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Showing 281 to 300 of 1621 Records
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2016 (5) TMI 1346
Penalty levied u/s 271AAA - undisclosed income found as a consequence of search u/s 132 - Held that:- As not in dispute that a search u/s 132 was conducted and thereupon it was found that the assessee has purchased a land as per the registered deed wherein the consideration money was ₹ 2,75,65,000/-. A statement u/s 132(4) was recorded and after confronting with the evidences an amount of ₹ 2 crores was offered being cash consideration over and above the sale consideration mentioned in the registered deed. As a consequence a revised return was filed. the assessment was completed u/s 143(3) and the income was assessed at ₹ 2,15,60,620/-. We have been informed that the surrendered amount u/s 132(4) was accepted as such by the AO. There is no dispute that the tax on the amount offered had also been paid by the assessee.
Thus as perused the provisions of section 271AAA which has provided that a penalty at the rate of 10% is to be levied on the amount of undisclosed income found as a consequence of search u/s 132 of I.T. Act. However, vide sub-section (2) an exception is also provided that in a situation when the offer is made of the undisclosed income u/s 132(4) and it is specified the manner in which the income was earned and duly substantiated the manner in which the undisclosed income was derived and that the tax with interest was paid then out of the ambits of penalty provisions. Further it has also been brought on record that the income offered was duly disclosed in the books of accounts of the assessee and the manner in which the investment was made has also been duly incorporated in the accounts, moreover the tax was paid Hence we hereby hold that the learned CIT(Appeals) has rightly held that the question of levy of penalty u/s 271AAA was out of the scope of sub-section (1) but within the ambits of the exception prescribed under sub-section (2) of the said section. - Decided against revenue
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2016 (5) TMI 1345
Condonation of delay - Held that:- The petitioner made a conscious choice of not preferring an appeal and accepting the order, which is now sought to be challenged. When the petitioner chose not to prefer an appeal at the appropriate time, he cannot be allowed to file an appeal after expiry of more than 1500 days simply because he is now advised otherwise. It is not a case where the petitioner was prevented from presenting an appeal within the period of limitation. It is a case where the petitioner chose not to challenge the order within the prescribed period of limitation. Therefore, we are not inclined to admit the appeal after such a long delay.
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2016 (5) TMI 1344
Levy of penalty u/s 271(1)(c) - expenditure on account of fees paid to the Registrar of Companies for increase in its share capital disallowed as claimed revenue expenditure - Held that:- Admittedly, the details supplied by the assessee in its return of income are not found to be incorrect or erroneous or false. The Assessing Officer has disallowed fees paid to Registrar of Companies for increase in the share capital treating the same to be capital expenditure. Thus, it is a case where the assessee’s claim that the expenditure incurred is revenue expenditure is found by the Assessing Officer to be not sustainable in law. But, that, by itself, will not amount to furnishing of inaccurate particulars so as to expose the assessee to penalty u/s 271(1)(c) of the act. See CIT Vs. Reliance Petroproducts Pvt.Ltd. – (2010 (3) TMI 80 - SUPREME COURT ). - Decided in favour of assessee
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2016 (5) TMI 1343
Fraudulent availment of benefit under Duty Entitlement Pass Book Scheme - forgery of signature in DEPB - The allegation against the petitioner Pavitar Singh is that he was Accountant and that Satbir Singh was his employee and that a fake firm was floated in the name of his employee Satbir Singh and that he was involved in preparation of the forged DEPB which is transferable and can be used for setting off against the customs duty.
Held that: - offence u/s 132 of the Act pertains to false declaration and false documents in the transactions of the business relating to customs and Section 135 of the Acts relates to evasion of customs duty - In the CBI case against Gurkirpal Singh, allegations u/s 420, 467, 468 and 471 IPC were also levelled alleging that he has done cheating by evading customs duty to the extent of ₹ 1.85 crores and has prepared forged documents. Therefore, charges are substantially same for which accused Gurkirpal has already tried, convicted and sentenced. Therefore, present complaint against Gurkirpal is hit by the principles of double jeopardy and is liable to be quashed.
CBI recorded statements of some of the witnesses under Section 108 of the Act which are admissible in evidence. Therefore, it is not possible to pre-judge the case before the trial.
The complaint was previously filed at Amritsar Court. It was returned and after one year, it was filed at Jalandhar Court. Let the petitioner Pavitar Singh take a plea regarding bar of limitation for offence under Section 132 of the Act and let the lower Court decide the same. In the quashing petition, it is not possible to critically appreciate evidence, which is yet to be produced before learned Chief Judicial Magistrate, Jalandhar.
Petition dismissed - decided against petitioner.
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2016 (5) TMI 1342
Condonation of delay - maintainability of appeal - due to negligence on the part of the clerk concerned and also to the fact that the said clerk is attending their work on part time basis, the appeal could not be filed within the statutory time limit - Held that: - The cause for such delay is attributed to the negligence of the clerk of the applicant. It is settled law as held by the Hon’ble Supreme Court that the delay due to negligence cannot be condoned, especially when the statute has prescribed the time-limit for filing the appeals - delay not condoned - appeal dismissed - decided against appellant.
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2016 (5) TMI 1341
Applicability of section 44BB - Profits derived by the installation permanent establishment for executing contract awarded by Indian Oil Corporation Limited (IOCL) for installation of SPM systems - whether assessable to tax in India as per the provisions of section 44BB of the Income-tax Act, 1961 ? - Held that:- We find that in this case the applicant had entered into two separate contracts with IOCL and L&T respectively. As regards contract with IOCL it was noted that the contract was loaded in favour of mobilisation expenses though it was a divisible one segregating the mobilising segments and other segments.
Section 44BB is a special provision and has a self contained code relating to the taxability of non-resident for providing services in connection with prospecting for, extraction of and production of mineral oils and this section prevails over other general provisions including that of section 44DA.
The provisions of section 44BB take into consideration the aggregate of amounts paid or payable to the assessee on account of the provisions of services and facilities in connection with, or supply of plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils in India. Therefore, it is the entire consideration received which will be considered for taxability and not the profits derived by the installation of permanent establishment of the applicant. During the course of hearing this fact was pointed out to Shri S.D. Kapila, learned counsel for the applicant and he had agreed to this proposition.
We conclude that the entire consideration received by the applicant in respect of contract with IOCL for executing work of installation of SPM System, offshore and onshore pipelines and associated facilities for integrated offshore crude oil unloading facilities located at Paradip would be chargeable to tax under the provisions of section 44BB of the Income-tax Act.
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2016 (5) TMI 1340
Disallowance of royalty expenditure - Held that:- Referring to assessee's submission since the above stated product ‘Hercon and Impress’ were newly added products and that it was a commercial decision of the assessee company to sell the said products on no profit basis so as to attract more customers. It has also been submitted that in the subsequent assessment year 2011-12, the parent company i.e. M/s. Hercules INC, USA has waived off the entire royalty payable by the assessee and that the assessee has not paid any royalty to the parent company and the entire amount has been offered to tax by the assessee company for A.Y. 2011- 12. It has, therefore, been contended that the disallowance made for the assessment year under consideration would result in double taxation of the same income.
Considering the above contentions, we do not find any infirmity in the order of the Ld. CIT(A) while deleting the disallowance of royalty expenditure. The appeal of the Revenue is therefore dismissed. - Decided in favour of the assessee
Disallowance on account of travelling expenses made on adhoc basis at the rate of 15% - Held that:- The assessee had claimed the travelling expenses incurred for business purpose of the assessee which were covered by clause 9.6 of the agreement of the assessee with CBC Ltd. Respectively following the findings of the Tribunal given in the own case of the assessee in the earlier assessment year, we delete the adhoc disallowance made by the lower authorities on account of travelling expenses of the employees. This ground is accordingly decided in favour of the assessee.
Addition under section 69C - Held that:- The assessee has specifically pleaded that it has not made any payment except ₹ 54,70,621/- through multiple payments to the American Express Bank, which fact has also been confirmed by the said bank. Under such circumstances, the burden shifts upon the AO to prove that the assessee has made payments in excess of what has been claimed by the assessee as the assessee is not supposed to prove the negative. Since there is no other evidence available of any such payments made by the assessee except the AIR information alone, hence, in our view, the additions solely on the basis of AIR information are not sustainable in the eyes of law. This ground of the assessee’s appeal is therefore allowed and the additions confirmed by the Ld. CIT(A) in relation to the above issue are hereby ordered to be deleted.
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2016 (5) TMI 1339
Amendment in the certificate of registration - Section 8(3) of the Central Sales Tax (Registration and Turn over) Rules, 1957 - Because of partial inadvertence and due to partial miscommunication and due to partial error in Clause (c) of the aforesaid certificate of registration issued under the Central Sales (Registration and Turnover) Rules, 1957, the capital goods were not mentioned and this is blank in the said certificate of registration - Counsel for the State submitted that the amendment which is in the certificate of registration cannot be granted with retrospective effect.
Held that: - it transpires that there were capital goods at the mining place of this petitioner. The said inspection report is dated 11.07.2013. This inspection report is a part of Annexure-5 to the memo of this writ petition. Thus, the capital goods were not only purchased from April 2011, but, there were invoices also. Thus, there are valid documents for the capital goods purchased by the petitioner and there is also a verification report of these facts by the Inspecting Team of the respondents-State. Thus, we have no reason to disbelieve the purchase of capital goods, which have been purchased by him. The date of invoices, invoice No., value of invoice with the name of the parties from whom the goods were purchased and address from where goods were purchased have also been mentioned.
The petitioner has purchased the capital goods for the mining purposes and these goods are mentioned with invoices, number of invoices, value of invoices, name and address of the parties from whom capital goods are purchased and no fraud was played by this petitioner. The State of Jharkhand could not point out that this petitioner is evading the tax nor there is any allegation by the State of Jharkhand upon the petitioner that the capital goods were never purchased.
Once capital goods are purchased for mining purposes and there is a provision of amendment in the certificate of registration under Section 25(4) of the Jharkhand Valued Added Tax Act, 2005 to be read with Rules 7 and 12 of the Central Sales (Registration & Turnover) Rules, 1957, we hereby, direct the respondents to carry out that amendment and capital goods as mentioned herein above shall be included in the certificate of registration with retrospective effect from 21.4.2011 and we hereby, quash and set aside the impugned order.
Petition allowed - decided in favor of petitioner.
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2016 (5) TMI 1338
Refund claim - bank guarantee furnished in compliance with N/N. 49/2000-Cus., dated 27th April, 2000 for imports under the Export Promotion Capital Goods (EPCG) scheme that had been prematurely encashed by the proper officer of Customs without awaiting the Export Obligation Discharge Certificate (EODC) under consideration with the competent licensing authority - it was the claim of Revenue that there is no record of application for refund dated 2nd October, 2009 having been received in the Customs House.
Held that: - This is a matter that can be resolved on the facts available in the records. Appellant has furnished the application for refund submitted to New Customs House Mumbai along with the covering letter. I find from the covering letter that there is a clear date stamp on it. The date of the stamped acknowledgement of receipt by the EPCG unit is 20th October, 2009 and the endorsement states clearly that ‘copy of EODC not received.’ - Failure to enclose discharge certificate is, undoubtedly, a deficiency and may render the application incomplete but it does not detract from the existence of the refund application. The acknowledgement with date stamp authenticates the application. The application was certainly made within time.
Appeal allowed - decided in favor of appellant.
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2016 (5) TMI 1337
Disallowance under section 14A - Held that:- Assessee has not earned any exempt income during the year. As when there is no exempt income, which do not form part of total income, AO cannot disallow the expenditure u/s 14A of the Act. - Decided in favour of assessee.
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2016 (5) TMI 1336
Input tax credit - denial on the ground of non-submission of declaration Form C-4 and statutory documents - Held that: - petition disposed of by permitting the assessee to produce Form VAT C-4 before the assessing authority who was directed to decide the same afresh in accordance with law - petition allowed by way of remand.
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2016 (5) TMI 1335
TPA - comparable - Held that:- Assessee is engaged in providing non-binding investment advisory services to its Associated Enterprise(AE)-Apollo Management L. P.. Companies dis-simalar with that of assessee or functionally different need to be rejected by final list of comparable.
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2016 (5) TMI 1334
Revision u/s 263 - Held that:- While invoking the revisional jurisdiction, the ld. Commissioner has not pointed out exact error in the assessment order specifying as to how the assessment order is erroneous/prejudicial to the interest of the Revenue. In view of these facts we set aside the order of the ld. Commissioner invoking revisional jurisdiction u/s 263 being not within the parameters of the law, as the assessment was framed by the Assessing Officer after considering necessary details filed by the assessee and on examination of the same. It is not the case that the assessment was framed in a hasty manner or without considering the factual matrix/necessary details. The jurisdiction u/s 263 of the Act could not be assumed merely stating that adequate enquiry was not made by the Assessing Officer. The decision from Delhi High Court in CIT vs Sunbeam Auto Ltd (2009 (9) TMI 633 - Delhi High Court) and Vegesina Kamala vs ITO (2016 (3) TMI 88 - ITAT VISAKHAPATNAM) supports the case of the assessee. Therefore, considering the totality of facts and the judicial pronouncement, the revisional order is quashed. The appeal of the assessee is allowed.
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2016 (5) TMI 1333
TPA - selection of comparables by the TPO - Held that:- Companies with dissimilar functional profile with that of assessee as engaged in providing information technology enables network management and other back office support services to its group companies. It also undertakes software development services for developing software applications, which are used within the Group companies. The IT enabled network management and other back office support services performed by assessee, primarily include remote monitoring and maintenance of Equant global network platforms and services, coordination, remote configuration, and implementation of quality customer networking solutions. Further under the category of software development services assessee is engaged in the providing routine contract software development services relating to the development and maintenance of application companies like HR and accounting need to be deleted as comparable.
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2016 (5) TMI 1332
Disallowance of claim u/s 54F - Investment more than one residential property in the same block - Held that:- The pre and post amended provisions are considered by the Jurisdictional High Court in the case of V.R. Karpagam (2014 (8) TMI 899 - MADRAS HIGH COURT) and granted relief even though different flats were allotted to the assessee as any residential house. The ld. Commissioner of Income Tax (Appeals) has dealt exhaustively on the law and judicial decision of High Court and Tribunal and explanations filed by the assessee viz-a-viz and highlighted provisions and the factual matrix of the case. Considering the apparent facts of the case and provisions, we are not inclined to interfere with the order of Commissioner of Income Tax (Appeals) and uphold the same and dismiss the appeal of the Revenue. - Decided in favour of assessee.
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2016 (5) TMI 1331
Penalty u/r 25 of the CER, 2002 - benefit of N/N. 56/2002-CE dated 14.11.2002 - the refund claims were pending for adjudication. Therefore the appellant could not pay duty through PLA during the period July 2010 to December 2010 - Held that: - penalty u/r 25 of the CER, 2002 can be imposed only when it qualifies provision of Section 11AC of the CEA, 1944. Section 11AC of the Act states that penalty can only be imposed, if duty has not been levied, not paid, or short levied, or short paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of the Rule/Act to evade the payment of duty. Therefore, the mensreea for imposing penalty is required - There is no such allegation against the appellant that they have not paid duty in time by way of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of the Rule/Act with intend to evade payment of duty - penalty set aside - appeal allowed - decided in favor of appellant.
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2016 (5) TMI 1330
TPA - ALP determination - comparables selection - Held that:- Bodhtree Consultancy Ltd. - Since there is no segmental details in the data provided by this company therefore it is not possible to ascertain whether the revenue earned by this company during the year is from one of these activities or some of these activities or all of these activities. As far as the net work storage and data management solutions are concerned, the assessee is also providing software solutions to its AEs group who are leaders in net work storage and data management solution. Therefore in the facts and circumstances of the case, we are of the view that in the absence of complete information and details of the financials, it is not possible to conclude that this company is engaged in the similar business activity as of the assessee or in a different activity.
Tata Elxsi Ltd. (Seg.) - as emerging from the Annual Report of this company and therefore this company cannot be considered as functionally comparable to that of software development services provided by the assessee to its AEs. Accordingly, we direct the Assessing Officer/TPO to exclude this company from the list of comparables.
Infosys Technology Ltd. - direct the Assessing Officer / TPO to exclude this company from the list of comparables.
Thinksoft and FCS Software - Once these companies were considered for inclusion in the list of comparables and the assessee has not objected against the inclusion then even if the TPO decides to exclude these companies from the final set of comparables, the assessee would have been given an appropriate opportunity of hearing on the reasons and criteria on the basis of which the TPO proposed to exclude these companies.
Sasken Communications Technologies Ltd. (Seg.) - we are of the view that the assessee has made out prima facie case of incorrect computation of margin of this company and therefore we set aside this issue to the record of the Assessing Officer/TPO to consider the objections of the assessee in respect of incorrect computation of margin.
Working Capital Adjustment - we direct the Assessing Officer/TPO to give the working capital adjustment after considering the objections of the assessee as well as after exclusion of the companies as directed by us from the list of comparables.
Acentia Technology Ltd is directed to be excluded from the list of comparables
Cosmic Global Limited we direct the AO/TPO to exclude this company from the list of comparables for the purpose of determining the ALP
Eclerx Services - this company is mainly engaged in providing high end services involving specialized knowledge and automation expertise in the field and therefore the same cannot be compared with a low end service provider company. Following the earlier decisions of this Tribunal, we direct the Assessing Officer/TPO to exclude this company from the list of comparables.
Exclusion of the telecommunication expenses incurred in foreign currency both from export turnover as well as total turnover.
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2016 (5) TMI 1329
Refund claim - THC charges - bills of lading charges - origin haulage charges - repo charge - denial on the ground that services are not port services - Non submission of proof of payment of service tax on GTA services - Proper invoice not submitted - Held that: - the issues are covered by the decision in the case of Suncity Art Exports & Ors. [2014 (11) TMI 251 - CESTAT NEW DELHI], where on similar issue refund was allowed - appeal allowed - decided in favor of appellant.
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2016 (5) TMI 1328
Unaccounted local sales of gold - suppression of sales - assessee contends that there are now additional evidences which show that actual consumption of gold was at 92.9% purity level as against minimum requirement of 91.6% - Held that:- We find that the issue is squarely covered by Hon'ble jurisdictional High Court's judgement in assessee's own case for the assessment year 1989-90 [2014 (3) TMI 651 - GUJARAT HIGH COURT] against the assessee. As for the arguments of the assessee regarding, what he perceives as errors in the reasoning process, we can do no better than to quote the words of Hon'ble Supreme Court, in the case of Ambika Prasad Mishra vs. State of U.P. (1980 (5) TMI 100 - SUPREME COURT ), that "every new discovery nor argumentative novelty cannot undo or compel reconsideration of a binding precedent." We humbly bow before the higher wisdom of Hon'ble Courts above and simply follow their words of wisdom. We are, therefore, not really inclined to even deal with learned counsel's analysis of "subsidiary reasons" which prevailed before their Lordships, as against the "real reasons" which were referred to in the assessment year 2000-01. Suffice to say that the issue before us is exactly the same as before Their Lordships, and that, in our considered view, there is no material change in facts and circumstances of the case, nor is there any material and additional evidence which affects binding nature of this judicial precedent.
The facts of the other assessment years, i.e. assessment years 1991-92 to 1994-95, are similar, and, as learned representatives fairly agree, outcome of all the assessment years will be the same. - Decided against assessee
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2016 (5) TMI 1327
Double disallowance u/s 10A - additional evidence filled - Held that:- All the documents are on the record of governmental authorities and are not new. These documents would enable the A.O. to take a just and correct decision on the claim of the assessee. These evidences go to the root of the matter. The assessee claims that the A.O. has erroneously made a double disallowance u/s 10A of the Act. This is ground no.4 of the assessee. It was mutually agreed that this ground against the alleged double disallowance should be set aside to the file of the A.O. for verification. As we are setting aside this claim for verification, we deem it fit and proper to direct the A.O. to consider all these evidences placed before us in the set aside proceedings.
In any event we are of the considered opinion that the additional evidences filed by the company under Rule 29 of the ITAT Rules should be admitted in the interest of justice. These evidences go to the root of the matter and the assessee has demonstrated that it was because of not being properly guided by a Counsel that it did not file the documents earlier. In this case anyhow the issue of deduction u/s 10’A’is being sent back to the A.O. for verification. Hence we are of the opinion that on these facts the A.O. has to consider the claim in all its aspects afresh, without being constrained by the order of the ITAT for the A.Y. 2002-03
Depreciation on the value of purchase of UPS, Printers, Batteries etc - Held that:- The assessee has claimed depreciation at the rate of 60% on thevalue of purchase of UPS, Printers, Batteries etc. The A.O. allowed only 15% depreciation. The Ld.CIT(A) has not adjudicated the issue. As we set aside the matter to the file of A.O., with the direction that the Jurisdictional High Court judgement on the issue be considered and the matter be disposed of in accordance with law.
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