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Showing 221 to 240 of 2855 Records
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2015 (10) TMI 2643
Whether the sub-contractor of a main contractor is liable to discharge the service tax liability on the services provided by him - Applicability of old circulars - penalty - Held that: - the decision in the case of SUNIL HI-TECH ENGINEERS LTD Versus COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2014 (10) TMI 524 - CESTAT MUMBAI (LB)] contested, where it was held that the appellant is liable to pay service tax on the taxable services rendered by him in the capacity of a sub-contractor - the substantial questions of law were admitted - respondent waives service.
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2015 (10) TMI 2642
Validity of assessment u/s 153A in the case of Assessee stood dissolved on amalgamation - non existent company - Held that:- In the present case, a search took place on 20th October, 2008 in the cases of Mr B. K. Dhingra, Smt. Poonam Dhingra and M/s Madhusudan Buildcon Pvt. Ltd. On the basis that in the course of search certain documents belonging to the Assessee company were found, notice was issued to the Assessee under Section 153C (1) on 10th September, 2010. Therefore, not only on the date on which notice was issued but even on the date of the search, the Assessee had ceased to exist in the eyes of law.
In Pr. Commissioner of Income Tax (Central-II) v. Images Credit And Portfolio Pvt. Ltd.[2015 (9) TMI 234 - DELHI HIGH COURT] invalidated the assessment proceedings against the Assessee in those cases which, on account of having merged with another entity with effect from a date anterior to the search, also no longer existed on the date of search, on the date of the issue of notice and consequent assessment order passed under Section 153 C of the Act. - Decided against revenue
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2015 (10) TMI 2641
Penalty under section 271(1)(c) - capital gain addition - Held that:- The issue is covered in favour of the assessee by order of ITAT Chandigarh Bench in the case of Shri Balwinder Singh Dhillon [2015 (8) TMI 1384 - ITAT CHANDIGARH] on identical facts penalty has been cancelled and the departmental appeal has been dismissed. Further, when Hon'ble High Court has deleted the addition in the cases of assessees by following decision in the case of Shri C.S. Atwal V CIT [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] therefore, nothing survives in favour of the revenue to levy the penalty under section 271 (1) (c) of the Act. In the result, there are no merits in the departmental appeals, the same are accordingly, dismissed. - Decided in favour of assessee
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2015 (10) TMI 2640
Addition u/s 14A - as per assessee investments made in the companies are strategic investments which have been made for business purposes and therefore should not be considered when computing the average value of investments for the purpose of Rule 8D(2)(ii) and 8D(2)(iii) - Held that:- The claim of strategic investments made by the assessee need verification. We, therefore, restore the entire issue to the file of the AO. The AO is directed to verify the claim of the assessee that the investments are made for strategic purposes and decide this issue afresh in the light of the findings given by the Tribunal in assessee’s own case in earlier assessment years and also keeping in mind that if investments are found to be of strategic in nature then to decide the issue as per the decision of the Tribunal given in the case of J.M. Financial Ltd.[2014 (4) TMI 752 - ITAT MUMBAI] read with M/s. Garware Wall Ropes Ltd. [2015 (2) TMI 628 - ITAT MUMBAI]. With the above directions, ground are treated as allowed for statistical purpose.
Disallowance of amortization of premium paid for leasehold land - Held that:- Tribunal has followed the decision of the Co-ordinate Bench in assessee’s own case for A.Y. 2005-06 [2010 (10) TMI 214 - ITAT MUMBAI ] and dismissed the appeal of the assessee.
Addition on account of unutilized cenvat credit - Held that:- This issue has been decided in favour of the assessee and against the Revenue by the Tribunal [2014 (9) TMI 1099 - ITAT MUMBAI] wherein the Tribunal has observed the directions given to the AO to recast the accounts of the assessee by considering the element of Excise duty and other taxes in opening stock, purchases, sales and inventory has to be decided as per the findings given in A.Y. 2006-07. Respectfully following the directions given by the Co-ordinate Bench, we direct accordingly.
Value to be adopted with regard to the opening written down value of the block of assets - Held that:- This issue has been decided against the assessee by the Tribunal in assessee’s own case for A.Y. 2006-07
Disallowance on account of the provision for diminution in the value of investments while computing Book profits u/s. 115JB -Held that:- This issue is now decided against the assessee and in favour of the Revenue in view of the retrospective amendment by the Finance Act No.2 of 2009 with effect from 1.4.2001, now that this issue is covered by the Amendment against the assessee
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2015 (10) TMI 2639
Penalty u/s 271(1)(c ) - income found in the locker - Held that:- Concealment and furnishing inaccurate particulars are different. The AO, while issuing notice, has to come to the conclusion as to whether it is a case of concealment of income or whether it is a case of furnishing of inaccurate particulars. The Hon’ble Apex Court in the case of T. Ashok Pai vs. CIT (2007 (5) TMI 199 - SUPREME Court) has held that concealment of income and furnishing inaccurate particulars of income carry different connotations.
As in the present case the penalty order does not make it clear as to whether the penalty has been imposed for concealing particulars of income or for furnishing inaccurate particulars of income we respectfully following the decision in the case of Commissioner of Income Tax & Another vs. Manjunatha Cotton & Ginning Factory (2013 (7) TMI 620 - KARNATAKA HIGH COURT) wherein held that Notice u/s 274 of the Act should specifically state the grounds mentioned in section 271(1)(c) , i.e. whether it is for concealment of income or for furnishing of inaccurate particulars of income. Sending printed form where all the ground mentioned in section 271 are mentioned would not satisfy requirement of law, thus we hold that the penalty imposed u/s 271(1)(c) of the Act was improperly imposed by the AO - Decided in favour of assessee
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2015 (10) TMI 2638
Interest u/s 18(4) - Delay in sanction of refund - the decision in the case of COMMISSIONER OF CUSTOMS (EXPORT), NHAVA SHEVA Versus INDO ZINC LTD. [2014 (12) TMI 646 - BOMBAY HIGH COURT] contested - Held that: - appeal dismissed - decided against appellant.
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2015 (10) TMI 2637
Exemption under Exemption N/N. 6/2002-CE dated 01.3.2002, read with list -6(5), or N/N. 6/2006-CE dated 01.3.2006 - the decision in the case of Commissioner of Central Excise & ST., Surat and others Versus M/s. Bhagyarekha Engineers Pvt. Limited and others [2014 (8) TMI 778 - CESTAT AHMEDABAD] contested - Held that: - we do not see any good ground to interfere with the judgment(s) and order(s) passed by the Customs, Excise and Service Tax Appellate Tribunal - appeal dismissed - decided against appellant.
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2015 (10) TMI 2636
Refund claim - whether the appellant is entitled to refund of the Education Cess and Higher Education Cess in terms of area based exemption N/N. 56/2002 or not? - Held that: - The issue has been examined by this Tribunal in the case of M/s. Jindal Drugs Ltd. [2009 (8) TMI 812 - CESTAT, NEW DELHI] wherein it has been held that Education Cess and Higher Education Cess is not exempted in terms of said notification - appellant is not entitled to claim refund of Education Cess and High Education Cess - appeal dismissed - decided against appellant.
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2015 (10) TMI 2635
Maintainability of appeal - Court has no jurisdiction to entertain and adjudicate the appeal and that the same is required to be filed before the Supreme Court in view of the provisions of Section 130E of the CA, 1962 - whether the present case falls within the ambit of Section 130 of the Act or not? - Held that: - none of the findings touch any issue relating to the determination of the rate of duty or value of goods for the purposes of assessment. The entire controversy relates only to the description of the goods in the IGM in connection with the question as to whether such goods are liable to confiscation. None of the issues decided by the Tribunal are in the context of determination of the rate of duty or the value of goods for the purposes of assessment. Under the circumstances, the appeal squarely falls within the ambit of Section 130 of the Act and has, therefore, rightly been filed before this Court.
Application rejected - decided against appellant.
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2015 (10) TMI 2634
Conversion of shipping bills - free shipping bills into drawback shipping bills - denial on the ground that no sample was drawn at the time of shipment of the goods - the appellant's case is that they have produced the certificate of M/s. Geo-Chem Laboratories Pvt. Ltd. before the adjudicating authority which was not considered - Held that: - the adjudicating authority had not considered the certificate of M/s. Geo-Chem Laboratories Pvt. Ltd. In our considered view, the Adjudicating Authority should have examined the case in respect of the certificate of M/s. Geo-Chem Laboratories Pvt. Ltd. - matter is remanded to the Adjudicating Authority to decide afresh - appeal allowed by way of remand.
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2015 (10) TMI 2633
Validity of reopening of assessment u/s. 147 - Held that:- We find that in the reasons supplied to the assessee, at the time of issuing unsigned reasons the AO had not mentioned anything as what was the basis of arriving at the conclusion of escapement of income, that also in the reasons recorded he had not mentioned that the escapement of income was due to failure of the assessee to disclose truly and fully the material facts.
Considering the various factors-like supplying unsigned reasons, existence of two different sets of reasons for issuing 148 notice, not adjudicating objections raised by the assessee, reopening of assessment after a very long period, relying on the statements of third party that were not confronted to the assessee etc.-we are of the opinion, that the notice u/s.148 had been issued without the jurisdictional foundation u/s.147 being available to the AO and that the notice and the subsequent proceedings were without jurisdiction. - Decided in favour of the assessee.
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2015 (10) TMI 2632
Penalty u/s 67 (1)(d) of the KVAT Act - works contract - tripartite agreement or not - Held that: - orders suffer from a patent non-application of mind and therefore, deserve to be quashed for that reason alone. I also find however, that there is no consideration by the respondent Intelligence Officer, of the aspect of whether the petitioner had willfully evaded payment of tax that was due and payable by him. This aspect assumes importance in matters of penalty.
Writ petitions, challenging a proposed assessment of the petitioner for the relevant assessment year u/s 25 (1) of the KVAT Act, were subsequently withdrawn by the petitioner and the said assessments are now pending before the assessing authority, that I felt it would be in the interests of justice, and to avoid a multiplicity of proceedings, that directions should be issued to the assessing authority of the petitioner namely, the Commercial Tax Officer, Works Contract, Kozhikode, to consider the issue of imposition of penalty on the petitioner as well.
Appeal allowed by way of remand.
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2015 (10) TMI 2631
Disallowance of deduction u/s 80IB(10) - no approval from the local authority for the housing project seeked - whether the Gram Panchayat is “local authority” or not - Held that:- There was a discussion of Bombay Village Panchayat Act, 1958 and as per section 52, sanction of construction of building within the limit of village has to be granted by the Panchayat. On the said basis it was held that the village Panchayat is a “local authority”.
As far as the issue whether the Gram Panchayat is “local authority” or not, the decision of ITAT, Pune Bench has been cited before us n the case of Hiraman Nivrutti Bhujal [2014 (5) TMI 1137 - ITAT PUNE] wherein other decisions were discussed and finally came to the conclusion that the concerned Gram Panchayat was a competent local authority for the purpose of issuing approval and completion certificate for claiming deduction u/s 80IB(10) of I.T. Act. Moreover, the respondent-assessee has also placed reliance on a decision of CIT vs. Gwalior Rayon Silk Manufacturing Co. Ltd. [1992 (4) TMI 3 - SUPREME Court ] for the legal proposition that the provisions for deductions and exemptions should be construed reasonably and in favour of the assessee. In our considered opinion since all the issues in hand have been covered either by the orders of the Tribunal in assessee’s own case or by respected coordinate Benches, therefore, we find no fallacy in the view taken by the learned CIT(Appeals). - Decided against revenue
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2015 (10) TMI 2630
Peaceful functioning of fair price shop in Gram Sabha Ardauna, Tehsil Sadar, District Mau - Held that:- In the instant case, shop no.2 had become vacant. The appellant was allotted the shop, may be in the handicapped quota but such allotment is the resultant factor of the said shop falling vacant. The original allottee, that is the respondent, assailed his cancellation and ultimately succeeded in appeal. We are not concerned with the fact that the appellant herein was allowed to put her stand in the appeal. She was neither a necessary nor a proper party. The appellate authority permitted her to participate but that neither changes the situation nor does it confer any legal status on her. She would have continued to hold the shop had the original allottee lost the appeal. She cannot assail the said order in a writ petition because she is not a necessary party.
It is the State or its functionaries, who could have challenged the same in appeal. They have maintained sphinx like silence in that regard. Be that as it may, that would not confer any locus on the subsequent allottee to challenge the order passed in favour of the former allottee. She is a third party to the lis in this context.
The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation – an anarchy in law.
The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party. In view of the aforesaid premises, we do not perceive any merit in this appeal and, accordingly, the same stands dismissed
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2015 (10) TMI 2629
Whether ‘spent grain’, generated in a brewery in the manufacture of 'beer', is an article that would fall within the Entry at Serial No.3 in the First Schedule of the Kerala Value Added Tax Act, 2003, which relates to exempted goods; or whether, it is assessable to tax, by treating them as not goods falling under clause (a) or (c) of section 6(1) of that Act?
Held that: - In the larger expanding horizon of commerce and scientific attempts to utilise all leftovers of different processes of production, we see that there are efforts being made, and suggestions extended; in the international scientific domain; to utilise ‘spent grain’, primarily as fodder, and even as food substitutes even for humans, particularly in exceptionally marginalised and economically challenged social groups in certain parts of the world. But, in the contextual content of a taxing statute in a land like India; particularly in the State of Kerala; with the judicial prudence that we are expected to have, we are unable to visualise that 'spent grain' would be reckoned as an edible substitute for human beings; here and now. In this view of the matter, we cannot but repel the suggestion on behalf of the Revenue as to the probable varied utility of ‘spent grain’ and to hold that the Revenue had established that the said substance is excluded from Sl. No.3 (three) in the First Schedule of the Act - the decisions rendered by the Appellate Tribunal are liable to be reversed holding that ‘spent grain’ does not fall either under clause (a) or (c) of section 6(1) of the Act. - Decided in favor of petitioner.
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2015 (10) TMI 2628
Condonation of delay - interpretation of Section 260A (2) (a) - Held that:- Today in two other appeals Pr CIT v. Gulbarga Associates Pvt. Ltd.(2017 (3) TMI 1266 - DELHI HIGH COURT)questions concerning the interpretation of Section 260A (2) (a) have been referred to a larger Bench. The Court is of the view that many of those questions would arise in the present appeal as well.
Consequently, this appeal is also directed to be placed before the Hon’ble the Chief Justice for being placed before the larger Bench to be re- heard.
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2015 (10) TMI 2627
Refund claim - claim on the ground that finished goods removed to its Madras Depot on payment of duty were found substandard, and as such, the same were returned to the factory and upon re-packing, the same were cleared on payment of Central Excise Duty - Held that: - no security to the satisfaction of this Tribunal has been furnished by the appellant, entitling it to get the refund from the Original Authority - for the purpose of meeting the ends of justice, the appellant should be given an opportunity to furnish the bond for the refund amount - appeal disposed off - decided partly in favor of appellant.
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2015 (10) TMI 2626
TPA - exclusion of two companies Cosmic Global Limited (‘CGL’) and Accentia Technologies Limited (‘ATL’) from the list of comparables for the purposes of determining the arm’s length price (‘ALP’) of the international transaction of ‘provision of ITES’ involving the Respondent Assessee - Held that:- One reason for exclusion of CGL was that it had outsourced its major activities whereas the Assessee was doing the business in-house. As far as ATL is concerned, it was noticed that there was merger of some other entity with it and, therefore, the said company could not be considered as a comparable.
The submission of learned counsel for the Revenue is that both these companies were included in the Assessee’s own list of selected entities and the demand for the exclusion was made only before the ITAT. Be that as it may, the Court is of the view that the order of the ITAT in so far as it concerns the exclusion of the above entities from the list of comparables does not give rise to any substantial question of law which requires consideration by the Court.
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2015 (10) TMI 2625
TPA - selection of comparable - Assessee does not outsource the work rather it receives outsourced work - Abnormal profit in the F.Y. of company is a major constraint to be selected as comparable - Held that:- Cepha Imaging Pvt. Ltd. should be considered as a comparable, if the RPT to sales is less than 25%.
So far as Allsec Technologies Ltd.- the functions carried out by Allsec Technologies Ltd. are different from that of the functions carried on by the assessee. Further, this company has incurred loss in the current year as well as in the preceding year. Apart from the general argument the Ld. Counsel for the assessee could not rebut the findings/observations given by the AO as well as the DRP as to how Allsec Technologies Ltd. should be included in the list of comparables. The various decisions relied on by Ld. Counsel for the assessee are not applicable to the facts of the present case. We, therefore, reject the arguments of the Ld. Counsel for the asessee on this issue and uphold the action of the AO/DRP in rejecting this company from the list of comparables.
R Systems International Ltd. - the company is product development and product seller. Accordingly, the DRP considered the same as not comparable with that of the assessee company. We do not find any infirmity in the order of the AO as well as the DRP on this issue. We find the Ld. Counsel for the assessee while arguing the case for exclusion of Cosmic Global Ltd. has argued that the same company had to be excluded since it had paid translation charges to third parties indicting outsourcing of work. For the above proposition, she also relied on various decisions. Therefore, once it has been found by the DRP from the director’s report that R Systems International Ltd. is leading provider of outsource product development services, business process, outsource service and also own product suites in BFSI, manufacturing and logistics verticals etc., therefore, in the own arguments of the Ld. Counsel for the assessee this company is functionally dissimilar and therefore the same cannot be accepted as comparable. In this view of the matter, we uphold the order of the AO/DRP on this issue.
Risk adjustment - Held that:- The different benches of the Tribunal are taking the view that an assessee who is a captive service provider and does not assume any risk or takes lesser risk as compared to comparable company which undertakes higher risks, then it is entitled to some risk adjustment. However, since the assessee has not produced complete analysis and complete spectrum of risk faced by business entity and in absence of risk analysis of each comparable, we restore this issue to the file of the AO with a direction to give an opportunity to the assessee to work out and justify to the satisfaction of the AO regarding the risk adjustment it is entitled to. We hold and direct accordingly. Ground of appeal by the assessee is accordingly allowed for statistical purposes.
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2015 (10) TMI 2624
Notional interest addition on the business advances given by an appellant to its Associated Enterprises (AE) - Held that:- There is no dispute on the nature of loans as "international transactions‟ in view of retrospective amendment by the Finance Act 2012 to section 92B of the Act relating to the “definition of international transactions”.
Regarding the charging of interest on such interest free loans given to the subsidiaries, it is now decided issue, by virtue of the case of CIT vs. Tata Autocomp Systems Ltd [2015 (4) TMI 681 - BOMBAY HIGH COURT ] that the said loan amounts are required to be bechmarked considering the LIBOR of the Singapore and Hong Kong, as the case may be. Now the question is what is the rate of interest which constitutes ALP in this case. It is the decision of the coordinate Bench in the case of Melstar Information Technologies Ltd (2015 (5) TMI 70 - ITAT MUMBAI) that LIBOR + 2% is followed by the Tribunal of Bombay Benches. No contrary decision of Bombay Benches of the Tribunal is brought to our notice by the Ld AR. Therefore, we are of the opinion that AO / TPO is directed to benchmark the impugned transaction by applying the arm‟s length rate of interest at LIBOR + 2% and the LIBOR of the respective countries should be considered. Accordingly, this part of the ground is partly allowed.
Considering rate of notional interest as 12 months average Libor + 300 basis - Held that:- On perusal of the loans given by the assessee and the date of return of the loans, we find no loan given by the assessee has exceeded one year. Minimum period of loan returned by the AEs is one month. Further, when the period of loans consumed by the AEs is not uniform for applying the uniform average of 12 months LIBOR on all these loans of that countries is prima facie not valid and appropriate. In these circumstances, we are of the opinion, considering the average of 6 months LIBOR of those countries, where loans are consumed, would meet the ends of justice. In any case, this issue was not addressed by the lower authorities during the relevant proceedings. As such, no judicial precedent is brought to our notice on this issue. Therefore, in our opinion, AO / TPO should verify the facts and give an opportunity to the assessee and decide the issue afresh.
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