the assessee became infructuous and hence dismissed.

  TDS credit suffered by the assessee in connection with the professional fees received from clients - Held that:- CIT(A) in her appellate order, has directed the Assessing Officer to verify the claim of the assessee vis-à-vis Form 26AS and give for the correct amount of T.D.S. Giving correct amount of payment of taxes is the duty of the assessing officer. The assessee should not be made to suffer for getting the refund of taxes paid. We direct the assessing officer to allow the correct amount of TDS without any further delay. This ground is allowed for statistical purposes.

  Levy of interest u/s 234D - Held that:- AO is directed to examine the applicability of interest u/s 234D and levy correct amount of interest.

  Accrual of income - Addition towards advance fee - assessee contended that the amount of advances were received from clients for the services not yet rendered, therefore, the income is not accrued and accordingly, the advance cannot partake the character of income - Held that:- We agree with the submission of the assessee that the advance cannot be treated as income in the hands of the assessee unless the services are rendered by the assessee. The Assessing Officer has not made out a case that advances received in question were towards the services rendered by the assessee. The ld. DR also could not bring any evidence to controvert the submissions made by the assessee. Revenue’s appeal is dismissed.

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• 2016 (11) TMI 1591 - CESTAT AHMEDABAD
  

  Utilization of Cenvat credit availed on Basic Excise Duty for payment of Education Cess and Higher Education Cess - Held that:- The issue involved is covered by the judgment of Hon'ble Gujarat High Court in Madura Industries Textiles case [2013 (1) TMI 352 - GUJARAT HIGH COURT], where reliance placed in the case of CCE Vapi Vs. M/s Balaji Industries [2008 (7) TMI 215 - CESTAT AHEMDABAD], where it was held that the benefit of utilization of credit of basic excise duty for payment of education cess is to be allowed - appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1590 - CHHATTISGARH HIGH COURT
  

  CENVAT credit - Tribunal followed the judgment of Sharad SSK v. CCE, Bilaspur [2014 (9) TMI 768 - CESTAT MUMBAI], wherein it was held that if the assessee has reversed the entire amount of inputs/input service used for generation of electricity and sold outside and then in case the assessee is not required to pay an amount equal to 8/10% of the value of electricity.

  The judgment passed by the CESTAT, Mumbai has not been challenged. We fail to understand how after having accepted the judgment in CESTAT, Mumbai, the authorities can challenge the same in another State when the law is identical - appeal dismissed.

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• 2016 (11) TMI 1589 - BOMBAY HIGH COURT
  

  Disallowance of loss being speculative loss - Held that:- We find that both the CIT(A) and the Tribunal have come to a concurrent finding of fact that actual delivery of the bullion had taken place. Therefore, the loss on account of trading in bullion was not a speculative loss but a business loss. Thus, the above finding of fact led to allowing the loss on account of trading in bullion, being set off as a business loss from the profits made on account of consultancy in mining. This concurrent findings of fact by the CIT(A) and the Tribunal, has not shown to be perverse in any manner. No substantial question of law

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• 2016 (11) TMI 1588 - MADRAS HIGH COURT
  

  Competence of Officer who has drawn SCN - Jurisdiction - Held that:- The SCN cannot be construed to have been barred by limitation. Even otherwise, the question of limitation is considered to be a mixed question of fact and law and it is never a simple question of law and hence, the SCN ought not to have been interdicted on such a ground, particularly when, there is no doubt about the competence of the officer who has drawn the said show cause notices to do so.

  Notice admitted.

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• 2016 (11) TMI 1587 - BOMBAY HIGH COURT
  

  Constitutional validity of the Maharashtra Tax on Lotteries Act, 2006 - Held that:- The issue decided in the case of N.V. MARKETING PVT. LTD. [2009 (8) TMI 1242 - BOMBAY HIGH COURT], where it was held that Once we find that there is clear legislative competence in the State legislature to legislate, there is no exercise of power being colorable merely because earlier a particular type of tax was levied which was found to be not legal - Interim relief granted, if any, stands vacated.

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• 2016 (11) TMI 1586 - KARNATAKA HIGH COURT
  

  Offences punishable under the provisions of the Prevention of Corruption Act (PC Act) 1988 - Petitioner has received illegal gratification - Held that:- The material in support of the same and the further narration of the sequence of events, do not indicate a direct demand or receipt of illegal gratification by the petitioner, from any party. There is reference to accused no.2, the petitioner's son, or a the firm of which Accused no. 4 & 5 were partners, of having received huge amounts, which were said to be compensation amounts payable to land owners. The said compensation amounts were termed as additional compensation paid directly by Itasca and UTL to land owners through the firm of which accused no. 4 & 5 were partners - The said compensation amounts were termed as additional compensation paid directly by Itasca and UTL to land owners through the firm of which accused no. 4 & 5 were partners. These above circumstances are apparent, prima facie, but whether the said amounts were paid to and received on behalf of the petitioner cannot be presumed.

  Irregularities in allotment of lands - Held that:- This was not a possibility, the allotment of land is not made by the petitioner as is evident from the facts stated. The allotment is made by the SHLCC.

  Undue influence on various persons including the officials of the KIADB - Held that:- The role of the petitioner does not go beyond the stage of having been a ex-officio member of the SHLCC. The allegation is hence vague and would not lead to framing of any tenable charge.

  The case of the prosecution is that there were transfer of funds, which were characterized as illegal gratification that was ultimately received by the petitioner through the other accused. The transfer was as a result of a well engineered conspiracy involving two corporate bodies from whose accounts the monies came, namely, Itasca, purportedly represented by Accused no.3 and UTL, represented by accused no.6. Significantly, the said corporate bodies are not named in the charge sheet. This is inexplicable as there is no immunity available to the companies from prosecution, merely because prosecution would be in respect of offences for which punishment prescribed is mandatory imprisonment and fine. It is also to be kept in view that prosecution, conviction and sentencing are different stages in a criminal trial. The stage for sentencing is reached only after a verdict of guilt is pronounced after a full fledged trial.

  Further, for the reason that the two corporate bodies namely, Itasca and UTL not having been named in the charge sheet as the accused, the theory of conspiracy has no foundation and cannot be sustained against any of the accused.

  Petition allowed.

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• 2016 (11) TMI 1585 - CESTAT NEW DELHI
  

  Valuation - motor vehicles by building body on the chassis supplied by M/s Tata Motors - Held that:- The Hon’ble High Court vide order dated 2.11.2016 has disposed the writ petition by stating that the impugned action stands quashed and liberty is granted to the respondents to proceed afresh in the matter after complying with the requirements as are contemplated in the order dated 29.9.2015 - When it is so, then by following the above order of the Hon’ble High Court of Madhya Pradesh we are remanding the matter back to the Commissioner to decide the issues afresh in the light of the observations made by the Hon’ble High Court - appeal allowed by way of remand.

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• 2016 (11) TMI 1584 - ITAT COCHIN
  

  Accrual of income - Taxability of freezer deposits received by the assessee from its vendors - Held that:- In assessee’s own case, the division bench of the Tribunal have decided the matter in favour of the assessee, by following the earlier orders of the Tribunal.

  Besides the assessee never treated this as income in the books. The assessee consistently holding it so as the amount attached with a liability to refund. The assessee never admitted this amount as income in the books. Only accrued income arose to the assessee during the relevant previous year also can be brought to tax under the Income-tax provisions which is a settled law. There must be a debt owned to the assessee and until this is created in favour of the assessee as a debt due to the assessee, it cannot be said as income accrued. - Decided against revenue.

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• 2016 (11) TMI 1583 - AUTHORITY FOR ADVANCE RULING - MAHARASHTRA
  

  Rate of Tax - Microcellular Rubber Sheets (Armaflex) - Microcellur Rubber Tubes (Armaflex) - Microcellur Rubber Sheets (Armasound) - section 55 of MVAT ACT, 2002.

  Held that:- The words employed in the notification and notes appended with it suggest the intention of the Legislature. Only those commodities are to be taxed as per rate of tax of Schedule Entry 54 of MVAT Act, 2002, which are expressly covered in the Notification and those which do not find a place in the said Notification cannot be covered even if they find a place in the Central Excise Tariff headings or sub-headings.

  The Microcellular Rubber Tubes (Armaflex) which is covered by Central Excise Tariff No. 4009 1100. This sub-heading does not appears in the Government Notification issued for the purpose of sechedule entry C-54, therefore it cannot be covered by the scope of that entry.Hence, it is to be covered by the residuary schedule entry.

  Microcellular Rubber Sheets (Armasound) is covered by Central Excise Tariff No. 4008 1190. This sub-heading does not appears in the Government Notification issued for the purpose of sechedule entry C-54, therefore it cannot be covered by the scope of that entry. Hence, it is to be covered by the residuary schedule entry.

  The Microcellular Rubber Tubes (Armaflex) covered under Central Excise Tariff No. 4009 1100 is used as insulating material.lt is for ducting and piping application for maintaining the required temperatures inside the refrigerating system. This insulation material slows down the rate of heat transfer.lt is not used to transport any material like liquid or gases.lt has different function. Hence in common parlance also it can not be identified as tube. The people conversant with it, identifies the product as insulating material and uses it accordingly.Hence.the alternate submission being goods, covered by Schedule entry C-72 also not tenable.

  Application disposed off.

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• 2016 (11) TMI 1582 - KARNATAKA HIGH COURT
  

  Removal of Office Objections - Held that:- A week’s time is granted to remove office objections, failing which, the matter shall stand automatically dismissed for default.

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• 2016 (11) TMI 1581 - RAJASTHAN HIGH COURT
  

  Refund claim - excess Excise Duty paid - payment made under protest - Classification of goods - blended yarn made from viscose fibre and non-cellulosic soft waste - rejection of refund on the ground of time limitation and unjust enrichment.

  Held that:- Taking into consideration the issue which is concluded against the department it is only to cause harassment to the assessee who has paid tax under the higher tax slab and from the record more particularly, the observations which are made by the Tribunal it is very clear that the higher tax was borne by the assessee. In view of the settled position, this is only question of fact and not question of law, therefore, the assessee was entitled for the refund.

  Even in this reference, stay application was not pressed even then even after 7 years, refund is not made for which the assessee was entitled for - This case is required to be viewed seriously. The case of 2002 was dismissed in default and frequent change of counsel resulting the fact that industry was required to be disposed of manufacturing unit and the man is ruined - thus the cost of ₹ 50,000/- is imposed on the Central Government in the appeal.

  Appeal dismissed - decided against Revenue.

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• 2016 (11) TMI 1580 - CESTAT NEW DELHI
  

  100% EOU - Clandestine manufacture - recovery of copper element which in turn is being used in the manufacture of copper ingots - it was alleged that the appellant have shown recovery of less metal in the previous consignment inasmuch as out of receipt of identical consignments imported by them from the same supplier, the recovery of metal scrap is only to the extent of 18.41% - Held that:- In the instant case no comparative study of like manufacturing units was considered by the department. Similarly, the appellant to support their contention has not brought on record any such studies pertaining to the yield from the consignments of the scrap. A comparative study of like factories on this subject matter is required to be considered for coming to the right decision.

  Matter remanded back to the adjudicating authority to have a comparative study from like factories and make estimation accordingly, but by providing a reasonable opportunity of personal hearing to the appellant - appeal allowed by way of remand.

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• 2016 (11) TMI 1579 - MADRAS HIGH COURT
  

  Cancellation of registration of petitioner - reason assigned by the respondent in the impugned notice is that the petitioner has not filed their monthly returns from April 2016 till the date of cancellation - TNVAT Act, 2006 - Held that:- The cancellation is bad in law for more than one reason. Firstly, the impugned order cancels the registration with retrospective effect. Secondly, the petitioner was not given any notice before such cancellation. Thirdly, the reason assigned in the impugned order appears to be factually incorrect, since copies of the e-returns filed on 15.4.2015 upto May 2016 have been produced before this Court. Fourthly, before cancellation of the registration, Section 39(15) of the said Act mandates an opportunity of personal hearing - the impugned assessment order is held to be illegal - petition allowed - decided in favor of petitioner.

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• 2016 (11) TMI 1578 - CESTAT CHENNAI
  

  Non-payment of service tax liability confirmed by lower authority in adjudication - Held that:- Appellant has not really indicated as to the exact nature of grievance that he has against the impugned order. It will be in the fitness of things that appellant awaits recomputation of tax liability and penalty as directed by Commissioner (Appeals) - appeal dismissed as being devoid of merits.

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• 2016 (11) TMI 1577 - CESTAT MUMBAI
  

  Refund of SAD - Unjust enrichment - It is the claim of the appellant that they had not availed cenvat credit nor have they passed on the SAD to the purchaser - Held that:- The Chartered Accountant and the Superintendent have specifically recorded that all the excise sales invoices are not passing on 4% special additional duty (imposed) to their buyers. As against such an evidence, there is no contrary findings on record by the Revenue to hold against the appellant that they have passed on the SAD to their buyers - appeal allowed - decided in favor of appellant.

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