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Showing 261 to 280 of 1255 Records
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2015 (5) TMI 1001
Cenvat Credit of service tax paid on the freight amount - Held that:- In the present case, the available records/documents clearly depict that the ownership of goods have been transferred from the respondent to the buyers at their site; the respondent bore risk of damage to the goods during transit; and that the freight charges were an integral part of the price of goods sold by the respondent to its buyers. Therefore, in this situation, the buyer's premises will qualify as 'place of removal' for the purpose of taking Cenvat Credit of service tax paid on transportation of goods.
As upon proper analysis of the Cenvat provisions, Central Excise statute and the interpretation placed by various judicial forums on such statutory provisions, the CBEC vide Circular dated 23.8.2007 has clarified that customers site where the ownership of the goods have been transferred, should be considered as 'place of removal' for the purpose of taking cenvat credit. Thus eligibility of Cenvat Credit on the transportation charges paid on the goods, where the ownership transferred at the buyer's end confirmed - Decided in favour of assessee.
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2015 (5) TMI 1000
Cenvat credit denial and imposition of penalty - M/s. Aar Aar Technoplast Pvt. Ltd. has availed cenvat credit on the basis of invoices without receiving the goods in the factory - First stage dealer M/s. Jagruti Resins Pvt. Ltd. has not supplied the goods to the second stage dealer M/s. Shree Sai International, Faridabad, from whom goods have been purchased by the appellant - Held that:- The appellants have maintained proper records to prove that the goods have been received in their factory premises. In this regard, the records such as, material receipt register, gate entry register etc., though were produced before the authorities below, but no findings have been recorded regarding such claim of the appellant and also the authenticity of the documents have not been doubted. Further, register maintained by the appellant clearly shows that the amount indicated therein has been paid to the second stage dealer for supply of the goods and that the said payment has been routed through approved banking channel. Denial of cenvat credit on the ground of investigation conducted at the premises of the first stage dealers, cannot be the defensible ground, especially in view of the fact that no investigation has been conducted at the premises of the second stage dealer, from whom the goods have been purchased by the appellant.
Since, the Department has not adduced any plausible evidence regarding non-receipt of the disputed goods by the appellant, penalty imposed on Shri Manoranjan Singh Duggal, President of the appellant company is not sustainable under the law. Denial of cenvat credit and imposition of penalties on the appellant are not justified - Decided in favour of assessee
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2015 (5) TMI 999
Disallowance of export commission payment - non deduction of tds - Held that:- As payments of "Export Sales Commission" to the non-residents for procuring export orders, are not assessable to tax in India and consequently the assessee company is not under any obligation to deduct the TDS on the above commission payments u/s.195 of the Act. Accordingly, the additions made by the Assessing Officer, on account of disallowance of "Export Sales Commission" payments for non-deduction of TDS u/s.40(a)(i) r.w.s. 195 of the Act, are not justified and deleted. Since the Assessing Officer has not taken the amount of ₹ 25,63,409/- into consideration in the final computation of taxable income, no separate relief is required and thus, we find no infirmity in the order passed by the ld. CIT(A). - Decided against assessee
Disallowance under section 14A - Held that:- We find that the Assessing Officer, after considering the details filed by the assessee, quantified the disallowance under section 14A of the Act and also the ld. CIT(A) passed very detailed order and gave specific findings that the assessee has not maintained any separate books of account for the investment in shares, there was no separate establishment to look after the investments. Even before us, the assessee has not able to establish that no interest borrowing funds were used for investments in shares. Further, the ld. CIT(A), after considering the detailed explanation and books of accounts given by the assessee the addition made by the Assessing Officer was sustained. Accordingly, we find no infirmity in the order passed by the ld. CIT(A) - Decided against assessee
Disallowance under section 80IA - CIT(A) held that the depreciation which was already set off cannot be carry forward notionally to the subsequent years for the purpose of computing the profits of the windmills on stand-alone basis and directed the Assessing Officer to allow the assessee’s claim of deduction under section 80IA - Held that:- CIT(A), by following the decision of the Tribunal in the case of GRT Firms & Others (2012 (6) TMI 802 - ITAT CHENNAI) as well as judgement of the Hon’ble Jurisdictional High Court in the case of Velayudhaswamy Spinning Mills v. ACIT (2010 (3) TMI 860 - Madras High Court ), directed the Assessing Officer to allow the assessee’s claim of deduction under section 80IA of the Act. Thus, we find no infirmity in the order passed by the ld. CIT(A) - Decided in favour of assessee
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2015 (5) TMI 998
Estimation of the income - rejection of book result of the assesse - fall in G.P. rate - CIT(A) deleted the addition - Held that:- Fall in GP cannot be a ground for rejecting the book result shown by the assesse. It is one of the corroborative fact for the Assessing Officer to doubt the books but the Ld. Assessing Officer ought to have pointed out the defects in the accounts, only thereafter he can estimate the GP. Ld. First Appellate Authority reappreciated the material available and only then deleted the addition. After going through the order, we do not find any reason to interfere with it. - Decided in favour of assessee.
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2015 (5) TMI 997
Revocation of CHA licence - the prohibited items attempted to be exported outside India - It was found that the Shipping Bill No. 5513131, dated 7-11-2008 in the name of Himalayan Tours & Travels, Siliguri. Covering the said consignment was filed by the impugned, CHA. - he ld. Advocate has submitted that the charges labelled against them for the violation of Customs Act, were set aside by the Commissioner (Preventive) and therefore, on the similar facts and circumstances of the case, revocation also is liable to be set aside.
Held that:- the act provides for two types of action, i.e., (i) for imposition of penalty for aiding and abetting the importer/exporter in smuggling of the goods, (ii) and the other action is contemplated under CHALR. As such merely on the ground that the ld. Commissioner set aside the penalty, is not a ground alone for quashing the order or revocation when the CHA has been found to indulge in gross misconduct and contravening the various provisions of Regulation under CHALR, 2004. - ld. Commissioner has rightly revoked the CHA License and forfeited the security deposit and therefore, we do not find any merit in the present appeal. - Decided against the appellant.
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2015 (5) TMI 996
Undisclosed receipts - stay of demand seeked - Held that:- We have gone through the affidavit of Shri Manish K. Chatwani dated 28.06.2013. We are not sure about the authenticity of the copy of this affidavit. Hence, this affidavit needs verification. Accordingly, Ld. DR was asked to verify this affidavit or the authenticity of this affidavit. The Ld. Sr. DR is also asked to send this affidavit to ITO, Ward 22(3)2, Mumbai and he can call for Shri Manish K. Chatwani for verification whether he admits this amount belongs to him or not and send the report to the Tribunal within a month’s time from the date of receipt of this order. In view of the above uncertainty, whether the amount belongs to assessee or Shri Manish K. Chatwani, we are inclined to grant stay of this demand with the following conditions:
i) The assessee will pay a sum of ₹ 10 lakh on or before 05.06.2015. The assessee will submit the copy of payment of challan to the AO positively by 10th June, 2015 and accordingly AO will report to the Bench that the payment has been made.
ii) The assessee will pay next installment of ₹ 10 lakh on or before the last day of the month i.e. 30.06.2015. The installments will continue on monthly basis till the disposal of the appeal, accordingly and in case revenue seeks adjournment the payment of installment will be stopped for that month only.
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2015 (5) TMI 995
Validity of proceedings u/s. 153C - addition made to the total income on account of income generated on sale of liquor not recorded in the books (suppressed sale of liquor) - Held that:- The Hon’ble Third member has agreed with the view taken by the Hon’ble Judicial Member in respect of both the questions referred above. Accordingly, as per the majority view, both the issues cited above are decided in favour of the assessee.
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2015 (5) TMI 994
Levy of interest on reversal of cenvat credit - Period of limitation - irregular credit on capital goods has been taken which was subsequently reversed - Held that:- SCN has been issued beyond the period of one year from the relevant date, inasmuch as, the period involved in the present case is from July 2008 to February 2010 and SCN has been issued on 16.08.2011 - though SCN has been issued beyond the period of one year, but the proviso to section 11A of the Act which deals with issuance of the SCN upto a period of 5 years has not been invoked in the said notice specifically alleging involvement of suppression of fact, willful misstatement etc.
The fact is not under dispute that the appellants have reflected the credit particulars in their periodic ER-1 returns duly filed before the Jurisdictional Central Excise Officers. Hence, the fact of taking of credit on the disputed goods and suo motto reversal thereof was known to the Department well in advance before detection of the mistake by the Audit Wing.
The reliance placed by the Ld. DR on the judgment of Hon'ble Supreme Court in the case of Ind Swift Laboratories [2011 (2) TMI 6 - Supreme Court] has no application to the facts and circumstances of the present case because, the issue involved in the said decided case is with regard to interpretation of the word 'or' / 'and' contained in Rule 14 of the Cenvat Credit Rules, 2004. - Decided in favor of assessee.
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2015 (5) TMI 993
Import of betel nuts - fit for human consumption, or not - It is nearly 18 months that the goods have remained in a limbo. Even if the food articles - the petitioner says that they are betel nuts - were originally fit for human consumption, they may have deteriorated in quality in the interregnum. It is necessary, in the circumstances, that samples be drawn in the presence of the petitioner’s representative to ascertain from the Central Food Laboratory, Kolkata as to whether the goods are still fit for human consumption. It is proposed that the goods may be released to the petitioner upon the same being found to be fit for human consumption and after obtaining sufficient guarantee or deposit
Necessary directions issued.
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2015 (5) TMI 992
Penalty u/s. 271AAA - CIT(A) deleted the penalty - Held that:- In view of the conditions laid down for claiming immunity from levy of penalty under section 271AAA of the Act as prescribed in sub-section (2) to the said section, having been fulfilled, we find no merit in the grounds of appeal raised by the Revenue in this regard. We uphold the order of the CIT(A) in deleting the penalty levied under section 271AAA of the Act in respect of income offered to tax to the extent of ₹ 97,02,632/- and cancelling the penalty to the extent of ₹ 9,70,263/-. - Decided in favour of assessee
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2015 (5) TMI 991
Addition of addition u/s 41 - Held that:- In this case, when the liability continues, the creditor can recover the amount otherwise than a civil suit. The creditor has every right to recover the money whenever an opportunity comes to it outside the court of law. Moreover, the assessee accepts the liability in the balance sheet as on 31.3.2007. It is well settled principles of law that a liability if accepted in the balance sheet filed in the income tax proceedings is an acceptance of liability under the Limitation Act. Therefore, the period of limitation for recovery of the amount would run from the date on which the liability is accepted in the balance sheet which was filed in the income tax proceedings. Hence, at no stretch of imagination, the liability ceased to exist and the same cannot be treated as income u/s 41(1) of the Act. In those circumstances, this Tribunal is of the considered opinion that addition of is not sustainable. Accordingly the orders of the lower authorities are set aside and the Assessing Officer is directed to delete the addition of ` 3,19,901/- made u/s 41(1) of the Act. - Decided in favour of assessee.
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2015 (5) TMI 990
Disallowance of provision of expenses under section 40(a)(ia) - non deduction of tds - Held that:- The amendment made to section 40(a)(ia) of the Act vide Finance Act, 2010 which states that the due date of deposit of TDS will be the date of filing of return u/s 139(1) is applicable retrospectively and further that of the Hon'ble Calcutta High Court in the case of “CIT v. Virgin Creations” [2011 (11) TMI 348 - CALCUTTA HIGH COURT] wherein it has been held that the amendment to section 40(a)(ia) by the Finance Act, 2010 is to be considered as retrospective in as much as it is only toward mitigating a hardship and, thus, is to be considered as curative in nature. The Ld. A.R. of the assessee has been fair enough to admit that even the Ld. CIT(A) has passed the impugned order without verification of the details submitted by the assessee. Even there is no finding that whether the liability was ascertained for which the provision was made and whether the identity of the prospective payees was established or not. The Ld. A.R. has fairly admitted that the entire issue requires re-examination at the end of the AO. We therefore set aside the impugned findings of the Ld. CIT(A) on this issue and restore the matter to the file of the AO for examination afresh and then to pass a speaking order in accordance with law after duly considering all the relevant contentions of the assessee on this issue.
Disallowance on account of AIR mismatch - Held that:- In the absence of any material brought by the revenue authorities that the assessee has received amount more than the professional fees which has been declared by him in the P&L account and when the professional income declared by the assessee far exceeds the professional fees shown in the AIR information, then additions solely based on the AIR information are not sustainable. Un-reconciled amount as per the AIR information has held that the addition cannot be made solely on the basis of AIR information, especially, when the assessee denies any such receipt as the burden to prove such receipts is on the AO as the assessee cannot be asked to prove the negative. - Decided in favour of assessee.
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2015 (5) TMI 989
Revision u/s 263 - error in the order of the Assessing Officer in accepting the claim of the assessee under S.54F - Held that:- It is not disputed that the assessee has in fact deposited the total amount in the purchase of the residential house during the stipulated period. Merely because the assessee has availed a bank loan of ₹ 45,45,855 and has invested in the purchase of the residential house, it cannot be denied exemption under S.54F of the Act. The fact that money to that extent has not come directly from the sale proceeds of the original asset received by the assessee, is not decisive of the issue. The fact remains that the amount received by the assessee on the sale of the original asset owned by it was invested in the purchase of the residential asset within the stipulated time, partly from the sale proceeds of the original asset directly and partly from the borrowed amount.
The assessee has fulfilled all the conditions of investment of the equivalent amount of the sale proceeds in the purchase of residential house qualifying for relief under S.54F, by investing the money out of the sale proceeds of the original asset available with it or by borrowing from the bank. We find that the decision of the Hyderabad Tribunal in Smt.V.Kumuda V/s. DCIT (2012 (2) TMI 212 - ITAT HYDERABAD) relied upon by DR relates to a decision in the Miscellaneous Application preferred by the assessee. At any rate, it is clear that two views are possible on this issue before us, and the view taken by the Assessing Officer was a possible view and could not be said to be a perverse view. The issue of granting deduction/exemption under S.54F on the borrowed money can at best be called a debatable issue. Thus AO has taken a possible view permitted under law, and is as per the series of decisions of different benches of the Tribunal. It could not be said that the order of the Assessing Officer was erroneous or prejudicial to the interests of the Revenue. In this view of the matter, we hold that the Commissioner was not justified in setting aside the assessment framed under S.143(3), as the order of the Assessing Officer could not be said to be erroneous and prejudicial to the interests of the Revenue. - Decided in favour of the assessee.
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2015 (5) TMI 988
Penalty u/s 271(1)(c) - income offered as a consequence to the detection during the course of post search - Held that:- Respectfully following the order of the Coordinate Bench of Mumbai Tribunal in the case of Mr. Kiran Shah (2014 (1) TMI 1027 - ITAT MUMBAI ) wherein held for the purpose of imposition of penalty u/s. 271(1)(c) resulting as a result of search assessments made u/s. 153A, the original return of income filed u/s. 139 cannot be considered. Where returned income filed under section 153A is accepted by the AO, there will be no concealment of income and, consequently, penalty u/s. 271(1)(c) cannot be imposed - Decided in favour of assessee.
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2015 (5) TMI 987
Disallowance under Section 14A in a proceeding under Section 154 - Held that:- Assessing Officer has amended the order passed under the provisions of Income-tax Act. According to the Ld. D.R., in this case, what was rectified is only an arithmetical error which crept in the order. The Ld. D.R. submitted that on the basis of material already available on record, the Assessing Officer rectified the arithmetical error which crept. Therefore, it is not a debatable issue. Hence, the Assessing Officer has rightly disallowed the claim of the assessee.
Disallowance paid as machine hire charges under Section 40(a)(ia) - Held that:- The assessee claims that it is a business expenditure. For the purpose of business, business expenditure would fall under Section 37(1) of the Act. Therefore, this Tribunal is of the considered opinion that the provisions of Section 40 of the Act is equally applicable. Hire charges paid by the assessee on machine is liable for deduction of tax under Section 194-I of the Act. Therefore, the assessee is expected to deduct tax at the time of making the payment. Therefore, the alternative contention of the assessee is also does not hold any merit at all. Accordingly, the order of the CIT(Appeals) is confirmed.
Depreciation on Maruthi car - Held that:- The assessee has claimed depreciation on Innova car at 50% of normal rate. Therefore, this Tribunal is of the considered opinion that there is no question of making any further disallowance on Maruthi car. It is not in dispute that Maruthi car was used for business purpose. Therefore, the assessee is entitled to claim depreciation on the Maruthi car. Accordingly, the orders of the lower authorities are set aside and the Assessing Officer is directed to allow the depreciation on Maruthi car maintenance expenses as claimed by the assessee
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2015 (5) TMI 986
Disallowance of exemption under section 54EC - Held that:- In the present case, we noted that the assessee sold his house property on 15.01.2006 for a considerat ion of ₹ 23,00,000/- while as per the provisions of sect ion 50C, the consideration as per the stamp valuation was ₹ 24,65,600/-. The indexed cost of acquisition of the property came to ₹ 13,57,921/-. The assessee computed the capital gain at ₹ 9,42,079/- but taking the stamp duty valuation under section 50C the Assessing Officer computed the capital gain at ₹ 11,07,079/-. The assessee could not make any investment in REC Bonds as the Bonds were not available. The Central Board of Direct Taxes vide Ci rcular No. 142/09/2006-TPL dated 30.06.2006 extended the date for making the investment upto 31.12.2006. Therefore, if the date would have made the investment till that date he would have been eligible for the exemption. But we noted after 31.12.2006 till 21.07.2007 the REC Bonds were not available in the market for purchase, therefore, the assessee could not make the investment in Bonds. The Bonds were available for sale only from 22.01.2007 and the assessee purchased Bonds on 01.02.2007 i.e. within 11 days from the date when the Bonds were available for sale in the market. In our opinion, the decision of the Hon’ble Bombay High Court n the case of CIT, Cent ral-III, Mumbai –vs.- Cello Plast (2012 (8) TMI 527 - BOMBAY HIGH COURT), is clearly applicable in the case of the assessee. The assessee had purchased the Bonds within reasonable period when the Bonds were available for investment. No cont rary decision was brought to our knowledge by the ld. D.R. even though he has vehemently relied on the order of the Assessing Officer. We, therefore, respectfully following the aforesaid decision of the Hon’ble Bombay High Court set aside the order of the ld. CIT(Appeal s) and direct the Assessing Officer to allow exemption to the assessee under section 54EC - Decided in favour of assessee.
Addition made on account of the accrued interest on fixed deposits - Held that:- We find substance in the submissions made by the ld. A.R. that the interest income on FDR has been shown by the assessee regularly on the basis of the certificate received from the Banker as is included in the TDS. Similarly during the impugned year also, the interest has been shown by the assessee in accordance with the calculation given by the Banker. Since the assessee is regularly following the same method of accounting, we, therefore, do not find any legality in the method of accounting followed by the assessee. Accordingly we delete the interest.- Decided in favour of assessee.
Addition as notional rent - Held that:- The notional rent has merely been estimated by the Assessing Officer without giving any basis and on what basis the rent has been estimated @ ₹ 4,000/- per month. The provision of section 23 lays down how the annual value of the property has to be estimated. None of the relevant provisions has been brought to our knowledge by the Revenue. We, therefore, delete the addition.- Decided in favour of assessee.
Assessment for rental receipt from the property - annual value adoption - Held that:- The assessee before us claims that the property was occasionally let out and part of the property is being occupied by the assessee as weekend destination which means that the property remains vacant for part of the year but the assessee has not given any calculation how he received the rent and during what year the property remains vacant, so that the actual rent received or receivable could have been computed in accordance with the provisions of sec tion 23(1)(c) of the Act. In our opinion, the onus is on the assessee. In case, he want s to claim that the property was not let out during the whole of the year. Since the assessee has not given any detail s neither before the authorities below nor before us, we, therefore, do not find any illegality or infi rmity in the annual value being taken by the Assessing Officer on the basis of the rent which the assessee received during the assessment year 2004-05. We, therefore, confirm the addition made by the Assessing Officer. - Decided against assessee.
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2015 (5) TMI 985
Levy of penalty under Rule 26 on the ground that appellants have issued invoices to the traders without actually supplying the goods - Held that:- In the same investigation, the penalty on the co-noticee have been reduced by this Tribunal therefore, it cannot be said that in this case penalty cannot be reduced, therefore, following the precedent decision, in the case of Adhunik Steel Ltd. and M/s. Tata Steel [2015 (12) TMI 1053 - CESTAT NEW DELHI], the penalty on the appellant is reduced - Decided partly in favor of appellants.
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2015 (5) TMI 984
Addition u/s 68 - unaccounted sale proceeds of shares and unaccounted commission - CIT(A) deleted the addition - Held that:- In the present case, it is noticed that the assessee purchased the shares in earlier years which were shown as investment in the books of accounts and reflected in the “Asset Side” of the “Balance Sheet”, out of those investments the assessee sold certain investments and accounted for the profit / loss and offered the same for taxation. In the present case, the amount in question was neither a loan or the deposit , it was also not on account of share application money, the said amount was on account of sale of investment therefore the provisions of Section 68 of the Act were not applicable and the AO was not justified in making the addition. In our opinion, the Ld. CIT(A) rightly deleted the addition made by the AO. - Decided in favour of assessee
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2015 (5) TMI 983
Waiver of pre deposit - Demand of service tax - Broadcasting service - Held that:- Applicant got the permission to up-link their own TV channels. It is noted that P&L Account for the year ending 31.3.2005 showed fees for allotment of airtime and up-linking charges separately. Thus it is clear that applicant had been collecting fees for allotment of air time. So, prima facie, we are unable to accept the contention of learned advocate that they were not rendering any service of broadcasting. It is seen from the impugned order that in the P&L Account for the year ended 31.3.2006 in the Schedule X relating to administration and other expenses, the expenses in respect of cassettes, tapes and carriage fees were shown separately.
Audit party during their visit in 2010 detected collection of broadcasting charges after examining the records, therefore, prima facie ground of demand beyond the normal period of limitation cannot be accepted. - Partial stay granted.
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2015 (5) TMI 982
Denial of CENVAT Credit - appellant had availed Cenvat credit of service tax paid on the freight charges for outward transportation of the goods cleared for export from the factory - Held that:- Both the lower authorities have confirmed the demand of Cenvat credit on the GTA for period April 2008 –Jun 2008 on the ground that prior to April, 2008 Cenvat Credit on outward transportation was available on the service used for clearances of the goods from the place of removal whereas after April 2008 due to amendment Cenvat credit on outward transportation is admissible only up to place of removal. In the present case, as per the lower authorities the place of removal is the factory gate and therefore credit could not allowed beyond the place of removal i.e. factory gate. The goods have been cleared for export from the place of removal. In case of export, ownership of the goods remains with exporter and therefore all the expenditure for the clearances of the goods up to port is borne by the exporters and in the present case also the export price is CIF therefore place of removal in case of export stand extended up to port. The transportation incurred for clearances of the goods from factory to the port is within the term of "clearances of goods up to the place of removal" therefore GTA is a service in the present case covered under the definition of input service even after amendment vide notification No. 10/2008-CE (N.T.). In this position, I am of the considered view that the Cenvat credit on the outward GTA is admissible. - Impugned order is set aside - Decided in favour of assessee.
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