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Showing 281 to 300 of 1558 Records
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2017 (2) TMI 1281
Treatment of alimony received by the assessee from her ex-husband - whether taxable under the head “Income from other sources” or non taxable capital receipt - Held that:- In the proviso to section 56(2)(vi) any sum received from a relative is exempt from tax. In the definition of relative, the receipt from whom is exempt under the Act, inter alia not only the spouse but the brother and sister of the spouse have also been included. As we have observed above that the maintenance or alimony is paid by the husband to his wife in recognition of her pre-existing right, whether marriage relationship is still continuing or has been dissolved, does not bar the payment of alimony by the ex-husband to the divorced wife.
Under such type of circumstances, in our view, in the definition of spouse, exspouse is also included except where there is an evidence that the payment is not made as a gift or an alimony but for some other consideration or by virtue of some other transaction. In the absence of any such evidence, the payment of alimony amount by the ex-husband to his wife is nothing more than a gift and is exempt under the proviso to section 56(2)(vi) of the Act. We accordingly do not find any justification on the part of Income Tax Authorities to tax the said amount received by the assessee from her ex-husband as alimony and the additions made in this respect are accordingly ordered to be deleted. - Decided in favour of assessee.
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2017 (2) TMI 1280
Natural justice - CENVAT credit - input - Whether Tribunal was justified in deciding appeal ex parte and also dismissing recall application? - Held that: - it would be appropriate if Tribunal is directed to decide appeal afresh after hearing counsel for appellant - In view thereof but subject to payment of cost of ₹ 25,000/- within one month, we allow this appeal, set aside orders dated 28.07.2011 and 12.11.2013 passed by Tribunal impugned in this appeal and answer the aforesaid question in favour of Assessee - decided in favor of appellant.
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2017 (2) TMI 1279
CENVAT credit - molasses used in manufacture of Rectified Spirit - Held that: - the method of proportionate reversal adopted by the appellants, cannot be faulted with and FIFO method cannot be followed as per the wish of the Revenue. Further, rectified spirit, though not excisable, Rule 6(2) is not applicable - demand set aside.
Diversion of clearance of inputs as such - Molasses were transferred to another company without the permission of the Department - Held that: - Rule 8 of CCR provides that the Deputy Commissioner and Assistant Commissioner having jurisdiction over the factory of the manufacture of the final products may, in exceptional circumstances, having regard to the nature of the goods and shortage of storage space at the premises of such manufacture, by an order, permit such manufacturer to store the input in respect of which Cenvat Credit has been taken, outside such factory, subject to such limitations and conditions as he may specify, provided that where such input is not used in the manner specified in these Rules for any reason whatsoever, the manufacturer of the final products shall pay an amount equal to the credit availed in respect of such input - Admittedly in the facts and circumstances, there is no case made out by Revenue that the appellant have not manufactured finished products from such inputs which were stored outside. Further, it is an admitted fact that the inputs stored outside were subsequently received back in the factory for which proper records are maintained as recorded in the Panchnama.
Appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1278
Arbitration and Conciliation - foreign award unenforceable on account of non stamping - Held that:- The contentions raised by the respondent that the foreign award is unenforceable on account of non stamping, stands rejected.
Violation of the principles of natural justice - legality of foreign award - Held that:- On a perusal of the impugned award, factually it appears otherwise and the Arbitral Tribunal considered this objection and rendered its finding from paragraph 179 onwards and ultimately held that APL and CIAL are not parties to the arbitration agreement in Clause 17 of the arbitration agreement. This arbitration had commenced under the agreement and the agreement alone and accordingly, the Arbitral Tribunal held that it has no jurisdiction in respect of the claims against APL and CIAL.
Admittedly, the award has become final and the respondent has not challenged the same. Any endeavour of this Court to go into the factual aspects would amount to sitting in judgment over the award passed by the Arbitral Tribunal. This has been frowned upon by the Courts in several decisions, some of which have been referred to above.
The contention stating that there was no opportunity to cross examine and other related matters are all touching upon the merits of the award and in this petition under Section 47 of the Act, seeking enforcement of the award, all that is required to be seen is as to whether the award is (a) contrary to the fundamental policy of India. The respondent has not been able to substantiate such a plea while resisting the petition under Section 47 of the Act; (b) contrary to the interests of India. No arguments were advanced on this aspect; (c) contrary to justice or morality. The plea of violation of the principles of natural justice, the lack of opportunity, etc., are sought to be read into this aspect by stating that the fundamental policy of India as well as the public policy of India having not been defined, one of the pre-requisites is to have a judicial approach. When such judicial approach is lacking in a quasi judicial decision, the same can be interfered with.
This Court would, once again, point out that the present proceeding is not a proceeding to set aside the award under Section 34 of the Act. The respondent cannot seek to import the principles of challenge to an award under Section 34 of the Act, into these proceedings where a foreign award is sought to be implemented.
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2017 (2) TMI 1277
Modification of the order passed in the writ petition - Held that: - the appeal filed by the assessee challenging the order in original is pending before the CESTAT. The learned counsel for the Department contends that there was some lack of communication with regard to missing of files pertaining to the adjudication with regard to the consignments - The appeal filed by the assessee before the CESTAT shall be disposed of within a period of four weeks from the date of receipt of a copy of this order.
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2017 (2) TMI 1276
Assessment u/s 153A - merely quoting a wrong section will not render assessment order void ab initio and that such mention of a wrong section is a defect curable u/s 292B - Held that:- A bare reading of Section 153A shows that search having been conducted on 10.11.2005, financial year is 2005-06 and A.Y. 2006-07. As per Section 153A (1) (b), assessment or re-assessment could have been done in respect to six Assessment Years immediately preceding the assessment year relevant to the preceding year in which such search is conducted or requisition is made. It brings in period from Assessment Years 2000-01 to 2005-06. Earlier, special procedure for assessment of such cases was given in Chapter XIV-B. It is deleted by virtue of Section 158 (BI) inserted by Finance Act, 2003, w.e.f. 01.06.2003. The provisions of Chapter XIV-B have been made inapplicable where search is initiated under Section 132 or books of account, document or any assets are requisitioned under Section 132A after 31.05.2003. Therein concept of ''block assessment'' as defined in Section 158B, included the period up to the date of commencement of search or date of requisition in the previous year, the said search was conducted or requisitioned or made, but this is missing in Section 153A. Thus assessment under Section 153A for A.Y. 2006-07 is not sustainable.
Question no.1 is therefore answered by holding that mere mention of a wrong provision will not deny jurisdiction to the authority, if it otherwise has, but this aspect has no application to the present case. Question no.2 is answered against appellant.
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2017 (2) TMI 1275
Refund claim - finalisation of price - rejection of refund on the ground of time bar and unjust enrichment - Held that: - the appellant is engaged in the manufacture of fertilizer which is exempted from the duty. The appellant paid the service tax to the GAIL who authorised the appellant to receive the refund. Hence, no element of unjust enrichment.
Time limitation - Held that: - the identical issue has came up before the Tribunal in the case of Chambal Fertilizers and Chemical Ltd. vs. CCE, Indore [2017 (1) TMI 549 - CESTAT NEW DELHI], where it was held that The applicability of Section 11B ibid for claiming refund of Central Excise duty/Service Tax is not restricted only to manufacturer/service provider. The said statutory provision mandate that any person can claim refund, subject to the conditions that the tax/duty was collected from or paid by him; and the incidence of such tax/duty had not been passed on by him to any other person - matter remanded to the adjudicating authority for denovo adjudication in the light of the above observations but by providing a reasonable opportunity to the assessee to present their case with liberty to file additional evidence, if necessary, as per law.
Appeal allowed by way of remand.
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2017 (2) TMI 1274
Valuation - includibility - diesel which was supplied free of cost to the respondent/assessee - Held that: - the value of free supplies by the service receiver to the service provider is not includible in the ‘gross amount charged’ by the service provider from the service receiver - demand set aside - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1273
Relevant assessment years for the purpose of Section 10A (4) and/or Section 10A (6) - Held that:- We are of the opinion that this matter requires reconsideration because one thing is clear on fact that the assessee had not claimed any benefit or any deduction in respect of the years 1993-94, 1994- 95, 1995-96. It is also clear that no exemption was granted to the assessee.
Although, the respondent has sought to argue that a specific bar was created by the 2001 amendment by which the right of the assessee to seek anything beyond 1st April, 2001 was not there and his rights stood extinguished or exhausted by way of deemed in fiction, we are unable to agree with that because the amendment, which came thereafter, allowed ten years relief. The intent of the legislature while making these amendments was certainly not to curtail relief to an assessee, who had not availed double benefit. Thus the matter requires reconsideration by the Tribunal it may clarify the facts of the case fully and give to both parties an opportunity of hearing and pass fresh orders in accordance with law
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2017 (2) TMI 1272
Levy of penalty u/s. 271(1)(c) - defective notice - Held that:- In the present case we find that at the time of initiating penalty proceedings the Assessing Officer while recording satisfaction has observed that, “the assessee has concealed the income and has also furnished inaccurate particulars of income within the meaning of section 271(1)(c) of the Act.”. While issuing notice the Assessing Officer has not struck off irrelevant part in the show cause notice issued u/s. 274.
From the perusal of notice that the Assessing Officer is not clear as to under what charge penalty has to be levied u/s. 271(1)(c) of the Act. The notice is vague as it fails to clearly spell out the charge for levy of penalty. A further examination of the records show that the observations of the Assessing Officer are inconsistent while recording satisfaction and at the time of passing of the penalty order. The Assessing Officer has levied penalty for furnishing inaccurate particulars of income. The Assessing Officer is incoherent in reasoning for recording satisfaction and in passing the order levying penalty. - Decided in favour of assessee.
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2017 (2) TMI 1271
Insurance service - interest - penalty - Held that: - the assessee-Respondent had already deposited the excess amount pertaining to the Service Tax to the tune of ₹ 3,15,62,249/-. The demand was for the amount of ₹ 1.91 crores and ₹ 1.41 crore. The Commissioner has rightly set off the demand against the already available deposit lying with the Department. When it is so, then there is no question for raising the demand for interest or penalty - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1270
Deduction u/s 80P - Held that:- Section 80P is part of Chapter VI-A which deals with deductions to be made in computing total income. Section 80P is under Part "C", i.e., deductions in respect of certain incomes. Under sub-section (1) if gross total income includes income referred to in sub-section (2), the sums specified in sub-section (2) are deductible in accordance with the said section, i. e., section 80P.
Sections dealing with seeds and letting out godowns admittedly come under sub-sections (2)(a)(iv) and (2)(e). On this aspect the learned counsel for the Revenue has no dispute. Under sub-section (2)(a) the whole of the amount of profits and gains of business attributable to one or more of activities under sub-section (2) are deductible. Similarly, under section 80P(2)(e) the whole of the income is deductible. Under section 80P(2)(c)(ii) deduction is permissible to the extent of ₹ 50,000 only. Letting of godowns in fact comes in sub-section (2)(e) and here also the whole of income is deductible.
The assessee's activities on its own were not referable to section 80P(2)(c)(ii) which was taken by the assessing authority. There was no reason to pick various sub-sections of section 80P by the assessing authority in his own way. In fact, section 80P is applicable in respect of a different kind of person, i.e., co-operative societies. If it permits the entire income deductible, how and in what manner profits and gains are further utilized or divided by the assessee, would not be relevant. It is for this reason, in our view, sections 40A(7)(b) and 43B(f) would not be attracted. The assessee did not claim any deduction under the head of sum payable in lieu of any leave of credit of employees or in respect of any provision made for payment of gratuity to its employees on their retirement. The assessee claimed the entire business income and profit under the special provision, i. e., under section 80P, with reference to receipts to various heads referable to section 80P. Thus there was no justification or occasion to look into any other provision under Chapter VI-A, Part "D". - Decided in favour of assessee.
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2017 (2) TMI 1269
Reopening of assessment - reasons to believe - Held that:- A perusal of the aforesaid reasons recorded by the Assessing Officer makes it abundantly clear that the assessment originally completed by him under section 143(3) was reopened by the Assessing Officer on the basis of the same records as was available before him while completing the original assessment under section 143(3) and there was no new tangible material that had come to his possession on the basis of which the assessment was reopened by him. At the time of hearing before me, the learned Departmental representative has not disputed this position.
In the case of CIT v. Kelvinator of India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA) the assessee it was held by the hon'ble Supreme Court that after the amendment made with effect from April 1, 1989, the Assessing Officer has to have reason to believe that income has escaped assessment but this does not imply that the Assessing Officer can reopen an assessment on a mere change of opinion. It was held that the concept of "change of opinion" must be treated as an in-built test to check the abuse of power and hence the Assessing Officer even after the amendments made in the relevant provisions from April 1, 1989 has the power to reopen an assessment provided there is tangible material to come to the conclusion that there was escapement of income from assessment. Reopening of assessment made by the Assessing Officer in the present case was bad in law as the same was based merely on the change of opinion and the assessment completed by him under section 143(3) read with section 147 in pursuance thereof is invalid and the same is liable to be cancelled. Appeal of the assessee is allowed
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2017 (2) TMI 1268
Deduction under section 10BA - proof of fulfillment of the conditions laid down in the Act for claiming the said deduction - scope of manufacturing activity - Held that:- In view of the observations made by the Supreme Court in the case of ITO v. Arihant Tiles and Marbles (P.) Ltd. (2009 (12) TMI 1 - SUPREME COURT) we are of the opinion that the process which has been prescribed by the Tribunal in para 10 clearly covers the process and will cover under section 10BA. Therefore, in our view, the view taken by the Tribunal is just and proper and no interference in the judgment of the Tribunal is called for. The issue is answered in favour of the assessee and against the Department.
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2017 (2) TMI 1267
Shortlanding of goods - Section 116 of the CA, 1962 - Held that: - The allegation of shortlanding made in the show cause notice is on the basis of the notings made on the Green Boat Notes. Such allegation remains unsubstantiated and unsupportable in view of such Green Boat Notes not being signed by a person duly authorized by the Customs authorities - Petition allowed - decided in favor of petitioner.
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2017 (2) TMI 1266
Addition on contribution to the Superannuation Fund and the Gratuity Fund - Held that:- A.O. is directed by CIT-A to delete (i) the addition on account of contribution to superannuation fund and (ii) the addition on account of contribution to gratuity fund subject to the condition that the Deed of Variation of aforesaid Superannuation Fund and the Gratuity Fund of the appellant company are approved by the Commissioner of Income-tax at time of giving effect to this order. If the Commissioner of Income-tax does not approve the Deed of Variation of aforesaid Superannuation Fund and the Gratuity Fund, the additions of ₹ 23,42,193/- and ₹ 46,33,577/- on account of contributions to the Superannuation Fund and the Gratuity Fund respectively are to be treated as confirmed.
No infirmity in this order of the first appellate authority. The ld. CIT(Appeals) has directed the Assessing Officer to verify the facts and pass necessary consequential orders. The directions are specific. Under these circumstances, we see no reason to interfere with the same. - Decided against revenue
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2017 (2) TMI 1265
Reduction in quantum of penalty - Whether on the facts and in the circumstances of the case the Tribunal was justified in law in reducing the quantum of penalty levied under Section 11AC of the CEA, 1944?
Held that: - We fail to appreciate how the appellant can be said to be aggrieved by such direction. If at all, any person can be said to be aggrieved, he can be said to be the assessee. In any case, when the assessee has not challenged the impugned order and nothing is on record that any amount was paid either before issuance of show cause notice or even within 30 days of communication of the order of determination of duty we rest the matter there - present appeal fails and same deserves to be dismissed - decided against petitioner.
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2017 (2) TMI 1264
Maintainability of petition - alternative remedy - Held that: - It is true that as against any order passed by the Tribunal, the petitioner has an alternative remedy of an appeal under Section 35G on a substantial question of law. But the present writ petition arises out of the order dated 18-11-2014, which is in the nature of an order passed on an application for stay and waiver of pre-deposit conditions. An appeal under Section 35G could only be on a question of law. When matters are decided on interlocutory applications such as applications for condonation of delay, etc., no substantial question of law may actually arise. Therefore, the remedy under Article 226 cannot be stated to have been completely kept out.
It is true that under Section 11D the period of limitation cannot be held against the department whenever duty is collected but not paid. But the question as to whether the duty was in fact collected or not and the question as to whether what happened during the period of six years after search, are all questions that should be addressed to by the Tribunal, when the appeal is taken up on merits - From 6-8-2014, the Tribunal has no discretion to grant a total waiver in view of the mandatory requirement to deposit 7.5%. The Tribunal did not even address itself to this question. Therefore, we are of the considered view that the condition imposed upon the petitioner is onerous warranting our interference.
Petition allowed - decided in favor of petitioner.
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2017 (2) TMI 1263
Misdeclaration of value of imported goods - Held that: - The appellant has imported three types of mobile phones and declared the MRP for all the three models as ₹ 1599/-. However, at the time of examination of the goods the customs authorities found that the MRP declared on the packages were different from the MRP declared by the appellant for the three models. We note that the goods have been examined on second check i.e. after the Bill of Entry has been assessed on the basis of the declaration filed by the importer. Consequently, the charge of misdeclaration stands established - appeal dismissed - decided against appellant.
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2017 (2) TMI 1262
Valuation - mis-declaration of value - baggage rules - confiscation - penalty - Held that: - there is no dispute as to the fact that there is misdeclaration of the value of Palladium plates and Iridium powder, accordingly the consignments are held as liable for confiscation. Since a question is raised by the learned Counsel that the goods were imported as baggage confiscation seems to incorrect, the appellant herein did not make the declaration of the contents of baggage and was diverted from Green Channel to the Red Channel and consignment of Palladium plates and Iridium powder was detected; as there was wrong declaration of value of consignment and the impugned order is correctly held as liable for confiscation - the penalty imposed under Section 112(a) of the Customs Act, 1962 will be attracted - the quantum of penalty reduced - appeal allowed in part.
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