|
Advanced Search Options
Case Laws
Showing 221 to 240 of 1764 Records
-
2016 (11) TMI 1548
Concessional rate of duty under N/N. 4/2006-C.E., dated 1-3-2006 - denial on the ground that the item cement has not been cleared to ‘industrial and institutional consumers - Held that: - C.B.E. & C.’s clarification F. No. 124/02/2008-CX-3, dated 12-6-2008 says that such goods are entitled to benefit of N/N. 4/2006 under Sr. No. 1C of the Table annexed with the said Notification as the goods were sold to industrial and institutional consumers and not to retail buyers - appeal dismissed - decided against Revenue.
-
2016 (11) TMI 1547
Registration u/s 12AA rejected - assessee society was formed for the welfare of the gold and bullion merchants of Eluru by the members for the benefit of the members of the society and cannot be said to be for the purpose of charity - exclusively for charitable purposes - Held that:- We find that the assessee is only existed for the benefit of few members particularly who are carrying business activity in Eluru town and it cannot be said that the assessee is doing charity. Charity means to help the poor who are in need. In this case, assessee has not done anything to the poor people who are in need, who are suffering with ill health, etc., etc. The Commissioner in his order has observed that the society was formed for the welfare of the gold and bullion merchants of Eluru by the members for the benefit of the members. Such society cannot be considered for the purpose of charity. We find that the Ld. Commissioner correctly held that assessee cannot be considered as a charitable organization.
A society is formed for the benefit of themselves, it can only be said that it is a mutual benefit to each other. It cannot be said that people started an association for the benefit of themselves is a charity. The concept of charity means doing something to others who are in poor and helpless condition. The assessee association existed for the people who are in a trade, they are neither poor nor helpless. All the members of the association existed for the purpose of carrying their business with a profit motive. Charity is an anti-thesis of profit. The assessee society is not eligible for registration u/s 12AA - Decided against assessee.
-
2016 (11) TMI 1546
Service of order - Condonation of delay in filing appeal - Does the service of, say, an order, on the counsel amount to its proper service on the party to the proceedings? - Held that: - sub-rule (b) is mandatory in its scope and ambit; necessarily, the communication should be addressed to the party and the party alone. Any alternative service through post on the so-called authorised agent does not amount to proper service.
Is Rule 5 ultra vires of the Parent Statute? - Held that: - A Constitutional Court unless inevitable, should avoid adjudicating constitutional issues and resolve the case on, say, statutory grounds - Because the main issue resolves the legal tangle on delayed approach to the Court, we need not address this issue.
Condonation of delay - Held that: - the appellant came to know about the order on 22-9-2015, when the respondents filed the counter-affidavit in the appellant’s previous writ petition. The respondent asserted that the Tribunal had already served the order copy on the appellant’s counsel. Reknoned from 22-9-2015, there is a delay of 55 days in filing the appeal - Given the reason of ill health cited by the appellant in the affidavit filed to support the application and the attendant circumstances, it is a fit case for exercising our discretion to condone the delay, which is within the permissible limit of sixty days.
Appeal disposed off.
-
2016 (11) TMI 1544
Disallowance of loss claimed at assessee’s behest on account of change in the method of valuation of closing stock of SIM cards -issue arises between the parties qua closing stock valuation of assessee’s SIM cards as on 31.03.2009 - Held that:- It successfully proved before the DRP to have changed its practice from that of separately charging for SIM cards in earlier assessment years to not asking the customers in question for making separate payment thereof in the impugned assessment year. It has sold the impugned SIM card free of cost in relevant previous year in other words. We find from the case file that there is not even a single agreement executed between assessee and its customers placed on record at Revenue’s end to dispute this crucial fact. It is thus clear that the assessee has neither attributed any valuation of its SIM cards nor has it received any separate price thereof. We deem it appropriate to observe that the learned Panel has rightly accepted assessee’s contentions in preceding paragraphs. It further holds that the assessee is already eligible for Section 80IA deduction.
Meaning thereby that there is no impact on its taxable income. The Revenue’s grounds nowhere rebut this factual position.
Section 14A r.w. Rule 8D disallowance - seeks to revive addition made in the impugned draft assessment and deleted in DRP’s proceedings - Held that:- The assessee has not earned any exempt income in the impugned assessment year, thus the above statutory provision is not exigible in absence of any exempt income in the relevant previous year. See CIT vs. Corrtech Energy Pvt. Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT]
Section 80IA deduction on account of sharing of passive infrastructure and Cell sites - Held that:- PCIT vs. BSNL [2016 (8) TMI 270 - DELHI HIGH COURT ] upholding this tribunal’s Delhi bench’s order concluding that the above ‘derived from’ criteria does not apply in case of an undertaking providing telecommunication services in view of the fact that Section 80IA(2A) starts with a non obstante clause treating the same as a separate species. His further case is that this tribunal’s order in assessee’s case for A.Y. 2006-07 also adjudicates the very issue in its favour. The Revenue fails to controvert both these legal developments
Section 80IA deduction on foreign exchange gain - Held that:- We find that hon’ble jurisdictional high court in CIT vs. Deversons Industries Ltd. (2015 (1) TMI 394 - GUJARAT HIGH COURT) holds that such a net exchange rate is to be treated as to have been derived from the eligible undertaking in question. We respectfully follow the same to reject this Revenue’s ground as well.
Relief of Section 80IA deduction on bad debts returned back - Held that:- There is hardly any quarrel that the assessee claimed these sums as bad debts (revenue receipts) in earlier assessment years. The same stood allowed. It thereafter received back these sums in the impugned assessment year in the nature of business income u/s.41(1) of the Act. A coordinate bench of the tribunal in Radha Madhav case (2010 (10) TMI 772 - ITAT AHMEDABAD) concludes in these facts that such an instance does not amount to double deduction claim. The Revenue fails to indicate any exception in facts of the instant case. We accordingly reject the instant substantive ground as well.
Disallowance on account of miscellaneous expenditure written off in the nature of capital expenditure and crystallized in earlier assessment years to be eligible as deduction in the impugned assessment year - Held that:- Such an advance write off is very much allowable in the nature of business loss u/s.28 of the Act. We respectfully follow the same to uphold the above DRP’s findings in question. This Revenue’s ground also fails. See Abdur Razzak case [1981 (2) TMI 27 - GUJARAT High Court]
Payment of roaming charges does not fall under the ambit of TDS provisions either u/s 194C / 1941 or 194J of the Act and hence we have no hesitation in directing the Learned Assessing Officer to delete the addition made u/s 40(a)(ia) on this account.
TDS upon discount coupons offered to prepaid distributors as disallowed u/s.40(a)(ia) - Held that:- In a situation in which the assessee has credited the sale proceeds at the transaction value (in contrast with the transaction being shown at face value and the difference between face value and the transaction value credited to the distributor), the tax deduction liability under section 194H does not arise. While learned counsel for the assessee has stated at the bar that the sale proceeds are credited at the transaction value, this aspect of the matter is to be verified by the Assessing Officer, and in case the sales is accounted for at the face value, to that extent, the tax withholding liability is to be sustained.
Addition on account of receipt of prepaid services crystallized in the impugned assessment year - Held that:- ACIT vs. Shyam Telelinks Ltd. [2012 (7) TMI 955 - ITAT DELHI] upholds the said assessee’s identical contention on the principle of recognition of income of accrual basis pertaining to sale of prepaid SIM cards. Remits the issue back to the Assessing Officer for factual verification to prevent revenue leakage. Direct the Assessing Officer to verify as to whether the assessee has declared the revenue in respect of the expired prepaid cards or not in the succeeding assessment year. This Revenue’s ground is thus partly accepted for statistical purposes.
Royalty disallowance paid to the wireless planning commission - Held that:- The impugned payments are in the nature of revenue expenditure only.
Addition made u/s.36(1)(iii) on account of capitalization of expenses relating to capital work in progress - Held that:- There is no distinction u/s.36(1)(iii) between interest incurred on capital borrowed for revenue or capital purposes provided the same is used for business purposes irrespective of the result of use of such capital. We afforded ample rebuttal opportunity to Revenue. Ld. Departmental Representative fails to take us to any material in the case file so as to prove that assesee’s interest in question is covered u/s.36(1)(iii) proviso as amended by the Finance Act, 2015 w.e.f. 01.04.2016 since it is a case wherein the impugned interest is in respect of capital borrowed for the purpose of business already attracting the main limb of statutory provision instead of the above proviso. This Revenue’s ground is accordingly declined.
Upward transfer pricing adjustment - Held that:- Departmental Representative fails to pinpoint any exception in facts of the instant case vis-à-vis those extracted hereinabove with regard to the impugned upward transfer pricing adjustment based on related party agreements only. We thus find no reason to interfere with the DRP’s direction under challenge on this count alone. This substantive ground is also rejected.
-
2016 (11) TMI 1543
Depreciation on ATMs - @ 60% or 15% - Held that:- As decided in assessee'e own case [2013 (1) TMI 861 - BOMBAY HIGH COURT] ATM cannot function without the help of computer and would be a part of the computer used in the banking industry - hence depreciation at 60% is allowed - Decided in favour of assessee.
-
2016 (11) TMI 1542
Maintainability of petition - alternative remedy of appeal - KVAT Act, 2003 - Held that: - identical issue decided in the case of M/s. TTP Technologies Pvt. Ltd. Versus State of Karnataka, Commissioner of Commercial Taxes, Deputy Commissioner of Commericial Taxes (Audit) [2016 (12) TMI 425 - KARNATAKA HIGH COURT], where it was held that The narrow parameters for invoking writ jurisdiction under Article 226 of the Constitution of India, notwithstanding the appeal remedy available to the petitioner have to be very strictly construed - petition dismissed.
-
2016 (11) TMI 1541
Whether mere filing of execution under Section 34 of the Act of 1996 for setting aside the award passed under the Act of 2006, the execution filed under Section 36 of the Act of 1996 would stand suspended or Section 19 of the Act of 2006 would prevail over the Act of 1996 and 75% of the deposit under Section 19 of the Act of 2006 is mandatory to make an application under Section 34 of the Act of 1996 maintainable? - Held that: - the application u/s 34 of the Act of 1996 would be maintainable for setting aside the award passed by the Micro and Small Enterprises Facilitation Council constituted under Section 20 of the Act of 2006 but while filing an application, the appellant has to deposit 75% of the amount in terms of the award in the manner indicated by such court and as such, the application under Section 34 of the Act of 1996 challenging the award passed by the Facilitation Council has to be read along with Section 19 of the Act of 2006 and in order to make the application under Section 34 of the Act of 1996 maintainable and duly constituted, a mandatory deposit of 75% of awarded amount has to be made in the manner directed by the court trying that application.
In the present case, the award was passed by the Facilitation Council on 12-3-2014, the respondent herein filed application for execution of award on 21-8-2014 and thereafter on 19-2-2015, application under Section 34 of the Act of 1996 was filed by the petitioner for setting aside the award in which the respondent herein objected that compliance of mandatory provision of Section 19 of the Act of 2006 has not been made therefore application u/s 34 of the Act of 1996 cannot be maintained - The trial Court has already held that the petitioner's application u/s 34 of the Act of 1996 is not maintainable for want of prerequisite deposit u/s 19 of the Act of 2006 as such, the award is clearly executable, as the petitioner's application u/s 34 of the Act of 1996 is not duly constituted and not liable to be entertained, and rightly held so by the trial Court and the petitioner's application has rightly been rejected by the trial Court.
Whether in view of the objection filed u/s 22(3) of the SIC Act by the petitioner, the executing court has no jurisdiction to execute the award? - Held that: - the petitioner's plea in regard to applicability of the SIC Act is not complete in itself, rather halfhearted, it has neither been established that the awarded amount has been included in the scheme approved by the BIFR nor it has been shown how the civil court has jurisdiction in view of Section 26 of the SIC Act - the learned executing court is absolutely justified in rejecting the objections raised by the petitioner herein in execution and no error of jurisdiction has been committed while rejecting those objections raised by way of applications.
Petition dismissed.
-
2016 (11) TMI 1540
Principles of natural justice - escaped turnover - penalty - Held that: - when independent proceedings are taken against an assessee by way of penalty as well as for escaped turnover, the contentions urged by the parties will have to be considered in its proper perspective. When the petitioner submits categorically that he will be able to explain the alleged escaped turnover by verification of the seized documents along with the books of accounts, necessarily an opportunity ought to have been granted in the matter. Failure to give such an opportunity definitely amounts to violation of the principles of natural justice and therefore, one more opportunity should be granted to the petitioner - petition allowed by way of remand.
-
2016 (11) TMI 1539
Penalty - it was alleged that the assessee had filed untrue and incorrect returns for the months of June to March 2012 - Since it was found that the assessee had filed fallacious returns, a penalty of ₹ 33,51,750, being the double tax sought to be evaded, was also imposed under section 67 of the Kerala Value Added Tax Act, 2003.
Held that: - the Tribunal has considered various assertions of the assessee and has found that the assessee having deliberately filed an untrue return showing the sales and purchases to be zero when, in fact, there was substantial turnover, he was, thereafter, not entitled to the benefit of section 23(6)(a) or section 22 of the Act - The Tribunal has concluded so for legally justifiable theorization since this was not a case where the assessee had omitted to file return but it was a case where the assessee, admittedly, filed an untrue and incorrect return.
The orders of penalty have been modified by the first appellate authority directing the assessing authority to assess the tax after verification of the documents and books of account maintained by the assessee. The particular circumstances of this case is that the assessee had maintained true and correct books of account, but had deliberately filed incorrect returns for the reason, according to him, that he wanted to delay the payment of tax. This attitude of the petitioner or any other assessee can never be countenanced and condoned and requires to be deprecated in the strongest manner as is available.
Penalty upheld - decided against assessee.
-
2016 (11) TMI 1538
Suo-moto revision of the assessments - Legal issue raised is that the notice dated 29.11.2005 was issued for revision more than 7 years after passing of the orders of assessment, which is beyond maximum period prescribed under the Act for any action - Held that: - the notice issued for revising the assessment after more than 7 years certainly deserves to be set aside on account of delay - The ground on which revisional power is sought to be exercised is irrelevant as the delay has not been explained - petition allowed - decided in favor of petitioner.
-
2016 (11) TMI 1537
Rate of tax - mobile battery chargers (MBC) sold along with the mobile phones itself - KVAT Act - Held that: - the issue is decided in the case of Lava International Limited v. State of Karnataka [2016 (12) TMI 60 - KARNATAKA HIGH COURT], where it was held that the mobile battery chargers have been held to be only the accessories of mobile phones and they cannot be treated as part of the mobile phones itself. It will definitely attract a separate rate of tax as in the present case, it is rightly charged at 14.5% - petition dismissed - decided against petitioner.
-
2016 (11) TMI 1536
Inter-state sales - stock transfer - Section 18A of the CST Act, 1956 - Held that: - this Court requires the petitioner to approach the Central Sales Tax Appellate Tribunal - considering that the period of 15 days given by the Tax Board to pay the tax would come to an end today, this Court in the peculiar facts of this Court requires the respondents to refrain from making recovery of the tax amount for a period of another 15 days within which time, the petitioner may file appeal along with stay application before the Central Sales Tax Appellate Authority - petition disposed off.
-
2016 (11) TMI 1535
Refund claim - N/N. 41/2007-ST dated 06/10/07 - denial on the ground that the services are not port services - Held that: - It is an admitted fact on record that the disputed services were provided by the service provider in respect of exportation of goods by the appellant. Since, those services were provided within the port, the same should be considered as port service for the purpose of grant of refund in terms of Notification dated 06/10/2007 - appeal allowed - decided in favor of appellant.
-
2016 (11) TMI 1534
TPA - comparable selection criteria - Held that:- Assessee is into software development services thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Suitable adjustments on account of differences in the risk profile of the appellant vis-à-vis the comparables, while conducting comparability analysis - Held that:- Controlled and uncontrolled transactions are comparable only when adjustments with respect to significant differences between them in terms of risks assumed is made.
The risk attributed to the assessee by the TPO is an anticipated risk whereas the risk attributed by the assessee to the comparables is an existing risk. In such situation, the TPO ought to have given the risk adjustment to the net margin of the corn parables for bringing them on par with the assessee company. Therefore, we direct the TPO to consider all the contentions of the assessee and after taking into account all the relevant material decide the percentage of risk adjustment to be made in accordance with law. This ground is accordingly, allowed for statistical purposes
Computation of deduction u/s 10A - leased line charges, IPLC service charges (Leased Circuit) & foreign travel expenses exclusions - Held that:- The leased line charges, IPLC service charges (Leased Circuit) & foreign travel expenses ought not to have been excluded or Alternatively, if they are excluded from the export turnover similar exclusion be made in the Total turnover for arriving the deduction u/s 10A, which are in accordance with the decision in CIT v Tata Elxsi and accordingly we direct the AO to exclude them from the export turnover and also from the Total turnover, while computing the deduction u/s 10A.
-
2016 (11) TMI 1533
Valuation - Liability of service tax - printed material supplied to the students - coaching services - Held that: - in appellant's own case the issue has come up before the Tribunal in M/s Cerebral Learning Solutions Pvt. Ltd. Versus CCE, Indore [2013 (4) TMI 527 - CESTAT NEW DELHI], where it was held that sale value not to be included - appeal allowed - decided in favor of appellant.
-
2016 (11) TMI 1532
CENVAT credit - Revenue entertained a view that the credit of service tax proportionate to the amount retained by the appellants is not admissible to them - Held that: - the mere fact that finally settled amount is less than the amount shown in the invoice does not alter the fact that service charges have been paid and thus the service receiver is entitled to take credit, provided he has also paid the serviced tax (whether proportionately reduced or the original amount) to the service provider - reliance placed in the case of Hindustan Zinc Ltd. vs. CCE, Jaipur - II [2017 (1) TMI 373 - CESTAT NEW DELHI], where Tribunal held that the credit need not to changed if the full amount of consideration was not paid by the assessee to the service provider.
Appeal allowed - decided in favor of appellant.
-
2016 (11) TMI 1531
Demand of differential duty - for constructing the fabricated bodies on the chassis, the assessee has sent some chassis at Mandla branch who after constructing the fabricated bodies returned to Jabalpur unit and later on, handed over to Tata Motors who had supplied the chassis - Held that: - it appears that this issue was already decided by the Tribunal in assessee’s case Commercial Engineers & Body Builders Co. Ltd. Versus Commissioner of Central Excise Bhopal [2016 (8) TMI 120 - CESTAT NEW DELHI], where the Tribunal has remanded the matter back to the adjudicating authority for fresh decision with the direction to decide the assessee’s liability to pay the differential duty and if payable, to decide the quantum of the same after examining the aspect of availability of cenvat credit of duty paid on the chassis.
Matter remanded back to the adjudicating authority for fresh decision - appeal is allowed for statistical purpose.
-
2016 (11) TMI 1529
Corporate Guarantee - proof of substantial defence - offence under FEMA - Held that:- As observed it is clear that a sum of ₹ 418 crores has been paid by FMO, the Dutch company, to Vinca for purchase of shares as well as compulsorily convertible debentures. This transaction by itself is not alleged to be violative of the FEMA regulations.
The suit is filed only on invocation of the Corporate Guarantee which on its terms is unconditional. It may be added that it is not the defendant's case that the said Corporate Guarantee is wrongly invoked.
Payment under the said Guarantee is to the debenture trustee, an Indian company, for and on behalf of Vinca, another Indian company, so that prima facie again there is no infraction of the FEMA Regulations. Since FMO becomes a 99% holder of Vinca after the requisite time period has elapsed, FMO may at that stage utilise the funds received pursuant to the overall structure agreements in India. If this is so, again prima facie there is no breach of FEMA Regulations.
At the stage that FMO wishes to repatriate such funds, RBI permission would be necessary. If RBI permission is not granted, then again there would be no infraction of FEMA Regulations. The judgment in Immami Appa Rao’s [1961 (9) TMI 87 - SUPREME COURT]case would be attracted only if the illegal purpose is fully carried out, and not otherwise.
Based on the aforesaid, it cannot be said that the defendant has raised a substantial defence to the claim made in the suit. Arguably at the highest, as held by the learned Single Judge, even if a triable issue may be said to arise on the application of the FEMA Regulations, nevertheless, we are left with a real doubt about the Defendant’s good faith and the genuineness of such a triable issue.
Rs.418 crores has been stated to be utilized and submerged in a building construction project, with payments under the structured arrangement mentioned above admittedly being made by the concerned parties until 2011, after which payments stopped being made by them. The defence thus raised appears to us to be in the realm of being ‘plausible but improbable’. This being the case, the plaintiff needs to be protected. In our opinion, the defendant will be granted leave to defend the suit only if it deposits in the Bombay High Court the principal sum of ?418 crores invested by FMO, or gives security for the said amount of ₹ 418 crores, to the satisfaction of the Prothonotary and Senior Master, Bombay High Court within a period of three months from today. The appeal is accordingly allowed, and the judgment of the Bombay High Court is set aside.
-
2016 (11) TMI 1528
Income accrued in India - Addition of royalty - amount paid to M/s Intelsat Inter Corporation, USA under the transponder service agreement for the transponder service charges paid by the assessee to Intelsat under the said agreement - according to the assessee, it was neither ‘royalty’ nor Fee for Technical Services (FTS) - tds liability - Held that:- Hon’ble Delhi High Court in the case of payee, viz. M/s Intelsat Corporation, USA [2011 (8) TMI 1248 - DELHI HIGH COURT] has categorically held that payment received by Intelsat Corporation is not taxable in India under the provisions of Indo US DTAA. Thus, in the case of payee, it has been categorically held that said payment is not taxable, then the assessee is not obliged to deduct TDS, therefore, the impugned proceedings u/s 195 deserves to be quashed. Thus, after taking into account all the facts and circumstances of the case, we find that the issue stands squarely covered by the decision of the Mumbai Bench of the Tribunal in assessee’s own case and, therefore, the issue raised in the appeal before us stands allowed in terms of earlier order of the Tribunal which shall apply mutatis mutandis on the issue raised in this appeal before us. Accordingly we hold that the assessee was not liable to deduct tax at source. - Decided in favour of assessee.
Interest u/s 244A on refund of extra TDS deposit u/s 195 - Held that:- This issue has been sent by the Tribunal in its aforesaid order back to the file of the AO to be decided after considering latest CBDT circular No.11 of 2016 dated 26th April, 2016. Thus, we direct the AO to follow earlier order of the Tribunal on this issue. This issue should be decided afresh by the AO accordingly.
-
2016 (11) TMI 1527
Disallowance made u/s 14A by applying Rule 8D on mutual funds investment - Held that:- We take cognizance of the argument on behalf of the assessee that mutual funds investment bears different traits and is a different species of investment. The mutual funds are supervised by the experts in the field and management charges for such supervision is recovered from the clients. This being so, an investor in the mutual fund separately pays administrative and managerial expenses unlike a case where assessee chooses to make investment in shares directly. In the case of a mutual funds, administrative and managerial expenses are factored in the investments itself. In such a scenario, the explanation offered by the assessee of no expenditure incurred appears to be in congruity with the market practice. Accordingly, we do not find it a fit case for resorting to double disallowance of the similar expenditure in the garb of Rule 8D(iii) of the IT Rules.
A bare reading of section 14A suggests that its applicability is not automatic. It is hedged by conditions prescribed therein. Section 14A inheres in it the concept of reasonableness. The formidable amount of expenditure as computed by the AO cannot be said to be attributable to tax-free income by applying a straight jacket formula as per Rule 8D(2)(iii) of the IT Rules in the given facts. Thus, we find considerable merit in the plea of the assessee. Hence, we are disposed to adjudicate the issue in favour of the assessee.
............
|
9911796707
