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Showing 281 to 300 of 1914 Records
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2016 (12) TMI 1637
Maintainability of appeal - monetary limit - Calculation of tax effect on the tax part excluding surcharge and cess - Held that:- In view of this and keeping in mind the principles laid down by the Hon’ble Delhi High Court in the case of Dalmia Cement (Bharat) ltd. [2013 (7) TMI 662 - DELHI HIGH COURT] we are of the opinion that surcharge and education cess should not be included while calculating the tax effect. Since the tax thereon is ₹ 9 lakhs, which is less than ₹ 10 lakhs, we are of the opinion that there is no merit in the MA filed by the revenue.
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2016 (12) TMI 1636
CENVAT credit - inputs - records maintained by First Stage Dealer - Held that: - the issue has already been decided in the case of The Commissioner of Central Excise Customs & Service Tax Versus M/s. Juhi Alloys Ltd., Anil Kumar Shukla [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT], where it was held that the assessee was a bona fide purchaser of the goods for a price which included the duty element and payment was made by cheque. The assessee had received the inputs which were entered in the statutory records maintained by the assessee - appeal allowed.
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2016 (12) TMI 1634
Penalty u/s 271(1)(C) - disallowance of exemption u/s 54 - Held that:- A.R. Ms. Ridhi Shah shown and filed an order of the ITAT, where ITAT under Appeal titled as ACIT, Circle-10 Vs. Kalpanaben M. Bhatt [2012 (7) TMI 718 - ITAT, DELHI] for the same assessment year. In this case Co-ordinate Bench of ITAT, Ahmedabad has allowed the quantum appeal of the appellant/assessee. Therefore in such circumstances penalty cannot be levied. - Decided against revenue
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2016 (12) TMI 1633
Rectification of order - Interpretation of statute - rent on plant as defined in section 43(3) of the Act - period of financial year 2006-07 was up to 31.03.2006 instead of 31.03.2007 - Held that: - an error has crept in the order of Tribunal, under which it has been held that year under appeal is financial year 2006-07 i.e. up to 31.03.2006, which in fact is up to 31.03.2007 - the amended provisions of section 194I of the Act would get attracted - application allowed.
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2016 (12) TMI 1632
Reopening of assessment - statutory notice u/s 143(2) was not served to the assessee - Held that:- Considering the passive admission of the AO on the issue of the non-issuance of the statutory notice u/s 143(2) of the Act, which provides the basic jurisdiction in matters of scrutiny assessment, this is not a curable defect as argued by the Ld DR for the Revenue. Further, as discussed the said provisions of section 292BB do not provide jurisdiction to the AO from the duty of issue of service of statutory notice u/s 143(2) of the Act. It does not, in any way, insulate the AO from default in issuing notice u/s 143(2) of the Act within the period of limitation contemplated therein. Considering the same, we are of the opinion, all the four appeals of the assessee are required to be allowed on technical grounds.
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2016 (12) TMI 1631
N.P. determination - AO to adopt Net Profit at the rate of 2% of the turnover for determining the taxable income in the case of the appellant as against 0.64% as disclosed by the appellant in her return of income - Held that:- In our considered view, the issue and the assessment year, i.e. AY 2009-10, in question in respect of supply of waste-paper to paper-mills of Vapi are same. Therefore, following the judgment in the case of Prakash F. Singh (2016 (12) TMI 1630 - ITAT AHMEDABAD), the order of the ld. CIT(A) is upheld and the Revenue’s appeal as well as assessee’s appeal is dismissed. Commissioner of Income-tax (Appeals) has not erred in directing the Learned Assessing Officer to adopt Net Profit at the rate of 2% of the turnover for determining the taxable income in the case of the appellant
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2016 (12) TMI 1630
N.P. determination - disallowance made @ 15% of total purchase - Held that:- As perused the material available on record and gone through the orders of the authorities below in our considered opinion, the same issue of supplying of waste-paper to papermills in case of various assessees have been considered by ld. CIT(A). Similar issue has been upheld by ITAT in the case of Tayab Yunus Barudgar [2016 (5) TMI 1288 - ITAT AHMEDABAD] we see no infirmity in the order of ld. CIT(A) deleting the disallowance made @ 15% of total purchase and directed the learned assessing officer to adopt Net Profit at the rate of 2% of the turnover for determining the taxable income in the case of the appellant.
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2016 (12) TMI 1629
Revision u/s 263 - proof of lack of enquiry during the assessment proceedings or no discussion in the assessment order issue - Held that:- As regards to the share application money, we find that AO has examined everything and even the nature of transaction in regard to the issue of share and it is also a fact that this investment was made on the basis of erosion of loss of the company as on 31-03-2011, wherein, paid up capital resulting in an erosion of its capital and amounts have been paid on a going concern basis on the understanding that finance will be available with the company for work-in-capital requirement from its promoters. In view of the above, we are of the view that the observations of PCIT that huge investment made in loss making company by paying a premium of ₹ 20 per share does not make commercial sense and investment ought to have looked into closely is of no consequence because the promoter has brought in the funds by way of preference shares as their holding was 62%. From the terms of preference shares issued it can be seen that the same was redeemable at premium of ₹ 20 per share and the premium was required to be refunded by the company on its redemption.
As regards to the issue of demerger of infrastructure division into Reliance Capital Asset Management Company Ltd., we find that the scheme of an arrangement of demerger approved by Hon’ble High Court of Bombay and Hon’ble High Court of Gujarat, looked into all the aspects before approving the schemes of demerger and now the PCIT cannot raise any question on the judgment of Hon’ble High Courts. We are of the view that when the scheme and orders of Hon’ble High Courts are in public domain and the same are also filed with the Registrar of companies (ROC), the same cannot be questioned by the Revenue and moreover in the revision proceedings u/s 263 of the Act.
For claim of deduction towards loss incurred on forward brokering trade settlement complete details in respect to this loss is filed before the AO during the course of assessment proceedings in lieu of query raised and it is presumed that the AO has applied his mind to the facts of the case and passed an appropriate order. Hence, the assessment order cannot be said to be erroneous so as to prejudicial to the interest of Revenue on this issue.
As regards to the issue of claim of deduction towards return of referral fee we find from the facts of the case that the AO has examined this issue by making a query and the same was replied by the assessee and this aspect has also been considered while framing assessment of RCIBL, wherein, the same AO has framed assessment only on 30-01-2014, which is also the same date when the assessment in the present case was framed. We find that these amounts are not in doubt or the genuineness of the same is doubted neither by the PCIT or the AO during the course of assessment proceedings. Hence, the assessment order cannot be said to be erroneous so as to prejudicial to the interest of the Revenue. Accordingly, the revision order passed by PCIT on this issue is without any basis.
As regards to the issue of claim on long term capital loss on sale of shares we find from the details filed in the assessee’s paper book at page 132-137, which were filed before the AO also during the course of assessment proceedings that the shares of the above companies were sold at cost on which the same were purchased and therefore, there was no profit or loss but the loss has arising only on account of the provisions of the Act requiring the assessee to adopt the indexed cost because these shares are held for long term purposes, i.e. beyond one year. We find that the assessee has recovered the entire investment and there is no impairment in respect to thereof
As regards the next issue on claim of depreciation on cost of improvement of lease hold premises u/s 32(1) we find that the sale of lease hold premises and improvement thereon is stated to be ₹ 2,71,72,549/- is not sale value but it is accumulated depreciation which is removed from the schedule of fixed assets on account of transfer of assets and demergers. We find from the facts of the case that the assessee filed complete details before AO which are available in assessee’s paper book pages 223-227. Once it is a fact that this accumulated depreciation amounting to ₹ 2,71,72,549/- is not sale value, which is removed from fixed assets on account of transfer of assets and demerger of the companies. Even otherwise the complete details were available before the AO during the course of assessment proceedings, which were filed by the assessee on query from the AO. In term of the above factual position, we are of the view that the assessment order framed under 143(3) of the Act is neither erroneous nor prejudicial to the interest of the Revenue.
On lease rent and improvement expenditure the AO enquired the issue by raising a query u/s 142(1) of the Act dated 30-05-2013, wherein vide question No.19 the AO has asked the details of merger expenses including breakup and nature. We find that complete expenses of rent rates and taxes and details of rent premises which are filed before the AO vide letter dated 17-01-2014, wherein, the assessee has debited the sum of ₹ 56,41,858/- as property tax under the head rates and taxes and the details were submitted before the AO. It is a fact that this premise was taken on leave and license basis from Uptown Properties And Leasing Properties Pvt. Ltd. vide agreement dated 12-10-2007 and the same was evicted on 04-06-2009
Section 263 is a section which enables the Commissioner to have a look at the orders or proceedings of the lower authorities and to effect a correction, if so needed, particularly if the order or proceeding is erroneous and prejudicial to the interest of the Revenue. The object of the provision is to raise revenue for the State and Section 263 is an enabling provision conferring jurisdiction on the Commissioner to revise the order of the authorities below in certain circumstances particularly when it is erroneous and prejudicial. The provision is intended to plug leakage to the revenue by erroneous order passed by the lower authorities where the order of assessment by the AO is erroneous and prejudicial to the interest of the Revenue. But in the present case before us the AO has passed the assessment order after examining all the details, replies and documents filed by the assessee. - Decided in favour of assessee.
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2016 (12) TMI 1628
Addition of foreign travel expenses, trade mark expenses and disallowance u/s 40(a)(ia) for sales promotion expenses - Held that:- Respectfully following the decision of Co-ordinate Bench for Asst. Year 2009-10 [2016 (5) TMI 530 - ITAT AHMEDABAD] in assessee’s own case, we find that ground nos.1,3 & 4 raised by the Revenue are liable to be dismissed as they also relate to foreign travel expenses, trade mark expenses and disallowance u/s 40(a)(ia) of the Act for sales promotion expenses. Further Revenue is unable to rebut the contentions of ld. AR and to differentiate the facts of the year under appeal with those for Asst. Year 2009-10. Thus we find no reason to interfere with the order of ld. CIT(A) and dismiss these three grounds.
Disallowance on account of depreciation on non-compete fees - Held that:- We find that both the views i.e. allowing/disallowing exist as regards the issue of claiming of depreciation on non-compete fees. However, in the given facts and circumstances of the case and looking to the consistency of allowability of depreciation on non-compete fees in the case of assessee for Asst. Year 2007-08, 2008-09 and for Asst. Year 2009- 10 decided by the Co-ordinate Bench pronounced in the year 2016, we are of the view that assessee’s claim of depreciation on noncompete fees has rightly been allowed by ld. CIT(A). We therefore, find no reason to interfere with the order of ld. CIT(A) and we uphold the same. This ground of Revenue is dismissed.
Addition on account of prior period expenses - CIT-A deleted the addition - Held that:- There is no dispute to the fact that an amount of ₹ 11,236/- was paid to Central Depository Services Ltd. towards Custodial fees pertaining to the period F.Y.2008-09. However, as submitted by ld. AR that the Custodial fees is legitimate business expenditure and there is no dispute to it being a revenue in nature. We are, therefore, of the view that liability of the assessee of ₹ 11,236/- being Custodial fees crystallized during the F.Y.2009-10 and the same should not be treated as prior period expenditure as there is no postponement of liability. We, therefore, find no reason to interfere with the finding of ld. CIT(A). Accordingly, this ground of Revenue is dismissed.
Depreciation on Goodwill arising on Amalgamation - claimed never in the Return of Income filed by the Assessee - Held that:- respectfully following the judgment of Hon. Apex Court in the case of CIT vs. Smiffs Securities Ltd. (2012 (8) TMI 713 - SUPREME COUR ), and CIT vs. Pruthvi Brokers and Shareholders (2012 (7) TMI 158 - BOMBAY HIGH COURT ) we are of the view that ld. CIT(A) has rightly allowed the justifiable & correct claim of depreciation on ‘goodwill’ made by the assessee through revised computation of income without filing revised return of income during the course of assessment proceedings. Therefore, no interference is called for in the order of ld. CIT(A) on this issue.
Revenue appeal dismissed.
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2016 (12) TMI 1627
Winding up petition - non-payment of an amount of ₹ 34,93,918/-, despite service of notice of winding up on the registered office of the respondent-company - Held that:- Upon the petitioner taking all necessary steps for the service of the respondents herein within one week from today, issue notice to the latter to show cause as to why the present company petition be not admitted and the respondent-company be not wound up, returnable on 8th March, 2017.
In addition, the Managing Director or in his absence, all the Directors of the respondent company shall file their personal affidavits setting down all information and particulars with regard to their shareholding in the company, their involvement in the affairs of the company and the nature of steps taken by them with regard to the management of the company; The Profit & Loss Account and the Balance Sheets of the Respondent Company for the last three years, The list of the bank accounts of the Respondent Company, other relevant details regarding directors, assets held in the name of all the directors, location of the statutory records and books of account of the company, list of immovable assets, land and building etc. of the respondent company, along with full particulars thereof sufficient to accurately identify and locate the said assets, Details of the debtors and creditors of the company with their complete addresses and respondent company as well as its Directors shall disclose their connection with any other entities whether incorporated or not and the extent of their interest therein, with full particulars.
The said affidavits shall be filed within six weeks from today with an advance copy to counsel for the petitioner. In case the said affidavits are not filed for any reason, the concerned Directors, including the Managing Director of the respondent company shall remain personally present in Court on the next date of hearing, in order to enable this Court to examine them, if required, on that date.
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2016 (12) TMI 1626
Enhancement of additional tax under section 143(1A) - depreciation disallowance - Held that:- In the present case, it is an accepted position that the assessee, a State Government undertaking, is running into huge losses from year to year and the partial disallowance of depreciation in one year thus does not result in any tax evasion because it will anyway be allowed in subsequent period, and, in this case, much before any tax benefit is availed form the same. The depreciation disallowance thus is only a timing difference, and, given the continuous losses being incurred by the assessee, it is wholly tax neutral. In any event, there is no material brought on record by the revenue authorities to show that the assessee attempted to evade taxes.
In view of the above discussions, and respectfully following the law laid down in the case of CIT vs. Sati Oil Udyog Limited (2015 (3) TMI 854 - SUPREME COURT) we are of the considered view that enhancement of additional tax under section 143(1A) was not legally sustainable. As we hold so, we make it clear that in the present appeal we are only concerned about the additional tax enhanced in the impugned order, and out observations should be construed in this context only. The additional tax under section 143(1A), to the extent impugned in this appeal, stands deleted.- Decided in favour of assessee.
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2016 (12) TMI 1625
CENVAT creidt - Input services - Rent-a-Cab service - Outdoor Catering service - Held that: - Service Tax paid in relation to Rent-a-Cab Service and out door catering service is covered under the scope of Input Services as defined under Rule 2(l) of the Cenvat Credit Rules 2004 as held by the Honble Gujarat High Court in the aforesaid Essar Oil Ltd. [2015 (12) TMI 1062 - GUJARAT HIGH COURT] - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1624
Nature of land sold - agricultural land or capital asset - capability to agricultural operations - Held that:- CIT(A) has considered the revenue record and noticed that the impugned land has been shown as agricultural land. He has also noticed that there was no material to show that the land was put to non-agricultural purpose. He has noticed that the growing of grass was also an agricultural activity and the revenue records have also shown that the grass has been grown in the impugned land. The Ld CIT(A) has also noticed that the land under consideration has not been found to be barren land, incapable for agricultural operations
CIT(A) has also addressed the concern raised by the AO that the assessee did not declare any agricultural income in the earlier year. The Ld CIT(A) has placed reliance on certain case law to accept the contentions of the assessee that the agricultural activities did not result in any surplus. We also notice that the Ld CIT(A) has noted that the hill development activity would not alter the character of land. In any case, it is the submission of the assessee that the hill development plan has not been executed by the Government so far. The ld CIT(A) has also noticed that the impugned land is located 45 Kms away from the town.
Thus, we notice that the AO has drawn adverse inferences on the basis of his own reading of records and we notice that the Ld CIT(A) has addressed all of them by drawing support from various case law as well as the documents produced by the assessee. Hence we do not find any reason to interfere with the order passed by Ld CIT(A) on this issue. - Decided against revenue
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2016 (12) TMI 1623
Export of prohibited item - “Kerao” - Revenue claimed that the goods are a kind of pulse and is prohibited for import whereas case of respondents are that the subject goods were under category of vegetables - Held that: - The original adjudicating authority dropped the proceedings mainly on the ground that relied upon test report is not that of the true representative of the goods alleged to have been attempted for export - there are no substantial reasonings given by the department to reverse the findings given by the Commissioner (Appeals) in the impugned Order-in-Appeal. When there are no substantial reasons available to contradict the findings of the Commissioner (Appeals), the order passed by the Commissioner (Appeals) is agreed upon - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1622
Clandestine removal - shortage of finished goods and inputs - It was alleged that during the period 12/08/2008 to 30/11/2008, appellant No.1 removed the finished goods clandestinely, involving the amount of duty of ₹ 8,87,384/- under the cover of 48 challans recovered from the premises of the appellant company without payment of duty - Held that: - the appellants have not given any explanation in respect of recovery of 48 challans from their premises. The demand of duty on this issue is justified.
Regarding the shortage of finished goods and inputs, the Ld. Counsel submitted that the shortage is 0.19% of the inputs and 0.39% of the finished goods, which is mere burning loss - the Director of the appellant company admitted the shortage of the stock and no explanation was given.
Penalty - Held that: - the appellant No. 2 admitted in his statements of his knowledge of clandestine removal of the goods - imposition of penalty justified - however, quantum of penalty reduced to ₹ 50,000/-.
Appeal allowed - decided partly in favor of appellant.
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2016 (12) TMI 1621
CENVAT credit - it was alleged that the final product manufactured by the respondent could not amount to manufacture in terms of Section 2 (f) of the CEA, 1944 - Held that: - There is an observation of the Adjudicating Authority on penalty that the respondent did not inform the department about the credit, but there is no malafide intention to evade the payment of Central Excise duty. The Commissioner (Appeals) rightly observed that the finding of the Adjudicating Authority is contradictory and therefore, such adjudication order has no effect in the eye of law - matter is remanded to the Adjudicating Authority to decide afresh - appeal allowed by way of remand.
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2016 (12) TMI 1620
Penalty u/s 112 (b) of the CA, 1962 - smuggling of goods - case of appellant is that there is nothing on records to suggest that they had any knowledge of the vehicles being used in smuggling of goods - Held that: - the drivers, Khalasi and lineman having had complete knowledge of carrying the contraband goods, did not come forward with any material in support of their contention. Shri Bijoy Ghosh had also not refuted the statement of the three co-noticees - the innocence of the appellants cannot be accepted, without any cogent reason - the said vehicles were used for carrying the contraband goods and the confiscation of the vehicles and redemption fine is justified.
Penalty - Held that: - Owners of the vehicles have not come forward with their bonafide. So, imposition of penalty is warranted - the quantum of penalty should be reduced taking into account the employment and livelihood.
Appeal allowed - decided partly in favor of appellant.
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2016 (12) TMI 1619
Levy of service tax - accreditation fee - revenue relied upon the case of Punjab Technical University vs. Commissioner of Central Excise and Service Tax, Ludhiana [2016 (1) TMI 162 - CESTAT NEW DELHI] - Held that: - the Punjab Technical University case has come after 2013, when the distance education was brought under regulation of the University Grants Commission. But during the period under consideration, the distance education was regulated by the Distance Education Council (DEC), IGNOU, Delhi which is an independent and distinguishable legal entity. The entire fee structure was brought to the net of service tax in the above case law (PTU) but it is not the Revenue’s case in the present case - When it is so then there is no justification to bring the “accreditation fee” to the service tax net - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1618
CENVAT credit - duty paid returned goods - it has been alleged in the SCN that the appellant failed to submit any documentary evidence of receipt and use of the returned goods in their factory and clearance of the resultant goods there from - Held that: - there is no requirement of maintenance of separate records for availing credit of the duty paid on the returned goods - Both the authorities below had not examined the documents placed by the appellant - remanded to the Adjudicating Authority to decide afresh after considering the documents and case laws - appeal allowed by way of remand.
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2016 (12) TMI 1617
CENVAT credit - reversal of entire amount of proportionate credit against duty free removal of finished goods - Held that: - there is no clarity in the facts of the case as mentioned in the Adjudication Order and the evidences placed by the appellant - the matter should be remanded to the Adjudicating Authority to decide after considering the submissions of the assessee - appeal allowed by way of remand.
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