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Showing 261 to 280 of 2067 Records
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2017 (11) TMI 1809
Addition u/s 56(1) OR 68 - bogus share capital - Share premium received - scope of amendment to sec 56(2)(viib)and year of application - HELD THAT:- The provisions of sec 56(2)(viib) are applicable w.e.f. 1st April, 2013 and will accordingly apply in relation to AY 2013-14 and subsequent Assessment Years. The income as mentioned in section 56(2)(viib) is included in definition of section 2(24) w.e.f. 01-04-2013. Therefore, the provisions of these sections cannot be made applicable prior to that A.Y. 2013-14. It is pertinent to note that the CIT(A) had issued the show cause notice to the assessee to tax the share capital under section 68 of the I.T. Act, 1961 as against section 56(1) applied by the AO.
AO has made whole addition by invoking section 56 hence the amended provision w.e.f. 01-04-2013 are applicable only on shares premium received on fair market value. In view of these facts, it is clear that share premium received cannot be considered as income for the year under consideration by invoking provisions of section 56(1) of the Act. Therefore, in our considered view, the ld. CIT(A) has rightly deleted the addition. See M/S. MOTISONS BUILDTECH PVT. LTD VERSUS THE ACIT CENTRAL CIRCLE-2 JAIPUR AND VICE-VERSA [2017 (10) TMI 1445 - ITAT JAIPUR] - Decided against revenue
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2017 (11) TMI 1808
Garnishee order - recovery of amount of alleged service tax payable by the erstwhile proprietorship concern owned by the late father of the Managing Director of the writ petitioner company - refund of amount collected coercively from the clients of the petitioner company - invocation of provisions of Section 87 of the Finance Act, 1994 - issuance of notice u/s 73 of FA.
Held that:- The words ‘person chargeable’ and the words ‘the person to whom such tax refund has erroneously been made’, means the actual assessee, on whom, after show cause notice, if assessment is made, would be the person liable to pay the chargeable amount of service tax. So, notice seeking to show cause should be issued under Section 73 only to the person chargeable. Admittedly, M/s. Service Care Chennai is a proprietorship concern of a sole proprietor who is no more. So if at all any show cause notice to be issued under Section 73 of the Act, the notice must be given only to the person chargeable i.e., M/s. Service Case, Chennai and not to anyone.
Here in the case in hand, it is the specific assertion of the writ Court after getting necessary instructions from the Standing Counsel for the revenue that, no assessment order had been passed against the assessee i.e., M/s. Service care, which was the proprietorship concern. There was no facilitating answer from the Revenue before the writ Court as to whether the clients of the erstwhile proprietorship concern including the one L & T Valves Ltd. against whom the garnishee order had been issued, owe to pay any money to the proprietorship concern - When these two issues were made clear before the writ Court that there was no assessment order on the erstwhile proprietorship concern and there was no observation that there were clients of the proprietorship concern who had conducted their business subsequently with the petitioner company, of course with separate agreement in this regard, who had due of service tax payable to the erstwhile proprietorship concern, the provisions of Section 73(A) cannot be invoked against the petitioner company.
Recovery of amount due to the Central Government as contemplated under Section 87 of the Act - Held that:- Here in the case in hand, there is no assessment and no determination of tax liability about the erstwhile proprietorship concern namely, M/s. Service Care, Chennai in the manner known to law. When that being so, the very invocation of the Provisions of Section 87 of the Act is absolutely unjustifiable.
Thus, the attempt made by the Revenue to issue garnishee orders for recovering the amount of alleged service tax payable by the erstwhile proprietorship concern owned by the late father of the Managing Director of the writ petitioner company, was bad in law, and for the said action absolutely there is no scope for the Revenue under the relevant provisions of the Finance Act, 1994 - Merely because the Managing Director of the present writ petitioner, who is none other than the daughter of the late proprietorship concern, who is the service tax assesee, was in due according to the Revenue, had knowledge about the impugned dues payable by the erstwhile proprietorship concern as on 31-3-2010, it cannot be presumed that the said person/writ petitioner company has inherited the assets and liabilities of the said proprietorship concern. Therefore, the Revenue, since has proceeded on a wrong premises, that too without making any assessment in the manner known to law against the said proprietorship concern, we have no hesitation to hold that, the said move on the side of the Revenue cannot be appreciated or accepted.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 1807
Maintainability of appeal - Section 35-G of the Central Excise Act, 1944 - Held that:- There is no substantial question of law arises for decision in this appeal under Section 35-G of the Central Excise Act, 1944 - this appeal is dismissed in limine.
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2017 (11) TMI 1806
Transfer pricing adjustment - bench marking - royalty and technical assistance fee did not form part of a composite transaction and have to be treated as two separate transactions for the purpose of benchmarking and computing arms length price - transactional Net Margin Method applied for benchmarking/computing arm's length price in respect of transaction relating to "technical assistance fee - HELD THAT:- SLP dismissed.
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2017 (11) TMI 1805
Dismissal the application under Section 9 of the ‘I&B Code' by Adjudicating Authority - Whether tenant come within the meaning of ‘Operational Creditor’? - HELD THAT: - tenant do not come within the meaning of ‘Operational Creditor’ as defined under sub-section (20) read with sub-Section (21) of Section 5 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to ‘I&B Code’) for triggering Insolvency and Bankruptcy Process under Section 9 of the ‘I&B Code’.
For the said reasons, the Adjudicating Authority having dismissed the application under Section 9 of the ‘I&B Code’ by the impugned order dated 6th October, 2017, no interference is called for.
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2017 (11) TMI 1804
Addition on account of Mark to Market Loss claimed by the assessee in derivative transactions - whether loss claimed on the basis of value of derivative as on 31st March is merely a notional loss and the actual loss or the profit in respect of such derivative transactions would get crystallized only at the time of settlement of such transaction? - CIT-A allowed the claim - HELD THAT:- We noticed that the claim of the assessee has duly covered by the assessee’s own case [2012 (3) TMI 612 - ITAT MUMBA] in which the claim of the assessee has been allowed. The other law mentioned above and relied upon by the CIT(A) also speaks about allowance by claim of the assessee. Since, the issue in question has duly been covered by the above mentioned cases. Therefore, we are of the view that the finding of the CIT(A) is quite correct and is not liable to be interfere with - Decided against the revenue.
Addition u/s 14A - assessee earned the exempt income in the Form of dividend on shares/MF/debentures held stock exchanged - HELD THAT:- The case of Devkant Synthetics (India) Pvt. Ltd. Vs. ITO-3(1)(2) [2015 (11) TMI 1067 - ITAT MUMBAI] in which it is specifically held that where the investment was held as stock in trade then the provision u/s 14A r.w. Rule 8D of the Act was not applicable. This issue has also been decided in favour of Assessee by the Bombay High Court in the case of CIT Vs. India Advantages Securities Ltd. [2015 (6) TMI 140 - BOMBAY HIGH COURT] and HDFC Bank Ltd. Vs. DCIT [2016 (3) TMI 755 - BOMBAY HIGH COURT]. The provision of Section 14A r.w. Rule 8D of the Act was not applicable upon the investment held as stock and trade. The assessee himself assessed the expenses to the earned the exempt income 1,98,491/-. The CIT(A) has restricted the expenses to the extent only. In the said circumstances, we are of the view that the CIT(A) has passed the order judiciously and correctly which is not required to interfere with - Decided against the revenue.
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2017 (11) TMI 1803
CENVAT credit - input services - inward transportation of new motor cycles from the plant of the showroom and not to the Authorized Service Centre - Held that:- Input service means any service used by a provider of output service for providing an output service - The transportation of new motor cycles to the showroom is not related to carrying out any service or repair of vehicles manufactured by the manufacturer. Hence, the appellant is not eligible for availing the Cenvat credit - credit cannot be allowed - appeal dismissed - decided against appellant.
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2017 (11) TMI 1802
Grant in principle approval for delisting of the equity shares refused - Is a decision of a Stock Exchange refusing to grant in principle approval to an application for voluntary delisting of shares from such Stock Exchange appealable under the provisions of Securities Contracts (Regulation) Act, 1956? - maintainability of petition - denial appealable under Section 21A(2) of the Securities Contracts (Regulation) Act, 1956 - Petitioners have statutory alternative remedy available - HELD THAT:- Section 23L on the other hand relates to an appeal in respect of an order or decision of a recognised Stock Exchange or an adjudicating officer or by SEBI passed or taken under Section 4B or Section 23I(3) of the Act of 1956. These differences allow one to infer that they operate on different fields. Provisions of Section 23L are not attracted to an appeal against the decisions of the Stock Exchange taken in the delisting process. Such a decision would attract Section 21A(2) for the purpose of appeal. In the present case, the impugned writing of the Calcutta Stock Exchange contains its decision to refuse in principle approval of voluntary delisting of shares. The same is appealable under Section 21A(2) - The first issue is answered in the affirmative by holding that, a decision of a Stock Exchange refusing to grant in principle approval to an application for voluntary delisting is appealable under Section 21A(2) of the Securities Contracts (Regulation) Act, 1956.
In the present case, there appears to be public shareholders and such shareholders are required to have an exit opportunity. In the facts of the present case, it appears that, the company has obtained the prior approval of the Board of Directors of the company in its meeting to apply for permission to delist from the Stock Exchange. It has received the prior approval of the shareholders of the company by special resolution passed through postal ballot, after disclosure of all material facts in the explanatory statement sent to the shareholders in relation to such resolution. The special resolution does not stand defeated by reason of the proviso to Regulation 8(1)(b) being satisfied. The company has made an application to the concerned Stock Exchange for in principle approval in terms of Regulation 8(1)(c). It is at this stage that, the Stock Exchange has refused the grant of in principle approval. Therefore, the question of the company proceeding any further under the Regulation 8 does not arise. It has been contended on behalf of the petitioners that, the exit opportunity contemplated under Chapter IV will become applicable only after the receipt of the in principle approval for delisting. Therefore, the company cannot be said to have defaulted in complying with Chapter IV of the delisting Regulations of 2009, at the present moment in the facts of the present case. According to the petitioners, the Calcutta Stock Exchange has exercised jurisdiction erroneously and therefore, notwithstanding the statutory appeal, the writ petition should be entertained.
Notwithstanding the availability of alternative remedy including a statutory alternative remedy of appeal, a writ petition has been held to be maintainable so long, the impugned action is substantiated to be without jurisdiction, non-speaking, or is perverse or tainted with mala fides. Simplicitor on the ground that there exists, an alternative remedy, a writ petition cannot be said to be not maintainable - The second issue is answered by holding that, the present writ petition is maintainable in view of the availability of statutory alternative remedy. The petitioners have not established that, the impugned decision is without jurisdiction, or is perverse, or non-speaking or tainted with mala fides. No provision of any of the statutes or regulations governing the process of delisting is under challenge.
In the facts of the present case, it cannot be said that, the Calcutta Stock Exchange has acted beyond the jurisdiction vested upon it in law. The impugned decision of the Calcutta Stock Exchange is amenable to appeal under Section 21A(2) of the Securities Contracts (Regulation) Act, 1956. The petitioners, therefore, have a statutory alternative remedy available to itself. The petitioners would be better placed to ventilate their grievance that, the materials produced before the Calcutta Stock Exchange were not appreciated correctly and that, a different view as that returned in the impugned decision is plausible and ought to be taken before the appellate authority. A Writ Court need not undertake the reappreciation of the evidence as an appellate authority and substitute the impugned decision with its own acting as an appellate authority. Third issue is answered in the negative and against the petitioners.
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2017 (11) TMI 1801
Jurisdiction - it is sought that Board of Directores of First respondent be superseded by a Committee constituted by this Hon'ble Board consisting of a nominee of the petitioner, a nominee of the respondent, and an Administrator/independent Director/ Specal Officer appointed by this Hon'ble Board to take charge over the management and affairs of the company in terms of a scheme of management and affairs of the compay in terms of the scheme of the management framed by this Hon'ble Board which would be in super-session of all agreements which purport to vest parties with rights in affairs of first respondent and of all books papers records and documents of the company as well as assets and its properties.
Held that:- The Board of Directors is fully empowered to take the impugned action - The petitioner failed to make out any case so as to interfere in the issue by the Tribunal - the present petition liable to be dismissed.
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2017 (11) TMI 1800
Refund of service tax paid - service tax paid on the said food stuff - N/N. 25/2012, dated 20-6-2012 amended by the N/N. 3/2013, dated 1-3-2013 - scope of SCN - Held hat:- In this case, no show cause notice was issued to the respondent and initially deficiency memo was issued to the respondent to produce certain documents in support of their refund claim and it has not been agitated by the Revenue. No show cause notice was issued to allege that the cattle feed is not food stuff.
While filing this appeal Revenue has taken a new ground which are not alleged earlier therefore, the Revenue cannot go raise the said issue at this stage to file this appeal - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1799
Classification of services - C&F Agent service or not - transport the coal from the colliery to their factory premises - Held that:- It is evident that the appellants have collected the coal from the colliery and directly delivered to the factory premises without any storage or warehousing premises. So the same activity cannot be considered as C & F Agent service - demand set aside - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1798
Charitable activity - Applicability of proviso to section 2(15) - denying the benefits of section 11(1)(a) - activity of breeding milk cattle; to improve the quality of cows and oxen and other related activities - HELD THAT:- The objects of the Trust clearly establish that the same was for general public utility and for charitable purposes - Profit making was neither the aim nor object of the Trust - Merely because while carrying out the activities for the purpose of achieving the objects of the Trust, certain incidental surpluses were generated, would not render the activity in the nature of trade, commerce or business - See Sabarmati Ashram Gaushala Trust case [2014 (1) TMI 1539 - GUJARAT HIGH COURT]
Non granting of set off of brought forward unabsorbed depreciation - HELD THAT:- Deficit shown in the earlier years is eligible to be given set off for surplus, if any for the year under consideration. Therefore, the AO is directed to allow the set off of brought forward deficit while giving appeal effect to our order.
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2017 (11) TMI 1797
Default in payment of duty - requirement of payment from PLA for the subsequent months - Rule 8(3A) of CER - Held that:- The appellant had subsequently discharged the duty burden from their PLA account and as such there is no dispute about the same. With such payment of duty out of PLA, they have reversed the debit entry made by them in their credit account which was used for payment of duty earlier - Though there was no proposal in show cause notice to deny such recredit, the original adjudicating authority went ahead and even after accepting that the duty was paid subsequently in cash, disallowed the recredit and confirmed the duty to that extent.
Once a duty stands paid in cash, earlier payments made through Cenvat account are liable to be recredited in the said account and no objection that such recredit was not on the basis of any eligible document can be adopted by the Revenue. Admittedly, it is not a case of availment of credit in the ordinary course but such recredit was to neutralize the subsequent payment of duty in cash.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 1796
Corporate insolvency process of builders/developers - buyers spent money in investing in the purchase of flats for which schemes were floated by the builders/developers - developer submitted that 90% flats are complete and ready for delivery in the first phase - HELD THAT:- We are inclined to direct as follows:
(i) Respondent-builder shall deposit 10% of the dues of Respondent No. 7 before it within four weeks hence.
(ii) The phase in respect of which Occupancy Certificate and No Objection Certificate, if granted, the possession of flats shall be handed over to the respective flat owners.
(iii) The flat owners will be at liberty to complete the finishing work, if they feel so advised.
(iv) The home buyers for whom the flats are not yet been constructed and are interested in refund, can submit their applications to the portal which is to be created by Mr. Pawan Shree Agarwal.
(v) Mr. Pawan Shree Agarwal shall create the portal and inform the advocate-on-record for the Respondent-developer. The advocate-on-record for the developer shall give a sum of ` 5 lacs by way of bank draft to Shri Pawan Shree Agarwal so that he can meet the expenses. The directors, other than institutional directors, of the developer company shall remain personally present before this Court on the next date of hearing.
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2017 (11) TMI 1795
Confiscation of warehoused goods - redemption fine - penalty - expiry of warehousing period, which is not extended - Held that:- In violation of the warehousing bond executed by them, the appellant has failed to clear the goods even after expiry of the warehousing period. Such goods are to be deemed as improperly removed in terms of Section 72(1)(b) of the Act. Consequently, the goods are liable to be confiscated under Section 111(d) of the Act - Confiscation upheld - quantum of redemption fine and penalty reduced - appeal allowed in part.
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2017 (11) TMI 1794
Refund claim of seized cash - Seizure and confiscation - unaccounted cash - shortage/excess of raw material/finished goods - Held that:- The only objection is that refunds should not be sanctioned under Section 11B of the Act, inasmuch as the same provides for refund of duty and interest. The cash seized from the respondent cannot be considered as duty or interest - The cash recovered from the respondent premises, has to be refunded to them, on the success of their main case. No infirmity can be found in the impugned order - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1793
Excisability - scrap - cut away portion of the HR coil arising in the course of manufacture of pipes - Held that:- The cutting away of the uneven edge of the HR pipes cannot be considered as an independent process unconnected with manufacture of pipes. It is a process carried out by way of preparation in the continuous process leading to the finished product i.e. pipes. There is no dispute that the pieces of HR coils which are cut away are nothing but scrap. Such scrap has to be considered as emerging in the manufacture of finished product only - the same is liable to excise duty as a scrap.
Benefit of N/N. 89/1995 - Held that:- This notification exempts waste and scrap arising in the course of manufacture of exempted goods - in the present case, in addition to exempted clearance as above, pipes are also cleared on payment of duty from the same factory - benefit of notification not available to the appellant.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1792
Illegal export to Nepal - evasion of tax - confiscation - redemption fine - penalties - Held that:- The fact of illegal export of the Indian made goods, stands established from the records and in fact is not being denied. The only explanation coming forward is that the said illegal route was adopted by the appellants so as to avoid Nepal tax.
Though there is no tax applicable in India sought to be evaded by such illegal export, but the fact remains that the Indian clothes were being exported through an illegal route, thus, justifying their confiscation - confiscation upheld - redemption fine reduced from ₹ 8.00 lakhs to ₹ 4.00 lakhs on the ground that there was no evasion of Customs Duty.
Seizure of vehicle - Held that:- There is no evidence on record to show that the owner or driver of the said vehicle, knew the mala fide design of the exporter, but the vehicle having found to be carrying goods, which were actually exported through an illegal route, is liable to confiscation - redemption fine reduced.
Penalty on Shri Dhanush Shah - Held that:- He was carrier of the goods on behalf of various persons of Nepal and admittedly was involved in illegal export of the goods, thus, justifying imposition of penalty upon him - Keeping in view that he himself was not exporter, penalty reduced from ₹ 1.00 lakh to ₹ 50,000/-.
Penalties imposed upon the other persons - Held that:- They are either driver/owner of the vehicle or the proprietor of the shops from whom the goods stands purchased by Shri Dhanush Shah, there is no evidence on record to show that the said persons were in any way connected with the illegal export or knew that the goods purchased from their shops is going to be illegally exported - the imposition of penalty on either of them, is neither justified nor warranted - penalty set aside.
Appeal disposed off.
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2017 (11) TMI 1791
Mis-declaration and mis-classification of imported goods - Non-texturised Polyester Lining Fabric - test reports found that the goods were 100% polyester woven fabrics and having 40% textured yarn and 59% non-textured yarn - the classification of the goods was proposed by the Department under sub-heading 5407 69 00, whereas the importer clarified that the goods are rightly classifiable under sub-heading 5407 61 90 - Held that:- The license, which has been submitted by the importer, covered the broad category of the goods under heading 5407. Inasmuch as the goods which are imported and tested, have been found to be classified under heading 5407, the license will cover the same - the impugned order is set aside and the goods may be cleared duty free under the import license - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1790
Classification of goods - Chemical Storage Tanks - Held that:- After going through the Chapters Note 73 and 84 of the Central Excise Tariff Act, 1985, it is found that the tank with temperature controller is classifiable under Heading 84.19 - The contention raised by the assessee-appellants that storage tank had such facility is not disputed in view of the observation made by the Tribunal in its earlier order - appellant are eligible for Cenvat credit on the duty paid on such tank.
The classification under Heading 84.19 upheld and Cenvat credit on the duty paid on such tank is allowed - the penalty imposed also stands dropped.
The second issue regarding mono rails and structure for various towers and acid tank is not pressed by the Learned Chartered Accountant. Hence, the same is dismissed being not pressed.
Appeal allowed in part.
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