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Case Laws
Showing 281 to 300 of 1515 Records
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2016 (1) TMI 1239
Maintainability of appeal under Section 378(4) of the Criminal Procedure Code - Held that:- An appeal under Section 378(4) of the Code can only be filed against an order of acquittal and not against an order of conviction or for seeking enhancement of sentence. Therefore, the appeal is not maintainable.
While sentencing the accused, the Magistrate can punish the accused with imprisonment for a term which may extend upto two years or with fine which may extend to twice the amount of the cheque, or with both. But nowhere is it mandatory for the Magistrate to punish the accused with actual imprisonment even in case where he has already imposed a fine of twice the amount of the cheque.
The learned Magistrate in its wisdom has imposed a fine twice the amount of the cheque, which in my considered view is sufficient to meet the ends of justice. Moreover, there are no special circumstances carved out by the appellant so as to call for any interference with the order of the Magistrate so as to alter and impose a more stringent sentence.
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2016 (1) TMI 1238
Refund claim - relevant date for discharge of duty - Whether the appellant was correct in claiming that the goods entered into territorial water in India and vessel was assigned a berth on 24.02.1999 hence it is the date of import of the goods or 01.03.1999, the date on which entry inwards made, as claimed by Revenue?
Held that: - This issue is no more res integra as the Apex Court in the case of Apar Pvt. Ltd. [1999 (7) TMI 69 - SUPREME COURT OF INDIA], has held that Duty has to be paid with reference to the relevant date as per Section 15 of the Customs Act.
The goods were allowed to be discharged on 27.02.1999 customs duty came into force on such goods from midnight of 27/02/1999. It is also undisputed that Entry Inward of the goods was made in the records on 01.03.1999 for all practical purpose and noted that the goods have been imported into India - no question of refund arises.
Appeal dismissed - decided in favor of Revenue.
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2016 (1) TMI 1237
Imposition of penalty u/s 11AC of the Central Excise Act, 1944 - Held that: - even though the demand is for extended period but there appears to be no suppression of fact on the part of the appellant. The penalty u/s 11AC can only be imposed if the non payment of duty is by the reason of fraud, collusion, suppression of fact etc. The Ld. Commissioner (Appeals) has not gone into this aspect he has waived the penalty only relying on the judgment of M/s. Machino Montell (I) Ltd. [2004 (4) TMI 101 - CESTAT, NEW DELHI], prevailing at that time therefore the matter need to be remanded to the Commissioner (Appeals) for reconsideration of the case - appeal allowed by way of remand.
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2016 (1) TMI 1236
Section 14A disallowances - proportionate expenditure computed in respect of administrative and other expenses - Rule 8D applicability - Held that:- Rule 8D of the Income Tax Rules to be applicable only from assessment year 2008- 09.
Proportionate disallowance qua assessee’s dividend incomes earned in the two impugned assessment years - Held that:- There is no dispute that the assessee is already an investment company only deriving exempt income to the tune of almost 90% of the gross receipts in former assessment year. We observe in these facts that it has failed to attribute whole of the expenditure amounting g to ₹ 28,21,000/- qua earning of the remaining miniscule taxable income. This has made the CIT(A) to invoke the impugned proportionate disallowance in view of these facts and circumstances. The assessee has relied upon a catena of case of law in support of its contentions opposing proportionate disallowance. None of the said cases seem to involve an investment company alike the assessee. We hold in other words that the assessee company incurs its expenditure in making share investments only keeping in mind its business and exempt income of more than 90% of the gross receipts. We find no merits in assessee’s sole substantive raised in both impugned assessment years.
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2016 (1) TMI 1235
Deduction u/s 80P(2)(d) - interest income on deposits made by the assessee with cooperative bank - whether for the purpose of sec.80P(2)(d), a co-operative bank is considered as a co-operative society? - Held that:- CIT(A) has allowed the claim of the assessee by holding that the co-operative bank cannot be excluded from the co-operative society engaged in the business of banking for the purpose of sec.80P(2)(d). We find that the co-ordinate bench of this Tribunal in case of Menasi Seemeya Group Gramagala Seva Sahakari Sanga Niyamitha [2015 (2) TMI 1094 - ITAT BANGALORE ]held that a Co-operative bank which is also a Co-operative Society cannot be excluded from the purview of benefits available to a Cooperative Society , unless the provisions of the Act so stipulate.
It had unequivocally held that the said provision applied to all Co-operative Society including a Cooperative Society engaged in the business of the bank or in other words, a Co-operative Bank. Therefore, the view taken that income by way of interest or dividends earned by the assessee society from the Cooperative bank which was also a Co-operative Society was eligible for deduction cannot be faulted. - Decided in favour of assessee
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2016 (1) TMI 1234
Advertisement, marketing and sales promotion (‘AMP’) expenses - whether there was an was an international transaction in regard to the AMP expenses incurred by the Assessee on behalf of its foreign associated enterprise (‘AE’) within the meaning of Section 92B? - Held that:- As already noticed, the earlier decision of this Court in Sony Ericsson (2015 (3) TMI 580 - DELHI HIGH COURT ) proceeded on the basis that the Assessees whose cases were being disposed of did not dispute the existence of an international transaction involving AMP expenses. This Court is not required to opine whether such concession was rightly made or not. However, as far AY 2010-11 is concerned, the Assessee appears to have raised a specific ground both before the DRP as well as the ITAT regarding existence of an international transaction and this is reiterated in this Court in the present appeal of the Assessee as well. Such plea will have to be decided by the ITAT in accordance with law.
Consequently, it is ordered that the impugned order of the ITAT is set aside and the said appeal stands restored to the file of the ITAT.
The ITAT will decide the aforementioned appeal afresh in light of the directions issued by this Court in Sony Ericsson (supra).The ITAT will examine all the grounds including the one regarding the existence of an international transaction involving AMP expenses.
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2016 (1) TMI 1233
Disallowance u/s.14A - ternate contention of the Ld. Counsel for the assessee that since the entire income of the assessee is eligible for deduction u/s.80IA(4), therefore, even if any disallowance is made the business income of the assessee will go up and therefore there will be corresponding deduction of the said amount and therefore it is revenue neutral - Held that:- Since the investments are made in shares of the holding company who in turn has invested the amount in the subsidiary company and special purpose vehicle companies, for getting contracts from the PWD department of Government of Maharashtra, therefore, the investment was for commercial expediency and therefore no disallowance of interest is called for. As no dividend income has been received which is exempt from tax, therefore, no disallowance u/s.14A should be made.
We also find merit in the alternate contention of the assessee that since assessee is entitled to deduction u/s.80IA(4), therefore, the addition, if any, has to be allowed u/s.80IA(4) and therefore, the same is revenue neutral. Admittedly, the income of the assessee is eligible for deduction u/s.80IA which the AO himself has allowed in the body of the assessment order. The returned business income has been allowed by the AO as deduction u/s.80IA as per the claim. Therefore, once a part of the interest expenditure is disallowed then the corresponding business income will go up. Therefore, request of the assessee that the AO may be directed to increase the deduction u/s.80IA(4) to the extent of disallowance u/s.14A which increases the business profit to that extent is acceptable. In this view of the matter, we set aside the order of the CIT(A) and direct the AO to delete the disallowance made u/sa.14A. Ground of appeal No.1 as well as the first issue in the additional ground raised by the assessee are accordingly allowed.
Bogus share capital receipt - enhancing the income on account of alleged commission paid for obtaining bogus share capital - Held that:- We admit the additional evidences filed by Ld. Counsel for the assessee and restore this issue to the file of the AO with a direction to verify the records from the AO of Amicitia Infrastructure Pvt. Ltd. In case the investment by Amicitia Infrastructure Pvt. Ltd. in the shares of Hari Infrastructure Pvt. Ltd. has been accepted by the AO of Amicitia Infrastructure Pvt. Ltd., then in that case no addition can be made in the hands of the assessee and the AO has to delete the addition to this extent.
So far as the investment by the remaining 8 parties are concerned admittedly the assessee has provided the complete details including names and addresses, PAN numbers, details of the investors and the details of cheque Nos. etc. through which the amounts have been received. We also find force from the submission of the assessee that the statement recorded from different parties were not confronted to the assessee and he was not provided with an opportunity to rebut the same. Subsequent to the passing of the order of the CIT(A) various decisions have come according to which addition cannot be made in the hands of the assessee company where it has given the names and addresses, PAN numbers and bank accounts details of the alleged bogus shareholders and the addition can be made only in the hands of the bogus share holders. Therefore, in the interest of justice, we restore this issue to the file of the AO with a direction to decide the issue afresh and in accordance with law after giving due opportunity of being heard to the assessee.
Addition in the case of Shri Chandrakant Sonawane is concerned, we find the confirmation letter filed by the assessee was not properly considered and adjudicated by the AO or the CIT(A). We therefore remit this issue also to the file of the AO for fresh adjudication. - Decided in favour of assessee for statistical purposes.
Addition on account of rebate of interest and waiver of loan - Held that:- In our opinion, when any expenditure is neither debited to the profit and loss accounts nor claimed as a deduction cannot be disallowed by the AO. Since the Ld.CIT(A) after recording that the assessee has neither debited the interest in the profit and loss account which was waived by the bank nor claimed the same as deduction has deleted the addition made by the AO, therefore, in absence of any distinguishable feature brought to our notice by the Ld. Departmental Representative, we find no infirmity in the order of CIT(A) on this issue. Accordingly, grounds raised by the Revenue on this issue are dismissed.
Addition being the principal amount waived by the bank - Held that:- In the instant case, we find the facts are not discernible from the order of the AO as well as the order of the CIT(A) as to whether the amount was utilised for capital asset or for trading purpose. We therefore restore the issue of remission of R.2.33 crores by the bank to the file of the AO with a direction to decide the issue afresh in the light of the decision of the Hon’ble Bombay High Court Mahindra and Mahindra Ltd. (2003 (1) TMI 71 - BOMBAY High Court ) and in accordance with law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. Grounds raised by the Revenue are accordingly dismissed and the grounds raised by the assessee on this issue are allowed for statistical purposes.
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2016 (1) TMI 1231
Penalty under section 271(1)(c) - assessee has claimed depreciation/deduction in question and the same became unsustainable in law - Held that:- The case of the appellant/assessee is squarely covered by the law laid down by the Hon’ble Supreme Court in Reliance Petroproducts Pvt. Ltd [2010 (3) TMI 80 - SUPREME COURT] as held that merely because the assessee claimed deduction which was not sustainable in law, penalty under section 271(1)(c) is not attracted and if the contention of the revenue is accepted, the assessee would be liable for penalty under section 271(1)(c) in every case where the claim made by the assessee is not accepted by the AO for any reason. We, therefore decide the issue in question in favour of the appellant/assessee
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2016 (1) TMI 1230
Classification of manufactured products - Shower to Shower - Listerine Mouthwash - Savlon - whether the products could be classified as drugs or not?
Held that: - Insofar as “Shower to Shower” and “Listerine Mouth Wash” are concerned, these two products can be used by any person irrespective of prescribing by a medical doctor for one to feel fresh and to avoid/remove body odour or to remove bad smell in body/mouth, and in my view these are products which are freely available in the market and merely because there may be some percentage of acid or ethanol or similar ingredients, it cannot be said that they can be said to be like a medicine or even can be said to be a medicine or a drug - even if the licensing authorities may grant permission to the producers / manufacturers as drug but they cannot be treated as a drug or medicine when specific entries under the Sales Tax laws are required to be looked into and considered - petition dismissed and claim of petitioner rejected in relation to these two products.
Savlon - Held that: - The Apex court in the case of IPCA Health Products & Pvt. Ltd. v. CCE [2014 (6) TMI 861 - BOMBAY HIGH COURT] was considering a case of Hexiperp, Hexiscrub (Surgiscrub) and Hexiaque, which also contain Chloral Hex dine Gluconate Solution BP, which is also available in “Savlon” and held it to be a medicine.
Imposition of penalty - Held that: - The Apex court as well as this court have in identical cases held that when there is an issue of classification and issue being debatable, the penalty is not leviable/imposable/sustainable - The judgment in the case of Sree Krishna Electricals v. State of Tamil Nadu & Another [2009 (4) TMI 428 - SUPREME COURT OF INDIA] so also judgment of this court in the case of CTO v. Bambino Agro Industries Ltd. [2015 (9) TMI 1504 - RAJASTHAN HIGH COURT] are sufficient to refer for non imposition of penalty.
Petition dismissed - decided partly in favor of assessee and partly in favor of revenue.
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2016 (1) TMI 1229
Release of detained goods - transport of two consignments of DVD players from Moolakadai to Mount Road on 12.12.2015 in a mini lorry - detained on the ground that the goods transported without valid documents - Held that: - this Court is inclined to order release of the detained goods in question on payment of tax to the tune of ₹ 1,24,000/- by the petitioner - petition allowed - decided partly in favor of petitioner.
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2016 (1) TMI 1228
Genuineness of Speculative loss - assessee is engaged in the business of broking and dealing in commodities - Held that:- The assessee is a registered non-member of Exchange; Shri Bharatkumar Ishwarlal Patel is a member of ACEL through which the transactions have been carried out which is not disputed by the Assessing Officer in the remand reports. ACEL permits such transactions under its domain. In view of these facts and circumstances, I hold that the ld. CIT(A) has rightly decided the issue in favour of the assessee by elaborate observations, discussions and reasons which cannot be found fault with. - Decided in favour of assessee
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2016 (1) TMI 1227
Levy of penalty under section 271(1)(c) - Held that:- Notices dated 13.12.2007 issued for initiation of penalty proceedings under section 247 r.w.s. 271 of the Act for levy of penalty under section 271(1)(c) of the Act for assessment years 1996-97 and 1997-98 are defective and issued without application of mind and are therefore invalid and consequently the orders levying penalty under section 271(1)(c) of the Act for both assessment years 1996-97 and 1997-98 are also invalid and liable to be cancelled. See Dilip N. Shroff vs. JCIT (2007 (5) TMI 198 - SUPREME Court) - Decided in favour of assessee
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2016 (1) TMI 1226
Principles of Natural Justice - Cancellation of TIN registration - single line order of cancellation passed, without assigning any reason - Held that: - Though the learned Additional Government Pleader appearing for the respondent submitted that a show-cause notice was sent to the petitioner and the same was returned for want of sufficient address, the fact remains that those facts are not reflected in the impugned order and thus, it is evident that before passing such order, the petitioner was not at all heard. Therefore, this Court is fully satisfied that the impugned order of cancellation of registration passed is in violation of principles of natural justice, that too, without assigning any reason cannot be sustained - petition allowed - matter on remand.
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2016 (1) TMI 1225
Profit on sale of shares - Long Term and Short Term Capital Gain OR business income - Held that:- CIT(A) has rightly held that the transaction of shares carried out by the assessee during the year should be treated as investments and the short term capital gain on sale of such shares shall be assessed under the head capital gain and not as business income. The reason being that the assessee’s business was not that of share transaction but that of providing online and real time education to retail and institutional plans on a variety of programmes and subject. In fact in earlier year also the CIT(A) has held the same. Therefore, Ground No. 1 of the Revenue is dismissed.
Depreciation on computer accessories and peripherals - Held that:- Depreciation has been rightly allowed by the CIT(A) on the basis of decision in case of CIT vs. BSES Rajdhani Power Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT ] wherein it was held that computer accessories and peripherals such as printers, scanners and server etc. form an integral part of the computer system and are therefore, entitled to depreciation @ 60%. The issue is covered discussed therein is in favour of the assessee.
Section 14A though was discussed by the Assessing Officer and CIT(A), but the same was not in consonance with invocation of Rule 8D. Thus, this issue needs to be looked into, therefore, we remand back this issue to the Assessing Officer.
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2016 (1) TMI 1224
Payment of tax without any further delay - the impugned proceedings is issued only on the reason that the stay granted by the appellate authority pending appeal challenging the assessment proceedings, has expired on 15.01.2016, without considering the fact that the appellate authority reserved the appeal for orders on 13.01.2016 and that the petitioner has also filed application seeking extension of stay on 11.01.2016 and the said application is still pending - Held that: - the appellate authority will pass final orders in the appeal itself within a period of two weeks and in the meantime, the respondents will not give effect to the impugned notice - this writ petition is disposed of with a direction to the respondents not to proceed against the petitioner till the appeal is disposed of by the second respondent or till an order is passed in the petition seeking extension of stay, filed before him - decided in favor of petitioner.
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2016 (1) TMI 1223
Recovery of sales tax - Proceedings against the property purchased by the appellants - there was a sales tax arrears against the property of which the appellants were not aware of - Held that: - it is open for the revenue authorities to take steps to recover the amount from the properties sold by the defaulter at Muvattupuzha, we do not think that the revenue authorities will be justified in proceeding against the property of the appellants in this case. The appellants have a case that they are the subsequent purchasers of the property and that they were not aware of the sales tax arrears. They also have a case that there is no charge created on the properties purchased by them. It is apparent from the materials on record that though it will be proper on the part of the revenue authorities to proceed against the properties in the hands of the defaulter, his wife and children, in the absence of any statutory provision which creates a charge on such properties or creates a legal impediment to treat such transfer void, it may not be possible for the revenue authorities to proceed against the properties in the hands of the appellants.
Even according to the appellants, they purchased the properties as per sale deed dated 27/04/2007, 28/04/2007 and 17/05/2007. At the time when the properties were purchased, no proceedings were initiated against the properties. Proceedings were taken only when Ext.P10 had been issued on 11/08/2008. As far as the appellants are concerned, we do not think that the revenue authorities are entitled to invoke Section 44 of the Act - Therefore, in the absence of any statutory provision which creates a charge on the property or declares the transfer as void and not binding on the Government, and since there was no attachment on the properties prior to the date on which the appellants had purchased the property, the said property cannot be proceeded by invoking the provisions of the Act.
The property of the appellants were proceeded only on account of a mistake of fact, we do not think that it amounts to wilful contempt. Accordingly we do not find it necessary to proceed with the contempt case - the title of petitioners held good - petition allowed - decided in favor of petitioner.
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2016 (1) TMI 1222
Natural justice - Best judgement assessment - imposition of penalty u/s 37(2) of the Assam Value Added Tax Act read with Section 8 of the Assam Entry Tax Act, 2001 - import of chemical - taxable @ 2% under the Assam Entry Tax Act, 2008 as per entry No. 51 of the Schedule - Held that: - though the written submission of the petitioner dated 21.06.2015, that was submitted pursuant to the Notice of the Assessing Officer dated 20.11.2014 & 11.06.2015, was available before him, but the Assessing Officer did not consider the same while passing the impugned order of 'best judgment assessment' dated 28.08.2015, considering it to be incomplete or incorrect.
The said impugned order also does not reflect that the departmental authority adduced proper evidence and discharge the burden of proof with regard to such finding.
The impugned assessment order dated 28.08.2015 is vitiated in law and accordingly the same is set aside - petition allowed - decided in favor of petitioner.
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2016 (1) TMI 1221
Maintainability of appeal - monetary limit for filing appeal - Held that: - the amount involved in all these appeals is less than ₹ 10,00,000/- (Rupees Ten Lakhs only) and needs to be summarily dismissed as per the new litigation policy of the Government of India, Ministry of Finance, Department of Revenue CBEC Circular No. F.390/Misc./163/2010-JC dated 17.12.2015 as reported by a letter of CBEC dated 01.01.2016 - appeal dismissed.
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2016 (1) TMI 1220
Recompute the disallowance u/s 14A on a reasonable basis - Held that:- Tribunal has followed the decision of this Court in Godrej & Boyce (2010 (8) TMI 77 - BOMBAY HIGH COURT ). The above decision according to the Revenue was subject to challenge by the Revenue before the Supreme Court and the same according to the Revenue has been dismissed on 28th October, 2013. Therefore, question (a) as raised does not survive. Thus, this question is not entertained.
Disallowance of expenses and depreciation incurred by the assessee on Kavesar Unit - ITAT deleted addition - Held that:- The Revenue has already accepted the earlier order of the Tribunal in case of the same respondent assessee for Assessment Year 2002-03 which has been merely followed by the impugned order. There is no justification shown warranting filing of an appeal from the impugned order, when it has merely followed the earlier orders in Assessee's own case for the Assessment Year 2002-03. Mrs. Bharucha states that the Department has accepted the decision of the Tribunal rendered in the case of Respondent Assessee for the Assessment Year 2002-03, which has been followed by the impugned order. Although no affidavit has been filed indicating the reasons as to why the Revenue has preferred the present appeal on the above two issues when the earlier order of the Tribunal for the Assessment Year 2002-03 has been accepted by the Revenue. The statement is made by Mrs. Bharucha is on the basis of instructions given by one Mr. Rajesh Kumar Yadav in his letter dated 15th January, 2016. The same is taken on record and marked "X" for identification. Accordingly, questions (b) and (c) also do not raise any substantial question of law and are not entertained.
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2016 (1) TMI 1219
Release of detained goods - demand of security for release - Form Form XXI - Held that: - Form XXI was produced. There is no allegation that form-XXI was either bogus or not genuine nor there is any allegation against the assessee that the goods were not be found accounted in his books. On the contrary, the assessee had placed a valid document to show that the goods had duly accounted for. In the absence of any finding being recorded by the Tribunal that any goods have escaped assessment towards taxes, the demand for security is not justified - goods are directed to be released - revision allowed - decided in favor of assessee.
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9911796707
