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Showing 181 to 200 of 1238 Records
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2014 (5) TMI 1059
Validity of assessment u/s 153C - Held that:- undisputedly the assessee was subjected to search action under section 132(1) of the Act, therefore, the assessment can only be framed upon the assessee under section 153A of the Act. The assessment under section 153C of the Act can only be done in those cases where the Assessing Officer, during the course of assessment upon searched person, has found some incriminating material relating to some other person upon whom search was not conducted. Having recorded his satisfaction, the Assessing Officer of the searched person may refer the material along with satisfaction note to the Assessing Officer of the person upon whom action under section 153C of the Act is required to be taken. But in the instant case, the assessee himself has been subjected to search action, therefore, the assessment under section 153C of the Act is not possible. The right course would be to complete the assessment under section 153A of the Act. Therefore, we do not find any infirmity in the order of the ld. CIT(A), who has examined the issue in the light of the relevant provisions of law and finally annulled the assessment. We accordingly confirm the order of the ld. CIT(A) and dismiss the appeals of the Revenue. - Decided against revenue
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2014 (5) TMI 1058
Deduction u/s 80P - CIT(A)’s only ground while denying claim of deduction is that the assessee has advanced loans to even the nominal/associate or ’B’ class members which is hit by section 80P(2)(a)(i) - Held that:- The assessee has produced before us an order in case of M/s SL(SPL) 151, Karkudalpatty Primary Agricultural Co-operative Credit Society Ltd. vs ITO [2014 (5) TMI 556 - ITAT CHENNAI]. Therein, after taking into consideration section 2(16) of the Tamilnadu Co-operative Societies Act, 1983, treating associate or ‘B’ class members within section 2(16) of the State Co-operative Societies Act, we have held that no such distinction could be drawn for the purpose of deduction u/s 80P(2)(a)(i) of the Act. We have also held that being a deduction provision, there is no scope for further classification within members. On being pointed out, the Revenue has failed to draw any distinction on facts. - Decided in favour of assessee
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2014 (5) TMI 1057
Classification of goods - Classification of product of aluminium tubes and pipes and Fan motors - Held that: To bring the goods to the fold of CTH 8708 91 00 that should be established as parts and accessories of the motor vehicles of headings 8701 to 8705. The burden lies on Revenue to prove that the imported goods were sold. But nothing comes out from that angle on record and Revenue failed to discharge its burden of proof. So far as the aluminium tube is concerned, claim of the appellant is that the same shall fall under CTH 7608 10 00. That entry relates to the “product of aluminium tubes and pipes”. Therefore, appellant is correct on its claim of classification in so far as the aluminium square tube is concerned.
It is explained by the appellant that the goods fulfils the characteristics of CTH 8501 10 19. That entry reads as the residual goods of the heading 8501 dealing with electric motors and generators. There is no whisper in the show cause notice that the fan motors were the accessories and parts of the motor vehicle under the heading 8701 to 8705. Without physical examination report suggesting that the fan motors belong to the family of motor vehicle parts and accessories, it is not possible at this stage to appreciate contention of Revenue that the said goods belong to CTH 8708 91 00 - Decided in favour of assessee.
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2014 (5) TMI 1056
Goods for commercial use indicated as for personal use – Imposition of Penalty – Respondent-Assesse purchased scanner with accessories, same was transported on strength of form 16 – Notice was issued under section 47(2) of Kerala Value Added Tax Act by Commercial Tax Inspector suspecting genuineness of transaction – Penalty under section 70B was imposed as goods were shown for personal use whereas it was for commercial use –Tribunal vide impugned order upheld order revoking penalty – Held that:- section 70B contemplates that any person bringing goods from outside State projecting purchase as one for its own use and utilising goods so brought otherwise than for own use shall, without pre judice to any other provisions in Act, be liable to pay by way of penalty –Fact that when person make use of goods it may generate profit, will not detract from use being its own use though word “commercial” figures in heading of section 70B – What is required for attracting section 70B is bringing goods from outside State declaring it for own use, but not using it for own use – In such circumstances, no reason to take different view than view taken by appellate authority and as affirmed by Tribunal – Decided against revenue.
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2014 (5) TMI 1055
Condonation of Delay – Vide impugned order reported in [2015 (8) TMI 691 - CESTAT NEW DELHI], tribunal being dissatisfied with explanation of appellant, dismissed application for condoning delay - Aggrieved by said order appeal was filed - Appellant urged before Tribunal that he could not approach tribunal within prescribed time on account of certain family problems and financial hardships - Therefore, in view of peculiar circumstances, current Court was of opinion that delay be condoned and Tribunal to hear stay application as well as appeal in accordance with law - Impugned order set aside - Appeal allowed.
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2014 (5) TMI 1054
Release and return of Containers – Petitioner seeking direction upon Respondents to release and return 14 containers belonging to petitioner – It was contended by Petitioner that Cargo has to be destuffed and empty containers have to be handed over to Petitioner – Held that:- such matters reflect lack of decision making on part of concerned Authorities – It was open for Authorities to have arranged for storage of cargo and which is subject matter of investigation and adjudication and release empty containers – In these circumstances court would highly appreciate all concerned taking early action and returning empty containers to Petitioner – Court expect all concerned to take decision in terms of this order.
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2014 (5) TMI 1053
Request for appointment of the nominee arbitrator - Constitution of arbitral tribunal - Held that:- manner in which the contract was made between the petitioner and the respondent was investigated by the CBI. As a part of the investigation, the CBI had seized all the original documents and the record from the office of the respondent. After investigation, the criminal case CC No.22 of 2011 has been registered, as noticed earlier. It is claimed that in the event the Chairman of the Organising Committee and the other officials who manipulated the grant of contract in favour of the respondent are found guilty in the criminal trial, no amount would be payable to the petitioner. Therefore, it would be appropriate to await the decision of the criminal proceedings before the arbitral tribunal is constituted to go into the alleged disputes between the parties. - The balance of convenience is tilted more in favour of permitting the arbitration proceedings to continue rather than to bring the same to a grinding halt.
Plea was never taken till the present petition was filed in this Court. Earlier, the respondents were only impressing upon the petitioners to supply certain information. Therefore, it would be appropriate, let the Arbitral Tribunal examine whether there is any substance in the plea of fraud now sought to be raised by the respondents. - The purpose of the solitary rule is to avoid embarrassment to the accused. In contrast, the findings recorded by the arbitral tribunal in its award would not be binding in criminal proceedings. Even otherwise, the Constitution Bench in the aforesaid case has clearly held that no hard and fast rule can be laid down that civil proceedings in all matters ought to be stayed when criminal proceedings are also pending. - The Registry is directed to communicate this order to the Chairman of the Arbitral Tribunal, as well as, to the Second Arbitrator to enable them to enter upon the reference and decide the matter as expeditiously as possible. - Decided in favour of Appellant.
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2014 (5) TMI 1052
penalty u/s 271D and 271E - ITO has found during the survey proceedings that the assessee had violated the provisions of both the sections 269SS and 269T of the Income Tax Act as the assessee had accepted the loans in cash exceeding ₹ 20,000/- and repaid the loan exceeding ₹ 20,000/- - Held that:- From the penalty order, the facts are very clear that the assessee had borrowed ₹ 15.00 lakhs in cash and repaid 15.00 lakhs in cash in the assessment year 2008-09. Again he borrowed 20 lakhs on two occasions and repaid ₹ 24 lakhs in cash in the assessment year 2009-10. In the assessment year 2010-11, again, the assessee borrowed ₹ 20 lakhs and repaid in cash. In the assessment year 2011-12, he borrowed ₹ 20 lakhs and repaid ₹ 23 lakhs. Further, in the assessment year 2012-13, the assessee had repaid ₹ 13 lakhs in cash. These facts are not disputed by the assessee. He has not given any explanation neither before the Assessing Officer nor before the ld. CIT(Appeals) or even before us. He is not in a position to explain what is the reasonable cause for accepting loans in cash and repaid the same in cash. It is very clear from the order of the Assessing Officer that he has given as many as number of opportunities to explain his case before him. However, the assessee has not utilized those opportunities and he was not in a position to explain as to what was the reason for accepting and repaying monies in cash, which is contrary to the provisions of sections 269SS and 269T of the Act. After carefully going through the orders of the Assessing Officer and ld. CIT(Appeals), we are of the opinion that the assessee is not in a position to give any explanation either before the Assessing Officer or before the ld. CIT(Appeals) and therefore, he has avoided to attend before the lower authorities. Now, the ld. Counsel for the assessee is requesting to remit the matter back to the ld. CIT(Appeals), which appears to be not fair, just and proper.
Once the assessee obtained loans in cash exceeding ₹ 20,000/- and repaid it in cash, if this factual position is correct, the only option for the assessee is to explain the reasons under what circumstances the assessee has obtained the loans and repaid the loans in cash as prescribed under sections 269SS and 269T. Other materials and arguments of the assessee are irrelevant and immaterial in the context of the present case. In this case, the assessee has not explained under what circumstances he has borrowed loans in cash and repaid in cash either before the Assessing Officer or before the ld. CIT(Appeals). Even before us, no explanation was given. Under these facts and circumstances, we are of the opinion that this is a fit case to impose penalty - Decided against assessee.
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2014 (5) TMI 1051
Condonation of delay - Inordinate delay of 415 days - Held that:- Though delay is substantial, it is explained by mentioning that the assessee is a partnership firm and Shri Nandkishore Sakarlal, who looks after the partnership’s financial and tax matters has not been keeping good health since last couple of years, during which he had been admitted for eight months in the hospital - Shri Nandkishore Sakarlal is aged about ninety years. Under the circumstances, delay is condoned. - Delay condoned.
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2014 (5) TMI 1050
Waiver of pre deposit - Fraudulent transactions - Availment of higher Cenvat Credit on rolled products which were described as Non Alloy Steel SLR, Bars & Rods of Non-Alloy Steel Rejected Cut pieces, Bars and Rods of Non-alloy Steel, Non-Alloy Steel Rounds(Rejected), Non-Alloy Steel Rounds (Rejected cut pieces), Round Bar S/L Rejected Round Bar Small Pieces, M. S. Round Cuttings and Non-Alloy Steel Round S/L Rejected. - Held that:- Court directed that on deposit of ₹ 10 lacs by the petitioner, the Tribunal shall not dismiss the appeal for want of pre-deposit. However, the deposit was subject to further orders to be passed by this Court. It was stated by learned counsel for the petitioner that the said amount stands deposited by the petitioner. - A further sum of ₹ 15 lacs in addition to the aforesaid amount of ₹ 10 lacs be deposited as a condition precedent for hearing of the appeal by the Tribunal which would meet the ends of justice. - Decided conditionally in favour of assessee.
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2014 (5) TMI 1049
Recall of order - Order dismissing appeal for non compliance - Held that:- While passing stay order [2012 (6) TMI 582 - CESTAT, NEW DELHI], bench has appreciated that the case of the appellant is covered by the out decision of the Tribunal as reported above and that is against the appellant. Therefore, when appeal was found to be devoid of merit and there is direction for deposit of entire Service Tax demand, multiple restoration applications filed by appellant is merely to perpetuate litigation causing unwarranted hardship to other side. This also throws light that the appellant is only avoiding its liability imposed under law. It would therefore be mockery if present applications are not dismissed. Accordingly to prevent further abuse of process of law all the present miscellaneous applications are dismissed. - Decided against assessee.
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2014 (5) TMI 1048
Waiver of pre deposit - benefit of Notification No. 45/2010-S.T. - Held that:- installation of distribution system and installation of transformers is in the nature of infrastructure and creation of infrastructure for transmission and distribution are not covered by the Notification. - The notification exempts all taxable services relating to transmission and distribution of electricity provided by a person to any other person. The term “relating to transmission and distribution of electricity” in our opinion, is wide enough to cover the activities of the appellant. - Appellant’s activities are covered by the retrospective exemption Notification No. 45/2010 and therefore the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.
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2014 (5) TMI 1047
Demand of service tax - Reverse charge mechanism - Held that:- the Service Tax liability which is fastened on the appellant along with the interest is correctly held to be paid by the appellant inasmuch as, during the material period such a provision does exist in form of Section 66A of the Finance Act, 1994. We do not find any reason to interfere in such an order which upholds the Service Tax liability and the interest thereof. The appeal filed by the appellant to that extent is rejected. - during the material period, appellant could have being under the bona fide impression, as to since the services were rendered i.e. testing of the product was done abroad, the Service Tax liability on the appellant may not arise - appellant has shown sufficient cause for setting aside the penalties imposed by the adjudicating authority and upheld by the first appellate authority - Decided partly in favour of assesssee.
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2014 (5) TMI 1046
Waiver of pre deposit - construction of complex and construction of residential services - Held that:- The applicants have undertaken the construction activity of building of HIG residential premises for MHADA. - As the applicant provided the taxable service therefore, prima facie the applicant had not made out a case for total waiver. Taking into facts and circumstances of the case, the applicants are directed to deposit 50% of the Service Tax confirmed within eight weeks from the date of receipt of the order. On deposit of the above mentioned amount, the pre-deposit of the remaining dues is waived and recovery thereof stayed for hearing of the appeal. - Stay granted.
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2014 (5) TMI 1045
Denial of refund claim - Held that:- it is not a show cause notice which would lead to any imposition of liability against the petitioner. In fact the petitioner had filed an application for refund and it is towards consideration of the same that the authority has issued a show cause notice, disclosing the prima facie findings, so as to afford an opportunity to the petitioner to put forth contentions which would counter the same effectively. Hence, neither can it be said that the show cause notice is totally non est; nor that it is without jurisdiction. It is under a specific statutory provision that the petitioner has invoked the power of refund conferred on the authority. In such circumstance, this Court is not persuaded to interfere with the proceedings at this stage, especially since entertaining the writ petition would eventually result in either rejection of the claim of the petitioner or allowing the same, which exercise this Court would not be entitled to embark upon, under Article 226. - Decided against assessee.
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2014 (5) TMI 1044
If the appellant had discharged its full duty and interest liability, that itself showed its bonafide or not. - Simultaneous penalties under both Sections 76 and 78 - The benefit of this Amendment in Section 78 by the Finance Act, 2008 - Supreme Court dismissed the petition on the ground of delay filed by the Revenue against the decision of Delhi High Court [2011 (8) TMI 423 - DELHI HIGH COURT], wherein high court held that there is bonafide error on the part of Appellant. Therefore there is not question of penalty.
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2014 (5) TMI 1043
Applicability of enhanced rate of duty as amended in the manner specified in the Seventh Schedule of the Finance Act, 2008 coming into force with immediate effect after passing of the Bill on 29.04.2008 or on date of enactment as on 10.05.08 - appellant engaged in the manufacture of Portland Pozzolana Cement falling under sub-heading 25232930 of the First Schedule to the Central Excise Tariff Act, 1985 - demand raised arising out of the substitution of tariff rate of ₹ 900/- per ton in place of ₹ 600/- per ton for the intervening period from 29.04.2008 to 09.05.2008 - Held that:- Tribunal has taken a correct view of the matter. A declared provision in the bill may ultimately be passed with or without amendment. Obviously, an amendment can be made applicable to an entry which was originally there in the bill. An entry which was not there at all and was subsequently brought in, cannot be said to have been protected by the declaration made under Section 3 of the Act of 1931. - No merit in appeal - Decided against Revenue.
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2014 (5) TMI 1042
Nature of payment made to M/s. Pyramid Saimira Entertainment Ltd. - goodwill v/s goodwill gesture - Revenue v/s capital - Held that:- The assessee has not been able to show as to who authorised M/s. Pyramid Saimira Entertainment Ltd., to receive payment from the assessee to be disbursed to the exhibitors who have actually suffered the loss. There is nothing on record to show whether the payments have been actually received by the persons who have suffered losses. Therefore, from the records, we find that M/s. Pyramid Saimira Entertainment Ltd., has no locus standi.
The assessee made the said payments to protect its goodwill in the market. The assessee has to operate and do business in the market in future as well, the assessee had to maintain its goodwill. The assessee has not been able to show from the agreements dated February 16, 2008 or supplementary agreement dated July 28, 2008 that the said payment is made in accordance with the covenants of agreement. A perusal of records, as well as the assessee's own admission make it absolutely clear that the payment was not made to discharge any legal liability. The payment was made either voluntarily or out of pressure from the market forces but it was certainly not out of business obligation. The assessee made the payment in the form of compensation to stay afloat in the business
The assessee has not been able to show that the payments were actually received by the persons who suffered losses. This casts a shadow over the genuineness of the payment. Even if the payment is believed to be genuine, the same is held to be capital in nature and thus cannot be allowed under section 37 of the Act. - Decided against assessee.
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2014 (5) TMI 1041
Non deduction of tds - demand raised under section 201(1) and interest under section 201(1A) - "assessees-in-default" for non-deduction of tax at source on the interest paid to the depositors - Held that:- A plain reading of section 197A(1A) shows that the said provision overrides the provisions of section 194A if the modalities prescribed in section 197A(1A) are complied with. The section further states that the person responsible for paying any income of the nature referred to in section 194 or section 194A or section 194K shall not deduct tax under any of the abovesaid sections in the case of a person, if such person furnishes a declaration in writing in duplicate in the prescribed form and verified in the prescribed manner. Hence, it was contended by the learned authorised representative that the assessee cannot deduct tax at source, if the recipient of the interest amount furnishes declaration in the prescribed form.
We have already noticed that the duplicate copies of declarations furnished by the depositors in Form 15H/15G are required to be filed with the Chief Commissioner or Commissioner. Under these circumstances, it is not clear as to how the Income-tax Officer (TDS) can reject those declarations furnished by the depositors. We notice that the tax authorities have not addressed these contentions also.
Thus the Income- tax Officer (TDS) has passed the impugned orders without properly addressing the various contentions of the assessee. Accordingly, this matter requires fresh examination at the end of the Assessing Officer. Restore all the matters to the file of the Income-tax Officer (TDS) with the direction to examine all the issues afresh by duly considering various contentions urged by the assessee and take appropriate decision in accordance with the law. - Decided in favour of assessee for statistical purposes.
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2014 (5) TMI 1040
Seizure of goods - non furnishing of the requisite documents - Cancellation of invoice - Held that:- even if for noncompliance of any of the provisions of the VAT Act and when the goods were brought into the State of Gujarat and it can be considered to be the local sale, in that case also, the liability under the VAT Act towards tax, interest and penalty would be ₹ 5,69,989/-. Now, when the petitioner who is the original owner of the goods is ready and willing to deposit the aforesaid amount towards tax, penalty and interest, which can be the maximum liability under the VAT Act and when the owner/proprietor of M/s. Saloni Trading Company in the form of affidavit has stated that he has not purchased any goods from the petitioner, meaning thereby M/s. Saloni Trading Company is not the owner of the goods in question, it will be just and proper to direct the respondents to release the goods which is under seizure on payment of the aforesaid amount of ₹ 5,69,989/- as no fruitful purpose would be served to continue the goods in question under seizure. - Decided partly in favour of assessee.
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