|
Advanced Search Options
Case Laws
Showing 221 to 240 of 558 Records
-
2012 (2) TMI 519
Issues involved:
Jurisdiction of Central Excise Officers as per Rule 3 of Central Excise Rules, 2002 and validity of notification transferring jurisdiction without show cause notice.
The judgment addresses the issue of jurisdiction of Central Excise Officers as per Rule 3 of Central Excise Rules, 2002. The petitioner argued that the jurisdiction vested pursuant to notification No. 56/2002 cannot be altered and changed without issuing a show cause notice and hearing the petitioner. However, the Court examined Rule 3 and found no requirement for a hearing. The Central Board of Excise and Customs issued a new notification in 2011 transferring jurisdiction of certain parties to a single Commissionerate at Delhi, which included parties from Jammu and other locations. The Court noted that similar show cause notices were issued regarding transactions between parties at Jammu and those in other locations. Consequently, the Board consolidated the cases and designated the Commissioner (Adjudication), Central Excise, Delhi as the common adjudicating authority. Ultimately, the Court dismissed the writ petition, finding no merit in the petitioner's arguments regarding the jurisdictional transfer and the lack of a show cause notice.
-
2012 (2) TMI 518
The Delhi High Court remitted the matter to the Income Tax Appellate Tribunal for fresh consideration. The impugned order by the Tribunal was set aside and quashed. The Tribunal will decide the appeal afresh without being influenced by the earlier order. No opinion on the merits of the case was expressed. The appeal was disposed of with no costs.
-
2012 (2) TMI 517
Issues involved: Appeal against order of ld. CIT(Appeals)-XV, Ahmedabad in Appeal No.CIT(A)/XV/ITO/9(4)/15/10-11 dated 13.09.2011 for assessment year 2005-2006 u/s 250 r.w.s.271(1)(c) of the I.T. Act, 1961.
The Revenue appealed against the order of the ld. CIT(A) which deleted the penalty of Rs. 1,27,80,657/- levied u/s 271(1)(c) of the Act for the assessment year 2005-2006. The ld. CIT(A) had set aside the matter to reconsider in light of the quantum appeal decision, leading the Appellate Tribunal to restore the matter back to the file of the ld. CIT(A) for further consideration. The appeal by the Revenue was allowed for statistical purposes.
-
2012 (2) TMI 516
Disallowance being 10% of the dividend income under the provisions of Section 14A - satisfaction by AO - Held that:- In case the Assessing Officer is satisfied with the claim of the assessee with regard to the expenditure or no expenditure, as the case may be, the Assessing Officer is to ascertain the claim of the assessee in so far as the quantum of disallowance under Section 14A is concerned. In such eventuality, the Assessing Officer cannot embark upon a determination of the amount of expenditure for the purposes of Section 14A(1). In case, the Assessing Officer is not, on the basis of objective criteria and after giving the assessee a reasonable opportunity, satisfied with the correctness of the claim of the assessee, he shall have to reject the claim and state the reasons for doing so. Having done so, the Assessing Officer will have to determine the amount of expenditure incurred in relation to income which does not form part of the total income under the Act. He is required to do so on the basis of reasonable and acceptable method of apportionment. Therefore, we restore this issue to the file of Assessing Officer to redetermine the disallowance
-
2012 (2) TMI 515
Addition in respect of the sale of flats to outsiders in the free sale component - unlawful consideration - Held that:- Fifteen tenants were duly certified by a statutory board which had control over the process of redevelopment. Each of the tenants had registered agreements. Here again there was no direct evidence available of the receipt of any unlawful consideration. While the Court must take cognisance of the fact that direct evidence may not necessarily be forthcoming in such cases, it is equally necessary that the order of the Assessing Officer should be founded on some material and cannot be based purely on conjectures or surmises. As regards the statement of the Accountant, the Tribunal has taken a possible view by holding that the statement pertained to the free sale component in respect of which no addition has been made on flats sold to outsiders. As noted by the Tribunal, no addition has been made in respect of the sale of flats to outsiders in the free sale component. Hence, no substantial question of law would arise. The Appeal is accordingly dismissed.
-
2012 (2) TMI 514
Penalty under Section 271(1)(c) - disallowance u/s 14A - ITAT confirming the deletion of penalty - Held that:- Disallowance under the said Section have been subject matter of debate and different views have been expressed. A legal contention which was plausible and merited consideration was raised. Accordingly, the appellate authorities have applied the explanation to Section 271(1)(c) of the Act. Looking at the nature of explanation offered and the provision in question i.e. Section 14A, which was incorporated by the Finance Act, 2001 with retrospective effect from 1st April, 1962, we do not think in the present case any substantial question of law arises in view of the factual matrix involved. Accordingly, the appeal of revenue dismissed.
-
2012 (2) TMI 513
Issues Involved:
1. Addition of Rs. 24,48,500/- on account of deposits in the bank account.
2. Addition of Rs. 3,90,530/- on account of capital gains on sale of flat.
Summary:
1. Addition of Rs. 24,48,500/- on account of deposits in the bank account:
The assessee, engaged in software development and data processing, was scrutinized u/s CASS based on AIR information, revealing cash deposits of Rs. 43,66,894/- in two bank accounts. The assessee denied having an account with PNB Asaf Ali Branch and claimed the deposits in PNB Maidan Garhi Branch were from past earnings and savings. The Assessing Officer (AO) added Rs. 24,48,500/- u/s 68 due to lack of evidence. The CIT(A) upheld this, noting unexplained gaps between withdrawals and deposits and absence of evidence for the opening cash balance of M/s Roop System. The Tribunal allowed a set-off of Rs. 2,20,000/- but upheld the addition of Rs. 22,28,500/- due to insufficient evidence supporting the assessee's claims.
2. Addition of Rs. 3,90,530/- on account of capital gains on sale of flat:
The AO determined a short-term capital gain of Rs. 3,90,530/- from the sale of a flat, rejecting the assessee's claim of long-term capital gain and renovation expenses due to lack of evidence. The CIT(A) upheld this, noting the flat's holding period was less than 36 months based on the conveyance deed date. The Tribunal, however, considered the allotment date and payment schedule, ruling the holding period exceeded three years, thus qualifying for long-term capital gain treatment. The Tribunal directed the AO to compute the gain as long-term after allowing indexation benefits but denied the renovation expense claim due to lack of evidence.
Conclusion:
The appeal was partly allowed, with the Tribunal modifying the addition related to bank deposits and reclassifying the capital gain as long-term while denying the renovation expense claim.
-
2012 (2) TMI 512
The Appellate Tribunal CESTAT Bangalore dismissed the appeal due to non-compliance with Section 129E of the Customs Act. The appellant was directed to pre-deposit Rs. 5 lakhs within six weeks, but there was no evidence of compliance. No representation was made by the appellant despite notice.
-
2012 (2) TMI 511
Issues involved: Assessment of income arising from foreign exchange fluctuation u/s 10B of the Income Tax Act for the assessment year 2007-08.
The controversy in the case revolved around the classification of income arising from foreign exchange fluctuation by the Assessing Officer. The assessee claimed that the fluctuation income should be treated as exempt u/s 10B as part of manufacturing activity, while the Assessing Officer held that it should be assessed under the head 'income from other sources'.
The Assessing Officer rejected the assessee's claim that income from foreign exchange fluctuation should be treated as part of manufacturing activity exempt u/s 10B. The Assessing Officer emphasized that the fluctuation income is not related to manufacturing or processing activity and should be considered as income from other sources.
The CIT(Appeals) examined the case and found that the assessee, a 100% export-oriented unit, recorded export sales in books on the date of consignment dispatch. The difference between actual foreign exchange proceeds received and credited in books was shown as fluctuation income, added to business income if proceeds were more, or subtracted if lower.
The High Court disagreed with the Revenue's contention that the fluctuation income should not be assessed as business income/loss derived from exports. The Court emphasized that the fluctuation income directly arises from the export transaction and should be considered part of profits derived from exports, as held in a previous case by the Bombay High Court.
The Revenue argued that the export transaction was complete upon raising the invoice and dispatching goods, but the Court rejected this argument. The Court clarified that the transaction is complete only upon actual receipt of sale proceeds in foreign exchange by the Indian assessee, as required by law.
In conclusion, the High Court found no merit in the Revenue's appeal and dismissed the case, upholding the assessee's position that the income from foreign exchange fluctuation should be considered as part of profits derived from exports and eligible for exemption/deduction u/s 10B of the Income Tax Act.
-
2012 (2) TMI 510
Issues involved: Challenge to order rejecting application for interim stay u/s Article 226 of the Constitution of India, refusal to allow waiver of pre-deposit of duty, fine, and penalty, absence of reasons in the impugned order, consideration of grounds raised by petitioner in the application u/s Section 35(F) of the Central Excise Act, 1944.
Challenge to order rejecting application for interim stay: The petitioner challenged the order dated 21.10.2010 passed by the Commissioner (Appeals) Customs & Central Excise, Indore, which rejected the petitioner's application for interim stay. The petitioner contended that the Commissioner erred in refusing to allow the application, claiming a prima facie case on merits and likelihood of exoneration from payment. The petitioner argued that the insistence on pre-deposit should have been waived, and the impugned order lacked reasons, necessitating its quashing and remand for re-decision.
Refusal to allow waiver of pre-deposit: The learned counsel for the petitioner argued that the Commissioner's rejection of the application seeking waiver of pre-deposit of duty, fine, and penalty was erroneous. The Commissioner observed that the petitioner failed to establish a prima facie case of undue hardship, leading to the rejection of the application for waiver of pre-deposit of dues. The order was deemed unreasoned as it did not consider the grounds raised by the petitioner, including reliance on judgments supporting the contention of a strong case on merits.
Absence of reasons in the impugned order: The High Court found that the Commissioner did not consider the various grounds raised by the petitioner in the application for dispensation of pre-deposit of duty, fine, and penalty. The order was considered unreasoned and mechanical, failing to address the contentions presented by the petitioner. The Court held that the order lacked proper reasoning and required a fresh consideration by the Commissioner.
Consideration of grounds raised by petitioner: The Court noted that the petitioner had raised valid grounds in the application for waiver, citing judgments to support the claim of a strong case on merits and the potential undue hardship from pre-deposit requirements. The Commissioner's failure to address these contentions led to the decision to allow the petition, set aside the impugned order, and remand the matter back to the Commissioner for a fresh consideration of the application for waiver.
Conclusion: The High Court allowed the petition, remitted the matter back to the Commissioner for a fresh decision on the application for waiver, emphasized the need for a reasoned order, and maintained the interim protection granted to the petitioner until the Commissioner's new order is passed.
-
2012 (2) TMI 509
Issues:
The issues involved in the judgment are eligibility for proportionate refund under a specific notification for products not eligible for the notification and the treatment of two manufacturing units as independent entities for excise purposes.
Eligibility for Proportionate Refund:
The respondent had two manufacturing units, one for producing bare pipes and another for coated pipes. The first unit was set up before the cut-off date for exemption under notification No.39/2001-CE, while the second unit for coated pipes was set up after the cut-off date. The Tribunal considered both units as independent entities due to separate excise registration numbers. The Tribunal granted the benefit of exemption to the first unit manufacturing bare pipes but not to the second unit producing coated pipes. The Tribunal allowed refund of duty on bare pipes cleared for coating from the first unit to the second unit. The High Court upheld the Tribunal's decision, stating that the unit manufacturing bare pipes before the cut-off date was eligible for exemption, even though the unit producing coated pipes after the cut-off date was not eligible. The Court found no error in the Tribunal's view and dismissed the Tax Appeal.
Treatment of Manufacturing Units:
The Tribunal accepted the demarcation of the two units with separate excise registrations as two distinct entities. The Tribunal allowed the refund of duty on bare pipes cleared for coating from the first unit to the second unit. The High Court affirmed the Tribunal's decision, emphasizing that the first unit manufacturing bare pipes before the cut-off date was entitled to the benefit of the exemption notification. The Court dismissed the Tax Appeal, stating that no question of law arose. Additionally, the Civil Application was also dismissed in view of the main Tax Appeal judgment.
-
2012 (2) TMI 508
Clandestine Removal of Goods – Failure to Bring Evidences - The challenge to the orders essentially related to absence of cogent evidence in support of the charge against the appellants relating to clandestine removal of the goods, failure on the part of the Department to adduce satisfactory evidence in support of such charge and the findings having been arrived at by the authority in the absence of evidence in support.
-
2012 (2) TMI 507
Addition on sale of shares - taking into consideration of the land value owned by that company for making the addition - Held that:- We find that the addition made by AO which is confirmed by ld. CIT (A) has no leg to stand. Assessee has sold the shares of a company and not the land of that company. Therefore, by taking into consideration of the land value owned by that company making any addition in the hands of the assessee, in our view is not justified. There is no provision under the IT Act that value of land owned by a company whose shares has been given to any person and in the hand of that person any capital gain can be assessed on the basis of land or office sold by the company. If any addition can be made that can be made on the basis of value of those shares or taking into consideration that the sale consideration shown by assessee is not correct, if there is any evidence. No such material was there before the AO that assessee has sold the shares below market price and, therefore, in our considered view the basis on which the addition has been made by AO was not correct - Decided in favour of assessee.
-
2012 (2) TMI 506
Issues involved:
The appeal and stay applications against Order-in-Original No. 13/BR-13/Th-1/2011 dated 30.03.2011 passed by the Commissioner of Central Excise, Thane I.
Facts and Considerations:
The appellant, a manufacturer of goods under Chapter 73 and 84 of the Schedule to the CETA, received sales tax incentives totaling amounts for three consecutive years. The department alleged undervaluation and short payment of Central Excise duty due to the non-inclusion of these incentives in the assessable value. A show-cause notice was issued demanding Central Excise duty, interest, and penalty. The appellant contended that the sales tax incentives were received prior to 2006-07 and should not be included in the assessable value based on a Board circular and a Tribunal judgment in a similar case.
Arguments and Findings:
The appellant argued that the demand for duty was unsustainable as it pertained to a period more than 5 years prior to the notice, and the sales tax incentives should not be included in the assessable value based on relevant circulars and precedent. The revenue reiterated the adjudicating authority's findings. The Tribunal considered the arguments and found that a previous judgment on a similar issue concluded that sales tax incentives received under a government scheme should not be included in the assessable value for the levy of Central Excise duty. Consequently, the appeal was allowed, and the stay application was disposed of.
This judgment highlights the importance of considering government schemes and relevant circulars in determining the assessable value for the purpose of Central Excise duty, ensuring fair treatment for manufacturers receiving sales tax incentives.
-
2012 (2) TMI 505
The Appellate Tribunal CESTAT Bangalore found a prima facie case for the appellant against the demand for service tax on "retreading of worn-out tyres" for the period from April 2008 to March 2009. The appellant argued that this activity amounts to manufacture based on a tariff entry introduced in 2005. Previous orders in favor of similar assessees were cited, leading to a waiver of pre-deposit and stay of recovery for the adjudged dues.
-
2012 (2) TMI 504
The Appellate Tribunal CESTAT DELHI dismissed the revenue's application for stay of the impugned order. The issue was whether the tax rate in force at the time of realization of consideration or the rate in force shall be applicable to compute tax liability. The Tribunal held that the tax rate on the date of realization of consideration is not mandated by the statute. The appeal of the revenue was dismissed.
-
2012 (2) TMI 503
Whether the existence of an arbitration agreement between the parties is a bar to the maintainability of the information and the proceedings arising therefrom before the Commission? - whether the petitioner is an 'enterprise' within the meaning of the expression as defined in Section 2(h) of the Act? - Held that:- An enterprise may perform some sovereign functions, while other functions performed by it, and the activities undertaken by it, may not refer to sovereign functions. The exemption under Section 54 could be granted in relation to the activities relatable to sovereign functions of the Government, and not in relation to all the activities of such an enterprise. Pertinently, there is no notification issued under Section 54 either under Clause (c), or under the proviso. This clearly shows that the Central Government does not consider any of the activities of the petitioner as relatable to sovereign functions.
The petitioner has entered into a Concession Agreement under its PPP policy. It is, therefore, clear that respondent No. 2 is performing a commercial activity and rendering services for a charge, which, prior to the entering into the aforesaid agreement with the petitioner, was being performed by the petitioner. The petitioner is also carrying out an activity, viz. running the railways, which also has a commercial angle and is capable of being carried out by entities other than the State, as is the case in various other developed countries. It is, therefore, not an inalienable function of the State. Therefore, the submission of the petitioner that it is not covered by the definition of 'enterprise', has no merit and is rejected.
-
2012 (2) TMI 502
Clearance from DTA to SEZ - exempt goods - whether the assessees were liable to consider, during the material period, their clearances to SEZ developers to be clearances of exempted goods? - Held that: - decision in the case of Sujana Metal Products Ltd. vs. CCE, Hyderabad [2011 (9) TMI 724 - CESTAT, BANGALORE], squarely covers the issue where it was held that the definition of the term “export” under the SEZ Act shall prevail over the definition of term “export” under the Customs Act. Therefore, supplies made to SEZ from DTA units shall be treated as export.supplies made to SEZ are held to be “export” provisions of Rule 6 of CCR does not arise at all - appeal disposed off - decided in favor of assessee.
-
2012 (2) TMI 501
Issues Involved:
1. Jurisdiction of CIT u/s 263.
2. Taxability of income from the transfer of shares.
3. Whether the assessment order was erroneous and prejudicial to the interest of the revenue.
Summary:
1. Jurisdiction of CIT u/s 263:
The appeal challenges the jurisdiction of the Commissioner of Income-tax (CIT) to invoke section 263 of the Income-tax Act, 1961, setting aside the assessment framed u/s 143(3) as erroneous and prejudicial to the interest of the revenue. The Tribunal observed that the CIT must be satisfied with twin conditions: the order of the assessing officer (AO) is erroneous and prejudicial to the interest of the revenue. The Tribunal emphasized that mere change of opinion or view does not justify the exercise of revisional jurisdiction u/s 263. The Tribunal cited multiple judgments, including Malabar Industrial Co. Ltd. vs. CIT, 243 ITR 83 (SC), and Gabriel India Ltd., 203 ITR 108 (Bombay), to support this view.
2. Taxability of Income from the Transfer of Shares:
The CIT held that the profit from the sale of shares should be treated as business profit instead of capital gains, asserting a lack of inquiry by the AO. However, the Tribunal noted that the AO had raised specific queries on the issue during assessment proceedings, and the assessee had provided a detailed reply. The Tribunal referenced the assessee's submission that the shares were held as investments, not as stock in trade, and that no fresh investments were made during the year under review. The Tribunal found that the AO had applied his mind and accepted the assessee's explanation, thus the CIT's invocation of section 263 was not justified.
3. Whether the Assessment Order was Erroneous and Prejudicial to the Interest of the Revenue:
The Tribunal concluded that the AO had conducted an inquiry and accepted the assessee's explanation regarding the taxation of profit from shares as short/long-term capital gain. The CIT's observation of lack of inquiry was deemed factually incorrect. The Tribunal reiterated that an order cannot be termed erroneous unless it is not in accordance with law, and every loss of revenue as a consequence of an AO's order cannot be treated as prejudicial to the interests of the revenue unless the view taken by the AO is unsustainable in law. The Tribunal set aside the CIT's order u/s 263 and quashed the same.
Conclusion:
The appeal was allowed, and the Tribunal quashed the CIT's order u/s 263, concluding that the AO had conducted a proper inquiry and the CIT's invocation of section 263 was based on a mere change of opinion.
-
2012 (2) TMI 500
Issues involved: Appeal filed u/s 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, Rajkot regarding deductions u/s 80-HH & 80-I and manufacturing activity eligibility for deductions.
Deductions under Section 80-HH & 80-I:
The respondent, engaged in ship breaking, claimed deductions under Sections 80-HH and 80-I from gross profit. The Assessing Officer allowed deduction under Section 80-I from residual income after deduction u/s 80-HH. However, the Commissioner of Income Tax (Appeals) allowed deduction under Section 80-I from gross profit, upheld by the Tribunal citing a decision of the Madhya Pradesh High Court. The Tribunal also directed the Assessing Officer to grant deductions for manufacturing activity, which was affirmed by the High Court based on Supreme Court decisions. The High Court held that deductions could be claimed on gross income u/s 80A and ship breaking qualifies for deductions u/s 80HH and 80-I.
Manufacturing Activity Eligibility for Deductions:
The Assessing Officer initially denied deductions u/s 80HH and 80-I for ship breaking activity, stating it did not amount to manufacturing. However, the Commissioner of Income Tax (Appeals) and the Tribunal ruled in favor of the assessee, considering ship breaking as a manufacturing activity based on Supreme Court precedent. The High Court upheld this decision, allowing the deductions under Sections 80HH and 80-I of the Act for the respondent.
Conclusion:
The High Court dismissed the appeal, upholding the decisions of the Commissioner of Income Tax (Appeals) and the Tribunal in favor of the respondent. The Court relied on Supreme Court judgments to support the eligibility of deductions under Sections 80-HH and 80-I for ship breaking activities and clarified that deductions should be claimed on gross income, not after allowing deductions under Section 80HH of the Act.
............
|
9911796707
