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Showing 281 to 300 of 2028 Records
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2019 (5) TMI 1748
Addition u/s 68 - share application monies from bodies corporate who were independently assessed to tax - Whether when the share applicant companies have been taxed on the source of funds in their accounts then an addition can be made u/s 68 - HELD THAT:- Share applicant company have been assessed to tax u/s 143(3) of the Act and the source of money in question was brought to tax in their hands, we uphold the order of the ld. CIT(A) that no additions can be made in the case of the assessee company.
Coming to the argument arise to the Ld. D/R that the share premium received was excessive, we find that no query has been done by the Assessing Officer in this regard.
In the case on hand both the companies have proved their identity and have confirmed the transactions and have disclosed the sources and the revenue has assessed the same in their hands. - the facts of the present case are different from the facts on the case of Trenetra Commerce & Trade(P) Ltd [2016 (10) TMI 974 - CALCUTTA HIGH COURT] as relied upon by revenue - the decisions relied upon by the ld. Counsel for the assessee are applicable to the case on hand, as both the shareholder companies have been assessed tax u/s 143(3) of the Act and in this scrutiny assessment the source of fund had been brought to tax. Thus, we uphold the order of the ld. CIT(A) and dismiss the appeal of the revenue.
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2019 (5) TMI 1747
Rectification of mistake - error apparent on the face of record - review of order - applicability of rate of duty in respect of ongoing works contracts - HELD THAT:- The Hon’ble Supreme Court in DEVA METAL POWDERS PVT. LTD. VERSUS COMMISSIONER, TRADE TAX, UP. [2007 (12) TMI 221 - SUPREME COURT] has held that power to rectify mistake does not cover cases where a revision or review of the order is intended. A mistake which can be rectified is the one which is patent and is obvious and whose discovery is not dependent on argument or elaboration. Rectification of an order does not mean obliteration of order originally passed and its substitution by a new order. Where an error is far from self evident and is not confined to clerical or arithmetical mistake, it ceases to be an error apparent on records. What the appellant is seeking in the present case, is the reversal of the conclusion already arrived at by the Tribunal, which can be changed only by long drawn process of argument by both the sides. As such, it cannot be said that the error pointed out by the learned Advocate is an error apparent on the face of the records.
It was not a mistake on the part of the Bench but it was a mistake on the part of the litigant, for which there is no scope of any rectification provided under the Act - ROM Application rejected.
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2019 (5) TMI 1746
Rectification of mistake - modification of final order - denial of renewal of CHA licence - HELD THAT:- Regulation 41 of CESTAT (Procedure) Rules provides for passing of such further orders by this Tribunal, so as to give effect to its orders and also to promote the cause of justice. Further, Section 151 of Civil Procedure Code provides that a Court can pass any Order, in the interest of justice.
Accordingly, it is deemed just and proper to modify the Final Order No. C/A/52655/2018, dated 31 July, 2018 and allow the appeal by way of remand to the Commissioner of Customs (Preventive), Jodhpur, with the direction to reconsider the renewal of CHA licence, in accordance with law.
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2019 (5) TMI 1745
TP Adjustment - comparable selection - HELD THAT:- Assessee in its transfer pricing study for contract software development (CSD) services provided to the Associated Enterprises (AEs) determine the arm’s length price applying Transactional Net Margin Method (TNMM). The Operating Profit to Total Cost (OP/TC) was taken as profit level indicator (PLI) in the TNMM analysis thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Disallowance u/s 37(1) on account of prior period expenditure - HELD THAT:- Additional evidence was not considered the matter in that respect is remanded back to the Assessing Officer relating to the Corporate Tax issue. Ground are remanded back to the AO/Transfer Pricing Officer for fresh adjudication after taking into account the additional evidence.
Disallowance under Rule 8D of Income-tax Rules, 1962 read with section 14A - HELD THAT:- Since in the instant case, the assessee has not earned any exempt income during the year under consideration, no disallowance can be made under section 14A of the Act, respectfully following the decision of Hon’ble Delhi High Court in the case of Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] . The disallowance made by the lower authorities is accordingly deleted. The ground no. 16.2 of the appeal is accordingly allowed. Since the disallowance under section 14A has already been deleted
Interest expenses under section 36(1)(iii) - assessee failed to justify that the advance was for any commercial expediency or any business benefit has been accrued to the assessee - HELD THAT:- No addition on account imputed interest attributable to allegedly interest free advances is called for and that a nexus is required to exist and be proved between the borrowing and lending of funds.
Disallowance on account of contribution to labour welfare fund - HELD THAT:- Parties have agreed that identical question of disallowance was involved in immediately preceding assessment year 2012-13, which has been restored to the file of the learned Assessing Officer for deciding a fresh in accordance with law. Thus, respectfully following the finding of the Tribunal in [2017 (11) TMI 1725 - ITAT DELHI] while deciding the ground No. 14 and 15 of this appeal), we restore this issue to the file of the Ld. Assessing Officer for deciding afresh in accordance with law. The ground of the appeal is accordingly allowed for statistical purposes.
Allowing set off of brought forward business losses of the earlier years - HELD THAT:- We find that this is the issue of the examination of the claim of the assessee and verification of the updated position of the same by the Assessing Officer, thus, we feel it appropriate to restore this issue also to the file of the Assessing Officer for examining and verification of the claim of the set off of brought forward business losses and allow the same in accordance with law.
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2019 (5) TMI 1744
Rectification of Mistake - implementation of final order - grievance of the Revenue is that, they had filed written submissions on 13 December, 2018 after the conclusion of the hearing on 27 November, 2018 and their written submissions have not been considered and/or taken on record - HELD THAT:- The non-communication of the duty payable, by the respondent authority, so as to enable the appellant to seek release of their goods, amounts to interference in the process of delivery of justice. However, in view of the ROM application filed by Revenue, we give one more opportunity to the respondent authority, to communicate the duty payable to the applicant/appellant, within the three days of receipt of the copy of this order and upon of payment of the duty or balance duty by the appellant, shall release the goods within the next three days of communication of the duty having been paid.
The respondent Commissioner is directed to consider the same in terms of Notification 26/2009-Cus. (N.T.), dated 17 March, 2019 in respect of Handling of Cargo in Customs Areas Regulations, 2009 under clause 6(1)(l) of the said Notification - The respondent authority shall file the compliance report of this order on or before 25 June, 2019. Put up before the Bench on 27 June, 2019 for ascertaining the compliance of this order.
ROM dismissed.
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2019 (5) TMI 1743
Seizure of of around 200 birds/animals seized by the officers of respondent - Illegal or unauthorized possession or keeping, breeding or petting the exotic birds - HELD THAT:- Taking care of the nature of the dispute, the questions raised by the petitioner/Sanstha Karuna Sagar and the law under which the birds, pet and other animals have been seized by the Customs Officer, it is found proper to allow the interim custody of the birds, pets and other animals seized by the Customs Officer in this case, therefore, interim custody of the birds, pets and other animals seized by the Customs Officer be granted to the petitioner/Sanstha Karuna Sagar subject to his/its furnishing security bond of ₹ 1,00,000/- before the Chief Judicial Magistrate that petitioner/Sanstha Karuna Sagar shall abide by the direction of the Court and if directed, shall return all the birds/animals or their cost in lieu thereof. It is also directed that the petitioner/Sanstha Karuna Sagar shall take proper care including their vaccination, etc., of the birds/animals given in the custody of petitioner/Sanstha Karuna Sagar.
List the matter for admission on 24-6-2019.
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2019 (5) TMI 1742
Release of detained goods with conveyance - HELD THAT:- For release of the goods and the vehicle/s, the petitioner shall also submit before the concerned authority proof of payment of above referred amounts and also a copy of the solemn undertaking filed in this court as well as documents, namely, PAN card and Aadhar card / Election card for identification of the petitioner and address of the petitioner.
Stand over to 19th June, 2019.
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2019 (5) TMI 1741
TP Adjustment - comparable selection - functional dissimilarity - HELD THAT:- Assessee company is engaged in providing local logistics of freight forwarding services in India which includes cargo consultation services, international freight forwarding services, warehousing management services and other local logistic support services thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Government owned companies cannot be construed as a comparable.
Chargeability of interest u/s. 234A - HELD THAT:- AR stated that due date of filing return of income for the A.Y.2010-11 was extended by CBDT to 15th October 2010 for which he placed on record the order passed by the CBDT on 27/09/2010. The return of income was filed by the assessee on 15/10/2010 i.e., on the due date. Hence, no interest u/s.234A of the Act could be levied on the assessee. Accordingly, the ground raised by the assessee is allowed.
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2019 (5) TMI 1740
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - existence of default or not - HELD THAT:- The Corporate Debtor, despite notice has failed to make its appearance before this Tribunal and defend its cause against the petition as filed by the Financial Creditor claiming the defaulted amount. The records as filed by the petitioner clearly discloses that there is an existence of 'financial debt' and that the petitioner is a Financial Creditor taking into consideration the provisions of IBC, 2016 and of which the Corporate Debtor/respondent company has committed default - Under the circumstances, this Tribunal is of the view that the petition is required to be admitted and Corporate Insolvency Resolution Process (CIRP) to be initiated as against the Corporate Debtor.
Application admitted.
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2019 (5) TMI 1739
Classification of imported goods - consignment of “Old white and Coloured Cut Wiper Industrial Rags” - whether classified under ITC (HS) Heading No. 6310 10 90? - restricted for import or not - HELD THAT:- The words fine and penalty are often interchangeably used in common parlance. Further, due to clerical error in reflecting the amount of penalty in the column of fine in the appeal memo, cannot put the appellant in a more disadvantageous position, than he was in. Further, the power of enhancement of any fine, penalty, etc., is vested in the Commissioner (Appeals) only. This Tribunal does not have the power to increase the amount of fine, penalty, etc., in appeal filed by the assessee/importer. Thus by virtue of the order of this Tribunal reducing both the quantum of fine and penalty, the appellant cannot be put to more disadvantageous position as they have already re-exported the goods, on the date of the final order.
The appellant is entitled to refund of ₹ 1,00,000/- being the excess penalty paid, as the amount of penalty is reduced by this Tribunal - Accordingly the adjudicating authority is directed to grant the refund of ₹ 1,00,000/- with interest as per rules - Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1738
Levy of duty on 100% EOU - Clearance of goods who served from India Scheme License Holder, without payment of duty - case of the department is that there is no specific notification issued under Section 5A of Central Excise Act, 1944 - HELD THAT:- It is clear that the excise duty in the case of goods supplied from 100% EOU should be equivalent to the Customs duty leviable on the goods if imported into India - In the present case also since the recipient is Served From India Scheme License Holder, if the goods is imported, will be eligible for exemption. Accordingly, the exemption available for the imported goods subject to fulfilment of the condition, if any prescribed, the supplies made by 100% EOU will also enjoy the same exemption.
Appeal dismissed - decided against Revenue.
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2019 (5) TMI 1737
Principles of natural justice - non-speaking order - Compliance with the procedure prescribed in Section 17(6) of Customs Act, 1962 - change in classification - the original authority had failed to issue a speaking order envisaged in Section 17 of Customs Act, 1962 within the stipulated time - HELD THAT:- It is seen from the bill of entry that despite alteration of classification by the assessing officer, the description of the goods remained unaltered as ‘plastic toys’. Therefore, there can be no doubt that the goods in question were toys and intended for use as toys for amusement of infants. Had it been otherwise, a separate description should have been entered by the proper officer of Customs. In the absence of such, it is concluded that the miniature version of the goods are toys. The failure to issue a speaking order is also inconsistent with the statutory obligation that devolves on the assessing officer.
The direction of the first appellate authority to subject the assessment to proceedings under Section 17(6) of Customs Act, 1962 is not legal and proper for being tantamount to approval the breach of law by the assessing officer - Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1736
CIRP Process - withholding of supply of goods - recovery of arrears - whether during the period of corporate insolvency resolution process supply of goods paid for could be with held on the ground that the supplier has to recover arrears of a debt in respect of the pre-corporate insolvency period? - HELD THAT:- There is a basic distinction between the transaction & payments pertaining to period prior to CIR period & the transactions /payments which are required to be made during CIR period. The pre-CIR period payments are to be part of the claims made before the Resolution Professional whereas the post CIR period transactions are not treated on the same footing. The goods & services supplied during CIR period has to be fully paid in order to carry on the business of the Corporate Debtor as a going concern. In that connection the Resolution Professional and Committee of Creditors are fully empowered to place an order for supply of goods against the consideration for those goods.
In the present case it has not been disputed that the petition was admitted on 05.09.2017 and the Purchase Order was placed thereafter on 16.07.2018. Obviously, this was a transaction post admission of the petition and a payment for a sum of ₹ 34,47,075/- was made which was inclusive of packing charges, IGST, etc. - Clearly after accepting the amount it got the goods unloaded and defence now put forward is that in respect of pre-CIR period Corporate Debtor owed Non-Applicant-Respondent huge amount which must be paid and supply of goods in that garb had been withheld. Such a conduct emerges from the intention to violate law which is well settled that pre CIR period claims are on a different pedestal than the one made post CIR period. Therefore it is not possible to accept the defence that on account of debt in respect of pre-CIR period the goods could be detained.
The Respondent are directed to supply the goods and dispatch the same to the end user namely Sanjay Gandhi Thermal Power Project, Madhya Pradesh Power Generating Company Ltd. - application disposed off.
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2019 (5) TMI 1735
Admissibility of petition - Winding up of company - HELD THAT:- The affidavit of publication was filed on 16.08.2017, which is taken on record. Since, no one has put in appearance on behalf of the respondent-company to contest the petition. Hence, this Court is inclined to accept the averments made by the petitioner as true and correct that debt is admitted and is not being disputed by the respondent company. Therefore, the respondent company deserves to be wound up.
Petition disposed off.
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2019 (5) TMI 1734
Disallowance u/s. 14A - HELD THAT:- Similar issue on identical facts have been decided in favour of the assessee. We have also perused the judicial pronouncement in the case of CIT v Corrtech Energy (p) Ltd [2014 (3) TMI 856 - GUJARAT HIGH COURT] wherein it is held that in a case assessee did not make any claim for exemption of any income from payment of taxes, in that case disallowance u/s 14A could not be made.
It is crystal clear that the jurisdictional High Court has decided that to attract the provision of section 14A it is required that assessee should have earned an exempt income, if the assessee has not earned an exempt income and not claimed so in the return of income then the provision of section 14A are not applicable. We find that during the year under consideration the assessee company has not earned any exempt income and has not claimed any such exempt income in the return of income therefore as per our considered opinion the provision of section 14A are not applicable - we consider that the disallowance u/s. 14A r.w.s Rule 8D cannot be made as the assessee has not earned any exempt income. Accordingly, the appeal of the Revenue is dismissed.
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2019 (5) TMI 1733
Levy of entry tax - Section 9(4) of the Entry Tax - purchase of cement - HELD THAT:- There is no challenge raised to the said assessment before any of the appellate authorities. There is nothing on record to show that the revisionist had raised the said ground before any of the appellate authorities. There is also nothing on record to show that the assessment is perverse or illegal. Since the revisionist has not raised the said ground, which is factual in nature, before any of the appellate courts, hence, he cannot dispute the same at this stage.
Rectification of mistake - HELD THAT:- The learned Standing Counsel admits that there appears to be a calculation mistake and the said demand requires to be corrected - Both the revision are disposed of to the extent that on purchase of brick of ₹ 9,56,000/- the tax figure is corrected from ₹ 4,78,250/- to ₹ 47,825/-.
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2019 (5) TMI 1732
Bogus purchases - CIT-A applying the profit rate at 12.5% of the bogus purchase - HELD THAT:- We have considered the rival contentions and are of the view that Hon’ble Bombay High Court in the case of Mohammad Haji Adam & Co. and Ors. [2019 (2) TMI 1632 - BOMBAY HIGH COURT] has considered this issue and respectfully following the same, we direct the AO to restrict the profit rate only to the extent of differential percentage as declared on the bogus purchases and as declared on the regular purchases. Hence, we direct the AO accordingly. Appeal of assessee is partly allowed.
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2019 (5) TMI 1731
CENVAT credit - services provided by the appellant to the Mutual Fund - exempt service or not - HELD THAT:- Rule 2 (p) of Cenvat Credit Rules in sofar as it declares a taxable service, is not an output service, where service tax is payable under Reverse Charge Mechanism, by the recipient of service, is in direct conflict with the provisions of the Finance Act, 1994. The, established principle of law is that rules are framed to facilitate the implementation of the Act. The Rules cannot override the provisions of the Act.
It is declared that the said sub-clause (2) of Rule 2(p) of Cenvat Credit Rules to be ultra vires of the provisions of the Finance Act, 1994. Accordingly, show cause notice is not maintainable.
Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1730
Mis-declaration of imported goods - JBL iPod dock (JBL Mx150/30 speaker) - whether classified under section 77 of the heading no. 8518 2200 of the First Schedule to the Customs Tariff Act, 1975 or under classifiable under heading no. 8527 9100 of First Schedule to the Customs Tariff Act, 1975 - HELD THAT:- The impugned order is premised on the finding that the goods were declared as ‘speaker’ and that corresponding to such description is heading no. 8518 2200 of the First Schedule to Customs Tariff Act, 1975. Though the importer did declare the goods as ‘speaker’, we are unable to perceive that it could foster a wrong impression in the minds of examining officer. This was not an assessment under the risk management system but of physical ascertainment on ‘first check’ basis.
The finding that the expression ‘speaker’ does not apply at all to the function of an iPod dock, which in addition to other functions, is also a speaker, cannot be viewed as an attempt to mislead. The finding in the impugned order to the effect that there has been a mis-declaration is based on certain premises such as the regularity of imports, the value thereof and the relationship between the supplier and the importer.
Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1729
Revision u/s 263 - deduction u/s.80IB - HELD THAT:- There were no justification of Learned Pr.CIT to hold that assessee has claimed more than ordinary profit as exempt while making claim of deduction u/s.80IB(10) of the Income Tax Act. The supplementary partnership deed is already part of the record of the Revenue in preceding assessment years, therefore, there is no need to file copy of the same again and again in each year. Thus, the Assessing Officer correctly examined the issue in the light of the material available on record and in the light of judgment in ALIDHRA TAXSPIN ENGINEERS & 1 [2017 (5) TMI 1684 - GUJARAT HIGH COURT] . This issue is therefore decided in favour of the assessee.
Claim of deduction made u/s.80IB the assessee has explained that copy of Form No.10CCB was filed online along with complete details - HELD THAT:- In the present case, the Assessing Officer has taken one of the view possible based on facts and material available on record. The Learned Pr.CIT should not have taken a different view against the assessee. Unless the view taken by the Assessing Officer is unsustainable in Law. We rely upon the judgment of the Supreme Court in the case of CIT Vs. Max India Ltd. [2007 (11) TMI 12 - SUPREME COURT]
In the present case, all the records of the construction of the project were available to the Assessing Officer not only in assessment year under appeal but in preceding assessment years as well. Therefore, while framing the assessment, the Assessing Officer had access to all the records of the assessee and when Assessing Officer after perusing the record passed the assessment order in favour of the assessee granting deduction u/s.80IB of the Act, the same could not be treated as erroneous and prejudicial to the interest of the Revenue. It is well settled law that principle of consistency apply to the Income Tax proceedings. Therefore, on same set of facts, the Learned Pr.CIT should not have taken a different view in the matter. We, therefore do not find any error in the assessment order so as to revise u/s.263 of the Income Tax Act. There were no justification for Learned Pr.CIT to invoke to jurisdiction u/s.263, we accordingly set-aside the order u/s.263 of the Income Tax Act and restore the order of the Assessing Officer u/s.143(3) dated 18.03.2016. Appeal of the assessee is allowed.
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