|
Advanced Search Options
Case Laws
Showing 181 to 200 of 1967 Records
-
2014 (1) TMI 1789
Imposition of penalty u/s 76, 77 and 78 - whether the activity undertaken by the appellant is covered under the category of renting of immovable property or the category of Business Auxiliary Service? - Held that: - The Larger Bench of this Tribunal held that it depends on the facts of the each case where providing the space by the appellant to the Financial Institutions is covered under Business Auxiliary Service or renting of immovable property service - when the issue of taxability was in dispute, therefore, penalties u/s 76 and 78 are not warranted - penalty set aside - appeal allowed - decided in favor of appellant.
-
2014 (1) TMI 1788
Waiver of pre-deposit - promotional activities - Business auxiliary services or not - Held that: - keeping in view the definition of Business Auxiliary Service and also keeping in view the findings made by the adjudicating authority himself that by undertaking promotional activity, the appellant is promoting his own product, we are of the view that the appellant has a good prima facie case in its favor - we dispense with the condition of pre-deposit of duty and penalty - petition allowed - decided in favor of petitioner.
-
2014 (1) TMI 1787
Services received from the foreign agencies - classified as scientific or technical consultancy services or management or business consultancy service? - Held that: - Services provided by the overseas banks to the Petitioner clearly fall within the ambit of ‘banking and financial’ services defined in Section 65(12) and enumerated to be a taxable service u/s 65(105)(zm) of the Act. Banking or financial services are inter alia defined to mean other financial services, namely, transfer of money indulging telegraphic transfer, mail transfer and electronic transfer, letter of credit, bill discounting facilities and alike provided by a banking company or a financial institution including a non-banking company or a financial institution including a non-banking company or any other body corporate or commercial concern - On a true and fair construction of the services provided by the overseas banks, through the intervention of the Petitioner’s local bank, it cannot be gainfully contested that the overseas bank provided banking and financial services to the Petitioner.
Appeal rejected - decided against appellant.
-
2014 (1) TMI 1786
Valuation - whether there is no liability to pay customs duty on facilitation charges, demurrage charges, bank charges and survey fees incurred by the assessee while importing furnace oil to its factory premises? - Held that: - The dispute in question does not fall within the jurisdiction of the High Court u/s 130 of the Act - the appeal filed is not maintainable and the assessee has to approach the Apex Court u/s 130E of the Act - appeal dismissed - decided against appellant.
-
2014 (1) TMI 1785
Levy of duty - Some of the corrugated boxes which were damaged during the process of packing of the final products were cleared as scrap without payment of duty during the period from April, 2004 to February, 2005 - whether duty can be demanded on these damaged boxes - Held that: - In any case the duty on inputs damaged during the process of manufacture cannot be demanded since it is nobody’s case that the same are products manufactured by the appellant - appeal allowed - decided in favor of appellant.
-
2014 (1) TMI 1784
Amendment in IGM - imposition of redemption fine and penalty - initially the goods were consigned to M/s. DM Sons Metal Pvt. Ltd., who did not accepted the cargo therefore, the supplier sold the goods to the appellant M/s. Turakhia Ferromet Pvt. Ltd. - Held that: - It is a case wherein the shipping line sought amendment in IGM only to change the name of the consignee and no other amendment regarding change in either the gross weight or the number of coils. In these circumstances, the observation of the learned Commissioner that it may be an effort to suppress the transaction value is not sustainable without producing any evidence on record that there may be variation in transaction value or there is contemporaneous import of such items wherein the value is higher - fine and penalty set aside - appeal allowed - decided in favor of appellant.
-
2014 (1) TMI 1783
CENVAT credit - crates and glass bottles - forged invoices - Held that: - As the said goods were required by the present respondents, their sister concern sent the same to the present respondents along with the invoice after re-writing their name. There is no dispute that the inputs were received by the respondents and used in the manufacture of the final product - credit allowed - appeal rejected - decided against Revenue.
-
2014 (1) TMI 1782
Deduction u/s 80IB - whether the activities of the units do not constitute manufacture or production of any articles or things as specified in section 80-IB? - Held that:-
ITAT has been consistently granting relief to the assessee by holding that the activity of the assessee is a manufacturing activity and therefore, it is eligible for deduction u/s 80IA of the Act. As well, no contrary material has been brought to our notice by the Revenue to take a different view than that of the earlier views taken by the ITAT. Therefore, in these circumstances, following the principle of consistency, we are of the considered opinion that the assessee should get relief and accordingly the grounds raised by the Revenue are dismissed.
Income derived on the margin money for obtaining bank guarantee - nature of Income - Held that:- Interest derived on margin money for the purpose of obtaining bank guarantee should be assessed as "business income" instead of "income from other sources".
Benefit of netting off of interest income against the expenditure - Held that:- Both the parties stated that the said claim of the assessee needs to be considered in favour of the assessee in view of the binding judgment of the Hon‟ble Apex Court in the case of ACG Associated Capsules P. Ltd vs. CIT [2012 (2) TMI 101 - SUPREME COURT OF INDIA] wheren held Ninety per cent of not the gross interest/rent but only the net interest/rent, which has been included in the profits of the business of the assessee as computed under the heads ‘PGBP’ is to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business. Accordingly, we direct the AO to apply the said judgment on considering the facts of the present case after reasonable opportunity of being heard to the assessee as per the principles of the natural justice.
-
2014 (1) TMI 1781
Rectification of mistake - wrong computation of deduction of section 10B - Tribunal did not consider the decision of the jurisdictional High Court in the case of Galaxy Granites (P) Ltd. Vs. CIT (2012 (9) TMI 68 - MADRAS HIGH COURT ) as submitted by the Departmental Representative - Held that:- The Hon’ble Supreme Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008 (9) TMI 11 - SUPREME COURT ) has held that failure to apply judgement of jurisdictional High Court is a mistake apparent on record and the Tribunal has jurisdiction to rectify under section 254(2) of the Act. Keeping in view the decision of the Hon’ble Apex Court, we recall our order passed for the assessment year 2008-09 to decide it afresh after hearing both the parties. Therefore, the impugned order is recalled and the appeal is restored for the limited purpose of disposing of ground no.3.
-
2014 (1) TMI 1780
Scheme of amalgamation - Held that:- Transferor Company No.1 has 02 equity shareholders and 01 preference shareholder. All the shareholders (equity and preference) have given their written consents/NOCs to the proposed Scheme. The written consents/NOCs have been placed on record. The same have been examined and found in order.
In view of the foregoing, the requirement of convening the meetings of equity and preference shareholders of Transferor Company No.1, to consider and if thought fit, approve, with or without modifications, the Scheme, is dispensed with.
Transferor Company No.1 does not have any secured or unsecured creditor. Therefore, the question of requirement of convening meetings thereof does not arise.
Transferor Company No.2 has 02 equity shareholders. Both the equity shareholders have given their written consents/NOCs to the proposed Scheme. The written consents/NOCs have been placed on record. The same have been examined and found in order.
In view of the foregoing, the requirement of convening the meeting of the equity shareholders of Transferor Company No.2, to consider and, if thought fit, approve, with or without modification, the proposed Scheme, is dispensed with.
Transferor Company No.2 does not have any secured creditor. Therefore, the question of requirement of convening a meeting thereof does not arise.
Transferor Company No.2 has 01 unsecured creditor. The sole unsecured creditor has given its written consent/NOC, to the proposed Scheme. The written consent/NOC has been placed on record. The same has been examined and found in order.
In view of the foregoing, the requirement of convening the meeting of the unsecured creditor of Transferor Company No. 2, to consider and, if thought fit, approve, with or without modification, the proposed Scheme, is dispensed with.
The Transferee Company has 08 equity shareholders. All the equity shareholders have given their written consents/NOCs, to the proposed Scheme. The written consents/NOCs have been placed on record. The same have been examined and found in order.
In view of the foregoing, the requirement of convening the meeting of the equity shareholders of the Transferee Company, to consider and, if thought fit, approve, with or without modification, the proposed Scheme, is dispensed with.
The Transferee Company does not have any secured or unsecured creditor. Therefore, the question of requirement of convening meetings thereof does not arise.
-
2014 (1) TMI 1779
Interest expenditure - Held that:- Respectfully following the findings of the Tribunal this issue is restored back to the files of the AO to follow the directions of the Tribunal in A.Y. 2005-06 and 2006-07 in respect of rejection/reliability of the books of accounts and the proposed adjudication of the Ld.CIT(A) in view of the said direction may have direct impact on the issue of the impugned liability, we set aside this issue also to the files of the Ld.CIT(A) to adjudicate afresh along with the adjudication of the respective ground pertaining to the rejection/reliability of the books of accounts
Charging of interest u/s. 234A, 234B & 234C - Held that:- Tribunal in the case of Topaz Holding Pvt. Ltd [2013 (10) TMI 1067 - ITAT MUMBAI] held that the chargeability of interest u/s. 234A, 2324B and 234C of the Act does not fall within the domain of the Special Court (Control of offences relating to transactions in securities) at 1992. Since levy of interest is mandatory and is very much applicable in the case of notified persons, ground No. 1 (d) and 1 (e) are allowed. Needless to mention that the levy of interest would be consequential.
-
2014 (1) TMI 1778
Clearance made by one 100% EOU to another 100% EOU - whether the respondent is eligible for refund of accumulated CENVAT credit arising because of deemed exports made to 100% EOUs within India? - Held that: - the issue is squarely covered by the decision of the Hon’ble High Court of Gujarat in the case of CCE Vs Shilpa Copper Wire Industries [2010 (2) TMI 711 - GUJARAT HIGH COURT], where it was held that the deemed exports have to be treated at par with physical exports for granting refunds of accumulated credit under N/N. 5/2006 - appeal rejected - decided in favor of respondent.
-
2014 (1) TMI 1777
Revision u/s 263 - whether special privilege paid to the government can be allowed as expenditure? - it is contention of the assessee that the assessee having acted as an authority on behalf of the State or as an agent of the state as per sec. 68A of the State Excise Act, the income forms ale of IMFL is the income of the State, hence, cannot be subjected to income-tax in view of restrictions imposed under Article 289(1) of the Constitution of India - Held that:- The fact that the Corporation is allowed to operate an over-draft account with a limit of ₹ 100 crore per month proves that the deposit of sale proceeds of liquor made in the PD account is again ploughed back to the assessee in the form of overdraft account. That besides the contention of the assessee that sale proceeds never reaches the assessee is also not acceptable as the aforesaid GOMS instructs the depot managers of the assessee corporation to obtain demand drafts in favour of government of A.P. This clearly proves that only after the sale proceeds reach the assessee corporation, demand drafts are to be made in favour of Government of A.P for depositing in the P D Account. In this view of the matter, there cannot be any diversion of income by overriding title. For the same reason, the payment of surplus/margin /privilege fee etc., by whatever name called is only parting of the profit of the assessee corporation to the State. In the circumstances, it cannot be anything else but application of income and therefore not allowable as an expenditure.
Though it may be a fact that the assessee corporation is carrying out the wholesale distribution of IMFL as an authority of government or on behalf of government but, that cannot be a reason for claiming immunity from taxation under the provisions of I T ACT in view of Article 289(2) of the Constitution.
Though the learned AR had submitted that the ratio laid down in case of APHB (2013 (10) TMI 542 - ITAT HYDERABAD) would not be applicable to the facts of assessee’s case in view of factual difference, but on deeper examination, we are of the view that principles decided therein would also apply to the facts of the present case. In aforesaid view of the matter, all the contentions of the assessee with regard to non taxability of the amount paid towards privilege fee and special privilege fee etc., fails.
The assessee has also assailed the order passed by the CIT (A) by contending that since the Tribunal had directed the CIT (A) only to consider the amendment she was not competent to the validity of amendment. However, such contention of the learned AR is not acceptable. Even if we accept that the CIT (A) is not competent to go into the validity of the amendment but it has no direct bearing on the ultimate conclusion reached by her. The assessee has raised a further ground that the CIT has dropped the proceeding u/s 263 of the Act for the assessment year 2001-02 therefore a different view could not have been taken by the department for the impugned assessment year. This contention of the assessee is not acceptable as principles of res judicata do not strictly apply to the income-tax proceedings.
Even otherwise also as can be seen from facts on record, the CIT has revised the assessment order by invoking his powers u/s 263 of the Act for the assessment year 2006-07. Therefore, the assessee’s contention that proceedings initiated u/s 263 for the assessment year 2001-02 having been dropped, different view can be taken is not acceptable.
It was also contended by the learned AR that the Tribunal had remitted the matter back to the CIT (A) for a limited purpose of examining the amendments made to Excise Act by inserting new provisions 4A, 4B and 4C. therefore the CIT (A) is not competent to go into the other aspects of application of income and disallowance of expenditure as the Tribunal has rejected such findings of CIT (A). On a perusal of the order passed by the Tribunal while remanding the matter back to the CIT (A), it is to be noted that the Tribunal has directed the CIT (A) to decide the matter de novo after taking into consideration the amendments made to the Excise Act. Nowhere the Tribunal has made any observation with regard to the merits of the addition. Therefore the contention of the learned AR is not acceptable. - Decide against assessee
-
2014 (1) TMI 1776
Computation of income from house property - CIT(A) directing the AO not to take the notional interest on interest free deposit while computing the let out value of the property for computation of income from house property - Held that:- The issue is fully covered in favour of the assessee by the decision of the Tribunal in assessee’s own case for A.Y. 2006-07 modify the impugned order of the Ld. CIT(A) on this issue and direct the AO to accept the income from house property declared by the assessee adopting the municipal ratable value as annual letting value of its property. - Decided in favour of assessee.
-
2014 (1) TMI 1775
Imposition of Penalty under Section 114 of the Act ibid - penalty on CHA, who admittedly filed the referred shipping bills for export purpose - Held that: - the appellant authority has given findings in favour of the CHA. As such it cannot be appreciated that having held that CHA is not involved in the export freight, penalty of ₹ 5,000/- is being imposed upon him. Inasmuch as, as per the findings of Commissioner himself the CHA has not involved. I find no justifiable reason to impose penalty of ₹ 5,000/- upon him. The same is accordingly set aside - appeal allowed - decided in favor of appellant.
-
2014 (1) TMI 1774
MAT credit to amalgamated company - AO denied the claim as the provisions of section 115JA and section 115JB of the Act are self contained sections and there is no provision under this section to allow credit of an amalgamating entity in the hands of the amalgamated entity - Held that:- After amalgamation the assessee company is entitled to all the assets, claims, etc. of the erstwhile company, which is also supported by Hon'ble High Court order in this regard. Further, when the assessee company is now being assessed in place of erstwhile company and the TDS credit pertaining to the erstwhile company is being given credit to the assessee company, there is no reason why a different treatment should be given to the MAT credit available pertaining to the erstwhile company. We do not agree that there is need for specific mention in this regard in Section 115JAA as the Carry forward of MAT credit of erstwhile company by amalgamated company is in-built in the scheme of amalgamation as well as the scheme of MAT credit.
In view of the above, we find no reason to interfere with the order passed by the ld. CIT(Appeals) in allowing the claim - Decided in favour of assessee.
-
2014 (1) TMI 1773
Opportunity to the petitioner to cross examine witnesses as prayed for in application under Section 11 of the Prevention of Money-Laundering Act - Held that:- When the Adjudicating Authority under PMLA is seized of the matter, no interference is called for in the present writ petition. However, petitioner shall be at liberty to raise this grievance in the event it is aggrieved by the final order to be passed by Adjudicating Authority under PMLA.
-
2014 (1) TMI 1772
Adhoc disallowance @ 50% of the financial charges invoking provisions of section 40A(2)(b) - payment to related parties - Held that:- The undisputed fact remains that the payments have been made to the related parties. It is also settled position of law that for invoking the provisions of section 40A(2), the AO should form an opinion that the charges which have been paid to the related parties are unreasonable and excessive. In the present case, the AO had disallowed the claim on the basis that payments of financial charges aggregating to ₹ 20,70,000/- to the persons specified under section 40A(2)(b) of the Act is somewhat unreasonable having regard to the legitimate needs of the assesseecompany’s business vis-à-vis the benefits derived by or accruing to the assessee-company as a result of such payments of financial charges because the basis of quantification of such payments are not clear and instances of utilization of such services do not fully justify the payment.
This finding of the AO was confirmed by the ld.CIT(A) on the basis that the total bank guarantee for the period 1.4.2007 to 31.3.2008 was ₹ 56,500,000/- 1% of such amount comes to ₹ 5,65,000/-. Thus, this a reasonable amount to be paid as guarantee commission to the related parties, on the basis of such payments made by the appellant itself in the earlier year. Balance amount allowed by the A.O. amounting to ₹ 4,70,000/- can be attributed to the amount paid by the appellant on account of interest free fund provided by the related parties from time to time. In page-4 of the paper-book No.2, the assessee has given the utilization of sources under LLMS guaranteed by the parties to whom the financial charges paid. Since this information was not before the authorities below, thus this issue is to be restored to the file of the AO to decide the same afresh in the light of the information furnished - Decided in favour of assessee for statistical purposes only.
-
2014 (1) TMI 1771
Anticipatory bail - invoking jurisdiction of the High Court under Article 226 - Held that:- It compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause (b) of sub-section (1) of the amended Section 41. But, all the same, unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41A, could be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty guaranteed under Article 21 of the Constitution of India.
There is unanimity in the view that in spite of the fact that Section 438 has been specifically omitted and made inapplicable in the State of Uttar Pradesh, still a party aggrieved can invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, being extraordinary jurisdiction and the vastness of the powers naturally impose considerable responsibility in its application. All the same, the High Court has got the power and sometimes duty in appropriate cases to grant reliefs, though it is not possible to pin-point what are the appropriate cases, which have to be left to the wisdom of the Court exercising powers under Article 226 of the Constitution of India.
As also faced with the situation that on dismissal of the writ by the High Court under Article 226 of the Constitution of India, while examining the challenge for quashing the FIR or a charge-sheet, whether the High Court could grant further relief against arrest for a specific period or till the completion of the trial. The language of Article 226 does not permit such an action and once the Court finds no merits in the challenge, writ petition will have to be dismissed and the question of granting further relief after dismissal of the writ, does not arise. Consequently, once a writ is dismissed, all the interim reliefs granted would also go.
This Court has already passed an interim order on 1.3.2013 granting bail to the appellant on certain conditions. The said order will continue till the completion of the trial. However, if the appellant is not co-operating with the investigation, the State can always move for vacating the order. The appeal is accordingly dismissed as above.
In appropriate cases the High Court is empowered to entertain the petition under Article 226 of the Constitution of India where the main relief itself is against arrest. Obviously, when provisions of Section 438 of Cr. P.C. are not available to the accused persons in the State of Uttar Pradesh, under the normal circumstances such an accused persons would not be entitled to claim such a relief under Art. 226 of the Constitution. It cannot be converted into a second window for the relief which is consciously denied statutorily making it a case of casus omissus. At the same time, as rightly observed the High Court cannot be completely denuded of its powers under Article 226 of the Constitution, to grant such a relief in appropriate and deserving cases; albeit this power is to be exercised with extreme caution and sparingly in those cases where arrest of a person would lead to total miscarriage of justice.
-
2014 (1) TMI 1770
Capital gain computation - STCG OR LTCG - selection of date - Held that:- The “date of allotment” is reckoned as the date for computing the holding period for the purpose of capital gains. The date of allotment in this case being 19.11.2001 and the date of sale is 23.8.2006, therefore, the holding period is much more than 36 months. In this case, the gains earned by the assessee on the sale of flat have to be computed as capital gains. Without prejudice, even if the date of possession, being 14.8.2003, is considered; the assessee is still entitled to the benefits of the Long Term Capital Gains. Therefore, in our opinion, order of the CIT (A) does not call for any interference. - Decided in favour of assessee
Determining cost of acquisition of flat for the purpose of computing the capital gains - Held that:- Finding of the CIT (A) is very cryptic and has not gone into the relevant facts of the said contributions to corpus fund as well as for meeting the charges, the onetime payments in connection with the acquisition of the said flat. After hearing both the parties, we are of the opinion that the assessee has a strong case. However, the CIT (A) has not adjudicated the issue by passing a speaking order, therefore, for want of reasoned order, we set aside the issue to the files of the CIT (A) for deciding the issue afresh in a time bound manner i.e., within a couple of months from the date of receipt of this order. Assessee shall be granted a reasonable opportunity of being heard to the assessee during the set aside proceedings. Accordingly, grounds raised by the assessee are allowed for statistical purposes.
............
|
9911796707
