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Case Laws
Showing 201 to 220 of 1404 Records
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2016 (10) TMI 1204
Deduction u/s 80IB(10) - commencement certificate by the Municipal Authorities for the housing project - project be on the size of a plot of land which has a minimum area of one acre - Held that:- Date on which the earlier housing project had commenced construction could not be applied to the housing project consisting of 'E' building merely because the conditions set out while granting approval to the earlier housing project have also been made applicable to the housing project in question. Section 80IB(10) does not suggest that the plot of land must be vacant. Deduction is available on construction of a housing project on a plot having area of one acre, irrespective of the fact that there exist other housing projects or not.
Further, as contended by Revenue that two flats were merged and size of flat exceeded 1000 sq ft – It is found that there was no merger of flats. Therefore, Tribunal rightly allowed deduction u/s 80IB - See Commissioner of Income tax 25 vs. Vandana Properties [2012 (4) TMI 54 - BOMBAY HIGH COURT]– Decided in favor of assessee.
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2016 (10) TMI 1203
Long term capital gains assessed as per sec. 50C - assessee has sold the property for a consideration and invested in NABARD bonds for claiming exemption of capital gains - Held that:- In the assessee’s case, the assessee disputed the guideline value during the pendency of assessment proceedings and filed the appeal before the SRO Therefore, in all fairness, we consider it necessary to refer the valuation to the Departmental valuation cell for determining the fair market value. Accordingly, we remit the matter back to the file of Assessing Officer to readjudicate the issue after the receipt of the valuation report from DVO on merits. The issue regarding long term capital gains is allowed for statistical purposes.
Sale consideration of the property was invested in a specified bond to claim exemption u/s 54EC therefore, there is no capital gains - assessee has sold the property and received the sale consideration of ₹ 19,01,000/- and the entire sale consideration was invested in NABARD bonds u/s 54EC of the Act - Held that:- We heard the rival submissions and perused the material placed before us. We have carefully gone through the provisions of sec. 54EC of the Act. As per sec. 54EC of the Act, if the cost of long term specified asset is not less than the capital gain arising from the transfer of the original asset, the whole of such capital gain shall not be charged to the capital gains tax. In this case, though te assessee has invested the entire sale consideration, capital gains has to be worked out by taking the guideline value u/s 50C of the Act. - Appeal of the assessee is partly allowed for statistical purposes.
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2016 (10) TMI 1202
Treatment of foreign exchange fluctuations gain as operating in nature - computing the operating margin of the assessee for the purpose of determining the arm’s length price - Held that:- The issue of treatment of foreign exchange fluctuations (gain/loss), accrued on account of export sales has been consistently considered as part of the operating margin for the purpose of determining transfer pricing analysis in a series of decisions by this tribunal. In the case of SAP LABS India Pvt. Ltd., Vs. ACIT (2010 (8) TMI 676 - ITAT, BANGALORE), the tribunal held that if the foreign exchange (gain/loss) is accrued to the assessee on export sale, then the same will be considered as operating in nature. Similarly, the foreign exchange fluctuations on sales turnover of the comparables should also be considered as part of operating margins.
Thus we direct the AO/TPO to recompute the operating margin of the assessee by considering the foreign exchange fluctuations (gain/loss) arising from export as operating in nature. Similarly, the foreign exchange fluctuations (gain/loss) on sales shall be considered as part of operating margins of comparables for the purpose of determining arm’s length price.
Benefit of tolerance range as per the proviso to section 92C - Hed that:- TPO is directed to consider the benefit of tolerance range as per the proviso to section 92C if the price of the assessee is within the range of ± 5% of the comparable price. Accordingly this ground is disposed off.
Working capital adjustment - directions of the CIT (A) to consider the risk adjustment - Held that:- It is pertinent to note that since the assessee is a captive service provider and therefore there is a difference in the financial risk involved in the transactions between two independent parties and between the related parties as in the case of the assessee. Accordingly, in the facts and circumstances of the case, we do not find any error or irregularity in the order of the CIT(A) on this issue. However we direct the TPO to reconsider this issue after verification and examination of the relevant details and materials
Exclusion of telecommunication expenditure and other expenses incurred in foreign currency from export turnover as well as total turnover while computing deduction under section 10A - Held that:- This issue is covered by the Hon’ble jurisdictional High Court in the case of Tata Elxsi CIT Vs. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] as held If the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded in computing the export turnover as a component of total turnover in the denominator.
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2016 (10) TMI 1201
CENVAT Credit - service tax on remuneration paid to director - reverse charge mechanism - Held that:- Proposition of the counsel appears to be in accordance with law, in view of specific enactment for levy of service tax on reverse charge mechanism - such service tax is payable under reverse charge mechanism with effect from 1.7.2012. Therefore, CENVAT credit cannot be denied.
Once service tax is paid, in absence of any adverse finding as to no deposit thereof into the treasury, there cannot be denial of CENVAT credit.
Appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1200
Rental income received by the Assessee - Assessed as Income from Other sources OR Income from House property - deemed ownership - Held that:- In the past years, the issue has been consistently decided by the Tribunal in favour of the assessee, starting with the lead order for assessment year 2005-06 as held that the owners of the property M/s. Vrindavan Lal Goverdhan Lal have allowed the assessee firm to create sub-tenancy with the regard to the premises and has given their premises for creating the sub-tenancy in favour of ICICI Bank, Ltd. for a period of 15 years on certain terms and conditions as detailed in their letter dated 24/11/2000 addressed to the assessee, copy thereof filed in the compilation before us. The assessee become a deemed owner· in accordance with provision of section 27(iiib) r.w.s. 269UA(f)(i) of the Act - no mistake in the order of CIT(A) in holding that the assessee is the deemed owner of the premises u/s 27(iiib) of the Act and the order of the CIT(A) is confirmed and the grounds of appeal of the revenue are dismissed.
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2016 (10) TMI 1199
Levy of Service Tax on goods portion - Composite Contract - goods used in the work of installation suffered Excise Duty - Held that:- Finance Act, 1944 not being a commodity taxation law, the levy under the Finance Act, 1944 is only confined to provision of taxable service. Accordingly the goods used in the execution of supplying and installation of fire safety systems intended to be taxed by adjudication order is void - the adjudication attempting to tax the goods under Finance Act, 1944 not permissible - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1198
Assessment u/s 153A - whether the addition can be made in non-abated assessments without there being any seized incriminating material? - Held that:- CIT Vs. Continental Warehousing Corporation reported in (2015 (5) TMI 656 - BOMBAY HIGH COURT) held that once an assessment was not pending but had attained finality for a particular year, it could not be subject to proceedings under section 153A of the Act, if no incriminating materials were found in the course of the search.
No disallowance will survive as such disallowance was not made based on any incriminating material found in the course of search and all these assessments are admittedly, non-abated assessments. Thus, we delete the disallowance made in respect of interest paid and business expenses against interest income received from partnership in all these assessment years. - Decided in favour of assessee.
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2016 (10) TMI 1197
CENVAT credit - inputs services - services used for erection of towers and shelters - denial on the ground that these are not goods but immoveable property on which tax paid on utilised services is not entitled as credit, that the input services have no nexus with the output services - Held that:- The issue is squarely covered by the decision in the case of IDEA CELLULAR LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2016 (9) TMI 1136 - CESTAT MUMBAI], where it was held that CENVAT credit availed of service tax paid on services utilized for erection of tower allowed - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1196
Clearance of exempted goods - Cefoperazone Sodium Sterile - Reversal of CENVAT credit - common inputs were used for dutiable and exempted goods - non-maintenance of separate records - Rule 6(2) of CENVAT Credit Rules, 2004 - whether the goods cleared under chapter X procedure without payment of duty would fall within the category of exempted goods?
Held that:- In Aureola Chemicals Ltd V/s. CCE, Indore [2004 (1) TMI 244 - CESTAT, NEW DELHI] the Tribunal held that the spent Sulphuric Acid cleared by assessee under Chapter X procedure to various manufacturers of fertilizers against CT-2 certificate without payment of duty are not exempted goods - credit need not be reversed - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1195
Deduction u/s. 80P(2) - Whether the interest received from the Government Treasury is to be included under the head “income from other sources” or “income from business" - Held that:- In the instant case, the assessee is a cooperative Bank. Investment in treasury/banks and earning interest on the same is part of the banking activity of the assessee’s cooperative bank. The said income is eligible for deduction u/s 80P(2)(a)(i). Income Tax Authorities were not justified in treating interest income received by the assessee as ‘income from other source’ and denying the benefit of section 80P(2) of the Act. This ground of the assessee is allowed.
Disallowance of interest paid - Held that:- CIT(A) has very candidly admitted that the additional evidence placed before him could not be verified due to time constraints. Matter needs fresh consideration by the CIT(A). This issue to the file of the CIT(A). CIT(A) shall dispose off the matter as expeditiously as possible in accordance with law, after affording reasonable opportunity of being heard to the assessee.
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2016 (10) TMI 1194
Penalty levied u/s 271CA - default on account of non collection of TCS u/s 206C - reasonable cause for non timely compliance - Held that:- Reasonable cause for non timely compliance has been attributed to the ignorance of applicable law. To demonstrate the ignorance, the assessee has submitted documentary evidence before the learned CIT(Appeals) who has found the same to be cogent
The failure on the part of the assessee was a technical and venial breach which did not result into any loss to the Revenue as the TCS was paid along with interest - thus the order passed u/s 271CA imposing penalty is hereby cancelled - Decided in favor of assessee.
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2016 (10) TMI 1193
CENVAT credit - Removal of capital goods to other unit for use in manufacture - Held that: - Mandate of the statute is that capital goods should be installed in a factory or in the premises of the provider of output service for allowance of Cenvat credit on the capital goods. Such essential condition was satisfied - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1192
CENVAT credit - various input services - Revenue says that when the appellant was not the manufacturer of boiler, it is not entitled to the benefit of Cenvat credit on the services - Held that: - The appellant may not be a manufacturer but the services provided by the appellant as a consulting engineer was not denied by Revenue - The services so provided were also in relation to installation of the boiler as well as designing thereof to ensure that the boiler is manufactured according to the design to meet to the need of the buyers - credit allowed - decided in favor of appellant.
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2016 (10) TMI 1191
Valuation - related party transaction - Rule 8 of Central Excise Valuation Rules, 2000 - Held that: - the impugned order held that based on the factual position and applying the provisions of Valuation Rules the transaction value adopted by the respondent cannot be rejected. It was recorded that no extra commercial consideration has been demonstrated.
Reliance placed on the decision of Hon'ble Supreme Court in Xerographic Ltd. [2006 (3) TMI 308 - SUPREME COURT] cannot be faulted only on the ground the concept of related person discussed therein was with reference to earlier Valuation Rules. There is no material difference in the basic principle with reference to valuation of goods when the transaction is between related person. Mutuality of interest and lower price due to extra commercial consideration are relevant factor for consideration.
Appeal dismissed - decided against Revenue.
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2016 (10) TMI 1190
Transfer Pricing Adjustment - selection of comparables - Held that:- Assessee group affiliates with engineering and software development services, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Disallowance of the loss of foreign exchange fluctuation on advance to holding company and Export Earner Foreign Company Account (EEFCA) - assessee has failed to furnish the necessary details and supporting evidence to show that the loss is revenue in nature - Held that:- Though the assessee has contended that the amounts are revenue receivables and therefore loss is also an allowable loss however we find that the necessary details and supporting evidence has not been produced by the assessee. Accordingly, in the facts and circumstances of the case as well as in the interest of justice the assessee is granted one more opportunity to produce the necessary details and supporting evidence before the Assessing Officer. Hence this issue is set aside to the record of the Assessing Officer for verification
Non-deduction of tax under Section 40(a)(ia) - disallowance of provision for legal and professional charges and trade charges - Held that:- As the assessee has not pointed out any error or illegality in the orders of the authorities below. Further no contrary fact has been brought to our notice to show that the finding of the Assessing Officer is perverse or illegal or not tenable. Accordingly in the absence of any facts or submissions to substantiate the claim of the assessee, we do not find any error or illegality in the orders of the authorities below
Short grant of credit for advance tax - Held that:- The assessee has pointed out that the advance tax is ₹ 77 lakhs whereas the Assessing Officer has granted the credit on account of advance tax only to the extent of ₹ 72,19,408 for the assessment year under consideration. Since this is purely a matter of verification of facts and therefore no dispute of decision is involved. Accordingly, we direct the Assessing Officer to verify the correct advance tax available for credit and then consider the plea of the assessee for granting of credit for advance tax.
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2016 (10) TMI 1189
Estimation of income on account of bogus/unverifiable purchases - rectification of mistake - Held that:- Only issue involved in the assessment proceedings related to rejection of books of accounts on account of unverified purchases and estimation of appropriate gross profit rate thereon. The AO had applied 25% gross profit rate on unverified purchases which has been confirmed by the ld. CIT(A) which was the subject matter of appeal before the Coordinate Bench wherein set aside the issue relating to estimation of profits and restored the matter back to the file of the AO to decide the same afresh after the judgement of Hon’ble Rajasthan High Court in the case of Anuj Kumar Varshney & Others vs. ITO (2015 (4) TMI 533 - ITAT JAIPUR) is delivered. From the perusal of records, it is also noted that the provisions of Section 153(2A) of the Act were not brought to the notice of the Coordinate Bench.
We accordingly recall the order passed by the Coordinate Bench and direct the Registry to fix the matter for fresh hearing in due course.
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2016 (10) TMI 1188
Rent-a-cab scheme operator service - business of ‘renting of a cab’ - Revenue says that with the amendment of the definition of ‘cab’ with effect from 01.6.2007 any motor vehicle constructed or adapted to carry more than twelve passengers are also covered under the taxable service of ‘Rent-a-Cab Scheme Operator Services’ and the corresponding taxable service means’any service provided or to be provided to any person, by a ‘rent-a-cab scheme operator’ in relation to the renting of a cab.
Wherever these appellants have provided their buses on individual contract basis - Whether such services could be classified as ‘rent-a-cab service’ or not?
Held that: - it is to be noted that in the year 2012 on July 01, the concept of negative list was introduced in respect of levy of Service Tax and Section 66D of the Finance Act, 1994 came into force by its insertion in the said Act. An exemption Notification No. 25/2012-S.T. dated 20.6.2012 was issued and further, the Finance Act, 2012 inserted Section 66B in the Finance Act, 1994 which made clear that the service covered under the negative list (given in Section 66D) are not to be taxed. However, we are not considering the impact of these provisions as the period involved in the cases in hand is prior to 01.7.2012, the day when the concept of negative list was introduced.
‘Rent-a-cab scheme operator’ has to be a person who is engaged in the business of renting of cab - From the facts on record, it is clear that essential business of the appellants is plying the buses from one place to the other place(s), which are fixed in advance on regular basis - These appellants only on occasional basis [which one of the appellants say is only three per cent (3%) of their total operation] rent out their buses on specific demands from specific customers - service would not come under the expression 'rent-a-cab scheme operation'.
Extended period of limitation - Penalty - Held that: - the issue is highly debatable and arguable and therefore the invocation of extended period can definitely be not sustainable - penalty also set aside.
Appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1187
Penalty - non-production of Declaration Form ST-18A - the declaration Form ST-18A was not produced on the premise that it was not required - Held that: - Admittedly, the declaration Form ST-18A was not produced at the time of checking of the vehicle and the claim of the petitioner that there was a newspaper report is wholly inapplicable and no cognizance could have been taken on the so called newspaper report or otherwise. Even the claim about newspaper report is bald claim unsupported by any material.
Any news in newspaper reports cannot be taken into consideration and cannot be said to be a bona-fide belief and is a mere explanation without any supporting material and the Tax Board has rightly come to the conclusion that the penalty was appropriate in a case like this. No question of law can be said to emerge.
Petition dismissed.
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2016 (10) TMI 1186
Penalty u/s 76(6) of the Rajasthan Value Added Tax Act, 2003 - Form VAT-47 - builty alongwith other supporting documents including declaration Form VAT-47 bearing No.1542234 was found completely blank - Rule 53(1) (I) - Held that: - from the order of the Tax Board it was found that though the issue appears to have been raised by the counsel for the petitioner and does find mention at page-2 of the impugned order, however, it appears that the Tax Board while upholding the order of the Dy. Commissioner (A) had merely observed that in view of the Notification dt. 30.03.2000, these being notified goods the declaration Form VAT-47 was required to be carried. However, the contention of the petitioner has been that under Rule 53(1)(i) quoted herein above, there was no necessity of carrying declaration Form VAT-47 which has not been considered by the Tax Board.
Since there was no finding of existing Rule 53 (1) (i) quoted herein above it would be appropriate that let the Tax Board may come to a specific finding about the goods being transported whether in actuality fall within the definition of telecommunication goods and to re-decide the issue afresh.
The matter is remanded back to the Tax Board to re-decide the matter afresh.
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2016 (10) TMI 1185
Levy of Luxury Tax - Validity of assessment order - penalty - proceedings were taken by the assessing officer alleging escapement of turnover of service tax on the ground that during the period 2004-05 and 2005-06, certain service charges were collected, but tax was not paid - Kerala Tax on Luxuries Act, 1976 - Held that: - the issue is well covered on a bare reading of the provision itself, which gives a clearly indication that luxury tax can be levied on the services as stated by the assessing officer in Ext.P1 order. It is clear that other than the charges for food and liquor, all other services are liable to be taxed. That apart, the assessee in the bills had clearly indicated that they have collected service charges in addition to the charges for liquor.
There is no deliberate attempt on the part of the respondent in not paying the tax and it had occurred only on account of mistake of the factual circumstances involved in the matter - penalty not leviable.
Petition disposed off.
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