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2013 (10) TMI 1400 - SUPREME COURT
No proper regulatory regime - For monitoring harmful effects of soft drinks on human health, particularly children - Mandatory disclosures on the labels of soft drinks - Disclosure of warnings with particular ingredient, and its harmful effects - Proper mechanism to check & control “Food Additives” - Check and control the misleading advertising - HELD THAT:- Food and Safety Standards Authority of India, to gear up their resources with their counterparts in all the States and Union Territories and conduct periodical inspections and monitoring of major fruits and vegetable markets to ascertain whether they conform to such standards set by the Act and the Rules. Penal provisions are also provided in the Act. It is, therefore important that the provisions are properly and effectively implemented so that the State can achieve an appropriate level of human life and health, safeguarding the right to life guaranteed under Article 21 of the Constitution of India.
The Writ Petition is disposed of with the above directions to strictly follow the provisions of the FSS Act as well as the Rules and Regulations framed thereunder.
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2013 (10) TMI 1399 - ITAT MUMBAI
Claim for bad debts written-off u/s. 36(1)(vii) denied - Held that:- The amounts that have been written-off, as detailed in the Paper Book, are specific bills or part of specific bills raised by the assessee, which have not been collected from such parties. Therefore, merely because assessee had dealing with that particular concern or that the concerns are otherwise financially viable does not distract from the fact that the amounts in question, which are individually of small values, were specific bills of the assessee or part thereof, which were outstanding for a long period of time and therefore considering the aforesaid aspect, on facts, the judgment of the assessee of treating them as ‘irrecoverable’ cannot be faulted. Thus, in our considered opinion, the claim of the assessee for writing-off of such amounts u/s. 36(1)(vii) of the Act as ‘irrecoverable’ was fair and proper.The entire claim of the assessee for write-off of bad debts u/s. 36(1)(vii) of the Act amounting to ₹ 40,89,838/- was justified and the CIT(A) ought to have allowed it, instead of restricting it to ₹ 22,56,998/- only.
Disallowance of prior period expenses - Held that:- Ostensibly, the expenditure in question does not pertain to the period under consideration, which is evident from the invoice raised by M/s. Safire Hotels Ltd.. There is also no material on record to show that the liability represented by the invoice of M/s. Safire Hotels Ltd. dated 20.01.2006 crystallized during the year so as to be deductible in computing assessee’s income for the year under consideration following the mercantile system of accounting. In the course of hearing, it was specifically put to the learned counsel for the assessee to show as to in what manner the liability crystallized during the year and not in the preceding assessment year as sought to be canvassed by the Revenue based on the date of the invoice raised by M/s. Safire Hotels Ltd.. No satisfactory explanation has been rendered before us and therefore we deem it fit and proper to sustain the action of the lower authorities in disallowing the impugned claim being a prior period expenditure.
Disallowance of legal and professional charges - Held that:- The matter be re-visited by the Assessing Officer after allowing the assessee a reasonable opportunity to produce all the relevant material in support of the impugned expenditure. Needless to say, the Assessing Officer shall consider the submissions and material put-forth by the assessee on its merits and thereafter adjudicate this aspect afresh as per law. We may add here that if the Assessing Officer is not satisfied with the submissions of the assessee and proceeds to make a disallowance, the same shall not exceed a sum of ₹ 7,42,435/-, i.e. the amount sustained by the CIT(A) in the impugned order
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2013 (10) TMI 1398 - ITAT COCHIN
TDS u/s 194C - Demand u/s 201(1) - non deduction of tds - Held that:- We are of the view that the assessing officer has failed to bring any material on record to show that the assessee is liable to deduct tax at source u/s 194C of the Act in respect of building construction. Under these circumstances, in our view, the Ld CIT(A) was not justified in confirming the demand raised u/s 201(1) and interest charged u/s 201(1A) of the Act in respect of building construction.
The matter relating to deduction of tax at source from commission payments requires fresh examination at the end of the assessing officer. The Ld A.R also sought an opportunity to furnish necessary details before the AO. With regard to the rent payments also, the Ld A.R sought an opportunity. Since the matter relating to the commission payments requires fresh examination, in the interest of substantial justice, the assessee may be given one more opportunity to furnish the details of rent payments also. Accordingly, we set aside the orders passed by Ld CIT(A) in all the three years in respect of the above said two payments and restore them to the file of the assessing officer for making fresh examination. The assessee is also directed to furnish all the details that may be called for by the assessing officer, failing which the AO is free to take decision on the basis of available facts.
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2013 (10) TMI 1397 - CESTAT MUMBAI
... ... ... ... ..... y service of the type enumerated in the last clause of the definition. Under the circumstances, we are enable to accept the Revenue’s contention that the service provided by the appellants are covered under Business Auxiliary Service. 8.Learned Counsels for the appellants have also raised certain other arguments and few case laws. We do not consider it necessary to go into such details as we find that on merits itself appellants are not providing any business auxiliary service so as to be chargeable to service tax. In the result all the appeal succeed. 9. We also note that in two appeals appellants have paid the tax and later on filed refund claims. These refund claims has been rejected on merits. We set aside such order as far as the merits of the case are concerned. However, the same would require to be examined from other angles as provided under law such as unjust enrichment, limitation etc. before grant of refund. (Pronounced in court on………..)
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2013 (10) TMI 1396 - CESTAT AHMEDABAD
... ... ... ... ..... B, the facts are the same as narrated hereinabove. In this case, there is confirmed demand of ₹ 1,98,65,936/- which has been collected by the appellant from his clients and has deposited an amount of ₹ 1,26,54,278/- during the pendency of proceedings before the lower authorities. Approximately ₹ 72 Lakhs is yet to be deposited which, in our view needs to be deposited by the appellant for hearing and disposing the appeal. Accordingly, we direct the appellant to deposit ₹ 72,00,000/- (Rupees seventy two lakhs only) within eight weeks from today and report compliance before Deputy Registrar on 05.12.2013. Deputy Registrar after ascertaining the compliance will place the file before the bench on 12.12.2013 for passing further orders. Subject to such compliance being reported the applications for the waiver of pre-deposit of balance amounts involved are allowed and recovery thereof stayed till the disposal of appeals. (Dictated and pronounced in the Court)
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2013 (10) TMI 1395 - ITAT HYDERABAD
Benefit u/s. 10A - Held that:- As decided in assessee’s own case for A.Y. 2007-08 as can be seen from the order of the DRP, though they have accepted the fact that the Chennai unit is not formed by reconstruction of the Hyderabad unit, but, they ultimately held that Chennai Unit and Hyderabad Unit are not two distinct and independent units. However, on perusal of the aforesaid order of the coordinate Bench, we find that the issue in dispute has been set at rest and decided in favour of the assessee. Therefore, following the decision of the coordinate Bench, we allow the ground of the assessee and direct the AO to allow benefit u/s. 10A of the Act to the Chennai Unit.
Amount of statutory disallowance has to be considered as business profit eligible for deduction u/s. 10A of the Act.
Communication charges, insurance charges and reimbursement of expenses attributable to the delivery of computer software outside India, are to be reduced from the export turnover then the same should as well be reduced from total turnover while computing deduction u/s. 10A of the Act.
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2013 (10) TMI 1394 - SUPREME COURT
... ... ... ... ..... parties concerned. 5) Even in the 2nd batch of cases arising out of Writ Petition No. 975 of 2004 whereby the High Court has struck down the 4th and 5th amendment to the Rules, the State shall be free to make recoveries in terms of the 3rd amendment in regard to the forest produce removed from within the State of U.P. The operation of the orders passed by the High Court shall to that extent remain stayed. 6) This modification shall not apply to exempted goods or industrial by products like Klinker and fly ash. List SLP(C) No. 19445 of 2004, SLP(C) No. 24889 of 2004, SLP(C) No. 23547 of 2005, SLP(C) No. 24106 of 2007,SLP(C) No. 21868 of 2010,SLP(C) No. 22363 of 2010, SLP(C) No. 12318 of 2009,SLP(C) No. 12530 of 2009,SLP(C) No. 21930 of 2009,SLP(C) No. 26825 of 2011,SLP(C) No. 18094 of 2011,Civil Appeal No. 1007 of 2011,Civil Appeal No. 2047 of 2006, SLP(C) No. 2294 of 2008,SLP(C) No. 11846 of 2009 and SLP(C) No. 33180 of 2010 (relating to State of Uttarakhand) on 12.11.2013.
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2013 (10) TMI 1393 - CESTAT MUMBAI
... ... ... ... ..... other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. In the present case, under the Valmiki Ambedkar Awas Yojana, the scheme is to provide constructed houses to the persons who are residing in the slums and in view of the definition of ‘residential complex’ as provided under the Finance Act, prima facie we find that the applicants have a strong case for waiver of pre-deposit of the dues. Pre-deposit of the dues is waived for hearing of the appeals. 8. As noted above, the Commissioner (Appeals) has not gone into merits and dismissed the appeals only on the ground that the applicants failed to comply with the conditions of the stay order hence the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide on merits, without asking for any pre-deposit, and after affording an opportunity of hearing to the appellants. (Dictated in Court)
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2013 (10) TMI 1392 - ITAT COCHIN
Written down value of the cost of construction as ‘current repair’ - Held that:- 'Current repair’ is an expenditure incurred by the assessee for the purpose of maintaining the machinery, building, etc. used for the purpose of business. It is not a case of an expenditure incurred for the purpose of doing the business. The assessee claims the written down value of the cost of construction as current repair. This Tribunal is of the considered opinion that the cost of construction of the building or its written down value cannot be allowed as ‘current repair’ under the existing provisions of the Income-tax Act.
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2013 (10) TMI 1391 - ITAT AHMEDABAD
Penalty under section 271(1)(c) - MAT - computation of income was made under Section 115JB - Held that:- It is an undisputed fact that the Assessee was taxed under Section 115JB of the Act and not under the normal provisions of the Act as under the normal provisions of the Act, no tax was payable by the Assessee. It is also a fact that even after the additions of ₹ 46 lacs made in the quantum proceedings, tax was still payable on the basis of book profits. We find that the Hon. Delhi High Court in the case of CIT vs. Nalwa Sons Investments Ltd.[2010 (8) TMI 40 - DELHI HIGH COURT] has concluded that when computation of income was made under Section 115JB and concealment if any did not lead to tax evasion at all and therefore penalty under section 271(1)(c) could not be imposed. - Decided in favour of assessee
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2013 (10) TMI 1390 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... nt of the Kerala High Court shall also be placed by the petitioner before the Officer concerned, who must see the said judgment and take note of it and follow the same without any demur. This exercise shall be completed within a period of four weeks from the date of communication of the order. Till such date, no coercive measures shall be taken by the respondent-authorities. Writ Petition No. 29905 of 2013 is accordingly disposed of. Now, coming to the other writ petitions, namely, Writ Petition Nos. 30005 and 30009 of 2013 are concerned, in view of the judgment rendered by us in Writ Petition No. 29905 of 2013, we do not want to write a separate judgment in these writ petitions and we follow the same judgment, as the issues on fact and law are identical. Writ Petition Nos. 30005 and 30009 are accordingly disposed of in terms of the judgment rendered in Writ Petition No.29905 of 2013. Consequently, the miscellaneous applications, if any pending, shall also stand disposed of.
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2013 (10) TMI 1389 - ITAT HYDERABAD
Deemed dividend u/s 2(22)(e) - Held that:- Assessing Officer neither in course of the assessment proceeding nor in his remand report has brought any materials to establish the fact that the amount received was not in regular course of trade but in the nature of loan and advance as envisaged u/s 2(22)(e) of the Act.
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2013 (10) TMI 1388 - ITAT PUNE
Capital gain or business income - nature of income - Held that:- Sale of shares held for more than one month would be charged capital gain and surplus of shares held for less than one month will be treated as profit from business. CIT(A) was not justified to make above classification. This classification is not reasonable. Taking all facts and circumstances as discussed above, we hold that all the share transactions undertaken by assessee will be charged to capital gain irrespective of their holding period. Assessing Officer is directed to compute capital gain accordingly.
This take care of issue raised in cross objection by assessee as well.
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2013 (10) TMI 1387 - CALCUTTA HIGH COURT
... ... ... ... ..... ods’ embodied under Section 2(33) of the said Act. 9. This Court, therefore, feels that there is no justification in imposing the conditions as envisaged under Sections 111, 112 and 125 of the said Act by way of furnishing Bank Guarantee as well as P.D. Bond in the subsequent circular dated 23rd September, 2013. 10. By way of an interim order, this Court directs the Customs Authority to make a provisional assessment under Sections 14, 15 and 18 of the said Act without imposing any conditions for furnishing Bank Guarantee as well as P.D. Bond, which is one of the requirements under Section 111, 112 and 125 of the said Act. 11. Let affidavit-in-opposition be filed within two weeks after reopening of this Court following Puja Vacation. Reply thereto, if any, be filed within one week thereafter. 12. Let the matter be listed three weeks after reopening of this Court following Puja Vacation in the supplementary list under the heading “Motion”.
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2013 (10) TMI 1386 - ITAT- INDORE
Eligibility to claim of deduction u/s 80IB - Held that:- Amendment to Section 80IB(10) was brought by the Statute w.e.f. assessment year 2005-06, accordingly, assessee’s claim for deduction, on the plea of for non-filing of completion certificate cannot be declined in the assessment year 2003-04, under consideration. No inirmity in the order of CIT(A) for allowing assessee’s claim of deduction u/s 80IB(10).
Reopening of assessment - withdrawal of claim - Held that:- As per C.B.D.T. instructions, assessee is eligible to claim deduction u/s 80IB on the basis of progress of the project and without waiting for its completion and Assessing Officer is also required to consider assessee’s claim while framing assessment u/s 143(3)/143(1). If the Assessing Officer finds that all the conditions of Section 80IB has been complied with except the completion certificate, which can be furnished only after completion of project within stipulated period, the Assessing Officer is required to allow the proportionate claim attributable to the completion of project by the end of relevant financial year. If subsequently, the Assessing Officer finds that after completion of statutory period the assessee has failed to furnish the completion certificate, the deduction so allowed knowingly is liable to be withdrawn. Accordingly, we do not find any infirmity in the order of CIT(A) for upholding the reopening of assessment for the purpose of withdrawal of deduction claimed and allowed u/s 80IB(10).
No infirmity in the orders of lower authorities for withdrawal of claim of deduction allowed u/s 80IB(10)while framing assessment u/s 143(3), due to non-furnishing of completion certificate, after completion of stipulated period of four years which expired on 31.03.2008.
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2013 (10) TMI 1385 - SUPREME COURT
Interpretation of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32 - Held that:- the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., “computing 3% reservation on total number of vacancies in the cadre strength” which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision rendered by this Court.
(i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with this Court’s Order within three months from the date of passing of this judgment.
(ii) We hereby direct the “appropriate Government” to compute the number of vacancies available in all the “establishments” and further identify the posts for disabled persons within a period of three months from today and implement the same without default.
(iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/public sector undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default.
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2013 (10) TMI 1384 - ITAT RAJKOT
Registration under section 12A(a) cancelled - Held that:- The Registration has been cancelled by CIT, Rajkot-2, Rajkot on the basis of amended provisions of Section 2(15) of the Income-tax Act, 1961; therefore we are of the considered opinion that the action taken by the ld CIT, Rajkot-2, Rajkot does not fall within the permissible limits of Section 12AA(3) of the Income-tax Act, 1961 and therefore, the impugned order is bad in law.
Recently, ITAT Chennai "B" Bench, in the case of Madras Motor Sports Club v. DIT (Exemptions) [2013 (2) TMI 70 - ITAT CHENNAI ] in almost identical facts restored the registration, which was cancelled by ld DIT (Exemptions), observing that the nature of objects of the assessee cannot fluctuate in tandem with the quantum of receipts mentioned in the first proviso to section 2(15) of the Income-tax Act, 1961.
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2013 (10) TMI 1383 - ITAT AHMEDABAD
Deemed income from house property on estimate basis only - Held that:- We have noted the decision of Hon’ble Calcutta High Court pronounced in the case of Prodip Kumar Bothra[2011 (7) TMI 31 - CALCUTTA HIGH COURT ] came to the conclusion that the assessee cannot pray for exclusion of the income of the property occupied by a partnership firm. The Hon’ble Court has expressed the view in favour of the Revenue and held that by operation of Section 22 of IT Act income from house property is chargeable in the hands of the assessee. Resultantly, the view expressed by the Revenue Authorities is hereby affirmed and this ground of the assessee is dismissed.
Dis allowance of expenses incurred wholly and exclusively for earning taxable income - Held that:- 70% of the expenditure was disallowed by the AO which appeared to be towards higher side in a situation when one estimate is to be pitted against another estimate; than it is reasonable to adopt a fair estimate. Considering the nature of the business of a tax payer, we therefore direct that 50% of the expenditure is to be allowed and, therefore, the balance 50% shall be disallowed. In this manner, the assessee shall get part relief in respect of disallowance made by the AO.
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2013 (10) TMI 1382 - CESTAT AHMEDABAD
Whether the appellant is eligible for the benefit of N/N. 108/95-C.E. on a certificate which has been issued in the name of the contractor who was executing the project which has been financed by World Bank and Asian Development Bank?
Held that: - the appellant herein cannot be denied the benefit of notification since it is undisputed that the goods cleared by the appellant by availing the benefit of N/N. 108/95-C.E., were consumed in the project executed in earthquake affected area. It is seen that Hon’ble High Court of Madras in the case of M/s. Caterpiller India Pvt. Ltd.[2013 (7) TMI 244 - MADRAS HIGH COURT], were considering the similar issue and held that the use of the phrase 'supplied to the projects financed by the said United Nations or an International Organisation and approved by the Government of India' clearly shows that the condition for grant of exemption is supply of the goods towards the project and nothing beyond, the notification applicable and benefit allowed.
The appellant herein is eligible for availing the benefit of N/N. 108/95-C.E. in respect of goods cleared by them for use in earthquake affected area - appeal allowed - decided in favor of appellant.
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2013 (10) TMI 1381 - CESTAT MUMBAI
... ... ... ... ..... 4. The learned D.R. relies on the impugned order. He further relies on the ruling of the Hon’ble High Court of Gujarat in the case of Elson Packaging Ind. Pvt. Ltd. v. Commissioner of Central Excise, Surat - 2010 (257) E.L.T. 509 (Guj.) wherein it is held that during the period of suspension, duty cannot be paid by debit to Cenvat/Modvat account. 5. Having considered the rival contentions, we are of the view that in the light of the non-obstantive clause in sub-rule 3A of the Rule 8 w.e.f. 1-4-2005, prior to this date, the appellant was entitled to pay duty by both debit to PLA and Cenvat/Modvat account, during the suspension of facility to pay duty monthly/fortnightly under Rule 173G(i)(e) of the Central Excise Rules, 1944. 6. In view of the ruling of the Hon’ble Bombay High Court being the jurisdictional High Court of this Tribunal, the appeal is allowed with consequential relief, if any, in accordance with law. (Dictated and pronounced in Court)
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