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Showing 261 to 280 of 1653 Records
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2017 (4) TMI 1397
Amendment of Shipping Bill - Relevant date - Whether the “date of shipment” is relevant date for the purpose of amendment of shipping bill as stipulated under Section 149 of Customs Act, 1962? - Held that:- The Tribunal finds, as a fact, that the quantities mentioned in the ARE-1 forms as well as exported are one and the same. The efficacy of the ‘let export’ order in a case such as the present has its limitations as there can, in fact, be no physical examination of the molasses remaining in the storage tank on the date of the ‘let order’. All relevant documents including the shipping bills, ullage reports and let export orders confirm the quantity exported to be one and the same.
The conclusion of the Department to the effect that there has been an incorrect representation of the quantity of exports thus appears to have been based wholly on surmises and nothing has been brought on record to substantiate the same. The conclusion of the Tribunal is thus well founded and the departmental appeal liable to be dismissed.
The amendment of a shipping bill is a matter of exercise of discretion by the proper officer who has to taken into account the necessary circumstances arising out of a transaction. In the present case, the Assistant Commissioner of Customs has omitted to notice the peculiar nature of his goods exported and the aspects of storage and transfer which necessarily should have been taken into account by him in deciding whether the amendment is to be effected or not.
Appeal dismissed.
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2017 (4) TMI 1396
100% EOU - Refund of unutilized CENVAT Credit - Rule 5 of the Cenvat Credit Rules - Held that:- The identical issue has come up before the Tribunal in the case of ANZ International vs. CC, Bangalore [2007 (11) TMI 218 - CESTAT, BANGALORE] which was assailed before the High Court and finally before the Hon’ble Supreme Court where it was held that 100% Export Oriented Unit is entitled to take cenvat credit of duty on inputs procured indigenously and when they were not in a position to utilise the same, they are entitled for benefit of refund under Rule 5 of Cenvat Credit Rules, 2004 - appeal dismissed - decided against Revenue.
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2017 (4) TMI 1395
Suit for specific performance - decree of suit - contract existed or not? - Section 100 of the Code of Civil Procedure, 1908 - Held that:- The appellant/defendant sought to argue that the subject agreement to sell is not a contract in the eyes of law, however, it is noticed that no such plea was raised in the trial court, no such issue framed and no such decision given by any of the two courts below, and therefore on a plea which is not raised a substantial question of law cannot be said to arise under Section 100 CPC - In any case, there is no dispute as to the identification of the suit property and the fact that receipt-cum-agreement to sell dated 22.1.2002 mentions the parties to a contract as also the entire sale consideration besides the mode and manner of payment with the balance payment liable to be made at the time of transfer of the title documents, and hence is a contract as required by law.
No substantial question of law arises - appeal dismissed.
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2017 (4) TMI 1394
Maintainability of petition - availability of effective statutory alternative remedy - case of petitioner is that the order impugned in the writ petition does not fall either under Section 7 or under Section 8 or under Section 9, so as to enable the petitioner to file an appeal under Section 11 (1) of the Act - Held that:- The impugned order, if not an assessment, would at least fall under the category of collection of tax within the scope of Section 7, making it amenable to the jurisdiction of an appellate authority under Section 11 (1) of the Act.
Recovery of tax allegedly collected by the petitioner from its customers - unjust enrichment - Held that:- If a dealer or assessee, not liable to pay tax, collects tax from his customers under a wrong impression, he is bound, either to refund it to the customers or to remit it to the Government. Otherwise the collection of tax by the assessee or dealer from his own customer would be without the authority of law. The liberty granted by the Supreme Court should be seen in the context of the principle of unjust enrichment. Therefore, the order impugned in the writ petition should be deemed to be one passed under Section 7. Hence, the remedy under Section 11 (1) is certainly available.
Inherent lack of jurisdiction - Bifurcation of State of Andhra Pradesh - Held that:- Section 104 of the A.P. Reorganisation Act is nothing but a provision similar to the provisions of the Companies Act, 1956, dealing with schemes of amalgamation, rearrangement and merger etc. Just as a new entity after amalgamation succeeds to the rights and liabilities of the previous entity, the successor State is made by Section 104 of the Reorganisation Act to get substituted as a party to the proceedings - it cannot be contended that after the bifurcation, the Assessing Officer of the State of Telangana would not have jurisdiction to proceed in respect of something initiated by an officer of the combined State of Andhra Pradesh.
Time Limitation - case of petitioner is that the period in issue is from 01-08-1999 to 19-01-2015 and that a demand in respect of the said period cannot be created for the first time in the year 2017, after a lapse of about 12 years - Held that:- The starting point for the period of limitation will only be 06-02-2014, the date of the order of the Supreme Court, unless otherwise the Hon’ble Supreme Court now takes a different view.
We are unable to throw the writ petition out on the ground of availability of alternative remedy, since the issues raised in the writ petition lie somewhere in the twilight zone - while keeping the writ petition pending, the petitioner could be directed to avail the remedy of a statutory appeal under Section 11 (1) of the Act. After all the petitioner may be obliged only to make a pre-deposit of 2% of the tax, under Section 11 (2) to maintain an appeal - Petition disposed off.
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2017 (4) TMI 1393
Penalty u/s.271(1)(c) - non specification of charge - Held that:- Since the penalty notice issued to the assessee dated 11.01.2013 did not spell out as to which default the assessee has committed for which penalty u/s. 271(1)(c) of the Act has been initiated, therefore, following the Hon’ble Karnataka High Court’s order in Manjunatha Cotton & Ginning Factory (2013 (7) TMI 620 - KARNATAKA HIGH COURT) and SSA’s Emerald Meadows (2016 (8) TMI 1145 - SUPREME COURT), we confirm the order of ld. CIT(A) in allowing the appeal of the assessee. - Decided in favour of assessee.
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2017 (4) TMI 1392
Levy of Luxury Tax - whether the petitioner collected any amount towards luxury tax, during the period from 01-04-1999 to 20-01-2005? - Held that:- If the petitioner had in fact collected luxury tax from its customers as contended by the respondents 2 and 3, the same is liable to be collected only by one of the two respondents. It is entirely a matter between the respondents 2 and 3 as to whether one of them is entitled to take the whole amount or whether the amount collected from the petitioner should be apportioned as between them. The dispute as to which of the respondents 2 and 3 is entitled to collect the amount, cannot lead to an absurd situation where both of them could proceed against the petitioner and collect it.
In the case on hand, the 2nd respondent has now passed an order. Therefore, the 3rd respondent should refrain from passing any order until two issues namely, (1) the very liability of the petitioner; and (2) who is entitled to collect, are resolved in a manner known to law.
Petition disposed off.
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2017 (4) TMI 1391
Removal from Office - Chaudhary was elected as its Chairman for a period of three years commencing from 2.5.2011 to 1.5.2014 - Whether the period of disqualification of six years is consistent with law?
Held that:- Section 76B(2) as of today provides for disqualification of an officer for a period not exceeding six years. Originally the Section provided for disqualification only for four years. But the "four years" period was substituted by "six years" period by the Gujarat Co-operative Societies (Amendment) Act, 2015 (Act No. 12 of 2015) - All the acts and omissions which formed the basis for action against Chaudhary pertained to the period anterior30 to the Act No. 12 of 2015. Under Section 7 of the Gujarat General Clauses Act, it is provided that where an enactment is repealed by a subsequent enactment, the repeal does not normally affect any investigation or legal proceedings in respect of any right, privilege, obligations, liability, penalty, forfeiture or punishment and any legal proceeding initiated during the currency of the repealed enactment could be continued as if the repealing Act has not been passed.
No right or liability can be created by a repealing enactment, which is inconsistent with the rights and obligations conferred under the repealed Act unless the repealing enactment makes an express declaration to that effect or adopts some other technique known to law to achieve that purpose. Giving retrospective effect to the repealing enactment is one of the techniques by which the legislature seeks to achieve that purpose - There is nothing in Act No. 12 of 2015 which warrants an interpretation that the legislature intended to create a disqualification which would run for a maximum period of six years with retrospective effect. The learned Additional Solicitor General Shri Mehta fairly accepted it. In the circumstances, the disqualification of six years upon Chaudhary is not tenable and at best Chaudhary could be disqualified for a maximum period of four years.
Appeal dismissed.
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2017 (4) TMI 1390
Validity of order passed by Income Tax Settlement Commission (ITSC) - effect of correction - Petitioner did not make a full and true disclosure of all facts - additional set of documents, running to over 200 pages, was placed by the Commissioner Income Tax (CIT) before the ITSC - Held that:- As a result of the correction in para 15.10 the conclusion that the Petitioner had not made a full and true disclosure of the facts in respect of the above account, completely changed. There was now an acknowledgement by the ITSC that there was no failure to make a full and true disclosure by the Petitioner as far as the above bank account was concerned.
Whether the change brought about to the order dated 4th June, 2015 by the subsequent order dated 26th June, 2015 would have an impact on the main conclusion drawn by the ITSC in its order dated 4th June, 2015, that the Petitioner did not make a full and true disclosure of all facts - Held that:- It will be recalled that there were two pieces of information which were brought before the ITSC ITSC ought to have, in the first instance, put the Petitioner on notice if it was going to entertain an application by the Department seeking ‘correction’ of its order. It is one thing to state that the said ‘correction’ was in fact beneficial to the Petitioner since the allowing of the application meant that the Petitioner's case that there was no failure by him to make a full and true disclosure of facts pertaining to the bank account was in fact accepted by the ITSC. But there is also merit in the contention of the learned counsel for the Petitioner that had the Petitioner known of the application, the Petitioner may have been able to persuade the ITSC even as regards the other ‘errors’ which according to the Petitioner vitiate the impugned order dated 4th June 2015. Whether in fact the ITSC may have been persuaded or not is not the point.
The Court is of the considered view that the ITSC should again undertake the exercise that it was expected to undertake pursuant to the order passed by this Court on 18th May, 2015. Accordingly, the impugned order dated 4th June, 2015 read with the order dated 26th June, 2015 are hereby set aside. The result would be that the exercise that was to be undertaken by the ITSC as a result of the order passed by this Court on 18th May, 2015 will have to be undertaken by it afresh.
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2017 (4) TMI 1389
Jurisdiction - time limitation - Whether the assessment under the CST Act could be completed by the authorities of the Department of Commercial Taxes of the State availing the extended time for the relevant year, in terms of the KGST Act/Rules, tracing the source of power to Section 9 (2) of the CST Act, Rule 6 (5) of the CST [Kerala] Rules, Section 17 of the KGST Act, Section 25 of the KVAT Act and the relevant Rules thereunder?
Held that:- It is true that the proceedings had to be finalized by the authorities of the State as if it were the proceedings in respect of assessment/collection of tax payable to the State. Thus, a 'deeming provision' is introduced, enabling the authorities to bank upon the provisions of the State law, to deal with the situation. The position may be different, if any specific provision is incorporated under the CST Act/Rules in relation to the issue in question, by virtue of incorporation of term 'subject to other provisions of this Act and the rules made thereunder' under Section 9(2) - By virtue of the relevant provisions in the Finance Act, time for completing assessment in respect of the assessment year has been specifically extended by the State Government, to the requisite extent and as such, the CST assessment proceedings initiated/finalized by the authorities by issuing pre-assessment notice cannot be held as barred under any circumstances.
Petition dismissed.
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2017 (4) TMI 1388
Penalty u/s.271(1)(c) - unexplained deposits in this bank account both cash and cheque deposit - defective notice - Held that:- As observed that the show cause notice issued in the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words.
In these circumstances, we are of the view that imposition of penalty cannot be sustained. - Decided in favour of assessee
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2017 (4) TMI 1387
Categorization of expenditure of non-compete fee - either capital or revenue - nature of expenditure - Held that:- The test of enduring benefit cannot be applied blindly without regard to the facts and circumstances that arise in the given case. Conclusion of the Tribunal that the payment has an enduring benefit and is capital in nature does not take into account the commercial benefit received by the company. In fact, the Tribunal appears to have been guided solely by an earlier decision rendered by it in the case of Asianet Communication[2005 (1) TMI 620 - ITAT CHENNAI ]. The assessee would incidentally point out that a copy of this decision was not circulated and hence reliance by the Tribunal on this decision is in itself incorrect. He would urge us to consider, as an alternate submission, the remand of the matter to the tribunal in order that he meet and distinguish this decision in full.
The advantage of restraining the individuals from engaging in competition is in the field of facilitating its own business and rendering it more profitable. Since there is no increase in fixed capital, the payment does not encroach in the capital field.
Though there was no actual or impending threat of the Directors severing their ties with the company or starting competing businesses, the possibility was always real and prudence dictates that the company protect itself against such a probability. This assumed particular significance at a time when the company was proposing to go public and it thus becomes vital that the public continued to see that the company was associated with, and had the benefit of services and loyalty of the individuals who had been, and were continuing to be, fundamental to the growth of the company.
Thus we hold that the payments towards non-compete fee to Mr.Raja KSP Ganesan and Mr.R.G.Chandramogan constitute revenue expenditure in the hands of the appellant. The substantial questions of law are answered in favour of the appellant and against the revenue.
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2017 (4) TMI 1386
Exemption u/s 11 - cancellation of registration of the trust u/s 12AA(3) of the Act has been quashed by the Tribunal [2012 (2) TMI 659 - ITAT KOLKATA] - Held that:- We find that the tribunal had already quashed the order passed by the ld. CIT cancelling the registration u/s 12AA(3) of the Act. Against this order, the revenue had preferred further appeal before the Hon’ble Calcutta High Court and the same is pending. As on date, the assessee enjoys registration u/s 12A of the Act which fact is not disputed by the revenue in the assessment order. Hence there is no reason to deny the exemption u/s 11 of the Act. We also find that the revenue had not brought any material on record to prove that assessee had not complied with the provisions of section 11 read with section 13 of the Act. Hence we hold that the assessee is entitled for exemption u/s 11 of the Act for this Asst. year also. Accordingly, the grounds raised by the revenue are dismissed.
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2017 (4) TMI 1385
Frustation of contract - force majeure - Competitive bidding process - composite scheme for generation and sale of electricity - Section 79(1)(b) of the Electricity Act - Held that:- Section 63 is a stand alone provision and has to be construed on its own terms, and that, therefore, in the case of transparent bidding nothing can be looked at except the bid itself which must accord with guidelines issued by the Central Government. One thing is immediately clear, that the appropriate Commission does not act as a mere post office under Section 63. It must adopt the tariff which has been determined through a transparent process of bidding, but this can only be done in accordance with the guidelines issued by the Central Government. Guidelines have been issued under this Section on 19th January, 2005, which guidelines have been amended from time to time. Clause 4, in particular, deals with tariff and the appropriate Commission certainly has the jurisdiction to look into whether the tariff determined through the process of bidding accords with clause 4.
It is clear that this Court did not give any truncated right to argue force majeure or change of law. This Court explicitly stated that both force majeure and change of law can be argued in all its plenitude to support an order quantifying compensatory tariff so long as the appellants do not claim that they are relieved of performance of the PPAs altogether - the Appellate Tribunal rightly went into force majeure and change of law.
Neither was the fundamental basis of the contract dislodged nor was any frustrating event, except for a rise in the price of coal, excluded by clause 12.4, pointed out. Alternative modes of performance were available, albeit at a higher price. This does not lead to the contract, as a whole, being frustrated. Consequently, we are of the view that neither clause 12.3 nor 12.7, referable to Section 32 of the Contract Act, will apply so as to enable the grant of compensatory tariff to the respondents.
The Central Electricity Regulatory Commission will go into the matter afresh and determine what relief should be granted to those power generators who fall within clause 13 of the PPA - appeal disposed off.
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2017 (4) TMI 1384
Revision u/s 263 - an order which is erroneous and prejudicial to the interests - The PCIT was of the view that subsidy received after start of production is revenue in nature. He also observed, the subsidy received by the assessee was nothing but contractual receipt towards supply of chemical compound, hence, should have been treated as revenue receipt forming part of operating profit of the assessee. - He observed, even if the subsidy from Kureha Corporation, Japan, is treated as capital in nature it should have been adjusted firstly from block of assets having higher rate of depreciation rather than the block having depreciation rate of 35% or proportionate adjustment should have been made. He observed, if the capital subsidy would have been adjusted against the block of assets higher rate of depreciation, the depreciation available to the assessee would be substantially less than what is claimed by the assessee.
Held that:- In our view, the direction of the revisional authority to start a fresh enquiry is in the nature of roving and fishing enquiry without having any specific material before him. Though, the revisional authority has alleged that the Assessing Officer failed to make any enquiry, neither he himself has made any enquiry on the basis of material on record to point out the specific error committed by the Assessing Officer nor has mentioned the nature of enquiry to be conducted by the Assessing Officer and what more documents and details are required to be called for, considering the fact that all documents and details relating to subsidy are already available on record.
Therefore, on over all consideration of facts and circumstances of this case, we are of the view that the assessment order cannot be held to be erroneous and prejudicial to the interests of Revenue, hence, PCIT was unjustified in exercising power under section 263 for revising the assessment order. - Order u/s 263 set aside - Decided in favor of assessee.
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2017 (4) TMI 1383
TDS liability on interest paid to on-banking finance companies - Assessee submitted that due to EMI concept, he could not deduct TDS. Since assessee fails to comply with the provisions of TDS, the Assessing Officer disallowed amount under section 40(a)(ia) of the Act. - Held that:- The ld. CIT(A) by considering the decision of coordinate bench in the case of Mukundara Engineers & Contractors (2015 (7) TMI 1067 - ITAT VISAKHAPATNAM) and also in the case of assessee itself for the Assessment Year 2008-09, directed the Assessing Officer to allow the payments already made during the previous year relevant to the assessment year.
There is no error or infirmity in the order of the ld.CIT(A) in directing the Assessing Officer for allowing the payments already made during the previous year relevant to the assessment year, hence, no interference is required. - Decided against the revenue.
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2017 (4) TMI 1382
The appeal is, therefore, admitted on the following substantial questions of law:
(1) Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in directing the Assessing Officer to allow carry forward and set-off of unabsorbed depreciation of A.Y. 1997-98 to 1998-99 against the profits of A.Y. 2008-09 without appreciating that as per the provisions of Section 32(2) as they stood prior to the amendment by Finance Act, 2001 w.e.f. 01.04.2002, such unabsorbed depreciation was eligible for carry forward and set-off against business profits only for a further period of appreciating that though the Hon'ble Supreme Court has dismissed the Department's SLP, it has neither upheld the Hon'ble High Court's view nor answered the Revenue's question?
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2017 (4) TMI 1381
We admit this Appeal on the following substantial questions of law:
“A. Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in directing the Assessing Officer to allow carry forward and set-off unabsorbed depreciation of A.Y. 1994-95 to 1998-99 against the profits of A.Y. 2007-08 without appreciating that as per the provisions of Section 32(2) as they stood prior to the amendment by Finance Act, 2001 w.e.f. 01.04.2002, such unabsorbed depreciation was eligible for carry forward and set-off against business profits only for a further period of eight years?”
B Whether the Hon'ble ITAT was justified in directing the Assessing Officer to allow carry forward and set-off of unabsorbed depreciation of A.Y. 1997-94 to 1998-99 against the profits of A.Y. 3007-08 by relying on the decision in the case of General Motors India (P) Ltd. vs. DCIT [2012 (8) TMI 714 - GUJARAT HIGH COURT] without appreciating that though the Hon'ble Supreme Court has dismissed the Department's SLP, it has neither upheld the Hon'ble High Court's view nor answered the Revenue's question?”
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2017 (4) TMI 1380
Disallowance as expenses incurred for issue of shares under ESOP - as per DR assessee has claimed ESOP expenditure which is in the nature of notional loss and not real loss and the same cannot be allowed to be set off with the business profits - Held that:- Revenue has filed letter dated 08.06.2016 in respect of claim in the earlier year by the assessee on issue of shares by ESOP and the decision of the Jurisdictional High Court M/s. Pvp Ventures Ltd., (2012 (7) TMI 696 - MADRAS HIGH COURT) was not accepted by the Department and the Revenue has filed SLP before Apex Court and issue is pending.
We follow the Jurisdictional High Court decision which is binding on the states of Tamilnadu and Puducherry and mere filing of SLP before the Apex Court, the Tribunal cannot take a different view and follow the judicial precedence. Hence, we are not inclined to interfere with the order of the CIT(A) who dealt on facts and Hon'ble High Court decision and allowed the appeal and Accordingly we upheld the CIT(A) order and dismiss the grounds of appeal of the Revenue.
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2017 (4) TMI 1379
Classification of goods sold - rate of tax - Electrically Operated Anti-mosquito devices & repellents, Electrically Operated Anti-Mosquito Mat, Anti-Mosquito Coil, Rat Kill, “Harpic”, “Lizol”, “Dettol” Antiseptic - the Assessing Officer was prima-facie of the opinion that the claim of the assessee that it falls in Schedule-IV of the RVAT Act is not correct rather it falls in the residuary Schedule on which rate prescribed is 12.5% which was required to be paid and not 4% as claimed by the assessee - Held that:- The entry as they stand does mention Insecticide or Pesticide as part of the Entry and it may be that these are categorized for the benefits to farmer/agriculturist who may use such products in farming to prevent Insects or germs which may damage the crop but still Insecticide/Pesticides is certainly forming part of the Entry - The Apex Court in the case of Bharat Sanchar Nigam Limited and Another Vs. Union of India and Others [2006 (3) TMI 1 - SUPREME COURT] has also held that if an entry has been interpreted consistently in a particular manner for several assessment years ordinarily it would not be permissible for the revenue to depart therefrom unless there is a material change.
The claim of the assessee that the products being sold by the assessee would fall in Entry 21 or 29 of the Act as the case made be is well reasoned and justified and the authorities were unjustified in taking it under the residuary Schedule (V). The claim of the assessee is just and proper.
Penalty - Held that:- There is no occasion of levy of penalty, even otherwise, it is a case of classification of entries which is being considered. Admittedly, the books of accounts has been maintained and such books have been accepted by the Assessing Officer, all the entries were entered in the Stock Register and there is no unrecorded sale noticed or found or adversely commented by the ld. A.O. even at the time of survey - penalty not warranted.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1378
Reopening of assessment - order passed by the DIT (Exemption) dated 15/02/2010 u/s 12AA(3) by which he cancelled the registration granted under Section 12AA retrospectively - Held that:- The order passed by the learned tribunal quashing and setting aside the order passed by the Director of Income Tax (Exemption) dated 15/02/2010 cancelling the registration retrospectively has been confirmed by this Court [2017 (6) TMI 82 - GUJARAT HIGH COURT]. Under the circumstances, when the grounds on which the Assessing Officer has sought to reopen the assessment for the Assessment Years 2005-06 and 2006-07 itself do not exist as the same has been set aside by the learned tribunal confirmed by this Court, the impugned notice under Section 148 and reopening of the assessment for the Assessment Years 2005-06 and 2006-07 cannot be further sustained and the same deserves to be quashed and set aside as the cause and the grounds to reopen the assessment for the Assessment Years 2005-06 and 2006-07 do not exist.
In view of the above and for the reasons stated hereinabove, both these petitions succeed. The impugned notice under Section 148 of the Income Tax Act to reopen the assessment for the Assessment Years 2005-06 and 2006-07 and the impugned reassessment proceedings for the Assessment Years 2005-06 and 2006-07 are hereby quashed and set aside.
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