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Case Laws
Showing 241 to 260 of 1558 Records
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2017 (2) TMI 1323
Rectification order u/s 69(1) of the KVAT Act, 2003 - partial input rebate - time limitation - Held that: - once an application has been filed for rectification, the same should be decided within a reasonable time frame - this Court directs respondent No.1 to decide the said application keeping in mind that the benefit of full rebate - respondent No.1 shall decide the application within a period of one month from the date of receipt of copy of this order - petition allowed.
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2017 (2) TMI 1322
Arbitration agreement - works contract - Disputes arose between the appellant and the respondent in respect of execution of the work. According to the appellant, certain payments were not made to it by the respondent though it had executed work - The appellant contended that since it was a back to back contract, the manner in which the rates are revised upward and received by PCL from HSCL, benefit thereof has to be given to the appellant also. The matter with regard to the revision of rates, which formed part of Claim No. 1, pertains to item nos. 1 and 6 which were to be executed by the appellant.
Whether the principle of incorporation would enter into and extend to this sub-contract as well in the absence of any clause of back to back contract appearing in the contract that was signed between the appellant and the respondent?
Held that: - There was a clear understanding between them that in case HSCL is able to get extra payment in respect of item Nos.1 and 2, HSCL had to pass on the said benefit to the respondent after retaining 5% of the enhanced amount so received. However, there was no such stipulation in the contract entered into between the appellant and the respondent.
Entire thrust in the argument of the learned counsel for the appellant before us was that there was back to back contract as according to him the aforesaid stipulations contained in a contract between HSCL and the respondent stood incorporated in the contract entered into between the appellant and the respondent as well. However, we do not find it to be so. Since that was the basis on which the learned arbitrator awarded the claim, the High Court has rightly held that it is a fundamental error committed by the arbitrator.
Though the respondent has been able to get the benefit of enhanced rate in respect of Item Nos.1 and 6 and is able to retain the same thereby depriving the appellant to get this benefit. However, in a matter of contract where the parties have to stick to govern by the provisions of the contract entered into between them, equity has no role to play. Insofar as contract between the appellant and respondent is concerned, appellant was satisfied with “escalation” clause. Respondent, while entering into contract with HSCL ensured that enhancement of rates by the principal employer i.e. NHPC in favour of HSCL will enure to the benefit of the respondent PCL as well. The appellant, however, could not successfully negotiate this aspect with the respondent in the absence of any such clause/arrangement in the contract entered into between the appellant and the respondent. As the contract between appellant and respondent deals only with escalation, appellant has to be satisfied with the same.
Appeal dismissed.
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2017 (2) TMI 1321
Deduction u/s 54 - Held that:- CIT(A) observed that the deduction u/s 54 is available only to an individual or a Hindu Undivided Family and the assessee-trust is neither an individual nor a Hindu Undivided Family; whereas the assessee-trust is being assessee in the status of ‘AOP’. Thus, he rightly held that the assessee is not entitled to the deduction u/s 54. CIT(A) held that the Long Term Capital Gain arised from the transfer of a capital asset should be a building or land appurtenant thereto and must be used as a residential house. CIT(A) observed that the assessee had sold its Farm House which was never been used as a residential house. No evidence was furnished in this regard either before the lower authorities or before us for the contention that the Farm House was used as a residential house. The assessee could not establish as to whether any income was earned from the aforesaid farm house which was being assessed as ‘income from house property’.- Decided against assessee.
Disallowance for set off of brought forward capital loss - Held that:- CIT(A) held that no capital loss was declared in the return filed by the assessee for the AY 2006-07, which could have disclosed the Long Term Capital Loss in the column meant for income from capital gains. CIT(A) also observed that the assessment for the AY 2006-07 was completed u/s 143(3) and the said assessment order, there was no mention about the loss incurred on account of sale of shares and he accordingly concluded that the assessee had not disclosed the Long Term Capital Loss in the return filed for AY 2006-07 and also not raised the issue of not determining the loss to be carried forward in the order passed u/s 143(3) of the Act before the Assessing Officer and therefore, the set off of carried forward Long Term Capital Loss was not allowable to the assessee. - Decided against assessee.
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2017 (2) TMI 1319
Estimation of the unaccounted production based upon power consumption - Variation in consumption of electricity units pmt. of finished goods as reproduced in the assessment year - unaccounted investment in unaccounted production and unaccounted profit out of the unaccounted production - addition to income - Held that:- All the respective grounds of appeal in cross appeals are connected with estimation of the unaccounted production based upon power consumption by estimating unaccounted investment and unaccounted profit out of unaccounted production and on the same, Revenue Department has constituted the Committee to consider the grievances of the assessees/tax payers and CIT issued the above guidelines by modifying the basis of estimation of unaccounted production and same guidelines have been adopted in subsequent years by the respective Assessing Officers.
Thus entire matter requires re-consideration at the level of the Assessing Officer. We set aside the orders of authorities below and restore the entire issue to the file of Assessing Officer i.e. rejection of the books of account under section 145(3)/144, unaccounted production of finished goods, unaccounted profit and unaccounted investment out of unaccounted production with reference to consumption of electricity units per metric ton production of finished goods with direction to re-decide the entire issue in accordance with law in the light of the internal guidelines issued by the ld. Pr. Commissioner of Income Tax, Patiala. - Decided in favour of assessee for statistical purposes.
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2017 (2) TMI 1318
TPA - computation of ALP - proof of reference to the TPO u/s 92CA - approval from competent authority - assessment barred by limitation - Held that:- If the Assessing Officer considers it necessary to do so, he may refer the computation of the ALP, in relation to the said international transaction, u/s 92CA of the Act, to the TPO, after obtaining approval from the Commissioner or from the Principal Commissioner.
What has to be referred by the Assessing Officer is the computation of ALP in relation to the said international transaction. No letter or correspondence making the reference to the TPO by the Assessing Officer is produced before us. Moreover, the approval was taken from the DIT(IT)-Kolkata, for referring M/s. Dongfang Electric, Kolkata Project Office to the TPO and not any international transactions. The TPO, in this case tried to identify the international transactions that the assessee has entered into and then proceeded to determine the ALP. No international transaction was identified by the Assessing Officer and referred to the TPO after taking approval of the DIT (International Taxation). The assessee’s case is that there is no international transaction on the facts of his case. This aspect should have been adjudicated and approval taken from the appropriate authority. Thus, the mandate of the Section has not been followed by the Assessing Officer. Hence we have no other alternative but to hold that the reference to the TPO, u/s 92CA of the Act is bad in law.
Assessing Officer is bound to pass an assessment order before 31st March, 2014 for the Assessment Year 2011-12. The extended time u/s 153(1) of the Act, does not come into play in the facts of this case. Hence in our considered view, the assessment is barred by limitation. - Decided in favour of assessee.
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2017 (2) TMI 1317
Penalty u/r 26 of CER 2001/2002 and Rule 13/15 of CCR 2002/2004 - whether when the main noticee M/s. HUF have been granted immunity from imposition of penalty by the Settlement Commission, whether penalty can be imposed upon the present appellants, who are charged with colluding and abbeting M/s. HUF?
Held that: - As per the majority order, the present appeals are not to be allowed on the basis of immunity available to them on account of main noticee having settled the issue before the Settlement Commission and their liability to penal action is to be examined on the basis of merits of each case.
As the same have not been discussed, the appeals may be listed for disposal on merits.
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2017 (2) TMI 1316
Refund claim - time limitation - N/N. 27/2012 - Held that: - Section 11B of the Act provides that a refund claim could be made by an assessee before the expiry of one year from the relevant date. It is not disputed that in the present case, the refund claim was made by the respondent-assessee before the expiry of one year from the relevant date - The finding of the Tribunal that the refund claim made by the respondent-assessee was not time barred is just and proper and cannot be interfered with.
Scope of SCN - Whether the clearances made by the respondent-assessee to International Competitive Bidding could be considered as export? - Held that: - The appellate authority as well as the Tribunal have held that by the show cause notice, the respondent-assessee was not asked to show cause why the clearances made to international competitive bidding cannot be considered as exports. Since the assessee was not asked to show cause on the aforesaid question, the grounds in appeal cannot travel beyond the SCN.
Appeal dismissed - decided against Revenue.
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2017 (2) TMI 1315
Benefit of N/N. 49/2000-Cus., dated 27-4-2000 - denial on the ground that on the relevant date of presentation of the Bill of Entry, the Notification No. 49/2000-Cus., dated 27-4-2000, had not seen the light of the day - Held that: - Law is well settled that grant of a notification is effective from the date of its issue as has been held by the Apex Court in the case of CCE v. Sunwin Technosolution Pvt. Ltd. [2010 (9) TMI 71 - SUPREME COURT OF INDIA] - appellant is not entitled to get the benefit of N/N. 49/2000-Cus., dated 27-4-2000 which was not in force at the time of filing of Bill of Entry.
In absence of any materials to show that the EPCG licence was amended by the authority, there is no scope to intervene to the findings of the adjudicating authority on that count also.
Appeal dismissed in toto.
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2017 (2) TMI 1313
Valuation - includibility - overheads - Held that:- The detriment to the appellant is based on the addition of overheads to the assessable value of the tested batteries. No evidence has been placed before us to support the credibility of the overheads as computed in the show cause notice. Nor is there any statutory backing for inclusion of this value of overheads to the damaged batteries - the overheads, to the extent allegedly not added, will necessarily be included in the value of prime products cleared from the factory and these being subjected to duty, cannot once again be subject to duty by enhancement of the assessable value to the extent of overhead costs.
The first appellate authority have erred in attempting to redetermine the assessable value without adequate justification - appeal allowed.
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2017 (2) TMI 1312
Mis-declarartion of goods - Confiscation - adverse report - appellant says that a very small sample taken from the first lot had resulted adverse inference against the appellant for which the second lot test report should be utilised in respect of the first lot cleared provisionally - Held that: - It is common sense that test result is applicable in respect of a lot from which sample is taken but not to any other lot. The test result of the first lot of consignment proved the nature and character of the goods therein - The sample taken from the first lot of goods provisionally released, resulted in adverse report against the appellant. There is no prayer of the appellant to the authority to re-test the samples thereof if the appellant had doubt. In absence of any such prayer, no plea of use of test report of second lot of consignment against first lot of consignment is untenable.
Not only duty is imposable but mis-declared goods become smuggled goods under Section 2(39) of the Customs Act, 1962 for which that was liable to confiscation and penalty.
Appeal dismissed.
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2017 (2) TMI 1311
Works contract service - construction activity - whether appellant is liable to service tax in respect of the contracts executed for the period from 10.9.2004 to 31.5.2007? - Held that: - Law relating to levy of service tax on work contract was enacted with effect from 1.6.2007. Although theory of equivalence was enacted in section 67 of the Finance Act, 1994 with effect from 18.5.2006 to determine the value of the services involved in works contract, law relating to the levy of service tax on works contract was enacted with effect form 1.6.2007 - There shall be no levy of service tax on the indivisible works contract executed from 10.9.2004 to 31.5.2007. But for the period thereafter, appellant shall be governed by section 67 of the Finance Act, 1994 for determination of value of service involved in the works contract made taxable with from 01.06.2007 and by the composition scheme, if any, opted by it if otherwise not deniable to such scheme.
Penalty - Held that: - in view of the confusion of the law relating to leviability of service tax on works contract, there shall be no penalty.
Appeal allowed in part and part matter on remand.
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2017 (2) TMI 1310
Registration u/s 12AA eligibility - benefit of a particular religious community - Held that:- There is no dispute with regard to the fact that as per definition of ‘Charitable purpose’ under section 2(15) includes relief of the poor, education, medical relief (preservation of environment(including watersheds, forests and wildlife) and reservation of monuments or places or objects or artistic or historic interest) and the advancement of any other object of General Public Utility.
As the assessee submitted that ‘Jainism’ is the philosophy and preservation of symbol of such philosophy would definitely come into the embrace of the word ‘Charitable’. During the course of hearing, the Id. D/R could not refute the fact that clauses 16 of the objects which provides that without any descrimination of the caste or creed to help economically poor, old, ailing, handicap, poor students and clause 17 provides for hel0p for hospitalization of ailing persons, medicines, cold water, night shelter and Dharamshala etc. In our considered view, both these objects definitely fall under the category of Charitable purpose and cannot be construed as solely for the benefit of a particular religious community. See CIT vs. Dawoodi Bohara Jamat (2014 (3) TMI 652 - SUPREME COURT) - Decided in favour of assessee
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2017 (2) TMI 1309
Winding up petition - matter before the Principal Bench, NCLT - Held that:- In terms of the notification Regd. No.D.L.-33004/99 dated 07.12.2016, issued by the Ministry of Corporate Affairs and in particular, Clause 5 thereof, the present winding up petition under Section 439 (1) (b) of the Companies Act 1956 read with Rule 11, 106 & 107 of the Company (Court) Rules, 1959, stands transferred to the Principal Bench, National Company Law Tribunal, New Delhi
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2017 (2) TMI 1308
Refund of duty paid under protest - unjust enrichment - whether the Appellant became successful in satisfying the authorities that the incidence of duty claimed as refund has been borne by them and not passed on to any other person? - Held that: - initially the Adjudicating authority after analyzing the evidences on record, sanctioned the refund, observing that the Appellant could satisfy that the burden of duty has not been passed on to any other person. However, on an appeal by the Revenue, the learned Commissioner (Appeals) arrived at an altogether different finding on which was not communicated to the appellant to explain/rebut the same by material particulars.
The appellant must be given a fair chance to explain the said objection/finding of the learned Commissioner (Appeals) - appeal allowed by way of remand.
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2017 (2) TMI 1307
Addition on account of capital introduced by the partner u/s. 68 - Held that:- The assessee had discharged the primary onus which was on it by offering explanation, which has not been found to be incorrect or false in any manner. The interest of the revenue is also safeguarded as the Income Tax Officer has been given the liberty to consider the said-credits in the hands of the partners if he is not satisfied with the sources of investment of cash credits in the accounts of the partners. See Pankaj Dyestuff Industries [2005 (7) TMI 601 - GUJARAT HIGH COURT] - Decided in favour of assessee
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2017 (2) TMI 1306
Receipt of on money in cash - Held that:- Considering document i.e. Kaccha receipt, Banakhat, MOU signed by one Vikas Patel and the assessee and details of the payment mentioned in the said MOU which was signed by the assessee and which was duly executed by the assessee both learned CIT(A) as well as learned Tribunal have held that unaccounted payment of ₹ 1.50 Crore has been made on the land in question. Statement of Shri Vikas Patel recorded under Section 132(4) and statement of Shri Bhagwanbhai Aajra dated 12.12.2011 (one of the purchaser) have also been relied upon. Thus it cannot be said that there is any error committed by the learned CIT(A) and learned Tribunal in holding that ₹ 1.50 crore was received in cash as on money. - Decided against assessee.
admitted to consider the following question of law.
"E. Whether on the facts and in the circumstances of the case as well as in law, the Appellate Tribunal could have come to the conclusion that the entire gain on sale of said land was assessable as business income as against short term capital gain assessed by AO ?"
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2017 (2) TMI 1305
Addition on account of guarantee commission chargeable to its associated enterprises - tribunal deleted addition - Held that:- We note that the impugned order of the Tribunal while allowing the assessee's appeal holding that the arm's length price of corporate guarantee cannot be determined on the basis of comparison with the bank guarantee and relied upon the decision of Everest Kento Cylinders Ltd. [2015 (5) TMI 395 - BOMBAY HIGH COURT]. No substantial question of law.
Interest charged under section 234B - MAT computation - tribunal deleted addition - Held that:- As decided in CIT v. JSW Energy Ltd. [2015 (5) TMI 823 - BOMBAY HIGH COURT] there would be no liability to pay interest under section 234B of the Act in view of a retrospective amendment made to section 115JB of the Act. This on the ground that at the time of making the payment of advance tax the respondent was under no obligation to pay advance tax and the same arose only on account of retrospective amendment to the law which came post the conclusion of the previous year relevant to the subject assessment year.The liability to interest under section 234B of the Act would only arise as a con sequence of failure to pay advance tax. No substantial question of law.
Addition outstanding creditors under section 41(1) - liabilities had been outstanding for more than three years and had ceased to exist - Tribunal deleted the addition - Held that:- Revenue accepted the order of the Tribunal adverse to it on this issue for the assessment year 2005-06. However for the assessment year 2006-07 [2015 (2) TMI 1262 - BOMBAY HIGH COURT] in respect of the same respondent, the Tribunal on this very issue followed its order for the assessment year 2005-06 and held in favour of the respondent by order dated July 27, 2012. However the Revenue preferred an appeal from the order of the Tribunal dated July 27, 2012 relating to the assessment year 2006-07. By an order dated February 4, 2015 this court did not entertain the appeal on an identical question as raised herein. No distinction in facts and/or in law in this assessment year to that existing in the assessment years 2005-06 and 2006-07 has been shown to us which would require taking a different view. - Revenue appeal dismissed.
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2017 (2) TMI 1304
Unexplained investment - no source to explain such investments - Held that:- When both the balance sheets of the assessee-company and balance sheets of the companies in which the assessee had invested, reflected the amounts of investments and these correctly tallied, we cannot brush aside such accounts and auditor’s report. Doing so would be giving a licence to any assessee-company to prepare any balance sheet and thereafter go back and say itself that the balance sheet was not correct. The assessee cannot be allowed to approbate and reprobate. Once assessee prepared its books of account and balance sheet which were audited by a Chartered Accountant appointed under the Companies Act as true and fair, and where the amounts reflected in the balance sheet are also shown in the balance sheets of the companies where assessee had placed the investment, we cannot disregard such balance sheets. It may be true that the banker of the assessee denied giving any loans to the assessee.
However, if the source of investment was not out of loan, the question of bank giving any confirmation does not arise. The addition was made, in our opinion, due to failure of the assessee to give proper source for investment made by the assessee in M/s Sri Padmabalaji Steels Pvt. Ltd. and M/s Suryabalaji Steels Pvt. Ltd. Assessee’s claim that it was only book entry cannot be accepted since the amounts were correctly reflected in the balance sheet of the assessee as well as the balance sheets of M/s Sri Padmabalaji Steels Pvt. Ltd. and M/s Suryabalaji Steels Pvt. Ltd. We are of the opinion that the addition was rightly made by the A.O. and confirmed by the CIT(Appeals - Decided against assessee.
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2017 (2) TMI 1303
Monetary amount involved in the appeal - CBEC Circular dt. 17/12/2015 & 01/01/2016 - Held that: - Taking note of the CBEC Circular dt.17/12/2015 & 01/01/2016, the monetary limits which indisputably in the present appeal is less than ₹ 15 lacs, much less than what has been prescribed for filing appeal before the High Courts, deserve to be dismissed as not pressed - the substantial questions of law raised in the present appeal, if any, is left open to be examined in an appropriate proceeding, if arises in future.
Appeal dismissed - decided against Revenue.
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2017 (2) TMI 1302
Unexplained credit u/s 68 - proof of identity, genuineness of the transaction and creditworthiness of the creditor of the four companies - Held that:- Whether investee companies have their own profit making apparatus and were involved in any tangible business activity or were they merely rotated money, which was coming through the bank accounts, which means deposits by way of cash and issue of cheques. Creditworthiness and genuineness of the transaction is therefore not proved by showing merely issue and receipt of a cheque or by furnishing a copy of statement of bank account of share subscriber, when circumstances requires that there should be some more evidence of positive nature to show that the subscribers had made genuine investment.
In the present case, the Assessing Officer clearly harbours doubts about the legitimacy of share subscription in the assessee company and has gone about issuing notices under section 133(6), summons under section 131 and calling for the personal attendance of the directors of the investee companies. When the Assessing Officer sets about seeking explanation for the credit entries in the books of account of the assessee in terms of section 68, it is legitimately expected that the exercise would be taken to the logical end.
Whilst it does appear that the time given to the assessee company for proving the identity and creditworthiness of the investee companies was too short, the whole exercise started at the fag end of assessment proceedings and further that it is probably not always possible for the assessee placed in such situation to be able to enforce the physical attendance of the Directors who are not in Jaipur, the curtains on such exercise at verification may not be drawn and adverse inferences reached only on the basis of returning undelivered of the summons under section 131. Conversely, with doubts as to the identity, creditworthiness and genuineness of transaction persisting in the minds of the Assessing officer, the initial burden on the assessee cannot be said to be have been discharged. We accordingly set aside the matter to the file of the AO to examine the matter a fresh taking into consideration the legal proposition. Appeal filed by the Revenue is allowed for statistical purposes.
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