|
Advanced Search Options
Case Laws
Showing 241 to 260 of 1829 Records
-
2017 (1) TMI 1592 - CHHATTISGARH HIGH COURT
CENVAT credit - inputs - whether structural items such as M.S. Flats, Channels, Plates, Beams, etc., which are used to fabricate structures to house the coal washing plant are covered within the definition of input given in Rule 2(k) of the CCR 2004? - Held that:- These inputs have been used to fabricate coal washing plant. The coal washery is an integral part of the unit. There can be no coal washery without the coal washing plant - credit cannot be denied - appeal dismissed - decided against Revenue.
-
2017 (1) TMI 1591 - ITAT AHMEDABAD
Revision u/s 263 - under statement of book profit under section 115JB - Held that:- The assessee has claimed the adjustment under the head "provision" which when understood on ordinary and natural sense will give rise to presumption of it being a provision. It was for the assessee to rebut the presumption by proper explanation which has not been done. No enquiry on it being different from mere provision has been conducted by the AO.
The order passed by the AO in discharge of its quasi-judicial functions is clearly erroneous and prejudicial to the interest of the Revenue as noted. Certain explanation has been given by the assessee on merits to justify that it is actual diminution and not mere provision. However, that will become relevant only at the stage of making assessment therein after requisite enquiry in this regard. Thus at the threshold, for invoking the jurisdiction, the conclusion of the CIT of the order being erroneous and prejudicial to the interests of the Revenue cannot be faulted.
Referring to the second limb of arguments on behalf of the assessee that the amendment to section 115JB as per clause(i) thereto has been made with retrospective effect after filing of the return of income and therefore the assessment passed based on the return of income as per the law as stood at the time of filing of the return could not have been disturbed by the AO we do not find any merit in this line of argument either.
The record for the purpose of section 263 as per Explanation-1 thereof would mean all records relating to assessment proceedings available at the time of examination by the Commissioner. Therefore, any development in law which has taken place even after the assessment also can be taken cognizance of by the CIT in exercise of power under section 263 of the Act. - Decided against assessee.
-
2017 (1) TMI 1589 - CESTAT CHENNAI
Principles of Natural Justice - fresh examination of matter requested - Held that:- The ld. Adjudicating authority directed to grant a fair opportunity of hearing to the appellant.
Penalty - Held that:- There shall be no penalty in view of the interpretation of law involved in the case.
Appeal allowed in part and part matter on remand.
-
2017 (1) TMI 1588 - ITAT MUMBAI
Addition u/s 41 - refund of entry tax receivable from the Government of Andhra Pradesh - taxability in a instant year - Held that:- The levy of income tax is on real income - the crediting of amount in the P&L account itself would not be conclusive to say that the corresponding income has accrued to the assessee, so as to be liable for taxation - hence we hereby direct that the lower authorities have erred in invoking the provisions of section 41 to include a sum of ₹ 2,07,80,623/- in the total income - Decided in favor of assessee.
Taxation of royalty income received from its overseas subsidiary - Non taxability in India - DTAA between India and Egypt - Held that:- It is claim which involves a point of law with necessary facts being on record - in such a situation, even if, the claim has not been made at an earlier stage, income-tax authorities are entitled to admit such a claim - hence we deem it fit and proper to admit the claim of the assessee and restore it to the file of the AO for adjudication on merits after giving reasonable opportunity of being heard to the assessee - partly allowed in favor of assessee.
-
2017 (1) TMI 1587 - ITAT KOLKATA
Entitlement to exemption from Union tax - whether the income of the assessee is taxable under the Income tax Act? - constitution of assessee u/s 11 of the West Bengal Town and Country (Planning and Development) Act, 1979 under the Govt. of West Bengal and engaged in the development activities - Held that:- As in A.Yrs. 2004-05, 2006-07 and 2007-08 for assessee's own case herein [2015 (8) TMI 1443 - ITAT KOLKATA] the Co-ordinate Bench remanded similar issue to the file of AO for fresh adjudication as per law
Exemption u/s 11 - assessee as not registered u/s 12A - Held that:- On perusal of the records we find that the ld. CIT(Exemption) has granted registration certificate u/s 12AA of the Act vide its order dated 16th November, 2016. It is also important to note that the registration was granted w.e.f. 01.04.2009. In view of the above we find that the assessment order has been passed by the AO without considering the fact that the assessee is entitled for exemption u/s 11 of the Act as this fact has not been considered by the AO at the time of assessment. We are inclined to restore this ground of appeal to the AO for fresh adjudication
-
2017 (1) TMI 1586 - ITAT DELHI
Disallowance of claim of deduction u/s 80(IA) - Inland Container Depot and Container Freight stations which are claimed to be "inland port" - Held that:- As decided in Container Corporation of India Ltd Vs. ACIT [2012 (5) TMI 260 - DELHI HIGH COURT] having regard to the provisions of the Customs Act, the communications issued by the CBEC as well as the Ministry of Commerce and Industry, the object of including "inland port" as an infrastructure facility and also having regard to the fact that customs clearance also takes place in the ICD, the assessee's claim that the ICDs are Inland Ports under Explanation (d) of Section 80IA(4) requires to be upheld.
Thus assessee is eligible for deduction u/s 80IA of the Act on income derived from ICDs and CFS as they are held to be “inland port” which is classified as an infrastructure facility u/s 80IA(4).- Decided in favor of assessee.
Disallowance being registration fees paid to the Ministry of Railways for movement of container trains on India Railways - as per assessee right to ply on Indian Railways is a "commercial right" and therefore depreciation @25% was claimed - Held that:- As Assessee has earned a benefit of enduring nature of plying on Indian Railway tracks for a period of 20 years , we do not have any hesitation to hold that it is a capital asset in the form of right to operate. It is a valuable commercial right available to the assessee for a considerable long period therefore we are of the view that the assessee has acquired a "commercial right‟ which is eligible for depreciation u/s 32(1)(ii) - Appeal of the assessee is allowed holding that the assessee has acquired intangible assets which is a valuable commercial right for ₹ 50 crores and same is eligible for depreciation u/s 32(1)(ii) of the Act
Addition on assets retired from active use on account of obsolescence and condemnation - Held that:- As decided in assessee' own case as relying on CIT Vs. Yamaha Motor India Pvt. Ltd has considered an identical issue in [2009 (8) TMI 27 - DELHI HIGH COURT] as long as the machinery is available for use, though not actually used, it falls within the expression " used for the purposes of the business" and the assessee can claim the benefit of depreciation.Looking at the facts from this point of view, an actual user is not required as has been contended by the Revenue - Decided against revenue
Addition on termination of contracts - Held that:- The facts are undisputed that the claims are unsettled as stated by the parties as the matter is pending before the Hon'ble Delhi High Court against the Arbitration Tribunal Award. In view of this the matter is still not attained finality and therefore the sums received by the assessee by invoking the bank guarantee cannot be taxed as an income. The ld DR could not controvert that the claims have not reached finality and in that circumstances how the order of the ld CIT(A) is erroneous. - Decided against revenue
Annual amortization of expenditure on leasehold land - Held that:- CIT(A) wherein relying upon the decision of the Hon'ble Supreme Court in case of Mysore Minerals vs CIT (1999 (9) TMI 1 - SUPREME COURT) the claim of the assessee is allowed. It was further noted by him that the ld Assessing Officer has not disputed the fact that the assessee has taken possession of the building used it for the purpose of business and full consideration has been paid by the company. Even before us this could not be controverted by revenue. - Decided against revenue
Addition on account of income from undelivered container - Held that:- Assessee has not provided any details before the ld Assessing Officer. It is also not clear whether the custom duty was paid during the year or was also outstanding at the end of the year. Further the ld CIT(A) has stated that the assessee has shown current liability the sum of ₹ 2.54 cores is liable to be refunded back to the customers. However, no such details about who are those customers and when the sum has been refunded. In view of this we set aside ground No. 5 of the appeal of the revenue back to the file of the ld Assessing Officer with a direction to the assessee to provide complete details
Rolling stock is part and parcel of rail system and accordingly, it is eligible for claim of deduction u/s 80IA of the Income Tax Act
Disallowance of depreciation on land - Held that:- We are conscious about the difference between amortization of leasehold premium paid and equalization of lease charges and therefore both cannot be compared. It is also not ascertained by the lower authority whether the claim of the assessee on depreciation can be considered u/s 32(1)(ii) of the Income Tax Act or not and this fact is not available on record we set aside this ground of appeal of the revenue back to the file of Assessing Officer with a direction to the assessee to furnish the complete details of the claim of the assessee clearly bringing out the facts whether it is a claim of the depreciation or whether it is a claim of the allowability of expenditure.
Disallowance of depreciation at higher rate on computer peripherals @60% instead of 25% - Held that:- Now the issue is squarely cover in favour of the assessee by the decision of the Hon'ble Delhi High Court in case of CIT Vs. BSES Yamuna power Ltd (2010 (8) TMI 58 - DELHI HIGH COURT) depreciation @60% on account of computer peripherals is allowed.
-
2017 (1) TMI 1585 - ITAT DELHI
Scope of deduction u/s 80 IC - disallowance of interest income received on FDR’s, which were pledged as performance guarantee, in terms of the contract awarded by UPCL for manufacture of electronic meters - Held that:- Following the assessee’s own case [2015 (1) TMI 1388 - ITAT DELHI] of the assessee is dismissed.
-
2017 (1) TMI 1584 - ALLAHABAD HIGH COURT
TDS u/s 194J - TDS liability for transmission of electricity u/s 194J - "Technical Services" - Held that:- Mere involvement of technology will not bring something within the ambit of "Technical Services" as defined in Explanation (2) of Section 9(1)(vii) for the reason that here, under Act, 1961, term "Technical Services" has been defined in a different manner i.e. alongwith terms "Managerial and Consultancy Services" - in transmission of electricity, there is no human touch or effort - also only for the purpose of facility to use and maintenance of transmission lines, charges are paid and thus there is no "Technical Service" - Decided in favor of assessee.
-
2017 (1) TMI 1583 - ITAT PUNE
TDS u/s. 194H - Discount allowed to pre-paid Distributors - sale of SIM cards/recharge coupons at discounted rate to distributors - assessee is a Cellular service provider and distributors were appointed who purchase the products in bulk and then sell the same to sub-dealers or retailers - Held that:- Respectfully following the decision of Bharti Airtel Ltd.[2014 (12) TMI 642 - KARNATAKA HIGH COURT] we hold that sale of SIM cards/recharge coupons at discounted rate to distributors is not commission and therefore not liable to TDS u/s.194H of the I.T. Act.
As the Hon’ble High Court while holding so has remitted the matter back to the assessing authority only to find out how the books are maintained and how the sale price and the sale discount is treated and whether the sale discount is reflected in their books. If the accounts are not reflected as set out above section 194H is not attracted. Therefore, in line of the above observation of the Hon’ble High Court we restore the matter to the file of the Assessing Officer for necessary verification. Decided in favour of assessee for statistical purposes.
2
-
2017 (1) TMI 1582 - CESTAT CHANDIGARH
Demand of Interest and Penalty, without demand of service tax - short payment of service tax - scope of SCN - Held that: - In the case of Total Security System [2007 (12) TMI 157 - CESTAT MUMBAI], the same issue came up before this Tribunal wherein it was held that this is not legally sustainable to impose interest & penalty if demand is not confirmed.
Admittedly, in this case the SCN has not been issued to the appellant to demand of interest only and to impose penalty. As no demand of service tax has sought to be confirmed by way of show cause notice against the appellant, interest and penalty cannot be demanded - the demand of interest and imposed penalty are not imposable on the appellant - appeal allowed.
-
2017 (1) TMI 1581 - ITAT INDORE
Levy of penalty u/s 271(1)(b) - non appearance on notice by assessee - assessment completed u/s 143(3) - Held that:- The counsel regularly attended the proceedings and the assessments have been framed u/ s 143(3) and not u/ s 144. We find that this was the first notice for compliance and since the voluminous records and papers were required to be scrutinized and individually in each case, the appropriate replies were to be filed, the assessee prayed for the time to submit the reply and ultimately submitted all the necessary replies and cooperated with the Department. We are of the view that assessees had reasonable cause for non-appearance on that day. Therefore, there is no justification for levying the penalty u/s 271(1)(b) of the Act.
Secondly, in this matter, the assessments have been completed u/s 143(3) of the Act, therefore, no penalty can be levied if the assessments have been completed u/s 143(3) and there is subsequent compliances in the assessment proceedings was considered as good compliances and default committed earlier were ignored. Therefore, penalty u/s 271(1)(b) was deleted by various Tribunals - Decided in favour of assessee.
-
2017 (1) TMI 1580 - CESTAT NEW DELHI
Maintainability of appeal - Held that: - as per the maxim VIAILATIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT, law helps those who are vigilant and not those who go to sleep - appeal dismissed for default.
-
2017 (1) TMI 1579 - SC ORDER
Disallowance of interest on borrowed loan - advances to sister concern - HC held that [2015 (9) TMI 1055 - KARNATAKA HIGH COURT] though the borrowed money was advanced in favour of the sister concern of the assessee in the year 1999-2000, the sister concern has also not utilized the said amount for the said purpose. Even after three years, the said project has not been commenced, however the sister concern has diverted the said amount for some other project - Held that:- Heard. Leave granted.
-
2017 (1) TMI 1578 - CESTAT NEW DELHI
Benefit of concessional rate of duty - sale of cement - cement sold to the agencies on MRP basis, but in some cases selling directly to the consumers which includes the Government agencies, builders, institutions and individuals - export to Nepal - Held that: - the assessee-appellants have sold the goods directly to the consumer which includes the Government agencies, builders, institutions and individuals without involving a retail sale agency or other institutionally, and has, therefore, not fulfilled the criteria of “retail sale”. Hence, the definition of “Retail Sale” as per Rule 2(q) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 will not apply - the sale to the individual without any intermediary person is entitled for concessional rate of duty.
Sale to Nepal - Held that: - where retail sale price was not required to be cleared other than package form would be entitled to the benefit of the Notification No. 4/2006-C.E - the benefit of Notification No. 4/2006-C.E., dated 1-3-2006 was granted.
Appeal allowed - decided in favor of appellant-assessee.
-
2017 (1) TMI 1577 - CESTAT AHMEDABAD
CENVAT credit - input services - Courier’ services - erection of pucca shed - Held that: - Service Tax paid in relation to ‘Courier’ service and erection of ‘Pucca Shed’ is covered under the scope of ‘Input Services’ as defined under Rule 2(l) of the Cenvat Credit Rules 2004 as held by the Hon’ble Gujarat High Court in the aforesaid M/s Cadila Healthcare Ltd [2013 (1) TMI 304 - GUJARAT HIGH COURT] - appeal allowed - decided in favor of appellant.
-
2017 (1) TMI 1576 - SUPREME COURT
Application seeking Direction to treat sentence imposed relating to two different complaints to run concurrently - Held that: - Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the offence/offences and the facts and circumstances of each case.
In the present case, the appellant was earlier convicted under Section 22 NDPS Act and subsequently convicted under Section 27(b)(ii) and Section 28 of the Drugs and Cosmetics Act, 1940 - Considering the nature of the offences for which the appellant was convicted and the facts and circumstances of the case, it is deemed appropriate to direct that the sentences imposed on the appellant in FIR No.37 and Complaint No.638 shall run concurrently - the fine amount and the default sentence or sentences are maintained.
Appeal allowed.
-
2017 (1) TMI 1575 - ANDHRA PRADESH HIGH COURT
Valuation - part of sales consideration or not? - Delivery charges - Whether the Tribunal was justified in setting aside the entire order, when the respondent did not press before the Tribunal the amount of duty demanded?
Held that: - It is true that the Tribunal could not have allowed the entire appeal which may result in the duty also being set aside and the claim for refund possibly being made by the respondent. To that extent the order of the Tribunal requires modification, especially in view of the concession made at the time of hearing before the Tribunal.
The delivery charges cannot constitute part of the consideration. We say this, on the assurance that no claim for refund will be made on duty already appropriated from the respondent. Once it is clear that delivery charges cannot form part of the sale consideration, the demand for interest and penalty are liable to be set aside.
Appeal allowed in part.
-
2017 (1) TMI 1574 - ITAT PUNE
Transfer pricing addition - comparable selection criteria - functional similarity - Held that:- The assessee was engaged in the business of rendering software related services such as Research & Development, Marketing and Technical Support Services to the holding company, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
-
2017 (1) TMI 1573 - ITAT AHMEDABAD
Disallowance u/s 40(a)(ia) - payment made towards sea freight expresses - non deduction of tds - applicability of provisions contained in sec 172 and CBDT Circular No.723 dated 19.09.1995 - Held that:- as long as the assessee can demonstrate that the payment is made in respect of freight to non-resident shipping companies, the assessee does not have any tax withholding obligation under section 195 or section 194C.
In the present case, it appears that complete details of invoices to the satisfaction of the Assessing Officer have not been furnished before the Assessing Officer or before the CIT(A) also. There is at best partial compliance of this requirement - the matter deserves to be remitted to the file of Assessing Officer with the direction that as long as the assessee can demonstrate that the payment is made to a nonresident directly or through authorized agents and the payment is in respect of the freight, the Assessing Officer shall not make any disallowance under section 40(a)(ia) on account of such payments. Assessee is not under any obligation to give evidence in respect of actual collection of tax from the non-resident shipping company under section 172 - Decided in favour of assessee for statistical purposes.
-
2017 (1) TMI 1572 - ITAT CHENNAI
TPA - identification of comparables - Held that:- Assessee is one of the leading software solution providers, specializing in providing quality and customized IT solutions to several multinational clients in the Banking, Financial Services and Insurance (BFSI) domain, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Exclusion of various companies from the list of comparables by means of turnover filter, functionally different, having extraordinary events like merger/amalgamation as well as earning super profits, 14 companies out of 34 is acceptable for inclusion in the list of comparables for determining the ALP. Based on the above, the TPO is directed to rework the PLI of the above comparables and recomputed the Arms Length Price adjustment if any necessary. Ordered accordingly.
Working capital adjustment wrongly worked out - Held that:- Since the assessee’s ground requires to be reconciled at the AO/TPO’s level, the issue is remitted back on the files of the AO/TPO with a direction to verify the veracity of the assessee’s claim and to rectify the same, if it so warrants by the Indian transfer pricing regulations, OECD guidelines, etc.
Eligibility for tax holiday - Held that:- TPO/AO has erred by ignoring the fact that the assessee is eligible for tax holiday and there cannot be any plausible intent to shift profits thereby violating the basic intent of introduction of TP provisions. After duly considering the submissions of the assessee, we direct the TPO/AO to give a finding as to whether the assessee is eligible for tax holiday since the order of authorities below is silent on the issue. Accordingly we remit the issue back to the file of the TPO for de novo consideration.
Not allowing the 5% benefit under the proviso to section 92C(2) - Held that:- TPO/AO is directed to work out the ALP of the assessee in accordance with the directions given above and if found that the differential in the margin of the assessee and the comparables is beyond 5% bandwidth recognized in proviso to section 92C(2) of the Act, then adjustment is required to be made to the reported value of the assessee’s transaction with its AE. Accordingly, we remit the issue for de novo consideration.
Deduction u/s 10A - excluded the expenses incurred in foreign exchange only from export turnover and not from the total turnover - Held that:- By relying on the decision in the case of ITO v. Sak Soft [2009 (3) TMI 243 - ITAT MADRAS-D] wherein it was held that parity should be maintained between the numerator and denominator and therefore, expenses excluded from export turnover should also be excluded from total turnover. Just because the Department has preferred an appeal before the Hon’ble High Court, we cannot take a different view against the decision of the Special Bench of the Tribunal in the case of ITO v. Sak Soft Ltd. (supra). Accordingly, we direct the Assessing Officer to reduce the expenses incurred in foreign exchange both from export turnover as well as from total turnover.
Failure to exclude the export proceeds not been realized in time, both from export turnover as well as from total turnover - Held that:- As we have reproduced the relevant findings of the Chennai Special Bench decision in the case of ITO v. Sak Soft [2009 (3) TMI 243 - ITAT MADRAS-D] wherein it was held that parity should be maintained between the numerator and denominator and therefore, expenses excluded from export turnover should also be excluded from total turnover. Following the same analogy of the above Special Bench decision, we direct the Assessing Officer to exclude the export proceeds, which have not been realized in time, both from export turnover as well as total turnover. Thus, the ground raised by the assessee is allowed.
Disallowance u/s 14A r.w.r. 8D - assessee has argued that Rule 8D is not applicable to the assessment year under consideration - Held that:- Godrej & Boyce Mfg. Co. Ltd. v. DCIT (2010 (8) TMI 77 - BOMBAY HIGH COURT), the Hon’ble Mumbai High Court has also held that application of provisions of 14A are 'Constitutionally valid' and provisions of section 14A are still applicable for earlier assessment years and the Assessing Officer is duty bound to determine expenditure by adopting a reasonable basis or method. Therefore, even though the provisions of Rule 8D are not applicable for the assessment year under consideration since they have been introduced w.e.f. 24.03.2008 an estimate of 2% of gross income from investments received may be disallowed towards expenditure for earning such income. Accordingly, we set aside the orders of authorities below on this issue and direct the Assessing Officer to disallow 2% of gross income from investments towards expenditure for earning such income.
............
|
