|
Advanced Search Options
Case Laws
Showing 261 to 280 of 1442 Records
-
2014 (2) TMI 1184
Eligibility of deduction u/s. 80P(2)(a)(i) - CIT(A) allowed claim - the assessee is a cooperative bank - whether profits derived by it from the business of providing credit facilities to its members? - Held that:- As relying on case of CIT Vs. Jafari Momin Vikas Co-op Credit Society Ltd. [2014 (2) TMI 28 - GUJARAT HIGH COURT] subsection( 4) of section 80P will not apply to an assessee which is not a co-operative bank. In the case clarified by CBDT, Delhi Coop Urban Thrift & Credit Society Ltd. was under consideration. Circular clarified that the said entity not being a cooperative bank, section 80P(4) of the Act would not apply to it. In view of such clarification, we cannot entertain the Revenue’s contention that section 80P(4) would exclude not only the cooperative banks other than those fulfilling the description contained therein but also credit societies, which are not cooperative banks. In the present case, respondent assessee is admittedly not a credit co-operative bank but a credit cooperative society. Exclusion clause of sub-section(4) of section 80P, therefore, would not apply. - Decided against revenue.
Entitlement to interest on deposits with banks u/s. 80P(2)(a)(i) denied - Held that:- In the present case, as stated above, assessee-society regularly invests funds not immediately required for business purposes. Interest on such investments, therefore, cannot fall within the meaning of the expression "profits and gains of business". Such interest income cannot be said also to be attributable to the activities of the society, namely, carrying on the business of providing credit facilities to its members or marketing of the agricultural produce of its members. When the assessee-society provides credit facilities to its members, it earns interest income. As stated above, in this case, interest held as ineligible for deduction under s. 80P(2)(a)(i) is not in respect of interest received from members. In this case, we are only concerned with interest which accrues on funds not required immediately by the assessee(s) for its business purposes and which have been only invested in specified securities as "investment". Further, as stated above, assessee(s) markets the agricultural produce of its members. It retains the sale proceeds in many cases. It is this "retained amount" which was payable to its members, from whom produce was bought, which was invested in short-term deposits/securities. Such an amount, which was retained by the assessee-society, was a liability and it was shown in the balance sheet on the liability side. Therefore, to that extent, such interest income cannot be said to be attributable either to the activity mentioned in s. 80P(2)(a)(i) of the Act or in s. 80P(2)(a)(iii) of the Act. Therefore, looking to the facts and circumstances of this case, we are of the view that the AO was right in taxing the interest income, indicated above, under s. 56 of the Act. - Decided against assessee.
-
2014 (2) TMI 1183
Diversion of JV receipts - whether the income of the Joint Venture (JV) is to be taxed in the hands of JV and not in the hands of its members - Held that:- The consistent and concurring opinions of CIT (A) and ITAT were that the JV was formed only to secure the contract, in terms of which the scope of each JV partner’s task was distinctly outlined. Further, the entire work was split between the two JV partners; they completed the task, through sub-contracts and were responsible for the satisfaction of the NHAI. Therefore, ITAT did not fall into error of law, in holding that the JV was not an association of persons and liable to be taxed on that basis. Decided in favour of the assessee.
-
2014 (2) TMI 1182
Extension of time to make the pre deposit - Held that:- indulgence was granted to the applicant to deposit the money by 30th November, 2012 and yet he failed to avail this indulgence and waited thereafter for more than one-and-half years to make this application, is enough to dismiss the application for extension of time to deposit. - So far as this application is concerned, we do not wish to extend the period to deposit the amount already granted till 30th November, 2012. It will almost amount to reviewing our order under the garb of extension which is not permissible. Had the applicant deposited the money though late and then sought its extension till the date of deposit, then perhaps, we could have considered the case for condonation of delay and extending time to deposit. Such was not, however, the case of applicant. - Decided against assessee.
-
2014 (2) TMI 1181
Writ Petition Maintainable OR Not – Alternate Remedy available – Held that:- In view of decision in the case of Metal Weld Electrodes v. CESTAT, Chennai [2013 (11) TMI 240 - MADRAS HIGH COURT], Appeal is not maintainable - The petitioners are at liberty to file appeals within three weeks and the parties are directed to maintain status quo as on date till then. - Decided against assessee.
-
2014 (2) TMI 1180
Reversal of CENVAT Credit - Non maintenance of separate accounts - Penalty u/s 11AC - held that:- issue has already been settled by the Tribunal s decision in favour of the assessee in the case of Majalgaon SSK Ltd. (2012 (7) TMI 880 - CESTAT MUMBAI), I find that the issue is no longer res integra - Decided in favour of assessee.
-
2014 (2) TMI 1179
Classification Coconut oil in small packing of 200ml and less – Chapter 33 OR Chapter 15 of Central Excise Tariff Act – Supreme Court after condoning the delay dismissed the appeal filed the Revenue against the decision of Tribunal [2013 (12) TMI 392 - CESTAT MUMBAI ] finding no merit in the appeal wherein it was held that Edible Coconut Oil packed and sold in the packing of capacity of 200ml and less is classifiable under Chapter Heading 15 of the Central Excise Tariff and not under Chapter 33 of the Tariff - The edible Coconut oil who packed in the packing of more than 200ml the same is classifiable under Chapter 15 of Excise Tariff – Relying upon AISWARYA INDUSTRIES Versus COMMISSIONER OF C. EX., PONDICHERRY [2008 (7) TMI 771 - CESTAT, CHENNAI] - When the same edible oil is packed in the packing of 200ml or less cannot be considered as preparation for use on hair in the absence of any evidence that the composition of both types of oils are different.
-
2014 (2) TMI 1178
Penalty under section 78(10A) - Stap of check post not present on documents - Held that:- Documents produced by the driver of the vehicle were neither found to be incomplete nor forged one. The only contention raised by the learned counsel for the petitioner is that the said documents did not bear any stamp of any check-post. In the opinion of the court, the decision of this court in case of State of Rajasthan v. Tajiander Pal [2002 (9) TMI 834 - RAJASTHAN HIGH COURT], clinches the issue involved in the present petition. - court does not find any substance in the present petition. - Decided against Revenue.
-
2014 (2) TMI 1177
Validity of Tribunal's order [2012 (8) TMI 902 - CESTAT NEW DELHI] - Obiter dicta - Held that:- It would be apposite to refer to the order of the Tribunal dated 28-8-2012, which would show that the Tribunal has dismissed the appeal of the assessee without giving any cogent and convincing reasons - Therefore, the order dated 28-8-2012, does not satisfy the requirements as enunciated by the Apex Court in M/s. Kranti Associates Pvt. Ltd. and Another v. Sh. Masood Ahmed Khan and Others [2010 (9) TMI 886 - SUPREME COURT OF INDIA] - Therefore, matter is remanded to the Tribunal to decide afresh after affording an opportunity of hearing to the parties in accordance with law - Decided in favour of assessee.
-
2014 (2) TMI 1176
Eligibility of deduction u/s 80IB(5)(i)- whether the assessee is not involved in manufacturing or producing activity but is only carrying out the activity of assembling at its Silvassa Unit? - Held that:- We are not inclined to interfere with the finding of CIT(A), who has allowed the claim of assessee u/s.80IB(5)(i) by holding that assembling of various components amounts to manufacturing. See case of Jackson Engineers [2009 (12) TMI 649 - Delhi High Court] wherein held that the activity of assembling gensets from various components amounts to manufacture or production for the purpose of deduction under s. 80-IA - Decided in favour of assesse.
Artificial inflation of profit of Silvassa Unit in order to claim higher deduction - Held that:- there is no concrete evidence that the assessee has shifted the profit of Chakan Unit to Silvassa Unit at such a magniture and hence, the addition sustained by CIT(A) could not be sustained, as such, at the same time, the objection of revenue authorities on this point cannot be rejected as in toto. Taking into all the facts and circumstances in to consideration, the deduction of claim u/s.80IB(5)(i) is restricted to 15% as against done by the CIT(A). As a result, this issue is partly allowed in favour of assesse.
-
2014 (2) TMI 1175
Exemption under Notification No. 19/2000-Cus. (N.T.) - exemption to Energy saving lamps(CFL) in terms of Indo-Sri Lanka Free Trade Agreement (ISFTA) - Supreme Court after hearing the appellant dismissed the appeal as barred by limitation filed against the decision of Tribunal [2007 (12) TMI 146 - CESTAT, BANGALORE], wherein Tribunal held that there was intention of evading Anti-dumping Duty - certificate of origin (as per ISFTA) issued by the Sri Lankan authorities based on wrong information - conditions of Rule 7(b) & 7(d) of the Origin Rules, 2000 notified vide Customs Not. 19/2000 are not fulfilled – exemption not available – rather Anti dumping duty payable.
-
2014 (2) TMI 1174
Refusal of Winding up petition - Non payment of balance price of goods - Winding up, a last resort and the Court should sparingly use it as a discretionary relief - Held that:- We have considered the rival contentions. The facts appearing from the records as discussed above, do not convincingly show, the appellant had a claim against the company that would have no plausible defence from the company. In a winding-up proceeding the principal test is to find out, whether the petitioning creditor has a claim duly raised through a statutory notice of demand and the company failed or neglected to pay or compound the same meaning thereby, once the claim is raised, it is the duty of the company to rebut by way of justification as to non-payment. If they are successful on that score, the winding-up petition cannot be admitted.
In the present case, the company did not give any reply that would definitely raise a presumption against them. However, once the winding-up petition came up for admission after affidavits, the Court is to examine the records that would appear from the pleadings including affidavits filed by the company. The facts so discussed above, would not suggest, the petitioning creditor was successful in raising the admitted claim. In our view, the disputes so raised by the company could not be said to be sham that would deserve an order of rejection. We do not know, whether the petitioning creditor would be able to justify their claim or the company would be able to resist the same, at the final trial. It would be too early to comment on merits. We would only observe, the facts so discussed above, would not create a situation to support an order of admission.
In the case of East India Wires Limited [2003 (4) TMI 463 - HIGH COURT OF CALCUTTA] a winding-up petition was filed on the just and equitable ground. In that context, the Court observed, “it was a last resort and the Court should sparingly use it as a discretionary relief”. The Division Bench of the Madras High Court in the case Sical-Cwt Distriparks Ltd.v [2009 (8) TMI 707 - HIGH COURT OF MADRAS] once again reiterated, “when the respondent who was sought to be wound-up was able to show that there was a bona fide dispute with regard to the liability in question, the winding-up proceeding is not the proper remedy to resolve the dispute”. This is a well-settled proposition of law that has been rendered in the general context.The learned Judge, in our view, rightly declined to admit the winding-up petition that would deserve no interference.
We have examined the balance-sheet of the company. It is a cash rich company. The fact that the company never faced any winding-up petition, is not disputed by the petitioner. The bulk coal is generally supplied by the government coal companies. The company asserted, they had a linkage with South Indian Coalfields Company, a Government Undertaking. These facts would prevent us from directing any security to be furnished. We, however, observe, since the appellant was pursuing its claim bona fide before this Court, they should get the benefit of Section 14 of the Limitation Act. We would permit the appellant to file a suit in relation to the self-same claim before the appropriate forum within a period of six weeks from date meaning thereby, they would get the benefit of the period from the date of initiation of the winding-up proceeding the suit is filed within the stipulated period. - Decided against the appellant.
-
2014 (2) TMI 1173
Penalty u/s 271E - cash payment of ₹ 33,26,960 to the firms M/s. Chetan Grass Trading Company and M/s. ABC Grass Company were not reflected in the capital account of the assessee and as per the audit report submitted by the assessee cash payments were treated as repayment of loans - CIT(A) deleted penalty levy - Held that:- In the present case, it is an admitted fact that the assessee is a partner in the firms M/s. Chetan Grass Trading Company and M/s. ABC Grass Company from whom he received a sum of ₹ 2,00,000 and ₹ 31,26,960 respectively. These transactions were treated by the Assessing Officer as repayment of loan in cash. Thus there is no independent legal entity of the firm apart from the rights and liability of the partners constituting it and if any amount is given or taken from the firm by the partners that cannot be treated as giving or taking of a loan. In the instant case, the assessee being a partner gave the money to the partnership-firm when it was in need of business exigencies, later on the amount was received it back if the said amount had been routed through the capital account, there could have been no disallowance by the Department because a partner can deposit cash in his capital account and also he has a right to receive it in cash. Therefore, the penalty levied by AO under section 271E was not justified - Decided in favour of assesse.
-
2014 (2) TMI 1172
Registration granted under section 12A denied - DIT coming to the conclusion that the appellant is directly hit by the proviso to section 2(15)which was inserted with effect from the assessment year 2009-10 - Held that:- The charitable purposes include the objects of artistic or historic interest. In the instant case also the assessee-trust was founded to acquire art museum and art theatre for the promotion of art and culture amongst the members of the general public. Therefore, the activity of the assessee are charitable in nature is as per the provisions contained in section 2(15) of the Act. In the instant case, as we have already mentioned, that the assessee-trust was established to make it available the art museum and art theatre for the members of the general public, irrespective of their caste, community or religion, therefore, the activity of the assessee-trust is charitable in nature as per the provisions of section 2(15) of the Act.
Whereas, the proviso inserted by the Finance (No.2) Act, 2009 by the Central Board of Direct Taxes Circular No. 1 of 2011 dated April 6, 2011, shall not be applicable in the instant case for the year under consideration. We, therefore, considering the totality of the facts as discussed hereinabove, are of the view that the learned Director of Income-tax (Exemption) was not justified in cancelling registration already granted to the assessee-trust under section 12A of the Act by invoking the provisions of section 12AA(3) of the Act. In that view of the matter, the impugned order is set aside and the registration under section 12A already granted to the assessee is restored. - Decided in favour of assesse.
-
2014 (2) TMI 1171
Re-import of goods - Goods cleared under Notification No. 158/95-Cus., dated 14-11-1995 - Though the appellant re-exported the goods after one year, the appellant had not paid any customs duty - Customs duty was realized by the customs authorities in the year 2008 by partially encashing the bank guarantee and partially recovering in cash - Demand of interest from the date of re-import of goods till the date of payment of duty - Held that:- Admitted facts are that the appellant made re-import of goods and availed the benefit of Notification 158/95-Cus. As per the requirement of the Notification, the goods were to be re-exported within six months. The appellant had not re-exported the goods within six months nor asked for extension of time. Admittedly the goods were re-exported after one year and even after one year the appellant had not paid duty. Ultimately the duty was paid in the year 2008 though the goods were re-exported in the year 2005. For three years the appellant retained the amount of customs duty without any legal authority. The Hon’ble Supreme Court in the case of Kanhai Ram Thekedar [2005 (4) TMI 75 - SUPREME COURT OF INDIA] held that accrual of statutory interest is automatic and separate notice of demand is not required to be served in that respect. In the present case, as the appellant had retained the amount of customs duty without any legal authority of law, therefore we find no infirmity in the impugned order. - Decided against assessee.
-
2014 (2) TMI 1170
Arbitration agreement - Is the IPLA a valid and a concluded contract? Is it for the Court to decide this issue or have the parties intended to let the arbitral tribunal decide it - Held that:- there is a legal relationship between the parties of a long standing. Section 44 of the Indian Arbitration Act, 1996 applies to arbitral awards of differences between persons arising out of legal proceedings. Such a relationship may be contractual or not, so long it is considered as commercial under the laws in force in India. Further, that legal relationship must be in pursuance of an agreement, in writing, for arbitration, to which the New York Convention applies. The court can decline to make a reference to arbitration in case it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. There are no pleadings to that effect in the plaint. The Daman Trial Court findings that the contract is null and void and not based on free consent were rendered in the absence of relevant pleadings. There is a mention in one of the e-mails that Dr. Wobben has taken advantage of his friendship with Mr. Yogesh Mehra. But that seems to be more of a sulk than a genuine grievance. - issue as to whether there is a concluded contract between the parties can be left to the Arbitral Tribunal, though not for the same reasons.
The parties have irrevocably agreed to resolve all the disputes through Arbitration. Parties can not be permitted to avoid arbitration, without satisfying the Court that it would be just and in the interest of all the parties not to proceed with arbitration. Furthermore in arbitration proceedings, courts are required to aid and support the arbitral process, and not to bring it to a grinding halt. - parties must proceed with the Arbitration. All the difficulties pointed out by Mr. Rohinton Nariman can be addressed by the Arbitral Tribunal.
Even if there is a valid arbitration agreement/clause, can the parties be denied the benefit of the same on the ground that it is unworkable? - Held that:- Courts have to adopt a pragmatic approach and not a pedantic or technical approach while interpreting or construing an arbitration agreement or arbitration clause. Therefore, when faced with a seemingly unworkable arbitration clause, it would be the duty of the Court to make the same workable within the permissible limits of the law, without stretching it beyond the boundaries of recognition. In other words, a common sense approach has to be adopted to give effect to the intention of the parties to arbitrate. In such a case, the court ought to adopt the attitude of a reasonable business person, having business common sense as well as being equipped with the knowledge that may be peculiar to the business venture.
While construing the arbitration agreement/clause the same can be construed to make it workable, as such an approach is statutorily provided for. For this submission, Dr. Singhvi has rightly relied upon the provision contained in Sections 10 and 11 of the Indian Arbitration Act, 1996. The object of these two provisions is to avoid failure of the arbitration agreement or the arbitration clause if contained in contract. Under Section 10(1), there is freedom given to the parties to determine the number of Arbitrators, provided that such number shall not be an even number. The arbitration clause in this case provides that the arbitral tribunal shall consist of three arbitrators. Further, it must also be noticed that the Respondents have been trying to seek adjudication of disputes by arbitration.
Parties would not have intended to have created an exceptionally difficult situation, of extreme complexities, by fixing the seat of arbitration in London. In view of the above, we are unable to accept the submissions made by Dr. Singhvi that in this case, the term “venue” ought to be read as seat. - even though the venue of arbitration proceedings has been fixed in London, it cannot be presumed that the parties have intended the seat to be also in London. In an International Commercial Arbitration, venue can often be different from the seat of arbitration. In such circumstances, the hearing of the arbitration will be conducted at the venue fixed by the parties, but this would not bring about a change in the seat of the arbitration. This is precisely the ratio in Braes of Dounne.
Objection raised by the Appellants to the continuance of the parallel proceedings in England is not wholly without justification. The only single factor which prompted Respondent No.1 to pursue the action in England was that the venue of the arbitration has been fixed in London. The considerations for designating a convenient venue for arbitration can not be understood as conferring concurrent jurisdiction on the English Courts over the arbitration proceedings or disputes in general. Keeping in view the aforesaid, we are inclined to restore the anti-suit injunction granted by the Daman Trial Court. - The findings recorded by the Appellate Court that the parties can proceed to arbitration are affirmed. The findings recorded by the Trial Court dismissing the Application under Section 45 are set aside. - Decided partly in favour of appellant.
-
2014 (2) TMI 1169
Reopening of assessment - as the provision towards an unascertained liability is not allowable under the Act, it should have been disallowed and taxed - Held that:- In the present case, the "reasons to believe" nowhere highlight what, if at all, was the material which the Assessing Officer came up or became aware of subsequent to the original assessment. In other words, what triggered the Assessing Officer's curiosity to impel him to re- examine the files and documents pertaining to a completed assessment is unknown. Nor does the materials placed in the assessment show that the petitioner had unjustifiably suppressed valid or relevant information which was otherwise available.
The advertence to the disallowance of a provision for an unascertained liability points to the Assessing Officer indulging in what amounts to nothing but a masked review. What appears to have excited the Assessing Officer's mind was that the original assessment order was not framed properly as it overlooked certain materials which led to loss of revenue. The Assessing Officer in the first instance did not perform his job properly for which the assessee cannot be faulted with. In Calcutta Discount Co. Ltd. v. ITO [1960 (11) TMI 8 - SUPREME Court] pointedly observed that the assessee is required to fairly disclose what is expected of him "the primary facts" while submitting the returns. It is up to the Assessing Officer to draw the necessary inferences. In the present case, the Assessing Officer's omission appears to have been the sole basis for issuing the reassessment notice and, consequently, proceeding to make the impugned demand. - Decided in favour of assessee.
-
2014 (2) TMI 1168
Validity of assessment u/s 158BD r.w.s. 158BC(c) - no satisfaction was recorded by the Assessing Officer having jurisdiction over the non-searched person - Held that:- For taking recourse to the block assessment under section 158BC in relation to the person not searched, whenever search has been conducted under section 132 or the documents have been requisitioned under section 132A, the Assessing Officer of the searched person needs to record his satisfaction that undisclosed income belongs to the person other than the person with respect to whom search was carried out under section 132 of the Act. He is also required to hand over the books of account or other documents or assets seized to the Assessing Officer having jurisdiction over such non-searched person and, thereafter, the Assessing Officer who has jurisdiction would proceed under section 158BC, against the person who has not been searched.
In the instant case the Tribunal committed no error in upholding the version of the assessee-respondent. Recording of satisfaction under section 158BD being absent, without assigning separate reasons in this case, order impugned is upheld. - Decided in favour of assessee.
-
2014 (2) TMI 1167
Penalty under section 271(1)(c)– Inaccurate particulars of income – Held that:- The details furnished by the assessee were not found to be false or inaccurate. That merely because in respect of one machinery the Assessing Officer or the appellate authority was of the opinion that the same was not put to use before 31st March, 2005, it cannot be said that the assessee either concealed the income or furnished inaccurate particulars of income. Similarly, merely because the expenditure of `2,68,984/- which was claimed as an expenditure on repairs is treated as capital expenditure, it cannot be said that assessee either concealed the income or furnished inaccurate particulars of income. On the facts of the assessee’s case, in our opinion, the decision of Hon’ble Apex Court in the case of Reliance Petroproducts Pvt.Ltd. (2010 (3) TMI 80 - SUPREME COURT) would be squarely applicable - Decided against Revenue.
-
2014 (2) TMI 1166
Validity of reopening of assessment - Disallowance u/s 14A - Held that:- Assessing officer reopened the assessment in the name of verifying the house property payment/ receipts. Payment of house property tax are otherwise allowable as statutory deduction, more so when the income qua the same property is taxed. In these circumstances the reasons meant for further verification and for roving inquiries are not sustainable in law - no infirmity in the order of CIT(A), which is upheld as in both the years the issue is almost identical. Section 14A read with rule 8D has been held to be applicable only prospectively from A.Y. 2008-09. No nexus has been found between interest bearing borrowings and exempt income. Besides, the loans in question which were earlier raised have been only repaid in this year. In view of these facts and circumstances we uphold the order of CIT(A). - Decided against Revenue.
-
2014 (2) TMI 1165
Non deduction of TDS on carrier payments made to M/s. Clickatel, South Africa - Disallowance u/s 40(a)(i) - CIT(A) deleted disallowance - Held that:- Nature of services rendered by non-resident i.e. M/s. Clickatel is only to transmit bulk SMS. The nature of service provided by Clickatel requires no technical knowledge and what was rendered was just transmission of data which requires no technical skill. The finding of the Commissioner of Income Tax (Appeals) that carrier which is a medium for sending bulk SMS and as such cannot be considered to be rendering any technical services and no TDS is required to be made is correct. The Commissioner of Income Tax (Appeals) held that Clickatel which is a non-resident carrier rendered services outside India and no part of the payment made to Clickatel is chargeable to tax in India. See CIT v. Bharti Cellular Ltd [2010 (8) TMI 332 - Supreme Court of India]. - Decided against revenue.
Income accrued not offered to tax - CIT(A) deleted addition - Held that:- Assessee received advance income from its customers and whenever services were provided by the assessee, assessee adjusts the advances received from customers and recognizes the income in the year in which services were rendered. Since the appellant maintains books on accrual system, income shall be recognized only when it accrues. In the given case, the income accrues only when the appellant sends the required no. of SMS. Therefore, the service charges received in advance for the service to be rendered in future years are not liable to tax in the year of receipt. Only on completion of the service, the appellant has right over the amount that was received in advance. - Decided against revenue.
............
|
9911796707
