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Showing 241 to 260 of 1666 Records
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2017 (10) TMI 1429
CENVAT Credit - export of goods - duty on exported goods paid from wrongly availed Cenvat credit - Held that:- The Government has noticed that the applicant has also not disputed the fact that duty paid by them on exported goods was actually from the fraudulently availed credit as held by the Commissioner (Appeals). But still in the Revision Application the applicant has stressed that the Cenvat credit wrongly availed by them has already been paid by them as per order of the Settlement Commission and after having done so the duty paid on exported goods from even wrong Cenvat credit cannot be said to be paid from inadmissible credit. But the Government does not find any substance in this argument as the fact still remains that the exported goods remained non-duty-paid goods even after payment of an amount as per Settlement Commission’s order.
The order passed by the Settlement Commission is only to settle the tax dispute and it cannot regularise the fraudulent actions of the applicant from the retrospective effect - Thus, the Government finds no fault in the observation of the Commissioner (Appeals) that the Cenvat credit used to discharge the duty on export goods was non-existent in the applicant’s account and thus no rebate claim is justified on such duty.
The Government does not find any fault in Commissioner (Appeals)’s Order - the Revision Application filed by the applicant is rejected.
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2017 (10) TMI 1428
Rebate claim - Rule 18 of the Central Excise Rules, 2002 - area based exemption claimed - rejection on the ground that since the manufacturer M/s. Mohini Metal Industries, Jammu, had already taken refund of excise duty paid on the exported goods, rebate of duty was not admissible to the applicants - rejection of appeal for the second time - whether the applicant is eligible for rebate of duty when refund of duty has already been granted to the manufacturer under an area based exemption scheme enshrined in N/N. 56/2002-C.E.?
Held that:- Under Rule 18 of Central Excise Rules, 2002 first and foremost condition is that exported goods should be duty paid. But in this case no duty has been paid on the goods cleared by the Jammu based manufacturer as the goods manufactured in whole of J&K State are exempted under Notification No. 56/2002. The exemption from duty on the goods manufactured in J&K is not operative at the time of clearance of goods as is usually done in other instances of exemption and it is extended by granting refund of duty subsequent to clearance of the goods. But undoubtedly the goods are exempted by virtue of the above Notification which is issued under Section 5A of the Central Excise Act which empowers the Government to issue exemption Notification.
The net effect of getting duty amount back to the manufacturer has been that no duty amount was actually paid on the exported goods. When this is a situation, the first condition in Rule 18 that the exported goods should be duty paid is not fulfilled in this case and consequently the applicant’s present case is not covered in the four corners of the Rule 18 and Notification No. 19/2004-C.E. (N.T.) - It cannot be denied that Notification No. 37/2007-C.E. (N.T.), dated 17-9-2007, issued by C.B.E. & C., providing that the rebate of duty will not be available in respect of goods manufactured by a unit enjoying any area based exemption scheme, was not in existence at the time the applicant procured goods from M/s. Mohini Metal Industries.
The applicant is not eligible for rebate of duty in this case irrespective of whether the above referred Notification No. 37/2007 was in vogue at the time of procurement of the goods by applicant in this case - the revision application of the applicant is not found maintainable and hence rejected.
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2017 (10) TMI 1427
Export of prohibited item - red sanders - confiscation - penalties - Held that:- Since, no certificates were furnished by the Wild Life Inspectors in respect of 6 Nos. of Memos, it cannot be said that all the goods covered under the shipping bills are red sanders, liable for confiscation - Further, the Detention Memos do not identify any method and procedure adopted by the Wild Life Department for arriving at the conclusion that the description of goods declared by the exporter is false or incorrect.
The fact is not under dispute that the Department did not examine any Wild Life Inspectors, even if, request was made by the appellant for cross-examination of those persons. Further, it is noted that the competent authority to examine the type of wood, would be the experts in the Forest Department. It is not clear as to why no reference or opinion was taken from them - Thus, the endorsement made in the Detention Memo by the Wild Life Inspectors cannot be considered in isolation, without any further substantiation, that the goods as per the courier shipping bills were in fact red sanders.
Regulation 4(2) of Courier Regulations, 2010 provides that the export goods shall bear a declaration from the sender or consigner regarding the contents of each of the packages and the total value thereof. Further, Regulation 6(2)(b) ibid mandates that no person shall, except with the permission of proper Officer, open any package of export goods, brought into the customs area, to be loaded on the flight - the courier agency has very limited role in checking of the consignments contained in the courier packages. Thus, it cannot be said that the appellant had the reason or occasion to inspect the contents of the package and accordingly, relied on the declaration made by the consigner for the purpose of preparation of the shipping bills. The department has not proved the fact with any substantial evidence that there was prior knowledge on the part of the appellants in respect of the allegations made against them - Therefore, as per settled principle of law, provisions of Section 114(i) ibid cannot be invoked, justifying imposition of penalties.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1426
Fees for technical services - amount received by the assessee from B.J Services Company (Middle East) Ltd for rendering Fracturing Flow Back Services - assessment u/s 44BB or 115A - HELD THAT:- When the assessee who was engaged as a Sub-contractor by B.J Services Company (Middle East) Ltd had nothing to do with the company, viz. ONGC, therefore, the A.O/DRP were wrong in concluding that the amount received by the assessee from B.J Services Company (Middle East) Ltd for rendering Fracturing Flow Back Services were indirectly received from ONGC. We thus set aside the aforesaid observations of the A.O/DRP and hold that the amount under consideration was received by the assessee from B.J Services Company (Middle East) Ltd.
We further find that pursuant to the judgment of the Oil & Natural Gas Corpn. Ltd. [2015 (7) TMI 91 - SUPREME COURT]), it stands settled as on date that prospecting for extraction or production of mineral oil is not to be treated as technical services for the purpose of Explanation 2 of Sec. 9(1)(vii), and would rather be covered by Sec. 44BB.
As prospecting for or extraction or production of mineral oil is not to be treated as technical services for the purpose of Explanation 2 of Sec. 9(1)(vii), therefore, it can safely be concluded that the payments received by the assessee from rendering of Fracturing Flow Back Services for extraction or production of mineral oil would not fall within the realm of 'fees for technical services'. We thus, are of the considered view that as the precondition for invoking of Sec. 115A is in itself found to be missing, therefore, the same would not be attracted to the case of the assessee.
We set aside the order of the A.O assessing the amount received by the assessee from B.J Services Company (Middle East) Ltd. for rendering of Fracturing Flow Back Services at the oil rigs to tax as per the provisions of Sec. 115A - thus in agreement with the A.R that now when Sec. 44BB contemplates special and specific provisions for computing profits and gains of a non-resident in connection with the business of providing services or facilities in connection with or supplying plant and machinery on hire used or to be used in the prospecting for or extraction or production of mineral oils, therefore, the Fracturing Flow Back Services rendered by the assessee in connection with extraction or production of mineral oil would squarely be covered by the provisions of Sec. 44BB. - Decided in favour of assessee.
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2017 (10) TMI 1425
Illegal import or not - import of Old Batter scrap from Nepal - violation of Section 7(1)(c) of Customs Act, 1962 and Notification No. 9/96-Cus., dated 22-1-1996 issued under Section 11 of Customs Act, 1962 or not - Held that:- There is no evidence on record to establish that the old battery scrap which was subject matter of the proceedings was brought into India from Nepal through either designated routes or undesignated routes. Therefore, there is no evidence on record to establish that there was any violation of said Notification No. 9/96-Cus. There is no evidence on record to know through which route the goods were brought for the simple reason that there was no evidence that they were brought from Nepal to India. Therefore, there is no evidence to establish that there was violation of Section 7(1)(c) of Customs Act, 1962 - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1424
Rejection of claim of interest expenditure under the normal provisions and rejection of interest liability under section 115JB - HELD THAT:- As decided in assessee's own case assessee pointed out that the CIT(A) has held that the issue of interest expenditure is pending before the Hon’ble Special Court. It is the say of the Ld. Counsel that the proceedings in which the said issue of interest was issued by the custodian have been already concluded which fact has already been recorded by the Ld. CIT(A) in the impugned order. We, therefore, direct the Ld. CIT(A) to consider this fact while deciding the issue afresh. The Ld. CIT(A) may also direct for the taxing of income in the hands of the recipient (family members) in accordance with the method of accounting followed by them and as per the provisions of the law. Ground treated as allowed for statistical purpose.
Interest under section 234A, 234B and 234C - HELD THAT:- Hon’ble Jurisdictional High Court in case of Divine Holdings Pvt. Ltd. [2012 (4) TMI 100 - BOMBAY HIGH COURT] has held that provisions of sections 234A, 234B and 234C are applicable to notified persons also. That being the case, assessee is subject to levy of interest under sections 234A, 234B and 234C. The ground raised is dismissed.
Computation of interest under section 234B and 234C - HELD THAT:- Similar issue arising in assessee’s own case in preceding assessment years as well as in case of group concerns have been restored back to the assessing officer for fresh adjudication. Notably, in assessee’s own case for preceding assessment years the tribunal while deciding identical issue and other appeals, vide order dated 25th August 2015, has restored it back to the assessing officer for fresh consideration. This ground is allowed for statistical purposes.
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2017 (10) TMI 1423
Maintainability of appeal - amount involved in the appeal - Section 35-B of the Central Excise Act, 1944 - Imposition of penalty of ₹ 10,000/- on each of the importers - Held that:- As per proviso (ii) to Section 35-B of the Central Excise Act, 1944, the Tribunal can decline to entertain an appeal where the demand, fine or penalty is less than ₹ 2 lacs. Certainly, in the present each appeal the demand, fine or penalty is less than ₹ 2 lacs. When it is so, then we decline to adjudicate the appeals. Thus, the appeals are not maintainable.
Appeal dismissed as not maintainable.
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2017 (10) TMI 1422
Exemption u/s 11 - carry forward of deficit in question and allowing set off against the income of the subsequent years - Held that:- The issue is covered by the judgment of CIT Vs. Institute of Banking Personnel [2003 (7) TMI 52 - BOMBAY HIGH COURT] - AO is directed to allow the carry forward of deficit in the subsequent years. - Decided against revenue
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2017 (10) TMI 1421
Disallowance on account of non deduction of TDS on bank charges deducted by the bank while making payment to the assessee for the goods purchased by the customers of the bank against the Debit and Credit cards issued by the bank to its customers - Held that:- As decided in CIT vs. JDS Apparels (P) Ltd. (2014 (11) TMI 732 - DELHI HIGH COURT) has held that since the bank was making the payment to the assessee after making deduction of bank charges, there was no occasion for the assessee to deduct tax at source and, further, the bank was not acting on behalf of the assessee but on the other hand was acting on behalf of the customers while processing payments through debit cards and credit cards.
In the present case we further feel the said principle should be applied as HDFC would necessarily have acted as per law and it is not the case of the Revenue that the bank had not paid taxes on their income. It is not a case of loss of Revenue as such or a case where the recipient did not pay their taxes - decided against revenue.
Provision for gratuity was not an ascertain liability, whereas assessee has been contending that it is an ascertain liability - Held that:- CIT (A) on facts held that in this case, the provision for gratuity is an ascertained liability and while placing reliance on the decision reported in ACIT vs. NHPC Limited decided by a coordinate bench of this Tribunal he granted the relief. Nothing contrary is established before us to show that the provision for gratuity in this case is not an ascertained liability. No ascertain liability, whether or not the payment was made in future could be added back, as such, we uphold the finding of the CIT (A) and dismissed this ground of appeal.
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2017 (10) TMI 1420
Penalty u/s 271(1)(c) - non specification of charge - defective notice - disallowance of depreciation on the ground that the assessee claimed the eligible deduction u/s 24 - Held that:- Notice issued by the AO under Section 274 read with Section 271(l)(c) to be bad in law as it did not specify which limb of Section 271(l)(c) the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the decision of the Division Bench of this Court rendered in the case of COMMISSIONER OF INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013 (7) TMI 620 - KARNATAKA HIGH COURT).
Disallowance of depreciation on the ground that the assessee claimed the eligible deduction u/s 24 and also the depreciation in respect of the very same property. However, the order dated 09.11.2015 passed u/s 154/143(3) of the Act passed by the AO in this matter clearly shows that the AO had considered different properties as such the disallowance was deleted to an extent of ₹ 8,13,742/-. It shows that there was mistaken identity of the property at the time of the assessment proceedings. Further, mere disallowance of depreciation in this peculiar set of facts and circumstances does not invite the proceedings u/s 271(1)(c) of the Act. Ratio of the Hon’ble Apex Court in CIT vs Reliance Petro Products P.Ltd. [[2010 (3) TMI 80 - SUPREME COURT]] applies to the facts of this case at hand and respectfully following the same, we direct the AO to delete the penalty. - Decided in favour of assessee.
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2017 (10) TMI 1419
Correct head of income - rental income from Operating Family Entertainment Center cum Mall and Maintenance Charges - "Income from House Property " OR "Profit and Gains from Business or Profession " - Following the stand of the assessing authorities in the past years of A.Y.2008-09 to 2011-12, AO assessed the said income under the head ‘Income from House Property as against assessee’s claim for treating the same as 'business income'
Held that:- In the assessment order, the AO was made aware of the decision of the Tribunal in the assessee’s own case wherein such receipts have been held to be taxable as business income. The Assessing Officer noticed that the decision of the Tribunal has not been accepted by the Department and its appeal filed before the Hon’ble Bombay High Court u/s.260A of the Act was pending. For the said reasons, he has not followed the decision of the Tribunal for earlier years. On the contrary, the CIT(A) followed the decision of the Tribunal and allowed the claim of the assessee for treating such incomes as business income.
The Hon’ble Bombay High Court in its order [2017 (7) TMI 779 - BOMBAY HIGH COURT] has upheld the stand of the assessee that such incomes are liable to be assessed as business income.
Disallowance of interest paid on loan availed by the assessee from HDFC in respect to a property located at Chandigarh - Held that:- CIT(A) allowed claim of the assessee by noting that the income from lease / rentals was assessed as business income and therefore, the interest expenditure on loans availed from HDFC was an allowable expenditure.
On this aspect also, we found no merit in the appeal of the Revenue in as much as it is consequential to the upholding of assessee’s stand of the income from lease / rentals being liable to be assessed as business income. - Appeal of the Revenue is dismissed.
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2017 (10) TMI 1418
Levy of penalty u/s. 271(1)(c) or u/s. 271AAA - Whether AO has wrongly recorded satisfaction for levying penalty u/s. 271(1)(c) on the charge of furnishing inaccurate particulars of income - case of ‘concealment of income’ or ‘furnishing inaccurate particulars of income’ - Held that:- In the present case, penalty u/s. 271(1) r.w.s 5A has been levied in respect of additional income offered by assessee representing investment made in the flat. AO observed that investment made for purchasing flats has not been reflected in the books of assessee. The relevant extract of the findings of Assessing Officer from order levying penalty have seen extracted above in para 9. Thus, it is a case of concealment of income. In the order levying penalty, AO has remarked that it is a case of deemed concealment of income.
After having coming to conclusion that it is a case of deemed concealment, AO thereafter held that penalty u/s. 271(1)(c) has been levied on the assessee for furnishing inaccurate particulars of income. After examining the order passed u/s. 271(1) (c), we are of the view that the Assessing Officer was not clear in his understanding whether it is a case of ‘concealment of income’ or ‘furnishing inaccurate particulars of income’. Ambiguity and confusion in the mind of Assessing Officer is writ large.
In assessment year 2009-10, it is an undisputed fact that due date for filing return of income u/s. 139(1) had not expired. The assessee had not filed any return of income u/s. 139(1) of the Act. The only return filed by assessee was in response to the notice u/s. 153A. The period relevant to assessment year 2009-10 is ‘specified previous year’ as defined under section 271AAA. The contention of the assessee is that in assessment year 2009-10 penalty u/s. 271(1)(c) is not leviable, if at all, penalty was be levied, it could be u/s. 271AAA of the Act.
In the instant case, the date of search is 11.09.2009. The due date for filing return of income u/s. 139(1) in the present case is 30.09.2009. Undisputedly, the assessee had not filed any return of income for the relevant assessment year 2009-10. Thus, all the three conditions are satisfied. Thus, we are of considered view that previous year 2008-09 relevant to assessment year 2009-10 falls within Clause (i) of the definition of ‘specified previous year’ as given in Explanation (b) to Section 271AAA. AO has erred in invoking the provisions of section 271(1)(c) of the Act in assessment year 2009-10. - Decided in favour of assessee.
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2017 (10) TMI 1417
Weighted deduction u/s. 35 (2AB) - R&D expenditure incurred by the assessee towards research and development in its in-house R&D - whether Laboratory is Recognized by Department of Scientific & Industrial Research, Government of India? - Held that:- The provisions of section 35(2AB) provides for weighted deduction of 200% on research and development expenditure incurred by the assessee in its in-house R&D facility, if such R&D facility has been prescribed I Rules 6(1B), 6(4), 6(5A) and 6(7A) of the Income-tax Rules, 1962. As per the rules, the assessee has to make an application in prescribed form with necessary evidences along with agreement with the competent authority.
The competent authority, having satisfied with the conditions prescribed under the Act, can approve the R&D facility in prescribed form 3CM with intimation to the department through proper channel. In this case, the facts with regard to the assessee's R&D expenditure and recognition from the competent authority are not doubted by the lower authorities.
The only dispute is with regard to the period of approval. As per the certificate issued by the competent authority in Form 3CM assessee's R&D facility has been approved for the period from 01- 04-2011 to 31-03-2013 on the basis of application filed by the assessee in prescribed form 3CK on 12-08-2011. Therefore, we are of the view that the assessee is not entitled for weighted deductions towards its R& expenditure for the assessment year under consideration. - Decided against assessee.
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2017 (10) TMI 1416
TPA - gains/losses arising out of foreign exchange fluctuation too have to be benchmarked in the determination of ALP under Section 92CA - Held that:- We find considerable force in the submission of ld. counsel for the assessee that ld. DRP wrongly invoked Safe Harbour Rule for coming to the conclusion that forex gain/loss was not to be treated as operating income/ loss for current assessment year because the Safe Harbour Rules, in any case, were applicable from 18-9-2013 and prior to that the said Rules could not be applied. That apart, it is not disputed that in the case of assessee forex gain/ loss was related to sale price of export, which was in US dollar. Therefore, the entire receipts were on revenue account. The Court is of the opinion facially that like in the case of payment towards bank guarantee, interest etc., the outgoings would essentially be covered as operative costs.
Admit surviving question as follows: -
“Did the Tribunal commit an error in excluding the data in respect of the comparables, i.e., Aptico Ltd., Rights Ltd. and Kitco Ltd. and Apitco Ltd., Kitco Ltd., Tee Consulting Engineers Ltd, Mahindra Consulting Engineers Ltd., Infoedge India Pvt. Ltd. and MMTV Ltd. having regard to the facts and circumstances of the case.”
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2017 (10) TMI 1415
Penalty u/s 271AAA - income surrendered consequent to the search and seizure operation - Held that:- The search took place on 31.07.2008 and the assessee submitted letters dated 14.12.2010 offering ₹ 15,00,000/- to tax. Records does not speak that the authorities ever questioned the assessee as to how the surrendered income was derived by the respective assessee. The surrender through letter dated 14.12.2010 was accepted by the AO as it is.
Where the assessee having surrender certain income in the course of search filed return wherein the said amount was duly disclosed and the taxes were paid accordingly. Facts of the cases on hand being similar, the principle laid down in the decisions relied is applicable and while respectfully following the same, we hold the penalty in this matter u/s 271AAA of the Act cannot be sustained. We, therefore, direct the AO to delete the penalty. See COMMISSIONER OF INCOME TAX VERSUS SUDHIR JAIN [2013 (12) TMI 484 - DELHI HIGH COURT], NEERAJ SINGAL VERSUS ACIT, CENTRAL CIRCLE-13, NEW DELHI [2015 (3) TMI 680 - ITAT DELHI],SRI PRAMOD KUMAR JAIN & OTHERS VERSUS DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 2(1), SAMBALPUR. [2012 (12) TMI 629 - ITAT CUTTACK] - Decided in favour of assessee.
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2017 (10) TMI 1414
CENVAT Credit - input services - “Diamond Core Drilling Services” availed by them in their captive mines - Held that:- Service Tax has been paid on the „Diamond Core Drilling Services” in the captive mines area of the assessee-Appellants. The said drilling operations are necessary for survey and exploration of their mining area to find the prospective potential for mining zinc ore - this is essential for the core operation of manufacture of Zinc Ore by the assessee-Appellants and the same is carried out in their own mines only - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1413
Assessment u/s 153A - no assessment was pending - proof of incriminating material as found during search - bogus long term capital gains on sale of shares - penalty u/s 271(1)(c) - Held that:- Tribunal in the case of husband of the assessee, which is also part of the same search and seizure operation u/s 132(1) of the Act and that too on identical facts/issue clearly held that no incriminating material was found during the course of search, consequently, the addition made u/s 153A of the Act, when the assessment was not pending, is not justified. DR did not dispute this factual matrix. Applying the ratio/principle laid down in the case of All Cargo Logistic Ltd. [2012 (7) TMI 222 - ITAT MUMBAI(SB)] affirmed by HC [2015 (5) TMI 656 - BOMBAY HIGH COURT] we can reach to the conclusion that no assessment was pending and since no incriminating material was found during search, the addition so made was unjustified.
Thus where no incriminating material is found during the course of search relating to any Assessment Years, then the assessment for such year cannot be disturbed. Uncontrovertedly, no incriminating material was found, therefore, respectfully following the aforesaid decisions, this legal issue is decided in favour of the assessee.
Bogus long term capital gains on sale of shares - relaince on statement of interested party -Held that:- The sale of shares by the assessee and getting the sale proceeds by cheque is not in dispute. The assessee got the shares demated in the BSE, which is also not in dispute. The source of investment in the shares, as mentioned earlier, in earlier paras of this order is also explained by the assessee. Under these circumstances, it is an accepted principle of law that documentary evidence has to give precedence over the oral statement unless and until it is corroborated with documentary evidence. The whole case of the Revenue is based upon the statements, which is not corroborated with facts. Thus, we are of the view that addition cannot be sustained merely on the basis of statement ignoring the documentary evidences brought on record by the assessee.
Both the directors of the broker, M/s. DPS Shares & Securities have stated that the alleged accommodation entries have been issued by them on the instructions of third persons, Shri Naresh Saboo and Slui Shirish C. Shah. These statements are general in nature and no reference has been made to the assessee at all. Further, in his statement, Shri Pratik C. Shah has stated that he had not charged any service tax on the said transactions and has not paid service tax to the government. This shows that the broker, M/s. DPS Shares 8z Securities is an interested party and therefore no reliance can be placed on their statement
Addition on account of payment of commission by the assessee for obtaining accommodation entry in respect of sale of shares through share broker - Held that:- Addition has been made solely on the basis of presumption without bringing any material on record to prove that the assessee paid such commission to the broker. Even otherwise, nothing incriminating was found during search to prove that the assessee made such undisclosed payments to the broker as has been alleged by the Revenue. The observation of the Ld. Assessing Officer of the consolidated assessment order u/s 153A of the Act is without any basis. Burden has not been discharged. The Ld. Assessing Officer has added the aforesaid amounts on the basis of information in possession of the Department. This is nothing but hearsay. Since, the burden of proof in this case has not been discharged by the Revenue, therefore, the addition so made, is directed to be deleted. Thus, this ground of the assessee is also allowed
Penalty u/s 271(1)c) - Held that:- Addition was made merely on the basis of statement of one of the Directors and the broker did not confirmed the purchase. There is uncontroverted finding that the assessee was having consolidated share certificate received from the company and the copies of letter received were filed before the Assessing Officer. This finding of the Ld. Commissioner of Income Tax (Appeal) rather supports the case of the assessee not only on quantum addition but on penalty also - addition was made merely on the basis of statement of one of the Directors and the broker did not confirmed the purchase. There is uncontroverted finding that the assessee was having consolidated share certificate received from the company and the copies of letter received were filed before the Assessing Officer. This finding of the Ld. Commissioner of Income Tax (Appeal) rather supports the case of the assessee not only on quantum addition but on penalty also. - Assessee appeal allowed.
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2017 (10) TMI 1412
Process amounting to manufacture or not - conversion of iron ore into concentrate - liability of central excise duty - Held that:- The process undertaken by the appellant are not in dispute. There is no special process facility with the appellant. Improvement in the content of “Fe” due to the processes undertaken by the appellant by itself will not make the resultant product as iron ore concentrate - It is clear that process undertaken by the appellant do not amount to manufacture of new product as understood in the industry - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1411
Refund claim - erroneous assessment of the goods exported - Held that:- It can be noticed that the 1st Appellate Authority has relied upon the decision of the Tribunal to come to a conclusion which we find is the correct proposition of the law - the impugned order is correct and legal and does not require any interference - appeal dismissed.
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2017 (10) TMI 1410
Charitable activities - entitlement to benefit of section 11 & 12 - proof of activities of commercial/ trade colour - Held that:- As decided in assessee;s own case [2015 (5) TMI 515 - ITAT DELHI] The dominant object of the assessee is definitely for the well being of public at large by organizing various seminars for the welfare of people by disseminating knowledge in various fields in order to uplift the social consciousness of the society at large. The composition of membership clearly exemplifies the real intention of assessee. We fail to understand as to how the hostel accommodation provided to various invitees could be considered as a commercial activity. Before any activity can be branded as being in the nature of trade or commerce, the AO has to demonstrate the intention of parties Backed with facts and figures of carrying out activities with profit motive. Mere surplus from any activity, which undisputedly has been undertaken to achieve the dominant object, does not imply that the same is run with profit motive. The intention has to be gathered from circumstances which compelled the carrying on an activity.
The primary object of insertion of proviso to section 2(15) was to curb the practice of earning income by way of carrying on of trade or commerce and claiming the same as exempt in the garb of pursuing the alleged charitable object of general public utility. This proviso never meant to deny the exemption to those institutions, where the predominant object is undeniably a charitable object and in order to achieve the same incidental activities, essential in the given circumstances, are carried on - Decided in favour of assessee.
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9911796707
