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Showing 221 to 240 of 1359 Records
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2015 (4) TMI 1141
Period of limitation - Demand - non- payment of Central Excise Duty for the period 29.4.2010 to 31.3.2011 - SCN issued on 22.4.2013 - Held that:- although there are about dozen grounds taken in the appeal, but none specifically relates to any suppression of facts by the assessee. Even the questions of law which have been framed in the appeal do not specifically relate to suppression of facts. Admittedly, the appellant had paid the Central Excise Duty to the tune of ₹ 44 crores for the period 1.4.2011 to 31. 3.2013. If there was any default in deposit of duty for the period prior to 1.4.2011, the assessee could have been issued notice within the statutory period as provided under Section 11A of the Act, which in normal course would be one year, and five years in cases falling under sub-Section (4). In the absence of appellant having been able to satisfy the Tribunal on facts that the present case falls within sub- Section (4) of Section 11, the notice issued to the respondent beyond the period of one year cannot be justified in law. - Decided against the Revenue
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2015 (4) TMI 1140
Non deduction of tds - Addition on account of petty contract charges on account of hire charges - invoking section 40(a)(ia) - retrospectivity - Held that:- The Tribunal in the case of M/s Gaurimal Mahajan & Sons (2015 (3) TMI 770 - ITAT PUNE ) dealt with another argument of the assessee to the effect that the second proviso to section 40(a)(ia) of the Act inserted by the Finance Act, 2012 w.e.f. 01.04.2013 be applied retrospectively. Notably, the said second proviso to section 40(a)(ia) of the Act prescribes that the disallowance u/s 40(a)(ia) of the Act could not be made if an assessee is not deemed to be an assessee in default under the first proviso to section 201(1) of the Act. The Tribunal dealt with the plea of the assessee that such amendment was intended to eliminate undue hardships to the taxpayers and therefore it should be held as retrospective in nature.
Thus we restore the matter back to the file of the Assessing Officer to adjudicate the issue afresh in accordance with the directions of the Tribunal in the case of M/s Gaurimal Mahajan & Sons (supra)
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2015 (4) TMI 1139
Addition made of the price of the international transaction - Held that:- As during the course of the appellate proceedings before the ld CIT(A), the assessee had filed a copy of the, transfer pricing audit conducted by the Internal Revenue Service, Department of the Treasury US. The assessee was audited by Internal Revenue Service - International Division US for the calendar years 2003, 2004 and 2005. The examination carried out by the international division of the Internal Revenue Service, indicated a downward adjustment to income of one its foreign subsidiaries in Sri Lanka, resulting in an increase of income in the U.S. No adjustments were carried out to any transaction between the assessee India Co. and the parent company.
TPO is of the opinion that reason of loss are on other segments and not the content segment which is not correct because in the calendar 2002 the parent company had suffered a total loss of USD (5,165,000), which included loss from content segment of USD (2,996,900)and loss from system and training segment of USD (2,169,000). So, it is an incorrect observation of the TPO that the reasons for the loss of the parent company are on account of segments and not the content segment. In view of the precedents cited in the impugned order, we find that the ld CIT(A) rightly observed that the assessee was justified in reducing idle fixed expenses of ₹ 3,87,30,000/- from the total operating expenses and thereby arriving at net operating expenses of ₹ 18,55,63,560/-. Based on such net operating expenses, the net operating profit margin works out to ₹ 1,80,16,160/-, resulting in NCP margin percentage of 9.71%. The arithmetical mean of the weighted averages of the comparable companies as compiled by the assessee and as also referred to and accepted by the TPO in para 5. 1 of his order is 10.12%. Since the assessee’s operating margins falls within (+1-) 5% of the arithmetical mean of comparable prices, Ld. CIT(A) has rightly held that the assessee’s International Transactions with its associated enterprises during the year to be at Arm's Length. Consequently the addition of ₹ 4,34,12,348/- made to the price of international transaction was directed to be deleted by the ld CIT(A).
For the reasons enumerated above by the ld CIT(A), she rightly deleted the addition made by the Assessing Officer on account of difference in arm's length price of ₹ 4,34,12,348/-. - Decided in favour of assessee
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2015 (4) TMI 1138
TDS u/s 194H - commission for daily collection purpose in respect of pigmy deposits without deduction of tax at source - ndividuals whom commission was paid for daily collection the same was treated as salary incomeHeld that:- Tax was required to be deducted by treating the payment as ‘salary’ in respect of three individual NNND Agents, hired by banks for daily collection purposes in respect of Pigmy deposits, in view of the letter dated 12.12.2007, issued by Under Secretary (ITB) from F.No. 275/75/2007-ITB. The Assessing Officer has wrongly treated the payment made to these individuals as commission u/s 194 H of the Act.
In our opinion the Ld. CIT(A) has correctly decided the issue because if an organization is exempted then same is not liable to tax and therefore there is no need for deduction of tax. Therefore we find nothing wrong in the order of Ld. CIT(A) and confirm the same.
Non TDS on interest paid to PEC University of Technology (Pension Fund Trust) - Held that:- The scheme of the provisions for deduction of tax at source applied not only to the amount paid, which bears the character of “income”, such as salaries, dividends, interest on securities, etc., but also to gross sums, the whole of which may not be income or profits in the hands of the recipient, such as payment to contractors or sub-contractors. The purpose of the provisions for deduction of tax at source in Chapter XVII-B of the Income-tax Act, 1961, is to see that from the sum which is chargeable under section 4 for levy and collection of income-tax, the payer should deduct tax thereon at the rates in force, if the amount is to be paid to a non-resident. They are meant for tentative deduction of income-tax subject to regular assessment.
Thus from above it is clear that normally a person making payment is required to deduct the tax as per the provisions of the Act because this is a tentative deduction.Pension fund trust of the PEC University of Technology has not been approved so far and infact in reply to query raised by the branch, it was clearly admitted by the Ld. Counsel for the assessee that University has not been able to provide to the counsel any information on this. Therefore only presumption is that this trust has not been recognized so far. The income of trust which is not approved by the Commissioner is not exempted and therefore tax was required to be deducted by the bank.
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2015 (4) TMI 1137
Dutiability - egg shell waste emerged during manufacture of final product - Held that:- the Notification No. 23/2003-CE dated 31/03/2003 has granted exemption to food industries of 100% EOU on such waste. The Tribunal by Final Order in the case of same appellant has granted relief on the self-same issue which was never appealed by Revenue. - Decided in favour of appellant
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2015 (4) TMI 1136
Condonation of delay - 84 days - non-furnishing of details in support of his reason - Held that:- we do not find sufficient reasons supported by evidences displaying bonafideness on the part of the applicant and also no proper explanation is forthcoming supported by evidence for the inordinate delay of 84 days in filing the Appeal before this forum. The vague reason of delay selection of Counsel is also not supported by evidence with details thereof. By following the ratio laid by the Hon’ble Supreme Court in the case of Office of Chief Post Master General Vs. Living Media India Ltd. [2012 (4) TMI 341 - SUPREME COURT OF INDIA], we are of the view that the Applicant could not able to make out a case for condonation of the delay of 84 days. - Decided against the appellant
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2015 (4) TMI 1135
Eligibility of deduction under section 80P(2(a)(i) - denial of claim on interest income towards jewel loan and other loan on the ground that the purpose of loan issued was for commercial activities and not for agricultural activities - Held that:- We uphold the orders of the Commissioner of Income Tax (Appeals) in allowing the claim of the assessee under section 80P(2a)(i) of the Act on the interest income on jewel loan and other loans and reject the grounds raised by the Revenue in all these appeals.
AS decided in ITO Vs. M/s.Veerakeralam Primary Agricultural Co-operative Credit Society [2015 (7) TMI 557 - ITAT CHENNAI] the assessee is not a co-operative bank. The activities in the nature of accepting deposits, advancing loans etc., carried on by the assessee are confined to its members only and that too in a particular geographical area. The activities of the assessee are not regulated by the RBI or the provisions of the Banking Regulation Act. Thus, in view of the above stated facts and various decisions considered above, we do not find any infirmity in the order of the CIT(Appeals). - Decided in favour of assessee
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2015 (4) TMI 1134
Section 110(2) of the Customs Act, 1962 - Extension of time limit for investigation – issuance of writ to quash the seizure of goods - Held that: - all issues kept open to be taken up by the petitioner after final show cause notice issued.
Re-examination of material seized – Held that: - to be considered by the concerned authority i.e., respondent no.2 and appropriate orders will be passed.
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2015 (4) TMI 1133
Addition in respect of Administrative & managerial expenses related to non-agricultural activities - deduction u/s. 80P computation - Held that:- In the present case Assessee was undertaking various activities and out of the various activities, profit from some activities were exempt and from some other activities the profit was not exempt u/s 80P and accordingly A.O has re-worked out the amount eligible for deduction u/s. 80P. We find that ld. CIT(A) while deciding the issue in favour of the Assessee has given a finding that Assessee has maintained separate set of books of accounts for income eligible and non-eligible for deduction u/s. 80P and the invocation of Rule 3 by A.O to allocate the exempt profits was arbitrary and unjustified. He has also noted that A.O has not brought on record what he meant by Rule 3 and how it was applicable to the case. He has further noted that A.O has applied an unknown formula of Rule 3 which was not correct. Before us, Revenue has not brought any material on record to controvert the findings of ld. CIT(A). In view of the aforesaid facts, we find no reason to interfere with the order of ld. CIT(A) and thus the grounds of Revenue are dismissed. - Decided in favour of assessee.
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2015 (4) TMI 1132
Addition in respect of Administrative & managerial expenses related to non-agricultural activities - deduction u/s. 80P computation - Held that:- In the present case Assessee was undertaking various activities and out of the various activities, profit from some activities were exempt and from some other activities the profit was not exempt u/s 80P and accordingly A.O has re-worked out the amount eligible for deduction u/s. 80P. We find that ld. CIT(A) while deciding the issue in favour of the Assessee has given a finding that Assessee has maintained separate set of books of accounts for income eligible and non-eligible for deduction u/s. 80P and the invocation of Rule 3 by A.O to allocate the exempt profits was arbitrary and unjustified. He has also noted that A.O has not brought on record what he meant by Rule 3 and how it was applicable to the case. He has further noted that A.O has applied an unknown formula of Rule 3 which was not correct. Before us, Revenue has not brought any material on record to controvert the findings of ld. CIT(A). In view of the aforesaid facts, we find no reason to interfere with the order of ld. CIT(A) and thus the grounds of Revenue are dismissed. - Decided in favour of assessee.
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2015 (4) TMI 1131
Assessable value - manufacturing activity - whether activity of erection, installation and commissioning of the equipment is a service and is post manufacturing activity and nothing to do with the manufacturing activity and therefore the charges recovered for the said activity will not form part of the assessable value? - Held that:- We find that it is not disputed by the Revenue that the contract receipt is relating to erection, installation and commissioning charges for the transformer and voltage stabilizer. The said erection, installation and commissioning is done by the appellant in the customer’s premises. Further the goods when cleared from the factory are ready to use and complete in all respects. Erection, installation and commissioning in the present facts and circumstances of the case cannot be considered as part of the manufacturing activity of the goods and would therefore not form part of the assessable value of the goods. These activities are post manufacturing services. In view of the Hon’ble Supreme Court’s judgment in the case of Thermax Limited (1998 (4) TMI 134 - SUPREME COURT OF INDIA ), we allow the appeal in favour of assessee.
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2015 (4) TMI 1130
Constitutional validity of Rule - Proviso to rule 3(2)(c) of the KVAT Rules - whether is a provision which is discriminatory and also ultra vires of section 30(1) of the KVAT Act? - Deduction of quantity discount (quarterly scheme discount) - Assessing Officer has held that quantity discount (quarterly scheme discount) is not a allowable discount as the sale is not relatable to sale transactions in respect of which the invoices were raised and thereby added the amount of quarterly discount to taxable turnover - Held that:- issue regarding constitutional validity has reached finality [2008 (7) TMI 862 - KARNATAKA HIGH COURT] and issue on hand relating to claim deduction of “discount component” from “taxable turnover” having been laid to rest by Division Bench of this court in [2014 (4) TMI 590 - KARNATAKA HIGH COURT] which is now pending before Apex Court in SLP(Civil) - Since impugned order is an appealable order this court refrains to exercise the writ jurisdiction. Hence, Writ Petitions stands dismissed.
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2015 (4) TMI 1129
This court is not inclined to entertain these writ petitions since petitioner has not exhausted efficacious and alternate remedy available under law. Hence, reserving liberty to question the same before appellate authority, present writ petitions stands rejected.
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2015 (4) TMI 1128
Challenge to the show cause notice - demand of service tax - Held that:- Petitioner instead of replying to show cause notice has approached this Court assailing the correctness of same on various grounds. - without expressing any opinion on the contentions raised, writ petitions are dismissed.
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2015 (4) TMI 1127
Unexplained cash credit - Held that:- In the absence of material evidence, the revenue has treated these advances as a cash available in the hands of the assessees. Similar is the position before us as nothing is placed to prove these facts. Income Tax Appellate Tribunal is right in disbelieving the version of the assessee regarding the advances paid for the purchase of agricultural lands during the relevant years
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2015 (4) TMI 1126
Allowability of depreciation to assessee-trust - Held that:- Revenue's understanding of double deduction is without legal basis. Allowability of depreciation in respect of capital expenditure incurred by the assessee-trust and for the purpose of section 11 confirmed. See S. C. Dharmadhikari [2014 (10) TMI 540 - BOMBAY HIGH COURT] and A. K. Menon JJ [2014 (12) TMI 145 - BOMBAY HIGH COURT] - Decided against revenue
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2015 (4) TMI 1125
Levy of penalty - under-reporting of sales turnover - bonafide error - Held that:- A reading of the order of the Tribunal reveals that, on facts, there is no dispute that there was no wilful non-disclosure, but the claim for deduction from the total turnover, viz., the component of sales tax collected, was negatived, as the assessee did not produce any material in support of their claim.
Insofar as levy of penalty is concerned, the finding and the reasoning of the Tribunal affirming the order of the Appellate Assistant Commissioner that there was no willfulness attributable to the dealer and therefore penalty under Section 16(2) of the Act is not leviable, does not warrant any interference. - No penalty - Decided against the revenue.
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2015 (4) TMI 1124
Refund - Claim of exemption / rebate - sunflower cake and rice bran used as input in the extraction of sunflower oil/bran oil - refund was sought being eligible input rebate for the said period which had not been claimed in the original returns filed - Held that:- Infact the Division Bench has clearly held in M/s.M.K.Agro Tech (Private) Limited [2015 (1) TMI 854 - KARNATAKA HIGH COURT] to the effect that where a dealer is in the business of manufacture of only one product namely oil which is liable to tax and merely because in the process of manufacture of oil certain ancillary or by-product arises which is sold and which is exempted from tax, that would not attract the provisions of Section 17 of the Act relating to partial rebate.
Petitioners would be entitled for the relief sought for in the present writ petitions. - Decided in favor of appellant.
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2015 (4) TMI 1123
Disallowance of broken period interest - Held that:- The interest received on due date, without deducting the broken period interest paid, amounts to double taxation. According to AS 13, read with the I.T. Act, 1961, the preacquisition element of interest cannot be included in the cost of investment, as such the broken period interest is to be treated as revenue expenses. As relying on assessee's own case [2014 (3) TMI 724 - ITAT HYDERABAD] broken period of interest is an allowable expense - Decided against revenue
Disallowance of amortization provided on Govt. securities - Held that:- As relying on assessee's own case [2014 (3) TMI 724 - ITAT HYDERABAD] HTM category constitutes stock in trade of the assessee bank, the method adopted by the assessee for amortizing the premium is as per the established accounting standards. The securities under HTM category is held by the assessee as stock in trade, the claim for amortization made by the assessee is valid - Decided against revenue
Disallowance of contribution to the gratuity fund - Held that:- Section 43B permits a deduction in respect of any payment by way of' contribution to a provident fund or superannuation fund or any other fund for the welfare of employees in the year in which the liability is actually discharged. In the present case the appellant has not made any provision for gratuity U/s.40A(7) as on 31-03-2010 as the total amount has been paid on 31-03-2010 and accordingly the said payment of gratuity of ₹ 5,61,93,000/- is an allowable deduction U/s.43B of the I.T.Act, 1961 - Decided against revenue
Disallowance of provision for staff fraud - addition on the ground that provision for frauds cannot be equated with provision for bad and doubtful debts, and frauds were not let off or written off normally and the embezzled money usually recovered - Held that:- As relying on assessee's own case [2014 (3) TMI 724 - ITAT HYDERABAD] staff frauds are similar to embezzlement by an employee and therefore qualifies as an allowable expenditure u/s 37 of the Act. The loss by embezzlement by employees should be treated as incidental to business and the same should be allowed as deduction in the year in which it is discovered - Decided against revenue
Addition on account of treating the unrealized interest on NPAs as income - Held that:- Respectfully following the decision of the ITAT Hyderabad, in assessee’s own case [2014 (3) TMI 724 - ITAT HYDERABAD], the CIT (A) had no hesitation in holding that unrealized interest on NPAs constitute income to the assessee on the principle that the RBI directives were only in the context of presentation of NPAs in Balance Sheet and presentation of Balance Sheets have nothing to do with taxable income, which has to be computed as per the provisions of the Income Tax Act.- Decided against revenue
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2015 (4) TMI 1122
Imposition of penalty - Unrecorded 472 tins of oil - No evidence to prove that it have been recorded in the books of accounts or supported by bills and vouchers - Held that:- the Deputy Commissioner (Appeals) who had analysed the matter at a greater detail after going through the books of accounts, stock register and purchase/sale vouchers came to the conclusion that the assessee was unable to prove only two tins of oil with a value of ₹ 900, accordingly on a value of ₹ 900 penalty of ₹ 270 was sustained. The Revenue has been unable to contradict the finding of fact recorded by the two appellate authorities. Therefore, no infirmity, illegality or perversity found in the order passed by the Tax Board. - Decided against the revenue
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