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Showing 21 to 40 of 2055 Records
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2017 (11) TMI 2038 - TELANGANA HIGH COURT
Deduction u/s 10A - whether required to be allowed before adjusting the brought forward losses and unabsorbed depreciation? - HELD THAT:- It is clear from the ratio laid down in CIT VS. YOKOGAWA INDIA LIMITED [2016 (12) TMI 881 - SUPREME COURT] that the unit that is contemplated for grant of benefit of deduction is the eligible undertaking (unit), that the stage of deduction of the profits and gains of the business of an eligible undertaking has to be made independently, that at that stage, the aggregate of the incomes under other heads and the provisions for set off and carry forward under Sections 70, 72 and 74 of the Act, would be premature for application of Section 10A.
It can be further culled out from the said judgment that, deductions under Section 10A of the Act would be prior to the commencement of the exercise to be undertaken under Chapter VI of the Act, for arriving at the total income of the assessee from the gross total income. The Supreme Court also termed the use of words, “total income of the assessee” under Section 10A as somewhat discordant and held that the said expression has to be construed as a total income of the undertaking. Decided in favour of assessee.
Income u/s 10A is an exemption or deduction - The Supreme Court in CIT VS. YOKOGAWA INDIA LIMITED [2016 (12) TMI 881 - SUPREME COURT] held that Section 10A as amended, is a provision for deduction. This question is answered accordingly.
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2017 (11) TMI 2037 - SUPREME COURT
Validity of Supplementary Report filed Under Section 173 of Code of Criminal Procedure. dated 26.04.2007 by the Investigating Officer - It is stated in the Report itself that the charges are added at the instance of the National Commission for Scheduled Castes - HELD THAT:- No detailed discussion is warranted on the well-settled proposition that no external agency can dictate the course of investigation in a criminal case. It is within the exclusive jurisdiction of the police.
The Court also cannot supervise the investigation. However, in exceptional situations, Superior Courts may monitor an investigation. But that is not the same as supervision - No doubt, superior officers of police may exercise their powers Under Section 36 Code of Criminal Procedure in supervising the investigation. In the instant case, it appears that the direction was issued on the basis of a complaint filed by Respondent No. 2 before the Commission. It is not clear as to whether the Commission had conducted any inquiry before issuing direction to the Police. At any rate, it is submitted that the Appellants have not been involved in any such inquiry. Equally, it is not clear whether the second Respondent had made out a case for the intervention of the Commission under the Rules of Procedure of National Commission for Scheduled Castes.
From a perusal of contents of the NCR bearing No. 96/04 dated 25.07.2004, it is clear that the ingredients Under Section 3(1)(x) have not been made out. There was not even a whisper of allegation of harassment based on caste. That is why the first chargesheet was only Under Sections 323, 504 and 506 of the Indian Penal Code. It is over two years later that the Respondent No. 2 appears to have complained to the Commission. Under Rule 7.5.2(vi), the Commission is empowered to conduct an inquiry to "whether proper charge sheet has been filed mentioning the relevant Sections of Indian Penal Code together with the PCR Act, 1955 and SCs & STs (POA) Act, 1989 in Court". This is not a power to dictate the course of the investigation. The Commission is competent to point out any lapses or laches in the investigation. The Commission could only have brought to notice of the Police the need for a proper or further investigation and it was for the Police to take a call.
The High Court ought to have exercised its jurisdiction Under Section 482 Code of Criminal Procedure to secure the ends of justice. There is no prohibition under law for quashing a chargesheet in part. A person maybe Accused of several offences under different penal statutes, as in the instant case - A chargesheet filed at the dictate of somebody other than the police would amount abuse of the process of law and hence the High Court ought to have exercised its inherent powers Under Section 482 to the extent of the abuse. There is no requirement that the chargesheet has to be quashed as a whole and not in part.
This appeal is allowed. The Supplementary Report filed by the Police, at the direction of the Commission, is quashed.
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2017 (11) TMI 2036 - ALLAHABAD HIGH COURT
Non-service of SCN - Seizure of goods - goods have been seized but no seizure order has been served upon him - HELD THAT:- It is to be noted that upon furnishing personal bond in pursuance of the order of this Court dated 06.06.2017, the goods have been released. However, the learned counsel for the petitioner submits that since seizure order has not been served, no further proceeding can be initiated by the authority.
The writ petition is disposed of with direction to the respondents concerned that, in case, seizure order has not been served upon the petitioner till date, the same shall be served upon the petitioner within two weeks from today.
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2017 (11) TMI 2035 - ITAT BENGALURU
TP Adjustment - outstanding receivable from Associated Enterprises exceeding 6 months, thus par take character of the loan - as per TPO non-charging of interest requires ALP adjustment and applying the yield rate on B rate Bonds @ 13.46% on the outstanding debts exceeding 6 months suggested - whether transaction of allowing excess period of credit to Associated Enterprises without charging any interest during such credit period would amount to International Transaction within the meaning of section 92B? - HELD THAT:- Transaction of receivables from Associated Enterprises is International Transaction and not charging interest for a period exceeding 6 months requires ALP adjustment. Therefore the grounds of appeal filed by the Assessee are dismissed.
Deduction u/s 10A - reducing loss of Hyderabad unit against Chennai unit - HELD THAT:- This issue is no longer res integra, as it is covered by the decision of CIT vs. Yokogawa India Ltd. [2016 (12) TMI 881 - SUPREME COURT] wherein it was held that deduction u/s 10A is qua the eligible under taking of the assessee standing on its own without reference to other eligible units or undertakings of the Assessee. Benefit of deduction u/s 10A is given to the undertaking and the deduction u/s 10A would be prior to the exercise to be undertaken under chapter IV for arriving at the total income of the Assessee.
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2017 (11) TMI 2034 - CESTAT ALLAHABAD
Reversal of CENVAT Credit - sludge/waste under the provisions of Rule 6(3) of CCR, 2004, inevitably arising during manufacture of paper and paperboard - HELD THAT:- The issue herein is squarely covered in favour of the appellant by ruling of the Coordinate Bench of this Tribunal in M/S. MAGNUM VENTURES VERSUS CCE., GHAZIABAD [2014 (4) TMI 416 - CESTAT NEW DELHI] where it was held that The sub-heading 47 07 90 00 specifies unsorted waste and scrap. In as much as the entry relates to waste and scrap of paper or paper board and not to sludge and pulper waste, the same cannot be held to be covered by the said entry.
Appeal allowed.
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2017 (11) TMI 2033 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
Condonation of delay in filing appeal - Transfer petition - to be treated as an application under Section 9 of the IBC in view of pendency of case under Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- It is found that there being defect the appeal was taken back and after removal of defects if was filed on 7th September, 2017. If thirty days' period is calculated, it comes to 12th August, 2017 and fifteen days thereafter that if allowed, the appeal should have been filed by 27th August, 2017. However, 27th August, 2017 being holiday at best the appeal could have been entertained if it would have been filed by 28th August - after removal of the defects the appeal was filed on 7th September, 2017.
As the appeal has been filed beyond the period of forty-five days i.e. thirty days of filing and further fifteen days' period, this Appellate Tribunal could have allowed, thus, this Appellate Tribunal has no jurisdiction to condone the delay.
The petition for condonation of delay is accordingly rejected - the appeal is dismissed being barred by limitation.
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2017 (11) TMI 2032 - CESTAT MUMBAI
Demand of SAD - department has granted the rebate of the CVD - Purchase of imported Raw/Crude Naphthalene from the trader and availed the cenvat credit of CVD & SAD - HELD THAT:- Though the appellant was supposed to debit the SAD amount in respect of removal of inputs for export but non-debiting the SAD demand cannot be made for the reason that the raw/naphthalene on which the credit taken was admittedly exported. Once the goods have been exported no duty demand can be made. More over the appellant have been granted rebate in respect of CVD paid by them. Therefore even if had the appellant paid the duty at the time of removal, the same was refundable to them along with the CVD, therefore it is a clear case of revenue neutrality. Even there is a provision for removal of goods without payment of duty under bond, which takes care till the goods are exported and thereafter bond also stands discharged once the goods physically exported. In the facts of the present case there is no dispute about the physical export of goods therefore even as per Rule 19 of the Central Excise Rules, 2002 no duty is chargeable.
The impugned order is set aside - Appeal is allowed.
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2017 (11) TMI 2031 - CESTAT AHMEDABAD
CENVAT Credit - input services - Design charges-brochures catalogues - Valuation of land and factory - Services charges towards 50 years celebration - Management consultancy service - Annual Membership subscription to industry association - Repairs and Maintenance service - Photocopy services - and Hotel Accommodation charges relating to office work - HELD THAT:- The admissibility of credit on the above services is covered by the judgment of this Tribunal in the case of M/S RELIANCE INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, LTU, MUMBAI [2016 (8) TMI 123 - CESTAT MUMBAI], M/S HCL TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE AND SERVICE TAX, NOIDA [2015 (9) TMI 1037 - CESTAT NEW DELHI] and TOYOTA KIRLOSKAR MOTOR PVT. LTD. VERSUS CCE., LTU, BANGALORE [2011 (3) TMI 1373 - KARNATAKA HIGH COURT].
In the aforesaid judgments the service tax paid on the various disputed services have been held to be eligible to credit being input services as defined under Rule 2(l) of CCR, 2004.
The impugned order is set aside and the appeal is allowed.
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2017 (11) TMI 2030 - ITAT CHENNAI
Income accrue or arise in India - Taxability of Foreign[salary] income in India - income received by the assessee towards salary for an employment outside India - assessee was seconded to Switzerland to work - Number of stay in India - During FY 2013-14, the assessee was in India for less than 182 days and qualified as a Non Resident as per explanation (a) to section 6(1) - exemption of salary under Article 15(1) of the Double Taxation Avoidance Agreement (tax treaty) between India and Switzerland seeked - HELD THAT:- As the salary is includible in the assessment under section 5(2)(a) of the Act, which says that any income received by a Non-Resident in India is taxable in India. There is a fair finding in the order of the lower authorities that there is no dispute that the salary was received in India. This should put end to the controversy, therefore, it was rightly taxed in India u/s.5(2)(a).
In the present case, the salary income was received by the assessee in India. It is necessary to examine whether the salary is deemed to accrue or arise in India by applying the Sec.9(1) and Explanation thereto. In my opinion, the Explanation to 9(1)(ii) says that where the salary is payable for services rendered in India, the same shall be regarded as income earned in India.
The effect of Explanation is that it is no longer open to an assessee to say that though he rendered services in India, since the contract of employment was entered into outside India, the salary could not be said to have accrued or arisen in India. In such a case, the Explanation deems the salary as having accrued or arisen in India, notwithstanding that the contract of employment was entered into outside India. From the Explanation it is not permissible to infer the corollary, viz. that in all cases where services are rendered outside India, the salary cannot be deemed to accrue or arise in India. The Explanation deals with a different situation and its scope should not be extended to cases which are not contemplated by it.
AO has rightly applied the first part of sec.5(2)(b). He held that since the contract of employment had been entered into in India and since all rights flowing there from were also enforceable in India, the salary must be held to have accrued or arisen to the assessee in India. He had not, therefore, considered it necessary to address the question as to whether the salary could be ‘deemed’ to accrue to the assessee in India.
The salary received by the assessee has accrued or arisen to the assessee in India, for the reasons given by A.O with which I fully agree and it is, therefore, not necessary to examine the question whether the salary is also deemed to accrue or arise to the assessee by applying s. 9(1) and the Explanation thereto. Therefore, the salary received by the assessee in India was taxable u/s.5(2)(a) on receipt basis and also as having accrued or arisen to him in India u/s.5(20(b). Sec.9(1)(ii) read with Explanation thereto was not relevant for the controversy.
As in view of Article 15(1) of the DTAA with Switzerland, the said salary is not taxable in India. I have gone through Article 15(1) of the DTAA - In my humble opinion, Article-15 of DTAA with India and Switzerland, exemption allowable to only resident Indian and not to the nonresident. In the present case, there is no dispute that as the assessee is a non-resident, the said Article is not applicable. This view is fortified by the order of Tribunal in the case Shri Swaminathan Ravichandran [2016 (8) TMI 1498 - ITAT CHENNAI]
The decision in the case of Captain A L Fernandez [2001 (12) TMI 873 - ITAT MUMBAI] clearly lays down that salary for services rendered aboard a ship outside the territorial waters of any country would be taxable in India, if it was received in India as per Section 5(2)(a) of the Act.
Following the decision of Captain A L Fernandez [supra] the salary income received by the non-resident taxpayer in the present case were held as taxable in India by virtue of receipt in India as per Section 5(2)(a) of the Act. Decided against assessee.
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2017 (11) TMI 2029 - RAJASTHAN HIGH COURT
Unexplained cash credits u/s 68 - HELD THAT:- As assessee is a broker and after payment report received, the CIT(A) has rightly observed in favour of the assessee. We are in complete agreement with the view taken by the CIT(A) and the Tribunal. Therefore, both the issues are answered in favour of assessee against the department.
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2017 (11) TMI 2028 - ITAT MUMBAI
LTCG - sale of immovable property - Co-ownership - said plot was ancestral property and all the four brothers were equally eligible to share ¼th share in the sales proceeds during the year - HELD THAT:- This property was distributed among the 7 members and Shri Dhansukhbhai became the registered part owner of the said property - When the property was sold to Karamtaa Steel Pvt. Ltd. and assessee and two brothers and legal heirs of 4th brother are the co-owners. We also find from the sale deed wherein all the assessee and three brothers name are mentioned in the sale deed.
AO is not justified in adding the Long Term Capital Gain in the hands of the assessee. Therefore, we are of the opinion that AO and CIT(A) are not justifying this.
We allow the appeal of the assessee and restore this issue to the file of AO and is directed to verify whether the sale proceeds received was distributed amongst co-sellers of the property and co-sellers have filed their individual returns. The AO is directed to verify the same and allow the claim. Ground allowed for statistical purposes.
Deduction u/s 80C - HELD THAT:- As assessee did not file anything before us also, therefore we confirm the finding held by the Ld. CIT(A). In the result, appeal on this ground is dismissed.
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2017 (11) TMI 2027 - ITAT KOLKATA
Ex-parte order passed by CIT(A) - order making huge additions as the assessee has not co- operated in the proceedings - HELD THAT:- AO as well as the ld. CIT(A), has not considered the issues properly on merits. All the additions/disallowances were made on an ad-hoc basis without reference to any material on record. It is well settled that even a best judgment, assessment should be judicious.
In fact and addition has been made u/s 69 for expenses which are already recorded in the books, which is not correct in law. Such disallowance has to be deleted. The assessee has demonstrated that he was prevented by sufficient cause from appearing before the lower authorities on the dates of posting.
Thus on the ground of natural justice, set aside this assessment to the file of the AO for fresh adjudication, in accordance with law. Appeal of the assessee is allowed for statistical purposes.
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2017 (11) TMI 2026 - CESTAT KOLKATA
Clandestine removal - allegation solely based upon the comparison of the figures as reflected by the assessee in their RT-12 Returns and Sales Tax Returns - clandestine activities are required to be established beyond doubt or not - HELD THAT:- Admittedly, the findings of the lower authorities are solely based upon the Sales Tax Returns’ figures. The Tribunal’s decision in the case of VIGIROM CHEM PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE [2009 (8) TMI 1015 - CESTAT BANGALORE] laying down that the clandestine allegation cannot be made exclusively on the basis of record of sale of goods in the Sales Tax Returns. Otherwise also, the allegation of clandestine activities are serious allegation and are required to be based upon the evidences, which reflected upon the same.
In the present case, the Revenue has not made any investigation as regards the clandestine manufacture and clearance of the appellant’s final product. In such a scenario, the said finding is neither warranted nor justified.
The Revenue’s reliance on the Tribunal’s decision in the case of VICTOR COMPONENT SYSTEMS PVT. LTD. VERSUS COMMR. OF C. EX., DELHI-II [2015 (10) TMI 131 - CESTAT NEW DELHI] is not appropriate inasmuch as it is seen that in that case, the Revenue relied upon the entries made in private records seized and recovered from the appellant’s premises and the matter was remanded for re-quantification, by taking into account the sales figures as reflected in the Sales Tax Returns.
The impugned order set aside - appeal allowed.
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2017 (11) TMI 2025 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
Seeking sanction to the Scheme of Amalgamation - Sections 230 - 232 and other relevant provisions of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy.
Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition Nos. 805 and 807 of 2017 are made absolute - Application allowed.
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2017 (11) TMI 2024 - TELANGANA HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Declining to compound the offence qua the petitioner under Section 137 of the Customs Act, 1969 - HELD THAT:- The petitioner has the remedy of filing an appeal before the Customs, Central Excise and Service Tax Tribunal and a further remedy of appeal against the order that may be passed by the Tribunal to the Appellate Tribunal. No reasons have been put forth by the learned Counsel for the petitioner for by passing these efficacious remedies.
On this ground alone, the Writ Petition is dismissed without adjudicating the same on the merits of the case and with liberty to the petitioner to avail the afore-mentioned remedies at her option.
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2017 (11) TMI 2023 - ITAT MUMBAI
Income deemed to accrue or arise in India - Income taxable in India - Receipts of amount of offshore procurement - business connection must be established - whether the amount received by the assessee on account of was taxable in India as per the provisions of section 44BBB of the Act ? - HELD THAT:- The sums included under the head offshore procurements included the sums payable towards supply of equipment and machinery procured from outside India. There is no doubt that there was a clear demarcation in the work and cost between the members of the JV i.e. the assessee and PLL.
We are of the opinion that the facts of the case under appeal and of Ishikawajima [2007 (1) TMI 91 - SUPREME COURT] are almost similar as observed by the FAA. Therefore, confirming his order, we hold that the income earned by the assessee on account of offshore procurement, is not taxable u/s.44BBB of the Act. Appeal filed by the AO stands dismissed.
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2017 (11) TMI 2022 - DELHI HIGH COURT
Termination from the post of Postgraduate Teacher (Chemistry) in KVS - sexual harassment - constitutional validity of Article 81(b) of Education Code of KVS - Validity of judicial orders - questioning judicial orders by either filing letters on the administrative side or applications under the RTI Act - HELD THAT:- From the facts on record, it is apparent that letters had been written by the respondent to the Hon'ble Judges of the Apex Court when they were seized of the respondent's case in their judicial capacity - It seems strange to this Court that despite the respondent challenging the impugned termination order and allegations of sexual harassment by way of legal proceedings, he not only re-agitated the same issues but also questioned the judicial orders by either filing letters on the administrative side or applications under the RTI Act.
In fact, the respondent even sought quashing of Article 81(b) of Education Code of KVS as unconstitutional by way of applications on the administrative side and wanted to know the outcome of such applications under RTI Act! This is all the more unusual as the respondent is well conversant with the judicial process inasmuch as he has filed more than double digit judicial proceedings before various forums and courts till date.
This Court is of the view that where there is no information to be given or the applicant is seeking non-existent information or where the query is inherently absurd or bordering on contempt, like in the present case, the CIC should not have directed the petitioner to supply information and that too without considering whether the queries raised were maintainable under the RTI Act.
Since both the RTI Act, 2005 and the SCR aim at dissemination of information, there is no inherent inconsistency, other than the procedural inconsistency at the highest between the RTI Act and the SCR.
In the present case, maintaining two parallel machinery: one under SCR and the other under the RTI Act, would clearly lead to duplication of work and unnecessary expenditure, in turn leading to clear wastage of human resources as well as public funds. Also, request for hard copies of information (as contemplated under Section 7 of the RTI Act) in respect of those information which are already available and accessible in the public domain, under the mechanism contemplated under the SCR, will further lead to unnecessary diversion of resources and conflict with other public interest which includes optimal use of limited fiscal resources.
The RTI Act does not provide for an appeal against a Supreme Court judgment/order that has attained finality. It is clarified that queries under the RTI Act would be maintainable to elicit information like how many leaves a Hon’ble Judge takes or with regard to administrative decision an Hon’ble Judge takes; but no query shall lie with regard to a judicial decision/function.
Petition allowed.
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2017 (11) TMI 2021 - PATNA HIGH COURT
Validity of action of the management of Eastern Railway, Danapur in denying absorption of workmen S/Shri Brajesh Kishore Sinha and others - HELD THAT:- In SN. MUKHERJEE VERSUS UNION OF INDIA [1990 (8) TMI 345 - SUPREME COURT], the Supreme Court held that irrespective of the fact whether the decision is subject to appeal, revision or judicial review, the recording of reasons by an administrative authority by itself serves a statutory purpose viz., it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making.
It is well settled by now that reason is the life of law. It is an indispensable component of a decision making process. A nonspeaking and non-reasoned order smacks arbitrary exercise of judicial or quasi-judicial or even administrative power.
The impugned award cannot be sustained - Petition allowed.
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2017 (11) TMI 2020 - SC ORDER
Airport services - Interpretation of term "any service provided" - HELD THAT:- Application for exemption from filing certified copy of the impugned order is allowed - Permission to file additional documents is granted.
Issue notice on the application seeking condonation of delay in filing the appeal as also in the appeal.
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2017 (11) TMI 2019 - ITAT CHANDIGARH
Introduction of jewellery as stock in trade in the proprietorship concern of the assessee - assessee HUF has introduced raw gold and silver in its capital account - parent HUF of the assessee HUF had declared the jewellery in the VDIS Scheme 1997 accepted by the Income Tax Authorities and a certificate of acceptance was duly issued in favour of the assessee - HELD THAT:- Old and silver assets were declared by Babu Ram & Sons in the VDIS 1997 and due tax was paid thereupon. There was no question of doubting the occupation / possession of the assets in the hands of the declarants. Further, the assessment year under consideration is assessment year 2010-11, whereas, admittedly the wealth tax returns were filed pertaining to the assessment years 2001-02 to 2006-07 which have been duly accepted, hence, the holding the assets by the parent HUF, Babu Ram & Sons HUF cannot be doubted for the year under consideration.
As in the case of ‘CIT Vs. Kanchan Bhalla’ [2010 (7) TMI 124 - DELHI HIGH COURT] has held that just because the jewellery was not found in the earlier searches, it cannot be said that non-existent jewellery had been declared in the VDIS scheme, 1997. That it was not open to the Assessing officer to question existence of the said jewellery. That it had been declared under the VDIS scheme. No justification on the part of the lower authorities in making the addition on this issue and the same is accordingly ordered to be deleted.
Advances received from customers - unexplained receipts - Assessee explained that during the course of trading of jewellery, advance from customers were received against supply to be made in future, which is a normal business practice - HELD THAT:- It is an admitted fact that the assessee had shown advances from customers. All the advances have been made through banking channels. In the subsequent years, the sales have been booked and the profit has been offered for taxation. In these circumstances, we find no justification on the part of the lower authorities in making the impugned additions as unexplained receipts. The addition made by the lower authorities on this issue are also directed to be deleted. This issue is accordingly decided in favour of the assessee.
Addition of closing stock - discrepancy in the valuation of stock - HELD THAT:- CIT(A) after considering the submissions of the assessee observed that there was force in the arguments of the assessee. He further observed that it was a settled position of law that the method of valuation regularly followed by the assessee could not be tinkered with in the absence of any findings that there were inherent discrepancies because of which it was not possible to determine the correct income of the assessee. AO has not pointed out as to what was the discrepancy in the method of valuation adopted by the assessee. AO simply applied another method of valuation rejecting the method of valuation adopted by the assessee consistently for the past so many years which has also been accepted in the earlier assessment years. We, therefore, do not find any infirmity in the order of the CIT(A) on this issue and the same is upheld.
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