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Case Laws
Showing 281 to 300 of 1359 Records
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2015 (4) TMI 1081
Validity of Tribunal order - Not passed on the ground on which First Appellate Authority dismissed the appeal but considered the appeal on merits - First Appellate Authority dismissed the appeal on the ground of non-deposit of the amount of pre-deposit - Held that:- by considering the fact that even subsequently, when on remand by the Division Bench of this Court in the case of State of Gujarat V/s. City Tiles Limited [2015 (2) TMI 838 - GUJARAT HIGH COURT], the matters are remanded to the file of the first Appellate Authority with a direction to the first Appellate Authority to decide and dispose of the appeals in accordance with law and on merits and in the facts and circumstances of the case, without insisting for pre-deposit. - Decided in favour of appellant
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2015 (4) TMI 1080
Unexplained expenditure relating to purchases - Held that:- The assessing officer has made the impugned addition only on the basis of information given by the Sales tax department, he did not make independent enquiry with the sales tax department, the assessee was not given opportunity to cross examine the officials of sales tax department, the evidences furnished by the assessee to prove purchases of sands and its movement were not disproved, the evidences furnished by the assessee to prove the payments made against purchases by way of account payee cheques were also not disproved. Under these set of facts, by following the decision rendered by this bench of Tribunal in the case of Deepak Popatlal Gala (2015 (6) TMI 944 - ITAT MUMBAI ), we uphold the order of Ld CIT(A) on this issue in deleting the addition - Decided in favour of assessee.
Adhoc addition from out of purchases - Held that:- Assessing officer has made adhoc addition only on the reasoning that the assessee has failed to furnish the details. The case of the assessee before the Ld.CIT(A) was that he was having all the relevant details. We notice that the first appellate authority has deleted this disallowance without verifying those details. Since this addition was made for want of evidences and details and since the details, if any, available with the assessee were not examined by the tax authorities, we are of the view that this issue requires to be restored to the file of the AO. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the assessing officer with the direction to examine the same afresh. The assessee is also directed to furnish all the details that may be called for by the AO on this issue. - Decided in favour of revenue for statistical purposes.
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2015 (4) TMI 1079
Penalty imposed - whether M/s. Satya Metal, Jammu has passed inadmissible Cenvat Credit or not is in dispute? - Held that:- When the issue of M/s. Satya Metal has passed inadmissible Cenvat Credit to the respondent is in dispute. Therefore, no penalty was required to be imposed by the Adjudicating Authority itself and show cause notice could have been kept in abeyance. But in over enthusiasm penalty has been imposed on the respondent by the Adjudicating Authority which has been considered by the Ld. Commissioner (A) in the impugned order and same has been set aside and now again in over enthusiasm that order has been challenged before me before attaining finality the issue of inadmissible credit passed by M/s. Satya Metal, Jammu. - Decided in favour of assessee
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2015 (4) TMI 1078
Eligibility of Notification No. 6/2002-CE dated 01.03.2002 - Manufacture of Steam Turbines and supplied for bio-mass based project without payment of duty by availing the exemption under said Notification - Held that:- boiler is the only device where the agricultural, industrial etc. waste is converted into thermal energy. Thereafter this thermal energy is used. Therefore the exemption cannot be extended to turbine which converts heat energy into rotational energy (kinetic energy). Therefore the appellants plea that the turbine is eligible for nil rate of duty as per Notification No. 6/2000, read with Sl. No. 16 of list of the said notification or under Notification 6/2002, dated 1-3-2002 read with Sl. No. 16 of List 9 is not accepted. - Decided against the appellant
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2015 (4) TMI 1077
Penalty u/s. 271D - Deposits and loans in cash in excess of prescribed limit - Held that:- We find that the facts are that the assessee company Mahmood Associates (P) Ltd. received cash loan from its director Md. Mahmood. In view of the above proposition of law laid down by various High Courts i.e. Hon’ble M.P. High Court in the case of Indore Plastics P. Ltd. [2002 (7) TMI 19 - MADHYA PRADESH High Court ], Idhayam Publications Ltd. [2006 (1) TMI 97 - MADRAS High Court] and Natvarlal Purshottamdas Pareekh [2008 (2) TMI 287 - GUJARAT HIGH COURT], supra, we find that the penalty levied by JCIT, Range-12, Kolkata and confirmed by CIT(A) needs to be quashed. No contrary decision was pointed out by Ld. Sr. DR despite we specifically asked him whether any High Court decision is available against the assessee or not. In term of the above, we delete the penalty levied by JCIT and confirmed by CIT(A). - Decided in favour of assessee
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2015 (4) TMI 1076
Validity of acquittal order - Recovered 3 gold bars in raid - Also statements of the respondents also recorded under Section 108 of the Customs Act, 1962 - Held that:- at the time of passing the impugned judgment, learned trial Judge has given categorical finding that there are some contradictions in the evidence as regards the packing of the sample. It is also found that from the report it cannot be said that it is of the sample taken in the present case and even the panch witness is also not supporting the case of the prosecution. Therefore, the learned trial Judge has rightly observed that from the evidence on record it could not be proved that offence as alleged against the respondents-accused could not be established. Therefore, the learned Judge has rightly observed that the prosecution could not prove its case beyond reasonable doubt and rightly acquitted the accused of the charges levelled against them. - Decided against the appellant
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2015 (4) TMI 1075
TDS u/s 194C - Section 40(a)(ia) disallowance - freight payments due non-deduction of TDS - Held that:- It is an undisputed fact that the assessee hires its payee’s vehicles on routine basis in case its own fleet is unable to perform the transporting assignments. The authorities below treat such an arrangement as a contract to invoke Section 194(c) of the Act. We do not find any material on record to indicate any risk and responsibility being passed over to the payees. That being the case, we observe that a mere hiring job work without any other evidence does not partakes the colour of risk and responsibility forming essential condition of a contract.
The assessee’s payees have not been paid in lieu of any risk and responsibility to treat the impugned freight payments as those covered u/s.194C of the Act. The assessee’s former plea (supra) succeeds. The latter one has become infructuous. The impugned section 40(a)(ia) disallowance is deleted. - Decided in favour of assessee.
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2015 (4) TMI 1074
Imposition of penalty - Rejection of declared value - Revenue rejected the declared value of imported goods and enhanced it by referring Rule 9 of the Customs Valuation Rules, 2007 by solely based on the DRI's letter dated 6.1.2009, without comparing the it with any identical/similar goods imported at or about the same time - Held that: Revenue's rejection of declared value is not legal and proper and also quantum of penalty imposed in the adjudication order, is in the higher side. As appellant had incurred demurrage and other shipping charges for delayed adjudication, which has a direct bearing on the profitability in the appellant's firm; and also the appellant is a first time importer of the goods therefore, the interest of justice weighs in favour of reduction in the quantum of penalty confirmed in the adjudication order. - Decided in favour of appellant
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2015 (4) TMI 1073
Denial of Duty Drawback - Duty free input and dutiable input used in manufacture of exportable goods - Appellant used duty free input in dyeing and such material lost its existence in finished good result of which he is asked by revenue to repay back the entire drawback claimed by it - But appellant argues that drawback is not deniable or slashed when all industry rate of drawback was prescribed - Held that: when drawback rate was declared it has taken into consideration the composition of goods with exempted inputs and dutiable inputs and industrial behaviour in the economy, so, once a drawback rate is prescribed at a particular rate for an industry and the appellant has manufactured the goods using dutiable input procured from the domestic market as well as global market paying duty, it is not exposable to any adversity. Therefore, as appellant being governed by the basic provision of Rule 3 of the Drawback Rules, it is not required to repay back the drawback. - Decided in favour of appellant
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2015 (4) TMI 1072
DEPB benefit - Misdeclaration of value - Appellant exported Drop Forged Combination Pliers Chrome Plated with Heavy Red Transparent Sleeve under DEPB scheme but revenue after examination, doubts about the eligibility of goods for DEPB and allowed the export on provisional basis under DEPB. After clearance of the goods it appeared that the FOB as well as PMV of the goods has been inflated and department rejected the declared FOB price because the price at which the appellant purchased the goods from a proprietorship concern is much higher than the price at which the pliers from local artisans were purchased and therefore, restrict the DEPB benefit to 16% - Held that: as per the decision of the Tribunal in the case of Kanak Metal Industries, the exporter is not bound to fix the FOB value at prevailing market price and is free to sell the goods at profits. Thus, the FOB price need not be equal to the prevailing market price of the goods, so long as it conforms to the provisions of Section 14 of the Customs Act, 1962 and DEPB benefit is to be given with reference to the FOB value. So, when there is nothing wrong with the declared FOB value of the goods exported, the DEPB benefit can not be restricted to 16% of the PMV. Moreover, there is a built in the foreign trade policy to discourage the inflation of the FOB to claim the higher DEPB benefit. This mechanism is in the form of restriction in the policy that in the case where the DEPB benefit is available at the rate of 10% or more, the total DEPB benefit available to the exporter shall not exceed 50% of the PMV of the goods. Therefore, as the DEPB benefit claimed by the appellant is much less than 50% of the prevailing market value determined by the Commissioner, the DEPB benefit to the appellant can not be restricted to 16% of the PMV. - Decided in favour of appellant with consequential relief
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2015 (4) TMI 1071
Refund claim of interest - Under Section 28AA - Appellant was asked to pay interest on delayed payment of duty under Section 28AA of the Customs Act, 1962 with effect from 29-9-2003, i.e., three months after the date of passing of the Order-in-Original and the Department started processing Bills of Entry in year 2005 and therefore, therefore, he claimed that the interest should not have been demanded and recovered before finalizing Bills of Entry in the year 2005 - Held that: the interest becomes chargeable after three months from the date of determination of duty chargeable. Here, the determination of duty chargeable happened on the date (30-5-2003) of Order-in-Original. Therefore, charging of interest w.e.f. 29-9-2003 is clearly in conformity with the provision of said Section 28AA. Also the grant of stay by the CESTAT against the operation of said Order-in-Original and the vacation thereof subsequently do not in any way alter the date of determination of duty chargeable which remained the date of the adjudication order. Therefore, refund claim not granted. - Decided against the appellant
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2015 (4) TMI 1070
Refund claim - Commercial or Industrial Construction Services - Appellant constructed building being used as the hostel for the residence of students studying in medical institute and contended that they are not covered under any of the taxable category - Held that: the building constructed was used as hostel for the residence of students studying in medical institute and was not for any other purpose. So, by taking the facts of Board Circular No. 80/10/2004-S.T., dated 10.9.2004, which clearly states that the leviability of Service Tax would depend primarily upon whether the building or civil structure is ‘used or to be used’ for commerce or industry. The information about this has to be gathered from the approved plan of the building or civil construction. Such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purposes of profit are not taxable being, non-commercial in nature. Therefore, service tax was not liable on appellant and as it has wrongly paid, can claim for refund. - Decided in favour of appellant with consequential relief
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2015 (4) TMI 1069
Entitlement to buy back of own shares by means of a scheme - whether buyback of shares must be effected only under Section 77A of the Companies Act, 1956/Section 68 of the Companies Act, 2013? - Held that:- In the present case since it is legally permissible for the company to buy back its shares by following the procedure under Section 391 read with Sections 100 to 104 of the 1956 Act, the fact that the same may not attract income tax will not amount to it being a device to evade tax.
The Petitioner has placed on record RBI’s Circular No.49 dated 4th May 2010 which provides that shares of an unlisted Indian company can be transferred by a nonresident to a resident under the general permission of the RBI if the transfer price does not exceed the fair market value as determined by a Chartered Accountant or a SEBI registered Merchant Banker as per the DCF method. In the present case the transfer price has been arrived at in accordance with the aforesaid circular of the RBI. The Regional Director has not disputed the fair market value of the shares so determined. In these circumstances it is clear that the buyback of shares under the Scheme is in accordance with the RBI Guidelines and that being so, there is no question of there being any draining away of foreign exchange.
In view of the above and particularly the fact that in law the Petitioner is entitled to buy back its own shares by means of a scheme under Section 391 read with Sections 100 – 104 of the 1956 Act, the scheme cannot be said to be a colourable device to evade income tax. It is a legally permissible procedure which the Petitioner is entitled to follow to buy back its shares.
In any event the Petitioner has stated that the issues relating to income tax that may arise out of the Scheme may be left open to be dealt with and decided by the Income Tax Authorities in accordance with the law. The statement is accepted. Consequently nothing survives in the objections of the Regional Director.
(a) The Scheme of Arrangement as proposed is sanctioned with a clarification that the issues relating to Incometax that may arise out of the Scheme are left open to be dealt with and decided by the Incometax Authorities in accordance with law.
(b) The Petitioner to pay costs of ₹ 10,000/to the Regional Director within a period of four weeks from the date of this order.
(c ) Filing and issuance of the drawn up order is dispensed with.
(d) All authorities concerned to act on a copy of this order along with Scheme attached thereto, duly authenticated by the Company Registrar, High Court (O.S.), Bombay.
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2015 (4) TMI 1068
Revision of refund claim - IT enabled Services- - Appellant provided IT services which were exported and was eligible to avail Cenvat credit and claim the refund of the service tax paid by the service provider if it remains unutilised but the services rendered by the service provider is in the premises for which registration was not granted to the appellant - Held that: The service which was rendered and on which the Cenvat credit was availed by the appellant, are of input services in respect of the output services which is provided by the appellant i.e. IT enabled service. Also the output services which are provided by them is from their registered premises and that has got centralised accounting system. Subsequently, the appellant has registered or added the addresses from wherein the services were received for providing export services; in the registration certificate, which is an indication that the appellant is eligible to avail input service credit and having exported the services is eligible for the refund of the amount lying unutilised. Therefore, refund claim is revisable. - Decided in favour of appellant
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2015 (4) TMI 1067
RTI application - Held that:- Point A(v) is about the address of the house stated to have been taken on rent of ₹ 10,000/- by Shri S.K. Verma at Bangalore. Point A(vi) is about providing the address of all the Government quarters/residential accommodation allotted to Shri S.K. Verma during his tenure at Bangalore. Point B is regarding providing of details of information whether the matter regarding fraudulent claim of income tax deduction by Shri Verma by showing Government quarter as private property and claiming income tax deduction for the monthly rent of ₹ 10,000/- has been brought to the notice of the Registrar and Hon’ble President.In my view the information/factual position in respect of point A(v), A(vi) and B can be provided. Accordingly the same may be provided forthwith.
As regards the points A(iii) and A(iv), the same are in respect of providing certified copies of all the rent receipts of ₹ 10,000/- per month submitted by Shri Verma along with the copy of the communication in which he had sought income tax exemption in respect of HRA and providing certified copy of the communication received from Shri S.K. Verma, Asstt. Registrar, CESTAT, Bangalore under which the lease deed for the house claimed to have been taken by him on monthly rent of ₹ 10,000/- per month had been enclosed. In respect of as regards Point A(iii) and A(iv) regarding supply of certain documents (rent receipts and rent agreements), the Registrar should depute a responsible person for search of the documents within a period of one month. If the documents are not traced, the mater should be placed before Hon’ble President for orders for an inquiry into the loss of the documents. If the documents are traced, the same should be furnished to the applicant. But if the documents are not traceable, and an inquiry is conducted a copy of the inquiry report should be furnished to the applicant.
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2015 (4) TMI 1066
Concept of capital or revenue receipt for a trust - amount received as development fund by the assessee and directly taken to the balance as liability - Held that:- We are informed that in the succeeding years 2009-10 onwards the revenue has consistently brought to tax similar amounts. In these circumstances we leave the question of law open to be urged later in an appropriate case.
As far as the other issue with respect to claim for depreciation allowed in favour of the assessee is concerned, the Court noticed that the question of law sought to be urged stands covered in the assessee’s favour in Director of Income Tax V. Indraprasth Cancer Society [2014 (11) TMI 733 - DELHI HIGH COURT]
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2015 (4) TMI 1065
Cognizance of the alleged offence - whether the learned Magistrate could not have taken cognizance of the alleged offence and issued process to the appellant without sanction from the State Government under Section 197 of CrPC, and that on that sole ground, the High Court should have quashed the proceedings? - Held that:- As whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant. Therefore, the learned Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The High Court missed this crucial point in the impugned order.
The appeal is hence allowed. The impugned order by the High Court is set aside, so also, the proceedings initiated by the Civil Judge (Jr.Div) and JMFC at Chikkanayakanahalli, Karnataka in C.C. No. 74/2009 taking cognizance and issuing process to the appellant. It is made clear that our judgment is only on the issue of sanction and we have not considered the matter on merits and that this judgment shall not stand in the way of respondent approaching the State Government for sanction under Section 197 of CrPC. In case such sanction is obtained and the same is produced before the learned Magistrate, the Magistrate may proceed further in the case in accordance with the law.
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2015 (4) TMI 1064
Eligibility of deduction u/s 35(2AB) - validity of Certificate issued by the prescribed authority - Held that:- If any question arises as to what extent, any activity constitutes or constituted or an asset is or was being used for scientific research, then the Assessing Officer would be required to refer such question to the Board for being referred to the prescribed authority. The decision of the prescribed authority in this regard would be final, inasmuch as, the certification of such expenditure is being examined by an expert body and undisputedly, such exercise has been outsourced by the Revenue under the Act itself, since the prescribed authority being possessed of requisite expertise, it would be in a better position to certify as to whether such expenditure claimed by the assessee under Section 35(2AB) would fall within the said provision or outside. This exercise of examining the correctness of the Certificate issued by the prescribed authority is not available to the Assessing Officer as could be seen from scheme of Section 35 of the Act.
As sub-section (4) of Section 43 will have to be considered, which defines as to what activities would constitute "scientific research" as indicated under the said Section namely, Section 43(4). As to whether any expenditure incurred in the acquisition of rights in or arising out of scientific research as indicated in clause (ii) of sub-section (4) of Section 43 is an issue which requires to be examined by the prescribed authority itself and it would not be in the domain of the assessing authority to undertake such an exercise. When Section 35(2AB), Section 35(3) and Section 43(4) of the Act are read harmoniously, the irresistible conclusion that has be drawn would be that assessing officer cannot sit in judgment over the report submitted by the prescribed authority in Form No. 3CL. This view is also supported by the judgment of the High Court of Gujarat in Mastek Ltd.'s case (2012 (9) TMI 264 - GUJARAT HIGH COURT ). - Decided in favour of assessee
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2015 (4) TMI 1063
Refund of cenvat credit - Nexus between input and export of output services - Held that:- t any input service which has a nexus with the business of manufacture or relating to business would get covered under the term 'input service' under Rule 2(l) of the Cenvat Credit Rules and accordingly Cenvat credit on such services would be available. - service tax paid on car parking rentals is an eligible input service under Rule 2(l) of the Cenvat Credit Rules and consequently the appellant would be eligible for refund of the same under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006-S.T., dated 14-3-2006. - Refund allowed - Decided in favor of assessee.
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2015 (4) TMI 1062
Writ petition against the adjudication order - Though various grounds have been raised assailing the impugned orders, this Court is not inclined to entertain the writ petitions, as the impugned orders passed by the respondent are appealable under Section 85 of the Finance Act. - Petition dismissed for want of alternative remedy.
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