|
Advanced Search Options
Case Laws
Showing 161 to 180 of 1271 Records
-
2015 (6) TMI 1120
Revision u/s 263 - Assessing Officer did not consider the issue of eligibility of additional depreciation on windmill and the same has resulted in loss of revenue - assessment order passed by AO under the provisions of section 143(3) r.w.s. 153A - Held that:- AO did not have jurisdiction to the make addition on the impugned issue as the same is not based on seized material. Such contention has been rejected only on the ground that there are conflicting views rendered by various High Courts and the contention of the assessee has not been rejected on the ground that the impugned addition is based on seized material. Also there is no material on record to suggest that issue regarding additional depreciation on Wind Mill was based on seized material. Therefore, certainly, this issue is other than the additions based on seized material.
If it is so then according to the aforementioned decision of Hon’ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015 (5) TMI 656 - BOMBAY HIGH COURT) the AO would not have jurisdiction to bring such issue in the assessment completed u/s. 153A r.w.s 143(3) and non-consideration thereof in the assessment order would not make the assessment order passed under section 143(3) r.w.s. 153A as erroneous and prejudicial to the interest of Revenue. - Decided in favour of assessee.
-
2015 (6) TMI 1119
Deemed dividend addition made u/s. 2(22)(e) - loan taken from the company and company compensated by way of interest paid by the assessee on loan - Held that:- As decided in Pradip Kumar Malhotra case [2011 (8) TMI 16 - CALCUTTA HIGH COURT] the authorities below erred in law in treating the advance given by the Company to the assessee by way of compensation to the assessee for keeping his property as mortgage on behalf of the company to reap the benefit of loan as deemed dividend within the meaning of Section 2(22) (e) of the Act - Decided in favour of assessee.
Disallowance u/s. 14A to 1% of the dividend income - Held that:- We find that the ld.CIT(A) has restricted the disallowance to 1% of the dividend income by following the various decisions of the ITAT. Therefore, we find no infirmity in the impugned order of the ld.CIT(A) in doing so. The ld.CIT(A) has rightly restricted the addition u/s. 14 A of the Act to 1% of the dividend earned - Decided against assessee
-
2015 (6) TMI 1118
Rectification of mistake - mistake in filling item No.43, which was taken into account by processing the return and the income of the assessee was processed at nil in place of a loss of ₹ 20,37,162/- - Held that:- The mistake, as is claimed by the assessee to be apparent from the record would fall within sub-clause (i) of clause (a) of the Explanation as the figure of “nil” stated against column No.43 would be inconsistent with the other entries of the same or some other items in the same very return. Therefore, Ld. CIT(A) was wrong in holding that assessee is not entitled to get the impugned mistake rectified. The adjustment sought for by the assessee in the rectification application would be in accordance with the provisions of section 143(1) and is an inadvertent mistake which is rectifiable under the provisions of section 154 of the Act. Accordingly, we hold that there is a mistake apparent from record which is required to be rectified. We direct the AO as well as Computerized Processing Center to rectify the mistake and accept the application filed by the assessee under the provisions of section 154 of the Act.
-
2015 (6) TMI 1117
Imposition of penalty u/s 114(iii) of the CA, 1962 - case of appellant is that the findings recorded by the adjudicating authority has no basis and there is nothing on record to implicate the appellant in any manner which attracts penal provisions - Held that: - the findings as recorded by the adjudicating authority are not substantiated in anyway. There is no statement implicating the appellant nor it is brought on record that Shri Sushil Dhuri is one of the employees of the appellant. In the absence of any other evidence to implicate the appellant herein, the penalty imposed on him is not in consonance with the law - penalty set aside - appeal allowed - decided in favor of appellant.
-
2015 (6) TMI 1116
Penalty u/s. 271(1)(c) - Deduction claimed u/s. 80I and 80IA on manufacturing and sale of Gutka, Treating sales tax incentive as capital receipt - Held that:- We are of the considered view that since the first two issues on which the penalty has been levied u/s. 271(1)(c) involves substantial question of law, therefore, no penalty is leviable thereon. The Hon'ble jurisdictional High Court in the case of CIT Vs. M/s. Nayan Builders and Developers (2014 (7) TMI 1150 - BOMBAY HIGH COURT) has held that where the debatable and arguable issues are involved and substantial question of law is framed in quantum proceedings, no case for levy of penalty is made out.
Depreciation on structures incidental or ancillary structure to the windmill - Held that:- No penalty was levied by the Assessing Officer on similar disallowance in the preceding assessment year, therefore, the penalty cannot be levied in succeeding assessment year for the same disallowanceLevy of penalty for disallowance of depreciation claim on structures ancillary to windmill is deleted.
Rate of depreciation is concerned, the assessee has admitted that the mistake in adopting rate at 100% was bonafide. We accept the explanation furnished by the assessee in erroneously applying higher rate of depreciation. It was in the impugned assessment year that rate of depreciation was reduced from 100% to 80%. The assessee applied 100% rate of depreciation instead of 80%. The mistake can be said to be a silly mistake caused by callousness. The assessee should have been more careful in applying the rate of depreciation. In view of the facts of the case, we are of the view that levy of penalty is not justified. - Appeal Decided in favour of assessee
-
2015 (6) TMI 1115
Penalty imposed u/s.271(1)(c) - addition made on account of raw material purchased from Sun Pharmaceuticals, notional selling and distribution expenses and interest income on bank deposits/staff loan as not eligible for deduction u/s.80IB - Held that:- Tribunal in assessment year 2005-06 in quantum proceedings, wherein the addition made on account of notional selling and distribution expenses was deleted by the Tribunal. Since the addition on account of notional selling and distribution has been deleted in quantum proceedings, the penalty order passed with respect to such addition has no legs to stand. With respect to the addition made on account of raw material purchases, interest income on bank deposit/staff loan, the Tribunal has deleted the penalty after observing that penalty is not leviable in respect of disallowance u/s.80IB of the Act on account of raw material purchases as it is merely a claim which is found to be not sustainable in law.
Similarly the penalty with respect to the interest income on bank deposits/staff loan was deleted by the Tribunal by observing that penalty is not leviable in respect of disallowance u/s.80IB on account of interest income on bank deposit/staff loan as the assessee has furnished all details and it is merely a claim which is found to be not sustainable in law. Respectfully following the decision of the Tribunal in assessee’s own case for the assessment year 2005-06, we do not find any infirmity in the order of CIT(A) for deleting the penalty imposed u/s.271(1)(c) of the Act. - Decided in favour of assessee.
-
2015 (6) TMI 1114
Testing of imported toys - M/s. Indian Institute of Technology, one of the agency, has declined to test the imported goods stating that it does not have the requisite technology to carry out the tests - the goods were tested by Central Revenue Control Laboratory and a report has been submitted - In view of the report submitted by Central Revenue Control Laboratory, this Court directs that it is open to the respondent department to proceed further and pass orders in accordance with law within two weeks from the date of this order - petition disposed off.
-
2015 (6) TMI 1113
Deduction u/s.80P(2)(a)(i) denied - claim of the assessee for deduction u/s. 80P(2)(a)(i) disallowed for the reason that the assessee fell within the realm of Banking Regulation Act, 1949 - Held that:- No doubt, the assessee had satisfied two of the three primary conditions mentioned in section 5(ccv) of the Banking Regulation Act, 1949 viz., it had the primary object of banking and it had share capital which was in excess of Rs. One lakh. But, we find from the membership qualification as set out in the bye law, which has been reproduced by the Assessing Officer at page 37 of his order that there was nothing which forbid a cooperative society from becoming a member.
It is clearly stated that every person competent to contract under section 11 of the Indian Contract Act, 1872 could become a member, provided other conditions are satisfied. A person will definitely include a cooperative society. In any case, we find that the Hon’ble jurisdictional High Court in the case of Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha Bagalkot (2015 (1) TMI 821 - KARNATAKA HIGH COURT ) in relation to a similar issue, has held the business of the assessee is to provide credit facilities to its members. Since the assessee cannot carry on any banking business, the interest on investment is taxable as income from other source. Therefore the aforesaid facts, which is not in dispute clearly establishes that it is not a Cooperative Bank. Revisional Authority also in its order has categorically stated that the assessee is a Co-operative society, which provides credit facilities. Section 80P of the Act deals with the deduction of income of a society. - Decided in favour of assessee
-
2015 (6) TMI 1112
Unclaimed baggage - abandonment of goods at airport - assorted electronic goods - watches - Ivory/Cream coloured powder - prohibited goods - confiscation - valuation of assorted electronic goods - Held that: - The Customs authorities have valued the goods on the basis of prevailing market rates and taking into consideration the type, brand, etc. and also based on information from the internet downloads (NIDB Data) after allowing the usual rebate - As no supporting document to substantiate the value of electronics goods has been produced, Government finds no infirmity in the method of valuation adopted by the Customs authorities.
Quantum of redemption fine and penalty - Held that: - redemption fine and penalty imposed are only 50% and 10% of the value of goods respectively. Keeping in view the gravity of offence and overall circumstances of the case, the same are reasonable and there is no ground for their further reduction.
Re-export of impugned assorted electronic goods - Held that: - applicant contravened the provisions of Section 77 of Customs Act, 1962. The goods brought by the applicant were prohibited (Beta Methazone Dipropionate powder) and in commercial quantity (assorted electronic goods), and hence do not constitute bona fide baggage in terms of Section 79 of the Customs Act, 1962 read with provision of Para 2.20 of EXIM Policy in force - Provision for re-export of baggage is available u/s 80 of the CA, 1962. However, as this will apply only in the case of declared bona fide baggage, the applicant is not eligible for re-export of impugned goods.
Revision application rejected - decided against applicant.
-
2015 (6) TMI 1111
Rebate claim - denial on the ground that the merchant exporter have availed drawback of duty in respect of the goods for which the manufacturer has claimed the rebate of Central Excise duty paid at the time of clearance and hence, claims of rebate would result in double benefit - Held that: - The provisions of Rule 18 of Central Excise Rules, 2002 are interpreted by Hon’ble High Court of Bombay at Nagpur Bench, in the case of CCE, Nagpur v. Indorama Textiles Ltd., [2006 (5) TMI 8 - HIGH COURT OF JUDICATURE (BOMBAY)] wherein it was held that rebate provided in Rule 18 of Central Excise Rule, 2002 is only on duty paid on one of the stages i.e. either on excisable goods or on materials used in manufacture or processing of such goods. Hence, assessee is not entitled to claim rebate of duty paid at both stages simultaneously i.e. duty paid at input stage as well as finished goods stage.
The applicant could not substantiate their claim that the merchant exporter has availed only Customs portion of drawback by means of any valid documentary evidences. Hence, it can be implied that the applicant has availed both Customs as well as Central Excise portion of drawback. Under such circumstances, allowing rebate would amount to double benefit, which cannot be held admissible.
Revision application rejected - decided against applicant.
-
2015 (6) TMI 1110
Recovery - duty drawback granted earlier - recovery on the ground that applicant failed to produce the evidence for realization of export proceeds in respect of impugned exported goods for which they were allowed drawback within the period allowed under Foreign Exchange Management Act, 1999 including any extensions of such period granted by the RBI - Held that: - it is a statutory requirement under relevant sections that export proceeds need to be realized within the time-limit provided thereunder viz. 6 months in this case subject to any extension allowed by RBI. As discussed above, the applicant has failed to fulfill their statutory obligations. Therefore, the order for recovery of drawback claim along with interest & penalty cannot be faulted with - revision application rejected - decided against applicant.
-
2015 (6) TMI 1109
Recovery - Duty drawback - recovery on the ground that applicant failed to produce the evidence for realization of export proceeds in respect of impugned exported goods for which they were allowed drawback within the period allowed - Held that: - it is a statutory requirement u/s 75(1) of Customs Act, 1962 & Rule 16A(1) of Customs, Central Excise & Service Tax Drawback Rules, 1995, read with Section 8 of FEMA, 1999 read with Regulations 9 of Foreign Exchange Management (Export of goods & Services) Regulations, 2000 & Para 2.41 of EXIM Policy 2005-2009 that export proceeds need to be realized within the time limit provided there under in this case subject to any extension allowed by RBI - the date of realization of export proceeds was not mentioned in Bank Realization Certificate submitted by the applicant. In absence of mention of date of realization of export proceeds, it cannot be concluded that realization of export proceeds were made by the applicant and were made within stipulated time limit including extension, if any, allowed by the RBI.
The applicants are liable to pay drawback availed by them for the reasons of failure to realize export proceeds within stipulated time limit - revision application rejected - decided against applicant.
-
2015 (6) TMI 1108
Duty drawback - recovery of sanctioned drawback - recovery on the ground that applicant failed to produce the evidence for realization of export proceeds in respect of impugned exported goods for which they were allowed drawback within the period allowed - Held that: - it is a statutory requirement under Section 75(1) of Customs Act, 1962 & Rule 16A(1) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, read with Section 8 of FEMA, 1999 read with Regulations 9 of Foreign Exchange Management (Export of Goods & Services) Regulations, 2000 & Para 2.41 of EXIM policy 2005-2009 that export proceeds need to be realized within the time limit provided thereunder viz six months in this case subject to any extension allowed by RBI - the applicant failed to produce Bank Realization Certificates even after 11 years from the date of exports - the drawback availed by the applicant is liable for recovery - revision rejected - decided against Applicant.
-
2015 (6) TMI 1107
Valuation - Spandex yarn imported in the year 2005 - enhancement in value - rejection of declared value purely on the grounds that the importer did not produce any evidence - Held that: - the Appellate Authority has discussed the issue in detail and after examining the documents and L.C, concluded that the declared price is correct and is to be taken as the transaction value and also clearly brought out that the same importer’s similar consignment has been accepted by the department and also compared with the quantity of the yarn imported in the present consignment and compared to the quantity of the goods relied by the Revenue - the declared price be accepted as the transaction value - appeal of revenue dismissed.
Refund claim - unjust enrichment - Held that: - the appellant has been able to establish that the duty incidence has not been passed on to the customers and their claim is not hit by the bar of unjust enrichment. The appellant has produced all the relevant documents i.e., C.A. Certificate, balance sheet, challans, but the same were not considered - On perusal of the balance sheet for the financial year ending 31-3-2006, we find that during the relevant period, the excess duty paid by the appellant has been absorbed by them and shown by them as receivables from the department, which is duly supported by the Chartered Accountant’s Certificate dated 19-12-2005 - the appellant has not passed on the enhanced duty and it is a fact that the spandex yarn was consumed in their factory for manufacture of final product - the appellant is entitled for the consequential refund arising out of the Order-in-Appeal dated 30-9-2005 and the refund is not hit by unjust enrichment - decided in favor of assessee.
Appeal disposed off - decided in favor of assessee.
-
2015 (6) TMI 1106
Revocation of CHA licence - forfeiture of security deposit - overvalued consignment of scarves, was being attempted to be exported from D’Node CFS - the 4 Shipping Bills dated 15-3-2012 of the exporter namely M/s. Galaxy Export, New Delhi were amended by filing four more Shipping Bills showing lesser FOB value and consequently lesser drawback - Held that: - The regulations mandate that the CHA should verify the antecedents of the exporter, the identity and functioning of his client at the declared address by using reliable independent and authentic information. This was not done by the appellant. In fact the appellant had simply obtained the export documents from Shri Deepak Joshi who had received the same from Shri Kunal who was not an authorized representative of the exporter. In this view of the matter, we find that the violation of Regulation 13(o) is established.
Regarding violation of Regulation 19(8), it is seen that Shri Sanjay Gawand signed the request letter for amendment of Shipping Bills despite being a temporary pass holder of the CHA, who is not authorized to sign such documents. The CHA admits that this happened due to inadvertence. Therefore violation of Regulation 19(8) is established in that the CHA exercised no control in ensuring that his employees do not make any omissions or commissions in violation of the Regulations. Rather the presence of Shri Deepak Joshi everywhere does indicate that the CHA was getting some work done through unauthorized people.
We note the elements of negligence and total disregard to Regulations 13(o) & 19(8). It would meet the ends of justice if the revocation of license is continued till 31-12-2015.
The continuation of revocation till 31-12-2015. However, the license is ordered to be made operative from 1-1-2016. The security deposit is also ordered to be forfeited - appeal disposed off - decided partly in favor of appellant.
-
2015 (6) TMI 1105
CENVAT credit - extension of capacity of production - whether the appellant is entitled to avail Cenvat credit on capital goods procured during the period when their product was dutiable or not? - Held that: - The relevant date for deciding the credit eligibility is date of procurement of capital goods. Admittedly, on the date when capital goods were procured their final product was dutiable - As on the date on which the capital goods were procured, the final product was dutiable, therefore,the appellant has correctly taken the Cenvat credit on capital goods and they are not required to reverse the same - appeal allowed - decided in favor of appellant.
-
2015 (6) TMI 1104
Provisional Orders of Attachment - Held that:- As referring to extract Section 2(na) of PMLA “investigation” includes all the proceedings under this Act and the impugned Provisional Orders of Attachment have been passed in exercise of powers under Section 5(1) of PMLA. Therefore, the proceeding under Section 5(1) of PMLA also comes under the definition of “investigation”. As per the above said interim order of the Hon'ble Supreme Court of India [2013 (4) TMI 847 - SUPREME COURT OF INDIA ], this Court shall not pass any order, which may, in any manner, impede the investigation being carried out by the Directorate of Enforcement.Therefore, this Court accepts the first preliminary objection raised by the learned Additional Solicitor General of India.
So far as the second preliminary issue is concerned, this Court is not inclined to go into the same for the reason that the writ petitions cannot be entertained by this Court and hence, it cannot give any findings whether the impugned orders are sustainable in law or petitioners have to avail the alternate remedy available under the PMLA.
Therefore, this Court holds that the writ petitions are not maintainable before this Court and they are dismissed. The petitioners, if so advised, are at liberty to approach the Hon'ble Supreme Court of India for redressal of their grievance. In the circumstances of the case, there shall be no order as to costs.
-
2015 (6) TMI 1103
Sale - whether removal of Beedi leaves from the forest under the trade permit granted under the A.P. Minor Forest Produce (Regulation of Trade in Abnus Leaves) Rules, would amount to sale and attracts liability of payment of Sales Tax?
Held that: - by judgment in the case of State of Andhra Pradesh v. ITC Bhadrachalam Paper Boards Division, Khammam District [2014 (12) TMI 998 - ANDHRA PRADESH HIGH COURT], Court had specifically posed a question in relation to the Bamboo, whether removal of forest produce would amount to sale. This Court held that there is no sale involved - the question is answered in favour of the Assessee and against the Revenue - revision application dismissed.
-
2015 (6) TMI 1102
Restoration of petition - Natural justice - opportunity of personal hearing u/s 22(4) of the TNVAT Act? - Held that: - on the limited score that the impugned orders have been passed in utter violation of Section 22(4) of the TNVAT Act, which contemplates an opportunity of personal hearing to the petitioners, this Court without going into the merits of the matter, setting aside the impugned orders, remand the cases back to the file of the respondent for fresh consideration on merits and in accordance with law, after giving an opportunity of personal hearing to the petitioners - petition allowed.
-
2015 (6) TMI 1101
Rectification application u/s 37 - carpet - exemption from tax - unaccounted stock of carpet - An application u/s 37 was moved prima facie on the plea that order u/s 72(3) of compounding the case was not proper and that a mistake apparent on the face of record has crept in and it needs rectification - Whether the carpets manufactured by the petitioner are not exempt from tax as per the judgment of Supreme Court in Ess Dee Carpet Enterprises v. Union of India [1989 (12) TMI 353 - SUPREME COURT] decided on December 7, 1989? - Held that: - rectification implies the correction of an error or removal of defects or imperfections and could not be used to appreciate the evidence of new facts which were not placed earlier. Rectification implies an error, mistake or defect which after rectification is made right.
The order dated August 16, 1997 attained finality and at least there was no mistake apparent under section 37 in the order dated August 16, 1997 which needed rectification and this was rightly rejected by the assessing officer. The assessee in the garb of application under section 37 in fact wanted review of the order which is impermissible.
Reliance was placed upon the judgment rendered in the case of Ess Dee Carpet Enterprises v. Union of India [1989 (12) TMI 353 - SUPREME COURT] which in my view, is distinguishable, and even does not touch upon the controversy in hand, inasmuch as in that case, the honourable apex court was considering matter relating to the Employees Provident Fund and Misc. Provision Act - Even the said judgment only speaks of textile and how carpet comes within the definition of "textile" has even not been pointed out by the counsel for the assessee during the course of arguments. Merely mentioning that carpet is a textile and is exempt, does not bear out either from the record or from the submissions made by the counsel for the petitioner.
Once the excess stock was found, admitted by the assessee an application for composition (compounding) having been moved which was accepted and attained finality, no mistake has been noticed at least in the order passed on August 16, 1997 which in my view, has rightly been rejected by the assessing officer and accordingly the present petition fails - decided against the Assessee.
............
|
9911796707
