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Showing 181 to 200 of 1499 Records
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2015 (1) TMI 1325 - CESTAT, BANGALORE
Benefit of N/N. 63/95-CE dated 16.03.1995 - goods manufactured by the appellant, which were cleared to M/s. HAL, were further supplied to defence, the same were being cleared by the appellant without payment of duty - denial of benefit of notification on the ground that the notifications in question grant exemption to M/s. HAL and not to the vendors of HAL - time limitation - Held that: - certificates handed over to the appellant duly signed by CSIO or aeronautic development agency and based on which the appellant availed the benefit of notification. Even if the fact that they were not signed by the proper officer is admitted, no suppression or mis-declaration can be attributed to the assessee so as to invoke the longer period of limitation - as is seen from the certificate, the person signing the same is holding the rank in pay scale higher than the Deputy Secretary to Government of India in which case even though the certificates were not signed by Deputy Secretary, the same should be accepted. Further the Superintendent in his letter dated 28.10.2013 has also verified the said certificates and has reported that the same appears to be adequate - demand cannot be held sustainable on the point of limitation itself - appeal allowed by way of remand.
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2015 (1) TMI 1324 - ITAT PANAJI
Penalty u/s 271(1)(c) - Held that:- AO has not brought out any specific charge for which the penalty has been imposed on the assessee u/s 271(1) (c) of the Act. He has not brought out whether the assessee has concealed the particulars of income or whether the assessee has furnished inaccurate particulars of income.
None of the decision of Hon’ble Supreme Court as relied by the AO, it has been held that the penalty u/s 271 (1) (c) is mandatory or automatic wherever the addition or disallowances are made by the AO. The assessing officer merely observed that the penalty is mandatory as he was fully aware of that no charge as specified u/s 271 (1) (c) was leviable against the assessee. On this basis also, the penalty was wrongly levied just for the purpose of levying the penalty. We, accordingly set aside the order of CIT(A) and delete the penalty imposed u/s 271(1)(c). - Decided in favour of assessee
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2015 (1) TMI 1323 - SC ORDER
Validity of Show-cause Notice - Two show cause notices dated 21.4.2010 and 20.4.2011 were issued for the period April 2008 to March 2011 alleging that the assesee had provided Business Auxiliary Service and had failed to remit tax on amounts received for providing such service - the decision in the case of COMMISSIONER OF SERVICE TAX Versus ITC LTD. [2015 (1) TMI 810 - DELHI HIGH COURT] contested - matter was remanded for fresh consideration - appeal dismissed.
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2015 (1) TMI 1322 - ALLAHABAD HIGH COURT
Maintainability of appeal - rejection on the ground of non-compliance of the interim order - Held that: - If the appellant has not complied with the interim order, the Tribunal should have vacated the interim order and rejected the stay application but non-compliance of the interim order cannot be a ground to reject the appeal of the appellant, which in our opinion was required to be adjudicated on merits - appeal restored - decided in favor of appellant.
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2015 (1) TMI 1321 - CESTAT NEW DELHI
Benefit of N/N. 43/2001-C.E. (N.T.), dated 26-6-2001 - procurement of duty free Acrylic Knitted Panels for use in the manufacture and export of “Suede Leather Garments with Acrylic Knitted Panels” - denial of benefit on the ground that the respondents had not submitted application in Form ARE-2 in respect of garments exported.
Held that: - There is no dispute that conditions of exemption notification should be construed strictly - In the present case, the condition of exemption notification is that the duty free input has to be used in the exported goods. It is evident that the duty free inputs were used in the manufacture of export goods and duly recorded in the registers and therefore, the conditions of notification are substantially complied with by the respondent - appeal rejected - decided in favor of respondent-assessee.
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2015 (1) TMI 1320 - CESTAT BANGALORE
100% EOU - refund claim - appellant could not have filed the claim every month relying upon Paragraph 2 which deals with filing of such refund claims, refund claim has been rejected - Held that: - A 100% EOU can file refund claim for each calendar month. The quantum of export principle is applicable only for domestic units and if intention was to incorporate such a condition, it would have been mentioned in Paragraph 2(b) also. In the absence of such mention, the clause cannot be read into paragraph ‘b’.
When the deemed exports are made, it results in accumulation of Cenvat credit also - value of deemed exports cannot be taken into account also cannot be accepted.
Appeal allowed - decided in favor of appellant.
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2015 (1) TMI 1319 - CESTAT NEW DELHI
SSI exemption - use of brand name of others - Held that: - the appellants used the brand name “FAMCOM” which is owned by other unit M/s. Farm Manufacturing Co. Delhi, a proprietorship firm. One of the Directors of the appellant company is the proprietor of the said unit. It is also contended by the appellant that after clubbing the value of the clearances of both the units are within the prescribed limit of exemption during the relevant period - exemption allowed - appeal allowed - decided in favor of appellant.
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2015 (1) TMI 1318 - CESTAT NEW DELHI
Manufacture - fabrication and installation of doors and windows at site - demand of duty - whether the process amounts to manufacture, satisfying the twin test of mobility and marketability? - Held that: - aluminium doors and windows are not goods. In the manner in which they have been fixed to the civil structural at the site they get embedded to the structure and cannot be removed without damage to the glasses. The process does not amount to manufacture and does not satisfy the test of marketability and movability - demand set aside - appeal rejected - decided in favor of assessee.
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2015 (1) TMI 1317 - ITAT JAIPUR
Penalty u/s 271(1)(c) - assessee could not furnish some of the vouchers and WIP stock details as finely required by him - Held that:- It has not been disputed that the books of account are audited and the expenses are incurred at various sites. The additions are as a result of estimation based on assessee's efforts to get the proceedings settled with a pertinent request to make reasonable addition. The assessee no where agreed for rejection of books and same does not amount to un-quantified surrender in terms of facts of Mak Data (P) Ltd. vs. CIT (2013 (11) TMI 14 - SUPREME COURT). Besides WIP stock addition leads to increase in the opening stock of next year. We are of the view that decisions of Hon'ble Supreme Court in the cases of CIT vs. Reliance Petro Products (P) Ltd. (2010 (3) TMI 80 - SUPREME COURT) and Hindustan Steel Ltd. vs. State of Orrisa (supra) are squarely applicable to the assessee case Therefore, in the facts and circumstances of the case, we are inclined to delete the penalty imposed u/s 271(1)(C) by the lower authorities. - Decided in favour of assessee.
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2015 (1) TMI 1316 - CESTAT NEW DELHI
Classification of goods - Benefit of exemption under N/N. 6/2006-CEX as amended - MP-3 players - denial on the ground that the goods imported were CD player having an additional feature for playing MP-3 format - whether the impugned goods are CD receivers or MP-3 players? - Held that: - The Commissioner (Appeals) has categorically stated that as per the catalogue goods have been described as CD receiver with front USB and AUX/CD received with front AUX. The write up in the catalogue also stated that “you can also play/enjoy MP-3”. Thus, it is evident that the goods cannot be called MP-3 players. As the exemption under N/N. 21/2002-Cus., as amended and N/N. 6/2006-CEX as amended is available to MP-3 and MP-4 MEPG 4 players with or without radio or video reception facility, it is evident that the impugned goods are not eligible for the benefit of the said notifications - appeal rejected - decided against appellant.
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2015 (1) TMI 1315 - ITAT MUMBAI
Penalty u/s.271(1)(c) - disallowance made under of Section 94(7) - Held that:- At the time of assessment proceedings, when the details of purchase and sale of shares and units were called for in the course of ordinary hearing, the assessee furnished complete particulars of transactions. During these proceedings, the said mistake was realized and the assessee agreed before the A.O. to disallow the said amount.
Since assessee has agreed for disallowance, no show cause notice was issued by the A.O. in this regard. The disallowance was made as per the working submitted by the appellant, which has been accepted by the A.O. Also, against the said disallowance, no appeal is filed by the assessee. It is a case of an inadvertent mistake made by the assessee, and the assessee agreed for disallowance at the time of assessment proceedings. Accordingly, no penalty u/s.271(1)(c) of the Act was warranted. Putting these facts to the proposition of law discussed by coordinate bench in the case of City Group Global Markets India Pvt. Ltd [2011 (12) TMI 658 - ITAT MUMBAI] , we do not find any merit in the penalty so imposed by the AO u/s.271(1)(c) of the Act with respect to the disallowance made under of Section 94(7) of the Act. - Decided n favour of assessee
Penalty imposed on account of addition made for legal and professional fee - Held that:- We found that quantum additions so made has been restored back by the CIT(A) to the file of AO with a direction to verify the nature of expenditure which is clear from the order of CIT(A). In view of the above, penalty imposed in respect of these additions which have been set aside, is also restored to the file of AO for deciding afresh after passing the order to give effect to the direction of the CIT(A) with reference to such addition. We direct accordingly.
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2015 (1) TMI 1313 - ITAT MUMBAI
Addition of provision of gratuity - Held that:- The relief has been granted by Ld. CIT(A) on the ground that the assessee has made the payment of impugned sum in subsequent year. Ld. AR of the assessee was required to refer to the documents on the basis of which such findings has been recorded by Ld. CIT(A). Ld. AR was not able to submit the relevant documents. In such circumstances, we are left with no alternative other than to restore this issue to the file of AO to verify such contention of the assessee and if it is found that the impugned amount is based upon the actuarial valuation report and it is paid in subsequent year then no disallowance on this account should be made.
Deduction of depreciation u/s. 32 available to a charitable Trust - Held that:- CIT(A) followed the decision of Hon'ble Bombay High Court in assessee’s own case for A.Y. 2003-04 [2011 (2) TMI 1505 - BOMBAY HIGH COURT] in holding that the assessee is entitled to depreciation and does not amount to double deduction - Decided in favour of assessee.
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2015 (1) TMI 1312 - MADRAS HIGH COURT
Validity of assessment order dated 08.12.2014 - the petitioner has got time to file the writ appeal in Form WW till 31st December and before completion of that period, the authority has passed the order in October itself - section 63-A of the Tamil Nadu Value Added Tax Act, 2006 - Rule 16-A of the Tamil Nadu Value Added Tax Rules, 2007 - Held that: - A reading of section 63-A of the said Act and Rule 16-A makes it clear that the respondent will have to wait till the expiry of the period. Even though the petitioner has prayed for grant of interim order, I find that there is no purpose in keeping the writ petition pending as the petitioner has got time limit till 31st December, and his turnover is more than rupees one crore as mentioned in Section 63-A for which time limit has been given upto 31st December in the aforesaid rule.
Petition allowed - assessment order not valid - decided in favor of petitioner.
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2015 (1) TMI 1311 - KERALA HIGH COURT
Imposition of penalty under Sub-section (7) of Section 22 of the Act - the assessment made under Sub-section (1) of Section 25 of the Act - presumptive taxation - eligibilty for input tax credit by virtue of the amendment made to Sub-section (5) of Section 6 of the Act, by the Finance Act of 2011 - no concealment of turnover - no willful disobedience of the provisions of the Act - Held that: - A reading of Paragraph 385 of the Budget Speech 2014-15 makes it abundantly clear that, presumptive tax is made available to small dealers subject to certain conditions and in case of violation of any of such conditions, such dealers will be assessed for payment of tax as a normal dealer and they have to pay tax accordingly. As the presumptive tax dealers find it difficult to obtain input tax credit and special rebate while assessments are initiated denying their presumptive status, the Government felt the need to amend the existing provisions in the Act, which was given effect by inserting Section 25C to the Act, with effect from 1/4/2005, by the Kerala Finance Act, 2014. Going by Section 25C of the Act, in any assessment or other proceeding initiated by the assessing authority denying the eligibility of a dealer to pay presumptive tax for the violation of conditions enumerated in sub-section (5) of section 6, such dealer shall be granted input tax credit or special rebate, as the case may be. In our view, Section 25C of the Act will not in any manner absolve any dealer paying presumptive tax, against whom any assessment or other proceeding are initiated by the assessing authority denying the eligibility to pay presumptive tax for the violation of conditions enumerated in sub-section (5) of section 6, from being assessed for payment of tax as a normal dealer or from imposing any penalty under Sub-section (7) of Section 22 of the Act. It only enables such dealers to claim input tax credit on the turnover in excess of 60 lakh rupees, or to claim special rebate, as the case may be.
The appeals filed by the assessee before the Tribunal ended in dismissal by orders dated 28/2/2014. On receiving the assent of the Governor to the Kerala Finance Bill, 2014, the Kerala Finance Act, 2014, was published in the Kerala Gazette on 23/7/2014, and Section 25C to the Act came into force with effect from 1/4/2005. In such circumstances, we are of the considered view that, the entitlement of the assessee for input tax credit for the period in dispute, on the turnover in excess of 60 lakh rupees, requires to be considered by the assessing authority, in terms of Section 25C of the Act.
For the limited purpose of considering the entitlement of the assessee for input tax credit for the period in dispute, on the turnover in excess of 60 lakh rupees, the matters are remanded to the assessing authority, who shall pass appropriate orders, with notice to the assessee and after giving the assessee a reasonable opportunity to produce materials, if any, in support of its claim for input tax credit - appeal allowed by way of remand.
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2015 (1) TMI 1310 - GUJARAT HIGH COURT
Money Laundering - Offence under PML Act - bail application - Held that:- Assistant Director of Directorate of Enforcement – respondent No.3 is competent and authorized officer under PML Act to order arrest under Section 19(1) of PML Act, and therefore, again there is no scope to read down, lay down, expound, interpret and deliberate upon the scope and perspective of Section 19 of PML Act in light of Section 49(3) read with the Rules notified under Notification GSR 446(E) dated 01.07.2005.
Nexus is established between the criminal activity relating to schedule offence and the proceedings thereof for the offences of money laundering as defined under Section 3 read with Section 2(1)(u) of the PML Act. That during the process and investigation carried out by the Directorate of Enforcement, the petitioners are found to have been involved in money laundering racket and not naming the petitioners in the offences registered initially by investigating agency is now being prosecuted for the involvement under Section 3 of the PML Act by Directorate of Enforcement.
The grounds of arrest was communicated to the accused after due medical check up as undertaken and he was also produced within the stipulated time before the designated Judge under PML Act at Ahmedabad and no complaint or grievance was ever made by the petitioners about any kind of illtreatment or coercion by the offices of Directorate of Enforcement. That in execution of arrest, all procedural requirements were complied with and the accused has signed receipt of grounds for arrest and even a friend of the accused viz. Mr. . Amit Solanki, C.A. Was handed over the belongings and signed the inventory annexed to the arrest memo. That learned Designated Judge was pleased to grant custody of the petitioners for a period of 4 days and in a pro in a procedure to remand etc. and rejection of prayer of temporary bail on 09.09.2014 by the designated court and filing of prosecution complaint dated 29.10.2014 against the petitioner and competency of the Assistant Director – respondent No.3 to order arrest in compliance of Section 19(1) of PML Act surface on record, which is again in consonance with the safeguards enshrined under Article 22(1) of the Constitution of India and we find no breach of any procedural enumerated either under Article 19(1)of the PML Act or under Article 22(1) of the Constitution of India.
It cannot be said that order of arrest suffers from vice of any illegality on the ground that it is ordered by the incompetent or unauthorized and there is no failure in adhering procedure laid down under Seton 19(1) of the PML Act and further no breach to the guidelines laid down in the case of D.K.Basu [1996 (12) TMI 350 - SUPREME COURT ] and it cannot be said that the petitioners are detained or confined illegally warranting issuance of writ of Habeas Corpus. At the same time respondent No.3 – Assistant Director of Enforcement is competent and authorized to issue order of arrest under Section 19(1) of the PML Act and no case is made out to issue writ of quo warranto as prayed for.
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2015 (1) TMI 1309 - KARNATAKA HIGH COURT
Deduction u/s 10A - benefit of carry forward of unabsorbed depreciation or loss - Held that:- assessee is entitled to the benefit of carry forward of unabsorbed depreciation or loss relating to the assessment years when the appellant had opted out of section 10A - Decided in favour of the assessee
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2015 (1) TMI 1308 - ITAT BANGALORE
Penalty u/s 271 - contention of the assessee that there was no mala fide intention on the part of the assessee to justify the levy of penalty - Held that:- It is now settled principle that penalty u/s. 271(1)(c) of the Act is a civil liability and mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities and willful concealment is not an essential ingredient for attracting civil liability. In the case of CIT V Manjunatha Cotton & Ginning Factory (2013 (7) TMI 620 - KARNATAKA HIGH COURT ), cited by the assessee, it has been held that willful concealment is not an essential ingredient for attracting penalty u/s. 271(1)(c) of the Act. This view of the matter, this ground of appeal is not sustainable and is accordingly dismissed.
Penalty on cost of improvement - whether the failure to discharge the onus of proving the claim of expenditure being incurred would entail levy of penalty u/s. 271(1)(c) - Held that:- The levy of penalty has its origin in the return of income filed by the assessee and the inability of the assessee to furnish evidence to support the claim made in the return of income and which has no relation whatsoever to any agreement between revenue and the assessee on this point. In the case on hand, the penalty has not been levied because the addition was an agreed addition but because the assessee could not furnish any evidence to substantiate its claim of having incurred the expenditure, thus we are of the considered view that the decision of the learned CIT(A) in confirming the levy of penalty u/s.271(1)(c) of the Act on this point does not call for any interference by us.
Penalty levied with respect to the disallowance of the claim of exemption under section 54B - Held that:- It is not in dispute that the assessee had not been able to furnish any evidence to substantiate the claim of reinvestment to the extent of ₹ 3,68,14,038 made by him. We find that the disallowance of ₹ 3,68,14,038 was made only because the assessee could not substantiate the claim of reinvestment by producing any material evidence in this regard. The contention that the assessee is unable to produce any evidence because of litigation in the property is hard to accept. As pointed out by the Assessing Officer and the learned CIT (Appeals), the assessee could not furnish any details at all. In the absence of a shred of evidence, it is not possible to accept the contentions of the assessee on the claim of making reinvestment to the extent of ₹ 3,68,14,038. From the above factual matrix, it is amply clear that the assessee has failed to discharge the onus on him to establish with material evidence the claim of having incurred the expenditure on reinvestment.
Interest on repayment of Housing Loan - Held that:- It is not in dispute that the claim for deduction on account of interest on housing loan made in the return of income was admittedly erroneous and this erroneous claim was detected by the Assessing Officer in the course of assessment proceedings. For the reasons discussed and the reasoning given earlier in this order, while dealing the earlier grounds of appeal (supra), the levy of penalty u/s. 271(1)(c) of the Act on this issue is justified.
Assessment of income from layout formation as ‘income from business - Held that:- In the case on hand, the assessee's decision to declare the income from layout formation in the return of income filed on 30.6.2008 as ‘income from capital gain’ was a conscious one. The assessee has not been able to furnish any explanation, supported by material evidence, for the same and therefore, in our view, has not been able to rebut the presumption of concealment. In this view of the matter, we are of the considered opinion that the learned CIT (Appeals) was correct in upholding the action of the Assessing Officer in levying penalty u/s.271(1)(c) of the Act.
As regards the issue of the quantum of income to be considered for levy of penalty u/s. 271(1)(c) of the Act, in our view, the Assessing Officer is wrong in considering the entire assessed income for levy of penalty. The only issue of dispute is the income from Singapore Layout formation; whether the income is to be assessed as ‘business income’ or ‘income from capital gain’ and which was only declared in the belated return of income filed on 30.6.2008 after the survey action on 1.2.2008; when actually return of income for Assessment Year 2007-08 was due by 31.7.2007 Therefore, in our view, it is not appropriate for the Assessing Officer to have considered the entire income, which included income from other activities, as concealed income, as there was no dispute with respect to those items of income declared. Thus the penalty leviable u/s.271(1)(c) of the Act should be on the assessed income, as reduced by commission income and other income, if any, declared in the return of income in respect of which there is no dispute. The Assessing Officer is directed accordingly.
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2015 (1) TMI 1307 - SUPREME COURT
Conviction of the appellants under Section 302 read with Section 34 IPC and the sentence of life imprisonment and fine of ₹ 25,000/- imposed on each of them - Held that:- In the present case, the courts below have not properly appreciated the evidence and the gap in the chain of circumstances sought to be established by the prosecution. The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case and also have not noticed the absence of symptoms of strangulation in the medical reports. Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside.
In the result, conviction of the appellants under Section 302/34 IPC is set aside and the appeal is allowed.
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2015 (1) TMI 1306 - RAJASTHAN HIGH COURT
Refund claim - Whether MOT charges are not legally leviable for the services provided by the Central Excise Officers during the normal working hours as held by the CESTAT when the Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998 clearly warrant the levy of the same - appellant exporting goods after stuffing in containers at the factory premises under the supervision/examination of Central Excise Officers - paid Merchant Overtime (for short, 'MOT') charges to the department for stuffing of containers for supervision by the Central Excise Officers - Held that:- the overtime fee is collected under section 36 of the Customs Act read with Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998. Section 36 of the Customs Act allows loading/unloading of imported/export cargo from any vessel beyond any working hours or any working day or on holiday only on payment of prescribed fees. The rate and the manner of collection of such fee is given in the Regulations of 1998. In the present case, the stuffing was done in the factory of the respondents under the supervision of jurisdictional Central Range Officers during the working hours. In the circumstances, the MOT charges were not payable. - Decided against the Revenue
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2015 (1) TMI 1305 - ITAT DELHI
Computation of the deduction u/s 80 HHC - non-inclusion of sum being foreign exchange fluctuations as part of export turnover - Held that:- Having considered the above contentions we find force in the same, in as much as that foreign exchange fluctuations on realisation of export-bills, forms part of export turn-over, in terms of the judgement of the Apex court in Wood Ward Governor India (P) Ltd. (2009 (4) TMI 4 - SUPREME COURT ). We have gone through the trading account of the export divisions, furnished by the assessee, which clearly shows that such foreign exchange fluctuation pertained to the export-sales of ₹ 26,48,59,379/- adopted by the AO. Thus the AO is directed to make the necessary rectification by including the sum of ₹ 30,01,318/- as a part of export turn-over. The said ground is thus allowed.
Not allowing to reduce the indirect cost equivalent to 10% of export incentives and interest - Held that:- In termsin the case of Hero Exports Vs. CIT (2007 (11) TMI 13 - Supreme Court of India ) the claim made by the assessee is no longer a debatable issue. In view thereof, the AO is directed to make the necessary rectification in computation of the claim of deduction u/s 80(HHC) of the Act, by reducing the indirect cost by a sum of ₹ 37,03,362/- being 10% of the export incentives and interest income.
Loss in trading should be adjusted following the judgment of Apex Court in IPCA Laboratories reported in (2004 (3) TMI 9 - SUPREME Court ). Hence the said ground is rejected.
The entire value taken by the A.O. as export incentive for the computation of deduction u/s 80HHC is not correct as per the law, Accordingly, the A.O. is directed to examine the actual import incentive received by the assessee and the same may he considered for the purpose of arriving deduction u/s 80HHC
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