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Showing 201 to 220 of 1255 Records
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2015 (5) TMI 1062
Cenvat credit - service tax paid on input services availed for setting up of factory in Uttaranchal - Held that:- CENVAT credit of tservice tax paid on the above services availed is permissible as the input services definition in Rule 2(l) permit allowance of CENVAT credit of service tax of the above nature having nexus to the business. - Decided in favour of appellant
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2015 (5) TMI 1061
Disallowance of indexed cost of improvement - Held that:- The Assessing Officer, after examining the bills and vouchers and other documents, came to a conclusion that the claim could not be accepted. The fact remains that the bills and vouchers were produced before the CIT(Appeals) and the same were sent to the Assessing Officer. The assessee’s claim was only a sum of ₹ 3,07,946/- as cost of improvement. Improvement can be made even to the farm land. It is not necessary that the improvements should be made only to the building. Suppose, the vacant land is low lying and it requires fencing, the assessee has to necessarily incur expenditure to keep the land to a marketable condition. Under normal circumstances, this Tribunal would have remitted back the matter to the file of the Assessing Officer for verification. Since what was claimed was only ₹ 3,07,946/-, this Tribunal is of the considered opinion that it may not be necessary to remit back the matter in view of the smallness of the amount claimed by the assessee. Accordingly, this Tribunal is of the considered opinion that the assessee would have spent ₹ 3,07,946/- as per the letter filed before the lower authorities with regard to improvements. Therefore, there is no justification in disallowing the claim of the assessee. Accordingly, the orders of the lower authorities are set aside and the Assessing Officer is directed to allow the claim of the assessee towards cost of improvements to the extent of ₹ 3,07,946/-.
Computation of capital gain - whether the sale consideration disclosed in the sale deed has to be taken or the value adopted by the Sub- Registrar for registering the document has to be taken - Held that:- This Tribunal is of the considered opinion that for the purpose of granting deduction under Section 54F of the Act, the value disclosed in the sale deed has to be adopted rather than the value determined by the Sub-Registrar on the basis of guideline value. Actual sale consideration as reflected in the sale deed has to be adopted in the absence of any other material to indicate that the assessee has received any on-money over and above the amount disclosed in the sale deed. In this case, it is nobody’s case that the assessee received on-money over and above the sale consideration disclosed in the sale deed. Therefore, this Tribunal is of the considered opinion that the Assessing Officer has to adopt the actual sale consideration of ₹ 90 lakhs for the purpose of considering the claim of exemption under Section 54F of the Act. The orders of the lower authorities are set aside and the Assessing Officer is directed to adopt the actual sale consideration for the purpose of considering exemption under Section 54F of the Act.
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2015 (5) TMI 1060
Validity of settlement commission order - Held that:- Settlement Commission cannot exercise substantive powers of Income Tax Authorities, but, only the procedural powers vested in the Income Tax Authorities can be exercised by the Settlement Commission under Section 245F of the Income Tax Act.
We quash and set aside the order passed by the Settlement Commission dated 27th/28th June, 2013 (Annexure6 to the memo of this petition). As the order at Annexure6 is hereby, quashed and set aside, the consequent orders passed by the Settlement Commission dated 24th September, 2013 in recall/rectification petition preferred by this petitioner is also quashed and set aside. We also allow the prayer in this writ petition by quashing and setting aside two garnishee notices both dated 27th January, 2015 issued under sub section 3 of Section 226 of the Income Tax Act, 1961 by the Deputy Commissioner of Income Tax, CircleII.
We also quash the garnishee notice issued upon the debtors of this petitioner as contained in Annexure13 series and 14 series, which are consequent upon the orders passed by the Settlement Commission.Thus, all interlocutory applications as well as the writ petition are disposed of. The matter is remanded to the Settlement Commission for fresh decision. This writ petition is hereby, allowed to the aforesaid extent as the impugned orders are at Annexure6 and 7 are hereby, quashed.
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2015 (5) TMI 1059
Allowable business expenditure - payments made to Hotels, Spa and purchase of apparels - Held that:- Admittedly, payments were made through credit card to Hotels/Resorts, Disney Vacancy purchase, apparels, Departmental stores, Spa, etc. These expenses were personal in nature. There is no material on record to show how these payments are going to promote the business of the assessee. Therefore, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly confirmed the addition to the extent of ₹ 4,73,345/-.
Disallowance of foreign travel expenses - Held that:- The assessee claimed expenditure relating to foreign travel. The assessee could not file any details. However, the bills and vouchers to the extent of ₹ 8,24,256/- were filed. In respect of the balance expenditure, no material was filed by the assessee. Therefore, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly confirmed the addition to the extent of ₹ 13,90,60/- on account of foreign travel. We do not find any infirmity in the order of the CIT(Appeals). Accordingly, the same is confirmed.
Disallowance towards repairs and renewals - Held that:- The assessee claims that a sum of ₹ 25,88,711/- was incurred in repairs and renewals of compound wall, relaying of connecting roads and construction of temporary dining hall for the workers. If it is a construction of new wall and new roads, it can be a capital expenditure, but, if it is repairs and maintenance of existing walls and roads, then definitely it is a revenue expenditure. The assessee claims that a temporary dining hall was constructed for the workers in the factory. It is not known the nature of construction made by the assessee. When the assessee claims that these are all revenue expenditure, the Assessing Officer estimated 60% of the same as capital expenditure. The details with regard to the nature of construction of the dining hall are not available on record. Therefore, we set aside the orders of the lower authorities and the issue of repairs and renewals is remitted back to the file of the Assessing Officer. The Assessing Officer shall reconsider the issue afresh to find out whether it is a construction of new compound wall and roads. The Assessing Officer shall also reconsider the nature of temporary structure made by the assessee for dining hall. The Assessing Officer shall thereafter decide the issue in accordance with law after giving reasonable opportunity to the assessee.
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2015 (5) TMI 1058
Grant of partial stay of recovery of demand - Held that:- As the assessee submitted that the assessee has already paid ₹ 2 lakhs each for all the five assessment years under consideration and whereas the assessee is also willing to pay a further sum of ₹ 2 lakhs each for all the years within a period of two months. In the circumstances, we grant stay of the outstanding demands for all the assessment years under consideration for a period of six months or till the disposal of the appeals subject to the condition that the assessee shall pay ₹ 2 lakhs each (totalling ₹ 10 lakhs) for all the assessment years under consideration on or before 13th June, 2015.
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2015 (5) TMI 1057
CENVAT credit on service tax paid on the GTA services availed by the appellant for outward transportation of the goods from the appellant's factory premises to the customer's premises. - Held that:- inasmuch as the goods were sold on FOR basis and the assessable value included the freight charges, credit of service tax paid on such freight charges would be available to the assessee.
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2015 (5) TMI 1056
Addition towards interest waived by the financial institution - AO disallowed the claim of the assessee on the ground that there was no actual payment of interest - Held that:- CIT(Appeals) found that the above sum which was debited in the Profit & Loss account in the assessment years 1994-95 to 2002-03, was disallowed and the same was taken as income of the assessee. Therefore, there is no question of any disallowance once again during the year under consideration. It is not in dispute that the claim made by the assessee with regard to waiver of interest was taken as income in the earlier assessment years by disallowing the claim of the assessee under Section 40A(3) of the Act. Therefore, as rightly pointed out by the CIT(Appeals), there is no need for disallowing the very same amount once again. - Decided in favour of assessee
Addition being the principal amount waived by the financial institution - Held that:- The purpose for which the loan borrowed is capital purpose, therefore, when the loan was waived by the financial institution, it will remain as capital in nature. It cannot be treated as benefit arising in the course of business under Section 28(iv) of the Act. In the case before us, it is not known whether the loan was borrowed for the purpose of investing in the capital asset or for the purpose of meeting the revenue expenditure. In the absence of any details on record, this Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. The Assessing Officer also shall examine the purpose for which the loan was borrowed and its utilization thereof. Thereafter, the Assessing Officer has to reconsider the matter. Accordingly, the orders of the lower authorities are set aside on this issue and the same is remitted back to the Assessing Officer. - Decided in favour of assessee for statistical purposes.
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2015 (5) TMI 1055
Penalty u/s. 271(1)(b) - Held that:- Neither the A.O. nor the Ld. C.I.T.(A) has made out a case for sustaining the penalties. Accordingly, the penalties in all these assessment years for all the assessees are cancelled. See Swarnaben M. Khanna vs. D.C.I.T. [2009 (12) TMI 669 - ITAT AHMEDABAD ] - Decided in favour of assessee.
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2015 (5) TMI 1054
Valuation - Import of Acrylonitrile (AC) - The value was determined on the invoice price - Held that:- the issue is against them as per decision of the Tribunal in the case of Hindustan Petroleum Corpn Ltd vs. CC., Kandla - [2012 (7) TMI 356 - CESTAT, AHMEDABAD] - - As the appellant is paying the price indicated in the invoice even if appellant would have received lesser quantity of the goods in the shore tanks, the invoice value charged and paid by the appellant would be the correct value - Decided against the assessee.
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2015 (5) TMI 1053
Levy of penalty - section 78(5) of the RST Act, 1994 - Held that:- In the light of the judgment of the honourable Larger Bench of this court and the judgment of the honourable apex court in Guljag Industries v. Commercial Taxes Officer mens rea is not essential. Such overwritings and cuttings in declaration form, in all columns would certainly fall in the category of forged, fabricated or false declaration form and therefore, in my view, the assessing officer was correct in levying the penalty and the Deputy Commissioner (Appeals) as well as the Tax Board were unjustified in deleting the same, therefore, the order of the Tax Board is quashed and set aside and order of the assessing officer is restored. - Decided in favor of revenue.
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2015 (5) TMI 1052
Levy of penalty u/s 78(5) of the Rajasthan Sales Tax Act, 1994 - Whether the mens rea is required to be proved as a necessary ingredient for imposition of penalty - Held that:- As held by the Hon'ble Larger Bench of this Court, though mens rea is not essential but in the present case, the penalty is not leviable for the reason that it is an admitted fact that the assessee is not a dealer of telephone cables but is a manufacturer of cement and the telephone cable of a value of ₹ 1,08,349.28 were purchased for its own use and for the use in factory for diverse purposes.
The declaration form ST-18A need not be furnished, if the goods of the class or classes are specified in the registration certificate would mean that the goods, which were being purchased by the assessee, once having been recorded in the registration certificate, requirement of carrying declaration form ST-18A was not there. - No penalty - Decided in favor of assessee.
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2015 (5) TMI 1051
Addition u/s 153A - Held that:- Under new section 153A in a case where search is initiated u/s 132, the A.O. is obliged to call upon searched persons to furnish return for 6 assessment years immediately preceding the Assessment Year relevant to previous year in which search was conducted. Another feature of this section is that the A.O. is empowered to initiate the reassessment of total income of aforesaid years. This is a departure from earlier block assessment scheme in which block assessment roped in only the undisclosed income and the regular assessment proceedings were preserved resulting into multiple assessments. The argument of Ld. A.R. that addition made u/s 153A on same set of facts and circumstances amount to change of opinion does not hold any force.
The object of section 153A is to assess total income including the declared income as well as undeclared income unearthed during search. Therefore from the above, it follows that if during search proceedings, the search team finds some undisclosed income, then A.O. is bound to include this income in the assessment u/s 153A irrespective of the fact that earlier in proceedings u/s 143(3), the same was not considered. - Decided against assessee.
Addition made in the absence of such incriminating material - Held that:- There are different views of different high courts in this respect and in such a situation; the view favourable to the assessee is to be followed. In the absence of incriminating documents, no addition can be made. - Decided in favour of assessee.
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2015 (5) TMI 1050
Imposition of penalty - section 22A(7) of the Rajasthan Sales Tax Act, 1994 - branch/stock transfer - mobil oil of the respondent-assessee was being carried in vehicle - declaration form ST-18A was not available with the vehicle - requirement of mens rea - Held that:- in so far as the issue of mens rea is concerned, when the Larger Bench of this court has already opined that mens rea is not essential, therefore, the issue, with regard to mens rea, is decided in favour of the Revenue, but in the instant case, the penalty is not leviable as admittedly the vehicle was intercepted on July 13, 1995 and on or before March 30, 2000, in the light of the notification, referred to above, there was no requirement of carryingdeclaration form ST-18A and once there was no requirement or necessity of carrying the declaration form ST-18A in a case of branch/stock transfer, then penalty under section 22A(7) is not required to be levied. Admittedly, it is a case of branch/stock transfer and therefore, on this alternative plea and in the light of the judgment in assessees' own case reported in [2015 (11) TMI 1078 - RAJASTHAN HIGH COURT], and the judgment rendered by this court in the case of Assistant Commercial Taxes Officer v. Kamlesh Kumar Rajesh Kumar [2013 (3) TMI 631 - RAJASTHAN HIGH COURT], the instant revision petition deserves to be dismissed though for different reasons. - Decided against the revenue
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2015 (5) TMI 1049
Deduction under sec.80IA - Held that:- The business undertaking of the assessee is wind mill power generation/hosiery goods, etc., and it has claimed the benefit of deduction under Section 80IA of the Income Tax Act for the assessment year in question and for the subsequent years as well. Having exercised its option and its losses have been set off already against other income of the business enterprise, the assessee in this appeal falls within the parameters of Section 80IA of the Income Tax Act. There appears to be no distinction on facts in relation to the decision reported in Velayudhaswamy Spinning Mills case (2010 (3) TMI 860 - Madras High Court). - Decided in favour of the assessee
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2015 (5) TMI 1048
Addition of unexplained/unproved purchases - Held that:- After considering the impugned order as well as the order of the Tribunal in other cases and the material placed on record, we find that first of all, Shri Rakesh Kumar M. Gupta has retracted his statement before the A.O. and also filed affidavit admitting that sales made to the assessee are genuine.
The assessee has also produced evidences like copy of confirmed ledger account, copy of bank statement showing the payment made for the purchases and sale bills. All these documents have been placed in the paper book before us. The assessee’s case had been that no adverse inference should be drawn on the basis of statement recorded without reference to the assessee. No further enquiry was carried out in the case of the assessee or Shri Rakesh Kumar M. Gupta despite the fact that statement was subsequently retracted by him. We deleted the addition as relying on case of M/s Jitendra Harshadkumar & Company 2013 (11) TMI 1605 - ITAT MUMBAI] - Decided in favour of assessee.
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2015 (5) TMI 1047
Classification - Whether the ice-cream is a milk product as per appellant exempt under Salex Tax Act or not as per Revenue exiqible to tax - Held that:- ice-cream can certainly be said to be a product of a milk and certainly would be covered within the definition of a milk product, dahi (curd), khoa and cream. It is true that ice-cream as such is not mentioned anywhere but when ice cream is prepared basically by ingredient of milk and cream, I have no hesitation in holding that ice-cream would certainly be exempt under the Rajasthan Sales Tax Act. It is observed that the present matter is being decided for the assessment years under challenge and the judgment is based on the material available on record. In my view, the Tribunal exceeded its jurisdiction by holding that the rate of tax would be levied for succeeding assessment years as well which in my view, is contrary to the law laid down under the taxing statutes. Each year is different and the Tribunal cannot come to a conclusion that the same rate would apply for all times to come.
Therefore, when cheese, paneer, lassi, shrikhand and yogurt can be said to be items which are being produced with the main ingredient being milk so also on the same analogy, ice-cream in my humble opinion, would also fall within the same category and would thus, be exempt and therefore, finding reached by the Tax Board, is required to be reversed. Even as per common parlance in every household or even otherwise one immediately understands as to how ice-cream is being prepared and even a child would know that the ice-cream would be prepared by mixing milk, cream, sugar, etc. - Decided in favour of assessee
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2015 (5) TMI 1046
The Delhi High Court judgment involves the withdrawal of a contempt petition and application by the petitioners with liberty to file a writ petition. The respondent was represented by Mr. Naushad Ahmed Khan, ASC, GNCTD.
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2015 (5) TMI 1045
Refund claim - Whether communications can be regarded as orders - e-mail and the letter purported to be orders under Section 38 Delhi Value Added Tax, 2004 - Held that:- the said communications cannot be regarded as orders in the proper format, therefore, the communications are set aside. - Refund application disposed of
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2015 (5) TMI 1044
Disallowance of depreciation claimed by the assessee 80% on Windmill Project - Held that:- After considering the rival submissions we find that Hon’ble Punjab & Haryana High Court has clearly held in case of CIT-I Vs. M/s Maxwel Inc. (2014 (12) TMI 1238 - PUNJAB AND HARYANA HIGH COURT) that contribution towards evacuation of power would constitute a capital asset relating to renewable energy and was entitled for depreciation @ 80% annually therefore, following this decision we decide this ground against the Revenue.
Insurance premium paid for life of the partners as Keyman in the firm - Held that:- In similar circumstances in the case of cvs. DCIT (2013 (11) TMI 115 - ITAT CHANDIGARH ) by following the decision of the Hon’ble Bombay High Court in case of CIT Vs. B.N. Exports [2010 (3) TMI 186 - BOMBAY HIGH COURT] has held that premium paid on insurance of Keyman is allowable expenditure. - Decided in favour of assessee
Interest income treated as income from other sources - Held that:- In one of the group cases in case of CIT-I, Ludhiana vs. M/s. Eastman Industries, Ludhiana (2010 (2) TMI 408 - PUNJAB AND HARYANA HIGH COURT ) such income was accepted as income from business.- Decided in favour of assessee
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2015 (5) TMI 1043
Addition u/s 69 - assessee was recorded u/s.133A as well as u/s.131 - value of the statement recorded during the survey - Held that:- Hon’ble Madras High Court in the case of CIT Vs. S.Khader Khan Son (2007 (7) TMI 182 - MADRAS HIGH COURT ) has considered the evidentiary value of the statement recorded during the survey and held that on the basis of the statement addition cannot be made.
Kerala High Court in the case of Paul Mathews & Sons Vs. CIT reported in (2003 (2) TMI 25 - KERALA High Court ) has held that section 133A empowers the authority to record the statement of any person, which may be useful for, or relevant to any proceeding under the Act. This section only enables the authority to record any statement of any person, which may be useful, but does not authorise for taking any sworn statement. On the other hand, such power to examine a person on oath is specifically conferred on the authorized officer u/s. 132(4) of the I.T Act, 1961. The statement recorded by an officer on oath will be used as evidence in any proceeding, whereas statement recorded u/s. 133A has not given any evidentiary value because it was recorded by the authority, which has not been empowered to administer the oath to the assessee and take sworn statement.
We are of the view that the 1st appellate authority has not committed any error while deleting the addition. The ld.DR was also unable to point out any other corroborative evidence. In view of the above discussion, we dismiss the appeal of the revenue. - Decided in favour of assessee
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