|
Advanced Search Options
Case Laws
Showing 281 to 300 of 1407 Records
-
2015 (2) TMI 1133
Registration granted to the assessee under Section 12AA - Held that:- The assessee is a public undertaking of the State Government of Karnataka. As held by the Hon'ble High Court (supra), registration granted under Section 12A of the Act can be cancelled only under the following two circumstances;
(i) if the objects of such trust or institution are not genuine; and
(ii) the activities of the trust or institution are not being carried out in accordance with the objects of the trust or institution.
In the impugned order in the case on hand, there is no finding rendered by the ld. DIT (Exemptions) that there was any violation of the aforesaid two conditions by the assessee, and therefore the grounds which empower the ld. DIT (Exemptions) to cancel the registration under Section 12AA(3) of the Act, are absent.
The registration cannot be cancelled in view of the amendment of the first proviso to section 2(15) of the Act, since it is not a ground specified in the statute for cancellation of registration under Section 12AA(3) of the Act. As observed that if the case of an assessee falls within the ambit of the first proviso to section 2(15) of the Act, the benefits which arise from registration under Section 12AA of the Act will not be available to it, and this aspect is to be considered by the Assessing Officer, but this would not be a ground for cancellation of registration. From an appreciation of the facts and circumstances of the case on hand, we find that the facts herein are similar both factually and legally to that of the cited case of DIT(Exemptions) V Karnataka Industrial Area Development Board (2015 (7) TMI 169 - KARNATAKA HIGH COURT ) and therefore respectfully following this decision, we hold that the impugned order of DIT (Exemptions) cancelling the assessee's registration by order under Section 12AA(3) of the Act dt.8.11.2011 is not sustainable and therefore cancel the same. - Decided in favour of assessee
-
2015 (2) TMI 1131
Tariff value - MRP adoption - Held that:- The assessee was selling the goods at a price of ₹ 200/- to ₹ 330/- to their customers and based upon the average quantity in different range; the Commissioner (Appeals) took ₹ 262/- as the average MRP and thereafter computed the tariff value as 60% of ₹ 262/-. In our view, this method of computation is incorrect. When the investigation has indicated that the said goods were being sold with a MRP in the range of ₹ 325/- to ₹ 375/-, which was also confirmed by their buyers, the Commissioner (Appeals) should have taken the average of the same, i.e. ₹ 350/- and arrived at the tariff value as 60% of ₹ 350/- and thereafter the total assessable value and duty liability. We, therefore, set aside this part of the impugned order and remand the matter to the original authority to recompute the value of the goods cleared based upon the MRP of ₹ 350/- per piece.
Return of goods - whether the assessee has not been able to bring on record the corresponding invoices under which the goods were originally cleared and also what happened to the goods after return? - Held that:- Keeping in view the fact that the assessee is a small scale manufacturer and the duty on garments were introduced for the first time in 2001 and was withdrawn in 2002 and the dispute is pertaining to that period and the assessee was not aware of the central excise procedure and also the fact that Revenue has not made any attempt to correlate or tabulate the goods cleared, it is not under dispute that the said goods have come from their buyers whose statements have also been recorded by the Revenue, it will not be appropriate to reject the assessee’s claim. We also note that the assessable value will be required to be recomputed in view of our direction relating to MRP in respect of such goods also and the assessee will be required to extend the benefit with recomputed value.
Duplication of invoices - Held that:- As find that during investigation, the assessee has admitted that they were making kachcha invoices in respect of unaccounted sale of garments or purchase of fabrics and pacca bills in respect of accounted sale of garments or purchase of fabrics and therefore, this argument of the learned counsel does not hold water. However, we find that the Commissioner (Appeals) in his order has extended the benefit in respect of specific kachcha and pacca bills which were both of the same date and having the same quantity and value. There is no evidence brought by the Revenue that the assessee has cleared twice the same goods on the same date or cleared twice the quantity. Under the circumstances, we hold that the assessee would be entitled of reduction in the quantity/value in respect of the invoices mentioned in the impugned order, i.e. quantity of garments cleared will require to be reduced from 88613 to 84050 pieces.
Invocation of extended period and penalty under Section 11AC - Held that:- As we find that during the whole year i.e. 2001-2002, the assessee did not bother to take any registration or pay any excise duty. Thus there was a blatant defiance of law. There was suppression of facts and contravention of various provisions of Central Excise Law with a wilful intention to evade duty. We, therefore, hold that the extended period of limitation under Section 11A as also penalty under Section 11AC are imposable. Argument for non-imposition of penalty on the grounds of being illiterate etc. is also not acceptable.
-
2015 (2) TMI 1130
Levy of service tax on the activity of washing of coal - Tribunal held that washing of coal was a mining activity amenable to service tax with effect from 1.6.2007 after amendment and not earlier. - It is argued that, the Tribunal exceeded its jurisdiction in deciding the appeal on a completely different issue not urged by the parties before it. The Respondent had admitted liability at least from 16.6.2005 after inclusion of the word 'processing', after the word 'production' in the definition of Business Auxiliary Service. The order of the Tribunal therefore calls for interference as naturally the Respondent will now claim refund for the period that it voluntarily paid service tax from 16.6.2005 to 1.6.2007.
Held that:- The issue is not required to be answered, as it has become academic in the facts of the case and is left open for consideration in an appropriate case in view of the specific submission on behalf of the Respondent that the Tribunal has not directed refund of service tax paid from 16.6.2005 till 1.6.2007 and neither will they seek refund for the period having already passed the liability to their customers.
No merit in the appeal - Decided against the revenue.
-
2015 (2) TMI 1129
Interest under Section 244-A on refund resulted out of Self Assessment Tax Paid - date from which such interest is payable - whether the tax paid under Section 140A will not attract Section 244A at all and, therefore, the interest allowed by CIT (A) is clearly illegal? - Held that:- The Scheme of statute makes it very clear that liability of interest as per the situation is on both the sides. Where assessment is completed at an income higher than the returned income, the tax payable by Assessee is specified in the notice of demand issued under Section 156 of Act, 1961. In case of shortfall in payment of tax vis-a-vis the tax finally due on the assessed income, the Assessee is liable to pay interest under Section 234B of Act, 1961. In the same way where amount of tax paid by Assessee is found higher and an amount is found refundable to Assessee, a similar obligation has been fastened upon Revenue. Where the prepaid tax are in excess of assessed tax, Assessee is entitled for refund of excess tax along with the interest.
In the absence of an express provision as contained in Clause (a), it cannot be said that the interest is payable from the 1st of April of the assessment year. Simultaneously, since the said payment is not made pursuant to a notice issued under Section 156 of the Act, Explanation to Clause (b) has no application. In such cases, as the opening words of Clause (b) specifically referred to "as in any other case", the interest is payable from the date of payment of tax. - Decided in favour of Assessee.
-
2015 (2) TMI 1128
Condonation of delay - sufficient cause for the delay - Held that:- the condone delay petitions are filed nowadays as a matter of routine and things are normally taken for granted. But, in this case, the appellant had explained that the issue involved in the appeal related to an ESOP Scheme that was in force before the merger of the company. Hence, the difficulty in fetching the documents, for the non production of which, the Commissioner of Income Tax (Appeals) rejected the appeal, is definitely a sufficient cause. The Tribunal ought to have condoned the delay and the findings are certainly perverse. - Decided in favour of assessee
-
2015 (2) TMI 1127
Long Term Capital Loss - CIT(A) allowed the claim - Held that:- As sale and purchase of share was done through cheques and transfer of shares was properly supported by the transfer deeds and complete formalities were done by the issuing company in respect of allotment of shares and transfer of shares. Nothing adverse was brought by the Assessing Officer except his belief that assessee is not expected to sell shares below the book value Section 48 clearly states that for the purpose of calculation of capital gain of shares, it is only the sum received which can be considered for calculation of capital gain. In view of the above, we are of the considered opinion that the Ld. CIT(A) has rightly considered the loss declared by assessee. In view of the above, we do not see any reason to interfere in the order of Ld. CIT(A) - Decided against revenue
-
2015 (2) TMI 1126
Addition on non refundable deposits - treated as income by the AO - accrual of income - ITAT deleted the addition - Held that:- This Court also notices that the assessee’s contentions with regard to spread over of such amount was accepted in all the earlier years, except the year in question i.e. Assessment Year (AY) 2007-08. Therefore, keeping in view the Supreme Court’s ruling in CIT vs. Excel Industries Ltd. 2013 [2013 (10) TMI 324 - SUPREME COURT] , it is held that the reconsideration of an issue, especially since it pertains to the method of treating a class of receipt, would not be appropriate.
Addition respecting ALP adjustment on account of interest on inter-cooperate deposit - ITAT deleted the addition - Held that:- the interest rates on rupee bonds and debts, which has been extensively referred to in the order of the TPO, have no relevance at all. It is only elementary that interest is nothing but time value of money and when inflation pressure on a currency is lower as is the case with most strong currencies, the time value of money, i.e. interest, tends to be lower too. Therefore, comparing interest rate on rupee loans cannot at all be compared with interest rates on strong currencies like GBP, USD and CAD. All these erudite discussions about Indian bond market and interest rate are thus wholly irrelevant
The ITAT has taken note of the fact that two specific comparables of USD borrowings i.e. L&T and Seri Infrastructure, on the interest rate of Libor had been taken into consideration. There is no material whatsoever, save and except for vague observations about weak financials of the subsidiaries – which are not supported by any specific facts and proceed on sweeping generalizations and assumptions, to reject the comparables taken by the assessee. When a Transfer Pricing Officer rejects comparables taken by the assessee, he has to set out specific, cogent and legally sustainable reasons for doing so. On this point, therefore, the stand of the Assessing Officer cannot be accepted.
Addition of 3% per annum - Held that:- What the TPO overlooks is the fact that such a transaction cost is relevant only to the domestic borrower who borrows in foreign currency from outside India. It has nothing to do with the arm's length interest rate for foreign currency borrowing by an overseas subsidiary. In any event, the interest rate is independent of incidental costs, and since TPO has taken lender as the tested party, the transaction cost to the borrower is wholly irrelevant. This adjustment is, therefore devoid of any legally sustainable basis. Also as the assessee advanced monies to the subsidiaries which were under its management and control, which in fact substantially reduced the risk and in these circumstances there was no rationale of adjusting any amount of higher basis.
-
2015 (2) TMI 1125
Appeal admitted on the following substantial questions of law :
Whether in the facts and circumstances of the case, the Appellate Tribunal was right in sustaining the penalty imposed on the appellant No. 1 under erstwhile Rule 173Q of the Central Excise Rules, 1944?
Whether in the facts and circumstances of the case, the Appellate Tribunal was right in sustaining the penalty imposed on the appellant Nos. 2 to 4 under erstwhile Rule 209A of the Central Excise Rules, 1944?
Whether in the facts and circumstances of the case, the Appellate Tribunal was justified in sustaining the penalties solely based on the findings recorded by the respondents and without recording its own findings?
-
2015 (2) TMI 1124
Transaction of shares - business income or capital gain - CIT(A) deleting the addition made by the AO of net short term capital gain as assessee's business income - Held that:- We find that the FAA has analysed the share transactions at length in light of the CBDT circular and has arrived at the conclusion that the assessee was a investor for most of the share transactions.He found that except for the shares of ADL and SIL the assessee had behaved as an investor.He found that the assessee had not borrowed any money for purchasing the shares,that except for the shares of ADL and SIL he had held the other shares for a very long period,that he was engaged in the business of computers.Not only this unsold shares were valued at cost.Considering these factors we are of the opinion that the assessee could not be taxed under the head business income for the entire share transactions.CBDT circular has recognised the principle that a person can have two portfolios- he can be an investor and a trader at the same time. After in depth analysis of the facts the FAA had rightly held that for the assessee was doing business of purchase and sale of shares of ADL and SIL,that in other cases he was only investor.We do not find any infirmity in his order - Decided against revenue
Addition u/s 68 - CIT(A) deleting the addition - Held that:- We have perused the material on record.We find that the FAA has given categorical finding of facts about filing of confirmation letters of the creditors,copies of their bank accounts, acknowledgments of returns of income filed by them.In our opinion,these documents were sufficient to prove the genuineness of the transactions as well as the creditworthiness of the lenders.In our opinion the assessee had discharged the onus cast upon him,but the AO had not brought any evidence on record to negate the evidences produced by the assessee.In our opinion,the AO was not justified in invoking the provisions of section 68 for the loans taken in earlier assessment years.Considering the facts and circumstances of the case,we are of the opinion that the order of the FAA does not suffer from any legal of factual infirmity - Decided against revenue.
Share transactions incomeof ADL and SIL as business income - Held that:- While deciding the appeal filed by the AO about STCG with regard to shares,we have discussed the facts in length. As stated earlier the FAA had held that the transactions undertaken by the assessee for those two companies could not be taxed under the head STCG. The FAA has given finding of fact that the assessee was buying and selling shares of ADL and SIL in a systematic and organised manner,that he traded in such transaction regularly and repeatedly.It is also clear from the order of the FAA that the assessee was a frequent purchaser and seller of the shares of both the companies.These facts clearly prove that the assessee could not be treated an investor as far as share transactions of these two companies are concerned.Therefore,confirming the well reasoned order of the FAA - Decided against the assessee.
Disallowance u/s 14A - CIT(A) directed the AO to verify the claim of the assessee about common expenses incurred for earning exempt income and a make a proportionate disallowance - Held that:- The assessee had not filed any details before the AO and the FAA had asked the AO to make verification of the expenses and decide the issue of proportionate disallowance. In our opinion,the order of the FAA does not suffer from any legal infirmity.He has directed the AO to verify the claim made by the assessee about not incurring expenditure for earning exempt income and then take a decision.His order is legal and justifiable. So we confirm the same - Decided against assessee
-
2015 (2) TMI 1123
Fulfillment of the conditions of 'Thika Tenant' - whether Appellants come within the meaning of 'Thika Tenant'? - Held that:- We hold that the Appellants fulfill all the conditions of 'Thika Tenant' and come within the meaning of 'Thika Tenant' as defined in Section 2(5) of the Calcutta Thika Tenancy Act, 1949. Further, in view of the Calcutta Thika & other Tenancies and Lands (Acquisition and Regulation) Act, 1981 since 18 January, 1982, the land in question vests in the State along with interests of the landlord therein free from all encumbrances. As the High Court failed to appreciate the relevant provisions and erred in holding that the Appellant is not 'Thika Tenant' within the meaning of Section 2(5), we set aside the impugned judgment passed by the Division Bench of High Court of Calcutta and uphold the order passed by the Tribunal. The appeal is allowed. - Decided in favour of assessee
-
2015 (2) TMI 1122
Disallowance of proportionate interest under section 36(1)(iii) on account of non-business purposes - Held that:- Since in the instant case the own capital and interest free funds are more than the interest free advances given, therefore, following the decision of the Hon’ble Bombay High court in the case of Reliance Utilities and Power Ltd. (2009 (1) TMI 4 - BOMBAY HIGH COURT ) we are of the considered opinion that no disallowance u/s.36(1)(iii) is called for. - Decided in favour of assessee
Enhancement of income - Held that:- CIT(A) has no power to enhance the income of the assessee by introducing a new source of income which had not been considered by the AO. Addition, if any, on that account can be made by taking recourse into provisions of section 147/148 and section 263. We accordingly hold that both factually as well as legally the Ld.CIT(A) is not justified in enhancing the income of the assessee by ₹ 25 lakhs. We accordingly set aside the order of the CIT(A) on this issue and direct the AO to delete the addition. - Decided in favour of assessee.
-
2015 (2) TMI 1121
Revision u/s 263 - basic and crucial documents required for verification of claim u/s 10AA have neither been called for, nor verified and placed on record by the AO including the certificate issued by the Development Commissioner (SEZ) - relevant clause of section 10AA has not been mentioned for claiming deduction - Held that:- Our attention is drawn to audit reports filed along with return of income which contains relevant information about the establishment of SEZ Zone as to allowable claim. Annexure A enclosed thereto contends the date of registration, amount of export and other relevant information. Thus there is no merit in the allegation of the ld. CIT in this behalf. With these documents on record, we are unable to subscribe the view of the ld. CIT. The crucial documents were not asked by the AO not produced by the assessee.
Form No. 56F and Annexure A thereto does not prescribe any mentioning of sub-clause. Besides, the Hon'ble Rajasthan High Court in the case of CIT vs. Rajasthan Fasteners (P) Ltd. (2014 (6) TMI 291 - RAJASTHAN HIGH COURT ) held that non-mentioning of section and wrong mentioning of Section cannot come in the way of allowing claim which is otherwise eligible to the assessee. Since the requisite form does not require mentioning of sub-clause besides the Hon'ble Jurisdictional High Court does not consider it to be a requirement which can disentitle the assessee. Respectfully following Hon’ble jurisdictional High Court judgment we have to overrule this allegation.
Apropos the inflated profits and expenditure, the ld. Counsel for the assessee has contended that separate books of account for SEZ Unit are maintained along with profit and loss account , expenses vouchers etc. The books of account of the assessee have been upheld by the AO, ld. CIT has not considered upholding of the accounts by AO to be an error. This leads to a very vague situation when the books of account of the assessee are upheld and not challenged at the same time allegations are raised about contents thereof. The ld. CIT while passing the order u/s 263 of the Act has not referred to any other mistake. In consideration of the foregoing facts, we are of the view that the order passed by the AO is neither erroneous nor prejudicial to the interest of Revenue. - Decided in favour of assessee
-
2015 (2) TMI 1120
Claim of Interest on delayed refund of duty paid in excess - earlier the amount of refund was credited to the Consumer Welfare Fund - Held that:- assessee importers are entitled to the interest on refund after three months from 7.2.2006 till the date of grant of refund i.e from 7.5.2006 to 1.1.2008. - Decided in favor of assessee.
-
2015 (2) TMI 1119
Writ petition - Rate of VAT on sale of Machinery as capital goods - 4% or 12.5% - TNVAT - concessional rate of tax under Sec.2(11) as a manufacturer/processor of goods - Held that:- The issue raised by the petitioner is a question of fact. It has to be finally decided by the Tribunal and the statute provides for the same. Whatever point that has been addressed by the petitioner before the Original Authority and First Appellate Authority, has been considered by the Authority and a decision has been rendered on the merits of the case. It is therefore for the petitioner to pursue the next form by way of appeal as provided in the statute. We, therefore, find no reason to entertain this Writ Petition under Article 226 of the Constitution of India, more so, there is an effective and alternative remedy. - Petition dismissed as not maintainable - Decided against the assessee.
-
2015 (2) TMI 1118
Transfer pricing adjustment - upward adjustment holding international transactions relating to the issuance of equity shares entered into by the assessee with its Associated Enterprises (AE) were not at Arm's Length - Held that:- Considering the undisputed issue of the capital nature of the transaction in question, we are of the opinion that the adjustments made by the TPO are outside the scope of the TP provisions. We accordingly allow the issue raised by the assessee in its favour
-
2015 (2) TMI 1117
Complaint against the company through the Managing Director - scope of and validity - Held that:- IN the case at hand as the complainant's initial statement would reflect, the allegations are against the company, but the company has not been made arrayed as a party. Therefore, the allegations have to be restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened on certain statutes.
WHEN the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of completeness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the Appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the Respondent against the Appellant.
-
2015 (2) TMI 1116
Assessment u/s 153C by AO without first acquiring a valid jurisdiction - Held that:- We set aside the assessment and the consequential impugned orders on the ground of lack of proper jurisdiction of the AO
We set aside the assessment and the impugned orders for the reason that the AO of the persons searched, namely, Sh. B.K. Dhingra, Smt. Poonam Dhingra & M/s Madhusudan Buildcon Pvt. Ltd. did not record any satisfaction that some money, bullion, jewellery or books of account or other documents found from these persons belonged to the assessee. The absence of such satisfaction, in our considered opinion, did not translate into conferring a valid and lawful jurisdiction to the AO of the assessee to proceed with the matter of assessment u/s 153C of the Act for all the years under consideration. - Decided in favour of assessee.
-
2015 (2) TMI 1115
Addition on undisclosed income - addition on the basis of such seized paper - CIT(A) delted the addition - Held that:- A categorical finding has been given by CIT(A) that statement of Shri Shobhan Raj Mehta was not given to the assessee and beyond the belief of presumption on the information supplied by the ADIT(Inv.)-III, Kanpur, further evidences are not found to corroborate the additions. He has also given a finding that Cross-examination of Shri Shobhan Raj Mehta was not allowed and the assessee firm had strongly denied having any financial and business transactions with Mr. Shobhan Raj Mehta. These findings of CIT(A) could not be controverted by Learned D.R. of the Revenue and moreover, the name of the assessee i.e. Pawan Kumar Agarwal is very common name and merely because this name is mentioned in a seized paper found during the course of search at Bangalore at the premises of Shri Shobhan Raj Mehta, with whom the assessee was not having any direct transaction, it cannot be said that the said Pawan Kumar Agarwal, of whom the name was mentioned in the seized paper is the assessee. Without establishing this aspect that the name mentioned in the seized paper is that of the assessee, no addition can be made in the hands of the present assessee on the basis of such seized paper. Considering these facts, we do not find any reason to interfere in the order of CIT(A). - Decided in favour of assessee.
-
2015 (2) TMI 1114
Marketability of the sugar syrup - Excise duty on Intermediate products - Held that:- The Tribunal in number of cases has considered the assesses stand that such sugar syrup, which comes into existence in the factory, is not marketable and the matter stand remanded to the lower authorities to consider the said submission of the assesses as regards the marketability of the sugar syrup. By adopting the same, we set aside the impugned order and remand the matter to the original adjudicating authority for fresh consideration in the light of the observations made in the case of Pahal Foods (2013 (11) TMI 1601 - CESTAT BANGALORE) as also one made in the case of Homemade Bakers (India) Pvt. Ltd. Vs. CCE, Rohtak [2012 (7) TMI 673 - CESTAT, NEW DELHI]. - Decided in favour of assessee by way of remand.
-
2015 (2) TMI 1113
Revision 263 - Held that:- On the basis of the explanation offered in respect of each and every issue, it was contended on behalf of the assessee before the Ld. CIT that it was not the case of assessments having been completed by the A.O. without making proper and adequate enquiries as required in the facts and circumstances of the case. A perusal of the operative portion of the Ld. CIT’s impugned order however shows that he has neither considered this explanation of the assessee nor made any comment/ observation thereon pointing out specifically that it was still a case of failure on the part of the A.O. to make proper and adequate enquiries before completing the assessments as were required in the facts and circumstances of the case. He has not pointed out specifically even a single enquiry which A.O. ought to have made in the facts and circumstances of the case but has failed to do.
We, therefore, fully agree with the stand of the assessee that the impugned order has been passed by the Ld. CIT under section 263 without considering the explanation offered by the assessee and without applying his mind. In our opinion, this failure of the Ld. CIT, however, does not constitute any legal infirmity to make the order passed by him under section 263 invalid or void abinitio as sought to be made out by the assessee in the ground raised in these appeals. We are of the view that it would be just and proper in the facts and circumstances of the case, to set aside the impugned order of the Ld. CIT passed under section 263 and remit the matter back to him with a direction to pass fresh order under section 263 after duly taking into consideration the explanation offered by the assessee and after applying his mind. - Decided in favour of assessee for statistical purposes.
............
|
9911796707
