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Showing 221 to 240 of 1429 Records
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2014 (12) TMI 1216
Input service credit on construction services of dormitory - denial of claim on the premises that same does not qualify as input service as per rule 2/N of the Cenvat Credit Rules, 2004 - Held that:- It is alleged in the show cause notice that the dormitory is located outside factory premises but the appellant in reply to the show cause notice has clearly mentioned that this dormitory is constructed within factory premises and the said fact has not been contradicted by the Adjudicating Authority or the first appellate authority.
In these circumstances, it is held that dormitory is located within the factory and same can be verified by the department on visiting the factory premises. As the dormitory is located within the factory and the use of the dormitory is for the technicians / engineers for their stay in the factory itself which is required for maintenance of plant and machinery and these technicians / engineers should be available immediately as the factory is located in a remote area. Therefore, hold that the construction of dormitory for this purpose of stay of technicians / engineers is integrally connected with the manufacturing activity of the appellant. Therefore, the credit is available as that service has been availed in the business of manufacturing activity. In these circumstances hold that as construction of dormitory is an integral part of the manufacturing activity of the appellant, the appellant is entitled to take Cenvat Credit on construction services. - Decided in favour of assessee
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2014 (12) TMI 1215
Extended period of limitation - Condonation of delay - Appellant filed appeal after the prescribed time limit of two months but within the further period of one month which can be condoned by the Commissioner (Appeals) as per Section 85(3A) of the Finance Act, 1994 - Held that: As per the decision of Hon'ble Supreme Court in the case of Singh Enterprises vs. CCE, Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA, Commissioner (Appeals) has no power to condone the delay beyond the prescribed period. Therefore,delay cannot be condoned by Commissioner (Appeals). - Decided against the petitioner
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2014 (12) TMI 1214
Interpretation of section 80-IB(10)(d) - Effect of amendment w.e.f. 01.04.2005 - Held that:- The controversy or issue in the above Appeals is covered either by a Division Bench judgment to which one of us (S.C.Dharmadhikari,J.) was a party rendered in M/s. Happy Home (2014 (9) TMI 707 - BOMBAY HIGH COURT ) or another Division Bench judgment of in Commissioner of Income Tax V/s. M/s. Vandana Properties [2012 (4) TMI 54 - BOMBAY HIGH COURT ] held that section 80-IB(10)(d) is prospective in nature and can have no application to a housing project that is approved before 31st March, 2005 - clause (d) of section 80-IB(10) is inextricably linked to the date of the approval of the housing project and the subsequent development/construction of the same, and has nothing to do with the profits derived therefrom - Decided against revenue
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2014 (12) TMI 1213
Clandestine manufacture and removal of their final product - Branded Chewing Tobacco, Supari - Paan Masala Gutkha - reliance on the various statement, without offering the deponents of the said statements for cross examination - Held that:- Revenue has failed to discharge its burden, so as to come to a finding of clandestine removal.
From the notings on the Revenue’s file it is clear that the ADG is referring to various lacunas/loop holes in the investigation proceedings and is himself expressing doubt about the admissibility of the evidences produced by them. This shows the Revenue’s themselves were not sure of the success of their case.
The statements recorded by the Revenue during the course of investigations, without procuring other evidences, so as to substantiate the investigations, cannot be held to be sufficient evidences to uphold the clandestine removal findings and no adverse opinion can be arrived at, on the basis of the same - Demand set aside - Decided in favor of assessee.
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2014 (12) TMI 1212
Transfer pricing adjustment - choice of comparable - Held that:- M/s. Artefact Projects Ltd. company is having a very high percentage of related party transaction, it cannot be considered as a comparable. We accept the contention of the Ld. Counsel and direct for the exclusion of this company from the final list of comparables.
M/s.NTPC Electric Supply Ltd is a Government of India enterprise and is involved in enhancing and bringing sectoral reforms process and has been participating in various projects of distribution, infrastructural development programmes under consultancy assignments. Considering all these facts, this company is not functionally comparable. It is therefore directed to exclude this company from the final list of comparables.
RITES Limited be excluded from the final list of comparables as it is in providing engineering services and to end to end solutions and therefore not functionally comparables with marketing support services.
Water & Power Consultancy Services (India) Ltd. (Seg) be excluded from the final list of comparables as main fields of specialization of this company covered irrigation of drainage, flood control and Land Reclamation, River management dams, Reservoir Engineering and Barrages, Integrated Agriculture development, Watershed management, Hydropower and Thermal Power Generation, Power Transmission and Distribution , Rural Electrification, Ground Water Exploration, Minor irrigation etc
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2014 (12) TMI 1211
Genuity of gifts - whether ITAT was right in law in directing the A.O. to reconsider the genuineness of the gifts when the addition made by treating the gift as not genuine is justified? - Held that:- Counsel for the parties are ad-idem that as the Tribunal has based its opinion on an earlier order which has been set-aside, it would be necessary for the Tribunal to adjudicate the appeal filed by the assessee afresh and in accordance with law.
In view of the consensus between counsel for the parties, the appeals are allowed. The order passed by the ITAT is set-aside and the Tribunal is directed to decide the appeals afresh and in accordance with law within six months from the date of receipt of a certified copy of this order.
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2014 (12) TMI 1210
Disallowance of deduction u/s 80IB - part allowance of deduction u/s 80HHC - Held that:- We have heard the arguments from either side and have gone through the order of the Hon SC giving clear cut direction to the assessee “to demonstrate the process undertaken by the assessee to convert raw diamonds in a superior commodity”.
In the light of the above, we set aside the order of the CIT(A) and direct the AO to adjudicate and pass fresh order of assessment and adjudicate on the claims as made by the assessee on merits and as an law.
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2014 (12) TMI 1209
Grant stay - Held that:- The assessee has succeeded before the Income Tax Appellate Tribunal. Mere admission of substantial question of law does not mean that we should stay the impugned order or the consequential effect. If the Revenue succeeds in the appeal, consequences will flow and necessary orders will be passed. There are several issues, which arise for consideration, including the question, whether the photocopies of the balance sheets etc. recovered can be treated as sufficient documents for initiation of proceedings under Section 153C of the Income Tax Act, 1961. The other question, which arises for consideration, is whether any satisfaction is required to be recorded before proceedings are initiated under Section 153C of the Income Tax Act, 1961. Question of limitation is also raised. Application dismissed.
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2014 (12) TMI 1208
Import of Fresh Frozen Green Peas - The Plant and Quarantine department advised the Customs department vide letter dated 16-11-2009 to deport back to the supplies or destroy the goods as there is bio-security risk. - The adjudicating authority allowed the redemption of the goods for re-export only on payment of fine - Held that:- The appellant cannot be held guilty. In view of my above discussions - since the final test as regard Pest Risk Analysis was not carried out, the reliance can be placed on other documents such as Phytosanitary Certificate, report of Public Health Department of Municipal Corporation of Greater Mumbai and also certificate of Quarantine given by the supplier by which it can be ascertained that the product in question is free from pest, insect and fungal infection. - Impugned order set aside - Decided in favor of appellant.
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2014 (12) TMI 1207
Refund - customs duty (CVD) was paid without claiming the benefit of exemption notification - Import of Indigo Vat Blue falling under CTH 3204 15 59 - Notification No. 12/2012-C.E - Held that:- The judgment of Apex Court in the case of Priya Blue Industries Ltd. [2004 (9) TMI 105 - SUPREME COURT OF INDIA] is in context of old Section 27 where the duty was to be paid in pursuance of the order of assessment. Moreover, in the case of Aman Medical Products Ltd. [2009 (9) TMI 41 - DELHI HIGH COURT], the Hon’ble Delhi High Court distinguishing the judgment of Hon’ble Apex Court in the case of Priya Blue.
The refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub section (1) of Section 27.
The Customs duty was paid in excess under a self assessment of bill of entry and borne by the appellant for claiming of refund of excess paid duty, the appellant was not required to challenge the assessment of bill of entry.
The appellant is entitled for refund claim subject to the test of unjust enrichment. - Matter remanded back for verification of unjust enrichment - Decided in favor of assessee.
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2014 (12) TMI 1206
Waiver of pre-deposit - Renting of Immovable Property - Following the judicial discipline and consistency, as directed in previous cases of municipal corporations and also keeping in view the principle laid down by the Apex court, this appellant is directed to make a further deposit of ₹ 40,00,000/- (Rupees forty lakhs only), subject to verification of ₹ 51 lakhs said to have been deposited - stay granted partly.
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2014 (12) TMI 1205
Addition u/s 153A - Held that:- We held that u/s 153A additions in the case of completed assessments can only be made if so the additions are based upon incriminating documents. Since additions were not based upon incriminating documents, therefore, additions were not validly made. Since we have decided the legal issue in favour of assessee
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2014 (12) TMI 1204
Transfer pricing adjustment - transaction of issue of equity shares - Held that:- The capital receipts received by the assessee on issue of equity shares to its holding company cannot be considered income. Ajustment made by the AO on account of ‘share premium’ and ‘interest charged on account of under charged premium amount cannot be endorsed. We also hold that TP provisions are not applicable to such transaction. See Vodafone India Services Private Limited case [2014 (10) TMI 278 - BOMBAY HIGH COURT] - Decided in favour of the assessee.
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2014 (12) TMI 1203
Validity of the issue of notice under s. 153C - Held that:- Considering the totality of the above facts and respectfully following the decision of Hon'ble jurisdictional High Court in the case of Spice Infotainment Ltd. (2011 (8) TMI 544 - DELHI HIGH COURT ) we hold that the issue of notice under s. 153C in the name of M/s Image Credit & Portfolio (P) Ltd. on 10th Sept., 2010 is void. Accordingly, the same is quashed. Once the notice issued under s. 153C has been quashed the assessment completed in pursuance to such notice also cannot survive and the same is also quashed. - Decided in favour of assessee.
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2014 (12) TMI 1202
Unexplained purchase - Held that:- It is not in dispute that the survey action was conducted on a third party. It is also not in dispute that the assessee had business relation with Moxdiam Group, like so many other parties. It is also a fact that there is not even a iota of evidence with the AO, to prove that the assessee did not have straight dealings with the Moxdiam Group. It is also a fact that, that the assessee entered each of its transaction in its primary books, comprising of ledger and stock register. From the order of the AO, the DR could not establish before us that the transaction as recorded in the books was sham. We cannot accept a bald statement made by the AO that any transaction/business done with a party would be sham, simply because the opposite party besides doing regular business was also indulging in providing accommodation entries. Simply on the basis of statement given by the third party, that they were also providing accommodation entries as well, the conduct of the assessee cannot be doubted and held to be sham.
The assessee had conducted business, this is proved by various books of account produced before the AO which were original and primary books and not even the after thought of the assessee, which has been acknowledged by the AO.In such a circumstance, we cannot sustain the addition as made by the AO. - Decided in favour of assessee.
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2014 (12) TMI 1201
Addition on account of AIR information - Held that:- It has been held time and again by this Tribunal that the additions made solely on the basis of AIR information are not sustainable in the eyes of the law. If the assessee denies that he is in receipt of income from a particular source, it is for the AO to prove that the assessee has received income as the assessee cannot prove the negative. It is the case of the assessee that it had received only ₹ 1,00,000/- from Allied Digital Services Ltd. However, as per the AIR information, the assessee had received ₹ 4,49,440/- from the said party. There is no reference of amount of ₹ 1,00,000/- in the AIR information, rather, the detail of amount has been given as ₹ 3,00,000/- on 02.01.08 and ₹ 1.49 lakh on 24.03.08. The issue be restored to the file of the AO for consideration afresh in this respect. - Decided in favour of assessee for statistical purposes.
Disallowance on account of partner’s conveyance allowance - Held that:- A.R. has submitted that in fact the amount in question was not the conveyance allowance rather the same was reimbursement of the actual expenses incurred by the partners in the ordinary course of business. It has been further submitted that the firm owns one car only and hence the outside conveyance as and when required was used by the partners. The expenses were very reasonable. Thus we restore this issue to the file of the AO to examine it afresh in the light of the submissions made by the Ld. A.R. and the evidences in the shape of vouchers etc. in this regard.- Decided in favour of assessee for statistical purposes.
Disallowance on account of depreciation of car and telephone expenses - Held that:- From the record, it has been found that the lower authorities have disallowed only 1/5th of the amount. Taking into consideration of the facts and circumstances of the case, we find that the same is a quite reasonable disallowance. Hence, we confirm the finding of the lower authorities on this issue.- Decided against assessee
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2014 (12) TMI 1200
Disallowance u/s 40(a)(ia) - non deduction of tds on interest expense - Held that:- A.R, has not placed any material on record to demonstrate that the India Bulls has filed return of income u/s. 139(1), had offered the amounts received from Assessee as its income and has paid the tax on such income. Further, we find that the decision of the Co-ordinate Bench in the case of Rajiv Kumar Agarwal (2014 (6) TMI 79 - ITAT AGRA ) was not available before A,O. and CIT(A). We therefore feel that the issue where the Assessee has not deducted TDS but payee has paid the taxes needs to be re-examined by the A.O in the light of the aforesaid decision of Agra Tribunal and we therefore set aside the issue to the file of A.O for him to decide the issue in the light of decision of Agra Tribunal and in accordance with law. - Decided in favour of assessee for statistical purpose.
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2014 (12) TMI 1199
Capital gain - interpretation of Sec. 45 - revaluation of the assets of the assessee firm and subsequent conversion of the firm into Limited Company under Chapter IX of the Companies Act - whether no transfer involved when the assessee gets itself registered under Para IX of the Companies Act, 1957 ? - Held that:- The same question came up for consideration before the Andhra Pradesh High Court in the case of Commissioner of Income Tax vs. United Fish Nets [2014 (10) TMI 574 - ANDHRA PRADESH HIGH COURT] wherein held that the distribution must result in some tangible act of the physical transfer of properties or the intangible act of conferring exclusive rights vis.a.vis an item of property on the erstwhile shareholder. Unless these or other legal correlatives take place, it cannot be inferred that there was any distribution of assets. In the instant case, the shares of the respective shareholders in the respondent-company were defined under the partnership deed. The only change that has taken place on the respondent being transformed into a company was that the shares of the partners were reflected in the form of share certificates. Beyond that, there was no physical distribution of assets in the form of dividing them into parts, or allocation of the same to the respective partners or even distributing the monetary value thereof following the decision in Commissioner of Income-Tax Versus Texspin Engineering And Manufacturing Works [2003 (3) TMI 56 - BOMBAY High Court] . Income Tax Appellate Tribunal is right in law and on facts of the case in holding that the assessee is not liable to any capital gain tax either u/s. 45(1) or 45(4) of the IT Act - Decided in favour of assessee
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2014 (12) TMI 1198
Reopening of assessment - disallowance of sundry expenses - Held that:- From the perusal of the reasons recorded it can be seen that the AO is noting the facts from the accounts of the assessee that amount debited under the head sundry expenses on account of intangible assets interest charges return off for HVDC project. He held such an expenditure has to be treated as capital expenditure. Such a reasons definitely amount to “change of opinion” as the final account was very much available and examined by the AO at the time of the passing of the original assessment proceedings. It has a tribe law that u/s 147 and the assessing officer has no power to review completed assessment merely on the ground that its difference of opinion can be formed. Without there being any tangible material such a completed assessment cannot be reopened. The Hon’ble Supreme Court in the case of CIT Vs. Kelvinator of India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA) has categorically held that merely on the “change of opinion”, the assessment completed cannot be reopened thus the finding of the Ld.CIT(A) has noted above has based on settled legal proposition and accordingly the same is confirmed. - Decided in favour of assessee.
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2014 (12) TMI 1197
Restoration of appeal - non receipt of notice - Held that:- As prior to 21-2-2014, this matter had been listed for hearing on 20-12-2013 and at that time this matter had been adjourned to 21-2-2014 and the notice in this regard had been issued by Registered post with acknowledgement due on 17-1-2014. There is no document on record to indicate that the notice was not delivered by the postal authorities and was returned undelivered. Once notice for hearing has been issued to an appellant by RPAD in accordance with the provisions of Section 37C of the Central Excise Act 1944, it has to be presumed that the notice has been received by the appellant and if the appellant disputes the receipt of the notice, burden is on him to produce positive evidence regarding non-receipt. Since no such evidence has been produced, the appellant’s plea that the notice was not received cannot be accepted. In view of this, miscellaneous application for restoration of appeal is dismissed.
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