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Showing 281 to 300 of 1831 Records

2017 (5) TMI 1556

Refund of SAD - rejection following para 3 of Circular No. 23/2010-Cus., dated 29 July, 2010, where it was clarified that when assessment is provisional, the date of payment of duty would be relevant for refund of SAD and ‘not the date of finalization of assessment’ as clarified in the earlier Circular No. 93/2008, dated 1 August, 2008 - Held that: - the Commissioner (Appeals) has rightly observed that there were divergent views by the Board in Circulars dated 1-8-2008 and 29-7-2010 - The period of dispute under the present case is covered by the Circular dated 1-8-2008 provides that the relevant date is from the date of finalization of assessment.
Refund allowed - appeal dismissed - decided against Revenue.
2017 (5) TMI 1555

Brought forward unabsorbed depreciation beyond 8 years - Held that:- As perused the judicial pronouncement of Hon’ble Gujarat High Court in the case of CIT vs. Gujarat Themis Biosyn Ltd. [2014 (5) TMI 194 - GUJARAT HIGH COURT] in which after considering the judgment given in General Motors India (P) Ltd [2012 (8) TMI 714 - GUJARAT HIGH COURT] it was held that carry forward of unabsorbed depreciation concerning impugned assessment years could be set off in subsequent years without any set time limit. - Decided against revenue
2017 (5) TMI 1554

Maintainability of appeal - tax effect in dispute in the captioned appeal - monetary limit - disallowance under section 14A restricted by CIT-A - Held that:- Our Co-ordinate Bench in the case of DCIT vs. M/s. Dome Bell Electronics India Ltd.[2016 (7) TMI 1372 - ITAT MUMBAI] has held that for the purposes of considering the amount of tax effect as envisaged in CBDT Circular dated 10/12/2015 what has to be considered is the amount of tax excluding the amount of surcharge and education cess.
Therefore, in this view of the matter, the tax effect in dispute in the captioned appeal is stated to be below the monetary limit of ₹ 10.00 lacs specified in the CBDT Circular dated 10/12/2015, the same is dismissed as not maintainable.
2017 (5) TMI 1553

Lease rental income received - assessable under the head income from house property or under the head income from business - Held that:- There is merit in the contentions of the assessee, as the assessee-company has been formed with the objective of acquiring and developing lands and buildings, realizing rent etc. Thus set aside the order passed by the learned CIT(A) and direct the Assessing Officer to assess the rental income under the head "income from business". See Chennai Properties and Investments Ltd. [2015 (5) TMI 46 - SUPREME COURT] - Decided in favour of assessee
2017 (5) TMI 1552

Deduction u/s 80IB - refund of excise duty - Held that:- It was not disputed by learned counsel for the parties that in view of the order of even date passed in Nexo Industries Private Limited Vs. Commissioner of Income Tax, Ludhiana (2017 (5) TMI 1404 - PUNJAB & HARYANA HIGH COURT) relating to claim for deduction under Section 80IB of the Act in respect of refund of excise duty where the matter has been remanded to the Assessing Officer to readjudicate after affording opportunity of hearing to the assessee, the issue in the present case relating to deduction under Section 80IB of the Act is to be sent back for fresh decision in accordance with law.
Deduction under Section 80HHC - claim be declined in pursuance to retrospective amendment in the Act relatable to option to be made amongst duty draw back and DEPB after the conclusion of an event - Held that:- The amendment was prospective and was invalid to the extent of being made retrospective. The Supreme Court considering the similar issue regarding constitutional validity of the provisions held the same to be prospective in nature in Commissioner of Income Tax and another vs. Avani Exports and others, (2015 (4) TMI 193 - SUPREME COURT). In the present case, the Tribunal also had declined the claim of the assessee under Section 80HHC of the Act by taking into consideration the amended provisions which have been held to be prospective - matter is referred back to the Assessing Officer for examining the matter afresh in respect of claim under Section 80HHC of the Act as well
2017 (5) TMI 1551

Revision u/s 263 - disallowance under section 14A - Held that:- We notice that the issue on the merits has been decided in favour of the assessee in State Bank of Patiala's case (2017 (5) TMI 843 - PUNJAB AND HARYANA HIGH COURT) as held amount of disallowance under section 14A was restricted to the amount of exempt income only and not at a higher figure. Once that was so, we do not consider it appropriate to discuss the scope of section 263 of the Act as the same has been rendered academic in view of the issue being answered in favour of the assessee on the merits.
2017 (5) TMI 1550

Addition on account of Gratuity payable - whether the gratuity fund of the assessee was unapproved and as per Section 40A(7), no provision can be made is allowable when such amount is kept in an unapproved fund? - Held that:- The impugned balance of gratuity payable had been created in the assessment year 2008-09 and the same had been added back in the computation for the said assessment year. The current balance was only a brought forward balance and no such provision had been created during the year under consideration which meant that no such debit had been effected in the profit and loss account for the year under consideration. Thus, the addition made by the Assessing Officer was correctly directed to be deleted. The Tribunal correctly dismissed the appeal filed by the revenue. - Decided in favour of assessee.
2017 (5) TMI 1549

Liability of tax - mosaic tile - works contract - Held that: - the issue is covered by the decision in the case of the decision in the case of Tamil Nadu Mosaic Manufacturers Association Vs. State of Tamil Nadu [1995 (2) TMI 402 - MADRAS HIGH COURT], where it was held that the amount so deductible would have to be determined in the light of the facts of a particular case on the basis of the materials produced by the contractor. Further, it was held that the value of the goods in execution of a works contract will therefore, have to be determined by taking into account the value of the entire works contract and deducting therefrom the charges towards labour and service.
The Revenue has not made out a case to revise the order passed by the Tribunal and the order passed by the Tribunal is confirmed - tax case revision dismissed.
2017 (5) TMI 1548

Taxability of works contract of Bleaching and dying - sales tax levied or not - Transfer of property in goods - Held that: - The Division Bench in the case of The State of Tamil Nadu rep. By the Deputy Commissioner Versus S. SM Processing Mills [2013 (10) TMI 486 - MADRAS HIGH COURT] held the fact that the chemicals used for bleaching is washed away in the process, by itself, would not be a justifiable ground to accept the case of the assessee that there was no transfer of property of any goods. The very fact of the yarn being bleached by a chemical process by applying the chemical will clearly point out that there is transfer of property of the chemicals, hence, bleaching contract attracts sales tax as in the case of dyeing contract, when the chemicals are purchased from outside the State.
Penalty - Held that: - penalty set aside on the ground that there was no suppression of sale in the turnover.
Revision allowed.
2017 (5) TMI 1547

Time limitation - section 62(6) of the Karnataka Value Added Tax Act, 2003 - Held that: - Merely because the right to appeal is subject to depositing part of the tax due, it cannot be said that the alternate remedy is an inefficacious one - In catena of cases, the honourable Supreme Court has already opined that right to file an appeal is statutory one. Even if the statute imposes certain burden upon the assessee, the assessee cannot claim that alternate remedy is not an efficacious one.
Petition dismissed.
2017 (5) TMI 1546

Development expenditure allowability - Held that:- We are restoring back the issue to the file of the AO and follow the direction of the Tribunal given for the AY 2006-07. First Ground stands partly allowed.
Technical services fee paid to various parties - Nature of expenditure - Held that:- Expenditure was of capital nature and the assessee should be allowed depreciation, as per rules.
Staff cost incurred as part of development projects - allowable revenue expenditure
Interest on IT refund - decided against assessee
Disallowance made u/s. 14A - Held that:- matter has to be restored back to the file of AO for fresh adjudication. There is no need to cite any authority to hold that the provisions of Rule 8D of the Rules would not be applicable for the year under appeal. The AO would decide the issue after hearing the assessee
Premium on redemption of debenture - Held that:- The issue stands covered against the AO by the judgment delivered in the case of Madras Industrial Investment Corporation (1997 (4) TMI 5 - SUPREME Court).
Expenditure on implementation of SAP ERP system - Held that:- Expenditure incurred on implementation of SAP ERP systems was revenue in nature. See Raychem RPG Ltd. (2011 (7) TMI 953 - Bombay High Court)
Licence fees paid to SDRC India Private Ltd - allowable revenue expenditure
Consultancy charges paid in connection with transport solution group - Held that:- We find that the assessee had made payment in connection with transport solution group for consultancy. The AO has not brought on record anything to prove that the assessee had acquired any IPR/tangible assets. It was plain and simple consultancy. Therefore, there was no justification for the FAA to hold that expenditure was of capital nature.
Depreciation on item sold as slum sale - Held that:- It is were purely consequential claim following the orders of the Tribunal for the above-mentioned two AY. We find that to give consequential effect to the order of the Tribunal, the FAA directed the AO to exclude the sale proceeds of assets from block of assets while calculating depreciation. We are of the opinion that there is no need to disturb the finding given by the FAA. GOA-5A stands dismissed.
2017 (5) TMI 1545

Demand of interest - Section 26 (4) (a) of the Chhattisgarh Vanijyik Kar Adhiniyam, 1994 - appellate authority claimed that merely on the ground of registration in the Board for Industrial and Financial Reconstruction (BIFR), interest liability cannot be waived - whether merely on account of registration of the petitioners in BIFR, the petitioners would be relieved of the interest liability which is statutory in nature under Section 26 (4) (a) of the Act of 1994 under the provisions of the BIFR?
Held that: - it is quite vivid that the petitioner industry has been registered with the BIFR on 29-5- 2002 whereas, the liability is prior to that and it has not been demonstrated that any scheme has been sanctioned including waiving of such an amount of interest liability by the scheme approved by the BIFR and it has not been established that the said interest amount has been included in the scheme approved by the BIFR - the petitioners' plea that merely because the petitioner industry has been declared as sick industry on 29-5- 2002, whereas the interest liability is prior to that, the petitioners having failed to demonstrate that it has included in the sanctioned scheme (if any) by the BIFR, are not entitled for the protection of Section 22 (1) of the SIC Act.
Since the amount in dispute i.e. the interest liability has not been demonstrated to be covered under any scheme sanctioned by the BIFR in favour of the petitioners and that amount has been included in such scheme; merely on account of registration / declaration of the petitioners industry as sick industry with the BIFR, it cannot be held that the petitioners are not liable to pay interest amount.
Petition dismissed - decided against petitioner.
2017 (5) TMI 1544

Levy of Central Excise Duty - Henna Powder and Henna Paste - Revenue classified under Chapter Heading 3304 as against the classification done by the appellants under Chapter 1404 of the Central Excise Tariff Act, 1985 - Held that: - N/N. 11/2017-CE (N.T.) dated 24.04.2017 issued by the Government of India, Ministry of Finance (Department of Revenue) under Section 11C of the Central Excise Act, 1944, held that the whole of duty of excise payable on Henna Powder and Paste under Section 3 ibid shall not be required to be paid during the period commencing from 1st day of January, 2007 to 1st day of March, 2013.
No classification has been furnished by the Central Government with regard to the goods in question i.e. whether it should be classified under Chapter 33 as claimed by the Department, as against the claim of the appellants under Chapter 14 ibid - classification issue set aside.
Appeal allowed - decided in favor of appellant.
2017 (5) TMI 1543

Jurisdiction of revisional authority - time limitation - suo motu revision under Section 49 (3) of the Chhattisgarh VAT Act.
Held that: - The Commissioner, who is a revisional authority, either may act suo motu or on the information received and he is empowered to pass order exercising, modifying, cancelling or directing fresh assessment, but he must pas that order within one calendar year from the date of initiation of the proceeding.
What is required and condition precedent for initiation of proceeding by invoking Section 49 (3) of the Chhattisgarh Value Added Tax, 2005, would be initiation of proceeding under Section 49 (3) of the Act, 2005 and initiation can be done only when the revisional authority applies its mind to the facts of the case of his own motion or on the information received. Once there is application of mind by the revisional authority for suo motu proceeding or on the basis of the information received and he decides to issue notice as contemplated in Rule 61 of the Chhattisgarh Valued Added Tax Rules, 2006, then the exercise of initiation is complete and initiation cannot be said to be made only when the notice is received under Rule 61 by the assessee - Once the proceeding is initiated by the revisional authority / Commissioner under Section 49 (3) of the Chhattisgarh VAT Act by applying its mind and he directs issuance of notice, then further duty imposed by the legislature under Section 49 (3) is to pass the order enhancing, modifying or cancelling the order of assessment within “one calendar year” from the date of initiation of the proceeding.
It is settled law that if the statutory provision as to time is a condition for exercise of a statutory power as distinguished from a duty, the prescription as to time will be construed as mandatory.
In the present case, it has already been held that the date of initiation of the proceeding would be the date on which the revisional authority applies its mind to the facts and circumstances of the case which in this case, the 14th of July, 2015 (in all the six writ petitions herein), the date on which the notice was issued to the petitioners after applying its mind. Thus, computing one calendar year as employed in Section 49 (3) of the Chhattisgarh VAT Act from the date of initiation of proceeding, one calendar year would end on 31st of December, 2016, whereas the impugned order was passed on 28-11-2016 prior to completion of one calendar year i.e 31-12-2016. -Thus, the notice in question would be found to be within the time stipulated under the above stated provision and it is held that the revisional authority has passed order under Section 49 (3) of the Chhattisgarh VAT Act on 28-11-2016 (in all the six writ petitions herein) within one calendar year from the date of initiation of the proceeding.
It cannot be said that the exercise of jurisdiction by the learned revisional authority under Section 49 (3) of the Chhattisgarh VAT Act is beyond jurisdiction and the order has not been passed within one calendar year.
Petition dismissed.
2017 (5) TMI 1542

Penalty leviable u/s 271(1)(c) - assessee furnished the return of income declaring total income after notice under section 153A - addition of cash investments in purchase of lands - Held that:- Additions made in the case of assessee i.e. on account of cash investments in purchase of lands in different years over and above the registered sale document and the professional receipts which were worked out on the basis of incriminating evidence found during the course of search. The additions have not been made on account of any money, bullion, jewellery or valuable article or thing found from the possession of assessee. Hence, exception clauses provided in Explanation 5 to section 271(1)(c) of the Act are not attracted in the present case. Various arguments raised by the learned Authorized Representative for the assessee are thus, dismissed.
In the case of assessee during the course of search, incriminating evidence was found as to the assessee having made cash investment for purchase of plot of land over and above declared value of investment and also undisclosed professional receipts which have not been declared by the assessee, which were admitted by the assessee as his additional income in his statement recorded under section 132(4) - The additions on account of unexplained payments for purchase of plots, which were over and above the investments declared by the assessee in his books of account has been confirmed in the hands of assessee and penalty for concealment under section 271(1)(c) of the Act is squarely leviable.
he second plea of the assessee that the suppressed professional income was estimated for the period for which no incriminating document was found does not stand where admittedly, the assessee himself had declared the additional income while filing the return of income under section 153A of the Act. Accordingly, the assessee is exigible to levy of penalty under secton 271(1)(c) of the Act. We hold so.
The only question which remains is the determination of penalty leviable which shall be calculated by the Assessing Officer in the respective years on the basis of final income added in the hands of assessee in each of the years. The original grounds of appeal raised by the assessee are thus, dismissed.
We find no merit in the plea of assessee where the additional income has been confirmed in the hands of assessee even though part of it was declared by the assessee in the return of income filed under section 153A of the Act but that does not exonerate the assessee from levy of penalty, wherein the assessee has failed to explain the manner in which the income was earned for such investments. Accordingly, we hold so. - Decided against assessee
2017 (5) TMI 1541

Penalty u/s 72(1) of KVAT Act - benefit of "Kara-samadhana Scheme of 2017" - Held that: - Clause 1.2 of the Scheme is crystal clear when it defines the terms "arrears of penalty and interest" means all kinds of penalties levied and all kinds of interest accrued under the provisions of the KST and CST Acts relating to all the assessment years ending on March 31, 2005 up to March 31, 2016. Obviously the said period will include the month of March 2015, the month in which there was a delay of 71 days in filing the returns by the petitioner. Thus, respondent No. 3 is not justified in claiming that the petitioner is not entitled to the benefit of the Scheme.
Respondent No. 3 is directed to accept the application filed by the petitioner, in case it is filed prior to the closing of the office on May 31, 2017 along with the payment of 10 per cent. of the penalty - petition disposed off.
2017 (5) TMI 1540

Classification of goods - whether watery coconut is a fruit covered by Entry 54 of Schedule I of the Chhattisgarh Commercial Tax Act, 1994? - Held that: - the petitioners have made an attempt to persuade this Court to hold that watery coconut is not to be taxed as oil seed specified in clause (vi) of Section 14 of the Central Sales Tax Act, 1956, but is a fruit within the meaning of Schedule I, Entry 54 of the Chhattisgarh Commercial Tax Act, 1994. The legislature in Schedule I only included the fruits other than dry fruits including pind khajur and coconut.
Coconut includes dry coconut as well as watery coconut as, watery coconut becomes dried coconut after some point of time - the petitioners' contention that watery coconut is a separate class and distinct commodity from coconut in absence of any specific classification by the legislature, cannot be accepted.
Watery coconut is not a fruit but is an oil seed within the meaning of clause (vi) of Section 14 of the Central Sales Tax Act, 1956, taxable at 4% as specified in item No.(viii) therein - petition dismissed - decided against petitioner.
2017 (5) TMI 1539

Depreciation on paper brands - Held that:- Special Bench of the Tribunal in the case of Amway India [2008 (2) TMI 454 - ITAT DELHI-C] has held that if the software is useable/used for more than 2 years, it is a capital expenditure and if it is for less than 2 years, it is revenue expenditure. We thus following the ratio laid down therein come to the conclusion that in the present case, since the assessee had purchased the user of brand name, trademark, logo for 3 years and similarly, the intellectual property right such as design, drawings, manufacturing processes and technical knowhow in respect of the products manufactured by unit was acquired, we hold that the expenditure incurred in this regard as valued by the approved valuer is capital expenditure on which the claimed depreciation was allowable - Decided in favour of assessee
Disallowance of depreciation on chemical recovery plant - Held that:- Appellant during the appellate proceeding submitted copy of the relevant records of the Central Excise registers and statutory returns filed with the Central Excise Department for the purpose of Cenvat credit as well as the Inward Gate Passes (IGP) showing receipt of incoming materials / items in the factory premises. Copies of the IGPs in respect of items contained in the invoices mentioned by the AO in the assessment order were also submitted.
AO vide his remand report has mentioned that he has duly verified the statutory Excise returns filed with the Central Excise Department alongwith Cenvat credit records wherein the said Cenvat credit pertaining the Chemical Recovery Plant (CRP) was entered and also its corresponding entries in the Excise records - RG 23 C Part II (Entry book of duty credit of capital goods) and tallied the same with the Central Excise records, original invoices and original IGPs. The original IGPs which are made at the time receipt of the material were also produced before the AO during the remand proceeding and were duly verified by him and tallied with the relevant invoices. The AO has not made any adverse comment whatsoever on merit. Thus addition made by the AO cannot be sustained on facts or in law.- Decided in favour of assessee
2017 (5) TMI 1538

Stay on demand - Held that:- Since, very long period has been elaspsed when the first stay was granted vide order dated 13th Feb. 2015, the outstanding demand cannot be kept stayed Therefore, the request of the Ld. Cousel for the assessee for extension of the stay is rejected. However, keeping in view, the facts that substantial amount has been deposited by the assessee. Further no financial stress is pointed out by the Ld. Counsel for the assessee. We deem it proper to grant installment for payment of the outstanding demands i.e. 10 lakhs per month starting from 1st August, 2017 in the meantime, the Revenue shall not take any coercive steps for recovering of demand.
2017 (5) TMI 1537

Corporate Insolvency Resolution Process - Held that:- It could never have been the intention of the legislature to consider a matter as serious as placing the Company in the hands of a Resolution professional in a mechanical way without due application of mind of the Adjudicative Authority. Should this have been the case, then every corporate entity, who has no assets in hand and has incurred great liabilities be it acquisition of cars or assets acquired and to personal use of Directors, would resort to a simple way of filing such an application to escape any recovery proceeding or even civil imprisonment on being declared Insolvent.
Taking a hyper technical view of the provisions would open the flood gates of people forming Companies, incurring expenses in the name of the company and then filing for Insolvency Resolution Process under the Code for enjoying a Moratorium. The object of the Code is not to provide for an escape route to a Company or its Directors who have incurred great debts and are unable to liquidate the liabilities after availing services and goods (stock in trade) from various suppliers, loans from banks, friends and family.