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Showing 281 to 300 of 1677 Records
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2016 (9) TMI 1403
Scheme of Amalgamation - Held that:- Transferor company no.2 has 2 equity shareholders. Both the equity shareholders have given their consents/no objections in writing to the proposed Scheme. Their consents/ no objections have been placed on record. They have been examined and found in order. In view thereof, the requirement of convening the meeting of the equity shareholders of Transferor company no.2 to consider and, if thought fit, approve, with or without modification, the proposed Scheme is dispensed with.
Transferor company no.3 has one unsecured creditor who has given its consent/no objection in writing to the proposed Scheme. The consent/ no objection has been placed on record. It has been examined and found in order. In view thereof, the requirement of convening the meeting of the unsecured creditors of the Transferor company no.3 to consider and, if thought fit, approve, with or without modification, the proposed Scheme is dispensed with.
That the Transferee Company has 27 equity shareholders. All the equity shareholders have given their consents/no objections in writing to the proposed Scheme. Their consents/ no objections have been placed on record. They have been examined and found in order. In view thereof, the requirement of convening the meeting of the equity shareholders of the Transferee Company to consider and, if thought fit, approve, with or without modification, the proposed Scheme is dispensed with.
The Transferee Company has 14 secured creditors. All the secured creditors have given their consents/no objections in writing to the proposed Scheme. Their consents/no objections have been placed on record. They have been examined and found in order. In view thereof, the requirement of convening the meeting of the secured creditors of the Transferee Company to consider and, if thought fit, approve, with or without modification, the proposed Scheme is dispensed with.
The Transferee Company has 10 unsecured creditors. All the unsecured creditors have given their consents/no objections in writing to the proposed Scheme. Their consents/ no objections have been placed on record. They have been examined and found in order. In view thereof, the requirement of convening the meeting of the unsecured creditors of the Transferee Company to consider and, if thought fit, approve, with or without modification, the proposed Scheme is dispensed with.
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2016 (9) TMI 1402
CENVAT credit - inputs used in the manufacture of exempted goods - fuel - sub-rule (1) of Rule 57D of Central Excise Rules, 1994 and sub-rule (1) of Rule 6 of the Cenvat Credit Rules, 2001/2002 - Held that: - the issue raised is covered against the respondent and in favour of the appellant by the decision of the Apex Court in Commnr. of Central Excise Versus M/s. Gujarat Narmada Fertilizers Co. Ltd. [2009 (8) TMI 15 - SUPREME COURT] wherein it was held that Cenvat credit for duty paid on inputs used in the manufacture of exempted final products is not allowed.
Notwithstanding the fact that the appellant is entitled to succeed and Annexure A4 and A6 orders passed by the appellate authority and the Tribunal are liable to be set aside, the matter should go back to the original authority for the limited purpose of deciding the question whether utilizable input credit was available during the period from March, 2000 to November, 2002.
Appeal allowed in part and part matter on remand.
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2016 (9) TMI 1401
Maintainability of appeal - Monetary limit of amount involved in appeal - Held that: - As the amounts in dispute are less than prescribed, we dismiss these appeals under litigation policy, without entering into merits of the case - appeal dismissed.
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2016 (9) TMI 1400
Appeal filed in the name of a non-existent company - Held that:- When the assessee claims that M/s.Zenta Knowledge Services Private Limited was not in existence on the date of the order passed by the AO, TPO and DRP, it is not known how the assessee could file an appeal in the name of the nonexistent company. This Tribunal is of the considered opinion that the order passed by the AO against the nonexistent company on the date of the order cannot stand in the eye of law. Similarly an appeal filed by the nonexistent company also cannot be treated as a valid appeal. Moreover, the application said to be filed by the assessee to substitute the amalgamating company namely M/s.Accenture Services Pvt. Ltd. cannot be entertained at this stage. In other words, when an appeal is filed in the name of a nonexistent company, there cannot be any substitution during the pendency of the proceedings. In other words, the appellate proceedings initiated by a nonexistent company before this Tribunal cannot survive at all. Therefore, there is no question of substitution of any existent company in the place of a non-existent company.
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2016 (9) TMI 1399
Anonymous donation as provided U/s. 115(BBC) r/w Section 68 - Held that:- Questions No. 1 and 2 does not arise since Section 115 (BBC) itself was inserted in the Income Tax Act, 1961 w.e.f. 01.04.2007 and assessment year in question is 2007-08.
Addition u/s 68 on account of unexplained corpus donation - Held that:- It could not be disputed that same is covered by Supreme Court's judgment in Sargam Cinema Vs. Commissioner of Income Tax (2009 (10) TMI 569 - Supreme Court of India ) wherein similar question has been answered in favour of Assessee.
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2016 (9) TMI 1398
100% EOU - refund of service tax paid - N/N. 5/2006-ST dated 14.03.2006 - input services - works contract service - business auxiliary service - public relation management service - architect services - club or association services - testing service - packaging activity services - Held that: - with regard to input service relating to works contract, business auxiliary service, architect service and public relation management service, appellants are entitled to refund under Rule 5 - with regard to other three services, namely, club or association services, testing service, packaging activity services, appellants claim is dismissed being not pressed for as the amount are too meager - appeal allowed in part.
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2016 (9) TMI 1397
Issues Involved:
1. Transfer Pricing Adjustment on account of Advertising, Marketing, and Promotion (AMP) expenses.
2. Transfer Pricing Adjustment on account of intra-group services.
3. Consideration of tax credit.
4. Charging of interest under Sections 234B and 234C of the Income Tax Act.
Detailed Analysis:
1. Transfer Pricing Adjustment on account of AMP expenses:
The assessee contested the addition of Rs. 7,67,36,387 made by the Transfer Pricing Officer (TPO) on account of alleged excessive AMP expenses. The assessee argued that the AMP expenditure incurred in India, being payments made to third parties, cannot be characterized as an 'international transaction' under the provisions of the Income Tax Act. The TPO/AO/DRP failed to show the existence of an 'understanding' or 'arrangement' between the assessee and its Associated Enterprises (AEs) regarding AMP spend for brand promotion. The assessee contended that the AMP expenses were wholly and exclusively focused on generating domestic sales and not for creating marketing intangibles for the AEs. The Hon'ble Jurisdictional High Court, in the assessee's own case for the preceding assessment years, ruled that the Revenue could not show the existence of an international transaction involving AMP expenses between the assessee and its AE, thereby deciding the issue in favor of the assessee.
2. Transfer Pricing Adjustment on account of intra-group services:
The assessee also challenged the addition of Rs. 7,22,87,247 made by the TPO in respect of services availed from its AEs. The TPO determined the arm's length price for these intra-group services at nil, disregarding the detailed documentation and evidence submitted by the assessee. The assessee argued that the decision from whom to avail services is a commercial decision and cannot be questioned by the Revenue. The Hon'ble Jurisdictional High Court, in the assessee's own case, held that the recharacterization of the transaction involving its AE based on it not being for commercial expediency was beyond the powers of the TPO and contrary to legal precedents. Therefore, the issue was decided in favor of the assessee.
3. Consideration of tax credit:
The assessee raised an issue regarding the incorrect computation of the tax credit amount. The Tribunal directed the Assessing Officer (AO) to verify the records and allow the correct tax credit in accordance with the law.
4. Charging of interest under Sections 234B and 234C:
The assessee contended that the charging of interest under Sections 234B and 234C of the Income Tax Act was consequential in nature. The Tribunal acknowledged this contention and ordered accordingly.
Conclusion:
The appeal of the assessee was allowed, with the Tribunal setting aside the impugned order and deciding the issues in favor of the assessee by following the judgment of the Hon'ble Jurisdictional High Court in the assessee's own case for the preceding assessment years. The AO was directed to verify and allow the correct tax credit and to apply the consequential nature of interest under Sections 234B and 234C.
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2016 (9) TMI 1396
Rate of tax - purchase turnover - TNGST Act - Held that: - an identical question has been considered by a Division Bench of this Court in State of Tamil Nadu Vs. 1.Essar Inc. 2. Eagle Press [2014 (8) TMI 935 - MADRAS HIGH COURT] and by judgment rendered on 27.08.2014, the Division Bench dismissed the revision preferred, holding that no question of law much less any substantial questions of law would arise for consideration by this Court.
It is only proper for us to dismiss these tax cases also - tax cases dismissed.
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2016 (9) TMI 1395
TPO - selection of comparable - Held that:- The issue is restored to the file of the TPO to carry out a FAR analysis of the assessee after characterizing its activity on the basis of evidence on record and then proceed to selecting comparables as per Rules and in accordance with law. Needless to say that the assessee shall be afforded a reasonable opportunity of being heard.
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2016 (9) TMI 1394
Allowance of revenue expenditure - liability was not accepted - Held that:- Taking into consideration the fact initially the Corporation has not accepted the liability, therefore, the observations which are made by the Tribunal for the year 1991-92 were in the peculiar facts where the liability was not accepted but subsequently for the year 1992-93, the Corporation has accepted the liability which was shown in the books of account and in view of the matter additions made by the tribunal for the relevant year would not be applicable in the changed circumstances. Since, they accepted the liability, the resolution which is sought to be passed on 28.8.1992 was administrative formality but for the Income-tax purpose it is shown in the books of account mercantile system, therefore, though the point raised by Mr. Singhi is remained an academic issue but facts and law in mercantile system which is debited for the relevant year i.e. 1992-93.
On first point, the contentions raised by Mr. Singhi has a doubt but in view of the consideration by us the relevant year debited entry in the books of account for the year 1992-93, therefore, resolution is passed subsequently but since it was mercantile system for the year 1992-93, it will come into force.
The contention which has been raised by Mr. Singhi is required to be accepted, it can only be one time revenue expenditure and subsequent claim of the assessee will not be acceptable and if his claim is made and accepted, it will be for the department to recover the tax from the assessee. The issue is answered in favour of the assessee and against the Department for the revenue expenses of year 1992-93 only one time.
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2016 (9) TMI 1393
Penalty u/s 271(1)(c) - difference between the originally returned loss and the finally assessed loss was considered by the Assessing Officer to be ‘furnishing of inaccurate particulars of income’ - Held that:- No other income even till today and therefore there was no advantage to the assessee in claiming expenses and declare losses from year to year as the losses could be carried forward only for a limited number of years. In such a situation claiming the expenses in the year of completion would have been advantages to the assessee as in that case all the expenses could have been allowed. Considering the entirety of facts and circumstances, in our view, explanation of the assessee that the claim had been made under bonafide belief has to be accepted and it will not be appropriate to levy penalty under section 271(1)(c) in this case. See M/s. Chaitra Realty Ltd. Versus The DCIT [2011 (3) TMI 1746 - ITAT MUMBAI ] - Decided in favour of assessee.
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2016 (9) TMI 1392
TPO - comparability selection analysis - Held that:- The assessee was engaged in the provision of BPO/Data Processing Services to its AE and provided IT Enabled services relating to phone activation and local number portability to various clients for and on behalf of its parent company, thus companies functionally dissimlar with that of assessee need to be deselected from final list of comparability
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2016 (9) TMI 1391
TPA - selection of comparable companies - admission of fresh evidence - Held that:- Facts set out in the TP study Report on the basis of Distribution and Sales Agreement entered into by the assessee and its AE have admittedly not been considered and the characterization based on past precedent by the TPO has been followed in haste. Accordingly considering the judicial precedent and the material available on record, in the light of the submissions of the parties before the Bench, we deem it appropriate to admit the fresh evidences filed. The evidences have been considered to be relevant and crucial for determining the issues as it elaborates and supports the original claims of the tax payer. Accordingly following the judicial precedent the evidences are admitted. Since the evidences have to be considered for the first time again following the precedent these are remitted to the TPO with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.
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2016 (9) TMI 1390
Calculation of undisclosed income - profit estimation - Addition on account of loose soap bricks found unrecorded during the course of search - Held that:- Held that:- The view taken by the Tribunal is just and proper and no interference is called for as held that no credibility in the report of Shri S.C. Singhal. Further, the publication of Rajasthan Chamber of Commerce giving information about soap manufacturing is also distinguishable for the reasons that the quality of soap covered by the publication is different from the quality of soap manufactured by the assessee.
This is evident not only from the comparative sales prices between the component mix of the two. In so far as the report of Rajasthan Consultancy Organisation Ltd. Is concerned, we find that the organisation is sponsored by several Financial Institutions/Banks and all are public sector undertakings. Thus, this report is more credible/reliable. Moreover, the report is based on inspection of assessee’s place and actual physical verification of process and production. We do not accept the contention of the Id. D/R that this report should not be believed. However, considering the facts and said report, we hold that it would be fair and reasonable if the weight gain is adopted at 7.5% in the case of appellant. The AO has prepared the calculation of undisclosed income at page 19 of assessment order in a table taking the weight gain at 15%. We hereby direct the AO to recalculate the undisclosed income by adopting 7.5% in place of 15% in the said table - Decided in favour of the assessee
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2016 (9) TMI 1389
CENVAT credit - NCCD - whether Cenvat credit of NCCD paid which was subsequently refunded through specific notification will over-ride the provisions of Rule 3? - whether the provisions of Rule 12 will interfere with the admissibility of Cenvat, provided through Rule 3 of CCR, 2004?
Held that: - Rule 12 provides that Cenvat credit of duty paid on inputs, which is subsequently refunded through said Notification No. 32/99-C.E., is admissible as if no such refund had been granted to the manufacturer of inputs. The said Rule does not prohibit from any such similarly worded notification having similar provision in respect of some other component of input credit disentitled for such credit - Rule 3 of CCR, 2004 also has no such provision that Cenvat credit of NCCD paid if subsequently refunded through specific notification, is not entitled for availment.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1388
Refund claim - failure to produce documents relevant to evincing that credit had accumulated because output had been exported by M/s. Bombay Dyeing & Manufacturing Co. for whom appellants were producing ‘made-up articles’ out of fabrics supplied by the principal - Held that: - The order of the Tribunal is unequivocal and, by no stretch, can it be seen as a remand order. The original authority is merely expected to release the refund and not subject the appellant to the quasi-judicial process once again. The first appellate authority appears also to have raised fresh grounds for denying the refund in clear disregard of judicial discipline - Failure to sanction refund, whether out of obduracy or out of ignorance, does no credit to the officers concerned. In the normal course, imposing costs on the lower authorities would have been in order but the matter is not of the recent past. The present status of the officers concerned is not known and it is that, and that alone, which deters the imposition of costs.
The competent authority is directed to implement the order of the Tribunal - impugned order set aside - appeal allowed.
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2016 (9) TMI 1387
Penalty u/s 114(i) and 114(iii) of the CA - denial on DEPB Benefit - inflated FOB value - rejection of declared value - Held that: - the Revenue is willing to accept a FOB price up to 50% higher than the AR-4 price without market enquiry. In case of declared FOB value being more 150% it mandates a market enquiry - In the instant case no market enquiry has been conducted. In the absence of any market enquiry the declared FOB value cannot be rejected - Revenue has also not produced any evidence of contemporary exports while the appellants have produced the bank realization certificate for the entire declared FOB - penalties set aside - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1386
Winding up petition - HC has held that the appellant has no bona fide defence in the winding up petition and is unwilling and, therefore, unable to pay the admitted liability [2013 (5) TMI 959 - DELHI HIGH COURT] - Held that:- Permission to file additional documents and to amend the Special Leave Petition is granted.
We do not find any legal and valid ground for interference. The Special Leave Petition is dismissed. Whatever amount has been deposited by the petitioner shall be returned to it along with interest, if any.
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2016 (9) TMI 1385
Granting benefit of Sec.80P(2)(d) - Held that:- The interest income has been earned from short-term deposits with Co-operative Banks and Cooperative Societies and is fully exempted u/s 80P(2)(d). See Kerala State Co-operative Marketing Federation Ltd. & Ors. ETC. vs. Commissioner of Income Tax [1998 (5) TMI 6 - SUPREME Court]
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2016 (9) TMI 1384
Penalty levied u/s 271(1)(c) - estimation of income from the accommodation entries - Search and seizure under section 132(1) was conducted in the case of several companies, whose kingpin is identified as one Mr. Mukesh Choksi - Revenue had noted that for providing accommodation entries, the entries like the assessee, which were controlled by Mr. Mukesh Choksi were earning commission income - Held that:- In an identical facts and circumstances in the case of M/s. Kaycee Shares Broking Pvt. Ltd., the coordinate Bench deleted the penalty by following the decision in the case of M/s. Mihir Agencies Pvt. Ltd [2016 (7) TMI 1343 - ITAT MUMBAI]
Respectfully following the aforesaid decision, we delete the penalty levied under section 271(1)(c) in these cases, as the facts and circumstances being identical, as the commission income assessable in the hands of the assessee has been on estimate basis, no penalty is attracted on the additions/disallowances made on estimate basis. - Decided in favour of assessee.
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