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Showing 181 to 200 of 1255 Records
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2015 (5) TMI 1082
Treatment of income earned from sale and purchase of shares - short term capital gains or business income - Held that:- Memorandum and Articles of Association of the assessee company does not allow it to trade in shares and it has been consistently investing its money as an investor in shares. No borrowed funds have been used for making the share transactions. The assessee has also earned substantial income from long term capital gain and also dividend income. All these facts prove beyond doubt that the intention of the assessee has always been to invest the money in shares and not the trading in shares. High frequency of the transactions cannot be the sole factor in holding the assessee as a trader. Even there is no minimum holding period of shares is prescribed under the statute for treatment of the same as short term capital gain. Thus in our view, the assessee has to be treated as an investor and the income earned from purchase and sale of shares is to be treated as short term capital gain. - Decided in favour of the assessee.
Dividend stripping - Held that:- The Assessing Officer noted that the assessee had purchased and sold shares of three companies within the time prohibited under section 94(7) of the Act which had resulted in loss. The Assessing Officer, therefore, reduced the loss suffered by the assessee to the extent of dividend earned which was computed at ₹ 2,983, and added back the same to the income of the assessee. The learned CIT(A) upheld the addition. No infirmity in the impugned order on this issue and this addition is accordingly confirmed.
Disallowance of deduction under section 35D - Held that:- Asssessee debited ₹ 3,204 to the Profit & Loss account as preliminary expenses. The Assessing Officer noted that the capital employed was ₹ 2,00,000 and deduction of preliminary expenses was allowable only to the extent of ₹ 500. He, therefore, disallowed the deduction of balance of ₹ 2,704. The learned A.R. for the assessee has not advanced any arguments on this issue. No infirmity in the order of the learned CIT(A) while upholding the disallowance on this issue. Thus, the ground raised by the assessee is dismissed.
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2015 (5) TMI 1081
Valuation (Central Excise) - The decision in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II Versus SHRUTI SYNTHETICS LTD. [2004 (9) TMI 260 - CESTAT, NEW DELHI] contested - Held that: - Having regard to the minimal tax effect the appeal is dismissed.
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2015 (5) TMI 1080
Offences involving in money laundering - bail application - Held that:- As further investigation in the matter is still on and as per respondent, it may take one and half month to complete. The said statement was made two weeks ago. As the petitioners are in judicial custody, considering the offence serious in nature, thirty days are granted to the respondent to complete the further investigation as last chance. Thereafter, the petitioner would be entitled to move a fresh application for regular bail before trial court and same be decided on urgent basis.
In the nature of the present case, without expressing any opinion on the merits of the case and also with regard to the claim of the respondent, the Court is not inclined to grant the relief of releasing the petitioner on bail at present as further investigation may prejudice the case of respondent.
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2015 (5) TMI 1079
Non-eligibility to avail exemption under Notification 203/92-Cus., dated 19-5-1992 - DEEC licence - the respondent has failed to produce proof regarding non-availment of Modvat credit or reversal of Modvat credit as envisaged in the DEEC Scheme - Held that: - reliance on certificate issued by the C.A. as also on a letter of Supdt., in the Grounds of Appeal we find that this fact has not been contested by the department. We also find the first appellate authority has given liberty to verify the correctness of the certificate given by the C.A. on which there is no information from both sides. In our considered view, if the first appellate authority has relied upon the certificate issued by the C.A. and a letter of Supdt., to uphold the respondent’s contention that they have not availed Cenvat credit, nothing survives in this appeal as the same are not controverted. In the facts and circumstances of the case, we find that the impugned order is correct, legal and does not suffer from any infirmity - appeal dismissed - decided against Revenue.
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2015 (5) TMI 1078
De-freeze of bank account allegedly been done under the provisions of The Prevention of Money Laundering Act, 2002 - whether this Court is to scrutinize the source of the funds and whether the action of the authorities is justified?
Held that:- We are well aware that the power of freezing is a draconian power and safe guards have to be kept in mind to check its abuse and limit its exercise. However, a balance has to be maintained between the right of the citizen and the right of the investigating agency which cannot be restricted as it is the duty of the said agency to unearth and find out the modus operandi resorted to by the noticees and the beneficiaries of the proceeds of the crime. This exercise is thus to be adjudicated upon by the adjudicating authority before whom the complaint has thus to be filed expeditiously within a period of 30 days of the freezing under Section 17(4) of the PMLA and which has been done in the present case. It is trite law that the right of investigation cannot as such be trampled upon by this Court and the purpose of freezing cannot be ignored regarding the interest of the revenue also so that the proceeds of crime are not frittered away. The parties have to be given a reasonable level playing field. This cannot be achieved by permitting oral applications thus depriving the respondents an opportunity of meeting the petitioner's case in a reasonable manner.
Admittedly, under 17(4) of the PMLA, an application has been filed on 11.02.2015 (Annexure R-11) for retention of the records and the property seized by the Deputy Director in which details have been given of 108 bank accounts and various immovable properties owned in Himachal Pardesh owned by Shri Mukesh Mittal and his associates. The said adjudicating authority has issued notice dated 23.02.2015 (Annexure R-12 colly) to the petitioner as to why the said documents seized or frozen should not be retained as involved in money laundering and required for the purpose of investigation. A similar notice had also been issued to the husband of the petitioner to put in appearance apart from 43 other defendants. Normally and in the first instance, it is for the adjudicating authority to decide whether the order of freezing is to continue or not under Section 8(3) and in such circumstances, it would not be within the ambit of this Court to get into the disputed questions as to where the money lying in the fixed deposits bank accounts has come from.
Keeping in view the settled principle that under Article 226 of the Constitution of India, we do not intend going into the questions of fact which in all probability are disputed. The argument raised that the money lying in the accounts are from justified sources of income thus cannot be gone into by this Court at this stage. However, it is made clear that anything said herein is only for the purpose of deciding the present writ petition and will not affect the petitioner's case before the authorities or in any other proceedings.
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2015 (5) TMI 1077
Unexplained cash credit - peak credit addition - Held that:- The assessee issued cheques in favour of one Shri Esakki Muthu and Shri Chermakani, both are employees of M/s. Jenson Enterprises P. Ltd. The reason for issuing cheques was not known. The fact remains that monies from the assessee's savings bank account with Axis Bank were withdrawn by these two employees on the basis of the cheques issued by the assessee. The assessee claims that he was withdrawing the money from Chennai and redepositing at Tuticorin. When the assessee could withdraw at Tuticorin itself from the very same savings bank account, it is not known why this amount was withdrawn from Chennai and taken to Tuticorin for redeposit.
Similarly, the money from the very same savings bank account was withdrawn from Tuticorin and was used to deposit in Chennai. Though this kind of statement is unbelievable, the Commissioner of Income-tax (Appeals) found that the money withdrawn would be available for the subsequent deposit, therefore, directed the Assessing Officer to take only peak credit. Therefore, the assessee cannot have any grievance on the direction given by the Commissioner of Income-tax (Appeals) to take peak credit. - Decided against assessee
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2015 (5) TMI 1076
Denial of cenvat credit benefit - input services namely, AMC on Computer, Courier charges, photocopy charges, rent-a-cab and AC Hire charges - invocation of the extended period of limitation - Held that:- Proceedings initiated by the Central Excise Department for recovery of cenvat credit is barred by limitation of time, inasmuch as, the period involved in the present case is 2009-10, whereas show cause notice, seeking recovery of cenvat credit was issued in August, 2011. For invocation of extended period of limitation, the Department has to prove with tangible evidence that there is element of suppression, misstatement, etc. on the part of the assessee, with intent to evade payment of duty. The ingredients mentioned in the proviso to section 11A of the Central Excise Act, 1944 are absent in the present case for invocation of the extended period of limitation.
See Moser Baer India Ltd. vs. CCE, Noida (2015 (1) TMI 1093 - CESTAT NEW DELHI ) while allowing the appeal in favour of the appellant has held that since the credit taken by the appellant are reflected in the statutory records, no suppression of fact or misstatement or malafide intension can be attributed for invoking the longer period of limitation. - Decided in favour of assessee
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2015 (5) TMI 1075
Transfer pricing adjustment - selection of comparability - Held that:- A comparable having a different accounting year cannot be a valid comparable. In the case under consideration the assessee is following financial year ending whereas the comparable chosen by the TPO is having calendar year ending.
Megasoft Ltd. cannot be taken as a valid comparable for software development company thus should be excluded from the comparables. As far as KLAS Information Systems Ltd. is concerned, it is found that company has revenue’s from software products as well as software development, whereas the assessee is engaged in the business of software development only. We therefore, agree with the assessee that the company i.e. KLAS Information Systems is not a good comparable. If both these comparables are taken out of the list of the TPO the profit margin in case of the assessee comes within the permissible range and no upward adjustment would be required to be made.
The nature of the service provided by Autodesk India Pvt. Ltd. were of different nature as compared to the services rendered by the assessee. Considering the facts and circumstances of the case effective ground of appeal is decided in its favour and additional ground is allowed for statistical purposes
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2015 (5) TMI 1074
Refusal of the appellants to sanction financial assistance under the “Scheme of Promotion of Industries in North East” (SPINE) on the ground of delay and laches - Held that:- We see no weighty or cogent reason for the respondents to wait till the earlier Special Leave Petition was dismissed on 01-05-2009 by this Court to embark upon their pursuit for redress in similar terms. Their writ petitions dated 27-08-2009 also do not evince that the same were filed after the letter/notification dated 04-05-2010. In our considered opinion therefore, the respondents were deliberately bidding time to seek judicial remedy in case their co-applicants under the scheme emerged successful in their adjudicative enterprise. As the initial decision conveyed by the letter dated 05-02-2007 to stop further sanction/disbursement of Grant-in-Aid under the scheme pending scrutiny of the report of the industrial units involved did eventually metamorphosise in the closure/withdrawal of the scheme, there is an apparent correlation between the intervening developments conveyed from time to time eventuating in such a conclusion. The merit of the factums leading to this decision however has not been questioned or impeached.
On a consideration of the totality of the aspects involved, we are thus of the unhesitant view that the respondents herein in view of their deliberate laches, negligence and inaction have disentitled themselves to the benefit of the adjudication in the earlier lis. In the accompanying facts and circumstances in our comprehension, it would be iniquitous and repugnant as well to the public exchequer to entertain the belated claim of the respondents on the basis of the doctrine of promissory estoppel which is even otherwise inapplicable to the case in hand.
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2015 (5) TMI 1073
Addition of unrecorded sales detected during assessment proceedings - Held that:- Entire turnover cannot be added to the income of assessee and profits embedded in the turnover can only be taxed. The assessee did not produce vouchers / bills to support the increase in expenditure in his revised P & L account. Therefore, instead of 8% of turnover to be included as profits on undisclosed turnover, we hold that an amount equivalent to 12% of turnover be included in the income of assessee. In view of the above, the A.O. is directed to delete the addition on account of unrecorded turnover and instead, make an addition equivalent to 12% of undisclosed turnover.
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2015 (5) TMI 1072
Commercial coaching or training services - activity of providing courses in the areas of management, information technology, engineering and issue certificates of diploma, degree and post graduation for such courses conducted - the decision in the appellant's own case [2014 (9) TMI 345 - CESTAT MUMBAI] referred where it was held that the services rendered are liable for service tax and interest thereof, but the penalties imposed are set aside - Held that: - the same issue involves and the decision of the case apply.
Demand of service tax confirmed - penalties set aside on the ground that there was a bona fide belief in not discharging the service tax liability and section 80 invoked - appeal disposed off - decided partly in favor of assessee.
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2015 (5) TMI 1071
Adjustment of refund claim towards the arrear of Govt. dues - Held that:- Section 11B of Central Excise Act, 1944 deals with claim for refund of central excise duty. In sub-section (2) of Section 11B, it has been provided that if the refund sanctioning authority is satisfied that the refund is allowable, then the amount of refund shall be sanctioned to the applicant. Since there is no specific restriction imposed in Section 11B of the Act for adjustment of any arrear dues from the refund amount, the same cannot be adjusted by the statutory authority.
The provisions for recovery of Govt. dues are contained in Section 11 of the Central Excise Act, 1944. In the adjudication order, Section 11 of the Act has not been invoked for adjustment of the refund amount towards arrear dues. Thus, such adjustment is contrary to the statutory provisions.
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2015 (5) TMI 1070
Refund claim - excess Central Excuse duty paid - error in preparation of invoice - the decision in the case of Commissioner of Central Excise Kolkata vs Oriental Textiles Processing Co. Pvt. Ltd [2012 (5) TMI 247 - CESTAT, NEW DELHI] referred - Held that: - upon proper scrutiny and analysis of the refund application, the Original Authority has sanctioned the refund in favor of the appellant. The findings of the Original Authority proves beyond any shadow of doubt that the excess central excise by the appellant incorrectly has been entirely borne by it and has not been transferred to the buyer or any other person - denial of the refund benefit and transferring the amount to the consumer welfare fund is not in conformity with the statutory provisions.
The issue in the case of Oriental Textile is entirely different and is not applicable to the present case - appeal allowed - refund allowed - decided in favor of appellant.
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2015 (5) TMI 1069
Recovery of irregularly availed cenvat credit - partnership firm engaged in the manufacture of Parts of Motors & Generators, parts of Railway Locomotives and Threaded Articles of Iron & Steel - raw materials MS Plates, HR Plates, Sheets, Angles, Channels, Rounds, Square, Bar, Steel Wire and Welding Electrodes, Bearing and Paints etc - cenvat credit of ₹ 17,49,974/- availed fraudulently on the basis of documents without receipt of 716.1225 MT of MS Steel/Sheets - Held that: - the lower Authorities have held the case in favor of the Respondent by holding that there was no error involved in availing credit.
The quantity of the goods in terms of weight cannot be compared with the number of the parts/ equipments sold, as complete details of purchase made have not been provided to the department.
The allegation of non-receipt of raw material and availment of cenvat credit on proper documents are not sustainable because from clearance of so much value of finished goods, used quantity of raw material, the value addition must be more than 300% of raw material cost, which is not acceptable for considering the nature of goods handled by the Respondent.
The purchase transactions were made only through cheque i.e. bank transactions - the allegation of non-receipt of the input goods not sustainable.
The balance amount after utilization of CENVAT credit has been paid by the Respondent from their PLA account, which shows that there is no fraudulent availment of Cenvat Credit.
Denial of CENVAT credit and recovery of amount not justified - appeal rejected - decided against Revenue.
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2015 (5) TMI 1068
Depreciation on assets given under 'sale and lease back basis' - Held that:- As in assessee’s own case for earlier assessment years i.e. A.Ys.1995-96 to 1999-2000 wherein the Tribunal directed the Assessing Officer to allow claim of depreciation on the assets given under sale and lease back basis and the Assessing Officer was also directed to withdraw any corresponding benefit given to the assessee by excluding the value of capital component of the lease rent from the income of the assessee. In arriving at such conclusion the ITAT, in the following orders, followed the decision of Hon'ble Apex Court in the case of I.C.D.S. Ltd. [ 2013 (1) TMI 344 - SUPREME COURT ]
Disallowable u/s. 14A - Held that:- As in the case of Godrej Boyce Manufacturing Co. (2010 (8) TMI 77 - BOMBAY HIGH COURT) wherein it was held that Rule 8D is prospective in operation and hence disallowance, if any, has to be made in accordance with section 14A of the Income Tax Act and the tax authorities ought to have verified the reasonableness of interest referable to exempt income. Thus we hereby set aside the order of learned CIT(A) and restore the matter back to the file of the Assessing Officer with a direction to the Assessing Officer to re-examine the matter in the light of the provisions of section 14A of the Act.
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2015 (5) TMI 1067
Assessment under the Luxury Tax Act - banquet sales bills - Rule 3C brought into rules as per SRO 566/2006 dated 28/07/2006 which prescribes procedure for computation of rent or other charges realized for hall, auditorium, Kalyanamandapam etc. where such rent or other charges are not separately ascertainable - whether Rule 3C of the Rules which was introduced only subsequent to the year of assessment, i.e. 2005-06, Rule 3C procedure can be relied on for determination of luxury tax? - Held that: - Merely because there is no definite procedure as contemplated under Rule 3C for determination of luxury tax in the year 2005, it does not divest the petitioner from any liability to pay luxury tax in the light of non obstante clause under Section 4(2) of the Act. Though, Rule 3C would not apply, its yardstick can be applied to arrive at as a best judgment - no infirmity with the calculation of the luxury tax.
Whether the petitioner is entitled for credit of the payment already made for the entire amount towards sales tax? - since the petitioner has already paid VAT on full value on banquet sales, excess VAT paid has to be set off against luxury tax payable. Fresh assessment shall be made after giving credit to the excess VAT paid.
Petition disposed off - decided in favor of petitioner.
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2015 (5) TMI 1066
TDS u/s 194C - payment to the truck owners - non deduction of tds - disallowance under section 40(a)(ia) - whether the assessee has duly received the Form No. 15-I from the t ruck owners but could not deposit the same before the ld. CIT(Appeals)? - Held that:- Restore the issue to the file of the Assessing Officer with the direction that the assesese shall file all these forms 15-I which has been received by him. The Assessing Officer will duly examine these forms and in case he finds that these forms are in order, to that extent the assessee should not be treated to be in default. - Decided in favour of assessee for statistical purposes.
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2015 (5) TMI 1065
'Official secret' for the purposes of prosecuting Mr. Prashant Bhushan - Held that:- It is true that this Court had required the Director, CBI to ensure, by its order dated 8th May, 2013 that the secrecy of the inquiries and investigations into the allocation of coal blocks is maintained. However, if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistle blower particularly when his or her action is in public interest. It is another matter if the whistle blower uses the documents for a purpose that is outrageous or that may damage the public interest. In that event, it would be permissible for this Court or an appropriate Court to take action against the whistle blower, if he or she is identified. However, the present case is not of any such category.
The whistle blower, whoever it is, acted purportedly in public interest by seeking to bring out what he or she believes is an attempt by Mr. Ranjit Sinha to scuttle the investigations into the affairs of the Dardas or others in the Coal Block Allocation case. As mentioned above, we are not considering whether the file notes actually disclose an attempt by Mr. Sinha to scuttle the investigations. All that is of relevance is whether the disclosure by the whistle blower was mala fide or not. We are of the opinion that the disclosures made by the whistle blower were intended to be in public interest.
In these circumstances, it is difficult to hold that Mr. Prashant Bhushan or Common Cause or Mr. Kamal Kant Jaswal had any intention to mislead this Court in any manner, nor do we agree that they have perjured themselves. The file notes speak for themselves and any interpretation, even an allegedly twisted interpretation said to have been given to them, cannot fall within the realm of perjury. As far as the allegation that there has been a violation of the provisions of the Official Secrets Act, 1923 is concerned, we are of the opinion that the file notes in this case cannot be described as an ‘official secret’ for the purposes of prosecuting Mr. Prashant Bhushan.
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2015 (5) TMI 1064
Valuation – C & F agent service - transportation charges – is reimbursement charges includible in the assessable value for charging service tax? Held that: - the issues taken up and already decided in the case J.N. Traders Vs. CCE [2007 (3) TMI 34 – CESTAT, CHENNAI], where it was held that re-imbursement of expenses on actual basis towards freight is not liable to be included in the value of taxable C&F agent service.
Power of Commissioner (appeals) to remand the case - amendment to Section 35A of the Central Excise Act, 1944 with effect from 11.5.2001 - Held that: - this has been held in the case CCE, Jalandhar Vs. B.C. Kataria 2007 (9) TMI 167 - HIGH COURT OF PUNJAB & HARYANA that once power of remand has been expressly taken way by the Finance Act, 2001, which came into operation with effect from 11.5.2001, the Commissioner (Appeals) is divested of power to remand the case back to the adjudicating authority.
Matter remanded to the Commissioner (Appeals) with direction that the required verification in terms of paras 9 & 10 of the impugned order-in-appeal shall be conducted at his end and appropriate orders passed – appeal disposed off – decided against Revenue.
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2015 (5) TMI 1063
Demand - non-accountal for the entire quantity of plywood manufactured by appellant during the period from 16.12.2000 to 31.3.2004 - Held that:- it is found that the whole case of the department is on the ground that 2 sq. mtrs face veneer are required to produce 1 sq mtr plywood. As submitted by appellant, other than the statement of Shri P.K. Dash, no evidence has been gathered and no technical literature has been used and no sample has been drawn and tested. In these circumstances, the submission of the appellant that the impugned order has no merit has to be accepted. Accordingly, the impugned order is set aside. - Decided in favour of appellant
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9911796707
