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Case Laws
Showing 241 to 260 of 1764 Records
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2016 (11) TMI 1526
Rejection of books of accounts u/s 145 - G.P. determination - Held that:- In the instant case, in absence of production of ledgers and bills, there is no finding that the purchase and sales are fully vouched and similarly, there is no finding that the closing stock has been examined by the AO after taking into consideration the opening stock, purchases and sales. In light of that, we confirm the rejection of books of accounts u/s 145(3) of the Act.
Estimation of profits after rejection of the books in the instant year, the assessee has reported a turnover of ₹ 7.5 Cr which is almost 38% of peak turnover achieved in the past years and we were to work out the comparative G.P, keeping all other things constant, it will result in G.P of 3.64%. In absence of any other creditable data on record in terms of fall in G.P rate submitted by the assessee and based on the past assessment history of the assessee, we accordingly confirm the G.P rate of 3.64% to be applied on the turnover of ₹ 7.51 Cr. The ground of appeal is thus partly allowed.
Addition u/s 41(1) holding that the creditors shown in the books of account have cease to exist - Held that:- In the instant case, it is therefore imperative on the part of the AO to carry out necessary enquiries with the trade creditors independently in order to determine whether there is remission of liability or not. We, accordingly, set-aside the matter to the file of the AO to carry out the necessary examination/enquiry from the trade creditors and examine the matter a fresh as per law and after providing reasonable opportunity to the assessee. Needless to say, the assessee shall cooperate and provide all relevant information and latest contact details of the creditors so that the matter may be decided expeditiously. The ground is therefore allowed for statistical purposes.
TDS u/s 194J - non deduction of tds on professional fee - Held that:- The recipient of income M/s Kalani & Co has included the income of ₹ 50,000/- in its return of income and a copy of CA certificate was filed before the AO, we delete the disallowance in question. - Decided in favour of assessee.
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2016 (11) TMI 1525
Capital gain computation - adoption of cost of acquitsition as NIL - land in question was allotted to the assessee by the Government of India under the Rehabilitation Scheme - Held that:- Hon’ble Madhya Pradesh High Court in the case of CIT vs. HH Maharaja Sahib Lokendra Singh Ji [1986 (1) TMI 37 - MADHYA PRADESH High Court] has held that where A acquires some property by way of gift or reward, for instance jagirs from a ruler and the property passed on by inheritance to generations and the same is sold even though for a valuable consideration, in such a case because A had not acquired it at some cost in terms of money, it would not attract capital gain in such a transaction of sale, there being no ‘gain’ as such.
Hon’ble Madras High Court in the case of CIT vs. HH Sri Raja Rajagopala Thandaiman,(2005 (10) TMI 45 - MADRAS High Court) affirmed the view of the Tribunal by holding that there was no capital gain assessable in respect of transfer of the site and palace at Pudukkuttai belonging to the assessee for a consideration of ₹ 17,76,020/- on the ground that there was no cost of acquisition.
In the circumstances, the amendment instead of working to the advantage of the Revenue goes to indicate that the Legislature does not want to bring within the purview of tax net all the assets (except the specified assets) which does not have cost of acquisition and the entire sale consideration cannot be treated as profits and gains chargeable under the head ‘Capital gains’ by adopting the cost of acquisition as Nil. - Decided against revenue
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2016 (11) TMI 1524
Benefit of N/N. 21/2002-Cus., dated 1-3-2002 - the Revenue, in normal course, without having challenged the certificate issued by EPCH declaring the goods as ‘handicrafts’ and without having substantial evidence raised the objection that the subject goods were not the ‘Handicrafts’ - CBEC Circular No. 3/2010-Cus., dated 12-2-2010 - Held that: - there were no mala fides and no adverse motive on the part of the appellant claiming benefit of the N/N. 21/2002-(Customs). Therefore, Revenue’s stand that goods were not ‘handicrafts’ cannot be substantiated and is without any basis - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1523
The Appellate Tribunal CESTAT HYDERABAD dismissed the appeal due to non-compliance with the order to pay costs for condoning the delay in filing the appeal. The appellant was directed to pay Rs. 25,000 to the respondent, but failed to do so, resulting in the dismissal of the appeal.
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2016 (11) TMI 1522
Classification of the activities undertaken by the appellant - recording of some sound or other phenomena (key data) on the smart card - whether the activity classified under chapter 49 or Chapter 85? - Held that: - the Revenue has not successfully countered the findings of the impugned order passed by the Commissioner (Appeals) - Commissioner (Appeals) has held that without any substantive and tangible evidence, the activity undertaken by the appellant in the instant case was nothing but of printing of these cards liable merit their classification under Chapter heading 4901.90 and for which they were very right in following the due and correct proper procedure, as laid down by the Department - there is no scope to interfere with the impugned order passed by Commissioner (Appeals) - appeal dismissed - decided against Revenue.
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2016 (11) TMI 1521
Quantum of redemption fine and penalty - Held that: - Revenue’s case is covered by Litigation Policy and is not maintainable - There is nothing to suggest that all the penalties, redemption fines involved in particular case would require to be clubbed for deciding the factor of total involved amount being more than ₹ 10 lakh.
The Commissioner has given satisfactory reason for imposition of lower redemption fine and lower penalty by accepting the importers’ stand that they had infact ordered for furniture and their Chinese exporter has filled the container along with garments and undergarments by mistake - there are no merits to interfere in the impugned order of the Commissioner.
Appeal dismissed - decided against Revenue.
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2016 (11) TMI 1520
100% EOU - Rate of duty - indigenously procured goods under EPCG scheme - dispute is, nil rate of duty is not available for indigenously procured goods under EPCG scheme as there is no exemption under excise law to this effect - Held that: - the impugned order examined the claim of the appellant for nil payment of duty on indigenous capital goods at the time of debonding. It is recorded that there is no other notification providing exemption to the capital goods in the present situation and N/N. 22/2003-C.E. is applied to determine the applicable rate of duty and depreciated value of the capital goods - In the absence of any exemption notification covering the goods, in question, we find that duty liability as calculated and confirmed by the Original Authority cannot be contested - appeal dismissed - decided against appellant.
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2016 (11) TMI 1519
SSI Exemption - use of Brand name ‘Bentex’ along with the monogram of ‘joining hands’ - the Tribunal had remanded back with a specific direction to examine the authenticity and genuineness of the registered certificate with the brand name that was found in favor of the assessee by the lower authorities - scope of SCN - Held that: - no law permits to raise the new ground and reject the claim of the assessee - In the case of Paper Products Ltd. v. CCE, Mumbai [2007 (7) TMI 422 - SUPREME COURT OF INDIA], Hon’ble Supreme Court observed that when the CESTAT remanded the matter on specific terms then no new terms can be added.
The lower authorities had committed an error by raising a new point which was outside the scope of the order passed by the Tribunal - appeal allowed.
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2016 (11) TMI 1518
Valuation - memory cards of 2 GB and 4 GB - contention of the appellant is that though there was misdeclaration, but the same was not intentional inasmuch as the declaration of the value was based upon the invoices raised by the foreign supplier - Held that: - appellant’s arguments that the said misdeclaration was not intention, cannot be appreciated inasmuch as the intention, which is only in the mind of a person has to be gathered from the circumstances. The appellant very well knew that the value of the goods was much on the lower side as they themselves imported the same at a higher value vide previous Bill of Entry. As such, it was their legal obligation to declare the correct value in the Bill of Entry - demand of duty with penalty upheld.
Redemption fine - Held that: - Inasmuch as the differential duty was around ₹ 95,000/- for which the adjudicating authority has imposed a penalty of same amount, we deem it fit to reduce the same to ₹ 95,000/-.
Appeal dismissed except reduction of redemption fine.
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2016 (11) TMI 1517
Valuation - includibility - value of know-how to be included in the assessable value - Held that: - there is no reference of any capital goods sales under the agreement. Since the agreement does not find any mention of the supply of any material or capital goods, it cannot be stated that the technical know-how fee and technical assistance fee, are related to purchase of any material or capital goods - the royalty is linked to the value, which excludes the value of any material purchased from HONDA Foundry Ltd. In facts of the case, it cannot be said that the technical assistance fee is linked as a condition for sale of material - appeal dismissed - decided against Revenue.
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2016 (11) TMI 1516
Scope afforded by Customs Act, 1962 for disposition of amounts deposited by noticees during investigations into misdeclaration of imported goods and re-determination of value of imported goods merely on the support of statements - short payment of duty - penalty.
Held that: - There can be discounting of conscience among the good denizens of a nation and it is well within the realms of rational reality that importers may, of their own volition, come forward to pay duty that was short-levied without waiting for a demand under Section 28 or seizure of offending goods under Section 110 of Customs Act, 1962. Unfortunately, the temporal facet of the legislature shies away from foraying into the spiritual domain to acknowledge, by a special provision, a special enabler for conscience in duty collection. And that gap has ensured that there is no legal sanctity to voluntary payment of duty during the pendency of investigation. Such provisions do exist in Central Excise law and Finance Act, 1994; as yet, such does not under Customs Act, 1962 because, unlike the other two laws, each transaction is discrete and separate with no registration or status as ‘assessee’ or ‘importer’ except during the pendency of a consignment for clearance.
Assessment is not an exercise in value judgment, serendipitous divination or inspired revelation. Specific Rules have been notified to ensure consistency and objectivity. These Rules are the distillate of experiences and wisdom of, not just a people but, peoples. Non-acquiescence of the propriety and sanctity of the Rules is to betray an ignorance or obduracy that does no credit to the organizational commitment to professionalism. Valiantly attempting to assure that the impugned order is legal and proper, learned Authorized Representative contends that no such error has been committed.
It would appear that Revenue prefers to ignore the test of relevancy of statements in Section 138B(2) of Customs Act, 1962 as it applies to adjudication proceedings; the truth of any statement that has not the support of any other corroborative evidence is ascertainable only when the authority concerned admits that as evidence after examining the deponent as a witness.
The statements recorded under Section 108 of Customs Act, 1962, purportedly admitting to undervaluation, has, apparently, elicited the prevailing price and also essayed the manner in which the additional consideration has been routed to suppliers. These are valuable inputs acquire sanctity only in the tempering heat of challenge and survival. Credibility is accorded only in cross-examination which, though demanded by appellant at the adjudication stage, was refused on the ground that there was no need to do so. Indubitably, the Indian Evidence Act, 1872 has been interpreted to accord evidentiary value to statements recorded by officers of Customs in contradistinction to that recorded before police officers. That, however, is no claim to infallibility or imposition in the absence of corroboration.
The lack thereof requires rectification by the original authority - the matter to be heard afresh with opportunity afforded to noticees for cross-examination of deponents - appeal allowed by way of remand.
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2016 (11) TMI 1515
Benefit of N/N. 228/88-Cus., dated 1-8-1988 and 234/92-Cus., dated 26-6-1992 - import of goods by the appellants, for the manufacture of goods required for the Light Combat Air Craft Programme - Department took the view that appellants are not eligible for benefit of notification since the notification had lapsed with effect from 13-12-1992 whereas the impugned goods had been imported during the period 1-1-1993 to 8-6-1993.
Held that: - Since the appellant had communicated the ad hoc exemption order and also filed refund claim thereof the same should be treated as a request for re-assessment. It should also be kept in mind that the appellant is an organization under Ministry of Defence involved in work of defence of the country. This being so, the procedural lapses if any by the appellant are very much in the nature of curable defects - appeal allowed.
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2016 (11) TMI 1514
Opportunity for placing the provision of The Tamil Nadu Shops and Establishments Act, 1947 making the appellant duty bound to maintain cleanliness of the establishment under section 20 of the said Act read with rule 5 framed there under - Held that: - the matter is remanded to the adjudicating authority to consider the entire plea on the law stated as well as agreement between the party for resolving the dispute at the grass root level - appeals are remanded to the adjudicating authority.
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2016 (11) TMI 1513
Appropriate arm's length interest for bench marking the transactions for providing interest free loan to the A.E. - LIBOR +2% as fair rate of interest for the IT's entered into by the assessee with its AE - Held that:- While deciding the appeals for the earlier years, the Tribunal while deciding similar issue followed its earlier order for the assessment year 2009–10, and held that LIBOR plus 2% is the appropriate rate of interest for the interest free loan transactions with A.E. The learned Departmental Representative has not brought to our notice any material change in the facts and circumstances in the impugned assessment year to deviate from the view expressed by the Tribunal - Decided in favour of assessee
Disallowance u/s 14A - Held that:- As decided in assessee's own case Tribunal after considering similar claim made by the assessee, directed the Assessing Officer to examine and not to disallow any expenditure under section 14A if it is found that investment is made in foreign subsidiary. - Decided in favour of assessee
Addition of 3% risk premium added to cost of internal borrowing while arriving at ALP of interest rate to compute interest on interest-free advance given by the assessee to its AE - Held that:- While deciding the first ground of appeal filed by the assessee we have discussed the facts of the issue under consideration. In our opinion,the AO was not justified in adding 3% risk premium to the cost of borrowing, as held by the DRP. We decide the effective ground of appeal against the AO.
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2016 (11) TMI 1512
Disallowance u/s.40(a)(ia) - amendment to provisions of section 40(a)(ia) - Retrospectivity effect of amendment - Held that:- Pune Bench of the Tribunal in the case of Radhesham Bherulal Bhandari (2016 (2) TMI 1154 - ITAT, PUNE) while deciding an identical issue has held that the second proviso to provisions of section 40(a)(ia) is clarificatory and therefore retrospective in operation and as a consequence once the payee has discharged its tax obligation in accordance with law, operation of section 40(a)(ia) stands dispensed with - thus restore the issue to the file of the Assessing Officer with a direction to give an opportunity to the assessee to substantiate with evidence to his satisfaction that the payee has already included this income in its return and paid the taxes thereon - Decided in favour of assessee for statistical purposes.
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2016 (11) TMI 1511
Reopening of assessment - Eligibility for deduction U/S 80IB - non-furnishing of reasons recorded by AO - Held that:- As this is not disputed that the reasons recorded were not furnished by the AO to the assessee, we decline to interfere with the order of the ld. CIT(A) on this issue i.e. regarding quashing the assessment order on this basis that the reasons recorded for re-opening were not furnished to the assessee by the AO. See Commissioner of Income Tax Versus M/s Trend Electronics [2015 (9) TMI 1119 - BOMBAY HIGH COURT]when the AO failed to furnish the reasons recorded for re-opening of the assessment, the re-assessment order passed by the AO is bad in law - Decided in favour of assessee
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2016 (11) TMI 1510
Transfer pricing adjustment u/s 92CA - international transactions relating to receipts in respect of investment advisory services - selection of comparables - Held that:- This issue raised stands concluded against Revenue and in favour of the Assessee by the decision of this Court in CIT v/s. Carlyle India Advisors (P) Ltd. [
2013 (4) TMI 486 - BOMBAY HIGH COURT] and CIT v/s. General Atlantic (P) Ltd. [2016 (3) TMI 736 - BOMBAY HIGH COURT]
Appeal admitted on substantial question at (a) - Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in law in deleting the disallowance of expenditure of ₹ 10,41,90,731/u/ s. 40(a) (ia) of the Act ?
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2016 (11) TMI 1509
TPA - comparable selection criteria - functional comparability - Held that:- Services provided by the assessee are in the nature of Information Technology Enabled Services, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Deduction u/s.10A - Held that:- Hon’ble Karnataka High Court in the case of CIT v M/s Tata Elxsi Ltd. & Others (2011 (8) TMI 782 - KARNATAKA HIGH COURT) had held that while computing the exemption u/s 10A, if the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded from the total turnover in the denominator.
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2016 (11) TMI 1508
Assessment u/s 153C - assessee declared an amount as "short term capital gains" and claimed benefit of the provisions of section 111A of the Act relating to the "tax on short term capital gains" suo moto in certain cases - AO never mentioned that the above additional income is attributable to any incriminating material seized u/s 132 - Held that:- It is evident from the record that the AO did not have evidence / incriminating material to show that the said income of ₹ 28,12,544/- or deduction of ₹ 1,10,000/- has a basis of any incriminating material found during the search action. However, this is the case where adjudication by the CIT (A) is done in the absence of the assessee or his representative.
Considering the fairness of the requirement of the adjudication of issues involved, we are of the opinion, the grounds raised by the assessee in the appeal are required to be remanded to the file of the CIT (A) for fresh adjudication after granting a reasonable opportunity of being heard to the assessee. Assessee is also directed to make attendance without fail this time in the second round of proceedings before the first appellate authority. We order accordingly. Thus, grounds raised by the assessee are allowed for statistical purposes.
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2016 (11) TMI 1507
Sanction of the scheme of arrangement allowed - Let the response/report to the present petition be filed by the Official Liquidator as well as the Regional Director within six weeks thereafter. Rejoinder thereto, if any, be filed within a period of four weeks thereafter.
The petitioner shall publish the notice of the hearing in newspapers “Times of India” (English edition) and “Veer Arjun” (Hindi edition), in terms of the provisions of Rule 80 of the Companies (Court) Rules, 1959. Notice of hearing shall also be uploaded on the website of the petitioner as also on the website of the Ministry of Corporate Affairs. For this purpose, the petitioner shall supply a copy of the advertisement to be published, to the Regional Director.
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