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Case Laws
Showing 221 to 240 of 1558 Records
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2017 (2) TMI 1343
Liability of duty - clinker manufactured by the appellant - clinker used in the manufacture of duty exempted cement and such cement cleared to SEZ - Held that: - Section 51 of the SEZ Act, 2005 has overriding provision stating that notwithstanding anything contained in any other law for the time being in force supplies to the SEZ shall be exempt from the levy of duty - Further, section 2 (m) of the SEZ Act, 2005 also has enacted that supplies to the SEZ by a DTA shall be treated as export - there shall be no levy in respect of cements cleared to SEZ - appeal allowed.
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2017 (2) TMI 1342
Maintainability of appeal - non-compliance of stay order - Held that: - appeal was not maintainable for non-compliance to the stay order - Once the merit of the case has not been gone into by the Commissioner (Appeals), there is no case that appellant has been aggrieved by his order - appeal dismissed as not maintainable.
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2017 (2) TMI 1341
Maintainability of appeal - alternative remedy - Penalty u/s 53(12) of the KVAT Act - Release of detained goods - Held that: - petitioner has not been able to explain as to how the remedy prescribed under the Act is not efficacious one, especially, when in catena of cases, the Hon’ble Supreme Court has observed that the remedy of appeal provided under the Act, is indeed, efficacious - once an alternative remedy is provided under the Act, a litigant is expected to first take recourse to the said remedy, and only thereafter to approach this Court.
Petition dismissed being not maintainable.
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2017 (2) TMI 1340
Disallowance of advance written off - CIT-A deleted the addition - Held that:- The conditions precedent for claiming the bad debt has laid down in S.36(2) read with S.36(1)(vii) is not satisfied. The said claim cannot be allowed as bad debt.
In the balance sheet the amount appearing as advance to others for land under ‘loans and advances’, in Schedule 5 is still showing outstanding in the year, and, therefore, this amount appears to be different, hence it is not a case of bad debts.
As the said amount was not being recovered and has been claimed as loss by the assessee in this year, i.e. when sale of land was made, then the same needs to be allowed as business loss because, it was incidental and linked to the purchase of stock-in-trade and was taken as part of the cost of the land in this year while determining the business income from the sale of land in this year - Decided against revenue
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2017 (2) TMI 1339
Corporate Insolvency Resolution process - Existence of eligible debt - Held that:- In totally of dispute as the petitioner claim was not only rejected by the Company but also filed a statement showing that the petitioner himself was due to the Company. Moreover, the petitioner having worked for more than 9 years in the Company as senior Executive i.e. from 19.11.2005 to 23.12.2013 and keeping quiet for a long time, make a demand basing on un-authentic and un-authorised FFS in question, is not at all tenable to invoke the provisions of IBC, which is meant for protection of bonafide stakeholders of a Company as per the objects of IBC as extracted above.
The petitioner failed to show his bona fides to approach this Tribunal except technically contending that he has not received the notice of dispute in question from the Company before receipt of demand notice in question.
The Tribunal cannot go into roving enquiry into the disputed claims of parties as the object of IBC, as explained is to ensure reorganisation and insolvency resolution of Corporate persons, individuals, etc., in a time bound manner for maximisation of value of assets persons to promoted entrepreneurship etc. As stated above, the Learned Counsel for the Respondents not only denied the claims in question but also explained with cogent reasons as to how the Petitioner is un-justified in filing the present petition by invoking the jurisdiction of this Tribunal under IBC, 2016.
It is not a fit case to initiate Insolvency Resolution Process as prayed for by the Petitioner.
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2017 (2) TMI 1338
Decree for specific performance of contract - Case of petitioner is that the application (Exhibit No.22) filed by him under Order VI Rule 17 of the Code of Civil Procedure be decided before the application (Exhibit No.18) filed by the defendant is considered - Held that: - the learned trial Judge has committed an error in rejecting the application (Exhibit No.27) and refusing to consider the application (Exhibit No.22) before considering the application (Exhibit No.18) - the provisions of Order VII Rule 13 of the Code of Civil Procedure lay down that if the plaint is rejected under Order VII Rule 11 of the Code of Civil Procedure, then the plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action.
The learned trial Judge has not only committed patent illegality but has failed to exercise the jurisdiction vested in him by refusing to consider the application (Exhibit No.22) before considering the application (Exhibit No.18) - application allowed.
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2017 (2) TMI 1337
Determination of arm’s length (ALT) of an International Transaction - comparable selection criteria - Held that:- Assessee is engaged in the business of software development and it provides software development services to its various group companies, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Adjustment towards working capital and risk adjustment - Held that:- Similar adjustments should also be allowed in the present assessment year. We hold and direct accordingly. We also observe that the principle reasons assigned by the DRP in the present assessment year was lack of details furnished by the assessee. In this regard we find that all the details have been given by the assessee in its transfer pricing study and we find that the observations of the DRP in this regard cannot be sustained. We accordingly direct that adjustment of 2% towards working capital adjustment and risk adjustment should be allowed to the assessee as was done in A.Y.2004-05. We hold and direct accordingly.
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2017 (2) TMI 1336
Disallowing HRA paid to Managing Director as excessive in nature - Held that:- It is observed that it is in assessee's own case accountable High Court [2013 (7) TMI 1104 - DELHI HIGH COURT] has allowed the commission paid to the managing director for the services rendered as per the terms of the employment. As the revenue has not brought any distinguishing factor to deviate from the decision of Hon'ble High Court, respectfully following the same we dismiss ground No. 1 raised by revenue.
Addition on account of foreign travelling expenses treating the same as personal in nature - Held that:- CIT(A) on verification of the details have observed that none of the family members has been accompanying directors. There has been no contrary evidence is that has been brought on record by Ld. AO regarding any personal touch to the foreign travel expenses. It appears that Ld. AO without there being cogent material has made addition on mere surmises. Accordingly, we are inclined to uphold the findings of Ld. CIT(A) in deleting the addition
Addition credit balance written back - Held that:- The only requirement for allowability of the bad debts is that the assessee should write off the bad debts as irrecoverable in its accounts in the relevant year. Admittedly, the assessee has written off the bad debts to the extent of ₹ 2,59,041/- by way of debit to the profit & loss account.In this case, debit to the profit & loss account was only for ₹ 2,59,041/- while the Assessing Officer made the disallowance of ₹ 9,35,706/-, at the same time also making separate addition for the cessation of liability. Be that as it may, we are of the opinion that the assessee is entitled to the deduction of bad debts in view of the above decision of Hon'ble Apex Court in the case of T.R.F. Limited. [2010 (2) TMI 211 - SUPREME COURT] - Decided against revenue
Addition in respect of HRA paid to the Managing Director as excessive in nature - Held that:- HRA paid to the directors will be considered as perquisites in the hands of Directors. There cannot be evasion of tax as the directors are paying tax on the perquisites received. We are setting aside this issue to Ld. AO to verify whether such income has been treated as prerequisite in the hands of the Directors and to allow the same in the hands of assessee. Ground raised by the assessee stands allowed for statistical purposes.
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2017 (2) TMI 1335
Detention of goods - Inter-State sale transaction - Held that: - the writ petition is disposed of with a direction to the respondent to release the detained goods, forthwith, upon a bank guarantee of a Nationalized Bank/ Scheduled Bank, equivalent to a sum of ₹ 69,969/- being furnished by the petitioner - petition disposed off.
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2017 (2) TMI 1334
Principles of natural justice - opportunity of time sought for - Held that: - Adequate opportunity was given to the petitioner company to file an objections and/or additional documents - time as sought for by the petitioner company was granted; final orders were passed only on 22.12.2016.
Lack of application of mind - Section 84 of the TNVAT Act, 2006 - Held that: - It appears that the Assessing Officer over looked the fact that the credit notes along with the cancelled invoices in respect of assessment years 2012-2013 to 2014-2015 were filed. Despite which, the Assessing Officer appears to have levied tax with respect to defect No.10. Similarly in respect of Defect No.1, as pointed out in the Inspection report, the stand of the petitioner is that necessary documents were furnished. Therefore, having regard to this aspect, I am inclined to grant leave to the petitioner to file a petition under Section 84 of the TNVAT Act, 2006.
Petition disposed off.
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2017 (2) TMI 1333
Clandestine manufacture and removal - demand based on loose papers (recovered in search/inspection) - shortage of raw material, HDPE Granules - It is the contention of the respondents from the very beginning that the papers do not belong to them and appears to be left by some visiting client, which they are unable to identify - Held that: - revenue have not brought on record any material to show the purchase of raw materials or sale of alleged finished goods. Further, non availability of production capacity, work force and the very fact that the loose papers actually related to some other factory who was engaged in manufacture of holo laminated films exclusively, on the power generated by D.G. set. Whereas the respondents are using power, the generator was used only for emergency as a standby.
The Department has not succeeded in establishing that the loose papers actually belonged to the respondents. Agreeing to the manner of calculation with respect to the loose papers, does not amount to categorical admission of clandestine removal by the director of the respondent’s company. Moreover, there have been repeated retraction, verifying the position and as such the alleged admission is of no help to revenue.
The comparative study clearly sets out that the loose papers found at the time of inspection or search do not belong to the respondents and as such the learned Commissioner appeals have rightly set aside the demand based on the loose papers. Further, it is settled legal position that the documentary evidence prevails over the oral evidence - the Department has not discharged the burden of proof, as required in the matters of alleged clandestine removal.
Appeal dismissed - decided against Revenue.
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2017 (2) TMI 1332
Compounding fee - inter-state sale or not - petitioner says that the first respondent ought not to have proceeded to pass the impugned compounding notice, and, on the other hand, should have awaited the completion of exercise initiated to tally the IMEI numbers - Held that: - The petitioner's claim that the mobile phones had been received at its Chennai unit from its unit in Manaser, for the purpose of repair, has not been dealt with by the first respondent, while issuing the impugned notice. Furthermore, as pointed out correctly by the learned counsel for the petitioner, the impugned notice, which is dated 10.01.2017 was passed, at a point in time, when, the first respondent had not completed the exercise of tallying the IMEI numbers.
The first respondent is directed to rule on the representation dated 25.01.2017, preferred before it by the petitioner - petition allowed by way of remand.
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2017 (2) TMI 1331
Amendment of Import General Manifest (IGM) - Arbitration clause - Held that: - The complexity of the matter is such that the IGM cannot be ordered to be amended or issued based on the version of any one party. On the ground that the Customs Authorities cannot be made parties to the arbitration proceedings, taking steps for the initiation of the arbitration proceedings cannot be avoided. Once the arbitrator adjudicates the disputes and decides, inter alia, as to who is entitled to be the holder of the Bill of Lading, which consignee is entitled to take the cargo, etc. the said order is only to be acted upon by the Customs Authorities.
The amendment to the IGM in a case of this nature can only be consequential to the passing of the award by the arbitrator.
These petitions are disposed of reserving the liberty to the petitioners to resort to the initiation of the arbitration proceedings in accordance with the relevant clauses of their agreements.
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2017 (2) TMI 1330
Release of detained goods - Movement of goods for the purpose of repair - whether there is sale or branch transfer? - Held that: - the petitioner is directed to deposit for the moment a sum of ₹ 5,00,000/- with the second respondent. Upon deposit of the said amount, the second respondent will release forthwith, the detained goods - It is made clear that payment of tax and the factum of furnishing of a personal bond, will be, without prejudice to the rights of the petitioner to challenge both the imposition of tax and compounding fee, by taking recourse to an appropriate remedy, in accordance with the provisions of the Act - petition disposed off.
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2017 (2) TMI 1329
TDS u/s 192 - residential status - ax required to be withheld in with respect to two Japanese nationals Mr. Koga and Mr. Yanai - stay in India - according to the assessee is total stay in India was for 1121 days and he is resident and not ordinarily resident for all these years - Held that:- Hon’ble Supreme Court has dealt with an identical situation in the case of Pradeep J Mehta pro the J Mehta versus Commissioner of income tax [2008 (4) TMI 6 - Supreme Court] wherein held a person will become an ordinarily resident only if (a) he has been residing in nine out of ten preceding years; and (b) he has been in India for at least 730 days in the previous seven years and decided the issue in favour of assessee.
We set aside the matter to the file of the AO, as we do not find the number of days stated by the assessee in the orders of the lower authorities. Therefore, the Ld. assessing officer will compute the number of days of those 2 employees being in India and based on that will decide the residential status of those 2 employees following the principles laid down by the Hon’ble Supreme Court with respect to interpretation of provisions of section 6 (6) of the income tax act and decide the issue afresh on the merits.
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2017 (2) TMI 1328
CENVAT credit - input services in relation to organising the function of Family Day - event management services - security services - insurance services for insurance of the function - Pandal & shamiana services - Held that: - Admittedly, the services of Family Day was celebrate for the workers who are working in the factory of the appellant. The said function will boost the month of the worker to produce more - the activity of Family Day function is related to the business activity of the appellant - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1327
Reduction of Quantum of penalty - Held that: - This is a pure discretionary exercise of jurisdiction of Tribunal in the matter of quantum of penalty which is not against any law and hence does not give rise to any substantial question of law - application dismissed.
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2017 (2) TMI 1326
Offence u/s 8(c), 20(b) (ii) read with Section 31A of the NDPS Act - tenure of punishment - Held that: - In the instant case, the High Court has given thirty years rigorous imprisonment to the appellant on the assessment that the appellant should be given maximum punishment as prescribed i.e. twenty years and thereafter extending it to one and one-half times of the said term - the sentence should be more than minimum and ends of justice would be sub-served if the appellant is given the sentence of rigorous imprisonment of 16 years.
The appellant is of 65 years of age and suffering from various ailments - the sentence given in Gujarat case as well as Bombay case would run concurrently - Insofar as fine of ₹ 1 lakh which is imposed by the Trial Court in Gujarat case is concerned, the same would remain - However, as far as fine of ₹ 3 lakhs in Bombay case is concerned, the same is reduced to ₹ 2 Lakhs. Since the amount of fine is to be remitted to Narcotic Control Bureau, the appellant is permitted to pay the total fine of ₹ 3 lakhs (Rs.1 lakh + ₹ 2 lakhs) with the Narcotic Control Bureau, Special Judge, Bombay.
Appeal disposed off.
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2017 (2) TMI 1325
Benefit of exemption notification issued under old act - Termination of tenancy - the notification by which the provisions of the old act were applicable to the Doiwala area in the year 1949 continued and remained in force on the date when the notice of termination of the tenancy was issued - Whether or not, the tenancy in question is protected by Act No. III of 1947? - Held that: - The protection of the tenants under the 1947 Act continued throughout and in any case up to the issue of the notification dated 23rd of January, 1973, under the Act No. XIII of 1972. It made no difference that the new Act of 1972 was specifically applicable to Doiwala town area by the aforesaid notification. As long as there was nothing inconsistent in the notification dated 31st March, 1949 with the re-enacted provisions of the Act of 1972, the notification continued in force by virtue of Section 24 of the U.P. General Clauses Act, 1904 - The notice issued by the Respondent-landlord terminating the tenancy Under Section 106 of the Transfer of Property Act was not valid and hence, the suit filed on the basis of such a notice was not tenable.
Applicability of U.P. Act No. III of 1947 to Doiwala Area - Whether or not, the notification dated 31st of March 1949 which applied the provisions of the Act of 1947 to Doiwala town was in force on the 19th of September, 1972, i.e. when the landlord terminated the tenancy and sought possession of the suit premises? - Held that: - It is clear from Sub-section (1) and Sub-section (2) of the Act of 1947 that it extended to the whole of the erstwhile United Provinces and applied to every municipal area, cantonment area and notified area as per the provincial government notification in the official gazette. Undisputedly, the Governor declared that the provisions of Section 2, 3(a), 4, 5, 6, 8, 11, 12 and 16 of the Act shall apply to Doiwala town located in Dehradun by a notification dated 31st March, 1949 because this notification has never been expressly repealed.
Whether the notification dated 31st March, 1949 continued to exist even after the Act was repealed upon the reenactment of the Act of 1972? - Held that: - any statutory instrument (which a notification is) issued under the repealed enactment continues in force as if it were issued under the re-enacted provisions to the extent that it is not inconsistent with the re-enacted provisions. Such continuance exists till the statutory instrument is superseded by a statutory instrument issued under the re-enacted provisions.
There can be no inconsistency between the notification applying the Act to the Doiwala area, and the re-enacted provisions of the Act unless the Act of 1972 clearly expresses an intention to remove the protection accorded to the tenants from an area - the notification under the 1947 Act continued in spite of its repeal and the enactment of the 1972 Act. It cannot be said that in the hiatus between the repeal of the 1947 Act and the issuance of a notification applying the 1972 Act to the Doiwala area, the Legislature intended that the tenants had no protection from eviction and there was an unrestricted right to evict them.
The old Act, i.e. the Act No. III of 1947 applied to the Doiwala area by virtue of notification dated 31st of March, 1949, when the suit for the eviction of the Appellant was filed. The suit is untenable for the want of permission under the provisions of the U.P. Act No. XIII of 1972 and is liable to be dismissed - the Appellant-tenant shall hand over possession of the premises to the Respondent after a period of three years from today - appeal disposed off.
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2017 (2) TMI 1324
Allowing exemption u/s 11 - assessee Trust has violated the directions given by the Hon’ble Bombay High Court in respect to doctor’s fee is to be included in regard to creation of a IPF account and transfer the amount to IPF account for betterment of poor and indigent patient - Held that:- We find that the assessee is a public charitable trust registered under Bombay Public Trusts Act, 1950 by the charity commissioner since 1964. The assessee is registered u/s 12A and 80G. The assessee is engaged in quality health care at affordable rates to the members of the society of all strata. This institute started cardiac services in May 1999 by foxing on quality, safety and economy. During the year under consideration assessee’s gross receipts was to the tune of ₹ 37,55,60,944/- before considering the amount spent on the object trust permitted accumulation and the amount deemed to have been applied for the object of the Trust.
There is no dispute about these facts. Hon’ble Bombay High Court on 17-08-2006 notified a scheme applicable to public charitable trusts registered under Bombay Public Trust 1950 which are running charitable hospitals including nursing home, maternity home, dispensaries or any other centre for medical relief whose annual income exceeds ₹ 5 lakhs. This scheme stipulates to provide compulsory free and concessional medical treatment to the indigent and weaker patients. As per the scheme Trust has to credit 2% of the gross billing to the Indigent Patient Fund every year and this fund should be utilized for providing medical treatment to the poor patients.
There is no single evidence which would suggest otherwise. The rationale behind the same being that the doctor’s fees is not a part of the hospital's earnings, but rather a reimbursement to the hospital. The hospital merely acts as a collecting agent between the two for this particular aspect. Neither is there any evidence which would suggest the assessee’s status of that of a "Charitable Trust registered under the Bombay Public Trusts Act, 1950" being revoked by the Charity Commissioner. AO has no role in law by usurping the role of the Charity Commissioner and declaring that the assessee has breached the covenants of the Scheme. - Decided against Revenue.
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