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Case Laws
Showing 221 to 240 of 1760 Records
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2015 (9) TMI 1548
Penalty levied u/s 271(1)(c) - capital gain - Transfer exigible to tax by reference to Section 2(47)(v) read with Section 53-A of the Transfer of Property Act, 1882 - JDA entered by assessee - Held that:- On perusal of the case of the assessee bunched alongwith the case of C.S Atwal [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] we find that the High Court has decided the quantum issue in favour of the assessee by holding that the assessee was liable to pay tax on capital gain earned on only that portion of the land which had been duly transferred by way of Registered sale deed and consideration relating to which had been received by the assessee. With respect to the balance land, the High Court held that no transfer of the same had taken place even by virtue of the JDA and hence the assessee was not exigible to capital gain tax on the same. Also see Shri Balwinder Singh case[2015 (8) TMI 1384 - ITAT CHANDIGARH ]
In view of the above, since the addition made to the income of the assessee does not survive, the question of levy of penalty u/s 271(1)(c) does not arise at all. - Decided in favour of assessee.
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2015 (9) TMI 1547
TPA - selection of comparable - Held that:- The assessee is a products development company and has developed innovative product lines, thus companies Functionally different and diversified operations with that of assessee need to be deselected from final list of comparable.
Expenditure incurred on computer spare parts and consumables - nature of expenditure - Held that:- RAM is a frequently replaceable part of the computer and does not have any enduring benefit to assume the character of a capital expenditure and hence we allow the same. See CIT v/s Southern Roadways [ 2007 (6) TMI 193 - MADRAS HIGH COURT ]
TDS u/s 194C - Non deduction of tds - disallowance of payment made to Club Cabana and Golden palms and for business training and conference expenses u/s. 40(a)(ia) - Held that:- As in the case of East India Hotels Ltd. v. CBDT [2009 (3) TMI 8 - BOMBAY HIGH COURT] wherein it was held that services rendered by hotel to its customers by making available certain facilities/amenities like providing multilingual staff, 24 hour service for reception, telephones, select restaurants, bank counter, beauty saloon, barber shop, car rental, shopping centre, laundry/valet, health club, business centre services, etc. do not involve carrying out any work which results into production of the desired object and, therefore, would be outside the purview of section 194C of the Act. Thus we are of the opinion that payment made to Club Cabana and Golden Palms are outside the purview of section 194C of the act. The appeal on this issue is allowed.
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2015 (9) TMI 1546
Period of limitation for taking dispute at belated stage - industrial dispute - Held that:- Although there is no limitation prescribed under the Act for making a reference Under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry.
On the application of the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a non-existing dispute.
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2015 (9) TMI 1545
Assessment u/s 153C - validity of notice against non existent entity - Held that:- In the present case the defect of the AO in framing an assessment on 31st December 2010 against the Assessee by which time it was not in existence on account of its merger with WPCL (effective 1st April 2008) was not a curable defect. Consequently, the impugned order of the ITAT setting aside the order of the CIT (A) does not suffer from any legal infirmity. - Decided against revenue
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2015 (9) TMI 1544
Depreciation claimed by the Assessee on its block of assets - Held that:- There has been no occasion for the ITAT to seriously consider whether, for the AYs in question, there were any working units of the Assessee and if, in fact, the entire block of assets in respect of which depreciation was claimed was actually put to use. The ITAT also did not consider that there is no longer a requirement for the COD to grant permission to the Revenue to file an appeal.The Court accordingly sets aside the impugned order of the ITAT on the issue of depreciation and remands the appeals to this extent to the ITAT for a fresh decision in accordance with law.
Quarry Development Expenditure claimed as revenue expenditure - Held that:- It is seen that even before the AO, the Assessee offered an explanation for treating one part of the Quarry Development Expenditure pertaining to the removal of the over burden etc. at the mines which was utilized for capital works like laying of roads, stock yards crushed ramp etc. as capital expenditure whereas the rest of the expenditure was claimed as revenue expenditure.The concurrent order of the CIT (A) as well as the ITAT on this aspect accepting the explanation of the Assessee does not appear to be suffering from any legal infirmity. The Court accordingly declines to frame a question on this issue.
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2015 (9) TMI 1543
Time limitation - dismissal of appeal on the ground that the same was filed beyond the statutory time limit including the condonable period prescribed in the Central Excise statute - Held that: - the appellant was diligently perusing its remedy for resolving the dispute, the appellant was not guilty of negligence or lapse or inaction for delaying the process in filing the appeal before the ld. Commissioner (Appeals) within the stipulated time limit prescribed in the statute. Thus, the case of the appellant should be governed u/s 14 of the Limitation Act, 1963. Therefore, the time exhausted in perusing the matter with the adjudicating authority should be excluded for the purpose of computation of the limitation period provided in the statute for filing the appeal before the ld. Commissioner (Appeals) - since the appeal was filed by the appellant before the ld. Commissioner (Appeals) on 03.01.2011, upon receipt of the communication from the adjudicating authority on 28.12.2010, filing of the appeal is not barred by limitation of time - matter remanded back to the ld. Commissioner (Appeals) for deciding the appeal on merits - appeal allowed by way of remand.
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2015 (9) TMI 1542
Penalty - reversal of wrongly taken CENVAT credit - respondent case is that the service tax and the interest thereon were reversed prior to issuance of SCN - Held that: - there was no necessity for issuance of SCN in view of the fact that the entire cenvat credit in dispute had been reversed by the Respondent prior to initiation of the recovery proceedings by the Department. In this regard, Section 11A (2B) of the CEA, 1944 mandated that when the duty has been paid on the basis of assessee's own ascertainment, no SCN should be issued and for all statistical and practical purposes, the proceedings have to be closed - penalty set aside - appeal dismissed - decided against Revenue.
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2015 (9) TMI 1541
Rescinding of N/N. 17/98-C.E., dated 18-7-1998 - demand raised on account of rescinded notification - time limitation - Held that: - there was no deliberate attempt to evade payment of Excise duty and there was no suppression or misrepresentation of any fact. The SCN for raising demand was clearly issued more than one year and four months after supply of the figures by the respondent - no substantial question of fact arises in the present case and the matter has been decided on its peculiar facts and circumstances while keeping in mind that a SCN has been issued after a period of six months from the date of knowledge - appeal dismissed - decided against appellant.
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2015 (9) TMI 1540
Entitlement to claim benefit of deduction under section 80P - assessee is providing credit facilities to Class ‘B’ Members or associate Members who are not recognized as Members of the society - Held that:- We find that the issue of whether the assessee is entitled for deduction under section 80P(2) was considered in assessee’s own case for the assessment years 2007-08 to 2009-10 and held that assessee is entitled to claim benefit under section 80P(2) CIT(Appeals) has denied deduction to the assessee only for the reason, that credit facilities have been extended to a particular class of Members, who are not normal Members of the society. We do not agree with the CIT(Appeals) on the issue.
As in case M/s. SL(SPL) 151, Karkudalpatty Primary Agricultural Co-operative Credit Society Ltd. Versus The Income Tax Officer [2014 (5) TMI 556 - ITAT CHENNAI] wherein held as evident from the definition of ‘member’ u/s 2(16) that the same includes an ‘associate member’ u/s 2(6) appended therein. In other words, the ‘nominal’ members also enjoy statutory recognition as per the Act. The net result is that once the ‘nominal’ members or non-voting members are themselves included in the definition of ‘members’, they satisfy the relevant condition imposed by the legislature u/s 80P(2)(a)(i). Under the very provision that for the purpose of impugned deduction, it is irrelevant so far as classification of the members in ‘A’ or ‘B’ category is concerned. We follow the same and accept contentions of the assessee - Decided in favour of assessee
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2015 (9) TMI 1539
Computation of deduction u/s 10A - Whether Tribunal was justified holding that there was nothing on record to show that the profits arrived by the assessee in respect of the 10A unit carrying on the business of manufacturing of sewing machine needles was not in normal course of business and that the abnormally high profit was due to extraordinary arrangement between the assesee and the German Company entered into only with a view to boost the profits of the assessee and therefore, allowing deduction ? - Held that:- The question as proposed stands concluded against the Appellant Revenue by the decision of this Court for the Assessment Year 2004-05 [2012 (9) TMI 407 - BOMBAY HIGH COURT ] and AY 2005-06 [2015 (6) TMI 1044 - BOMBAY HIGH COURT] wherein held Section 10A is a provision which is in the nature of a deduction and not an exemption - the deduction under Section 10A has to be given effect to at the stage of computing the profits and gains of business - Section 80B(5) defines for the purposes of Chapter VI-A “gross total income” to mean the total income computed in accordance with the provisions of the Act, before making any deduction under the Chapter - Decided against revenue
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2015 (9) TMI 1538
Detention of goods - the consignee is not a registered dealer under the KVAT Act - demand of security deposit - petitioner claim that goods should not be detained for want of registration under the KVAT Act, as the petitioner is only a drug and food testing laboratory, which purchases goods from other States on the strength of online Form No.16, which itself proves that the goods are purchased by the petitioner for own use - Held that: - this Court granted an interim direction to release the goods detained on executing a simple bond.
Detention of goods - the item chemicals and process pumps are not considered for own use purpose under the KVAT Act - petitioner case is that they are only a drug and food testing laboratory, which purchases goods from other States on the strength of online Form No.16, which itself proves that the goods are purchased for own use - Held that: - the officer in charge of the notified area or the empowered officer can detain the goods under transit covered by a certificate of ownership in Form No.16, if he has reason to suspect that the goods are transported into the State by persons other than registered dealers on the pretext of 'own use'. When the 2nd respondent in these writ petitions has ample power by virtue of sub-section (2) of Section 47 of the KVAT Act to intercept the goods in transit and demand security, if he has reason to suspect that the petitioner is attempting to evade payment of the tax due under the said Act, the issuance of Ext.P4 detention notices cannot, in any way, be termed as an act done without any authority of law, warranting an interference of this Court under Article 226 of the Constitution of India. Merely for the reason that the goods are transported into the State on the strength of declarations made in Form No.16, the petitioner is not legally entitled for an order restraining the respondents and all check post authorities in the State from detaining such goods for want of registration under the KVAT Act. Therefore, the petitioner is not entitled for the reliefs prayed for in these writ petitions.
Petition dismissed.
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2015 (9) TMI 1537
CENVAT credit - railway track - denial on the premise that railway track is neither input nor capital goods as per CCR, 2004 - Held that: - railway track which is exclusively used by the appellant for transportation of the goods inside their factory which resulted in manufacturing of final product - reliance placed in the decision of the case of Jayaswal Neco Ltd. vs CCE, Raipur [2015 (4) TMI 569 - SUPREME COURT], where it was held that the use of railway tracks is related to the actual production of goods and without the use of the said railway track, commercial production would be inexpedient - appellant is entitled to take cenvat credit on railway track - appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1536
Refund claim - payment of duty under protest - rejection on account of time limitation - the refund claim has been filed after one year from the date of the adjudication order - Held that: - Sub-section (1) of Section 11B provides the time limit of one year from the relevant date for filing the refund application. In the 2nd Proviso contained therein, it has been provided that the limitation of one year shall not apply where any duty and interest has been paid under protest - the refund application filed on 27.12.2011 pursuant to the favourable adjudication order dated 01.02.2010 cannot be considered as barred by limitation of time and thus, the appellant should be entitled for refund of the amount in question paid under protest - appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1535
Disallowance u/s. 14A - Held that:- No disallowance u/s. 14A can be made in a year in which no exempt income has been earned or received by the assessee. See Cheminvest Limited Versus Commissioner of Income Tax-VI [2015 (9) TMI 238 - DELHI HIGH COURT ] - Decided in favour of assessee
Disallowance u/s. 41(1) - Held that:- As gone through Annexure XIII of the statement of account, which is details of Sundry Creditors – Unmoved. We find force in the contention of the learned counsel. The balance outstanding in the name of Acquatech Proflow Pipe Lining Pvt. Ltd, is not ₹ 19,84,908/- but ₹ 9,67,180/- and as per the list of sundry debtors, Tolani Fabricators is debtor and not creditor. Therefore, atleast to this extent i.e. balance of Tolani Fabricators cannot be added u/s. 41(1) of the Act. We accordingly, direct the AO to delete the addition of ₹ 10,08,641/-. In so far as the balances of other creditors are concerned, in our considered opinion, the claim of the assessee needs to be verified at the assessment stage. We, therefore, restore the issue to the file of the AO. The assessee is directed to demonstrate that the impugned creditors have been written back in the subsequent years to the satisfaction of the AO and the AO is directed to verify the same and if the claim of the assessee is found correct the additions should not be made.
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2015 (9) TMI 1534
Valuation of service - Service of manpower supply - the decision in the case of SAI LABOUR CONTRACTOR Versus COMMISSIONER OF CENTRAL EXCISE [2014 (1) TMI 1555 - CESTAT MUMBAI] contested, where it was held that The appellants are receiving the gross amount in respect of the labour supplied to the service recipient hence in view of the provisions of Section 67 of the Finance Act, the appellants are liable to pay service tax on the gross amount received - we have carefully perused the material available on record. In our considered opinion, we do not see any good ground to interfere with the judgment and order(s) passed by the Tribunal - appeal dismissed - decided against appellant.
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2015 (9) TMI 1533
Benefits of N/N. 15/2004-S.T., dated 10-9-2004 - denial on the ground that the appellants have not included the value of the pipes and other materials provided by the service recipient viz., M/s. Gas Authority of India Ltd. and M/s. Mahanagar Gas Ltd. etc - Held that: - the issue is no more res integra in view of the Larger Bench decision of the Tribunal in the case of Bhayana Builders (P) Ltd. v. CST Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], wherein it has been held that the value of goods and materials supplied free of cost by a service recipient to the provider of the taxable construction service, being neither monetary or non-monetary consideration paid by or flowing from the service recipient, accruing to the benefit of service provider, would be outside the taxable value or the gross amount charged, within the meaning of the later expression in Section 67 of the Finance Act, 1994 - appeal allowed - decided in favor of appellant.
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2015 (9) TMI 1532
Permanent Establishment in India under Article 5(2)(k) of India UK DTAA - Held that:- This matter has been decided against assessee by the Tribunal in assessment year 1995- 96 again been followed by the Tribunal in AYs 1996-97 & 1997-98 wherein held specific provisions for professional services or independent personal services or included services exist under art. 15, when services are rendered by the enterprise, art. 5(2)(k) will come into play, and when services are rendered by an individual, art. 15 will find application. Therefore, while we agree with the learned counsel that art. 15 will not be applicable on the facts of the present case, this finding does not really come to the rescue of the assessee since, as we have already held, the assessee did have a PE in India under art. 5(2)(k) of the India-UK tax treaty, and, accordingly, profits attributable to the PE are taxable under art. 7 of the India-UK tax treaty.
The very plea of the assessee proceeds on fallacy that arm's length price adjustment can be made in respect of the transactions with the clients of the assessee. The revenues earned by the assessee are to be taken at actual figures and no adjustments are permissible in the same is to be rejected as well. The action of the authorities below is confirmed on this count as well. - Decided against assessee
Reimbursement of expenses - considered as ‘income’ by the revenue - Held that:- As decided by Tribunal in AY 1995-96 we are inclined to uphold the grievance of the assessee. The reimbursements received by the assessee are in respect of specific and actual expenses incurred by the assessee and do not involve any markup, there is reasonable control mechanism in place to ensure that these claims are not inflated, and the assessee has furnished sufficient evidence to demonstrate the incurring of expenses. There is thus no good reason to make any addition to income in respect of these reimbursements of expenses.- Decided in favour of assessee
Taxability of income related to work performed in India - Held that:- The Tribunal though in AY 1995-96 had decided this issue against the assessee after invoking the principle of “force of attraction”, however, later on, the Special Bench of the Tribunal in the case of ADIT vs Clifford Chance reported in [2013], (2013 (6) TMI 544 - ITAT MUMBAI ) has decided the issue in favour of the assessee and against the revenue, whereby the specific finding of the Tribunal on this issue has been reversed. Accordingly, following the binding precedence of Special Bench in the case of ADIT vs Clifford Chance (supra). We hold that the profits, which are attributable to the PE can only be assessed in India and thus ground no.1 raised by the revenue stands dismissed.
CIT(A) excluding receipts from Serium Institute of India Ltd - Held that:- As it has been admitted by both the parties that this issue is not arising in this year and, therefore, no adjudication is required. Accordingly, the issue raised is treated as dismissed as there is no receipt of this kind in this year.
Denial of benefit under Indo-UK DTAA - Held that:- It has been admitted that the treaty benefit of Indo-UK DTAA has been allowed by the Tribunal in the earlier years, therefore, in AY 1995-96, this issue has been concluded in favour of the assessee as held that the assessee was indeed eligible to the benefits of India-UK tax treaty, as long as entire profits and the partnership firm are taxed in UK – whether in the hands of the partnership firm though the taxable income is determined in relation to the personal characteristics of the partners, or in the hands of the partners directly.
Charging of interest u/s 234D as introduced from 1st June, 2003 will have retrospective effect. Accordingly, following the binding judicial precedence, we hold that interest u/s 234D will be leviable in case of the assessee for this year also. See case of Indian Oil Corporation Ltd [2012 (9) TMI 517 - BOMBAY HIGH COURT]
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2015 (9) TMI 1531
Rectification of mistake - error is apparent because accounting code given to this petitioner is correctly mentioned at Form G.A.R.-7 - Held that: - This error has been committed by the Accountant of this petitioner who is common for this petitioner as well as for respondent No. 3. The name of the petitioner as well as respondent No. 3 is same. This being purely a clerical error, we, hereby, direct respondent Nos. 1 and 2 to treat Form G.A.R.-7 which is at Annexure 3 series as of this petition having Service Code Number as ALBPS4133JST001. Service Code mentioned in G.A.R.-7 Form is wrongly mentioned and instead of the same, the aforesaid service code shall be inserted. Similarly, there is an error committed by this petitioner in narrating the address of this petitioner in G.A.R.-7 Form which is at Annexure 3 series - petition allowed - decided in favor of petitioner.
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2015 (9) TMI 1530
Shortage in stock of molasses - storage loss - demand of duty - whether shortage detected during stock taking was actual shortage and whether applicant can claim shortage detected to be storage loss due to natural causes? - Held that: - The shortage due to storage loss if any is not reflected in returns. If there was a storage loss at all the applicant as per general industry practice should have approached the jurisdictional Central Excise Authorities for remission of duty. Government here finds that it is an undisputed fact that the applicant has not informed about the shortage of molasses to the jurisdictional Superintendent and has neither filed an application under Rule 21 of the Central Excise Rules, 2002 with the jurisdictional authorities nor made any claim for such remission. If it were a case of storage loss the applicant should have approached the jurisdictional Central Excise Authorities and it would have also reflected in their records and returns.
The matter is that pertaining to the non-payment of duty on the quantity of molasses found short and not a case of loss of goods due to storage loss. Hence the instant case does not fall with the purview of ambit and scope of provisions contained for Section 35EE read with proviso to Section 35B(1) of the Central Excise Act, 1944 under which the instant revision application has been made.
The revision application filed before Central Government in terms of Section 35EE of Central Excise Act, 1944 is beyond jurisdiction - revision application dismissed for being non-maintainable.
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2015 (9) TMI 1529
Validity of re-assessment proceedings - reference made by the AO to the TPO - Held that:- Section 92 CA (1) of the Act states that where any person "being the assessee" has entered into an international transaction "in any previous year" and the AO considers it necessary or expedient to do so, he may with the previous approval of the Commissioner refer the "computation" of ALP to the TPO under Section 92 C. These provisions proceed on the premise that the AO is in seisin of assessment proceedings when he forms an opinion about referring the issue of determination of ALP to the TPO. They do not envisage the AO making a reference to the TPO the issue of determination of ALP when there is no assessment proceedings pending before him.
In the present case, the reference by the AO of the issue of determination of ALP to the TPO was itself without jurisdiction. The resultant report of the TPO could not be acted upon for issuance of the notice of re-assessment to the Assessee under Section 148 of the Act. Moreover, in the present case, the Court notices that the reasons for reopening were recorded by the AO subsequent to the reply received from the Assessee to the notice.
Consequently, the Court finds no legal infirmity in the impugned order of the ITAT holding that the re-assessment proceedings were legally unsustainable. - Decided in favour of assessee
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