|
Advanced Search Options
Case Laws
Showing 201 to 220 of 1437 Records
-
2015 (3) TMI 1243
Disallowance of interest expenses - Held that:- CIT(A) has followed the findings given in the case of Eminent Holdings Pvt. Ltd. [2014 (7) TMI 466 - ITAT MUMBAI] wherein followed the decision of the Tribunal given in common group case of Hitesh S. Mehta [2013 (10) TMI 1065 - ITAT MUMBAI] and restored the matter to the file of the Ld. CIT(A) for fresh adjudication. Respectfully following the findings of the Co ordinate Bench, we restore this issue to the files of the Ld. CIT(A) for fresh adjudication after giving reasonable opportunity of being heard to the assessee.
Charging of interest u/s. 234A, 234B and 234C - Held that:- Restore the matter to the file of the AO to recompute the interest liability as per the provisions of the law. We direct accordingly.
-
2015 (3) TMI 1242
Deduction of depreciation u/s. 32 available to a charitable Trust - Held that:- CIT(A) followed the decision of Hon'ble Bombay High Court in assessee’s own case for A.Y. 2003-04 [2011 (2) TMI 1505 - BOMBAY HIGH COURT] in holding that the assessee is entitled to depreciation and does not amount to double deduction - Decided in favour of assessee.
-
2015 (3) TMI 1241
Payment of service tax under reverse charge method through cenvat credit instead of cash - commission paid to the overseas agents - Held that: - We find that in the appellant/assessee’s own case [2011 (8) TMI 265 - CESTAT, NEW DELHI], it was held that for the period prior to Notification No. 10/2008-CE (NT), the question whether Cenvat credit can be utilised for payment of service tax on GTA stands settled in favour of the assessee by various decisions of the Tribunal and there was no restriction for utilisation of Cenvat credit by manufacturing unit towards payment of service tax on GTA as output service provider. In the case of Kansara Modler Ltd. Vs. CCE, Jaipur-II [2014 (1) TMI 1095 - CESTAT NEW DELHI], it was held that Cenvat credit can be utilised for payment service tax payable under reverse charge mechanism in respect of service received from abroad. Similarly Karnataka High Court in the case of CST, Bangalore Vs. Aravind Fashions Ltd. [2011 (9) TMI 852 - KARNATAKA HIGH COURT], held that though assessee was recipient of Intellectual Property Service from abroad they were deemed to be provider of service liable to pay service tax and therefore such service tax can be discharged by using Cenvat credit.
The demand confirmed against the appellant/assessee do not survive. In such a situation, the Revenue’s appeal contesting the cum tax benefit becomes infructuous - appeal allowed - decided in favor of appellant.
-
2015 (3) TMI 1240
Criminal proceedings against the accused - quashing of proceedings before the trial by HC - the appellant submitted that it was the conduct of the accused on account of their not being satisfied with the dowry given and the inability of the appellant’s family to meet such demands that the appellant was forced to leave the matrimonial home - Held that:- From reading of the complaint, it cannot be held that even if the allegations are taken as proved no case is made out.
There are allegations against Respondent No.2 and his parents for harassing the complainant which forced her to leave the matrimonial home. Even now she continues to be separated from the matrimonial home as she apprehends lack of security and safety and proper environment in the matrimonial home. The question whether the appellant has infact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible.
The decisions referred to in the judgment of the High Court are distinguishable. The said cases neither purport to nor can be read as laying down any inflexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable. In the present case the factual matrix is different from the said cases. Applying the settled principles, it cannot be held that there is no triable case against the accused. HC order set aside.
-
2015 (3) TMI 1239
Application of Rule 8D(2)(iii) to compute the disallowance out of expenses - Held that:- After arguing this appeal for some time and on certain queries from this Court, Mr.Suresh Kumar seeks time. He desires to obtain instructions with regard to the computation of income and how the exercise was carried out for complying with rule 8(D)(ii) of the Income Tax Rules. Thus, whether with rule 8(D)(ii) and in terms referred by the Commissioner has been invoked and applied or that figures which are required to be taken as per this sub-rule are not taken by the assessing officer. Mr.Suresh Kumar wants to verify the same by referring to the original record in possession of the assessing officer. At the request of Mr.Suresh Kumar, stand over to 7th April, 2015.
-
2015 (3) TMI 1238
Extension of time for deposit of money - pre-deposit of ₹ 60 lakhs - Held that: - when initially, 12 weeks period has been granted and subsequently on the appellant’s request, the same was extended by another two weeks, there is no justification for granting any further time. In view of this, the appeals are dismissed for non-compliance with the provisions of Section 35 F of the Central Excise Act.
-
2015 (3) TMI 1237
Refund claim - N/N. 41/2007-ST dated 6.10.2007, as amended by subsequent Notification No.3/2008-ST dated 19.2.2008 - export of calibrated iron ore lumps - transportation of the said product from the mines to the port of export - the appellant has not fulfilled the condition No.(iii) of Sl. No.11 of the Notification inasmuch as the details of exporters invoice relating to export of the goods transported from mines to port of export do not stand mentioned in the lorry receipts - Held that: - reliance placed on the decision of the case of Jumbo Mining Ltd. vs. CCE, Hyderabad [2012 (7) TMI 739 - CESTAT, BANGALORE], where it was held that as the consignments are of huge quantum, they cannot be transported by a single lorry and are required to be aggregated at the port premises before shipping documents could be prepared. In such circumstances, strict compliance of the above condition cannot be made and the same should be ascertained by broadly correlating evidence of transport and service tax paid on such transportation charges and quantum exported.
Inasmuch as the issue is decided, we set aside the impugned order and hold that the appellant is entitled to refund of the said service tax paid on transportation of the goods subject to verification. Inasmuch the lower authorities rejected the refund on the above legal issue and they have not gone into the verification of the said claims, which is required to be done at the level of original adjudicating authority. We, accordingly, set aside the impugned order and allow the appeals and remand the same to the original adjudicating authority for the sole purpose of verification of the assessees claim.
-
2015 (3) TMI 1236
Unexplained cash credit - addition on cash deposits - Held that:- There is nothing on record to show that the amount of ₹ 13 lakhs withdrawn by the assessee on 17.12.2008 was used for some other purpose. In our opinion, the said withdrawal having been made by the assessee just before a week i.e. on 17.12.2008, the same can reasonably be treated as available with the assessee for cash deposit of ₹ 21 lakhs made on 24.12.2008 especially when there is nothing to show that the amount of ₹ 13 lakhs withdrawn on 17.12.2008 was utilized by the assessee for some other purpose. We, therefore, treat the cash deposit of ₹ 21 lakhs made by the assessee in the bank account on 24.12.2008 as explained to the extent of ₹ 13 lakhs and sustain the addition made by the A.O. and confirmed by the Ld. CIT(A) on this issue to the extent of ₹ 8 lakhs. - Decided partly in favour of assessee
-
2015 (3) TMI 1235
Grant of bail in connection with different cases registered against under the provisions of NDPS Act and the IPC declined - Held that:- Learned counsel for the petitioners, at this stage, submit that since the matters are being referred to a Division Bench with a direction to hear and dispose of the writ petitions, they would withdraw the special leave petitions filed by them and approach the Division Bench for grant of bail, if so permitted by this Court. We see no reason to decline that permission. We accordingly dispose of the special leave petitions reserving liberty to the petitioners to approach the Division Bench before whom the writ petitions mentioned above and connected matters are listed for hearing. We make it clear that even the State of Punjab shall be free to approach the Division Bench for cancellation of the bail granted to Jagjit Singh Chahal and Parmjit Singh Chahal, if so advised.
We make it clear that we have expressed no opinion on the merits of the contentions that may be urged by learned counsel for the parties at the hearing before the Division Bench. We hope and trust the Division Bench will make an endeavour to dispose of the matters at an early date and as far as possible, within a period of three months from today.
-
2015 (3) TMI 1234
Revision u/s 263 - interpretation of the term 'record' appearing in section 263 - Held that:- Section 154 of the Act as is well-known is in the nature of power of rectification of mistake. Sub-section (1) thereof clothes the Income-tax authority with a view to rectifying any mistake apparent from the record the power to amend any order passed under the Act, amend any intimation or deemed intimation under section 143(1) or amend any intimation under sub-section (1) of section 200A. The term 'record', therefore has to be seen in the context of the nature of the statutory provision and the power it aims to cloth the Assessing Officer. As noted, the power is for rectification of any mistake apparent from the record.
Such powers are not in the nature of review or revision and can be exercised only for correction of a mistake which is apparent from the record. In this context, therefore, the term 'record' has to be understood as record of the case before the Assessing Officer. Obviously, reference to the mistake apparent from the record cannot have relation to some other record extraneous to the assessment proceedings. This provision, therefore, has an entirely different context where the term 'record' has been used and it does not include any explanation as was inserted in section 263(1) with a historical background noted by the Supreme Court in the case of Shree Manjunathesware Packing Products Camphor Works (1997 (12) TMI 4 - SUPREME Court ). Significantly, the explanation was added for all purposes to have been included from the beginning. The decisions relied upon in the context of the term 'record' used in section 154 of the Act, therefore, would render no further help on the controversy on the hand. - Decided against assessee
-
2015 (3) TMI 1233
Denial of approval under section 80G - non charitable activity - ITAT come to the conclusion that the said objects were all of charitable nature and were not hit by the proviso to section 2(15) - Held that:- From a plain reading of the order of the Director, it is clear that the same has been passed without even specifying as to which of the objects, and how the same, were not charitable in nature. It has also not been mentioned or clarified in the order as to why on the same objects the trust had been granted exemption under section 80G earlier, and it was being denied at this stage.
Proviso to section 2(15) of the Act was inserted with effect from April 1, 2009 and not from April 1, 2008 as has been mentioned by the Director in his order. The order of the Director was totally devoid of reasons and thus, the same was rightly set aside by the Tribunal. Tribunal has, in our view, rightly come to the conclusion that denial of approval under section 80G was not justified.
We are not satisfied with the objection raised by the learned counsel for the appellant as, in our opinion, construction of "prayer hall" or encouraging meditation yoga etc. would not be religious activities. We are, thus, not satisfied with the submission of the learned counsel for the appellant, especially when such is not the ground which has been taken by the Director while denying approval to the assessee.- Decided in favour of assessee
-
2015 (3) TMI 1232
Levy of penalties under Sections 77 and 78 - Bonafide belief - the decision in the case of INDSUR GLOBAL LTD. Versus ADDL. COMMR. OF SERVICE TAX, VADODARA [2015 (7) TMI 390 - GUJARAT HIGH COURT] contested - Held that: - Having gone through the records of the case and hearing learned counsel for the appellant, we are of the considered opinion that the appeals, being devoid of any merit, are liable to be dismissed and are dismissed accordingly.
-
2015 (3) TMI 1231
Permission to withdraw the writ petition with liberty to approach the High Court - Permission granted - The respondents will not arrest the petitioners till 10th April, 2015. However, we make it clear that the interim protection is being granted only in view of the fact that we are declining to interfere the writ petition under Article 32 of the Constitution of India - The High Court is at liberty to take appropriate view of the matter in accordance with law as and when it comes before it uninfluenced by the protection granted today.
-
2015 (3) TMI 1230
Rejection of Refund claim - in respect of certain claims, credit could not have been taken at all - in respect of certain refund claims, input services were received earlier and used for exported services and credit was taken much later i.e. after the export was over. Therefore there is no nexus between the input services and exporter output service - Held that: - during the relevant time, there was no time prescribed for taking the credit. Once credit was admissible and unless there was no nexus between the output service exported and input services were used when credit was taken, the refund of the same also could not have been denied since the substantive ground of taking CENVAT credit in the first place being correct would lead to the obvious conclusion that ultimately if it gets accumulated the refund has to be sanctioned. Notification No.5/2006-CE(NT) is issued to provide safeguards and conditions to implement the sanction of refund envisaged under Rule 5 and not to defeat the purpose of whole CENVAT credit scheme. Therefore once credit is admissible and taken and not held to be inadmissible and if it gets accumulated, the conditions in Rule 5 can be said to have been fulfilled.
There is also a Boards instruction saying that the CENVAT credit taken forms a pool and can be used for any purpose once credit is admissible.
Appeal allowed - matters are remanded to the original adjudicating authority to decide the admissibility of the refunds claimed.
-
2015 (3) TMI 1229
Maintainability of the writ petition against the show- cause notice - Held that:- It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under article 226 - In the instant case, admittedly, the procedure as per provisions of the Income-tax Act is adhered to. In view of series of judgments, the plea of the respondents regarding maintainability of writ petition is rejected.
Validity of notice u/s 143 - change of jurisdiction - right to choose principal place of profession - notice issued by the DCIT, Range-II, Lucknow u/s 143(2) on the ground that the said notice is de hors the provisions contained in section 124 of the Act and in excess of the jurisdiction vested in opposite party No. 2 (Deputy Commissioner of Income- tax, Range-II, Lucknow) - According to the petitioner, he is practising legal profession at the hon'ble Supreme Court and Delhi High Court besides having practice at Lucknow. He has offices at New Delhi and Lucknow ; and has a right to choose his principal place of profession, which he has chosen and shifted to Delhi where he has taken premises on lease and his address is D-27, East of Kailash, New Delhi - HELD THAT:- the territorial jurisdiction which has to be vested with the assessing authority is to be determined by the Chief Commissioner or Commissioner on the basis of principal place at which the assessee is carrying on his business or profession and in respect of others, the person residing within the area. In case where the assessee raises any dispute, with regard to jurisdiction of any Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of claim, refer the matter for determination under section 124(2) before the assessment is made in view of the provisions of section 124(4).
Here, there is complete departure from the settled procedure. It comes out from the record that when the petitioner refused to submit to the jurisdiction of the said Assessing Officer at Lucknow, the authority/respondent No.2 proceeded ex parte and dispatched a demand of almost ₹ 52 lakhs. At the cost of repetition, we would like to mention that in the notice dated September 11, 2013, which is computer generated clearly reveals that the Delhi address of the petitioner was scored out and in handwriting, the local address has been added. Therefore, it is incorrect to say that the Delhi address was not in the knowledge of the respondents and we find force in the submissions of the petitioner that local address was inserted deliberately to create jurisdiction, which, in fact, legally was not vested with the opposite party No. 2. Therefore, the opposite party No. 2 exceeded its jurisdiction, which not only vitiates the impugned show-cause notice but the entire proceedings. In these circumstances, the entire proceedings being ab initio illegal, without jurisdiction and in violation of section 143(1)(a) of the Income-tax Act.
Writ petition is allowed and the impugned notice is quashed.
-
2015 (3) TMI 1228
Maintainability of appeal - appeal filed beyond the condonable period of thirty days - Held that: - in view of the decision of the Hon’ble Apex Court in the case of Singh Enterprises Vs. CCE, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA], neither this Tribunal nor any superior court has power to condone the delay - the appeal has been filed before the lower appellate authority beyond the condonable period of delay - the appeal cannot be entertained - appeal not maintainable - decided against appellant.
-
2015 (3) TMI 1227
Allowing exemption under Section 10B - revision u/s 263 - Held that:- Assessing Officer, under some misconception of fact or law, as the case may be, did not address himself to the applicability of Section 10B and proceeded on assumption that assessee has rightly claimed exemption under Section 10B(1) of Act, 1961. This wrong assumption on the part of Assessing Officer whether of fact or law, apparently was erroneous and also caused prejudice to the interest of Revenue, for the reason that tax lawfully payable to department on previous income, earned by assessee in the assessment year 2011-12 would stand lost, if assessment order is not revised. We therefore, have no hesitation in holding that the twin conditions for attracting Section 263(1) of Act, 1961, exist in the case in hand and therefore, to that extent Commissioner was justified in exercising power under Section 263(1) of Act, 1961 by issuing notice in question.
We find that claim of assessee seeking exemption under Section 10B of Act, 1961 for assessment year 2011-12, was not doubted by Assessing Officer. Applicability of Section 10B of Act, 1961 for assessment year 2011-12, as claimed by assessee, was accepted by him. Thus, this aspect was not in appeal at any stage. It is only on the question of "quantum of profit" for which exemption was claimed that the appeal was filed. The Assessing Officer discussed the matter and found that instead of ₹ 4,97,28,163.45 which was claimed by assessee, it was entitled to exemption to the extent of ₹ 4,61,90,179.58 under Section 10B and there is taxable income of ₹ 3537980/-. On taxability of aforesaid amount, assessee preferred appeal and only that aspect was considered by CIT(A) as also Tribunal. At no stage, the issue whether assessee was entitled to claim exemption under Section 10B at all or not, having already exhausted beyond the period of exemption permissible under Section 10B, was not a subject matter of consideration before appellate authorities. Hence, this question was open to be looked into by Commissioner.
-
2015 (3) TMI 1226
Claim of deductions under Section 10A - whether the deduction should be allowed to the Assessee under Section 10A, on the ground that it is indeed entitled to the benefit under the particular provision? - Held that:- The assessee is involved in providing back office support and thereby entitled to the benefit under the definition of the term "computer software". Its activities are in the nature of data processing, customization of data, acting as the back office of the parent company and acting as support center to the parent company. Clearly it could not have been deprived of the benefit of Section 10A, as is argued by the revenue. This contention is accordingly rejected as unmerited. - Decided in favour of assessee
Transfer pricing adjustment - selection of comparable - Held that:- If the comparable is functionally same as that of tested party then same cannot be rejected merely on the ground that data for entire financial year is not available. If from the available data on record, the results for financial year can reasonably be extrapolated then the comparable cannot be excluded solely on the ground that the comparables have different financial year endings.
-
2015 (3) TMI 1225
Application for condonation of delay - delay in filing appeal - signature of authorized signatory missing - Held that: - the appeal was filed by the appellant beyond the statutory period of three months and the condonable period of three months prescribed under section 85 of the Finance Act, 1994. Hence, in view of the judgement of the Hon’ble Supreme Court in the case of Singh Enterprises vs. Commr. Of Central Excise, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA], it was held that, the Ld.Commissioner(Appeals) has no power to condone the delay beyond the period of three months in addition to the statutory limit of three months as prescribed under section 85 of the Finance Act, 1994. Accordingly, the appeal is dismissed.
-
2015 (3) TMI 1224
Validity of minutes - Whether minutes of meeting can override statutory regulations? - Held that:- Unless the minutes of meeting resulted in a final decision taken by the competent authority in terms of Article 77(3) of the Constitution and the decision so taken is communicated to the concerned person, the same was not capable of being enforced by issuing a direction in a writ petition. Without going into the merits of the matter, High Court was not right in disposing of the matter in terms of the minutes of the meeting dated 26.3.2013 and the impugned order is liable to be set aside.
In the result, the impugned order is set aside and the appeal is allowed. The appellant is at liberty to invoke the bank guarantee furnished by the respondents. The appellant is also at liberty to recover the arrears of landing, parking or housing fees charges from the concerned respondents in accordance with law.
............
|
9911796707
