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Showing 281 to 300 of 1076 Records
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2014 (10) TMI 803
Waiver of pre deposit - Extension of stay order - Tribunal allowed the stay application unconditionally while dispensing with the condition of pre-deposit of the entire amount of duty, interest and penalty - Whether the Tribunal is correct in granting indefinite stay of proceedings to the recovery of Govt. dues as adjudicated by the competent authority, contrary to the time limit prescribed under the provisions of the Central Excise Act, 1944 - Held that:- No doubt similar provision under Income Tax Act, 1961 or under this Act had been interpreted in favour of the revenue in the pronouncements cited by the learned counsel for the revenue. In the absence of any finding that the delay was attributed to the assessee, learned counsel for the revenue was not able to demonstrate that the assessee was responsible in delaying the decision of the appeal in any manner. Further, in M/s Maruti Suzuki (India) Limited [2014 (2) TMI 1037 - DELHI HIGH COURT] and M/s J.P. Transformers, Kanpur's case (2013 (10) TMI 1194 - ALLAHABAD HIGH COURT), the grant of ad interim stay was not vacated but the Tribunal was directed to decide the appeal expeditiously. - Tribunal to make sincere efforts for expeditious disposal of the appeal preferably within six months - Decided in favour of Revenue.
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2014 (10) TMI 802
Classification of goods - Classification of rexin cloth under Clause 19(i) of the Tariff Act or under Clause 19(iii) - Held that:- Section11-A of the Act, as it stood then, prescribes the period of limitation, within which the Department can recover the arrears of excise duty. One year was stipulated for this purpose. Where however, the default is committed or failure of recovery was on account of acts of fraud or misrepresentation or misstatement, the prescribed limitation is five years from the date on which the amount became due. Department was disabled from recovering the difference of duty between the items that fall under Clause 19(iii) on the one hand and Clause 19(i) on the other hand only on account of the interim orders passed by this Court in W.P.No.2199 of 1981. Once that writ petition ended in the form of a direction to the respondent therein to pass an order and an order was passed on 04.05.1987, affirming the original classification, the question as to whether the period deserves to be excluded in the process of reckoning limitation under - Decided in favour of Revenue.
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2014 (10) TMI 801
Cenvat Credit - capital goods - structural steel items viz., M.S.Plates, Angles, Channels and HR Sheets used for civil construction activity - whether M.S. Flates, Plates and Angles used as a capital goods are entitled to the benefit of modvat credit under sec.57Q - Held that:- his Court in the case of India Cements Limited [2014 (7) TMI 881 - MADRAS HIGH COURT] applied the principles laid down in the decision of Commissioner of Central Excise Jaipur V. Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA] and held that the steel plates and M.S. Channels used in the fabrication of chimney would fall within the ambit of "capital goods - credit allowed - decided in favor of assessee.
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2014 (10) TMI 800
Waiver of pre deposit - import of software - customised software or embedded with the hardware - Benefit of exemption Notification No. 06/06-CE dated 1.3.2006 - Whether the main parties namely M/s Prithvi Information Systems Ltd. (PISL) and M/s Vuppalamritha Magnetic Components Ltd. (VMCL) had deliberately shown the software which was embedded in the system imported by them and supplied to BSNL as customised software separately imported to avoid payment of duty on the software portion of the imported equipment - held that:- while EMS software and other application software have been specified by name, the embedded software is conspicuous by its absence. The fact that the software was imported through one port and hardware was imported through another port also shows that there is planning and conspiracy on the part of the appellants.
If the appellants have put themselves in a situation wherein they have committed an offence to reduce the duty liability in their anxiety to become lowest bidders, it would not be appropriate for the Tribunal to lend a helping hand to them by waiving the requirement of pre deposit which in our opinion prima facie was liable to be paid at the time of importation. - appellant directed to deposit entire amount of differencial duty as demanded. - stay denied.
Waiver of penalty on other parties and employees - Held that:- it may not be appropriate to require them to deposit the entire amount of penalties imposed on them and in our opinion, the quantum of penalty may also have to be reduced in view of the fact that ultimately, the BSNL has defaulted to both the suppliers and both the suppliers have claimed financial difficulties and further the penalties under Section 114 A have been imposed on the importing parties. - penalty stayed partly.
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2014 (10) TMI 799
Penalty u/s 112 - Restriction on import - radioactive nature of the goods - Held that:- importing firm had abandoned the goods in question in April-August, 1996 by their various acts of not getting the goods cleared for home consumption and not opposing the auction sale by the Port Trust and by returning the documents of title to the supplier through their Bankers. It cannot be said that the customs authorities had no notice of any of these facts for about 9 months from June, 1996 to March, 1997. It is further observed that as the appellant firm had been dealing in the goods not for the first time, it cannot be accepted that they had no knowledge of the radioactive nature of the goods in question. In this view of the matter, I uphold the impugned order except the amount of penalty sustained at ₹ 5 lakhs on the firm and reduce it to ₹ 2,00,000 - Decided partly in favour of Revenue.
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2014 (10) TMI 798
Denial of refund claim - Unjust enrichment - Held that:- Appellants have submitted before Commissioner (Appeals) the balance sheets for the relevant period, wherein the said excess payment of duty was reflected as “advance payment/credit”. The said fact was also confirmed by Shri R.S. Malhotra, General Manager of the appellants. The appellants also took a stand that they debited the account of clearing agent inasmuch as it was his mistake. They further clarified that they have withheld the payment of CHA and the said amount would be given to the CHA only on receipt of the same from Revenue - appellants have placed on record sufficient evidence to reflect that the amount has been mentioned in the balance sheet as recoverable and the payments of the CHA has also been withheld meaning thereby that the excess duty paid by them stands adjusted against the payments of the CHA for the time being. All these facts are sufficient to establish that the excess payment was not passed on to the buyer. Accordingly, I set aside the impugned order with the consequential relief to the appellant - Decided in favour of assessee.
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2014 (10) TMI 797
Penalty on CHA - involvment of CHA or its employee to the fraudulent transaction - Held that:- From the statement, no conclusion can be reached as to their involvement in the fraudulent transactions. All the appellants in their statements have deposed that they undertook/participated in transaction for export of goods in good faith. The CHA has also submitted the identification document such as bank opening account establishing the identity of the exporter. In these circumstances, invoking the provisions of Section 147 and deeming the CHA and his employee as agent of the exporter is clearly unsustainable in law. This Tribunal decision in case of Aspinwall & Co. (2001 (4) TMI 144 - CEGAT, CHENNAI) affirmed by Hon’ble Apex Court also makes the position very clear. Therefore, in the absence of any evidence, linking the CHA firm or its employee to the fraudulent transaction undertaken by the exporter, and consequent imposition of penalty would not arise at all. As retards the role of Shri Manohar S. Anchan, it is evident that his role was limited to introducing the exporter to the CHA. In the statement recorded under Section 108, he has clearly stated that he has not seen the goods and, therefore, he was not aware of the nature of the goods under export. In these circumstances, no mala fide can be attributed to Shri Manohar S. Anchan as to his knowledge of the fraudulent transaction. Therefore, imposition of penalty is not warranted - Decided in favour of CHA.
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2014 (10) TMI 796
Interpretation of section 43B – Interest on service tax outstanding – Held that:- The object of section 43B of the Act is to curb the activities of those taxpayers who do not discharge their statutory liability of payment of tax or duty, for a long period but claim deduction from the income on the ground that the liability to pay this amount incurred by them in the relevant previous year, the interest payable to service tax is also a tax and the provisions of section 43B of the Act are very much applicable thereto – Relying upon Mewar Motors Versus Commissioner of Income-Tax [2002 (9) TMI 51 - RAJASTHAN High Court] - interest payable to the sales tax department is also “tax” and the provisions of section 43B of the Act are applicable as the payment of due service tax is a statutory liability - interest payable on the delayed payment of due service tax cannot be treated as different from the payment of service tax by the assesee – thus, the provisions of section 43B are applicable on non-payment of interest on the delayed payment of due service tax - The authorities have rightly disallowed the amount as interest on service tax outstanding under the provisions of section 43B of the Act – Decided against assessee.
Addition u/s 40(a)(ia) - Amount outstanding as on the close of the year paid and evidence furnished – Held that:- While deciding the issue the CIT(A) has not specifically addressed the contention of the assessee that with the document in support that whatever amount of TDS was due on 31.3.2009 was duly paid before the due date of filing the return u/s 139 (i) of the Act – thus, the matter is to be remitted back to the AO for fresh adjudication – Decided in favour of assessee.
Addition u/s 14A - Applicability of Rule 8D - Expenses on dividend income – Proper application of mind or not – Held that:- Rule 8D of the I.T. Rules 1962 is applicable in the assessment year under consideration – relying upon Maxopp Investment Ltd. VS. CIT [2011 (11) TMI 267 - Delhi High Court] - during the year the assesse had disposed some investments - The company had also taken loans from bank and other to the extent of ₹ 22,65,18,740 - The assessee however could not demonstrate by way of any evidence that none of the loan funds have been used for making investments - the AO has rightly come to the conclusion that the carrying cost of investments in terms of interest paid on loan funds to the extent of investments cannot be denied - Thus by invoking the provisions of section 14A of the Act the expenditure to disallow in the manner provided under Rule 8 D of the I.T. Act 1962 is rightly computed – thus, the order of the CIT(A) is upheld – Decided against assessee.
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2014 (10) TMI 795
Rejection of books of accounts – Counsel of the assessee contended that the books of accounts are not properly examined – Reasons for rejection of books of accounts valid or not - Held that:- The first reason for rejection of books is that the books of accounts are not contemporaneous - there is no denial that the books of accounts are not contemporaneous - the books of accounts have been prepared much after the close of the accounting year - rejecting the books of accounts on this ground is not justified because the books have actually been prepared much after the close of the accounting year - the books cannot be rejected merely because they are unaudited - All that has to be seen is that whether the books of accounts give a true and fair view or not.
If the books of accounts have never been examined how can the revenue authorities say that the books are not complete - The revenue authorities should have specifically pointed out which part of the books is not complete - Without pointing out any specific/direct mistake, a general statement stating that the books are not complete would not do any justice - CIT(A) observed that most of the entries in the books of accounts are in the form of journal entries in the names of related person – it could not be understood as to how can this be a reason for rejecting the books of accounts - When a person is maintaining books of accounts on mercantile system of accounting, obviously, most of the entries would be in the form of journal entries - the books of accounts have been prepared on the basis of the evidences which are seized by the authorities which mean that they are still in the possession of the department/custodian - There is no specific instance pointed out which is not backed by any primary documentary evidence - It is also not clear whether the assessee was ever called for to explain any of the transactions recorded in the books of accounts - In the absence of the verification of primary document vis-à-vis entries in the books, assessee’s accounts cannot be treated as unreliable.
The auditors were appointed on 5.11.2003 about two years after the death of Shri Harshad S. Mehta who expired on 30.12.2001 - The widow Smt. Jyoti Mehta had already informed the custodian and the Special Court that she had no knowledge of the business of her deceased husband therefore will not be able to meet any queries - The auditor’s commented that there was non-cooperation on the part of the assessee for the purpose of audit and that due to lack of verification, the reliabilities of these books could not be verified does not have any force for the simple reason that in a case of such huge magnitude expecting the widow to answer each and every query was not possible - the books of accounts have been rejected on flimsy grounds without thoroughly examining each and every entry and without confronting specific discrepancy, if any, to the assessee – the matter is to be remitted back to the AO for verification and examination of each entry in the books of accounts without getting prejudice by the fact that books of accounts are not contemporaneous – Decided in favour of assessee.
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2014 (10) TMI 794
Depreciation plant and machinery used in trial production - Whether the Tribunal is right in disallowing the assessee's claim for depreciation allowance u/s 32 in respect of plant and machinery used in trial production during the year – Held that:- Following the decision in Assistant Commissioner of Income Tax v. Ashima Syntex Ltd. [2000 (8) TMI 22 - GUJARAT High Court] - plant and machinery was used till the end of the accounting year - Law does not require that there must be optimum production for granting the benefit - Law only requires that there must be use of plant and machinery for the purpose of business - The assessee was entitled to depreciation on the machinery – Decided in favour of assessee.
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2014 (10) TMI 793
Allowability of business loss u/s 28 - Claim for deduction on gold seized by the Custom Authorities allowable business expenditure or not - Whether the loss incidental to business is allowable u/s 28 and the provision of Section 37(1) of the Income Tax Act, 1961 can override the provision of Section 28 or not – Held that:- Dr. TA Quereshi Versus Commissioner of Income-Tax [2006 (12) TMI 91 - SUPREME Court] the loss which was incurred during the course of business even if the same is illegal is required to be compensated and for the loss suffered by the assessee – Decided in favour of assessee.
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2014 (10) TMI 792
Claim of depreciation @ 80% on installation of windmill – Satisfaction of requirement of second proviso to Rule 5(1A) of the Income Tax Rules or not – Held that:- Following the decision in CIT V. Vijaya Hirasa Kalamkar (HUF) [1992 (9) TMI 4 - BOMBAY High Court] - if the assessee exercised the option in terms of second proviso to Rule 5(1A) of the Income Tax Rules at the time of furnishing of return of income, it will suffice and no separate letter or request or intimation with regard to of exercise of option is required - Since the returns are filed in accordance with Section 139(1) of the Income Tax Act and the form prescribed therein make a provision for exercising an option in respect of the claim of depreciation, no separate procedure is required – Decided against revenue.
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2014 (10) TMI 791
Claim of depreciation @ 80% on installation of windmill – Satisfaction of requirement of second proviso to Rule 5(1A) of the Income Tax Rules or not – Held that:- Following the decision in CIT V. Vijaya Hirasa Kalamkar (HUF) [1992 (9) TMI 4 - BOMBAY High Court] - if the assessee exercised the option in terms of second proviso to Rule 5(1A) of the Income Tax Rules at the time of furnishing of return of income, it will suffice and no separate letter or request or intimation with regard to of exercise of option is required - Since the returns are filed in accordance with Section 139(1) of the Income Tax Act and the form prescribed therein make a provision for exercising an option in respect of the claim of depreciation, no separate procedure is required – Decided against revenue.
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2014 (10) TMI 790
Disallowance on interest expenses in interest free advances given to sister concern deleted – Held that:- The Tribunal rightly relied upon B & A Plantations Industries Ltd. vs. CIT [1999 (12) TMI 43 - GAUHATI High Court] for the principle that where no interest was charged on the interest free loans to sister concerns, there is no income to be charged as notional income on accrual basis – also in CIT vs. Surji Vallabhdas & Co. [1962 (3) TMI 6 - SUPREME Court] it has been held that where income has, in fact, been received and is subsequently given up in circumstances that it remains the income of the recipient, even though given up, the tax may be payable - where the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might have been made in the books of account – thus, the order of the Tribunal is upheld – Decided against revenue.
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2014 (10) TMI 789
Allowability of deduction u/s 80HH and 80I – Ship breaking activity amounts to manufacture and production or not – Whether the Tribunal was right in allowing the deduction u/s 80-HH and 80-I holding that ship breaking activity gives rise to manufacturing and production of altogether a new article or thing - Held that:- Following the decision in Vijay Ship Breaking Corporation and Others vs. C.I.T [2008 (10) TMI 6 - SUPREME COURT] - the ship breaking activity resulted in production of articles which emerged when the ship breaking activity stood undertaken - the important test which distinguishes the word "production" from "manufacture" is that the word "production" is wider than the word "manufacture" - the word "production" cannot derive its colour from the word "manufacture” - the word "production" is wider than the word "manufacture" - the word "production" has a wider connotation than the word "manufacture" - the Tribunal was right in allowing the deduction u/s 80HH and 80-I to the assessee holding that the ship breaking activity gave rise to the production of a distinct and different article - ship breaking activity gave rise to the production of a distinct and different article and therefore the deduction u/s 80HH and 80-I is required to be given – thus, the order of the Tribunal is upheld – Decided against Revenue.
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2014 (10) TMI 788
Claim of depreciation on installation of windmill – Satisfaction of requirement of second proviso to Rule 5(1A) of the Income Tax Rules or not – Held that:- Following the decision in CIT V. Vijaya Hirasa Kalamkar (HUF) [1992 (9) TMI 4 - BOMBAY High Court] - if the assessee exercised the option in terms of second proviso to Rule 5(1A) of the Income Tax Rules at the time of furnishing of return of income, it will suffice and no separate letter or request or intimation with regard to of exercise of option is required - Since the returns are filed in accordance with Section 139(1) of the Income Tax Act and the form prescribed therein make a provision for exercising an option in respect of the claim of depreciation, no separate procedure is required – Decided against revenue.
Unexplained cash credit u/s 68 – Held that:- The Tribunal rightly upheld the order of the CIT(A) that the assessee was able to produce documents and the details of repayment made through cheque - assessee had also furnished identity of persons with complete details of addresses and the FD applications showing details – thus, the order of the Tribunal is upheld – Decided against revenue.
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2014 (10) TMI 787
Method of computation of tax - Whether the Tribunal has erred in allowing the calculation of tax in violation of the provisions of the relevant Finance Act which prescribe calculation of tax as inclusive of cess and surcharge – Held that:- The Tribunal rightly upheld the order of the CIT(A) and directed the AO to compute the gross tax liability on the assessee in accordance with the method of computation provided in ITR-6 for the AY 2011-12 - the method of computation, as directed by the CIT(A) was plainly in accordance with the methodology as provided in ITR-6 – thus, the order of the Tribunal is upheld – Decided against revenue.
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2014 (10) TMI 786
Eligibility for benefit u/s 47(v) - Whether the Tribunal is right in holding that capital gain chargeable to tax u/s. 46(2) will also be eligible for grant of benefit envisaged u/s 47(v) - Held that:- Following the decision in Commissioner of Income Tax vs. Brahmi Investments Pvt Ltd. [2006 (2) TMI 129 - GUJARAT High Court] - Once section 46(2) comes into play, there is no question of invoking the provisions of section 45 of the Act, and the deeming fiction under section 47 of the Act operates only in relation to transfers amenable to the provisions of section 45 of the Act. This is abundantly clear from the opening portion of section 47 of the Act – thus, the capital gain tax is not leviable upon the assessee on the receipt.
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2014 (10) TMI 785
Effect of amendment to section 2(47)(v) - Scope of term transfer - Whether the Tribunal is right in its interpretation that the amendment made with effect from 1.4.1988 by the Finance Act, 1987 enlarging the scope of the word “transfer” used in section 2(47)(v) was retrospective in nature and would apply for the A.Y 1977-78 also or not – Held that:- The interpretation of the Tribunal is erroneous – assessee rightly contended that the Tribunal has erred in law in concluding that the amendment made by the Finance Act, 1987 enlarging the scope of the word ‘transfer’ in section 2(47) (v) has to be treated as retrospective in nature and would therefore apply to AY 1977-78 without considering the fact that the amendment is applicable with effect from 01.04.1988 and cannot be applied retrospectively – the order of the Tribunal is to be set aside – Decided in favour of assessee.
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2014 (10) TMI 784
Deduction of amount of depreciation from profits u/s 115JA – Method of calculation of depreciation changed from Straight line method to WDV – Interest to be charged u/s 234B and 234C or not - Held that:- Following the decision in Deputy Commissioner of Income-Tax (Assessment) v. Farmson Pharmaceuticals Guj. Ltd. [2011 (4) TMI 1037 - Gujarat High Court] the Tribunal was right in upholding the order of the CIT(A) directing not to charge interest u/s 234B and 234 of the Act since the total income was determined u/s 115J of the Act – Decided partly in favour of revenue.
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