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Case Laws
Showing 281 to 300 of 925 Records
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2012 (6) TMI 653
Deduction u/s 80IA - Rental income - letting out of Industrial park buildings - Income from House Property or of business income – Held that:- when various amenities provided by an industrial park or software technology park is predominant in letting out of the housing unit, then the rental income is to be assessed under the head "profit and gains of business or profession" and in a case where letting out of building is predominant and the other amenities are merely incidental to such letting out then the rental income is to be assessed under the head "income from house property".
From the facts available on record, it is not clear that whether the letting out of the building was predominant in the transaction between the assessee and the tenants or whether predominant was of the industrial park comprised of various amenities and letting out of a building, as such park was merely incidental. Matter remanded to Assessing Officer for proper verification.
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2012 (6) TMI 652
Writ petitions – condonation of delay in selling the company shares - CBDT rejected the petitions filed by the petitioner on the ground that it has no power to condone the delay - Held that:- CBDT has sufficient powers under section 119(2)(b) of the Income-tax Act, 1961, to consider the desirability or expediency of granting relief under the Act, even after the expiry of the period of limitation provided under any specific provision and dispose of the matter on the merits in accordance with law. Writ petitions allowed.
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2012 (6) TMI 651
Block assessment – search - unaccounted gold was recovered – Held that:- Assessee's attempt to prove the source of the gold seized through the 27 goldsmiths miserably failed before the 3 authorities, namely the Assessment Officer, the first appellate authority as well as the Tribunal. No reason to interfere with the findings of the Tribunal on the additions made based on recovery of gold, the source of which could not be explained by the assessee.
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2012 (6) TMI 650
Transfer pricing - arm's length price (ALP) - selection of comparable - set-off of unabsorbed depreciation - held that:- If the findings of ld. CIT(A) are taken into consideration, which in our humble view remained uncontroverted, then the mean profit on the basis of 8 companies mentioned above are not applicable on the facts of the present case. Therefore, arm length price adopted by ld. TPO on international transactions were not correct.
On application under section 154, the ld. CIT(A) has held that an addition of ₹ 40 lacs has to be sustained which is on account of opening stock and by rectifying order under section 154 has reduced the deletion by ₹ 40 lacs or odd. The issue in respect to deletion reduced by ₹ 40 lacs or odd has been restored by us to the file of ld. CIT(A) to decide the same afresh after affording reasonable opportunity of being heard to the assessee as, as per order of ld. CIT(A), no opportunity was provided to the assessee. Therefore, we hold that the order of ld. CIT(A) deleting the addition of ₹ 1 crore or odd was correct and we confirm the order to that extent.
The AO disallowed depreciation for the reason that the same cannot be allowed to be set off of brought forward unabsorbed depreciation against current year's income from other sources. The ld. CIT(A) allowed the issue in favour of the assessee - brought forward unabsorbed depreciation can be allowed from the current year's income from other sources. - Decided in favor of assessee.
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2012 (6) TMI 649
Addition on account of change in the method of valuation of closing stock - valuation of TV serials – assessee, after first exploitation, has expended 90% and valued the closing stock @ 10%. After second exploitation, the assessee was valuing the TV serials @ nil - valuation is changed and the assessee has come to a conclusion that after the second exploitation, the valuation of the TV serial should be @ 3.33% - Held that:- assessee is continuing to follow the same recognized method of accounting - What is changed is the value that has to be assigned to a particular product i.e., a news programme or TV serials subsequent to exploitation of the same - there is no such undervaluation and the assessee had undertaken a bonafide exercise – the valuation of a news programmes done by the assessee subsequent to the first exploitation at 'nil' is a bonafide valuation. - In favor of assessee.
Disallowance made under section 14A – stated by the appellant with evidence that the borrowed money has not been utilized for the purpose of the investment in shraes - ACIT had failed to prove that there was nexus between the borrowed money and the investment – Held that:- Disallowance made under section 14A, deleted and the ground raised by the assessee is allowed.
Employees contribution of PF and employer’s contribution to PF - payments were made before the due date of filing the return – Held that:- payments are not only before the close of accounting financial year but also much before the due date for filing the return of income - in the case of employees’ contribution towards provident fund, the same should be allowed even though it is paid beyond the grace period, if the same is paid before the time allowed for filing the return of income – In favor of assessee.
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2012 (6) TMI 648
Penalty under section 271(1)(c) - explanation versus bona finde explanation versus proper disclosure - held that:- assessee claimed deduction for ₹ 33.63 crores in its Profit and loss account towards the amount paid to NOPL for use and occupation of the property. The claim was made on actual payment and the assessee did offer the explanation in support of the claim. If the claim had been not been genuine or the assessee had not offered any explanation, the case would have been covered in clause (A) of Expl. 1 itself. The Assessing Officer was not convinced with the claim and disallowed the deduction. It shows that the assessee offered an explanation about the claim of deduction but could not satisfy the Assessing Officer as to its allowability. First condition is that the assessee offers an explanation, which he is not able to substantiate or prove. It divulges that condition (i) is satisfied in this case.
Penalty under section 271(1)(c) - bona fide explanation - held that:- A claim shall lack bona fide if the facts are manufactured to give a colour of genuineness to the deduction; or if there is not even a far-flung possibility of forming a legally sustainable opinion about the deduction either because of the facts prevailing in a particular case or because no judicial precedent in favour of allowability of such deduction or if an issue is still virgin and had not received attention of the Courts so far, then simple and plain interpretation of the provision leaves no chance to a reasonably prudent person to form an opinion that such a deduction is allowable. These are only some of the instances in which a claim for deduction shall be short of bona fide. - by no standard the claim of the assessee for deduction of ₹ 33.63 crores can be categorized as not bona fide in any manner.
Penalty under section 271(1)(c) - proper disclosure - held that:- when the disclosure made by the assessee in its Profit and loss account and by way of Note in the Balance sheet is considered in the backdrop of ongoing litigation of the assessee with the Department for last three years on the same point, no hesitation in coming to the conclusion that the assessee made a proper disclosure of the facts material to this claim.
In accordance with the opinion of the majority of members, we hold that on the facts and circumstances of the case penalty u/s. 271(1)( c) of the Act is not leviable.
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2012 (6) TMI 647
Whether Tribunal was right in law in holding that taking over of the assets of the firm by a company and allotting shares to the partners of the firm as per their holding in the firm does not give rise to profit chargeable to capital gain under section 45(4) of the Act - partnership firm has been converted into company - no dissolution of the erstwhile firm and the company has been formed with the same partners as its shareholders – Held that:- section 45(4) is not attracted as the very first condition of transfer by way of distribution of capital assets is not satisfied - no capital gain under section 45(4) of the Act would be attracted in the present case – In favor of assessee
Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in allowing depreciation to the firm which stood dissolved on March 31, 1995 – Held that:- Assessee-respondent was entitled to claim depreciation on the assets for the period up to March 31, 1995, relating to the assessment year 1995-96- In favor of assessee
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2012 (6) TMI 646
Unexplained investment – during the course of survey an unexplained cash and unexplained stock have been discovered - appellant-assessee failed to submit cogent explanation – Held that:- ingredients of sections 69, 69A, 69B and 69C were satisfied in the present case because in all these provisions what is provided is that if an assessee is found to be the owner of any money, jewellery or any other valuable articles not recorded in the books of account and fails to offer any explanation about the nature and source thereof or in case any such explanation, if offered, is not satisfactory in the opinion of the Assessing Officer, then this may be deemed to be the income of the assessee for such financial year – In favor of Revenue
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2012 (6) TMI 645
TDS – payment to sub-contractors - assessee is an individual deriving income from hiring of vehicles - assessee contended in writing that the assessee is not liable to deduct TDS as there is no written or oral contract and that the assessee is not liable under section 194C as individual charges for private service vehicle will not exceed Rs. 20,000 – Held that:- material on record discloses that total amount paid towards transportation charges is roughly about Rs. 79,45,225. In the absence of any particulars, it cannot be said that there was no liability to deduct tax on that score – Assessee should have deduvted deducted TDS - authorities were justified in disallowing the said deduction and treating the said amount as the income of the assessee and claiming tax on that amount – In favor of Revenue
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2012 (6) TMI 644
Indo Sri Lanka Free Trade Agreement - Duty free clearances - Notification No.2/07-Cus dated 5.1.2007 - non-confirmation to the standard specified in the PFA ACT - Redemption fine of Rs.10 lakhs and penalty of Rs.5 lakh - Held that:- On being intimated about the discrepancies appellant immediately contacted foreign suppler who accepted the re-export of the same, thus the imposition of penalty upon the importer is not justified - reduce the redemption fine in the present case to Rs.3.5 lakhs considering subject matter of earlier proceedings in respect of the same appellant.
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2012 (6) TMI 643
Petition for Winding Up – outstanding repair, erection and commissioning charges of Gantry cranes – petitioner raised 3 invoices – respondent contested that they entrustment of work of repair and erection to a third party as the petitioner did not complete the work successfully and to the satisfaction - Held that:- Looking at the dates and events it emerges that the respondent has not brought on record any material to demonstrate that during the aforesaid period i.e. starting from 26.02.2008 when the first invoice was issued until 23.04.2010 when the last of the aforesaid communications was forwarded by the petitioner to it 30.08.2009 any grievance with regard to the petitioner's performance of contract work about any alleged delay in executing the work or unsatisfactory performance of work - though in the interregnum the respondent company issued work order in favour of the said agency on 20th October, 2009, the respondent company does not appear to have given any notice or any intimation to the petitioner about the said development as before assigning work to any other agency during operation of the contract, the principal/employer would intimate the contractor that because of its default or negligence or delay or such other reason it is compelled to award contract to other agency- Respondent’s reply to the statutory notice has not mentioned the details about the extent of work executed by the petitioner and the extent of the work left out/left incomplete - the grounds of defense raised by the respondent are "some ingenious mask invented to deprive a creditor (in present case the petitioner) of its bonafide claim" – the respondent has come out with an afterthought dispute evident from the fact that the respondent has availed CENVAT & VAT credit - arbitration clause in the LOI also would not act as a restriction or obstacle or prohibition in maintaining a winding up petition - direction to Respondent to deposit the invoice amount covered in 3 invoices raised by petitioner within 4 weeks time - in favour of petitioner.
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2012 (6) TMI 642
Amalgamation - application for recalling the order – appellants are majority shareholders – Applicants shareholders of respondent did not attend the meeting nor they received any notice of the meeting – Held that:- There is also no determination of non-service of the notices personally on the shareholders, advertisement in inconspicuous newspapers to prevent shareholders from attending the meetings, attendance by unauthorised persons, voting by unauthorised persons and the attendance register showing attendance by dead persons - since order sanctioning scheme and follow up action pursuant thereto, had become final in proceedings wherein some of present applicants were not only present but participated, same could not be agitated once again and, therefore, action of appellants was hit by principle of res judicata - even otherwise since all appellants had accepted scheme of amalgamation and companies against whom relief was sought for were no longer in existence, they could not be reverted back to their earlier position
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2012 (6) TMI 641
Revalidating the issuance of SCNs - Wrong Classification of goods – Revenue allegation that the goods are classifiable under Heading 8537.00 and denial of benefit of Notification No.52/93-CE dt. 28.2.93 - the Commissioner quantified the demand by classifying the goods under Heading 8537 to be adopted only from 14.7.94 and would have only prospective effect - Held that:- As there was no suppression of facts the proviso to Section 11A(1) cannot be invoked for demand of duty - Revenue s prayer for confirmation of entire duty by invoking the extended period cannot be accepted as the earlier order of the Tribunal had categorically held that extended period is not available to the Revenue and demand should be restricted to six months period - Having held that the earlier order, in clear terms, restricts the demand to a period of 6 months, we need not examine the intention of the Members writing the judgement - Revenue's appeal is allowed and the matter is remanded for quantification of duty for a period of 6 months in respect of each SCNs issued to the respondents.
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2012 (6) TMI 640
Demand of duty on scrap - scrap arising in the course of cutting the new plates, pipes etc. for being replaced in the place of corroded portion of the plant, pipe, vessel - Held that:- The only work undertaken with respect to the new metal plates and pipes is process of cutting them to the required size - the Asst. Commissioner erred in assuming that the remnants in the process of cutting has arisen due to mechanical working of metals - The Asst. commissioner has not given any reason as to why he considered such scrap as arising from mechanical working as there can be no mechanical working when the new plates and pipes are cut and used as a replacement for the worn out and corroded portion of the vessels, pipes etc. - the scrap has arisen on account of cutting of new sheets, plates, pipes for the purpose of replacing worn out pipes and it cannot be said that the respondents have manufactured the scrap so as to pay duty on the same – in favour of assessee.
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2012 (6) TMI 639
Entitlement to Cenvat credit on catering service received - Held that:- Since Revenue has not placed a copy of show cause notice while filing its appeal and once the authority is satisfied that the invoices placed by learned Counsel relates to discharge of obligation under Factories Act, there shall not be difficulty to resolve the dispute - in view of the ratio laid down in COMMR. OF C. EX., AHMEDABAD-I Versus FERROMATIK MILACRON INDIA LTD [2010 (4) TMI 649 (HC)]the service tax paid on outdoor catering services by the canteen located in the respondent’s manufacturing premises has to be considered as an input service relating to business and that CENVAT credit is admissible the appellant deserves hearing - matter is remanded to the Adjudicating Authority to consider the issue in accordance with law laid down .
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2012 (6) TMI 638
Paper transaction to claim Cenvat credit - Held that:- Mode of transportation claimed by the appellants was false as the goods in question claimed to have been transported and the quantities transported shows that the same ranges from 7.180 M.T. to 20.190 M.T as carrying such a huge quantity by motor cycle or scooter is inconceivable - as no offender be allowed to retain undue benefit made at the cost of public first appellate order is reversed and the adjudication order is restored and all the five appeals are allowed in favour of Revenue - in favour of revenue.
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2012 (6) TMI 637
Imposing of penalty u/s 76 - assessee contested that entire amount of service tax liability, interest thereof stands paid by the appellant before the issuance of show cause notice - Held that:- As decided in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Versus M/s ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD [2011 (9) TMI 114 (HC)]that Sub-Sec.(3) of Sec. 73 of the Finance Act, 1994 categorically states that after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under Sub-Sec.(1) in respect of the amount so paid - Therefore, authorities have no authority to initiate proceedings for recovery of penalty u/s 76 - in favour of assessee.
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2012 (6) TMI 636
Denial of liability to pay service tax under "Mandap Keeper's Services" or under the 'Club or Association Services" by assessee, i.e.Club - The petitioner is giving service to its members but the club is formed on the principle of mutuality - Held that:- As considered by the Hon'ble Supreme Court in the case of Joint Commercial Tax Officer, Harbour Division, II-Madras v. The Young Men's Indian Association[1970 (2) TMI 87 (SC)]that in spite of the definition contained in Section 2(n)of the Madras General Sales Tax Act, 1959 read with Explanation I of the Act if there is no transfer of property from one to another there is no sale which would be exigible to tax. If the club even though a distinct legal entity is only acting as an agent for its members in matter of supply of various preparations to them no sale would be involved as the element of transfer would be completely absent. This position has been rightly accepted even in the previous decision of this Court.
Members' clubs to which category the clubs in the present case belong cannot be made subject to the provisions of the Licensing Acts concerning sale because the members are joint owners of all the club property including the excisable liquor. The supply of liquor to a member at a fixed price by the club cannot be regarded to be a sale - Where such a club has all the characteristics of a members' club consistent with its incorporation, where every member is a shareholder and every shareholder is a member, no licence need to be taken out if liquor is supplied only to the members.
sale and service are different but the basic feature common in both transaction requires existence of the two parties - in view of the mutuality and in view of the activities of the club, if club provides any service to its members may be in any form including as mandap keeper, then it is not a service by one to another as foundational facts of existence of two legal entities in such transaction is missing - in favour of assessee.
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2012 (6) TMI 635
Refund of unutilized CENVAT credit availed on input services - original authority rejected the refund claims in toto holding that the services which were claimed by the parties to be input services did not have any nexus with the export of output services - Board's Circular dated 19.1.2010 required those who claimed refunds of the kind involved in these cases, to produce Chartered Accountant's certificate in support of such claim – Held that:- Original authorities will have to re-examine the question whether the refund-claimants have been able to establish a nexus between the input services and the output services - parties need to be given a reasonable opportunity of producing Chartered Accountant's certificates and the original authorities should examine the same in the light of the Board's Circular - orders are set aside and all these appeals are allowed by way of remand
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2012 (6) TMI 634
Input services - Recovery of excess of CENVAT credit availed - Held that:- Even if sub-rule (3) prescribes a limit of 20% for availment of service tax credit, sub-rule (5) provides for whole of the service tax credit in respect of the specified input services - sub-rule (5) prevails over sub-rules (1),(2) and (3) - in favour of assessee.
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