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Showing 221 to 240 of 1967 Records
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2014 (1) TMI 1749
Penalty u/s 271 (l)(c)- Concealment of income - Assessee filed return of income declaring loss Return was selected in scrutiny on account of share application money received - CIT(A) deleted penalty imposed by AO - High Court affirmed deletion of penalty - Held That:- addition was made on account of amount surrendered by assessee - No other information was available with revenue-Cannot be said there was concealment of income-Revenues' appeal dismissed. Special leave petition is dismissed. - Decided in favour of assessee.
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2014 (1) TMI 1748
Estimation of turnover in Escaped assessment proceedings u/s 25(1) of the KVAT - rejection of return - running a restaurant along with the bar where alcoholic drinks were supplied - Deputy Commissioner (Appeals) reduced the addition from 15 per cent. to five per cent. - Tribunal found that the assessment made by the assessing officer was justified and reversed the findings of the first appellate authority and confirmed the order passed by the assessing officer. - Held that:- It is not in dispute that the assessee only returned the taxable turnover of ₹ 14,20,328. Apparently, the first assessing authority, without any basis, reduced the quantum of escaped assessment to five per cent., which will work out to an amount even less than what was conceded. Therefore, there is justification on the part of the Tribunal to have interfered with the order passed by the first assessing authority.
A method has to be adopted by the assessing officer to find out the turnover suppression by the assessee. He has adopted a method by taking 15 per cent. of the sale of liquor, which is not unreasonable or illegal in any form, especially when the assessee conceded the turnover at ₹ 14,20,328. Under these circumstances, we are of the view that the assessing officer as well as the Tribunal is justified in rejecting the claim of the petitioner. - Demand confirmed - Decided against the assessee.
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2014 (1) TMI 1747
Addition on account of deduction of capital subsidy from WDV of Plant and Machinery - disallowance of proportionate depreciation - Held that:- The revenue has not brought on record that the subsidy received by the assessee is directly or indirectly resulted in acquisition of any asset, we are of the considered opinion that the capital subsidy received by the assessee company under ‘Bihar Incentive Package 2006’ for undertaking expansion of its capacity from 8500 TCD to 10000 TCD cannot be deducted from WDV of plant and machinery. Since the Ld.CIT(A) has correctly appreciated the facts and the position of law aforementioned for reversing the order of the AO - Decided against revenue
Treatment to subsidy received as excise duty reimbursement - capital or revenue receipt - Held that:- It is not disputed that the subsidy scheme formulated by the Government of Bihar is for the purpose of attracting capital investment and to encourage setting up the industry/expand the existing unit. It is pertinent to mention that the character of a subsidy in the hands of the assessee has to be determined with respect to the purpose for which the subsidy is given. The point of time at which the subsidy is paid and the source or the forms of subsidy are immaterial. If the object of the the subsidy scheme is to enable the assessee in setting up the new unit or to expand the existing unit, then the receipt of the subsidy is to be treated on capital account.- Decided against revenue
MAT computation - additions made to the book profit on account of excess depreciation and subsidy received by way of excise duty - Held that:- The issue raised in this ground is squarely covered in favour of the assessee by the decision of the Hon’ble Apex Court in the case of Apollo Tyres Ltd. Vs. CIT [2002 (5) TMI 5 - SUPREME Court ], wherein it has been held that the AO while computing the income under section 115J has only the power to examine whether the books of account are certified by the authorities under the Companies Act as having been properly maintained in accordance with the said Act. The AO, thereafter, has the limited power of making increases and reductions as provided for in the explanation to the said section. To put it differently the AO does not have the jurisdiction to go behind the net profit shows in the P&L Account except to the extent provided for the explanation of section 115J. Also, it is noted that while deciding grounds no. 1 & 2 in respect of the additions under normal provisions of the income in respect of treatment of the said subsidy, we confirmed the deletions made by the Ld.CIT (A) and hence the additions made in computation of book profit under section 115JB is not sustainable - Decided against revenue
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2014 (1) TMI 1746
Revision u/s 263 - Held that:- All the documents which were found during the search were not examined by Assessing Officer during assessment proceedings. This clearly shows that Ld. Commissioner came to the conclusion that assessment order was erroneous and prejudicial to the interest of Revenue
Assessing Officer is of the view that issue regarding section 40A(3) i.e. issue of cash payment and certain investments could not be examined because of the non-cooperation of the assessee. These are two different issues and cannot be linked. No doubt, the Assessing Officer has no power to review his own order but as discussed earlier he had definitely power to put up a proposal for revision and this position was admitted even by the Ld. Counsel for the assessee. Therefore, we find no force in these submissions.
Assessing Officer has ultimately accepted the surrendered amount meaning thereby by that Assessing Officer has taken one of the possible view and, therefore, order cannot be called erroneous. The careful perusal of the assessment order clearly shows that Assessing Officer has not examined the various documents found during the search and has simply assessed the income at ₹ 8.5 crores which was surrendered amount. The Assessing Officer should have examined all the documents particularly because the assessee has not filed the return for surrendered amount of ₹ 8.5 crores. In fact, the assessee had returned only income of ₹ 3.37 crores. Therefore, Assessing Officer should have been more then careful and should have examined all the documents found during the search regarding purchase of properties and then determine income which has not been done. In any case, mere acceptance of the surrendered income without inquiry would make the order erroneous and prejudicial to the interest of Revenue
None of the items pertain to surrendered income and, therefore, it cannot be said that a sum of ₹ 78,30,000/- was surrendered in the hands of Shri Suresh Khanna. The Ld. counsel was confronted with this variation and specific question was posed to him as to how he justified the figure of ₹ 78,30,000/- shown as surrendered income. He gave evasive reply and submitted that this would be part of income of six years, however, no document is available in this regard. Similar is the situation with Shri Rupinderdeep Singh and Shri Deepak Chauhan. As far as the case of Shri Harinder Singh is concerned, the Ld. Counsel for the assessee has filed copy of the assessment order in case of Shri Harinder Singh vide letter dated 6.11.2013. The assessment order clearly shows that assessee had declared income from business. In this case the sum of ₹ 2,98,39,000/- has been added by way of addition and same did not form part of the returned income. Therefore, this is wrong to say that assessee has offered the surrendered income in various hands.
Assessing Officer has not made proper enquiries and therefore, assessment order is erroneous and prejudicial to the interest of Revenue which has been correctly revised by the Ld. Commissioner by passing an order u/s 263. - Decided against assessee
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2014 (1) TMI 1745
Import of a new Ferrari Car F430, Fi Coupe - classification - order of the Settlement Commission - High Court held that car imported is a new car and applied the exemption Notification No. 21/2002-Cus. correctly reported in [2013 (7) TMI 28 - MADRAS HIGH COURT] - Revenue here submitted that vehicle in question, prior to its import in our country had been registered in U.K., therefore, the Notification dated 01/03/2002 was not applicable - Apex Court orderd to issue notice on the application for condonation of delay as well as on the Special Leave Petition
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2014 (1) TMI 1744
Withdrawal of appeal - Held that:- As the assessee has filed written application requesting for permission of the Tribunal to withdraw the present appeal and DR has no objection to the said request to the assessee. In these facts, we allow the withdrawal of the appeal filed by the assessee and the appeal is accordingly dismissed as withdrawn.
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2014 (1) TMI 1743
Waiver of pre-deposit - Demand of duty - formation of different units and operating with the common object or contributory factors - Held that:- taking into consideration the financial difficulties, we do appreciate that the appellant may be deprived of process of hearing if undue hardship is cause to them. But no merit found in the plea of financial hardship because the interest of Revenue on the other-hand shall suffer if there is no direction for pre-deposit. Not only we appreciate that there shall be no hardship to the appellants by our interim order but also no undue hardship is expected to be caused to appellant. Public interest demands direction for pre-deposit is essential to safeguard interest of justice without causing irreparable injury to either side. Therefore, the appellant is directed to deposit ₹ 50,00,000/- (Rupees fifty lakhs) in 10 equal monthly instalments of 5 Lakhs each to be payable by 25th of each month and first instalment shall commence from February, 2014.
So far as stay application of Shri Ashok Kumar is concerned, we direct that the said appellant shall deposit ₹ 5,00,000/- in 3 instalments of ₹ 2,00,000/- each by 25th February and 25th March. The cost instalment of ₹ 1,00,000/- is to be deposited 25th April.
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2014 (1) TMI 1742
Disallowance made u/s 40(a)(i) - failure on the part of the assessee to deduct tax at source on the payment of royalty - Held that:- Considering the submission of the parties in the light of the ratio laid down in case of CIT vs. Dynamic Vertical Software India P. Ltd (2011 (2) TMI 77 - DELHI HIGH COURT ) and keeping in view the direction given by the co-ordinate bench in assessee’s own case for the assessment years 2004-05 and 2005-06, we also remit the issue back to the file of the Assessing Officer who shall consider it afresh after examining all the facts and materials on record. The Assessing Officer shall also take into consideration any decision which may be relied upon by the assessee in support of its claim. Since we have remitted the issue back to the file of the Assessing Officer for considering the same afresh, it will be open to the assessee to raise all other contentions with regard to its claim of not being liable to deduct tax at source u/s 195 of the Act. With the aforesaid observation, the matter is remitted to the file of the Assessing Officer for deciding the same in accordance with law after affording a reasonable opportunity of being heard to the assessee.
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2014 (1) TMI 1741
Addition towards loss on account of fluctuation in foreign exchange - Held that:- It is a fit case for setting aside to the files of the CIT (A) for adjudicating the issue again on if the losses arising out of depreciation of foreign currency is utilized or intended to be utilized for the business which form part of capital. CIT (A) shall analyse afresh if the loss on account of foreign exchange fluctuations which is relatable to the revenue account or capital account. If the loss is relatable to the "revenue account", assessee should be entitled to the relief in view of the judgment of the Hon‟ble Supreme Court in the case of CIT vs. Woodword India Pvt. Ltd (2009 (4) TMI 4 - SUPREME COURT ). Accordingly, we set aside the issue to the files of the CIT (A) to adjudicate the issue afresh - Decided in favour of assessee for statistical purposes.
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2014 (1) TMI 1740
Seeking direction for sending samples to another laboratory than Central Revenue Control Laboratory (CRCL) - CRCL has no infrastructure as well as competence to undertake the testing whether the sample is hazardous or toxic - Respondent contended that CRCL is a competent laboratory and have tested the sample and found that the goods imported within the periphery of hazardous waste but as per petitioner's annexed certificate issued by the laboratory situated at the consignor's country, the said goods are not hazardous or toxic.
Held that:- since two conflict reports have come up, this Court feels that the respondent authorities should take out another sample and shall send the same to a third laboratory or to any other laboratory set up by the Central Government under Section 12 of the Environment (Protection) Act, 1986 having infrastructure to undertake the testing of the material whether the same is hazardous or toxic. Therefore, the respondent authorities are directed to collect a sample from the consignment in presence of the petitioner or its authorized representative within a week from date and shall send them to the laboratory as indicated hereinabove and shall intimate the petitioner the cost incurred for such test, which shall be reimbursed by the petitioner. - Petition disposed of
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2014 (1) TMI 1739
Additional payments made to the retiring partners - addition on capital gain - existence of element of profit - Held that:- The character of additional amounts paid to the retiring partners represent the share of the retiring partners in the Worth and Value of the business in which they were partners. The Worth and Value included the standing of the business, the goodwill and so many other intangible virtues. So, what is paid to the retiring partners is their rightful shares in that Worth and Value of the firms and plainly speaking, there is no such additional payments as alleged by the Revenue towards profits. What is paid to the retiring partners are those amounts due to them. The only thing is that their shares in Worth and Value of business have been separately computed.
Therefore, we find that the additional payments made to the retiring partners were not in the nature of any profit or income within the meaning of Section 28(va). As nontaxable capital receipts and in that way, the Commissioner of Income Tax (Appeals) is right in holding that the amounts are not taxable - Decided against revenue
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2014 (1) TMI 1738
Reopening of assessment - non issue of notice u/s.143(2) - Held that:- Admittedly no notice u/s.143(2) has been issued to the assessee in the instant case. Therefore,we hold that the assessment order passed by the Assessing Officer is void ab-initio due to non-issue of notice u/s.143(2). - Decided in favour of assessee
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2014 (1) TMI 1737
Deduction u/s 36(1)(viia) - Revenue has disputed the deduction claimed for the reason, that the assessee has not created provision for bad and doubtful debts - Held that:- In case of Banking Companies, the accounts are made in accordance with the RBI guidelines and the Banking Regulation Act, 1949. Although the assessee has named the provision as 'Provision for NPA', but in pith and substance the provision has been created for 'Bad and Doubtful Debts'. The taxonomy of the provision has been done by the assessee to keep it in line with the RBI and NABARD guidelines.
The assessee had already made provision though with a different nomenclature. We are satisfied that the assessee has made provision and claimed deduction in accordance with the provisions of section 36(1)(viia). The assessee is entitled to the benefit of same. The impugned order is set aside - Decided in favour of assessee
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2014 (1) TMI 1736
Mark-to-Market loss arising on valuation of forward exchange contracts on the closing date of accounting year is not a national loss and therefore allowable - Held that:- As relying on the decision of DCIT vs. Bank of Bahrain and Kuwait (2010 (8) TMI 578 - ITAT, MUMBAI) to hold that the liabilities for foreign exchange was incurred during the normal course of assessee’s business and in fact the gain earned on such revaluation having been accepted and brought to tax in the respective years, there is no reason to arrive at a different conclusion in this year merely because there is a loss. Thus directing the AO to delete the addition - Decided in favour of assessee.
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2014 (1) TMI 1735
Exhaustion of remedy of appeal - Section 177 of the Delhi Value Added Tax - Held that:- where a determination has been made by the Appellate Commissioner, classifying the goods in question under a particular head, appeals would not be maintainable. Specific reference is made by the writ petitioner to the observations of Commissioner, VAT that in NEC India Pvt. Ltd., New Delhi, the item under consideration has already been determined. Here also the Commissioner appears to have followed the said order. Concededly the appellant has not exhausted its appeal remedy. In such circumstances the Court does not deem it fit that the writ petitioner should invoke the jurisdiction under Article 226 of the Constitution of India. - Decided against the petitioner
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2014 (1) TMI 1734
Deemed dividend u/s 2(22)(d) - Held that:- It is an admitted fact that the assessee did not make payments as such to the firm / company to the extent of ₹ 25,75,116/-. It includes the sum of ₹ 19.7 lakhs, which is obviously the goodwill, appearing on the credit side for the first time on 31.3.2001. Effectively, ₹ 20,74,170/- was paid by the company to the assessee is obviously against the non-payment by the assessee to the firm / company through the mode of allotment of redeemable preferential shares. These aspects were not examined deeply considering the relevant legal provisions under the Companies Act, 1956. Further, it is an admitted fact that the assessee has not raised the arguments relevant to the provisions of section 80(3) and section 100 of the Companies Act, 1956. It is also relevant to mention here that there is no categorical finding on the essential aspect of “reduction of its capital” by the lower authorities qua the redemption of the preferential share capital. It is an admitted fact that the "capital" is a wider connotation and it is a generic term. In all fairness, we are of the opinion that the above issues must be remanded to the files of the CIT (A) for a comprehensive remand report. Therefore, we remand these issues to the files of the CIT (A) to adjudicate the matter afresh after providing a reasonable opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes.
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2014 (1) TMI 1733
Stay of operation of a provision of PVAT - Counter and rejoinder affidavit to be filed in two weeks and in the meantime petitioner can take steps for service of notice. There shall be a stay of operation and implementation of sub-section (5) of Section 62 of Punjab VAT Act, 2005 - Disposed of
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2014 (1) TMI 1732
Penalty u/s. 271 (1)(c) - non deduction of tds u/s 194C - ITAT deleted the penalty - Held that:- The Tribunal applied the decision of the apex Court in case of Reliance Petroproducts Private Limited, reported in (2010 (3) TMI 80 - SUPREME COURT) and observed that merely on account of disallowance of certain claim, penalty cannot be imposed. The Tribunal also recorded that the question of disallowance under section 40[a](ia) of the Act in respect of transporters had given rise to diversified opinion. CIT [A] has further recorded that the department did not question genuineness of the expenditure but disallowed the same merely on the ground that TDS was not deducted. Such being the factual position, no question of law arises. - Decided in favour of assessee
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2014 (1) TMI 1731
Application for stay as well as waiver of pre-deposit - ITAT directing the petitioner to deposit 25% of the duty demanded within 8 weeks from that date - Held that:- On perusal of the provisions contained under Rule 21 of the Central Excise Rules, 2002, this Court finds that the consideration for the said application is different and, therefore, the said order cannot be linked to the order passed on confirmation of the demand. Furthermore the consideration for application seeking waiver of the pre-condition deposit is well recognized, as in such case the authorities must record their satisfaction relating to the undue hardship and while doing so shall also take into account the interest of the revenues.
The aforesaid satisfaction should be arrived independently and on the basis of the materials available with the record or produced before the Tribunal, if permissible under the procedural law. The Tribunal’s finding is solely based on rejection of an application for remission of duty and this Court does not find that there has been any recording to the satisfaction relating to the undue hardship as well as the interest of revenue.
This Court, therefore, finds that the Tribunal has proceeded to decide the matter extraneously without recording any satisfaction relating to the existence of a prima facie case, irreparable loss and injury, balance of convenience and inconvenience and undue hardship, which are some of the illustrative ingredients for consideration of the said application.The order impugned is, therefore, quashed and set aside and the matter is remitted back to the Tribunal for its re-consideration.
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2014 (1) TMI 1730
Disallowance of Cenvat credit - Advertisement and sponsorship services - Appellant advertised themselves as HCL, which is reflective of entire HCL Group - Revenue contended that this is an advertisement for the entire group of HCL and benefit of Cenvat credit can not be extended to the assessee, who is an exporter of software - No dispute about the payment of service tax by the appellant in which case, the advertisement services availed by them have to be held as availed by the appellant himself - Held that:- When the service tax for the services along with the consideration of such services stand paid by the assessee, it has to be held that advertisement services have been availed by the assessee, in relation to his business activities in which case Cenvat credit would be available. Also there was no such allegation in the show cause notice. So, as all the services in dispute stand covered by various decisions of the Tribunal but there is some dispute about the production of documentary evidence, the impugned order is set aside.
Services on which the credit has been allowed are medical group insurance, legal consultancy services, outdoor catering services and subscription for international taxation. All the said services stand covered by decisions of the Courts including various High Courts. - Appeal disposed of
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