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Case Laws
Showing 241 to 260 of 1439 Records
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2015 (7) TMI 1204
Classification of imported goods - Lime Stone Powder - The importer claimed exemption from payment of basic customs duty relying on a Notification bearing No. 46/2011-Cus., Sl. No. 192(1). Such exemption is available to specified goods when imported from specified country - The test report revealed that the samples have the “characteristic of precipitated Calcium Carbonate. It is other than Calcium Carbonate (Natural) - petitioner requested for retesting - Held that: - this Court directs the concerned respondent authority to send a sample of the goods imported drawn in presence of the writ petitioner for sending the same to the National Test House or any other reputed test laboratory which the respondent authorities may deem fit and proper for the purpose of retesting. The expenses of such test shall be borne solely by the writ petitioner. Till such time the report is made available, the impugned order of adjudication shall be kept in abeyance - matter on remand.
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2015 (7) TMI 1203
Reopening of assessment - unexplained gifts received - Held that:- The issue is squarely covered in favour of the Revenue and against the assessee by the decision of Hon'ble jurisdictional High Court in the case of Jaspal Singh vs CIT (2006 (9) TMI 143 - PUNJAB AND HARYANA High Court) wherein it has been held that mere identification of the donor and showing the movement of the gift amount through banking channel is not enough to prove genuineness of the gift. The assessee is required to establish that the donor had the means and the gift was genuine, for natural love and affection. The facts of the present case are almost similar to the facts of the case above, thus find no infirmity in the findings of the lower authorities on this issue. - Decided against assessee
Reasons for reopening of the assessment are different from the basis on which addition was made by the Assessing Officer - Held that:- Assessing Officer has power to make additions even on the ground on which reassessment notice might not have been issued in case during reassessment proceedings, he arrives at a conclusion that some other income has escaped assessment which comes to his notice during the course of proceedings for reassessment under section 148 of the Act. Respectfully following the ratio laid down by the Hon'ble jurisdictional High Court in the case of Majinder Singh Kang vs CIT (2012 (6) TMI 616 - Punjab and Haryana High Court) hold that reopening of the assessment was valid and, therefore, ground raised by the assessee in this appeal deserves to be rejected.
Penalty u/s 271(1)(c) - Held that:- The gift said to have been received by the assessee was held to be bogus. Once that is so, the only conclusion is that the assessee had furnished inaccurate particulars of his income and the order of the Tribunal deleting the penalty is unsustainable in law. Accordingly, it is held that the assessee had concealed the particulars of income and, thus, penalty was liable to be levied against him under section 271(1)(c) of the Act. See CIT Vs. Deep Chand [2011 (2) TMI 604 - PUNJAB AND HARYANA HIGH COURT] - Decided against assessee
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2015 (7) TMI 1202
Business expenses claimed in the absence of likelihood of any business income - Held that:- The assessment orders for the Assessment Year A.Y. 2008-09 as well as for the A.Y. 2010-11 was passed u/s 143(3) of the Income Tax Act, 1961 (the Act) and the income in question was assessed under the head “income from business”. Thus for the immediate preceding year and the subsequent year the AO accepts the assessee’s stand that business has commenced. The purpose for which the assessee company was set up, is to develop power and other infrastructure projects, either directly or indirectly, through special purpose vehicles (SVPs) by participating in the equity share holding and management of the project companies. The First Appellate Authority has on the ground of consistency allowed the claim of the assessee. We find no infirmity in this order of the Ld.CIT(A). Hence we uphold the same and dismiss this ground of Revenue.
Addition u/s 14A - Held that:- The assessee has shown turnover from execution of contracts. In our view this is not material as the investment in this case is made in the form of SPVs to undertake contracts and thus trade investment. Applying the propositions laid down in this case law to the facts of the case, we hold that no disallowance can be made u/s 14A of the Act.
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2015 (7) TMI 1201
Addition alleging short / incorrect accounting of stock - Held that:- The issue in dispute is squarely covered by the decision of ITAT, Hyderabad in assessee’s own case for AY 2009-10 wherein held the assessee is maintaining the stock of material on behalf of others and only charging fixed amount for this service, and as such, apparently, there is no need to admit the same in their books as stock in trade, he confirmed the same holding that the assessee did not specify how the balance figures are shown in the books of VSSC and what is the effect of this confirmation. This reasoning given by the CIT(A) cannot be accepted because VSSC has certified the stock under consideration belongs to it and in no way the ownership of the stock pertains to the assessee. Just because the stock is kept with the assessee the same cannot be treated as the stock of the assessee, as it belongs to a third party, viz. VSSC in this case. We agree with the assessee’s contentions on this issue and direct the Assessing Officer to delete the said addition.
Addition u/s 14A - Held that:- the principle laid down by different High Courts are to the effect that unless assessee has earned exempt income in a particular FY, provisions of section 14A will not apply. In view of the aforesaid, we do not find any merit in the ground raised by the department. Accordingly, we dismiss the same by upholding the order of ld. CIT(A) on this issue. See case of Cheminvest Ltd., reported in (2015 (9) TMI 238 - DELHI HIGH COURT )
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2015 (7) TMI 1200
Tax effect - monetary limit - Addition under Section 41(2) - Held that:- As the present reference has a tax effect in the aggregate of less than ₹ 1 lakh the reference is returned unanswered. See Commissioner of Income Tax v. M/s.Computer Point [2015 (7) TMI 1087 - BOMBAY HIGH COURT ]
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2015 (7) TMI 1199
Tax effect - monetary limit - Additional depreciation and investment allowance eligibility - whether ITAT was right holding that the jetty is tool or an apparatus of the assessee with the help of which the business is carried on and it is a plant - Held that:- As the present reference has a tax effect in the aggregate of less than ₹ 1 lakh the reference is returned unanswered. See Commissioner of Income Tax v. M/s.Computer Point [2015 (7) TMI 1087 - BOMBAY HIGH COURT ]
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2015 (7) TMI 1198
Refund claim - Advertisement and sponsorship service - denial on account that the said service has been utilized for promotion of Brand HCL, which includes the other units apart from the appellant herein - Held that: - the appellant has already been granted the refund benefit with regard to the disputed services by this Tribunal in its own case, thus, in this case also the appellant should be allowed the refund benefit.
Visa charges - Held that: - the same is not eligible for refund inasmuch as such charges were incurred by the appellant for the family members of the employees, which cannot be termed as input service for the purpose of getting the refund benefit.
Appeal allowed - decided partly in favor of appellant.
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2015 (7) TMI 1197
Refund claim - Section 11B of the CEA, 1944 - denial on the ground that there was no order from the competent authority in allowing payment of duty on provisional basis and therefore, the value assessed is not provisional and is final - Held that: - On perusal of Rule 9B of the erstwhile Rules and Rule 7 of the present Rules, it reveals that as far as the procedures are concerned, there is no change in the said Rules. In both the said Rules, there is no stipulation that provisional assessment can be resorted to by the assessee for a specified period. In absence of any specific stipulation/ prohibition prescribing for the time limit for which the provisional assessment shall be valid, the order dated 7.7.1989 allowing the provisional assessment by the Jurisdictional Central Excise Authorities will hold good for the disputed period, even if, the said period is governed under Rule 7 of the Central Excise Rules, 2002.
Though the final price of goods has been settled between the appellant and its buyers, but in absence of acceptance of such final price by the Central Excise Authorities u/r 7 of the CEA, the refund application filed by the appellant is pre-mature. Thus, rejection of refund application on the ground that no permission has been granted for resorting to provisional assessment or the same is barred by limitation of time is not sustainable under the law.
The refund application can only be filed upon finalization of assessment, which has not yet been done. Hence, after setting aside the impugned order, the matter is remanded back to the Original Authority for finalization of the provisional assessment and for passing necessary/ appropriate orders to that effect - appeal allowed by way of remand.
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2015 (7) TMI 1196
CENVAT credit - denial on the ground that credit availed without proper/valid documents - demand of credit - penalty - Held that: - no specific allegations have been made in the SCN as to why the invoices on which cenvat credit has been taken by the appellant, should not be considered as proper/ valid documents and how the provisions of Rule 3 & 4 of the CCR, 2004 have been contravened. The SCN has been issued solely based on the objections raised by the Audit Wing during their visit to the factory of the appellant in the month of January 2007. Further, the SCN has not specifically alleged the involvement of the appellant in any fraudulent activities concerning suppression, misstatement, collusion, with intent to avail the cenvat credit.
Extended period of limitation - Held that: - for invoking extended period of limitation, the SCN has only alleged that the assessee has never informed the department regarding the availment of cenvat credit and the said fact only came to the notice of the department during the course of audit of records. In absence of any specific allegation of the ingredient mentioned in the proviso to Section 73(1) of the FA, 1994, the extended period cannot be invoked, justifying confirmation of the demand beyond the period of one year.
Appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1195
CENVAT credit - various steel items - denial on the ground that the said goods are not confirming to the definition of either inputs or capital goods - Held that: - the appellant had purchased the old and used steel plant with its furnace in the year 2007 and to make it workable, the disputed goods have been used for construction/ erection of rolling platform, penal track material, supporting stand, storage, platform and for repairing of old and used parts. Considering the activities undertaken by the appellant - disputed goods should merit consideration as inputs for the purpose of taking cenvat credit.
Extended period of limitation - Held that: - the appellant had intimated the cenvat particulars with regard to the disputed goods in the RG-23 part-II Register and also reflected in the monthly ER-I return filed before the Jurisdictional Central Excise Authorities - the activities of the appellant were within the knowledge of Department, the SCN issued by invoking the extended period of limitation, is not maintainable.
Appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1194
Works contract - Taxability of turn-key projects related to irrigation, dams etc. - Held that: - the issue stands decided by the Larger Bench decision of the Tribunal in the case of M/s. Lanco Infratech Ltd. And Others Versus Versus CC, CE & ST, Hyderabad [2015 (5) TMI 37 - CESTAT BANGALORE (LB)], where it was held that Construction of canals/ pipelines/ conduits to support irrigation, water supply or for sewerage disposal, when provided to Government/ Government undertakings would be for non-commercial, non-industrial purposes, even when executed under turnkey/ EPC contractual mode and would fall within the ambit of clause (b), Explanation (ii) of Section 65(105)(zzzza); and would consequently not be exigible to service tax, in view of the exclusion enacted in clause (b) - matter remanded to the original adjudicating authority for de novo adjudication - appeal allowed by way of remand.
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2015 (7) TMI 1193
Depreciation claim - whether block of asset pertaining to plant and machinery can be set off against the WDV of motor cars - Held that:- When we read Section 2(11)with the appendix of rate of depreciation provided in the Income Tax Rule, we find that plant and machinery and motor car have the same rate of depreciation i.e. 15%. Thus in the light of the aforementioned provision, read with the Rules, plant and machinery and motor car fall within the same block of assets. The assessee has made gain on the sale of machinery and the same is set off against the WDV of the motor car. In our considered opinion, there is no error in this conduct of the assessee. We find that it is within the frame work of the relevant provisions of the Act. The Hon’ble High Court of Delhi in the case of Ansal Properties and Infrastructure (2012 (4) TMI 469 - DELHI HIGH COURT) has held that all assets, which may be of different types, but in respect of which same percentage of depreciation is prescribed, are to be treated and form part of block of assets. Thus additions deleted - Decided in favour of assessee
Amount paid on infringement of copyright - revenue or capital expenditure - Held that:- The Plaintiff’s i.e. Shri Ram Sampat has assigned his musical works/composition “THUMP” to the Defendant one of which is assessee. It can also be seen that the payment has been made after deducting tax at source. The most relevant clause is clause (4) which clearly says that the Plaintiff i.e. Shri Ram Sampt shall not have any right of any nature whatsoever in the said work “THUMP”.
A perusal of these relevant clauses of the Consent Terms leaves no ambiguity to hold that the assessee has infact acquired the copy right of the musical composition “THUMP”. The AO has therefore rightly treated the same as intangible asset and allowed permissible rate of depreciation. Since this act of the AO has been rightly confirmed by the Ld. CIT(A), we decline to interfere.
Disallowance made u/s. 14A r.w.r 8D - Held that:- It is a well settled proposition of law that Rule 8D has been held to be constitutionally valid by the Hon’ble High Court of Bombay in the case of Godrej & Boycee Manufacturing Co. Ltd. Vs DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] and the method has been found to be reasonable. Therefore, there is no error in the computation of the disallowance. The AO has already deducted the amount suo moto disallowed by the assessee. The disallowance is only for the balance amount. The claim of the assessee that it has not incurred any expenditure for earning dividend income cannot be accepted. As assessee has debited bank interest, bank charges, demat charges, miscellaneous expenses, conveyance expenses and internet expenses. On certain portion of such expenses must have gone towards earning the dividend income. Since the disallowance has been made by the AO as per the provisions of the Act which has been confirmed by the Ld. CIT(A), we do not find any reason to interfere with the findings of the Ld. CIT(A).
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2015 (7) TMI 1192
Reversal of CENVAT credit - Rule 3(5) of the CCR, 2004 - used glass bottles and crates returned by the customers to the Respondent were removed to its sister unit under proper challans - Held that: - Since, no new bottles/plastic crates received in the factory of the Respondent were removed to its sister concern as such, the provisions of Rule 3(5) of the CCR, 2004 will not be applicable to such situation, inasmuch as the said provisions mandate payment of amount equal to Cenvat credit, in the eventuality, when the inputs or capital goods are removed as such from the factory - appeal dismissed - decided against Revenue.
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2015 (7) TMI 1191
Debonding of unit - 100% EOU converted to DTA - rebate - The original authority held that as the applicant availed higher rate of drawback comprising Customs, Central Excise and Service tax portion, the benefit of rebate cannot be held admissible as it will amount to double benefit. Accordingly, the original authority denied to sanction the rebate in cash and in such cases instead allowed re-credit in applicant’s Cenvat account.
Held that: - the applicant had paid duty on export goods from Cenvat credit account. Therefore, it cannot be claimed that Cenvat facility has not been availed for goods under export and as such Condition No. 12(ii) of N/N. 68/2007-Cus. (N.T.), dated 16-7-2007 has been violated. Since the applicant has already availed said duty drawback in violation of said Condition 12(ii), allowing rebate of duty on exported goods will definitely amount to double benefit, which is not permissible either under scheme of Drawback or Rebate of duty.
CBEC has also clarified in its Circular No. 83/2000-Cus., dated 16-10-2000 (F. No. 609/116/2000-DBK) that there is no double benefit available to manufacturer when only Customs portion of All Industry Rate of Drawback is claimed. The harmonious and combined reading of statutory provisions of Drawback and rebate scheme reveal that double benefit is not permissible as a general rule. However, in this case, the applicant has availed input stage rebate of duty in the form of higher duty drawback comprising of Customs, Central Excise and Service Tax portion, another benefit of rebate of duty paid on exported goods will definitely amount to double benefit.
The instant rebate claims of duty paid on exported goods are not admissible - revision application rejected - decided against applicant.
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2015 (7) TMI 1190
Addition invoking the provisions of Sec. 69C - Held that:- It is an undisputed fact that no adverse finding has been given in so far as sales are concerned. It is a settled proposition that without purchases, there cannot be any sales. It is also an undisputed fact that no adverse inferences have been drawn in so far as the purchase invoice of M/s. Kripa Multi Trade Pvt. Ltd is concerned. We find that the assessee has filed complete details of purchases above ₹ 2, 00,000/- made during the year under consideration. The details are exhibited at pages 22 & 23 of the paper book.
We also find that the payments made by the assessee towards purchases are duly reflected in the bank statements of the assessee which are exhibited at pages 71 to 80 of the paper book. Considering all these facts in the light of the decision of the Hon’ble Jurisdictional High Court in the case of CIT Vs M/s. Nikunj Eximp Enterprises Pvt. Ltd [2013 (1) TMI 88 - BOMBAY HIGH COURT ] which has been considered and relied upon by the Ld. CIT(A), we do not find any reason to interfere with the findings of the Ld. CIT(A) n delting addition - Decided in favour of assessee.
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2015 (7) TMI 1189
Discharge of accused - discharge on the basis of the direction issued by the High Court to dispose of the matters on priority basis pertaining to the order of 1996-1997 - Held that: - there are no reasons to proceed against the accused persons and even splitting of the case would not serve the purpose - petition rejected - decided against petitioner.
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2015 (7) TMI 1188
SSI exemption - value of clearances - denial on the ground that the value of the clearance of all excisable goods exceeded ₹ 3 crores for the year 2002-2003 - Held that: - the appellant’s contention that regarding exempted goods, Sprinkler System, etc. should not be included in the turnover is not tenable. Further, exclusion of the items purchased by them but cleared along with the Sprinkler System as a whole is also not permissible as the Sprinkler System and part thereof are cleared together as exempted goods - Further, it is seen that in spite of Board’s Circular dated 6-8-2003 and Budget Clarification dated 28-2-2003, the appellant continued to follow their own way of calculating the turnover - exemption not allowed - appeal dismissed - decided against appellant.
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2015 (7) TMI 1187
Determination of the estimated turnover of the assessee on one single transaction - Tribunal while passing the impugned order has given no reason why twenty times of the tax payable has been calculated and imposed on the assessee - Held that: - no reason has been given for imposing twenty times of the amount and even if it is in the discretion of the Tribunal to fix an amount then too some reasonable basis must be there for formation of this opinion. The decision cannot be taken on a whimsical basis. There is a vast difference between two times and twenty times. No reason at all has been given by the Tribunal in the impugned order for fixing twenty times of the amount - the matter is remitted to the Tribunal for fresh decision - revision allowed by way of remand.
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2015 (7) TMI 1186
Addition on account of the alleged excess stock found at the time of search - Held that:- The sister concern, namely ; M/s. Rajendra Prasad Narendra Kumar is closely related with the partners and there was common business of both the concerns and though the shops are at a distance but the distance between the two concerns is about 100 meters only. The claim that both the concerns being closely related, was proved on the basis of the material found during course of search that the assessee was newly constituted and M/s. Rajendra Prasad Narendra Kumar being an old concern, goods were being transferred from M/s. Rajendra Prasad Narendra Kumar and vice versa to the present assessee and during the course of search itself, the partners in question No. 6 specifically asserted that the stock of M/s. Rajendra Prasad Narendra Kumar is also vailable at the premises of M/s. N. G. Jewellers (assessee). It is also admitted that silver items to the extent of 15.5 kgs. pertaining to stock of M/s. Rajendra Prasad Narendra Kumar was lying at the residence of the partners of the assessee firm at the time of search and on the, same material, this was held to be explained. It has also come on record that stock to this extent was found short at the time of survey simultaneously held at the business premises of Rajendra Prasad Narendra Kumar. Thus, on the said fact that the items used to be exchanged between the two sister concerns and admittedly proved, in our view, this being essentially a finding of fact based on the material available on record, no substantial question of law can be said to arise out of this addition.
Purchase of jewellery - During the course of the assessment proceedings, the assessee also furnished affidavits of the above persons where they asserted that they had purchased jewellery from the assessee and paid the amount subsequently and even they had confirmed that no amount was outstanding as on the date of search. It is a finding of fact that the Assessing Officer did not call upon the persons who had filed affidavits. It is also a finding of fact that the statements of two persons, namely ; Ghasi Ram and Karan Singh were later on recorded by the Assessing Officer wherein they stated that they had paid the amount prior to the search. When admittedly all these persons have been found to have purchased goods from the assessee and adequate material was placed by the assessee before the Assessing Officer, the Tribunal has analysed the material based on the finding of fact and in our view, this being essentially a finding of fact, no substantial question of law can be said to arise out of this addition as well.
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2015 (7) TMI 1185
Gross Total Income computation for availing deduction u/s 80IB - whether the loss of one unit of business need not be adjusted against the profit of other unit of business in order to arrive at GTI? - Held that:- Legal issue raised by the revenue is squarely covered in favour of the assessee by various decisions of the Tribunal as well by that of the Delhi High Court in the case of Sona Koyo Steering Systems Ltd. [2010 (2) TMI 83 - DELHI HIGH COURT] wherein held that S. 80-I deduction is allowable without setting off loss of other units as each unit is to be treated as a separate and independent unit u/s 80-I (6) of the I.T. Act and the deduction has to be computed as if the industrial undertaking was the only source of income of the assessee. It is only those industrial undertakings which have a profit or gain which have to be considered for computing the deduction. The loss making industrial undertaking would not come into the picture at all. The loss of one such industrial undertaking cannot be set off against the profit of another such industrial undertaking to arrive at a computation of the quantum of deduction that is to be allowed to the assessee u/s 80-I (1).
As subsection (5) of section 80-IA is almost identically worded as section 80-I(6) CIT(A) therefore correctly applied the law laid down by the Hon’ble Delhi High Court in the case of “Sona Koyo Steering Systems Ltd” (supra).
Also see case of Meera Cotton & Synthetic Mills Ltd [2009 (2) TMI 506 - ITAT MUMBAI ] as held that deduction u/s 80IB is to be allowed with reference to profits of a particular undertaking and that the loss suffered in other eligible unit of the assessee can not be set off against the profits of eligible unit in question while calculating the amount of deduction u/s 80IB of the Act. - Decided against revenue
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