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Showing 261 to 280 of 1288 Records
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2014 (9) TMI 1033
Interest on a short levy under Section 11AB of the Central Excise Act, 1944 - short levy - invocation of extended period - Held that:- In the present proceedings the period of demand is prior to 11-5-2001, therefore, it has to be examined whether interest is demandable from the appellant in the light of unamended Section 11AB as it existed prior to 11-5-2001. It is observed from the unamended Section 11AB that the same was applicable to cases of short levy or non-levy etc., by reason of fraud, collusion or wilful misstatement or suppression of facts or contravention of any provision of Central Excise Act or Rules with intent to evade payment of duty. It is the case of the Revenue that extended period is invokable once the disputed amount has been paid whereas appellant is of the view that it is not a case of invocation of extended period as no penalty under Section 11AC of the Central Excise Act, 1944 has been imposed upon the appellant by the adjudicating authority in the remand proceedings.
No penalty under Section 11AC of the Central Excise Act, 1944 has been imposed upon the appellant, therefore, it has to be held that elements of fraud, suppression or mis-statement etc., with intention to evade duty are, not available as appellant on their own paid the differential duty and intimated the Department. First appellate authority in Para-10 of OIA dated 9-11-2009, issued on 19-11-2009, has thus incorrectly mentioned that differential duty was paid by the appellant on being pointed out by the Department. As the elements of fraud, suppression & wilful misstatement etc., with intention to evade duty, are missing in these proceedings, therefore, demand of interest in the present proceedings is not sustainable against the appellant under Section 11AB of the Central Excise Act, 1944 as it existed in view of the case laws relied upon by the appellant. This Bench has not gone into the time barred nature of demand as on merits the issue stands decided in favour of the appellant.
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2014 (9) TMI 1032
Import of edible grade refined oils - need for obtaning product approval for canola oil from FSSAI - Since the authorised officer was not taking samples of the articles, Heartland moved this court by filing a WP No.2251 (W) of 2014 under Article 226 of the Constitution of India. - refined oils called Heartland Oliveola Canola Oil Mixture of Canola Oil & Extra Virgin Olive Oil and Heartland Canola Oil both manufactured by one Richardson Oilseed Limited of Canada.
Held that:- the authorised officer was fully justified in not taking samples of the articles of food for the NOC purpose on the grounds that the labels on the articles did not fulfil several mandatory requirements of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011.
Heartland was not entitled to claim an enforceable right to rectify the labelling deficiencies saying that the government had permitted import of the oils; and that the Food Authority officials had previously granted NOC to others who imported the oils and similar oils, still being sold in the market.
Rectification of a labelling deficiency not permissible under any law cannot be ordered by the High Court in exercise of power under Article 226; and in any case, illegal grant of NOC to any other importer for the same articles of food cannot entitle a subsequent importer to seek NOC. An order for perpetuation of an illegality cannot be passed by the High Court in exercise of power under Article 226. - Decided against the respondents / imports.
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2014 (9) TMI 1031
Disallowance of loss in commodity future trading - Appellate Tribunal reversing the decision of the CIT (A) upholding the disallowance of the loss in commodity future trading claimed to have been incurred by the assessee in the course of its business - Held that:- In the light of the factual matrix and the judicial pronouncements discussed hereinabove, the transactions entered into by the respondent – assessee when are held to be genuine and not disputed by Revenue and they have taken place on the floor of the MCX, the Tribunal as a fact-finding authority, adjudicated these questions of facts on the basis of the relevant material presented before the authorities, there being no perversity in such decision of the Tribunal, there is no reason to interfere with, inasmuch as, no substantial question of law, can be stated to arise out of the impugned order of the Tribunal. - Decided against revenue
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2014 (9) TMI 1030
Disallowance under section 40A(2)(b) - rate of interest - Held that:- As the assessee has borrowed funds and used the same for its business purposes. Both, the Commissioner (Appeals) as well as the Tribunal have concurrently found that the borrowed funds have been used for business purposes and have held that interest on such borrowed funds is an allowable expenditure. The only difference in opinion is to the extent of interest allowable on such borrowed funds. The Commissioner (Appeals) has restricted such allowance to the interest paid to transporters and towards ‘goods deposits’ whereas the Tribunal has held the interest paid at the rate of 18% to be reasonable. Having regard to the findings recorded by the Tribunal for holding the rate of interest at 18% to be reasonable, it is not possible to state that there is any legal infirmity in the conclusion arrived at by the Tribunal so as to give rise to a question of law, much less, a substantial question of law, warranting interference.
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2014 (9) TMI 1029
Disallowance u/s 14A - Held that:- Since the amount of interest debited to the Profit and Loss account was on net basis the disallowance of interest should also be made only with reference to the net interest. Before us, Revenue has not brought any contrary decision in its support for the proposition that gross interest has to be considered for the purpsoe of working out disallowance u/s 14A. Further it is a fact that for the year under consideration, the method prescribed by Rule 8D of the I.T. Rules for the working of disallowance u/s 14A is not applicable and therefore the disallowance has to be made on a reasonable basis as held by Hon’ble High Court in the case of Godrej and Boyce ((2010 (8) TMI 77 - BOMBAY HIGH COURT).). In such circumstances and in view of the decision in the case of Morgan Stanley (2014 (1) TMI 1412 - ITAT MUMBAI ) and in view of the fact that CIT(A) has upheld the disallowance u/s 14A we find no reason to interfere with the order or CIT(A) and thus this ground of Revenue is dismissed.
Claim of interest expenses - Held that:- CIT(A) while allowing the claim of the Assessee has given a finding that the claim of Assessee was not a fresh one and hence there was no necessity of filing a revised return. CIT(A) further relying on the various decisions of High Courts has allowed the claim of the Assessee. Before us Revenue has neither brought any material on record to controvert the finding of CIT(A) nor has placed any binding contrary decision in its support. Further the case laws relied by the ld. D.R. are distinguishable on facts. In view of the aforesaid facts, we find no reason to interfere with the order of CIT(A)
Taxing short term capital gain at a special rate when the appellant had loss - Held that:- It is assessee’s submission that Assessee also has capital loss of ₹ 86,130/- which should have been adjusted against the short term capital gain of ₹ 2,84,676/- earned by the Assessee and only the net short term capital gain should be taxed. Before us no details of the short term loss has been filed by the Assessee. Further before allowing the netting off of loss, the factual aspect needs examination and we therefore remit the issue to the file of A.O to verify the factual aspect and thereafter decide the issue in accordance with law. Assessee is also required to furnish the required details promptly before A.O.
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2014 (9) TMI 1028
Deduction under section 10B - Held that:- No doubt, the AO has curtailed the claim of deduction under section 10B substantially vis-à-vis the claim of the assessee. However, set off of depreciation has been done after computing the total income and not vice versa. It is also not clear from where the figure of ₹ 2,29,70,688/- has been taken by the AO, since set off done by the assessee was ₹ 1,85,17,875/-. We are therefore, of the opinion, that the issue requires a fresh look by the AO, in the case of CIT Vs Yokogawa [2011 (8) TMI 845 - Karnataka High Court ] and CIT Vs Tata Elxsi Ltd.,(2011 (8) TMI 782 - KARNATAKA HIGH COURT ). Order of the lower authorities on this issue is set aside and remitted back to the AO for consideration afresh, in accordance with law.
Eligibility for claim of deduction under section 10B - Held that:- There was amendment to the definition of “export turnover” with effect from 01-04-2002, we are unable to find any, that has a bearing on the issue before us. Second proviso to section 10B(1) as it earlier stood was no doubt omitted by Finance Act, 2001, with effect from 01-04-2002. But the earlier proviso was only for fixing a limit of 25% on domestic sales, for computing profits and gains derived from exports. Here on the other hand, claim of the assessee is not on domestic sale, but on export sales of goods purchased as such by it. Sections 10A(i) and 10B(i) are no different, since these are similarly worded. Learned CIT(A) in our opinion, fell in error in not following the decision of Co-ordinate Bench. Assessee had already preferred a claim before AO for deduction under section 10B, though only on manufactured goods. The claim made on trading goods exported was also under same section. It cannot be considered as a claim of different genie. It is also a fact that the AO never had an opportunity to verify this claim. In all fairness we are of the opinion that the claim can be looked afresh by the AO. We therefore, set aside the order of learned CIT(A) on this issue and remit it to the AO for consideration afresh in accordance with law.
Expenditure on freight and insurance was excluded from export turnover - Held that:- Definition of ‘export turnover’ in explanation(iii) to 10B(2) specifically require exclusion of freight, telecommunication and insurance attributable to delivery of things outside India. Assessee has no case that such expenses were not attributable to its export sales. Hence exclusion of such expenses from export turnover cannot be faulted. However, its claim that such amounts should be also be excluded from total turnover, while working out eligible deduction under section 10B is on strong wicket, in view of decision of Hon’ble jurisdictional High Court in the case of CIT Vs Tata Elxsi Ltd.[2011 (8) TMI 782 - KARNATAKA HIGH COURT ]. We therefore, direct the AO to exclude the items excluded from export turnover also from total turnover, while working out the deduction under section 10B.
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2014 (9) TMI 1027
Transfer of cases - Held that:- Section 127(2) makes it explicit that in case of inter-jurisdiction transfer, first there has to be an agreement regarding transfer of an assessment case between the Directors General or Chief Commissioners of two jurisdictions. Thereafter the assessee has to be given hearing by the Director General or Chief Commissioner or Commissioner of the transferor jurisdiction. If not actual hearing, an opportunity of hearing has to be given. Then the file can be transferred, recording reasons for the transfer.
These stipulations are not empty formalities. When the assessee’s case is transferred from Kolkata to Bhubaneshwar great inconvenience is caused to them. Their officers have to go from Kolkata to Bhubaneshwar to attend to the officers, carry documents, to be produced before them, answer interrogatories etc. There must be compelling reasons before such a transfer is made. For example, in this case if the department is referring to the assessment of Ganesh Sponge Pvt. Ltd., at least the relationship of the petitioner with Ganesh has to be mentioned. How the petitioner appears to be connected with the financial transactions of Ganesh has also to be mentioned. Even a reasonable suspicion of connection is enough. But, unfortunately, in this case there are no reasons.
In those circumstances, the order dated 12th September, 2013 is set aside with a direction upon the Chief Commissioner to pass a fresh order with reasons after giving an opportunity of hearing to the writ petitioner within three months from the date of communication of this order.
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2014 (9) TMI 1026
Transfer of cases - Held that:- Section 127(2) makes it explicit that in case of inter-jurisdiction transfer, first there has to be an agreement regarding transfer of an assessment case between the Directors General or Chief Commissioners of two jurisdictions. Thereafter the assessee has to be given hearing by the Director General or Chief Commissioner or Commissioner of the transferor jurisdiction. If not actual hearing, an opportunity of hearing has to be given. Then the file can be transferred, recording reasons for the transfer.
These stipulations are not empty formalities. When the assessee’s case is transferred from Kolkata to Bhubaneshwar great inconvenience is caused to them. Their officers have to go from Kolkata to Bhubaneshwar to attend to the officers, carry documents, to be produced before them, answer interrogatories etc. There must be compelling reasons before such a transfer is made. For example, in this case if the department is referring to the assessment of Ganesh Sponge Pvt. Ltd., at least the relationship of the petitioner with Ganesh has to be mentioned. How the petitioner appears to be connected with the financial transactions of Ganesh has also to be mentioned. Even a reasonable suspicion of connection is enough. But, unfortunately, in this case there are no reasons.
In those circumstances, the order dated 12th September, 2013 is set aside with a direction upon the Chief Commissioner to pass a fresh order with reasons after giving an opportunity of hearing to the writ petitioner within three months from the date of communication of this order.
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2014 (9) TMI 1025
Addition u/s. 69 - Held that:- Admittedly, assessees have made investments in fixed assets and the source of such investments was the inflow available on the Liability Side of the Balance Sheet. Since the Assessing Officer has not properly appreciated the facts, before the learned CIT(A), the source was explained, and the same was accepted by the learned CIT(A). Having accepted the source of funds, there cannot be any addition made in this year and even in the subsequent year, i.e. in the year of sale, the source of investment cannot be disputed. Therefore, the learned CIT(A) is not justified in giving direction to the Assessing Officer to consider the source of investment in the year of sale. In these circumstances, we set aside the directions of the learned CIT(A) and hold that it is not a fit case for making the addition under S.69. See M/s. Manas Greenland Pvt. Ltd., Hyderabad Versus Income Tax Officer (OSD) [2014 (12) TMI 399 - ITAT HYDERABAD ] - Decided in favour of assessee
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2014 (9) TMI 1024
Disallowance on account of creditors and expenses - Held that:- There is no dispute to the fact that the A.O. as well as the ld. CIT(A) has not invoked the provisions of section 145(3) of the Act. Therefore, no addition on account of creditors and expenses can be made and addition so made is directed to be deleted. As regards the unsecured loans of ₹ 2,50,000/-, the same are loans pertaining to the preceding year and no part of the same has been raised during the year, therefore, the ld. CIT(A) is not justified in sustaining the same and the same are directed to be deleted. - Decided in favour of assessee
Deduction u/s 80-IB - Held that:- None of the authorities below have placed on record, which condition laid down u/s 80IB has not been fulfilled by the assessee. Further, the ld. counsel for the assessee has submitted written submissions stating that the assessee has been allowed deduction u/s 80IB of the Act under the same conditions as in the preceding year and there was no change in the facts & circumstances in the preceding year. AO himself has mentioned with regard to claim of deduction under section 80IB being the 5th year of the business of the assessee and claim of deduction @ 100% under section 80IB was allowed. In the facts and circumstances and following the doctrine of consistency, the ld. CIT(A) is not justified in confirming the action of the A.O u/s 80IB of the Act. Thus CIT(A) is not justified in confirming the action of the A.O. inspite of the fact that the onus has been discharged by the assessee - Decided in favour of assessee
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2014 (9) TMI 1023
Validity of reopening of assessment - Held that:- In the case on hand we find that the Ld. CIT has granted approval and Ld. JCIT has not granted the necessary approval as the assessment reopened with the approval of Commissioner of Income-tax, whereas the statute required the approval of the joint Commissioner of Income-tax. Hence we quash the reopening of the assessment as bad in law. In the result, the C.O. of the assessee is allowed. Since we have allowed the C.O. of the assessee, consistent with the view taken therein, we dismiss the Revenue’s appeal. - Decided in favour of assessee
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2014 (9) TMI 1022
Eligibility for deduction/s.80P(2)(d) - interest income and dividend income received by the assessee cooperative society on investment made in deposits/savings accounts and shares of Sindhudurg Central Cooperative Bank - Held that:- An identical issue had come up before the Tribunal in the case of M/s. Janata Grahak Madhyavarti Sahakari Sangh Maryadit (2013 (11) TMI 1604 - ITAT PUNE). We find the Tribunal, following the decision of the Tribunal in the case of Bajaj Auto Ltd. Employees Credit Cooperative Society Ltd. [2013 (8) TMI 949 - ITAT PUNE] decided the issue in favour of the assessee and allowed the claim of deduction u/s.80P(2)(d) for interest received on the deposits with the Aurangabad District Central Cooperative Bank - Decided in favour of assessee
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2014 (9) TMI 1021
Registration granted under Section 12A withdrawn - Held that:- Nowhere it is objected by the Ld. Commissioner that the objects of the trust are not charitable or religious. Moreover, the Ld. Commissioner has made certain observation on the faith of the people/society that the assessee is trying to make the personal use of the trust property/funds and enjoying exorbitant salary by taking undue advantage of faith in “gurus” and “sentiment of people” which cannot be allowed. In our opinion the authority should be more careful while adjudicating the rights of any person and should avoid unwarranted observations which may be his or her personal views or opinion. After considering the entirety of the fact we are of the opinion that the Ld. Commissioner has not made out a case as per powers vested in her by the Act to cancel the registration of the assessee as contemplated u/s. 12AA(3) of the Income-tax Act and hence, the order passed by the Ld. Commissioner u/s. 12AA(3) cannot be supported. We, accordingly, cancel the order passed by the Ld. Commissioner u/s. 12AA(3) dated 21-03-2012 and allow the appeal filed by the assessee. - Decided in favour of assessee
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2014 (9) TMI 1020
TDS u/s 194J - disallowance u/s 40(a)(ia) - payment for consumption testing fees w/o deduction of tds - Held that:- It is well settled principles of law that once the assessee admitted for disallowance before the assessing officer on facts, the same cannot be reagitated before the appellate authorities. If it is not admitted, then, it is open to the assessee to file an affidavit before the appellate forum explaining the circumstances and on that basis the appellate forum may call for explanation from the concerned officer as to how he recorded a finding that the assessee admitted for disallowance. In this case, no such affidavit is filed. The ld.representative for the assessee also has a doubt whether such admission was made or not? In the absence of any details and the affidavit from the assessee, this Tribunal do not find any infirmity in the order of lower authority. Accordingly, the same is confirmed. - Decided against assessee.
Disallowance u/s 40A(3) - Held that:- Admittedly, the assessee purchased fish by paying cash exceeding ₹ 20,000.The assessee now claims that the payment was made to a headman / tharakan. A tharakan is commonly known as a broker or a middleman who facilitate finalization of the price between the seller and purchaser. A tharakan also known as Agent who would act either on behalf of seller or purchaser as the case may be. However, headman of fishermen is part of fishermen who will sort the fish catch and sell the fish on behalf of fishermen. Therefore, it is necessary to find out the exact role played by the person to whom the payment was made by cash. Merely because the assessee has paid ₹ 1,66,59,325 by cheque to the very same person that cannot alone be a reason to disallow the claim of the assessee. When the assessee claims that the payment was made to a headman who sorts the fish catch, the assessing officer shall find out the exact role played by the person who received payment by cash. When the very same person received huge payment by cheque, it may not be difficult for the assessing officer to summon them and examine the actual role played by him. Had the assessee claimed that the fish or fish products are purchased from fisherman or producers the matter would stand on different footing. Since the fish was admittedly purchased from a person other than fisherman or producers the exact role of that middleman has to be examined in view of the circular issued by CBDT. Issue is remanded back to the file of the assessing officer to bring on record the exact role played by the person who received the payment in cash.
Non deduction of tds on shipping charges - disallowance u/s 40(a)(ia) - only contention of the assessee is that the amount has already been paid and that provisions of section 40(a)(ia) is applicable only in respect of the amount remains to be paid - Held that:- By following the judgments of the Calcutta High Court in Crescent Exports Syndicate and another [2013 (5) TMI 510 - CALCUTTA HIGH COURT ] and Commissioner of Income Tax v. Sikandadarkhan N Tunvar [2013 (5) TMI 457 - GUJARAT HIGH COURT] this Tribunal is of the considered opinion that the decision of the Special Bench of this Tribunal in the case of M/s Merilyn Shipping & Transports [2012 (4) TMI 290 - ITAT VISAKHAPATNAM] and the judgment of Vector Shipping Services (P) Ltd [2013 (7) TMI 622 - ALLAHABAD HIGH COURT] are not applicable to the facts of the case under consideration whereas the judgments of the Calcutta High Court in Crescent Export Syndicate (2013 (5) TMI 510 - CALCUTTA HIGH COURT) and the Gujarat High Court in Sikandarkhan N Tunvar (supra) are squarely applicable to the facts of the case. The dismissal of SLP by Apex Court is not a declaration of law under Article 141 of the Constitution of India. Therefore, mere dismissal of SLP by Apex Court does not mean that the Apex Court declared any law on the subject. - Decided against assessee
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2014 (9) TMI 1019
Claim of refund - customs duty were paid without claiming the benefit of notification 23/22 cus. - appellant contends that the refund claim cannot be rejected on the ground that appellant had not challenged the original assessment order and therefore, appellants are not entitled to re-open the assessment orders. - Held that:- it was the duty of the assessing authority to allow the benefit of Notification No. 23/02-Cus, though erroneously not claimed by appellant in the bill of entry. I further hold that the object of sec. 27 (i) & (ii) is to cover those cases where the duty is paid by a person without an order of adjudication, as in the present case where the appellant paid excess duty in ignorance of the Notification, which allows it to pay concessional rate of duty, merely after filing a bill of entry.
Thus the appeal is allowed with consequential benefits. The appellant is entitled to refund of duty, excess paid, as per provisions of Noti. No. 23/02. - Refund allowed.
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2014 (9) TMI 1018
Disallowance u/s 14A - Held that:- On a perusal of the Balance sheet filed by the assessee we notice that the assessee has got huge borrowals and own funds are very much less visà- vis borrowed funds. Hence, the interest disallowance may also fall under Rule 8D(2)(i) of the Rules. We notice that the AO has chosen to make disallowance under Rule 8D(2)(ii) of the IT Rules.
In view of the foregoing discussions, we are of the view that this issue requires examination afresh. Hence, we prefer to set aside all the matters to the file of AO. Accordingly, we set aside the order of Ld CIT(A) and restore all the matters to the file of the assessing officer with the direction to examine this issue afresh in the light of discussions made supra and also by duly considering the information and explanations furnished by the assessee and take appropriate decision in accordance with the law. - Decided in favour for assessee for statistical purposes.
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2014 (9) TMI 1017
Trading addition - Rejection of books - surrender of income - rejection of income derived from the regular books of accounts - CIT(A) deleted the addition - Held that:- The assessee continuous to derive income from contractorship business and the manner of keeping the books of accounts is same. The books of accounts are audited and nothing has been pointed out to show different facts. The fact of surrender made during survey is separately considered by the assessee as well as by the AO while computing the income. Therefore, the fact of surrender of income cannot be a reason for not accepting the income derived from the regular books of accounts. Specific defects are to be pointed out to reject the duly audited books of accounts. Accordingly, following our own aforesaid order in the assessee’s case for the A Y 2009-10 we are of the considered opinion that the rejection of books of accounts is not justified in this case. The proceedings u/s 263 of the Act in A Y 2008-09 would also not make any difference for the reason that the Commissioner had not given any specific direction and the assessment order has also been made like regular assessment. The reasons/findings given in the assessment order are same as given in the assessment for the assessment year 2010-11. - Decided against revenue
Disallowance of wages - CIT(A) deleted the addition - Held that:- No such disallowance was made in A.Y. 2009-10. Otherwise also the AO pointed out certain defects regarding address of the labour, thumb impression, attendance record, but at the same time he allowed the entire wages paid during the year and the outstanding wages for two months. As such, there appears to be no nexus between the defects pointed out and the amount disallowed. We also find that the only apprehension of AO as appears from his order is about the huge outstanding wages and that too only in respect of outstanding for a period of more than two months. The assessee furnished appropriate explanation giving reason for shortage of fund as considered by the CIT(A) in his order. Assessee also furnished details of payment of outstanding amount in the next year. In such facts and circumstances of the case, we find no reason to disagree with the view taken by the CIT (A).- Decided against revenue
Non deduction of tds u/s 194C - CIT(A) deleted the addition - Held that:- The entire expenditure in question has been paid by the assessee and nothing remains payable as on the end of the year. The Special Bench, Vishakhapatnam in the case of Merilyn Shipping & Transport vs. Addl. CIT, [2012 (4) TMI 290 - ITAT VISAKHAPATNAM ] has decided this issue in assessee’s favour. However the Andhra Pradesh High Court has put this order under interim suspension. As relying on the decision of CIT Vs. Vegetable Products Ltd., [1973 (1) TMI 1 - SUPREME Court] wherein it was held that in case of judicial controversy, the view favourable to the assessee should be adopted. - Decided against revenue
Disallowance of depreciation - CIT(A) deleted the addition - Held that:- We find that the depreciation is disallowed only for the reason of absence of vouchers though the payments have been made through account payee cheques. In our considered view, the AO should have given weightage to the audited accounts and the tax audit report where the auditors have given true and correct information in form 3CD read with form 3CB. These are statutory documents and evidences should be brought on record to prove any mention in these Forms as incorrect. Further the assets have physical substance which cannot be denied. The payments are made through account payee cheque. In such circumstances, only non-availability of voucher cannot be a reason for making disallowance of depreciation. We therefore uphold the order of the CIT (A) - Decided against revenue
Disallowance in respect of repairs and maintenance expenses - CIT(A) deleted the addition - Held that:- On one hand, the revenue claims that the assessee has recorded higher expenditure for the purpose of proposing its disallowances and at the same time proposes addition in respect of unbooked expenses which is not justified in the facts and circumstances of the present case. The expenditure of ₹ 1,16,47,979/- is in fact part of overall expenditure of ₹ 17,25,65,778/- claimed by the assessee. We are inclined to agree with the version of the assessee that the expenditure which has been written at various sites by different persons in an unsystematic manner had been duly incorporated in the books of accounts on systematic basis. We have already given a finding that the AO did not point out any substantial defect in the books of accounts. In such facts and circumstances of the case and looking at the overall quantum of expenditure of ₹ 17,25,65,778/- claimed by the assessee in computing the business profits, we do not agree with the version of the department - Decided against revenue
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2014 (9) TMI 1016
Disallowance under section 40(a)(ia) - non deduction of TDS on Royalty and Commission - Held that:- There is no default on the part of the assessee in respect of deduction of tax at source. There is sufficient evidence regarding the payment shown as income by the respective parties (payee) in their return filed and so the ITO failed to appreciate that tax cannot be collected once again by the Department if it is already paid by the payee. No expenditure was outstanding or payable as on Balance Sheet date, i.e. 31.03.2009 for which TDS has to be collected and hence section 40(a)(ia) cannot be invoked in the light of the order of the ITAT Special Bench in the case of Merilyn Shipping & Transports.[2012 (4) TMI 290 - ITAT VISAKHAPATNAM].
Identical issue was considered by the ITAT “A” Bench in the case of Amit Naresh Sinha (2014 (9) TMI 1000 - ITAT PANAJI – wherein one of us is a party) wherein the Bench had taken the view that if an amount is paid, disallowance under section 40(a)(ia) is not permissible - Decided in favour of assessee.
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2014 (9) TMI 1015
Disallowance of expenditure u/s 40(a)(ia) - non deduction of tds on interest payment - Held that:- On perusal of the said orders of the Tribunal in the cases of Rajeev Kumar Agarwal (2014 (6) TMI 79 - ITAT AGRA ) and Shri Antony D. Mundackal (2013 (12) TMI 67 - ITAT COCHIN), we find merit in the arguments raised by the Ld Counsel. Accordingly, we set aside the orders of the Revenue and remand the issues to the file of the AO in all the instant three cases for adjudicating the issues afresh after examining the applicability of the said second proviso to section 40(a)(ia) of the Act and after verifying the records of the assessees. AO shall grant a reasonable opportunity of being heard to the assessees as per the principles of natural justice. - Decided in favour of assessee for statistical purposes.
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2014 (9) TMI 1014
CENVAT credit on Canteen Service and Gardening Service - Held that:- The issue is no longer res integra as the same is settled by the Hon'ble Bombay High Court in the case of Ultratech Cement Ltd [2010 (10) TMI 13 - BOMBAY HIGH COURT ] and thereafter the same has been consistently followed by various benches of CESTAT. The appellant therefore submit that the cenvat credit is available, in the instant case on canteen services and the impugned order is not legal and correct. To a specific query, as to whether the appellant-firm recovered a part of the cost of the catering services from their employees, it was submitted by the learned Counsel that they had recovered part of the cost. However, they have reversed proportionate amount of CENVAT Credit to the extent of credit involved in the cost of food recovered from the employees/worker, on 7.10.2012, vide PLA Entry No. 20, which is after passing of the order confirming the demand but before the appellate authority's order. This fact is also noted in the lower appellate authority's order. Following the ratio of the Hon'ble Bombay High Court in Ultratech Cement Ltd. (supra), hold that the appellants are eligible to avail CENVAT Credit on Garden Maintaining Services and Canteen services - Decided in favour of assessee.
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9911796707
