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Case Laws
Showing 281 to 300 of 1843 Records
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2017 (1) TMI 1567
Unexplained share capital u/s 68 - discharge the primary onus casted upon it to prove the identify, genuineness and creditworthiness of the investors - Held that:- In view of the judgment of the Hon’ble Supreme Court in the case of Commissioner of Income Tax vs. Lovely Exports (P) Ltd.(2008 (1) TMI 575 - SUPREME COURT OF INDIA) as held if the share application money is received by the assessee-company from alleged bogus shareholders, whose names are given to the AO, then the department is free to proceed to re-open their individual assessments in accordance with law. Hence, we find no infirmity with the impugned judgment.
The issue is decided in favour of the assessee.
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2017 (1) TMI 1566
Trading addition - rejection of books of accounts on account of unverified purchases and estimation of appropriate gross profit rate - Held that:- Anuj Kumar Varshney & Others vs. ITO (2015 (4) TMI 533 - ITAT JAIPUR) has held that 15% of unverifiable purchases shall be held to be income of the assessee from undisclosed sources in the relevant years.
Set aside the issue raised in such appeals, to the file of the AO to decide the same afresh after the judgement.
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2017 (1) TMI 1565
TPA - comparable selection criteria - Held that:- Keeping in view the functional disparity and factum of super abnormal profit Mold-Tek Technologies Ltd. to be excluded from final list.
Calculating the deduction u/s 10A - Held that:- CIT (A) has rightly directed the AO to exclude the telecommunication expenses from the total turnover while calculating the deduction u/s 10A of the Act. So, this ground is determined against the revenue.
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2017 (1) TMI 1564
Penalty u/s 54(1)(7) of the VAT Act - registration under Section 18(1) of the Act not secured - the revisionist was performing works contract w.e.f. May, 2013 onwards - Held that: - Once it is found that revisionist was engaged in the construction activity pursuant to works contract, without any valid registration, the imposition of penalty cannot be said to be bad in law - reliance placed in the case of K. Raheja Development Corporation Vs. State of Karnataka [2005 (5) TMI 7 - Supreme Court], where it was held that the transaction undertaken by the revisionist comes within the ambit of a works contract, and as such, the assessee was required to have got itself registered, and the transaction was also liable to payment of tax - revision dismissed.
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2017 (1) TMI 1563
Penalty - principles of Natural Justice - Held that: - the appellant had sought cross-examination and is identically placed with Shri Ramesh Govindbhai Patel and Shri Mukesh Jayantilal Patel - by not complying the provision of Section 138(b) (l)(b), the principle of natural justice has been violated - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1562
CHA - demand of customs duty - penalty - evasion of customs duty on goods imported by various importers - Held that: - the demands of custom duty from appellant herein is only on the ground that appellant had not ensured that of the documents submitted by them on behalf of importers was in accordance with the existing provisons or otherwise, handled documents without verifying the antecedents of the importers - there are no provisions in Customs Act, 1962, that demand of customs duty needs to be discharged by any other person than importers. It is on record that the appellant herein is not a importer but is a clearing house agent.
The issue, as to, can a duty liability be fastned on the CHA is well settle by the division bench of the Tribunal in the case of Devanshi Bhanji Khona [2008 (12) TMI 467 - CESTAT, BANGALORE], where it was held that the duties of the Custom House Agent i.e. current appellant before us, ended the moment the goods were cleared from the customs area. Subsequent detention of the undervaluation, etc. and could have proceeded against by the revenue only against the importer, which they did so, but not on the current appellant.
As the demand of duty as also confiscation does not survive test of law against CHA, the question of imposition of penalty under Section 112 of the Custom Act, 1962 does not arise and is accordingly set aside.
Appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1561
Time Limitation - assessment order passed under Section 25(1) read with Section 25A of the Kerala Value Added Tax Act, 2003 - Held that: - The ground of limitation cannot be sustained since, the notice under Section 25(1) of the KVAT Act is dated 24.01.2014 and the same has been validly initiated within the limitation provided under the provision.
The petitioner has a contention that the objections, as noticed under Section 25(1) of the KVAT Act has been finalised and a verification of the check note in the files would reveal that the earlier officer had closed the proceedings. However, the learned Government Pleader, on a verification of the files, submits that there is no such check note available. The said contention, hence, cannot be sustained.
It is made clear that the setting aside of Ext.P5 is only to the extend of the objections raised on audit and revision attempted under Section 25A. Whatever proposals notified under Section 25(1) of the KVAT Act, and finalised by the assessment order shall not be upset by this judgment and the petitioner shall be entitled to file an appeal from the said order.
Petition allowed in part.
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2017 (1) TMI 1560
Application for review of order dated January 9, 2013 - transformation of underground raw water into packaged drinking water - manufacture within the meaning of section 2(30) of the AVAT Act, 2003 - sales tax exemption - Held that: - although the petitioner had raised the plea of promissory estoppels and legitimate expectation to receive the benefit of exemption under the Industrial Policy of 2003 besides claiming its right to receive exemption on account of the manufacture of the plastic bottles, yet, the learned counsel for the petitioner had failed to advance arguments on those issues as a result of which this court did not have the occasion to consider the said issues on merit.
The failure on the part of the petitioner's counsel to argue on the collateral issues raised in the writ petition having a material bearing in the outcome of the writ petition would amount to sufficient reason for reviewing/recalling the order dated January 9, 2013
Review petition allowed - The order dated January 9, 2013 passed in W. P. (C) No. 1100 of 2009 is hereby re-called.
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2017 (1) TMI 1559
Levy of Entry tax - whether in respect of the vehicles which have been sold by the petitioner or whether in respect of the vehicles, which have been sold from Indore dealers to various persons and in respect of the same vehicles the Entry Tax has already been paid can be subjected to payment of entry tax again on selling of second hand vehicles, in spite of the fact that there is no change of local area or without causing entry from one local area into another local area? - Held that: - In the present case, petitioner being a dealer in Indore purchases goods from Maruti Udyog Ltd. Haryana and at that point of time, entry tax is paid when the vehicle is brought to Indore and it is sold at Indore and thereafter, the vehicle again re-sold to the petitioner i.e. ‘Maruti True Value’. There is no change in respect of local area i.e. Indore where vehicle owner has sold the vehicle to the petitioner - entry tax has already been paid in respect of the vehicles, which have been sold to the persons who are residing at Indore, this Court is of the considered opinion that the respondents cannot charge the tax upon the goods which have already entered in local area and in respect of which the entry tax has already been paid.
This Court is of the considered opinion that the entry tax assessed vide order dated 29.07.2014 for assessment year 2011-12 to the extent, the entry tax has been charged upon the vehicles purchased from unregistered dealer/persons without there being any entry area is bad in law - petition allowed.
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2017 (1) TMI 1558
Penalty u/s 78(5) of the Rajasthan Sales Tax Act, 1994 - It was noticed that there was requirement of declaration form ST-18A and though it was produced but there were several cuttings and over-writings - Held that: - admittedly the declaration form produced had cuttings and over-writings and the finding recorded by the AO as well as the DC(A) that the form was earlier used and has been produced by reusing the same, which cannot be permitted.
It may be that a fresh declaration form was filed but then it was rightly rejected as the fresh declaration form could not be considered, if initially no declaration form was produced and on a show cause declaration form was filed, then it was a different case but facts are contrary.
Penalty upheld - Petition allowed - decided in favor of Revenue.
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2017 (1) TMI 1557
Re-opening of assessment - compounding of offences - petitioner's contention is that the turnover computed as suppressed by the Intelligence Officer and the Maximum Retail Price (MRP) taken to estimate the sales turnover of the suppressed opening stock - Held that: - The assessee, as is seen from the revision filed, is not aggrieved by the computation of the compounding fee but of the computation of suppression made of turnover and the sale price taken to arrive at the sales turnover; on the suppressed turnover. This was intimated to the assessee by the penalty authorities, after which the assessee accepted the offence and agreed to compound the offence. The assessee was issued with an order of compounding, in which also the computation of suppressed turnover and the sale price taken were clearly laid out. The assessee did not choose to file appeal from the said order and paid the amounts determined as compounding fees.
There is absolutely no reason why the assessment order should be kept in abeyance, till a revision which has been held to be not maintainable - petition disposed off.
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2017 (1) TMI 1556
Eligibility to deduction claimed u/s 10B - alternate claim of section 10A deduction - Held that:- The issue which arises before us is identical to the issue before the Tribunal in assessment year 2009-10 [2015 (3) TMI 151 - ITAT PUNE]. The year under appeal before us is assessment year 2010-11 and following the same parity of reasoning, we hold that the assessee is not entitled to the claim of deduction under section 10B of the Act. However, eligibility of deduction under section 10A of the Act in the hands of assessee merits to be verified. Accordingly, we remit this issue back to the file of Assessing Officer to verify the claim of assessee and pass order in accordance with law and also following the directions of Tribunal in earlier years.
Adjustment made on account of transfer pricing provisions - comparable selection criteria - Held that:- Companies functionally not comparable to the assessee which is rendering software services to its holding company need to be deselected from final list. Thirdware Solutions Ltd. and ALS Information System Ltd. to be excluded from final list.
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2017 (1) TMI 1555
Levy of entry tax - Coal - Held that: - it is evident that petitioner was required to purchase coal from Meghalaya and thereafter to resale the same to respondent No. 3. Coal is a declared good under Section 14 of the Central Sales Tax Act, 1956. Therefore, under Entry 23 of the Second Schedule to the VAT Act the rate of VAT within the State of Assam on each point of sale of the declared good would be 4%.
If VAT is levied on a specified good, no Entry Tax would be leviable thereon. Section 2 (43) of the VAT Act defines sale - As per Section 2 (43)(i), sale would include a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration. Section 10 deals with levy of VAT on sales - Therefore, since VAT was paid by the petitioner on the purchase of coal, Entry Tax thereon was not required to be paid in view of Section 5 of the Assam Entry Tax Act, 2001.
Petition allowed.
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2017 (1) TMI 1554
Deletion of penalty u/s 61 of the Rajasthan Value Added Tax Act, 2003 - Held that: - Admittedly the books of account were maintained properly and all the transactions are duly recorded in the books of account and the AO except levy of tax, has not found anything adverse - reliance placed in the case of Sree Krishna Electricals v. State of Tamil Nadu [2009 (4) TMI 428 - SUPREME COURT OF INDIA], where it was held that Where certain items which are not included in the turnover are disclosed in the dealer’s own account books and the assessing authorities includes these items in the dealers’ turnover disallowing the exemption penalty cannot be imposed.
The AO failed to justify levy of penalty, which has rightly been deleted by the appellate authorities and no question of law does arise out of the impugned order - petition dismissed.
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2017 (1) TMI 1553
Release of detained goods - mis-classification of the goods as 'packing material' - Held that: - Considering the fact that the petitioner is a registered dealer and that the petitioner has a prima facie case to refute the offence alleged, it is only proper that the petitioner be released with the goods on execution of a simple bond without solvent sureties - this Court had directed release of the goods unconditionally - petition allowed.
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2017 (1) TMI 1552
Maintenance Contract - levy of service tax - Held that: - Considering the substance of the contract, learned adjudicating authority is directed to eliminate the value of the goods from the entire contract and levy Service Tax on the service component only. Appellant is entitled to fair opportunity of hearing in the course of readjudication and make defence plea as well as lead evidence - Ld. authority shall pass a reasoned and speaking order recording such plea and evidence.
In view of the difficulties in interpretation of law involved at the infancy stage of introduction of law and also there was confusion as to the invoking of the taxing entry there shall not be any penalty - matter is remanded for readjudication to the learned adjudicating authority.
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2017 (1) TMI 1551
Time limitation - whether the SCN is barred by limitation? - Held that: - the extended period of limitation is bad and is set aside - the demand for the normal period is upheld which the appellant is directed to pay under intimation to the jurisdictional authorities - penalty also set aside - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1550
Business Auxiliary Service - activity of chilling the milk - Held that: - chilling of milk cannot be taxed under Business Auxiliary Service as the process amounts to manufacture in terms Note 6 of Chapter 4 of Central Excise Tariff - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1549
Valuation - includibility - free issue of diesel for rendering out site formation service - Held that: - this Tribunal in the case of the appellant itself Mehrotra Buildcon (P) Ltd. Versus Commissioner of C. Ex., Bhopal [2016 (7) TMI 1401 - CESTAT NEW DELHI], has allowed the appeal holding that free supply of diesel shall not be included in the value of service for the purpose of determination of the service tax liability - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1548
Convention Service - Revenue's case is that while providing the “Convention Service” during the period 1.10.2007 to 30.09.2008, the appellant had not paid service tax on the value realized for providing food and room to the participants, where the said services were provided as a package and were charging from the customers for providing convention services - Held that: - Since the period involved in this case is from 1.10.2007 to 30.09.2008 and for the earlier period, the Tribunal in the case of CCE, Jaipur Versus Chokhi-Dhani Resorts Pvt. Ltd. [2017 (1) TMI 38 - CESTAT NEW DELHI] has upheld the order passed by the ld. Commissioner (Appeals), the order of the Tribunal in the above case can be adopted in this case for allowing the appeal in favor of the appellant - appeal allowed - decided in favor of appellant.
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