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Showing 281 to 300 of 1739 Records
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2017 (8) TMI 1462
Liability to pay demurrage charges - whether relief of non-payment of charges should have been restricted till 15-1-2015? - Held that:- The proceedings were pending before the High Court from 15-1-2015 till 14-10-2015. It is during the pendency of these proceedings and in the absence of any interim order passed by the High Court allowing the appellant to clear the goods, it was not possible for the appellant to clear those goods. In these circumstances, we are of the opinion that the High Court should have held that no charges towards any rent or demurrage are payable till the date of the judgment of the High Court instead of 15-1-2015.
The ends of justice would be subserved by directing that no demurrage charges or rent is payable on the aforesaid goods by the appellant to respondent No. 4. At the same time, respondent No. 4 would be entitled to auction those goods and whatever money is received as a result of that auction, can be appropriated by respondent No. 4.
Appeal disposed off.
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2017 (8) TMI 1461
Reference being not made to the DVO u/s 50C - computation of capital gains - Held that:- As held by Hon’ble Calcutta High Court in the case of Sunil Kumar Agarwal vs. CIT [2014 (6) TMI 13 - CALCUTTA HIGH COURT], even in the absence of specific request from the assessee, the Assessing Officer has to give an option to the assessee to follow the course provided by law under section 50C(2). Therefore, uphold the grievance of the assessee, and remit the matter to the file of the Assessing Officer for adjudication de novo after referring the matter to the DVO under section 50C(2) - Appeal allowed for statistical purposes.
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2017 (8) TMI 1460
Maintainability of Company Petition - Petitioners do not hold any shares in the company and there are serious latches and delay in filing the said Petition and further the Petitioners have not approached the Court with clean hands - Held that:- The doctrine of 'in pari delicto', which means when both the parties are equally at fault, one party cannot take advantage against the other. So, the Respondents cannot contend that there is lot of delay in filing the Company Petition and seeks the dismissal of the same on the ground of delay in filing. The contention of the Applicant/Respondents that the Respondent/Petitioners have not come to Court with clean hands cannot be accepted at this stage of the Petition as there no grounds to say so. As of now, this Bench had not seen any of the contentions raised in the maintainability application having been substantiated with any sound proof or support.
Having gone through the entire record and the reluctance on the part of the Applicant/Respondent of the maintainability application in producing the necessary supportive documents would necessitate this Bench to strike down the application of maintainability as it does not substantiate any of the contention raised therein. Before we part with, it is hereby placed on record that notwithstanding the fact that the application arising the question of maintainability is dismissed but no prejudice shall be caused to the either side by any of the observations made herein above on the merits of the main Petition yet to be decided - maintainability Application is dismissed.
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2017 (8) TMI 1459
Validity of Assessment order for the year 2012- 2013 - TNVAT Act - revision of turnover based on an information obtained from the official website - taxes at the compounded rate u/s 3(4) of the Act denied - Held that:- The respondent has failed to appreciate the purpose and purport of the order of remand passed by this Court, in the earlier writ petition - The direction to furnish all relevant materials is with the specific purpose that the petitioner should have sufficient opportunity to rebut the same. This direction was issued by the Court, taking into consideration the specific stand of the petitioner that they have not effected any interstate purchases.
Petition allowed.
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2017 (8) TMI 1458
TDS u/s 194C - payment of license fee to the West Bengal State Electricity Regulatory Commission - non deduction of tds - Held that:- The view of the Tribunal in respect of power factor rebate and power interruption charges are essentially findings on fact, upon appreciation of certain technical aspects. It has been held by the Tribunal that power factor rebate is not paid to anybody. It has also been found by the Tribunal that both these charges are adjusted against electricity consumption bills payable by high voltage industrial consumers. The factual basis of these findings have not been contested by the Revenue. We do not find such finding to be perverse.
As regards charges paid to Regional Load Despatch Centre (RLDC), the assessee’s stand is that these are in the nature of fees paid to a statutory authority under the Electricity Act, 2003 and as such payment on these heads also cannot constitute fees contemplated in the aforesaid two provisions of the Act. The other head in respect of which expense has been disallowed is payment of license fee in terms of the Electricity Act, 2003 and the 2005 Rules. On this finding also, we do not think the Revenue has made out a case for interference with the Tribunal’s decision. - Decided against revenue
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2017 (8) TMI 1457
TDS u/s 195 - Addition on account of non-deduction of tax u/s.40(a)(ia) - Held that:- D.R. could not controvert the findings of the CIT(A) that IOCL is a public sector undertaking on which the assessee is critically dependent. The billing disputes have been settled by mutual discussion and reconciliation as per minutes of joint reconciliation of accounts drawn on 17.2,2010, a copy of which has been filed as per which further net amount of ₹ 26,54,639.51 was determined payable by the appellant to the IOCL. The price differential is mainly due to change of rate of FO with retrospective effect and difference in invoice quantity and receipt quantity. Therefore, the amount of ₹ 26,54,640/- has been crystallized in the FY 2009-10 relevant to the impugned assessment year. Hence, we confirm the order of the CIT(A) and dismiss the grounds of the revenue.
Disallowance under school expenses - Whether amount incurred during the year for the school (DAV school) does not fall under the ambit of provisions of section 40A(9) - Held that:- The issue at hand is squarely covered by the decision of Hon’ble Kerala High Court in the case of N.Radhakrishnan [1999 (10) TMI 33 - KERALA HIGH COURT]. Respectfully following the same, we set aside the orders of lower authorities and delete the disallowance of ₹ 1,74,85,684/- made u/s.40A(9) of the Act and allow the ground of appeal of the assessee.
Disallowing the claim of post-retirement medical benefit - fresh claim acceptance - Held that:- CIT(A) held that the issue of claim of post retirement medical benefit has not been discussed by the Assessing Officer in the assessment order. There is no evidence to support the contention that the fresh claim was made during the assessment proceedings, which has not been made in the return of income. In view of the same, the CIT(A) held that the claim of ₹ 1,37,82,763/- on account of post retirement medical benefit cannot be entertained at the appellate stage and dismissed the ground of appeal of the assessee. Before us also, ld AR also failed to produce any evidence to show that fresh claim was made during the assessment proceedings for deduction
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2017 (8) TMI 1456
Penalty u/s 271(1)(c) - defective notice - non striking inappropriate words in the notices - Held that:- In the instant case, the Assessing Officer has not struck off the inappropriate words in the notices issued u/s 274 r.w.s. 271, therefore, the notice does not specify under which limb of section 271(1)(c) the penalty proceedings has been initiated i.e. whether for concealment of income or for furnishing of inaccurate particulars of income. Therefore, the penalty proceedings become bad in law. We, therefore, set-aside the order of the ld. CIT(A) and direct the Assessing Officer to cancel the penalty so levied. The appeal filed by the assessee is accordingly allowed.
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2017 (8) TMI 1455
Late filing fee under section 234E - delay in filing of the return and, accordingly, demand notices were issued u/s. 200A - Held that:- Only after 01.06.2015, the AO can levy fee under section 234E of the Act while processing the statement under section 200A of the Act and not before. Therefore, respectfully relying the order of the Hon'ble Karnataka High Court in Fatehraj Singhvi v. Union of India [2016 (9) TMI 964 - KARNATAKA HIGH COURT] the impugned intimation of the lower authorities levying fee under section 234E of the Act cannot be sustained in law. Accordingly the intimation under section 200A as confirmed by the Ld. CIT(A) in so far as levy of fee under section 234E is set aside and fee levied u/s 243E in all the appeals are ordered to be deleted. - decided in favour of assessee
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2017 (8) TMI 1454
Power of ITAT to recall and re-hear the case by way of rectification order u/s 254(2) - Misc. application filed by assessee - Applications were heard on 13th May, 2016, but the Tribunal pronounced the order on these Miscellaneous Applications after six months and more on 18th November, 2016, accepting the error pointed out by the assessee - The result is that the initial order dated 6th September, 2013, is recalled and set aside and all appeals which were decided by the said order would have to be re-heard and re-decided. This petition of the Revenue seeks to challenge such an order.
Held that:- We are surprised that the initial order is passed on 6th September, 2013. Aggrieved and dissatisfied with that order, the assessee had brought the appeals to this Court. In the meanwhile, they had also filed applications for rectification of the mistakes under section 254(2) of the Income Tax Act, 1961. Those applications were pending and were decided during the course of the appeals. The assessees having succeeded therein, withdrew their substantive appeals before this Court. We have seen a good number of years, namely four years, going by and neither sub-serving the larger interest of the public or the Revenue.
In the light of the above, we dismiss these petitions.
We clarify that the appeals of the Revenue which stand restored to file of the Tribunal shall be heard as expeditiously as possible and should be disposed of within a period of six months from the date of receipt of a copy of this order.
Decided against the revenue.
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2017 (8) TMI 1453
Non-reversal of Central Excise Duty on obsolete goods - Whether the appellant has to be visited with equivalent amount of penalty under the provisions of Rule 15(2) read CENVAT Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944 or otherwise?
Held that:- There is no dispute as to the fact that the goods are considered as obsolete by the appellant and provided for write off in the books of accounts, does not mean that the goods were removed from the place of manufacture. It is only of accounting entry which would indicate the true and correct picture of the financial status of the company to their shareholders - Non-reversal of central excise duty involved in the obsolute goods would in no way be considered as an act done with intend to evade payment of duty and that also by alleging suppression, so as to attract penalty - equivalent amount of penalty imposed under Rule 15(2) of the CCR, 2004 is unsustainable and liable to be set aside - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1452
Constitutional validity and legality of the provisions of Sections 2(u), 3, 4, 5, 8, 13, 24, 45 and 50 of the Prevention of Money-Laundering Act, 2002 (PMLA Act) - it is indeed expedient to consider why it was essential to have legislative intervention to prevent money-laundering, a worldwide phenomenon, which if left unchecked can destabilize financial systems and jeopardize national security.
Held that:- The object of the Act as already pointed out in elaborate discussions under Section 2(u), is to abort the process of money-laundering at its inception. Thus, the wisdom of the Legislature cannot be questioned, when such inclusion has been made, as there may be circumstances where the predicate offence and the offence under Section 3 are intertwined.
Section 24 clearly indicates that it is a rebuttable presumption, affording the Petitioner sufficient opportunity of establishing that the property in his possession or the value of any such property, has been acquired by legal means and is not the result of any illegal methods, which would comprise of an offence under Section 3. The insertion of this provision obviously takes us back to the object of the Act, being to prevent money-laundering, which itself comprises of a series of illegal acts. Once the offender is able to explain the source of the property, which is in his possession, then the prosecution is required to discharge its burden.
Infact by shifting the onus to the accused, it affords him an opportunity of establishing his innocence and clarifying to the prosecution the source of his property and therefore, contains a safeguard for the accused. Consequently, it cannot be said that the provision is unconstitutional. Thus, when considering the Acts the object has to be given primary importance and the provision thereof cannot be said to be ultra vires when the end goal is to be achieved. Section 24 unequivocally extends an opportunity to the offender to establish the source of his property, which if legitimate can be fully justified by the Petitioner.
Under Section 45(ii) of the Act discretion vests with the Court to enlarge the Petitioner on bail or to refuse such bail - Evidence “beyond reasonable doubt” is not envisaged at this stage. In my considered opinion, the limitations are not unfounded or arbitrary. The Legislature has evidently used the words “reasonable grounds for believing”, in Section 45(1)(ii) to enable the Court dealing with the bail, to justifiably hold, as to whether there is indeed a genuine case against the accused and whether the prosecution is able to produce prima facie evidence in support of the charge and the evidence so furnished if unrebutted could lead to a conviction. Apprehension of repetition of the crime is another consideration in refusing bail, as also the antecedents of an accused person. - There is evidently no infirmity in the provision and cannot be said to offend Articles 14 and 21 of the Constitution of India.
In conclusion, bearing in mind the object of the Act and the detailed discussions which have ensued hereinabove, being bereft of merit, this Writ Petition stands dismissed. - Decided against the petitioner.
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2017 (8) TMI 1451
Suo-moto revision - Reopening of assessment - reopening of assessment on the ground of short levy of Tax on Aluminium Composite Panel, which was liable to be taxed under residuary entry @ 12.5% - Is the order passed by the Dy. Commissioner of Commercial Tax Appeal amenable to suo-motu revision by the Additional Commercial Commissioner under Section 47 (2) of the M.P. VAT Act?
Held that:- Bare perusal of provisions of the act would reveal that Section 3 deals with appointment of the Commissioner and officers to assist him as taxing authority. Prior to M.P. VAT (Amendment) Act, 2006, clause (b) of Section 3 dealt with the Dy. Commissioner of Commercial Tax (Appeal) as one of the Officer to assist the Commissioner, but after the amendment, it ceased to exist in Section 3 of the Act - Simultaneously, Section 3A was inserted in the Statute to provide for appointment of Appellate Authority by the State Government not below the rank of Deputy Commissioner of Commercial Tax.
Thus, the order passed by the Dy. Commissioner of Commercial Tax (Appeal) is final and is not amenable to suo-motu revisional powers conferred by Section 47 of the Act.
Petition allowed - decided in favor of petitioner.
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2017 (8) TMI 1450
Speculation loss - loss from the share transactions - explanation to section 73 - whether the income of the assessee under the head income from other sources is higher than the income under the head business income or not. The assessee claims that the income under the head other sources is higher than the income under the head business income and accordingly they do not fall within the purview of the explanation to section 73.
Held that:- assessee has been showing its income from share trading in all the years beginning from financial years 2005-06 to 2009-10. However, the income from consultancy for ₹7.20 lakh was shown only in the year under consideration. Similarly, the interest income has not been shown every year by the assessee.
In view of the above, it can be concluded that principal business of the assessee is of share trading and granting of loan and therefore it is outside the purview of provision of Explanation to Section 73 of the Act. Now, it is well settled that the amendment under the Explanation to Section 73 of the Act for treating the principal business of share trading under exception category with retrospective effect in nature.
The principal business of the assessee is of share trading. Therefore, the impugned loss cannot be treated as speculative by virtue of the provision of Explanation to Section 73 of the Act. - Decided in favor of assessee.
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2017 (8) TMI 1449
Disallowance u/s 14A read with general principles of section 37(1) of the Income Tax Act, 1961 - expenditure expended wholly and exclusively for the purposes of business or profession - Held that:- the issue is squarely covered by the decision of Bombay High Court in Godrej & Boyce MFG. Co. Ltd. vs. Deputy Commissioner of Income Tax & anr. [2010 (8) TMI 77 - BOMBAY HIGH COURT] - the issues are answered in favour of the assessee and against the department.
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2017 (8) TMI 1448
Disallowance under section 40(a)(ia) - Held that:- we have by detailed order passed in [2017 (10) TMI 484 - GUJARAT HIGH COURT] and connected appeals rejected the Revenue’s appeals. Without recording separate reasons, therefore, this tax appeal is also dismissed. - Decided against the revenue.
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2017 (8) TMI 1447
High Court GAUHATI HIGH COURT Citation: 2017 (8) TMI 1447 - GAUHATI HIGH COURT. Revenue appealed against Income Tax Appellate Tribunal's decision to allow embezzlement loss of Rs. 2,81,38,206 in assessment year 2011-12. Tribunal's decision upheld regarding disallowance under section 40(a)(ia) for failure to deduct tax at source on fees paid to IRCTC. Addition made by Assessing Officer on unexplained expenditure of Rs. 12,09,023 deleted by Tribunal based on facts.
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2017 (8) TMI 1446
Writ petitions under Article 32 of the Constitution suggest a mining scandal of enormous proportions and one involving megabucks. Lessees in the districts of Keonjhar, Sundergarh and Mayurbhanj in Odisha have rapaciously mined iron ore and manganese ore, apparently destroyed the environment and forests and perhaps caused untold misery to the tribals in the area. However, to be fair to the lessees, they did the detail steps taken to ameliorate the hardships of the tribals, but it appears to us that their contribution is perhaps not more than a drop in the ocean – also too little, too late.
We would like to hear Jindal Steel and Power Limited, Sarda Mines Private Limited, Rungta Group of Companies and Essel Mining and Industries Limited on the applications filed by them. For this purpose list the matter again after two weeks so that a convenient date of hearing can be fixed.
The amounts determined as due from all the mining lease holders should be deposited by them on or before 31st December, 2017. Subject to and only after compliance with statutory requirements and full payment of compensation and other dues, the mining lease holders can re-start their mining operations.
We would also like to hear the eight concerned mining lease holders on the question of appointing an appropriate Committee in respect of the applicability of Rule 37 of the Mineral Concession Rules to them.
We would also like to hear learned counsel for all the parties with regard to setting up of an Expert Committee presided over by a retired judge of this Court to identify the lapses that have occurred over the years that have enabled rampant illegal and unlawful mining in Odisha and to recommend preventive measures not only to the State of Odisha but generally to all other States where mining activities are proceeding on a large scale. For the present, we pass no direction with regard to any investigation by the CBI.
We direct the Union of India to have a fresh look at the National Mineral Policy, 2008 which is almost a decade old, particularly with regard to conservation and mineral development. The exercise should be completed by 31st December, 2017.
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2017 (8) TMI 1445
Valuation - Clearing and Forwarding Agents - inclusion of reimbursable expenses incurred on behalf of the principal on actual basis - time limitation - Held that:- It is well settled principle that any reimbursements of expenses incurred on behalf of the client/principal on actual basis as per the pre-arrangement is not to be included in the taxable value - the direction for verifying such thing is proper.
Time limitation - Held that:- The notice issued on 17.10.2005 will cover period from 01.04.2004 without the invocation of extended period. The ST-3 return for half year ending 30.09.2004 is required to be filed on or before 25.10.2004, the notice has been issued within one year of such relevant date - while calculating the tax liability, if any, the original authority should consider this legal position.
Appeal allowed in part.
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2017 (8) TMI 1444
Bail application - Clandestine manufacture - Pan Masala - it was alleged that applicant is a master mind and has made best attempt to secure financial benefit without paying excise duty while he was preparing pan Masala pouch as well as Jarda pouch bearing the Brand "Poorvai" which is corroborated from the computer records, hence the applicant is liable to be prosecuted for commission of offence under section 9 A and section 9AA of Central Excise Act 1944.
Held that:- It transpires that the applicant evaded the excise duty by procuring the raw material and also not accounting the clandestine and surreptitious production in the statutory books. The clandestinely manufactured goods were supplied in the market without cover of lawful documents. The applicant is the master mind and beneficiary of entire scheme of duty evasion. The applicant had knowingly and willingly made distance in order to create a veil and to escape legal liabilities cast upon him. According to section 9AA of Central Excise Act, every person who at the time, the offence was committed was in charge shall be severally and jointly liable for being prosecuted for the aforesaid offence. There is nothing in the Act that the prosecution depends upon the result of the adjudication. Two proceedings are quite independent. The finding in one is not conclusive in the other proceedings. Both can go on simultaneously and finding in the adjudication proceedings is not binding on the criminal proceedings. A prosecution can be launched even after the completion of adjudication. Since the offence under section 9 (1A) Excise Act is cognizable and non-bailable and is grievous in nature, hence this Court does not deem it congruous to interfere in such matters.
The economic offences are undoubtedly more grave in nature than those offences which are non-cognizable.
Bail cannot be granted and bail application is dismissed.
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2017 (8) TMI 1443
Claim of deduction against writing off the stock - perishable product - The aforesaid stock relates to business activity which has been discontinued long time back. The assessee has not been able to show as to why obsolete stock was carried forward from earlier years. - As per established accounting principle, the stock has to be valued at cost or net realizable value, whichever is less. Even otherwise it is a trading stock and any trading loss is an allowable expenditure. We do not find any infirmity in the action of assessee in writing off of obsolete stock which was earlier carried forward in the books by the assessee - Claim allowed - Decided in favor of assessee.
Claim of depreciation and interest expenditure on flat - Assessee claimed that, though, the said flat was purchased in the name of one of the Directors of the assessee company, but was in fact used for business purposes. - Held that:- the issue raised by the assessee in ground No. 3 of the appeal has been adjudicated by the Tribunal in assessee‟s own case [2016 (4) TMI 857 - ITAT PUNE] in assessment year 2007-08. - Decided in favor of assessee.
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