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Showing 221 to 240 of 1407 Records
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2015 (2) TMI 1193
Revision u/s 263 - validity of notice - Held that:- Section 263 of the Act gives power to the ld. CIT to examine the records under the provisions of the Act and if he finds order passed therein by the AO is erroneous or prejudicial to the interests of the revenue, he may after giving the assessee an opportunity of being heard pass an order. Section postulates that assessment order has to be considered and examined by the ld. CIT himself before he considers it erroneous and gives notice to the assessee.
In this case we find that notice u/s 263 of the Act has been issued by ITO, Technical-XX, Kolkata. The records of the revenue do not show that there was any examination of records by the ld. CIT himself before issuing of notice u/s 263 of the Act. In absence of valid notice issued u/s 263 of the Act the jurisdiction assumed by the ld. CIT is bad and hence the order passed u/s 263 of the Act is not sustainable. Accordingly in the background of the aforesaid discussion in our considered opinion the jurisdiction assumed by the ld. CIT u/s 263 of the Act in absence of proper notice u/s 263 of the Act is bad. Hence order passed u/s 263 of the Act is liable to be quashed.- Decided in favour of assessee
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2015 (2) TMI 1192
Inclusion of excise duty in the closing stock - Held that:- As decided in Apex Court in the case of Burger Paints India Ltd. vs. Commissioner of Income Tax (2004 (2) TMI 4 - SUPREME Court ) wherein the similar question has been answered against the revenue and infavour of the assessee holding that no addition could be made to the closing stock of the assessee on account of excise duty. - Decided in favour of assessee.
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2015 (2) TMI 1191
Maintainability of appeal - confiscation u/s 111(d) of the CA, 1962 - imposition of penalty u/s 112(a) of the CA, 1962 - Polyester Dyed Piled Fabrics - prohibited goods - exemption under N/N. 53/97-Cus., dated 6-3-1997 - Held that: - A Division Bench of this Court in the case of Commissioner of Central Excise & Customs v. Stovec Industries Ltd., [2013 (1) TMI 72 - GUJARAT HIGH COURT] held that in view of instruction dated 17-8-2011, tax appeal below ₹ 10 lakh is not maintainable and this instruction also applies to the pending appeal. Following the aforesaid decision of the Division Bench, we dismiss this tax appeal as not maintainable. Accordingly, the questions of law posed in this appeal are answered in favour of the assessee and against the Revenue.
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2015 (2) TMI 1190
Validity of reopening of assessment - notice issued in the name of deceased assessee who had died prior to the issuance of notice - Held that:- Admittedly Shri Ashok Kumar Vij died on 11.2.2006 and notice u/s 148 of the Act dated 24.3.2009 placed on page no. 4 of the Paper Book clearly reveals that the same was issued in the name of Shri Ashok Kumar Vij and we also note that in response to this notice, Shri S.C. Jain CA of the deceased assessee filed a reply dated 14.5.2009 informing that the assessee had died on 11.2.2006. From paper Book page 5 of the assessee, we also note that income tax return for AY 2006-07 was filed on 31.10.2006 through legal heir of the deceased assessee Smt. Veena Vij, appellant of this case.
In the light of above facts and circumstances of the present case, we are inclined to hold that the case is squarely covered in favour of the appellant by the decision of in the case of ITO vs Sikander Lal Jain (2010 (12) TMI 623 - ITAT, Agra ) and we hold that notice u/s 148 of the Act, issued in the name of deceased assessee who had died prior to the issuance of notice and this fact was also acknowledged to the AO by way of income tax return for AY 2006-07 filed on 31.10.2006 through legal heir/wife of the deceased assessee Smt. Veena Vij, was invalid and void ab initio and all subsequent proceedings conducted in pursuance to the said notice are also invalid. Therefore, impugned order of the CIT(A) is set aside and we hold that notice u/s 148 of the Act issued in the name of deceased assessee and all subsequent proceedings thereto are invalid and we quash the same. - Decided in favour of assessee.
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2015 (2) TMI 1189
High Court admitted the appeal involving various questions of laws including:- Filing of IGM by the vessel - Customs authorities did not at the relevant point of time insist upon the filing of an IGM and Bill of Entry for the vessel as 'goods'? - Demand of duty from the vessel - Confiscation u/s 111 of the customs act, 1962 - imposition of penalty u/s 112(a) of the Customs Act, 1962 - claim of drawback of 95% of the duty paid on the vessel - claim of drawback of 95% of the duty paid on the vessel SalvareeSalvage Tug
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2015 (2) TMI 1188
Waiver of pre-condition - deposition of ₹ 60 lakhs for hearing the appeal - appellant is a service provider in construction contracts - in respect of contracts in question only 20% of the value of construction contracts denoted the service components - Held that:- the Court is of the opinion that prima facie the appellant’s submission that 20% of the gross receipts of the work orders relates to service components, is the subject matter of the merits of the appeal. In these circumstances, the direction to deposit ₹ 60 lakhs, based on the adjudication order that abatement of 67% of the amount under the Notification No. 1/2006-S.T. was not available, itself requires to be gone into. In these circumstances, the direction to pay ₹ 60 lakhs with proportionate interest is hereby modified; instead, the appellant shall deposit ₹ 20 lakhs as a pre-condition for hearing of its appeal. The said amounts shall be paid within six weeks from today. - Decided partly in favour of appellant
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2015 (2) TMI 1187
TDS u/s 194C - disallowance under section 40(a)(ia) - Held that:- There is no need to deviate from the order of Ld. CIT(A). Even though new provisions were introduced and assessees were made liable to deduct tax on the payments made to transporters, provisions of section 194C(6) gives exemption to the persons not to deduct the amount, in case they obtain/furnish the PAN. Assessee has complied with these provisions. Therefore, there is no need to deduct any tax and disallowance under section 40(a)(ia) does not arise. Even though it was stated in sub section (7) that person responsible for paying or crediting any sum to the person referred to in sub-section (6) shall furnish, to the prescribed Income Tax Authority or the person authorised by it, such particulars in such form within such time as may be prescribed, this provision was not made applicable for the impugned assessment year as the relevant notification was not issued immediately.
In fact, the Board has given notification on 15.10.2010, which was made effective for the forthcoming second quarter statement due on 15th October, 2010. Since CBDT itself has issued notification in a later year, assessee’s contention that in the impugned assessment year, no such prescribed authority was stated has to be accepted. Even otherwise, as rightly pointed out by the Ld. CIT(A) provisions of section 194C(6) are independent of section 194C(7). Just because there is violation of provisions of section 194C(7), disallowance under section 40(a)(ia) does not arise, if assessee complies with the provisions of section 194C(6). In view of this, we do not find any merit in Revenue appeal. - Decided against revenue.
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2015 (2) TMI 1186
Sale of shares - STCG or business income - Held that:- The assessee was consistently investing in shares. Capital gains offered by the assessee either as long term or short term was accepted by the department in all the earlier assessment years u/s.143(3). The assessee has also placed on record the assessment order framed u/s.143(3) for the A.Y.2005-06 & 2006-07. After giving detailed finding at para 4, the CIT(A) found that assessee has earned long term capital gains of ₹ 14,10,430/- on sale of shares and mutual funds which is liable to exemption u/s.10(38). The CIT(A) has also directed AO to verify the transaction of shares and mutual funds held for less than twelve months, which are delivery based and treat the same as giving rise to short term capital gains.
The findings recorded by CIT(A) have not been controverted by ld. DR. Accordingly, we do not find any reason to interfere in the order of CIT(A) for allowing assessee’s claim of long term and short term capital gains earned on sale of shares and mutual funds. - Decided against revenue
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2015 (2) TMI 1185
Cenvat credit - input services credit on security services availed by the appellant in residential colony - constructed residential colony for residence of their employees to facilitate the working of the factory round the clock - nexus of security services as residential colony with the activity in the manufacturing of appellant - Held that:- as I find that in appellant’s own case for subsequent period this Tribunal held that they are entitled to take Cenvat Credit, therefore, I do not find any need to refer the matter to the larger bench to decide the issue. Therefore, by following the preceded decision of this Tribunal in appellant’s own case I hold that they are entitled to take Cenvat Credit on security services availed in residential colony which is located near to the factory in remote area. The impugned order is set aside. - Decided in favour of appellant
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2015 (2) TMI 1184
Matter pending before the Settlement Commission - Held that:- Since the matter is pending before Settlement Commission and it has to decide as to whether full disclosure was made or not, it is not for the court to enter into it and petitioner is at liberty to raise all objection regarding the maintainability of the application before the commission. With the aforesaid observations, we vacate the ad-interim order dated 9.1.2015 by allowing appeal filed by the respondent No.1.
It may be mentioned that we have not decided any issue on merits of the case and any observation made in the order will not in any way affect the subject matter pending for consideration before the settlement Commission.
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2015 (2) TMI 1183
Denial of claim of deduction u/s 54EC - Held that:- The investments in the bonds of NHAI and REC Ltd. of ₹ 50,00,000/- made by the assessee on 28.03.2008 and 22.08.2008 respectively are within the period of six months from the date of transfer as prescribed in section 54EC of the Act and accordingly the assessee is eligible for deduction of ₹ 1,00,00,000/- u/s 54EC of the Act.
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2015 (2) TMI 1182
Seeking recall of order dated 20.11.2012 - appellant was directed to deposit ₹ 10 lakhs within six weeks - appellant pleaded that he did not receive notice for hearing of the stay application - its non-appearance on the said date was neither deliberate nor intentional - Held that:- we recall the order and direct hearing of the stay application on 10.3.2015. - Order recalled
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2015 (2) TMI 1181
Maintainability of appeal - Seeking clubbing clearances of three units - Held that:- it was not disputed, at the outset, that the question of clubbing of clearances directly relates to valuation falls within the exclusive domain of the Supreme Court under Section 35L(b) of the Central Excise Act. This Court had, in Commissioner of Central Excise Delhi-I vs. Vijay Kumar Arora [2015 (2) TMI 608 - DELHI HIGH COURT], held that the appeals are not maintainable. In these circumstances of the case relying upon the Supreme Court judgment in Navin Chemicals Mfg. and Trading Co. Ltd. v. Collector of Customs, [1993 (9) TMI 107 - SUPREME COURT OF INDIA] it is, therefore, held that the appeal is not maintainable. The appellant is, however, at liberty to approach the appropriate forum in accordance with law. - Decided against the Revenue
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2015 (2) TMI 1180
Short credit of MAT - Held that:- This ground of appeal was allowed by the CIT(A). Thus we find that on this issue, the assessee has no grievance against the order of CIT(A). Further the Ld. Authorized Representative of the assessee has submitted that despite the directions of the CIT(A), the Assessing Officer has not given effect in granting MAT credit as per orders of this Tribunal and CIT(A). Accordingly, we direct the Assessing Officer to give effect to the orders of this Tribunal and CIT (A) for the A.Y. 2003-04 and 2004-05 and accordingly grant the MAT credit to the assessee.
Granting MAT credit against the tax liability prior to levy of surcharge and education cess - Held that:- We direct the Assessing Officer to allow the MAT credit against the tax liability payable before surcharge and education cess or alternatively the amount of MAT credit should also be inclusive of surcharge and education cess and then allow the credit against the tax payable inclusive of surcharge and education cess.
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2015 (2) TMI 1179
Cenvat credit - Welding Electrodes falling under Chapter Heading No. 8311.00 as inputs - used in the repair and maintenance of plant and machinery - Held that:- the issue raised in this appeal is squarely covered by judgment of date in M/S DSM Sugar Asmoli Vs. Commissioner of Central Excise, Meerut-II [2015 (2) TMI 1178 - ALLAHABAD HIGH COURT]. Therefore, for the reasons stated in above judgment that under Rules 57A and 57B, there is no term within which 'Welding Electrodes', as such, may fall, the substantial question of law, is answered in favour of Revenue and against Assessee. - Decided in favour of Revenue
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2015 (2) TMI 1178
Modvat credit - Rule 57A and 57B of Rules, 1944 - Welding electrodes - used for the maintenance and repair of machinery in the factory wherein the appellants are engaged in the manufacture of V.P. Sugar and Molasses - period involved is October' 1999 to March' 2000 and January' 2002 to March' 2002 - Held that:- under Rules 57A and 57B, there is no term within which 'Welding Electrodes', as such, may fall. Under Rule 57B(1)(iv), MODVAT credit has been allowed to 'inputs' used for manufacture of final products or for any other purpose within the factory of production. Similarly, Rule 57B(1)(vi) allowed MODVAT credit on accessories on final products cleared alongwith such final products, value of which is included in the assessable value of final products but appellant could not explain as to how 'Welding Electrodes' can be said to be used for manufacture of final products or accessories of final products, so as to bring within aforesaid provisions. Therefore, for the period of October' 1999 to March' 2000, 'Welding Electrodes' would not come within the category 'inputs' so as to qualify for MODVAT credit under Rule 57A read with Rule 57B of Rules, 1944.
Since there is change in provisions, therefore, for the subsequent period, having examined the terms "capital goods" and "input" in the subsequent Rules and comparing with the Rules 57A, 57B and 57Q of earlier Rule, for the purpose of present case, we do not find any substantial difference which may help the appellant so as to include 'welding electrode' within either of the aforesaid terms for claiming MODVAT/CENVAT Credit on the use of "welding electrodes" in an industrial unit engaged in production of sugar and molasses. - Decided against the assessee
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2015 (2) TMI 1177
Addition of interest income received on the short-term deposits out of the surplus fund with PSU Banks - non eligible for deduction under section 80P(2)(a)(i ) - Held that:- It is an accepted fact that the said PSU Banks are not the members of the assessee-Society and consequently the interest income cannot also be attributable to the activities of the Society of carrying on the business of providing credit facility to the members. Consequently in view of the decision of the Hon’ble Supreme Court in the case of Totgar Cooperative Sale Society Limited [2010 (2) TMI 3 - SUPREME COURT ], the enhancement as made by the ld. CIT(Appeals) is on the right footing and does not call for any interference. - Decided against assessee.
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2015 (2) TMI 1176
Waiver of pre-depoist - undue hardship - financial hardship - Held that:- We are in disagreement with the finding of the learned Tribunal that financial hardship is not a criteria for considering the prayer for waiver of pre-deposit of Service Tax. It is wrong to hold that only the prima facie case is the criteria in the matter of waiver of pre-deposit. By virtue of Section 86(7) of Service Tax, the provision of Section 35-F of the Central Excise Act is applicable.
Order of tribunal set-aside - matter remanded back to decide the issue afresh - Decided in favor of appellant.
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2015 (2) TMI 1175
TDS u/s 194C - payments to BCCL for advertisement - Held that:- The payment made by the assessee to BCCL is towards advertisement and the assessee was liable to deduct tax at source under Section 194C of the Act. In view of the assessee's failure to deduct tax at source as required, the provisions of section 40(a)(ia) of the Act are attracted in the facts of the case and the payments by the assessee to BCCL for both assessment years 2008- 09 and 2009-10 are liable to be disallowed thereunder - Decided against assessee.
Applicability of section 40(a)(ia) to disallow expenditure which was actually paid within the previous year - Held that:- The details as to whether the payee, BCCL, has actually offered as income and paid taxes on the amounts ofRs.7,20,00,000 each for the relevant Assessment Years 2008-09 & 2009-10 and whether these expenditure have actually been paid during the concerned previous year’s or remained payable / outstanding as on 31.3.2008 and 31.7.2009 are facts which are material to come to a decision on this issue and the examination of such details as are required are not available before us. In view of the above, in the interest of equity and justice, we deem it necessary to restore this issue to the file of the Assessing Officer to decide thereon - Decided in favour of assessee for statistical purposes
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2015 (2) TMI 1174
Addition on account of low GP - CIT(A) deleted the addition - Held that:- We find that the CIT(A) has passed a well reasoned speaking order on this issue. It is undisputed fact that the assessee has started new proprietary concern by the name “Rakesh Fashion” to deal in low- end sari, and there was no business in this concern in the earlier year. Also there was a stock transfer of ₹ 22.39 lakhs in respect of dead stock from old concern to the new concern. The fall in GP was marginal and no specific defect could be pointed by the AO in the account books of the assessee. In these facts, we are of the view that the CIT(A) was justified in deleting the addition on account of low GP - Decided against revenue
Undisclosed bank accounts transactions - CIT(A) deleted the addition - Held that:- The admitted fact is that the two bank accounts of the assessee with Axis Bank and ICICI Bank Ltd. were not disclosed to the department. However, the legal position on this issue is well settled that only the peak amount in such type of case could be added as income in the hands of the assessee and not aggregate of the total credit side of the account. In this case, the CIT(A) has recorded that the peak amount of two bank accounts with Axis Bank and ICICI Bank Ltd. taken together comes to ₹ 22,58,223/-, and the same has been confirmed as income in the hands of the assessee and the balance addition has been deleted. The Revenue could not controvert this finding of the CIT(A) that the peak balance in these two undisclosed bank accounts of the assessee has been rightly calculated at ₹ 22,58,223/-. In these facts of the case, we are of the view that no interference in the order of the CIT(A) is called for - Decided against revenue
Addition on account of unaccounted closing bank balance - CIT(A) deleted the addition - Held that:- We find that the peak amount in these two undisclosed bank accounts with Axis Bank and ICICI Bank Ltd. has been worked out at ₹ 22,58,223/- which has been directed by the CIT(A) to assess in the hands of the assessee, and therefore, there is no justification for separate addition of the closing balance as on the last date of the relevant period in these bank accounts of the assessee. The peak balance in these bank accounts of the assessee would always be higher than the closing balance in the same bank accounts, and therefore, since the higher amount has already been assessed to tax in these bank accounts, no separate addition for closing balance in these bank accounts of the assessee is justified. In this view of the matter, the order of the CIT(A) on this issue is confirmed - Decided against revenue
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