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Showing 181 to 200 of 1437 Records
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2015 (3) TMI 1264
Revision u/s 263 - disallowance of deductions as per the provisions of Section 80IB - Held that:- The argument advanced by learned counsel for the appellant is that the Commissioner of Income Tax (Appeals) as well as the Income Tax Appellate Tribunal failed to appreciate that the assessee consumed a meagre electricity, but has given a huge production and therefore, that creates doubts about his claim about deductions as per Section 80IB of the Act of 1961. We do not find any merit in the argument advanced. The Commissioner of Income Tax (Appeals) as well as the Income Tax Appellate Tribunal has examined the entire issue in detail by taking into consideration all the relevant facts. Such finding of fact does not require interference in the appellate jurisdiction.
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2015 (3) TMI 1262
Addition u/s 41 - Held that:- Assessee was made purchases from M/s. Sai Shakthi Minerals, M/s. Dhanalakshmi Logistics in the year ended 31/03/2008. A small amount was paid in April 2008 and balance thereof as outstanding creditors since then. This amount was written off in the year ended 31/03/2011 and offered taxation. Learned AR has produced copies of ledger accounts of these two parties at page Nos. 11-14 of the paper book wherein in the year under consideration, the assessee has written off of this amount in his books of accounts. Similarly, in respect of Dhanalakshmi Logistics, the assessee has written off of this amount and tax on that amount has been paid. We find that assessee has written off of this amount in his books of accounts and paid due taxes, therefore, we are of the view that no addition can be made.
In respect of Transport Creditors M/s. Vinayak Enterprises, M/s. Aniketh Enterprises, M/s. Hanuman Traders, M/s. Veerabhadreshwara Enterprises, we find from the paper book wherein the assessee has submitted the copies of the bank account wherein payment has been made to transport creditors through bank. The balance of small amount has been written off. The payment has been made through bank, confirmation letters and income tax returns in this regard have not been considered by the Ld. CIT(A). In respect of confirmation letter when the assessee paid this amount through banking channel, we are of the view that this party do exists at a relevant time. The Department has also accepted the written off for the same party. Therefore, in our opinion, no addition can be made u/s. 41(1) of the Act.
In respect of Aniketh Enterprises, Hanuman Traders & Veerabhadreshwara Enterprises - The assessee has made the payment through RTGS, necessary information was given to the Assessing Officer and the Ld. CIT(A), therefore in our opinion, no addition can be made. The assessee has also filed the acknowledgement of the copy of the return filed by those parties. If the transport contractor had left the residence and they were not traceable, it is proved from the record that they are transport contractors, therefore in our opinion, no addition is required, hence, we delete the same. - Decided in favour of assessee
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2015 (3) TMI 1261
Constitutional validity of levy of service tax on renting of immovable property - Section 65 (105)(zzzz) and 65(90a) of the Finance Act, 1994 - the decision in the case of GV. Matheswaran Versus The Union of India And Others [2015 (3) TMI 391 - MADRAS HIGH COURT] contested - Held that: - no coercive steps shall be taken against the appellant for recovery of arrears of service tax which had become due on or before 30th September, 2011 - there is no stay of imposition of service tax under sub-clause (zzzz) of clause (105) of Section 65 read with Section 66 of the Finance Act, 1994 (as amended), insofar as the future liability towards service tax with effect from 1st October, 2011 is concerned.
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2015 (3) TMI 1260
Disallowance under Rule 8D(2)(iii) sec 14A - Held that:- As found from the record that assessee itself has made a suo motu disallowance of ₹ 1 lakh under Rule 8D(2)(iii), however, the AO has computed disallowance under Rule 8D(2)(iii) at ₹ 2,14,85,474/-. The assessee company is basically engaged in the construction activity having total receipts of ₹ 3229.76 crores out of which dividend income is only ₹ 9.68 crores, which works out to be 0.309% of the total receipts. We found that out of total dividend income of ₹ 9.86 crores, the assessee received dividend income of ₹ 8 crores from the group concern only which do not require any extra efforts on account of administrative expenses etc. Accordingly, we do not find any infirmity in the order of CIT(A) for upholding the disallowance of ₹ 10 lakhs under rule 8D(2)(iii) which was claimed by the assessee at ₹ 1 lakh.
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2015 (3) TMI 1259
Default under Section 249(4)(a) - as at the time of filing of appeal before the CIT(A), assessee had not paid the tax due on the income returned by him - Held that:- The judgement of the Hon’ble Karnataka High Court in the case of K. Satish Kumar Singh [2012 (4) TMI 213 - KARNATAKA HIGH COURT] clearly covers the controversy wherein held that after the dismissal of the appeal by the CIT(A) on account of a default under Section 249(4)(a) of the Act, if the assessee pays the admitted tax, the CIT(A) ought to recall the earlier order dismissing the appeal in-limine and to consider the appeal on merits.
Considering the above we deem it fit and proper to set-aside the impugned order of the CIT(A) with directions to consider the plea of the assessee of having paid the tax due on the returned income and upon his being satisfied that the requirement of Section 249(4)(a) of the Act has been complied with, he shall admit and dispose-off the appeal on merits. Needless to say that the CIT(A) shall allow a reasonable opportunity to the assessee of being heard and thereafter he shall pass an appropriate order in accordance with law.
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2015 (3) TMI 1258
Immunity from fine, penalty and prosecution - Benefit of reduced penalty of 25% - Scope of section 11AC before and after amendment w.e.f. 8.4.2011 - Clandestine removal - short payment of duty - Sponge Iron in lump and fine form - Held that: - out of the total duty amounting to ₹ 1,73,25,387/- accepted by the applicants, a sum of ₹ 1,07,19,305/- pertains to the period prior to 8-4-2011 and the balance amount relates to the period after 8-4-2011 when the option of paying 25% of the duty determined as penalty is no longer available. Some changes in the provisions of Section 11AC of the Act have been proposed in the Union Budget 2015, but the same are still to become law.
As per sub section 8 of Section 32F of the Act, an order of settlement under Section 32F(5) has to provide for the terms of settlement including any demand by way of duty, penalty or interest and all other matters to make the settlement effective which includes consideration of grant of immunity from prosecution as provided in Section 32(K) of the Act. Immunity from prosecution without approaching the Settlement Commission is governed by the provisions of Central Excise (Compounding of Offences) Rules, 2005. As per these rules, a person is liable to pay upto 50% of the duty evaded as compounding fees to seek immunity from prosecution.
The Central Excise Duty in this case is settled at ₹ 1,73,25,387/- - The applicant is liable to pay interest as per the provisions of Sections 11AB and 11AA of the Central Excise Act, 1944 - the Bench imposes penalty of ₹ 50,00,000/- (Rupees fifty lakhs only) on the applicant M/s. Maithon Steel & Power Ltd. (Unit-I) and ₹ 20,00,000/- (Rupees twenty lakhs only) each on the co-applicants, Shri Sitaram Bagaria and Shri Amit Agarwalla and grants immunity from penalty in excess of these amounts - appeal disposed off.
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2015 (3) TMI 1257
Validity of reopening of assessment - requisite sanction from competent authority u/s 151 was not obtained - Held that:- We find that it is an undisputed fact that reopening was done after 4 years and the reasons recorded as placed at paper book page 2 just carried the signature of Addl. CIT and which even does not mention the word 'approval'. ITAT n Shri Hirachand Kanuga Versus The DCIT, Circle-1, Khadakpada, Kalyan (W) [2015 (5) TMI 757 - ITAT MUMBAI] has dealt with a similar matter and after relying upon a number of decisions, has arrived that such type of satisfaction u/s 151 is bad in law.
We find that in this case law pronounced by ITAT Mumbai Bench, the Addl. CIT had placed his signature and had mentioned the word 'approved' before affixing his signature, which in the present case, is missing, therefore, present case is worse than the case decided by ITAT Mumbai Bench, wherein even word 'approved' has not been mentioned. In view of above ground No.1 (e) of appeal filed by assessee is allowed.
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2015 (3) TMI 1256
Molasses cleared to katcha pit at the time of entry in the DSR - demand of duty with interest and penalty - Held that: - the appellants in their DSR had shown removal of molasses to katcha pit. This means that the appellants themselves had treated removal of molasses to katcha pit as removal in accordance with the provisions of law. That being the position, it would not be appropriate to take a view in favor of the appellant that there was no removal. Having treated the storage in katcha pit and removal to the katcha pit as a removal, as per the provisions of Rule 8 of Central Excise Rules, 2002, the appellant should have discharged the duty liability without any further proceedings being initiated by the Revenue - demand for duty and interest is sustained.
Penalty - Held that: - the appellant has lost the interest portion which they could have saved if they were to maintain the stock in the katcha pit in the DSR. For a mistake, penalty of ₹ 50,000/- is very high. Accordingly, some reduction in penalty is warranted - Penalty u/r 25 of Central Excise Rules, 2002 imposed on the appellant is reduced to ₹ 25,000/-.
Appeal disposed off - decided partly in favor of appellant.
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2015 (3) TMI 1255
Restoration of appeal - appeal dismissed for non-compliance of the stay order - application for restoration holding that certain grounds were not considered by this Tribunal at the time of finalization of stay order - Held that: - the said order dated 8-9-2014 was passed by this Tribunal in the presence of learned Counsel appearing on behalf of the applicant who argued before this Tribunal. Therefore, at this stage, learned Counsel cannot argue that certain points were ignored by this Tribunal. If certain points have been ignored, counsels’ representing the appellant should have mentioned at the time of dictation itself. If same were not taken into consideration, the applicant could have filed application for rectification of mistake in the said order but the said mode has not been adopted by the appellant, therefore, consideration of the order dated 8-9-2014 at this stage, is not permissible. Consequently, the stay order dated 8-9-2014 has attained finality.
We recall our order dated 8-12-2014 and vacate the stay order passed by this Tribunal with the liberty to the Revenue to recover the dues adjudged in the impugned order - appeal restored - application for restoration of appeal is allowed.
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2015 (3) TMI 1254
CENVAT credit - inputs - zinc - furnace oil - hydrochloric acid - denial on the ground that credit on the inputs, taken wrongly, which have never been used in their factory - Held that: - the machinery is available in the factory which is in working condition. Moreover, it is fact on record that the finished goods were galvanized. In that circumstances, it cannot be said that the appellant has not facility for galvanization - the appellant has rightly availed credit on zinc, furnace oil and hydrochloric acid which were used for galvanization of final products - credit allowed - appeal allowed - decided in favor of appellant.
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2015 (3) TMI 1253
CENVAT credit - certain goods which were actually meant for M/s. Amritsar Crown Caps Ltd., sister concern of the respondent - Held that: - There is nothing on record to show that M/s. Amritsar Crown Caps Ltd. availed of Cenvat credit. There has been no loss to the revenue. The arrangement was, therefore, genuine. Mere change in the name of the consignee in the invoices of M/s. Amritsar Crown Caps Ltd. to the respondent makes no difference.
The credit ought to be disallowed as the respondent had not produced the octroi receipts, transportation records or any positive evidence that the goods were not received in the respondent’s factory. This was a question of fact, the answer to which can neither be said to be absurd or perverse.
Credit allowed - appeal dismissed - decided against Revenue.
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2015 (3) TMI 1252
Jurisdiction of Joint Commissioner of Commercial Taxes, Enforcement - power to order Audit of the business of any registered dealer - Held that: - as per provisions of the Section 64 (4) of the TNVAT Act, only the Commissioner can authorize the Deputy Commercial Tax Officer to conduct VAT Audit - impugned order not correct, set aside - petition allowed.
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2015 (3) TMI 1251
Whether the Tribunal was justified in law holding that interest under section 54(1)(aa) of the Act was not admissible to the applicant as refund had become due to it not as a result of assessment order but as a result of an order passed in second appeal preferred by the applicant against the first appeal order confirming the assessment order passed under section 41 of the Act? - Held that: - in such a situation, the assessee/dealer would be entitled to the interest under section 54(1)(aa) of the Act - appeal allowed - decided in favor of assessee.
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2015 (3) TMI 1250
Mobilization fee paid to non-resident - computing income under section 44BB - Held that:- The Ground decided against the assessee in view of the decision of Hon’ble Uttrakhand High Court in the case of Sedco Forex International Inc. v. CIT [2007 (9) TMI 196 - UTTARAKHAND HIGH COURT] wherein it has been held that mobilization fee , if paid to non-resident assessee by the ONGC which had no nexus with the actual amount incurred by the assessee company for transportation of drilling unit of rigs to the specified drilling location in India and which was not reimbursement of expenditure had to be taken into account for the purpose of computing income under section 44BB.
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2015 (3) TMI 1249
Revision u/s 263 - AO had not applied or considered section 80P(2)(d), in accordance with the wordings of the said section - whether the interest on deposits earned by a Co-operative Society, where such deposits were with a Cooperative Bank, are allowable as a deduction under Section 80P(2)(d) of the Act? - Held that:- As in the case of Bagalkot District Central Co-operative Bank (2015 (1) TMI 1005 - ITAT BANGALORE) held that a Cooperative bank which is also a Co-operative Society cannot be excluded from the purview of benefits available to a Cooperative Society , unless the provisions of the Act so stipulate. No doubt in the said decision, the Tribunal was considering the application of Section 194A(3)(v) of the Act, wherein it was mandated that a Cooperative Society was not required to deduct tax at source if the interest credit were paid to any Co-operative Society. It had unequivocally held that the said provision applied to all Cooperative Societies including a Cooperative Society engaged in the business of the bank or in other words, a Co-operative Bank.
Therefore, the view taken by the AO that income by way of interest or dividends earned by the assessee society from the Cooperative bank namely Kanara Dist. Central Co-operative bank which was also a Co-operative Society was eligible for deduction cannot be faulted. We cannot say that the order of the AO was erroneous and prejudicial to the interest of the revenue. In this view of the matter, we cancel the impugned order of the learned CIT, and consequently the appeal of the assessee is allowed.
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2015 (3) TMI 1248
Validity of Application preferred by the petitioner - the said application was signed under the signature of the Counsel for the Petitioner as his agent - it was contended by Tribunal that since the application for reference was not signed by the assessee, the same was not tenable - whether the application was valid?
Held that: - the person who had signed the application was a legal practitioner and had filed vakalatnama before the first authority by virtue of Rule 67. Authority of the legal practitioner continued till the termination of the proceedings. Not only this, FormA which is prescribed under Regulation 7 provides for signature either by the applicant as well as appointed agent, if any - the legal practitioner who was appearing on behalf of the assessee had himself offered to get the signature of the applicant after the Tribunal was of the view that it was necessary. The learned Tribunal could have very well permitted the applicant to put up signature on the application, in as much as it was only a technical error, if any.
Matter is remanded back to the learned Tribunal for considering fresh - petition allowed - decided in favor of petitioner.
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2015 (3) TMI 1247
Maintainability of appeal - condonation of delay - whether the first appellate authority was justified in dismissing the appeal filed by petitioner on the ground that there is delay of 142 days in filing the appeal?
Held that: - Except self serving statement of petitioner there is no material whatsoever available to arrive at a conclusion that order in original dated 27-9-2013 Annexure-D came to be served on petitioner on 9-10-2013 so as to exclude the period from date of order till date of service. In the absence of any proof being tendered petitioner cannot be heard to contend that this court in exercise of power under Article 226 of Constitution of India can condone such delay. When the statute prescribes the period of 60 days as the limitation to file an appeal and there being no provision under the Finance Act, 1994 to condone the delay by first appellate authority, question of entertaining such application for condonation of delay will not be in the domain of appellate authority.
Appeal dismissed - delay not condoned.
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2015 (3) TMI 1246
Jurisdiction of Superintendent, Service Tax Range to demand tax - Commercial or Industrial Construction Service - sub-clause (zzq) and (zzd) of clause (105) of Section 65 of the Finance Act - Held that: - There is no inherent lack of jurisdiction. Whether service tax is payable or not has to be decided by the Assessing Authority. Such Assessing Authority can also decide whether the charging provision has, in fact, been enforced or not. The Assessing Authority can also decide whether any exemption has been made and the petitioner is exempted from payment of tax. The Assessing Authority like any other judicial or quasi-judicial authority also has the right to decide on its own jurisdiction - petition rejected - decided against petitioner.
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2015 (3) TMI 1245
Valuation - seizure of goods on account of undervaluation - natural justice - Held that: - a market survey is stated to have been done. This market survey was done at the back of the petitioner. No evidence can be collected against back of a party. If any market survey is to be done then those people must file their evidence in affidavit or the market survey report should be made available to the petitioner.
The goods have been lying seized for more than a year. We do not know what will be the condition of the goods at this stage. Till date neither the assessing authority nor the revisional authority has made any demand of tax from the petitioner - the goods are directed to be released - opportunity of being heard to be provided to petitioner - petition allowed - matter on remand.
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2015 (3) TMI 1244
Refund claim - rejection on the ground that the services were performed in India and the case is not covered by the judgment of the Tribunal in the case of Paul Merchants v. CCE [2012 (12) TMI 424 - CESTAT, DELHI (LB)] - Held that: - the issue is no longer res integra and is covered in favour of the appellants by the decision of this Tribunal in the case of Simpra Agencies v. CCE [2014 (6) TMI 354 - CESTAT NEW DELHI] where following CESTAT judgments in the case of Paul Merchants Ltd., it was inter alia held that even providing after sale warranty service on behalf of the foreign client would be covered under the scope of export of service when the payment was received in convertible foreign exchange - matter remanded to the original adjudicating authority to consider the appellant’s refund claim - appeal allowed by way of remand.
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