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Showing 161 to 180 of 1437 Records
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2015 (3) TMI 1284
Levy of anti-dumping duty beyond five years - retrospective amendment - Validity of anti-dumping duty extension proceedings under Section 9A of the Customs Tariff Act, 1975 - sunset review - Acrylonitrile Butadiene Rubber originating in, or exported from Korea RP - the decision in the case of M/s. Kumho Petrochemicals Co. Ltd., Fairdeal Polychem LLP Versus Union of India And Others [2014 (7) TMI 732 - DELHI HIGH COURT] contested, where it was held that the initiation of sunset review is valid and legal; however the levy of anti-dumping duty through the impugned notification of 23-01-2014 is without authority of law - Held that: - There shall be interim stay of the impugned judgment(s) and order(s) passed by the High Court of Delhi at New Delhi in Writ Petition (C)Nos.1851 and 1866 of 2014 dated 11.7.2014, until further orders - petition allowed.
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2015 (3) TMI 1283
Capital recovery of leased assets termed as lease equalisation charges - rolling stock of the Indian Railways which is owned by the assessee and which is on lease finance basis - Held that:- The issue in respect of the assessee itself is covered for the previous assessment year 2001-02, in its favour. The ITAT had followed its previous order for assessment year 2001-02 in its impugned order. The ITAT’s order for the previous year 2001-02 has been affirmed by a judgment of this Court in Commissioner of Income, Large Taxpayers Unit V. Indian Railways Finance Corporation Ltd. [2014 (6) TMI 224 - DELHI HIGH COURT]. This position is in fact conceded by the revenue. Consequently, the appeals do not involve any substantial question of law. They are dismissed.
Prior interest expenditure claim on account interest for a prior period - assessee had contended that on account of retrospective revision of rate of interest which occurred in the assessment year in question i.e. AY 2006-07 - Held that:- ITAT’s final order noticed its direction for assessment year 2002-03 held that there is no dispute about the allowability of expenses. Only dispute is regarding the year of allowability. If the Assessing officer is of the view that the expenses are pertaining to the prior period, the same are required to be considered for the prior and allowed in that year. If it is found that the expenses are allowable in this year on the basis of crystallization of liability, the same may be considered in the year under appeal. The assessee is therefore, directed to place necessary evidence in support of claim of expenses. The Assessing officer on appreciation of evidence may determine the year of allowability and allow the same in either of the year. No substantial question of law
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2015 (3) TMI 1282
Dishonoring of cheques - Entitlement to invoke presumption u/s 118 and 139 of Negotiable Instruments Act - judgment of acquittal challenged - Held that:- Once the presumption under Section 139 of Negotiable Instruments Act has been rebutted by the respondents/accused, then only the onus is shifted to the complainant to prove that the cheque has been issued for discharging legally subsisting liability.But the Trial Court has not considered the same. Non-application of legal proposition and also factual mis-appreciation leads to perversity of the judgment.So, the judgment of acquittal passed by the Trial Court is perverse and it is liable to be set aside.
Since the issuance of cheque and signature in the cheque is admitted, the appellant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act that the cheque has been issued for discharging legally subsisting liability.Even though it is a rebuttable presumption, the presumption has not been rebutted by the respondents/accused.So, the onus is not shifted from the respondents to the appellant.Therefore, the appellant has proved that having fully known that he has no sufficient funds in his account, the respondent has issued the cheque. Hence, the respondents 1 to 3 are guilty under Section 138 of Negotiable Instruments Act and the judgment of acquittal passed by the Trial Court is hereby set aside.
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2015 (3) TMI 1281
Reference to the Valuation Officer - adoption of value of the SVA as FMV - whether for the purposes of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall for the purposes of section 48 be deemed to be the full value of consideration received or accruing as a result of such transfer? - Held that:- In the instant case, the assessee has requested the Assessing Officer for referring the matter to DVO wherein the assessee was given show-cause notice and thereafter DVO has made his report. We find that in the instant case, the valuation assessed by SVA is at ₹ 92.65 Lac. wherein the DVO’s value at ₹ 1.50 crore. So, Assessing Officer adopted the value declared by SVA. We find that the Assessing Officer is justified in his action.
As gone through the judgment of CIT Vs. Smt. Shweta Bhuchar (2010 (2) TMI 1049 - PUNJAB AND HARYANA HIGH COURT) as held that if the addition has to be made on account of unexplained investment in purchase of property, the Assessing Officer should make a reference to the Valuation Officer in terms of sub-section (2) of sec. 50C of the Act. We find that in the instant case, the Assessing Officer has obtained the report from DVO, therefore this judgment will not helpful to the assessee. Similarly, in the case of CIT Vs. Chandni Bhuchar reported in (2010 (1) TMI 502 - Punjab and Haryana High Court) decided the issue relating to addition made u/s. 48 on account of unexplained investment in the property. In the instant case, it is a case of deciding the FMV, therefore this judgment also will not helpful to the assessee. Therefore, we are of the view that the Assessing Officer and the Ld. CIT(A) are justified in their action. Appeal of the assessee is dismissed.
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2015 (3) TMI 1280
Seized cash adjustment against the liability of advance tax - Interest leviable under section 234B/C - Held that:- CIT(A) has correctly decided the issue because explanation to section 132B can not be held to be of retrospective nature because notes on the clauses very clearly provide that amendment shall take effect from 01/06/2013. Further we are bound to follow the decision in case of CIT v/s Ashok Kumar [2010 (9) TMI 771 - Punjab and Haryana High Court]. The Ld. CIT has also correctly noticed that application was received on 22/03/2010 i.e. one week after the due date for deposit of advance tax and that is why he has ultimately directed the AO to rework the interest leviable under section 234B/C. Therefore, we find nothing wrong with this order and follow the same. Appeal of the Revenue dismissed.
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2015 (3) TMI 1279
Levy penalty under section 271(1)(c) - eligible for additional depreciation denied - Held that:-
After careful consideration of the provisions of section 32(1)(iia)the assessee is eligible for additional depreciation for the plant and machinery installed in the year under consideration. The case of the assessee is that the assessee was not able to install the plant and machinery as per statute and when it is not able to claim the entire additional depreciation, the left over portion can be claimed in subsequent year being the provisions of section 32 is a beneficial provision. Considering the provisions of section 32(1)(iia) we are of the opinion that the assessee has made a bonafide claim by disclosing all material details before the Assessing Officer and therefore, the claim of the assessee is neither concealment of income or furnishing of inaccurate particulars. Therefore, it is not a fit case to levy penalty under section 271(1)(c) of the Act. - Decided against revenue.
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2015 (3) TMI 1278
Reopening of assessment - peak credit addition - validity of notice - Held that:- In the instant case, if we accept the contention of the assessee that the Assessing Officer has acted at the behest of the Investigation Wing, then in that case he would have made addition of ₹ 9,83,50,000/- which is as per the reasons for issue of notice u/s.148 for the A.Y. 2002-03. Further, from the letter dated 10-12-2009 by the JCIT, Range-1, Jalgaon to JDIT (Investigation) Jalgaon, we find the JCIT has mentioned that peak determined by the Investigation Wing is incorrect and the peak is coming to negative for which he has requested for further material at the disposal of the Investigation Wing. Therefore it is not a case where the Assessing Officer has acted at the behest of the JDIT. He has acted in a very judicious manner acting independently thus we dismiss the additional ground raised by the assessee.
Addition on advances and interest thereon - Held that:- After thoroughly analysing he considered certain transactions which according to him do not appear to be taxable receipts. Such transactions are without any reference to interest or profit on sale and are just financial transactions involving receipts by the assessee and cannot be considered as income for the impugned assessment year. He therefore added these loans for the purpose of working out the peak credit but did not consider the same as income. Similarly, certain transactions represented sale of jewellery which according to him cannot be said as income as such. According to him, only the profit element can be considered as taxable. He accordingly restricted such interest and other income to ₹ 62,51,754/- as against ₹ 82,81,598/- determined by the Assessing Officer. This reasoned finding given by the CIT(A) in our opinion does not suffer from any infirmity and accordingly the same is upheld. The grounds raised on this issue are accordingly dismissed
Addition on account of alleged interest received on the unexplained investment - Held that:- After considering the reply of the assessee to such enhancement notice, the Ld.CIT(A) enhanced the income and directed the AO to adopt interest of ₹ 73,31,192/-. Nothing contrary was brought to our notice by the Ld. Counsel for the assessee against the said calculation. Under these circumstances, the third issue raised by the assessee in the ground is dismissed. The appeal filed by the assessee for this year is accordingly dismissed.
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2015 (3) TMI 1277
Disallowance u/s.14A r.w.r.8D - Held that:- No merit in the disallowance so made by the AO, insofar as rule 8D can be applied only when assessee has claimed certain expenditure against earning of exempt income. In the instant case, the AO has made disallowance under Rule 8D on the plea that the assessee has made investment in partnership firm, income of which is exempt. We found that on the capital so invested in the partnership firm, the assessee has earned substantial interest income which is liable to tax. As per the audited profit and loss account placed in the record, we found that assessee has earned gross interest income of ₹ 2,51,65,257/- and paid interest of ₹ 80,17,792/- which resulted into net interest income of ₹ 1,71,47,465/-. Most of the investment was out of interest free funds available with it and even in respect of the part of the investment made out of borrowings, since the assessee has earned interest income thereon which was more than what was paid against the borrowing, no disallowance is warranted under rule 8D.
AO is empower to make disallowance u/s.14A r.w.r.8D only if the assessee has debited certain interest expenditure which are attributable to earning the exempt income. In case the assessee has not claimed any interest expenditure attributable to earning exempt income, no disallowance is warranted under rule 8D.
For the administrative expenses claimed in the profit and loss account, we found that assessee has earned taxable income of ₹ 1,71,52,765/- and after claiming such expenses offered not taxable income of ₹ 1,68,36,770/-. Thus, it is clear that entire administrative expenses are attributable to earning of the taxable income. It is pertinent to mention here that no exempt income was earned by assessee during the year under consideration, therefore, disallowance merely on the presumption that in future assessee may earn exempt income is not taxable when assessee has not claimed any expenditure in its profit and loss account for earning of exempt income. Accordingly, we reverse the order of both the lower authorities and direct the AO to delete the disallowance made u/s.14A r.w.r.8D. - Decided in favour of assessee.
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2015 (3) TMI 1276
TPA - ALP determination - TPO justification in adopting the ALP at Rs.Nil - Held that:- The Hon’ble Jurisdictional High Court in the case of Cushman and Wakefield (India) (P.) Ltd. (2014 (5) TMI 897 - DELHI HIGH COURT) held that TPO cannot determine arm’s length price of the payments made by the assessee to its ‘AE’ at ‘nil’ for the reason that assessee did not derive any benefit from services rendered by AE.
The Hon’ble High Court categorically held that the TPO is to conduct a Transfer Pricing analysis to determine the arm’s length price (ALP) and not to determine whether there is a service from which assessee has derived benefit or not. The Hon’ble Court held that the exercise to determine whether assessee had derived any benefit or not from payment of such management fee is to be examined by the AO and appropriate disallowance u/s 37 is called for. In the instant case, the TPO had determined the ALP of payment of management fees at ‘NIL’ by holding that the assessee did not derive any benefit from services rendered by the AE. Thus necessarily AO as to determine whether the assessee has derived any benefit from payment of professional fees and if any benefit had derived, whether such payment is commensurate to comparable transaction has to be examined by the TPO. For the above said purpose, the Transfer Pricing issue is restored to AO/TPO for de- novo consideration. - Appeal of the assessee is partly allowed for statistical purposes.
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2015 (3) TMI 1275
Deduction under Section 80I on gross total income before reducing deduction under Section 80HH - Held that:- The question of law has since been decided by Hon'ble Supreme Court in Joint Commissioner of Income-Tax Vs. Mandideep Eng. and Pkg.Ind. P. Ltd. [2006 (4) TMI 75 - SUPREME Court] - Decided in favour of the assessee and against the Department.
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2015 (3) TMI 1274
Penalty u/s 271(1)(c) - claim made on account of bad debt not allowed - Held that:- It is not in dispute that the amount of debt had duly been written off by the assessee; why was the same not allowed is however a mystery to us but be that as it may, the fact remains that the claim for bad debt after the debt had been written off could never be a ground for initiating penal proceedings. Before initiating the penal proceedings the Assessing Officer is required to be satisfied as to whether any income has been concealed or any inadequate particulars have been furnished.
As the appellant submitted that the order under challenge passed by the Assessing Officer does not show any such satisfaction nor the learned Tribunal had considered the matter in that perspective. The order of the CIT has been passed mechanically and without applying mind. The learned Advocate appearing for the respondent did not seriously try to support the order under challenge. We have no doubt in our mind that the order suffers from perversity of the highest order. The order under challenge is set aside. The question as framed is answered in the affirmative.
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2015 (3) TMI 1273
Condonation of delay - Grant of registration under section 12AA denied - Held that:- When the assessee has been advised that the impugned order could challenged when regular appeals for subsequent assessment years are decided, would clearly indicate that the assessee was well aware of the consequences of the impugned order. As per settled law when no registration is granted under section 12AA to the assessee for assessment year 2009-10 and subsequent assessment years, there was no question of making claim of exemption from income under section 11 for any subsequent assessment years either in the regular assessments or in the consequential appeals filed before the learned CIT (Appeals).
Thus the assessee failed to explain any sufficient cause for not presenting the appeal within the period of limitation before the Tribunal. Sufficient cause would mean a cause which is beyond the control of the assessee. Sufficient cause means which prevents the assessee acting under normal circumstances without negligence or inaction or want of bonafide. When the assessee was aware of the consequences of the impugned order that its income would not be exempt under section 11 of the Act from assessment year 2009-2010 onwards, the assessee should not have waited for filing of the appeal in the matter. It is a clear case of negligence or inaction or want of bona fide. The conduct of the assessee clearly speak against the assessee itself that the assessee deliberately did not file the appeal within the period of limitation. - Decided against assessee.
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2015 (3) TMI 1272
Stay application - recovery proceedings - Held that:- The assessee being aggrieved by the assessment order has filed an appeal before CIT (Appeals) III – third respondent as evidenced from the appeal memorandum appended to the present writ petition which is at Annexure-D. An application for stay of re-assessment order has also been filed seeking for stay of the demand as evidenced from the stay application which is at Annexure-E. Hence, without going into the merits namely as to whether Assessing Officer was justified in disallowing the claim made by the assessee under Section 10A of the Act requires to be examined by CIT (Appeals) III in the facts and circumstances of the case and also taking into consideration the fact that CIT (Appeals) III is now seized of the matter, this Court is of the considered view that ends of justice would be met if CIT (Appeals) III – third respondent is directed to dispose of the stay application that has been filed by the petitioner expeditiously within a time frame.
Since learned Sr. counsel appearing for petitioner has submitted that issue is no more res integra in view of the decision taken by the Division Bench in respect of allowability of deduction under Section 10A of the Act, this Court is of the considered view that impugned demand raised by the Assessing Officer pursuant to re-assessment order requires to be stayed till the application filed by petitioner before appellate authority – CIT (Appeals) III (Annexure-E ) is disposed of.
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2015 (3) TMI 1271
Depreciation om technical knowhow - Held that:- Claim of deprecation becomes eligible as it is an intangible asset on which assessee has claimed depreciation on WDV.
Deemed international transactions - ALP determination - nature of transaction - Held that:- Since the transactions between Matrix and Astrix both being resident companies in India do not fall within the definition of international transactions so as to necessitate the computation of arms length price under the T.P. provisions of the Act, DRP accepted the assessee’s objections. DRP also noted that the transactions between the Matrix and assessee does not in any way shift any profits out of India, since both the entities are taxable entities in India and the question of applying the T.P. provisions does not arise. Since the TPO does not have any jurisdiction to examine the domestic transactions in the impugned assessment year, the DRP has rightly held that stand of the TPO fails. Domestic transactions cannot be examined under T.P. provisions for the impugned assessment year - Decided against revenue
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2015 (3) TMI 1270
Maintainability of petition - Jurisdiction - recovery of cess - Held that: - Without replying to the show cause notice, petitioner has approached this Court by invoking jurisdiction under Article 226 of the Constitution of India - Petition is premature - petition dismissed being not maintainable.
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2015 (3) TMI 1269
Condonation of delay - Whether the fuel and ash handling system manufactured by the appellant are eligible for exemption under Notification No.6/2002-CE dt. 1.3.2002 - in the nature of non-conventional energy device/system as specified or not - there was delay in filing appeal against the case of M/s TEKNIK PLANT & MACHINERY MANUFACTURING CO PVT LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2015 (1) TMI 128 - CESTAT MUMBAI] - delay condoned.
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2015 (3) TMI 1268
CENVAT credit - Courier Service - Housekeeping service - maintenance of garden - denial on account of nexus - Held that: - the learned Commissioner (Appeals) committed an error without any cogent reason stated justifying the reason how housekeeping and maintenance of garden has relevance to manufacturing - credit denied.
Courier Service - Held that: - the Courier Services has a direct nexus to business since communications is indispensable necessity in business world - credit allowed.
Appeal allowed - decided partly in favor of Revenue.
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2015 (3) TMI 1267
Direction to banks to prohibit/freeze the withdrawal from the accounts maintained in the branches by the appellant No. 1 Group of Companies - Held that:- (a) Impugned letter dated 19.09.2014 issued by respondent No. 3 requesting respondent banks (reporting entities under the Act) to prohibit/freeze withdrawal of monies from the account of the appellant's group of Companies is to be read as an indispensable temporary measure for preservation of evidence pending investigation and has been issued in aid of proceedings for attachment and seizure contemplated under section 5 or 7 of the Act and not to supplant them. Such incidental and consequential power being in aid to proceedings contemplated under the Act is held to be vested in the investigating agency in view of the inclusive definition of "investigation" under section 2(na) of PML Act, 2002.
(b) Respondents banks being "reporting entities" under the Act are duty bound to assist the investigating agency in terms of section 54 of PML Act and therefore issuance of notice upon the respondents banks cannot be said to be illegal.
(c) Failure to refer to other "scheduled offences" apart from the one under the SEBI Act in the impugned letter would not ipso facto invalidate the same in view the materials emanating from the records of investigation as also the saving provision engrafted in section 68 of the PML Act, 2002.
(d) Impugned letter dated 19.09.2014 having been held to be a temporary measure in aid of proceedings under the Act cannot be an end it itself. Hence, embargo contained in the said letter cannot continue indefinitely but is required to be restricted to a time frame within which the respondents may initiate appropriate proceedings under the Act in respect of the accounts/assets referred therein.
Accordingly, the impugned letter dated 19.09.2014 is modified and the embargo contained therein is directed to operate for a period of three months from date within which the respondent authorities are at liberty to initiate appropriate proceedings as contemplated under the Act, if not already done, in respect of the assets/accounts referred to therein. If the respondent authorities fail to initiate proceedings under the Act in respect of the accounts/assets referred to in the impugned letter within the aforesaid time frame, the respondent banks would be at liberty to permit the appellants to operate the said accounts/assets in accordance with law. The appeal is partly allowed.
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2015 (3) TMI 1266
Disallowance of lease payment - Held that:- The ld. Counsel submitted that the lease agreement specifically provides that the computer would be returned back to M/s IBM. He further submitted that the assessee has also obtained a certificate to that effect from M/s IBM. Thus, in our view, the present dispute could be resolved only if a definite finding about the nature of lease is given. We have already noticed that both the authorities have failed to examine the lease agreement which, in our view, is essential. Accordingly, we are of the view that this issue requires fresh examination at the end of the AO. Accordingly, we set aside the order of the AO and restore this issue to the file of the AO/DRP with a direction to decide the same afresh by duly considering the lease agreement, certificate given by the M/s IBM and any other information/explanations that may be furnished by the assessee.
Disallowance of employees contribution to Provident Fund - Held that:- As the assessee has paid the amount before the end of the relevant financial year and hence the AO was not justified in disallowing the claim in view of the decisions rendered in the case of CIT V/s Ghatge Patil Transport Ltd [2014 (10) TMI 402 - BOMBAY HIGH COURT] and CIT V/s Hindustan Organics Chemicals Ltd reported in (2014 (7) TMI 477 - BOMBAY HIGH COURT).
Rejection of claim for deduction of expenditure relating to reimbursement of deputed staff cost - additional claim by filing revised return of income - Held that:- As in the case of CIT V/s Pruthvi Brokers and Shareholders (P) Ltd (2012 (7) TMI 158 - BOMBAY HIGH COURT ) that appellate authority is entitled to consider the additional claim, if any and adjudicate the same. Accordingly, we are of the view that the claim for deduction put forth by the assessee should be admitted. Further, since the same needs to be examined, we think it fit and proper to restore this issue to the file of the AO with a direction to examine the claim put forth for deduction by the assessee and take appropriate decision in accordance with law.
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2015 (3) TMI 1265
Principles of natural justice - The reasons mentioned in the SCN are not mentioned in the final order and the authority had arrived at a conclusion giving a totally different version for the order - The authority has failed to take into consideration that the purchaser cannot be penalised even for the non-payment of tax by the seller.
Held that: - the reason given in the SCN are not the same as given in the final order and it is totally different. It is against the principles of natural justice. Consequently, even assuming for a moment that if at all the petitioner has produced the transport bills and noted lorry registration numbers in Form-8, it would not definitely show the petitioner is acting against the law, when admittedly the sale was performed in the Tuticorin Port yard itself. The material imported is woods and the sale and purchase prices have been transacted through bank transactions. Therefore, the question of way-bill and lorry registration numbers does not arise, especially in view the fact that the petitioner as well as the seller both of them have got officially registered godowns in the Tuticorin Port Yard, for which details, documents have been produced to the authority concerned. This vital fact has not at all been considered by the authority. More over, it is an admitted fact that what has not been asked in the SCN cannot be a ground for passing a final order.
It is for the purchaser to produce the way-bill. In this case, after the SCN, the petitioner also produced annexure-2 and thereafter, tax has been paid by the selling agent. When that has been produced as early as on 22.01.2015 along with reply, no proper explanation has been given in the order and further opportunity has not been given.
The authority should have taken into consideration the tax paid by the seller and as stated supra, even as per the Rule 10(2) of the TNVAT Act, there is no violation. Since both the purchaser and the seller have godowns in Tuticorin Port yard itself, the question of producing way-bill and noting of lorry registration numbers does not arise at all.
Petition allowed - decided in favor of petitioner.
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