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Case Laws
Showing 281 to 300 of 1585 Records
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2015 (8) TMI 1313
Demand of interest – section 75 of the Finance Act, 1994 – CENVAT credit – GTA services – manufacture of printing ink, adhesive etc. - section 68(2) of the Finance Act 1994 read with rule 2(1)(d)(v) of the Service Tax Rules 1994 – reverse charge mechanism – utilization of CENVAT credit for payment under reverse charge – subsequent to rejection, payment made in cash – Held that: - Rule 3(4)(e) of Cenvat Credit Rules, 2004 the cenvat credit may be utilized for payment of service tax on any output service. Since goods transport agency (GTA) is an output service as per the un-amended provisions of Rules, the cenvat credit utilized by the appellant for payment of GTA service tax is in conformity with the Service Tax Rules, 1994 as held in the case 2010 (5) TMI 608 - PUNJAB AND HARYANA HIGH COURT. The payment of service tax through PLA is not the determining factor in the present case for computation of the period of delay, as because, the payment of service tax has been made within the stipulated time frame by debiting the cenvat account – appeal disposed off – decided in favor of appellant.
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2015 (8) TMI 1312
Profit on sale of shares - shares held for less than thirty days - business income or capital grains - Held that:- The intention alone is the material factor to determine whether a particular share is held as investment or trading portfolio. In order to find out the intention of the parties, one is to look at the treatment given in the books of account and the conduct of the assessee that apart, the courts have evolved several tests including whether the scrips are bought from the borrowed funds and the period for which the shares are held and the frequency of the trading etc. Applying these principles to the facts of the case, it is very clear that the respondent assessee company from the beginning held the shares under investment portfolio the same is treated as investments in the books of account and where the shares are held for trading purposes the profit arising there on is offered to taxed under the business head.
Disallowance of interest - Held that:- From the order of CIT(A), it is very clear that the CIT(A) had made a bifurcation between the investment portfolio and trading portfolio and therefore, the same is in line with the provisions of sec. 14A read with Rule 8D of the Income Tax Rules, 1962. Thus, we do not find any reason to interfere with the reasoning given by the CIT(A). Accordingly, the second ground raised by the Revenue is dismissed.
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2015 (8) TMI 1311
Refund claim of SAD - two refund claims filed by assessee in the month of July,2013 - CBEC Circular no. 6/2008-CUSTOMS dated 28.04.2008 states that assessee is required to file one refund claim in one calendar month - invoice showing SAD not having the corresponding invoices accompanied with the Bill of Entry which evidence the payment of VAT by the appellant - Held that: - to remand matter back to the adjudicating authority to verify the fact whether appellant has paid VAT / CST at the time of clearance of the goods by them for which they have paid SAD at the time of importation of the goods - appeal disposed off.
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2015 (8) TMI 1310
Cenvat credit of Service tax - invoice dated 31.10.2008 issued by M/s INTERARCH Building Products (P) Ltd. - invoices pertains to the period prior to obtaining the Central Excise registration i.e. on 14.11.2008 - Held that:- for taking of cenvat credit on the input service, the requirement of the said Rule is that the input service has to be received by the manufacturer of final product on or after the 10th day of September 2004. On perusal of the Cenvat Credit Rules, 2004, it reveals that no restrictions have been imposed providing for not taking the cenvat credit prior to obtaining the central excise registration. Therefore, in absence of any specific prohibitions contained in the Cenvat Statue to that effect, cenvat credit cannot be denied to the appellant.
With regard to the observations of the lower authorities that no transitional provisions having been provided in respect of input services in Rule 3(2) of the Cenvat Credit Rules, 2004, and thus, taking of credit is not in conformity with the said Rules, I am of the view that the said sub-rule has no application in the case of capital goods or service tax for the reason that the goods or services are not in relation to the raw material or input that is specifically used for manufacture of the exempted/ dutiable final product. Therefore, in absence of specific mention of input service in the said Rule, Cenvat Credit of Service Tax paid on the taxable service is permissible under Rule 3(1) of the said rules. - Decided in favour of assessee
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2015 (8) TMI 1309
Condonation of delay - appeal - a partner left the business after receiving impugned order - no evidence produced regarding the other partner left the business before filing the appeal - Held that: - It is well settled law that condonation of delay in filing of appeal is discretionary power. It cannot be exercised arbitrarily. It is to be looked into as to whether the Applicant was diligent and sincere in filing the appeal. It is also to be noted here that the Applicant had placed the facts in detail. Here, Applicant had not placed any material in support of their contention that the other partner has left the business. It is also not disclosed as to how it came to the knowledge in detail - application of condonation of delay in filing appeal rejected - appeal dismissed.
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2015 (8) TMI 1308
Waiver of pre-deposit - appellate authority granted interim stay of 60% of the tax during the pendency of the appeal rest is to be deposited by assessee in pursuance of the assessment/penalty order. - Held that:- Keeping in view the settled position of law on the point in issue and from the perusal of the appellate order passed by the appellate authority/appellate tribunal thereby passing the impugned orders, the said authorities have not indicated its mind so far as the existence of the prima facie case on merits on appeal as well as the financial condition which are to be considered by them (appellate authority/tribunal) while passing the impugned orders on an application for stay pending in the first appeal. The said mandatory condition is to be taken into consideration while disposing of an application for interim relief moved by the assessee by the appellate authority as well as tribunal during the pendency of appeal.
For the foregoing reasons, the present revision is disposed of with a direction to the first appellate authority to decide the appeal filed by the assessee expeditiously say within a period of three months from the date of receiving a certified copy of this order.
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2015 (8) TMI 1307
Rejection of application for settlement - Section 24B of the M.P. VAT Act - no opportunity was granted to the petitioner. - discretion in refusing the adjournment after more than 5-6 opportunities have been granted to him - Held that:- on the ground of adjournment one or the other discretion in refusing the adjournment in the facts and circumstances of the case showing that the Authority has acted arbitrary or illegally refusing to grant one more opportunity had led that the Competent Authority shall be free to proceed the matter by refusing any further opportunity to the petitioner; therefore, it cannot be said that the Authority acted arbitrary or unreasonably. Accordingly, we see no reasons.
Even, if the respondent were entitled to proceed exparte than they should have adverted all this prima facie that a specific case of multiplicity considered the transaction as indicated. The Authority should evaluate and have verified the entries made therein as to whether the settlement should be permitted or that a part a single entry repeated multiple times. Than the amount be inflated as the error shown in para 7-8 the calculation made by the Authority shall considered the same. Keeping in view the facts and circumstances of the case, the matter was granted to proceed on 26.08.2014 but while deciding the question of permanent settlement, they were not considered or accepted or rejected by showing that the application have not been examined for settlement.
In view of the above, the fact that the question of permanent settlement, it is to be remanded back to the Assessing Officer as to whether the reconsideration of petitioner is infact existing or not for examination to allow this petition and to quash the impugned; therefore, the impugned order is quashed and the matter is remanded back to the Assessing Officer.
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2015 (8) TMI 1306
Project development expenditure - Disallowance of claim for deduction u/s 37(1) in respect of revenue expenditure - Held that:- Identical issue in assessee’s own case was decided in favour of the assessee in the two earlier AY.s., that similar issue had arisen in the matter of one of the sister concerns namely Reliance Footprint Ltd. [2013 (12) TMI 161 - ITAT MUMBAI], that the Tribunal had allowed the claim made by the assessee. Looking to the nature of expenses it can be very well held that these are routine expenses incurred during the course of operation of the business. - Decided in favour of assessee
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2015 (8) TMI 1305
Reopening of assessment - bogus purchases - information received by the Assessing Officer from the office of Director General of Central Excise, Intelligence that the assessee had wrongly availed CENVAT credit - Held that:- It is quite evident that the assessee had made purchases from the open market and shown the same to be made from Haryana Steel & Alloys Pvt. Ltd. just to avail the CENVAT Credit. Therefore, no addition on account of total purchases is warranted. The assessee having already offered the CENVAT Credit so availed as its income. Further the Department having accepted the fact that the only issue remaining in the said factual back ground is that of CENVAT Credit, having not proposed any addition on account of bogus purchases in subsequent years, no different stand can be taken in the relevant assessment year.
The addition made by the learned CIT (Appeals) by enhancing the addition on bogus purchases was not justified. May be books are rejected need not necessarily to make addition. We rely on the judgment of Hon'ble Rajasthan High Court in the case of Gotan Lime Khanij Udyog,[2001 (7) TMI 19 - RAJASTHAN High Court ]. However, in the factual background of the case, it would not be appropriate for Revenue to challenge the position which it has been sustaining in the other year on identical facts. The addition made by the authorities below in sum of ₹ 12,23,560/- on account of CANVAT credit, therefore, stands as not challenged. However, the orders of authorities below are set aside to delete entire addition on account of GP and bogus purchases. - Decided in favour of assessee.
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2015 (8) TMI 1304
Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - rights of secured creditor - Held that:- While sub-section (2) of section 14 permits the CMM/DM to take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be necessary, sub-section (4) of section 13 or any other sub- section thereof does not authorise a secured creditor to barge into the secured asset for taking its possession by force. I am reminded of the maxim expressio unius est exclusio alterius, meaning whatever has not been included has by implication been excluded. From this is derived the subsidiary rule that an expressly laid down mode of doing something necessarily prohibits doing of that thing in any other manner. It is thus plain and clear that a secured creditor is not authorised to exert force while taking possession and that is left only to the CMM/DM, as the case may be, in the sound exercise of his discretion under sub-section (2) of section 14.
If on a request made by the authorised officer to vacate the secured asset the borrower or any person in occupation thereof does not voluntarily surrender possession, the secured creditor would have no other option but to seek the assistance of the CMM/DM under section 14 in the manner prescribed.
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2015 (8) TMI 1303
Waiver of pre-deposit - financial hardship - Held that:- A careful perusal of the impugned orders passed from time to time reveal that the aspect of financial stringency and the capacity of the appellant to make predeposit for a sum of ₹ 10.00 lakhs against the tax liability of ₹ 11,70,317/-, has not been really adverted to and considered by the Tribunal. However, the Tribunal was considerate enough to have extended grace period from to time. Whatever may be the situation seemed to be as on 17.04.2013 when an order of pre-deposit was made, sufficient time was granted to the appellant to comply with the same. Considering the fact that the appeal is a valuable right as provided under the statute, and in view of the submission made by the learned counsel for the appellant that if little more time is granted, they would comply with the condition of pre-deposit, and in the totality of the facts and circumstances of the case, we are inclined to dispose of the appeals with the directions - Decided partly in favor of appellant.
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2015 (8) TMI 1302
Liability of son (agent) working on behalf of his mother having power of attorney - Recovery of tax dues - Held that:- The covenants in the power of attorney, Annexure-R1 to the statement of objections, makes it amply clear that petitioner is liable and responsible for the business transaction s including payment of tax, receiving notices of proceeding under the enactments, etc., for and on behalf of his mother Putta Thayamma, the proprietrix of M/s JSS Enterprises. Thus M/s JSS Enterprises having become liable to pay arrears of tax, the Assessing Authority justifiably exercised jurisdiction under Section 14 of the Act for recovery of the said arrears of tax. The notice issued to the State Bank of Mysore, where, admittedly petitioner holds current account, though allegedly as the proprietor of ‘Preethi Wines’, nevertheless the Bank having responded to the notice of demand and paid ₹ 2,23,288/- being the balance as arrears of tax from out of the said account, no fault can be found with the notice.
In the circumstances, the grievance of the petitioner, apparently, is over the Bank having deducted the said sum of ₹ 2,23,288/- from out of the current account of the petitioner as proprietor of Preethi Wines, made over the payment to the Assessing Authority. That grievance is not the subject matter of this petition and therefore, petitioner is not entitled to the relief sought for. - Decided against the petitioner.
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2015 (8) TMI 1301
Determination of VAT tax liability - suppression of sale - The petitioner is running a small petty Beeda Stall in the name and style of “Central Beeda Stall”. - reasonable opportunity of hearing not provided - Held that:- Writ Petition is allowed - Demand notices quashed - The petitioner is directed to file his objections to the impugned notices, dated 12.04.2015, within a period of three weeks from the date of receipt of a copy of this order and on receipt of the same, the respondent shall proceed further in the matter, by affording an opportunity to the petitioner and thereafter pass appropriate orders, on merits and in accordance with law, within a period of four weeks, thereafter. Till the orders are passed by the respondent on the said objections, there shall be an order of status-quo as on date, to be maintained by the parties.
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2015 (8) TMI 1300
Inter-state sale or not - It is stated that the movement of goods took place between Kerala and Tamil Nadu based on the purchase of materials from Tamil Nadu. Therefore they requested the 2nd respondent not to deduct VAT while making payment to them. Therefore they sought a clarification from the authority in terms of Section 94 of the Kerala VAT Act - authority directed to consider the clarification application within a period of two months from the date of receipt of a copy of this judgment.
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2015 (8) TMI 1299
The Karnataka High Court rejected the petition as the petitioner has the option to file an appeal under Section 62 of the Karnataka Value Added Tax Act, 2003, regarding orders passed by the 3rd respondent.
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2015 (8) TMI 1298
Restoration of appeal before tribunal - earlier tribunal dismissed the appeal for non compliance of stay order - Tribunal rejected the restoration petitions stating that they were filed beyond the prescribed period of limitation. Hence, these writ petitions. - Held that:- Learned counsel for the petitioner except reiterating the averments and pleading procedural delays, could not support his case with a case law whereunder this Court can entertain a writ petition which is filed at a belated stage with an abnormal delay that too questioning a default order as against which restoration petitions also came to be rejected due to delay in filing.
We are of the view that a remedy that is not provided under the law or the Statute which confers powers on the concerned authorities, this Court cannot confer powers that are not there or provided for under the Statute, and therefore, we do not see any ground to entertain the writ petitions. - Decided against the petitioner.
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2015 (8) TMI 1297
Condonation of delay - Delay in filing an appeal before the Commissioner (appeals) - Valuation - related parties - Rule 2(2) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - inclusion of expenditure of royalty amount, technical know how fee and licence fee on account of the goods manufactured in India to the value of goods imported. - Held that:- According to the learned counsel for the petitioner, no show cause notice as well as personal hearing was given. Hence, this Court is of the view that on violation of principles of natural justice, the order is to be defended before the appellate authority only, on merits. - the petitioner is permitted to represent the appeal papers before the appellate authority within a period of two weeks from the date of receipt of a copy of this order. - Decided in favor of appellant.
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2015 (8) TMI 1296
Revision u/s 263 - tds non deductibility - inadequate v/s no inquiry - whether the arrangement between Appellant and the pre-paid distributors during the subject FY was on a 'principal to agent' basis and the Appellant had duly deducted tax u/s 194H of the Act on the commission paid to the pre-paid distributors? - Held that:- It would be a case of splitting of hair if we try to distinguish between the expression 'verified' used in the notice and 'dealt with' used in the revisionary order. The basic meaning of both the expressions is same and means that issue has not been examined by the Assessing Officer.
No doubt it has been mentioned that it was noticed that person responsible of the assessee has not deducted the tax at source from the payments made towards commission/incentive on prepaid cards u/s 194H of the Act. It is not clear whether this observation is made with reference to the survey proceedings or proceedings u/s 201. However, the careful reading of the whole order clearly shows that no question has been asked with respect to non-deduction of tax on commission/incentive on prepaid cards. No reply seems to have been given. Assuming for arguments sake, that it is not necessary to mention everything in the order but nothing has been field before us to show that relevant question on this issue was asked by the Assessing Officer and replied were also given. Therefore, it is a clear case of non-enquiry in respect of this issue. The Ld. CIT-DR has correctly submitted that Assessing Officer has merely set up a preamble on this issue in the first para but has not made any enquiry in this respect. In this regard we may mention that mere non enquiry would also render a particular order passed by lower authority as erroneous and prejudicial to the interest of Revenue.
No doubt that Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court ) has held that if Assessing Officer has taken a particular view which is legally possible then such order cannot be held to be erroneous and prejudicial to the interest of Revenue. However, as we have seen above, this is a case of non-enquiry and, therefore, it cannot be said that Assessing Officer has taken a particular view.. In view of the above discussion, we uphold the revisionary order passed u/s 263 by Ld. Commissioner. - Decided against assessee
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2015 (8) TMI 1295
Seizure of gold - the Petitioner/Power of Attorney of the Principal approached the officer of Customs in Airport for the execution of the order showing his willingness to pay the fine and penalty. However, the said order was not executed. Being aggrieved by the inaction, though a letter was given to the Commissioner of Customs (Airport), Chennai dated 15.07.2015, there is no response. Hence, the Petitioner is before this Court.
Admittedly, as against the orders passed by the Appellate Authority, the Department moved the Revisional Authority by filing revisions and the Revisional Authority also issued notice to the Petitioners, fixing the date of hearing under Section 129 (DD) of the Customs Act, 1962.
Petitioners are directed to appear and place all their submissions so as to substantiate their case and on upon hearing them, the Revisional Authority is directed to dispose of the revisions, after following the due process of law.
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2015 (8) TMI 1294
Eligibility of claim of deduction u/s 36(1)(viia) - Held that:- . On a reference to the provisions of section 36(1)(viia) of the Act, it is very much clear that for claiming deduction under the said provision, assessee has to create a provision for bad and doubtful debts in its books of account. Therefore, contention of ld. AR that there is no need for making any provision for bad and doubtful debts for claiming deduction u/s 36(1)(viia) is not acceptable
We are inclined to remit the matter back to the file of AO for deciding afresh after verifying the fact whether assessee has created any provision for bad and doubtful debts in its books of account in terms with section 36(1)(viia). In case it is found that assessee has made a provision for bad and doubtful debts in its books of account, then, deduction u/s 36(1)(viia) can be allowed to assessee. In case it is found that assessee has not made any provision for bad and doubtful debts in its books of account, then, assessee would not be eligible for any deduction u/s 36(1)(viia) in view of the ratio laid down by the Hon’ble P&H High Court in case of State Bank of Patiala Vs. CIT (2004 (5) TMI 12 - PUNJAB AND HARYANA High Court ). With the aforesaid observations, we remit the issue back to the file of AO for deciding afresh - Decided in favour of revenue for statistical purposes.
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