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Showing 281 to 300 of 1887 Records
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2017 (12) TMI 1611
Disallowance of interest expenses as attributable to earning of dividend income - Held that:- We find that the assessee has earned dividend income of ₹ 7,338/- from investment activities carried out by him which is claimed as exempt from Income Tax Act. AO has disallowed the interest expenditure to the tune of ₹ 3,05,731/- against the aforesaid expenditure. We find merit in the limited plea of the assessee that the expenditure should be restricted to the extent of dividend income.
A decision of the Hon’ble Delhi High Court in the case of CIT vs. Taikisha Engineering (I) Ltd. [2014 (12) TMI 482 - DELHI HIGH COURT] where in similar facts observed that the disallowance of expenditure should not ordinarily exceed dividend income. In the light of forgoing discussion, we direct the AO to restrict the disallowance of interest expenditure to the extent of dividend income actually earned. - Decided partly in favour of assessee
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2017 (12) TMI 1610
Manufacture - Whether the red mud arising during the manufacture of aluminium from bauxite ore amounts to manufacture and whether excise duty is leviable on the same? - Held that:- The issue is no longer res integra, inasmuch as this Tribunal in the appellant’s own case MADRAS ALUMINIUM CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM [2005 (4) TMI 233 - CESTAT, CHENNAI] has decided in favor of the appellants - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1609
Business Auxiliary Service - Commission paid to a foreign agents service procured by the appellants - Held that:- Tribunal in one of the same appellants case being M/s. J.P.P. Mills Pvt. Ltd. Vs. CCe, Salem [2017 (10) TMI 750 - CESTAT CHENNAI], where it was held that in as much as the services in question were related to textile processing, as the appellants had exported yarn, they would be entitled to the benefit of Notification No. 14/2004-ST dated 10.09.2004 - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1608
Disallowance of expenses claimed towards repairs and maintenance - CIT(Appeals) set aside the additions holding that the expenditure fell entirely in the Revenue stream even by upholding part of the expenditure in respect of the Assessment Year 2006-2007 - ITAT set aside even the amounts that were brought to tax by the CIT (A) - Held that:- This Court is of the opinion that the ITAT’s finding on this aspect cannot be faulted.
The Supreme Court in Alembic Chemical Works Company Limited, CIT [1989 (3) TMI 5 - SUPREME COURT] enunciates the principles that having regard to the very similitude of the business and commercial activities, it is difficult to characterize a pigeon hole expenditure as either capital or Revenue merely on the basis of the broad description. This Court is of the opinion that the ITAT conducted a proper analysis of the case law including the facts in the case and arrived at the correct conclusion that the expenditure is essentially within and not capital in nature.
As far as the question of law on the other two heads is sought, the Court noticed that it is entirely based on the factual analysis. The findings of the Lower Appellate Authorities are consistent and do not call for interference.
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2017 (12) TMI 1607
Enhancement of income - Disallowance of expenditure relating to the levy of penalty by the Custom Authorities - Held that:- Impugned disallowance could not have been made for the assessment year under consideration and, hence, we do not find any justification on the part of the CIT(A) in enhancing the income of the assessee on this account. This ground of appeal is allowed and the enhancement of ₹ 1 lac made by the Ld. CIT(A) into the income of the assessee is hereby set aside.
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2017 (12) TMI 1606
Refund of SAD - rejection on the ground that there is no endorsement in the invoices to the effect that no credit has been availed in respect of the imported goods as required under para 2(b) of the N/N. 102/2007-Cus. dated 14.09.2007 - Held that:- The issue is decided in the case of NARASINGH DASS & CO. (P) LTD. VERSUS COMMR. OF CUS., TRICHY & CHENNAI [2017 (4) TMI 315 - CESTAT CHENNAI], wherein reliance placed in Larger Bench of the Tribunal in the case of Chowgule & Company Pvt. Ltd. v. Commissioner of Customs [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] which has held that such an endorsement may not be necessary since the invoice do not carry the duty element - refund allowed.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1605
Reconvening of meeting of Secured Creditors of the Applicant Company No. 1 - Held that:- As seen from the averments made in the Application as also the report of the independent Chairperson appointed to chair the meeting, that the Applicants had complied with the directions of this Tribunal in calling the meeting as well as in relation to the convening of the said meeting of Secured Creditors by Applicant Company No. l on the date fixed by this Tribunal.
In view of the absence of any Secured Creditors, the meeting was not able to be held. It is also evident from the report of the Chairperson dated 24.11.2017 as well as averred in the Application that Small Industrial Development Bank of India being one of the Secured Creditors in relation to Applicant Company No. 1 had sent its representative, however, subsequent to the time prescribed for holding the meeting. It is also further stated that the representative of SIDBI did not have proper authorization to attend the meeting. Thus, it is seen that the holding of meeting has not occasioned due to the fault of the Applicants in complying with the directions of this Tribunal on 6.10.2017 but on the other hand due to reasons beyond its control.
Reference to the provisions of Companies Act, 2013 read with Companies (Arrangement and Amalgamation) Rules, 2016 more particularly Rule 24 of the Rules as well as taking into consideration the inherent powers as vested with this Tribunal by virtue of Rule 11 of NCLT Rules, 2016 and as no prejudice will be caused to any party if the meeting is directed to be reconvened, as it will only enable the secured creditors to express their assent or dissent to the proposed Scheme, this Tribunal orders for a reconvening of the meeting of the Secured Creditors of Applicant Company No. 1
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2017 (12) TMI 1604
Maintainability of appeal - Tax effect - monetary limit - Miscellaneous petition was filed by the Revenue before the Tribunal on the ground that Circular No.21/2015 of the Central Board of Direct Taxes is not applicable to the appeal filed by the Revenue - Held that:- Tribunal verified the original files and on perusal of the the approval granted by the Principal Commissioner of Income Tax under Rule 15 of the Appellate Tribunal Rules, 1963, the Tribunal found that the appeal was filed in the regular course and not on the basis of the audit objections.
Tribunal ultimately concluded that paragraph 8 of Circular No.21/2015 issued by the Central Board of Direct Taxes is not applicable and accordingly, the said miscellaneous petition filed by the Revenue was rejected. The Tribunal, after having considered the factual position and verified the original files, has taken a decision in the matter and we find no substantial question of law arises for consideration in this appeal, as the entire finding is factual.
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2017 (12) TMI 1603
CENVAT credit - capital goods - duty paying invoices - wrong mention of details - the invoices for the capital goods mentioned BSNL, Puducherry Office, whereas the said capital goods have been despatched and utilized in various exchanges and installations of BSNL, various places at Pondicherry - Held that:- Similar disputes came before the Tribunal in the appellant s own case M/S BHARAT SANCHAR NIGAM LIMITED VERSUS CCE, JAIPUR [2017 (5) TMI 896 - CESTAT NEW DELHI], where it was held that In the absence of any allegation of diversion of capital goods for other than intended purpose or their clearance to third party, the Revenue is not justified in denying credit on such capital goods which are admittedly installed and utilized for providing taxable output service - Credit allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1602
Addition u/s 14A - Held that:- As per the balance sheet on record, we found that assessee was having its own share capital and reserves of ₹ 10004.10/- lakhs as against the investment of ₹ 8094.70 lakhs. Since own capital and reserve was more than the investment, in terms of decision of the Bombay High Court in case of HDFC Bank [2014 (8) TMI 119 - BOMBAY HIGH COURT], no disallowance on account of interest is warranted. We direct the AO to delete the disallowance on account of interest made u/s.14A.
With regard to the other disallowance made under Rule 8D(2)(iii), we found that assessee himself has offered disallowance of ₹ 38,000/-. We also found that most of the investments of the assessee are in group concerns which are required to be excluded from average investment while computing disallowance under Rule 8D. We direct the AO to recompute the disallowance under Rule 8D(2)(iii) after excluding the investment made in group concerns. We direct accordingly.
Premium paid on medical insurance policy of Managing Director - Held that:- In the instant case the policy has been taken for the Managing Director of the Company who is a key personnel of the Company. However the terms of employment of Managing Director was not brought on record to substantiate the contention that premium so paid was for the benefit of company. Unless it is shown that premium so paid was for the benefit of company and not the personal benefit of Managing Director, the ratio laid down by Bombay High Court in the case of V.N. Export (2010 (3) TMI 186 - BOMBAY HIGH COURT) cannot be applied. We therefore, restore the matter back to AO for deciding afresh in terms of above observation.
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2017 (12) TMI 1601
Demand of Interest - Transfer of right to use goods - contract for transportation of foodgrains excuted for and on behalf of the FCI - whether the Food Corporation of India (FCI) is liable to pay interest on the amount deducted by it from the bills of the petitioners which they failed to deposit with the State-respondents during the period stipulated by sub-rule (3) of Rule 7 of the Tripura Value Added Tax Rules, 2005?
Held that:- A combined reading of sub-rules (2) and (3) of Rule 7 of the Rules so extracted plainly shows that the person responsible for making payment (FCI in this case) to any person (the petitioner in this case) is required to deduct from the bills of the petitioner any sum payable for the transfer of the right to use any goods other than goods in the exempted list of the Tripura Value Added Tax Act, 2004 and that the amount so deducted shall be deposited into the Government Treasury by the person making such deduction within 7 days of the month following that in which the deduction is made. Sub-rule (11) mandates that if such person fails to make the deduction or, after making the deduction fails to deposit the amount so deducted, he shall be liable to pay simple interest at the rates contained in Section 44 (it should be read as "Section 45") of the Act on the amount so deducted.
The FCI never complied with sub-rule (3) of Rule 7 of the Rules requiring them to deposit all the deducted amounts into the Government Treasury by Challans in Form XVIII within 7 days of the month following the date on which the deductions were so made from the bills of the petitioners in both the cases. The belated deposits made by them cannot now save them from paying the statutory interest to the petitioners. The FCI has entered into the shoes of the State-respondents for any liability to pay statutory interest to the petitioners with respect to the deducted amount not deposited by them to the State-respondents within the statutory period - On account of such omissions, deliberate or otherwise, the provision of sub-rule (11) of Rule 7 of the Rules shall enure to the benefit of the petitioners in both the cases. The petitioners in both the cases are, therefore, entitled to the statutory interest.
Petition allowed - decided in favor of petitioner.
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2017 (12) TMI 1600
Unjust enrichment - refund amount credited to consumer welfare fund instead of refunding the same to the respondent on the ground that it has not passed the test of unjust enrichment as envisaged under Section 12B of the Central Excise Act, 1944 - Held that:- The matter is remanded to the Tribunal for considering whether the respondent has passed on the burden of duty to the buyer, which term is not restricted to the first buyer alone but also extends to the ultimate customer - appeal allowed by way of remand.
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2017 (12) TMI 1599
Import of Contraband goods - prosecution case is that on 7-2-2017, the petitioner illicitly imported huge quantity of 180 Kgs. of “khat leaves” of African origin to India - petitioner seeks orders on the ground that the “khat leaf” does not come under the definition of Psychotropic Substance or Narcotic Drug under the NDPS Act - whether the substance seized from his possession is Psychotropic Substance or not?
Held that:- Admittedly, it is a quantity of 180 Kgs. of khat leaves. The substance was subjected to analysis at the laboratory. On analysis, it was found containing “cathinone” and “cathine”. These two are Psychotropic Substances included in the Schedule to the NDPS Act. Cathinone is listed as item No. 125 in the Schedule, and cathine is listed as item No. 171 in the Schedule. Of course, khat leaves, by that name is not seen listed in the Schedule to the NDPS Act.
The question for consideration is not how the substance is called, or what is its scientific name or botanical name, but what does it contain. The substance allegedly seized from the hands of the accused was found containing two prohibited Psychotropic Substances listed in the Schedule to the NDPS Act - The Court cannot take things technically and mechanically quash the prosecution saying that the substance by name “khat leaves” is not included or listed in the Schedule to the NDPS Act.
Petition dismissed.
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2017 (12) TMI 1598
Violation of the provisions of the Companies Act, 2013 - Offer and allotment of share - Respondents had increased their personal shareholding on 30-09-2015 and 26-11-2016 in a manner prejudicial to the interest of the petitioner and the 1st Respondent Company - Removal of directors - Held that:- As not given effect to till date due the case is pending before this Tribunal and then before Hon'ble NCLAT. Again a notice dated 10th April, 2017 was issued proposing to conduct a meeting of Board of Directors of the Company to be held on 22nd April, 2017 at 10.00. The petitioner, while accepting the receipt of said notice on 13.4.17, has addressed a letter dated 15th April, 17 by interalia requesting to defer it to a later date since the matter is sub-judice. It is stated by the Company that proceedings for removal of petitioner are kept pending since the matter is sub-judice. Since the Hon'ble NCLAT, vide its order dated 6.11.17 has interalia directed as not to give effect to resolution on the issue till the disposal of case, now the Company is free to take appropriate decision in accordance with law duly following principles of natural justice.
It is also relevant to point out here that the petitioner being whole time Director, and in receipt of remuneration from the Company along with other directors, cannot plead ignorance of affairs of the Company. The petitioner is yet to be removed from the position of Director. As per section 166 of Companies Act, 2013, a Director of a Company, subject to provisions of the Act, shall act in accordance with articles of the Company and shall act in good faith in order to promote the objects of Company for the benefit of its members as a whole and in the best interest of Company, its employees, shareholders, shall exercise her duties with due and reasonable care, skill and diligence etc. The conduct of petitioner being promoter Director, Whole Time Director taking huge remuneration as stated supra, not only failed in her statutory duties as assigned to her but also resorting to all sorts of baseless allegations against the Company and filing cases before the Tribunal - petitioner has failed to make out any case so as to interfere in the matter by the Tribunal, and thus it is liable to be dismissed
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2017 (12) TMI 1597
Whether in the facts and circumstances of the case, the Tribunal was justified in dismissing the appeal on the ground that it was filed before the Commissioner (Appeals) beyond period of limitation as per provisions of the Act, namely under Section 35 of the Central Excise Act, 1944?
Held that:- The appellant discharged his burden of submitting appeals before the competent forum by placing on record necessary documents in support of his claim - The delay on the part of the office of the Assistant Commissioner of Central Exercise to forward the appeal paper book to the office of Commissioner of Central Excise (Appeals) cannot be attributed to the assessee so as to dismiss the appeal filed by the assessee as time-barred.
The matter is restored to Office of Commissioner (Appeals) of Central Excise & Customs, Aurangabad for decision afresh on merit - Appeal allowed.
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2017 (12) TMI 1596
Stay petition - claim of the petitioner for deduction made under Section 80P(2)(a)(i) - Held that:- It appears prima facie to this Court, in the light of the provision contained in Section 80 P (2) (d) of the Act that the interest income of the petitioner is not liable to tax. In the said view of the matter, according to me, the petitioner is entitled to an absolute stay in the matter.
Writ petition is allowed. The impugned order is modified granting the petitioner absolute stay for realisation of the amount covered
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2017 (12) TMI 1595
Treatment to rental income - 'business income' OR 'income from house property' - principal object of the assessee company is not letting out of properties - Held that:- When this matter came up for hearing on 08.12.2017, we posed a question to the learned Senior Standing Counsel for the Revenue as to whether the Department accepted the earlier decision of the Tribunal in the assessee's own case for the assessment year 2008-09. The learned Senior Standing Counsel sought for an adjournment to verify the facts. Today, when the case is taken up for hearing, it is reported that the Department accepted the earlier order of the Tribunal in the assessee's own case for the assessment year 2008-09 and that no appeal has been filed against that order. Thus, we find that the substantial questions of law have to be answered in favour of the assessee and against the Revenue.
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2017 (12) TMI 1594
Validity of reopening of assessment - software development income was not offered by the assessee on accrual basis, and there was reason to believe that income had escaped assessment - information derived from the tax audit report - Held that:- By reason of section 147 if the Income-tax Officer exercises his jurisdiction for initiating a proceeding for reassessment only upon a mere change of opinion, the same may be held to be unconstitutional. Section 147 of the Act does not postulate conferment of power upon the Assessing Officer to initiate reassessment proceeding upon his mere change of opinion.
If “reason to believe” of the Assessing Officer is founded on an information which might have been received by the Assessing Officer after the completion of assessment, it may be a sound foundation for exercising the power under section 147 read with section 148 of the Act.
We are unable to agree with the submission of Mr. Jolly to the effect that the impugned order of reassessment cannot be faulted as the same was based on information derived from the tax audit report. The tax audit report had already been submitted by the assessee. It is one thing to say that the Assessing Officer had received information from an audit report which was not before the Income-tax Officer, but it is another thing to say that such information can be derived by the material which had been supplied by the assessee himself.
We also cannot accept the submission of Mr. Jolly to the effect that only because in the assessment order, detailed reasons have not been recorded an analysis of the materials on the record by itself may justify the Assessing Officer to initiate a proceeding under section 147 of the Act. The said submission is fallacious. An order of assessment can be passed either in terms of sub-section (1) of section 143 or sub-section (3) of section 143. When a regular order of assessment is passed in terms of the said sub-section (3) of section 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of clause (e) of section 114 of the Indian Evidence Act judicial and official acts have been regularly performed. If it be held that an order which has been passed purportedly without application of mind would itself confer jurisdiction upon the Assessing Officer to reopen the proceeding with out anything further, the same would amount to giving a premium to an authority exercising quasi-judicial function to take benefit of its own wrong.
There was no fresh material available with the ld. Assessing Officer for harboring even a doubt that any income had escaped assessment. The reopening in our opinion was purely based on a change of opinion. It failed to satisfy the test laid down in Sec.147 of the Act. We hold the reopening to be bad in law. - Decided in favour of assessee
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2017 (12) TMI 1593
During the pendency of the writ petition, final orders are passed - time sought to prefer appeal against the final orders passed - Held that:- If the petitioner makes any appeal and stay application, within two weeks from the date of receipt of a copy of this judgment, the stay application shall be considered by the appellate authority, in accordance with law, within a period of four weeks thereafter - petition disposed off.
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2017 (12) TMI 1592
Disallowance u/s 14A - AO applied the formula indicated in Rule 8D (ii) & (iii) of the Income Tax Rules - CIT (A) granted partial relief after analysing the decision but upholding the rejection of the disallowance by the AO offered by the assessee. The ITAT in the impugned judgment granted complete relief to the assessee - Held that:- entire exempt income in the present case was purely incidental, consequent of the deployment of surplus funds for a part of the period. The findings of the CIT (A) clearly point to the fact that the assessee had utilised the entire borrowed funds for the purpose of setting up of its plan and undertaking the industrial activity. In these circumstances, the disallowance offered - of the entire exempt income - could not have been reasonably rejected. - Decided against the revenue.
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