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Showing 201 to 220 of 1914 Records
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2016 (12) TMI 1717
Refund claim - Consequent upon the fulfilment of the obligation, the petitioner requested, vide letter dated 28.5.2003 that the bank guarantee be discharged - rejection of refund on the ground of time bar - Section 27 of the Customs Act - Held that: - The sequence of dates and events detailed would show that the assessee had made a request for release of Bank Guarantee as early as in 2003 after obtaining the Export Obligation Discharge Certificate, confirming the position that the export obligation has been duly complied with. However, it is only on 22.3.2007 that the Bank Guarantee was discharged by the Department, for reasons best known to them - No explanation is offered by the Revenue as to what were the circumstances that occasioned the delay of more than eight years. The Appellant has been unfairly deprived of the amount of ₹ 4,07,245/- from 2007 onwards till the order of the learned Single Judge on 22.7.2015 directing the grant of refund.
The delay in granting refund was inordinate, unjustified and wholly unacceptable - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1716
Benefit of Concessional rate of duty - N/N. 4/2006-CE dated 1.3.2006 as amended - appellant has exported cement in 50 kgs. bag - denial of concession on the ground that no MRP was mentioned nor any parameter mentioned in the Standards of Weights & Measures (Packaged Commodity) Rules, 1977 was fulfilled - Held that: - The Tribunal in the case of Jaypee Bela & Rewa Plant vs. C.C.E., Bhopal [2016 (12) TMI 531 - CESTAT NEW DELHI] has observed that where retail sale price was not required to be cleared other than package form would be entitled to the benefit of the N/N. 4/2006-CE - appeallant are allowed the benefit of notification - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1715
CENVAT credit - manpower services availed by job workers - Held that: - though for the purpose of excise law the units are registered separately, the manpower agency service availed by the appellant suffering service tax was attributed to the use thereof in manufacture by unit-2 - credit cannot be denied - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1714
CENVAT credit - inputs - Cement, MS CTD Bars, MS Rounds, TMT, Plates MS Angles, MS Channels, Beams and Rails etc. used by the Assessee for manufacture of machines/machineries installed in the factory - Held that: - the issue decided in the case of Commr. of C. Ex., Cus. & S.T., Bilaspur Versus Ambuja Cement Eastern Ltd. [2016 (12) TMI 1680 - CHHATTISGARH HIGH COURT], where it was held that It is not disputed that the inputs like M.S. Angles, M.S. Plates, M.S. Joists and Channels were used for manufacturing of certain essential parts of the factory which are capital goods and since they are essential parts of the factory, they satisfy the twin tests of being capital goods as well as the user test, thus entitled for credit - credit allowed - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1713
Liability of service tax - activities of chilling the milk collected by the Cooperative Societies on behalf of the Jaipur Dairy - whether such activity amounts to manufacture or would fall under the category of Business Auxiliary Service - Held hat: - Tribunal in the case of Vinayak Industries [2016 (6) TMI 1072 - CESTAT NEW DELHI] held that chilling of milk makes it possible to market/sell it to the consumers located at considerable distances - As such, holding the process as amounting to manufacture, it was held that no service tax levy under the category of “BAS” is chargeable on such process - service tax not levied - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1712
TPA - Comparable selection criteria - Held that:- Assessee is engaged in the business of providing software services, IT and IT enabled Services, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Computation of deduction u/s. 10A - Held that:- This issue is squarely covered by the order of jurisdictional High Court in the case of CIT v. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] in which it has been held that whatever expenses are excluded from export turnover should also be excluded from the total turnover.
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2016 (12) TMI 1711
Addition u/s 68 - genuineness of the transaction - Held that:- The documents furnished by the assessee, established the identity as well as creditworthiness of M/s Golden Technobuild (P) Ltd. and since the transaction took place through banking channel, the genuineness of the transaction was also proved. Therefore, considering the totality of the facts, it is of the view that the addition made by the AO and sustained by the ld. CIT(A) on account of ₹ 7,00,000/- received from M/s Golden Technobuild (P) Ltd. was not justified
Addition from house property - Held that:- Addition is made on the basis of presumption that the property at 48, Friends Colony East, New Delhi in which the assessee was having 28.24% was let out to Gambhir brothers but infact, the Gambhirs brothers were the tenant of M/s Today Homes & Infrastructure Pvt. Ltd. who was the tenant of M/s Palos Verdes Estate Pvt. Ltd. Therefore, the addition made by the AO on the basis of presumption was not justified particularly when the assessee had not given property on rent to Gambhir brothers as alleged by the AO.
The property in question was used by the assessee for its own business purposes. The said fact is evident from page no. 28 of the assessee’s paper book i.e. the copy of ROC master data which revealed that the assessee’s registered office is situated at 48, Friends Colony East, New Delhi. Therefore the impugned addition made by the AO on the basis of presumption that the assessee had let out the property to Gambhir brothers and sustained by the ld. CIT(A) was not justified. Accordingly, the same is deleted. - Decided in favour of assessee
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2016 (12) TMI 1710
Reopening of assessment - addition under the head income from house property - determination of fair rental value - Held that:- AO on the basis of the search & seizure operation which took place on 26.11.2009 was of the view that the property of the assessee at 48, Friends Colony East, New Delhi was being used by Gambhirs for their residence and not by the assessee company for the purpose of its own business or profession. On the contrary, the assessee furnished the documents which established that the assessee was having its office in the said property and the AO himself issued the notice u/s 148 of the Act to the assessee on the address of the property in question i.e. 48, Friends Colony East, New Delhi, which is evident from the copy of the notice issued u/s 148 of the Act
It is also noticed that the assessee filed its return of income by mentioning the address of the said property which has been accepted by the AO. Therefore, it cannot be said that the assessee was not conducting its business from the property in question. The AO himself had mentioned that the sum for which the whole of property at 48, Friends Colony East, New Delhi might reasonably be accepted to be let out was at ₹ 41,69,718/-. Therefore, the AO himself was not sure about the presumptive let out value.
Noting has been brought on record that the assessee had received the rent of ₹ 11,77,528/- as worked out by the AO and not ₹ 1,80,000/- which was offered for taxation - AO reopened the assessment only on the basis of the presumption which is not tenable in the eyes of law - Decided in favour of assessee
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2016 (12) TMI 1709
Accrued interest on NPAs - Held that:- A.O. as well as CIT(A) were not justified in bringing to tax a sum towards alleged accrued interest on NPAs. See Principal Commissioner of Income Tax-5 Versus Shri Mahila Sewa Sahakari Bank Ltd. [2016 (8) TMI 377 - GUJARAT HIGH COURT]
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2016 (12) TMI 1708
Trading addition - disallowing 25% of total bogus purchases - Held that:- When the department has accepted the sales made by M/s Clarity Gold Pvt. Ltd which is assessed to tax, how the purchases made by the assessee from the same party can be held to be unverifiable/non-genuine more particularly when the party has given the confirmation for the transaction. We accordingly agree with the contention of the assessee and the AO is directed to allow the said claim after verifying the assessment records of M/s Clarity Gold Pvt Ltd.
Issues raised in this appeal in respect of unverifiable purchases from the remaining three parties (other than M/s Clarity Gold) and restore the matter to the file of AO to decide the same afresh after the judgement of Hon’ble Rajasthan High Court in the case of Anuj Kumar Varshney and other vs. ITO (2015 (4) TMI 533 - ITAT JAIPUR) is delivered, after giving adequate opportunity of being heard to the assessee.
Disallowance of foreign travel expenses - Held that:- The assessee has provided the necessary explanation in respect of travel of tourist guide Vikas Kaul and Neeta Dadda who is a partner in the firm. Further, it is noted that on similar facts, the disallowance was deleted by ld CIT(A) for AY 200809 against which the department has not filed any appeal. Keeping in mind the nature of the business of the assessee and the explanation provided by the assessee, we see not reason to interfere with the order of ld CIT(A) who has deleted the disallowance of ₹ 1 lacs towards foreign travel expenses.
Disallowance on payment to BOB and ICICI by applying the provisions of section 40(a)(ia) since the assessee has not deducted the TDS u/s 194H - Held that:- Addition deleted as relying on assessee’s own case for A.Y. 2008-09 [2012 (2) TMI 521 - ITAT JAIPUR]
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2016 (12) TMI 1707
CENVAT crdit - duty paying documents - it was found that M/s. M.K. Steels Pvt. Ltd. has issued the same invoices in number of cases from Kolkata - Held that: - issue is squarely covered by the decision in the case of The Commissioner of Central Excise Customs & Service Tax Versus M/s. Juhi Alloys Ltd., Anil Kumar Shukla [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT], where it was held that The goods where demonstrated to have travelled to the premises of the assesee under the cover of Form 31 issued by the Trade Tax Department, and the ledger account as well as the statutory records establish the receipt of the goods. In such a situation, It would be impractical to require the assessee to go behind the records maintained by the first stage dealer - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1706
Transit passes - the goods were being transported with the intention of evasion of tax and there was violation of section 78(3) of the Rajasthan Value Added Tax Act - Held that: - section 78 (1) & (3) of the RVAT Act mandates for obtaining Transit Pass as also producing the same as and when required - It is surprising that though the owner/ driver/person incharge stopped the vehicle at the Check-post and obtained Transit Pass for one set of goods namely; Leather but no Transit Pass was obtained for such other goods, which were also lying in the same truck and was being transmitted of “Pump and Accessories”.
It is mandatory for a person to obtain Transit Pass for the goods being transported and available with the vehicle when in transit. These provisions in my view are to be strictly complied with mandatory and is required to be taken into consideration in letter and spirit - petition dismissed.
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2016 (12) TMI 1705
CENVAT credit - inputs - scrap - penalty - Held that: - Revenue had not established with sufficient evidences that the appellants have not received cenvatable inputs in their factory. It appears that appellants have purchased both cenvatable and non-cenvatable scrap, as has been stated in the statement recorded under Section 14 of the Director, that they are mainly concerned with receipt of scrap and they take credit on the basis of duty indicated there in the invoices and they are not much concerned with consistency of the scrap.
In view of the fact that the assessee is not contesting strongly the reversal of duty made by them, the appellant is entitled to deduct the demand of ₹ 16,18,834/- from the subsequent demand of ₹ 25,57,554/- and they are liable to only the balance demand of ₹ 9,38,720/- in the circumstances.
Confiscation - penalty - Held that: - in view of the fact that the appellants had reversed the duty in the course of investigation and the whole finding of lower authority is on assumption and presumption, the confiscation and penalty set aside.
Appeal allowed in part.
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2016 (12) TMI 1704
Evasion of tax - Whether on the facts and in the circumstances of the case, has not the appellate tribunal erred in sustaining the alleged suppression against the revision petitioner? - Held that: - since it is virtually admitted by the assessee that they had committed suppression and had also compounded the offence, it was then completely within the jurisdictional domain of the Assessing Authority to complete the assessment applying the principles of best judgment based on verification of the documents available and quantification of the same in a manner that is available to them under law.
The Assessing Authority or the Tribunal was not required under law to grant the petitioner any opportunity to verify the alleged variations in the presence of the Assessing Authority nor was it bounden upon the Tribunal to make such verification its own as has now been required by the assessee - revision dismissed.
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2016 (12) TMI 1703
Jurisdiction - whether the Sales Tax Tribunal, Punjab, Chandigarh could have validly exercise its jurisdiction while deciding the rectification application, filed under Section 21A(2) of the Punjab General Sales Tax Act, 1948? - Held that: - the Tribunal may, at any time within two years from the date of any order passed by it, rectify any mistake apparent from the record. This may be done either on its own motion or on the matter being brought to its notice by any person.
Power to rectify a mistake should be exercised when the mistake is a patent one and is quite obvious. The mistake cannot be such which can be ascertained by a long-drawn process of reasoning. It was held that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. It was specifically held that incorrect application of law can also not be corrected.
Whether the amendment to Rule 29(xii) vide notification dated 15.4.2002 was merely clarificatory and hence retrospective in nature, being a decision on a debatable question of law, could not have been construed to be a mistake apparent on the record and was not liable to be rectified in exercise of power under Section 21-A of the Act. Even if the earlier view was an erroneous view in law, it was, as per the aforementioned decisions, not amenable to be corrected in exercise of the power under Section 21-A.
Petition allowed - decided in favor of petitioner.
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2016 (12) TMI 1702
Works contract - whether the transaction referred in the contract to make a serial and transferring the right over the serial would attract the definition of the term “goods” occurring in the Kerala General Sales Tax Act, 1963?
Held that: - The question whether making a serial for valid consideration amounts to sale of goods or not, is more or less settled by a large number of decisions of the Apex Court and of this court. It is settled now that “goods” would include all kinds of movable and immovable property whether it be tangible or intangible.
The vesting of copyright is different from divesting the ownership right in the property in which copyright subsists. The divesting of the ownership right essentially depends upon the nature of contract in relation to the transaction. The deemed transfer of copyright as contemplated in law itself will not result in transfer of ownership of the property. To understand transfer of ownership in a particular transaction for the purpose of sale, the court has to differentiate the terms and conditions of the contract. In this case as seen from the contract (clause 11), it was agreed that TV films and materials will become the absolute property of the Government with perpetual copyrights, distribution rights etc., only upon delivery of the film. If that be so, the contract can be easily comprehended as having the characteristics of a sale as contemplated under the Sale of Goods Act, 1930.
The tribunal erred in construing the contract as a contract of service - the order of tribunal set aside and the order of the assessing authority restored.
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2016 (12) TMI 1701
Disallowance u/s 14A read with Rule 8D(2)(iii) - expenditure related to exempt income - Held that:- The appeal under consideration relates to the AY 2008-09 and therefore, the applicability of the Rule 8D of the Rule is undisputed. However, it is a settled legal proposition at our level that the average investment desires exclusion of the non-dividend yielding investments.Therefore, in our opinion, the assessee is entitled to relief on this argument. Accordingly, the relevant grounds raised by the assessee are required to be allowed in principle. We order accordingly and direct the AO to re-calculate the disallowance under Rule 8D(2)(iii) of the Rules. Thus, grounds raised by the assessee are allowed.
Disallowance u/s 8D(2)(ii) of the Rules - Held that:- As in HDFC Bank Limited vs. DCIT (2016 (3) TMI 755 - BOMBAY HIGH COURT) and mentioned that the assessee is having excess interest free funds in such case, no disallowance is called for under clause (ii) of Rule 8D(2) of the Rules. We agree with the said decision of the CIT (A) on this issue and therefore, the conclusions drawn by the CIT (A) are upheld. Further, Ld Counsel for the assessee submitted that for computing the average investment, the investment in stock-in-trade should excluded for the purpose of quantifying the disallowance which are required to be made under clauses (ii) and (iii) of Rule 8D(2) of the Rules. In this regard, Ld Counsel for the assessee relied on the judgment of the CIT vs. India Advantage Securities Ltd [2015 (6) TMI 140 - BOMBAY HIGH COURT]. After hearing both the parties, we find, the order of the CIT (A) on this issue is fair and reasonable
Allowability of the provision of mark-to-market loss confirmed
Disallowance u/s 14A read with Rule 8D(2) - Held that:- No disallowance under clause (ii) is needed if the own funds are more than the investment. Considering the same, we agree with the conclusions drawn by the CIT (A) on this issue. Similarly, referring to the relief granted by the CIT (A) in excluding the investments in stock-in-trade for the purpose of disallowance under Rule 8D(2)(ii) and (iii) of the Rules, after hearing Representatives of both the parties, we are of the opinion, the said conclusions drawn by the CIT (A) are fair and reasonable and it does not call for any interference. Further, it is relevant to mention that while calculating the average investments, only the dividend yielded investments should alone be considered for quantifying the disallowance under clause (iii) of Rule 8D(2) of the Rules. In our opinion, on this issue also, the conclusions drawn by the CIT (A) are sustainable.
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2016 (12) TMI 1700
Liability of service tax - sales promotion and product awareness activities - benefit of export of services - Held that: - Admittedly, the appellants are rendering service in terms of agreement with the U.S. Company and receiving consideration from that company in convertible foreign exchange. The promotional activities are being carried out in India. The beneficiary being foreign entity, who makes the payment towards such services to the appellant - the Tribunal in the case of M/s. Microsoft Corporation (I) (P) Ltd. Versus CST. New Delhi [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)] considered similar situation and held that the criteria for export of service is fulfilled in such situation and tax liability does not arise - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1699
The appeal was filed against an order-in-appeal passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi. The appellant sought a refund, but since the main appeal was dismissed earlier by the Tribunal, the refund was not granted. The impugned order was sustained, and the appeal was dismissed.
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2016 (12) TMI 1698
Stay of operation - valuation - includibility - reimbursable expenses - Held that: - Revenue could not produce any stay order passed by Hon’ble Apex Court staying operation of the ruling passed by Hon’ble High Court of Delhi in the said case of International Consultants and Technocrats Pvt. Ltd. Vs. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT] - appeal dismissed - decided against Revenue.
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