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Showing 301 to 320 of 1515 Records
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2016 (1) TMI 1218
Validity of assessment order - natural justice - Held that: - the assessment order quashed on the ground that the respondent did not consider the documents presented by the petitioner - The respondents without issuing any notice to the petitioner has enhanced substantially the gross turnover. The amount enhanced in the gross turnover is at ₹ 1,05,36,86,782/. For such huge enhancement, SCN must have been given.
It ought to have been kept in mind by the respondents authorities that typographical error of assessee cannot be encashed by the State respondents. At least, a notice ought to have been issued by the respondents giving opportunity to the petitioner to explain the error committed by the assessee, especially, when the assessee is wholly owned by the Central Government as a Central Government Undertaking/Public Sector Undertaking - the impugned order of assessment is in violation of principles of natural justice.
Petition allowed - assessment to be redone - matter on remand.
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2016 (1) TMI 1217
Clinker - Levy of entry tax - Section 4-A provides for entry tax at enhanced rates on certain goods consumed or used in such local area for manufacture of other goods - higher rate of entry tax on limestone when it is clinkerised in the local area but is stock transferred to their units outside the State to the extent it is used for manufacture of cement - Held that: - Section 3 provides for the incidence of taxation on the entry of goods specified in Schedule II into a local area for consumption, use or sale. Limestone is to be found as an entry in Schedule II. Section 4-A provides for entry tax at enhanced rates in a specified local area on goods which are used, consumed or sold in such local area for manufacture of other goods.
The Petitioners were required to pay entry tax at the higher rate subject to the result of the writ petition. It is not the case of the Respondents that Clinker was sold by the Petitioners to third parties but has been stock transferred to their own cement units. The Petitioners are therefore held entitled to restitution. The 15% additional entry tax is directed to be refunded to the Petitioners - petition allowed - decided partly in favor of petitioner.
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2016 (1) TMI 1216
Time limitation - SCN challenged on the basis of section 24 where it is stated that the reassessment can be done within four years from date of passing of final assessment order - Held that: - Section 24(1)(a) of the DST Act indicates that an assessment made under Section 23 can be reopened within a period of six years from the date of the final order of assessment in a case where the dealer has concealed, omitted or failed to disclose fully the particulars of his turnover.
A part of the turnover of the Assessee had escaped assessment to tax and, accordingly, notice in form ST-15 was issued to the Assessee. It cannot be disputed that the Assessee was required to disclose in its return the value of purchases made against statutory forms which had not been utilized for the specified purposes. However the Assessee had undisputedly failed to do so - the contention that the assessment order has been passed beyond the period of limitation is without any merit.
Appeal dismissed - decided against appellant.
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2016 (1) TMI 1214
Income from the activity of the nursery - whether is agricultural income and exempt u/s.10(1)? - assessee’s contention that he is the owner of the agricultural land on which he has grown nursery plants - Held that:- Similar issue was considered by the Tribunal in assessee’s own case for the assessment year 2007-08 [2015 (11) TMI 586 - ITAT CHENNAI ] the decision taken by the CIT(Appeals) treating the income from nursery as agriculture income is justified and as in similar circumstances, in the case of CIT v. Soundarya Nursery (1998 (8) TMI 37 - MADRAS High Court ), the Jurisdictional High Court has held that the income from the sale of plants grown in pots and the sale of seeds derived on account of cultivation by the assessee was agricultural income. The facts of the present case are similar to that of the Jurisdictional High Court, we have no hesitation in following the same. - Decided in favour of assessee
Reopening of the assessment based on audit objection - Held that:- Reopening on the basis of audit objection was upheld as valid by the Supreme Court in CIT v. P. V.S. Beedies Pvt. Ltd (SC) (1997 (10) TMI 5 - SUPREME Court ). - Decided in favour of revenue
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2016 (1) TMI 1213
TDS u/s 194I - PSF paid by the asssessee to the airport operators - non deduction of tds - assessee is engaged in the business of transportation by aircraft - ITAT deleted tds liability - Held that:- We have to keep in mind the substance behind such charges. When the matter is looked into from this angle, keeping in view the full and larger picture in mind, it becomes very clear that the charges are not for use of the land per se and therefore it cannot be treated as rent within the meaning of section 194-I of the Act.” It may be observed that the Apex Court did further observe that in view of the explanation to Section 194-I of the Act, the normal/popular meaning of the word “rent” stood expanded. However, primary requirement is that the payment must be for use of the land or building and mere incidental/minor/insignificant use of the same while providing other facilities and services would not make it a payment made for use of land/buildings. This is more so as the submission of the Revenue itself before us is that the payment of PSF is for use of secured building and furniture. Therefore the use of land/or building in this case is only incidental. Thus the ratio of the decision of the Apex Court in Singapore Airlines (2015 (8) TMI 185 - SUPREME COURT) would apply on all fours to the present facts.
As the substance of the PSF is not for use of land or building but for providing security services and facilities to the embarking passengers the decision of the Apex Court in Singapore Airlines (2015 (8) TMI 185 - SUPREME COURT ) would cover the issue in favour of the respondent-assessee. No substantial question of law.
Appeal admitted on second substantial question of law:
Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding the order of the CIT(A) and holding that the amount retained by a bank/credit card agency out of the sale consideration of the tickets booked through credit cards is not covered under the definition of “commission or brokerage” given in the Explanation (i) to Section 194H of the Act and the assessee was not liable to deduct tax at source under Section 194H in respect of this amount?”
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2016 (1) TMI 1212
Cement and clinker - CENVAT credit - welding electrodes - whether CENVAT credit is admissible in respect of welding electrodes and gases used for repair and maintenance of plant and machinery? - Held that: - In Kisan Co-Operative Sugar Factory Ltd. Vs. CCE, Meerut-I, [2013 (8) TMI 98 - CESTAT NEW DELHI] relying upon the judgment of Hon’ble Chhattisgarh High Court in case of Ambuja Cement Eastern Ltd. [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT ], it has been held that welding electrodes used for repair and maintenance of plant and machinery eligible for Cenvat Credit.
It was observed therein that in Sree Rayalseema Hi Strength Hypo Ltd., [2012 (11) TMI 255 - ANDHRA PRADESH HIGH COURT] the Honble Court has not considered the point as to whether manufacturing operations was commercially feasible without regular repair and maintenance of the plant and machinery by using welding electrodes - the impugned order is not sustainable - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1210
Validity of N/N. 11/2007-C.E., dated 1-3-2007 - restoration of N/N. 8/2004-C.E., dated 21-1-2004 - appellant engaged in manufacture of jarda scented tobacco falling under Tariff Item No. 2403.99.30 or 2403.99.10 of the First Schedule to the Central Excise Tariff Act, 1985 - the petitioner No. 1 commenced the commercial production on 8-8-2000 and the petitioner No. 2 commenced the commercial production on 24-12-1997 and as such, in terms of the N/N. 69/2003-C.E., dated 25-8-2003 read with Notification Nos. 32/99-C.E. and 33/99-C.E., dated 8-7-1999 - whether the petitioners are entitled to have the benefits irrespective of the lapse in issuing the notification in terms of the NEIP, 1997?
Whether the impugned notification dated 1-3-2007, Annexure-L to the writ petition is hit by promissory estoppel by restraining premature withdrawal of the benefits? - Held that: - The promissory estoppel basically prevents a party to a contract from acting in a certain way because it was promised not to act in that way and the other party to the contract relied on that promise and acted upon it. The licence is fundamentally, when is accepted, a contract though its execution might flow from any statutory power. The doctrine therefore applies even to the licence agreement.
In view of the saving clause as engrafted in NEIIPP, 2007, as the petitioners’ units have commenced commercial production on or before 31-12-2007 will continue to get benefits/incentives under NEIP, 1997 in terms of the N/N. 8/2004-C.E., dated 21-1-2004 subject to the notification dated 25-4-2007. For deposit, the petitioner would get relaxation for purpose of counting limitation in terms of N/N. 28/2004-C.E., dated 9-1-2004. The limitation would start from this day for compliance of the modality as laid down in the N/N. 8/2004-C.E., dated 21-1-2004 and 28/2004-C.E., dated 9-7-2004. This court, however, has not made any observation consciously as to the petitioners’ entitlement under the scheme. The competent authority would decide the same.
Whether the N/N. 69/2003-C.E., dated 25-8-2003, Annexure-H to the writ petition has been completely eclipsed by the N/N. 8/2004-C.E., dated 21-1-2004, Annexure-I to the writ petition? - Held that: - no relief in terms of the said notification dated 25-8-2003 can be granted to the petitioner. On a comparative study of those notifications, this court finds that the notification dated 25-8-2003 has for all purposes merged with the notification dated 21-1-2004. The fundamental provisions made in the notification dated 25-8-2003 have not been debased by the notification dated 21-1-2004. The notification dated 21-1-2004 has expanded the benefit further but with certain restrictive conditions. The petitioners have not challenged the said notification dated 21-1-2004. As corollary thereof, this court is of the view that there had been no eclipse - the petitioner would continue to get the benefit in terms of the promise re-extended by Para 2 of the Office Memorandum dated 1-4-2007 Annexure-K to the writ petition for the remaining period in terms of NEIP, 1997.
Whether there is any misuse of process or public interest element justifying the withdrawal of benefits as granted by the NEIP, 1997 by virtue of the notification dated 1-3-2007, Annexure-L to the writ petition? - Held that: - As this has been held that the respondents have failed to show that the petitioner has misused the incentives or taken undue advantage, the said notification dated 1-3-2007 is hit by the promissory estoppel. In this regard it would be apposite to say that the dispute as to whether the petitioner would be entitled to get duty exemption on certification of investment in the social sector in terms of the notifications dated 21-1-2004 and 9-7-2004 is to be verified by the Investment Appraisal Committee (IAC) and on their certification only the exemption can be availed. Hence, absence of “proper investment” as alleged, cannot be termed as misuse or undue advantage - The cumulative effect is that the notification dated 1-3-2007, Annexure-L to the writ petition, cannot be sustained and accordingly the same is set aside.
Petition allowed - decided in favor of petitioner.
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2016 (1) TMI 1208
Maintainability of appeal - till date the representation has not been addressed to by the Chief Commissioner or the Principle Commissioner hence they have filed this appeal before this Tribunal - whether an appeal lies before this tribunal or otherwise? - Held that: - On plain reading of Section 129A of the Customs Act, 1962, we find that as the order has been passed by the Commissioner of Customs as an adjudicating authority is also defined under Section2(1) of Customs Act,1962 which means an authority competent to pass any order or decision under this Act. It is very clear from the reading of the regulations that they were enacted under the powers of Section 157 of the Customs Act, 1962 for furtherance of activity under the Said Act - this appeal lies before this Tribunal - appeal maintained - decided in favor of appellant.
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2016 (1) TMI 1207
Lower rate of depreciation on CCTV cameras - Held that:- CCTV cameras cannot function without computer, as to see the footage captured by CCTV camera you need a device in the shape of computer and thus, Computer is an integral part of CCTV camera and as such, is eligible for depreciation at the rate of 60% as prescribed for Computers under the Income Tax Act and accordingly, allow the depreciation @ 60% on the issue in dispute. This view is fully supported by the following case laws:- High Court of Delhi in the cases of CIT vs Citicorp Maruti Finance Ltd. (2010 (11) TMI 802 - Delhi High Court) and CIT vs Bonanza Portfolio Ltd. reported [2011 (8) TMI 1058 - DELHI HIGH COURT]
Disallowance of expenditure on advertisement expenses - Held that:- The said expenditure was genuine one as the same was paid to Lion Club for advertisement in District Directory for good and effective medium for company's products and services, as is evident from the receipt filed at pages 165 of the paper book and delete the addition in dispute by relying on the judgment of Hon'ble High Court of Delhi in the case of CIT vs. Salora International Limited [2008 (8) TMI 138 - DELHI HIGH COURT] wherein it has been held that expenses incurred for advertisement and sales promotion and brand building are allowable expenses.
Adhoc disallowance expenditure (i.e. 10% of the telephone expense and vehicle running and maintenance expenses) and (40% of the festival expenses) - Held that:- The disallowance of ₹ 1,24,003/- (10% of the telephone expenses and vehicle running and maintenance expenses) made by AO are without any basis and purely adhoc disallowances made for personal use or vouchers in the hands of the company which is not permissible in the eyes of law. I also note that the disallowance of ₹ 36,056/- (40% of the festival expenses) has been incurred exclusively for the business purpose and all the payments had been through bank with proper supporting vouchers, hence, both the additions in dispute are deleted
Disallowing the donation and not allowing the deduction under section 80G - Held that:- Expenditure was paid for brand promotion and effective marketing of company's products and services, as is evident from the receipt filed at page 166 of the paper book. Hence, the addition in dispute is deleted. Also find that even otherwise the assessee is eligible for deduction under section 80G of the I.T. Act, 1961. This view is fully supported by the decision of the Hon'ble High Court of Delhi in the case of CIT vs. Salora International Limited [2008 (8) TMI 138 - DELHI HIGH COURT] wherein, it has been held that the expenses incurred for advertisement and sales promotion and brand building are allowable expenses.
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2016 (1) TMI 1206
Royalty (inclusive of technical guidance fee - treated as revenue expenditure or capital expenditure - Held that:- Answered in favour of the Assessee in the Assessee’s own case [2015 (2) TMI 368 - DELHI HIGH COURT]
Disallowance made by AO under Section 14A read with Rule 8D - Held that:- It is seen that the ITAT has restored the matter to the Assessing Officer (‘AO’) to rework the disallowance under Section 14A of the Act in the light of the decision of this Court in Maxopp Investment Ltd. v. CIT [2011 (11) TMI 267 - Delhi High Court ].
Provision for warranty - Held that:- Assessee’s own case for AY 2002-03 this Court [2014 (7) TMI 1227 - DELHI HIGH COURT] decided the question in favour of the Assessee and against the Revenue. In the aforementioned decision, reference was made to the decision of the Supreme Court in Rotork Controls India Pvt. Ltd. v. CIT [2009 (5) TMI 16 - SUPREME COURT OF INDIA]
Discharge the initial onus of reasonability of quantum of model fee - Held that:- ITAT has found that the payment made by the Assessee to HMCL was for the development of the model and that the market research and study was only to ascertain what kind of model was required by the Assessee. Once HMCL developed the model as per the specification of the Assessee, it gave the complete technical information and knowledge in relation to the model to the Assessee. Thereafter, the Assessee carried out the research and development for the absorption of technology of the new model and indigenization of spare parts. Consequently, the presumption of the AO that there was a joint activity was factually incorrect. This Court is of the view that the view taken by the ITAT appears to be a plausible one and does not call for any interference. Accordingly, the Court declines to frame the question of law on this issue.
Appeal admitted on question iv:-
Whether on the facts and circumstances, the ITAT was correct in law in holding that by export of specified models to specified countries, the Assessee company had benefited and therefore by deleting addition of ₹ 12.19 crores made by AO on account of export commission without appreciating the fact that the Assessee has to export motorcycles to underdeveloped countries in very restrictive environment and on such terms and conditions which were detrimental to the Assessee and were for the benefit of the subsidiaries of the AE?
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2016 (1) TMI 1205
Denial of relief of the liability on account of interest expenses - confirming the calculation of book profit u/s. 115JB - Held that:- As in the assessee’s own case for the A.Y.2001-02 & 2003-04 the coordinate bench of Mumbai restored the above said the issues to the file of CIT(A) for fresh adjudication in the light of order passed by ITAT, Mumbai in the case of Hitesh S. Mehta Vs. DCIT [2013 (10) TMI 1065 - ITAT MUMBAI ] to readjudicate the matter in view of the observations made therein.
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2016 (1) TMI 1204
Penalty under section 271(1)(c) -assessment order passed under section 144 - Held that:- Undisputedly, assessment in the case of assessee was completed under section 144 of the Act. It is also evident that the additions / disallowances made by the Assessing Officer are either on estimate basis or for the reason that supporting evidences are not available. The learned Commissioner (Appeals) has also confirmed the additions / disallowances more or less accepting the reasoning of the Assessing Officer by observing that assessee has not produced any evidence to support its claim.
As far as the addition as unexplained investment on account of introduction of capital by the partner, the assessee, at this stage, has produced certain documents by way of additional evidence to demonstrate that the partners are having sufficient source to introduce the capital. Similarly, assessee has produced details of property tax in respect of rental income. We further find on a perusal of the order of the learned Commissioner (Appeals) that he has not at all considered the written submissions claimed to have been filed by the assessee, a copy of which has been submitted before us by way of additional evidences. Therefore, considering the fact that the assessment was completed under section 144 of the Act making certain additions / disallowances and at this stage the assessee has produced additional evidences which are not before the Departmental Authorities, we are of the view that matter requires to be set aside / restored back to the file of the Assessing Officer for denovo assessment on all the issues after considering the additional evidence filed by the assessee along with other evidences as may be available on record.
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2016 (1) TMI 1203
CENVAT credit - MS items - Held that: - The appellant has produced the Chartered Engineer Certificate photographs and other documents to show that MS items were used for installation, erection of plant and machinery/spares/parts/components of capital goods - The issue is settled in the decision laid in Mundra Ports and SEZ Ltd. [2015 (3) TMI 661 - MADRAS HIGH COURT] wherein it was held that credit is admissible on MS items used for support structure of capital goods/components/ parts - credit allowed - appeal allowed - decided in favor of assessee.
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2016 (1) TMI 1202
CENVAT credit - denial of credit on M.S. Items used for manufacturing capital goods - Held that: - reliance placed in the case of CCE, Jaipur Vs Rajasthan Spinning and Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA] and India Cements Ltd Vs CESTAT Chennai [2015 (3) TMI 661 - MADRAS HIGH COURT] held that the assessee was entitled for credit on the MS Items used for fabrication of capital goods/accessories/parts and structural supports to plant and machinery - the disallowance of credit is not justifiable - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1201
Eligibility to claim benefit u/s 44AD - turnover limit exceeded - Held that:- The assessee has submitted its total turnover for AY 2010-11 is ₹ 46,88,000/-, which was confirmed before the CIT(A) and estimated the gross profit at 5% on the turnover. We find that the eligibility of computation of income, for the AY 2010-11 on the presumptive basis u/s 44AD, the turnover limit was ₹ 40 lakhs, whereas, in the present case, the assessee crossed the limit of ₹ 40 lakhs, hence, the assessee is not eligible to compute his income as per section 44AD to claim benefit in that section. Moreover, the rate applicable on the presumptive basis is 8% whereas the assessee has declared the profit at 5% of turnover.
Assessee has claimed that he has taken ₹ 5 lakhs loan from his late brother’s family and he has not substantiated the above claim by way of any documentary evidence as he has not disclosed even in the receipts and payments account submitted before the AO. Since the assessee has crossed the turnover of ₹ 40 lakhs, he is not eligible to claim benefit u/s 44AD as per the provisions of this section. As the assessee has not substantiated the loans and advances received from his customers and his late brother’s family and also he is not eligible to claim the benefit u/s 44AD, in our considered view, respectfully following the decision of the coordinate bench in case of Suresh Kumar Biyani (2015 (9) TMI 1501 - ITAT HYDERABAD), we direct the AO to calculate the gross income of the assessee at 20% of the total turnover as accepted by the assessee before the CIT(A). - Decided partly in favour of revenue
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2016 (1) TMI 1200
Interest disallowance - sufficient interest-free funds proof - Held that:- The CIT(A) records a finding that the assessee had available at his disposal sufficient interest-free funds so as to be advanced without charging interest. This is also not the Revenue’s case that he has diverted interest-bearing funds for any other purposes than that of his business. This has made the CIT(A) to follow Hon’ble Apex Court’s decision in Munjal Sales (2008 (2) TMI 19 - Supreme Court). The Revenue fails in rebutting the impugned crucial findings of facts holding availability of sufficient noninterest bearing funds. We accordingly find no reason to interfere with the CIT(A)’s action in deleting the impugned interest disallowance of ₹ 4,52,089/-. This first substantive ground raised in the Revenue’s appeal fails.
Unexplained cash credit addition - Held that:- There is no dispute that the assessee in rebuttal has furnished correct PAN details with Bank account copies, creditors’ confirmations and their Income Tax returns. We find that section 251(1)(a) of the Act no more empowers the CIT(A) to remand a case w.e.f. 01.06.2001. The fact also remains that the assessee has already made out a case for admitting additional evidence before the CIT(A). We observe in these facts that the main reason on the part of the CIT(A) for directing the Assessing Officer to verify the facts once again is because of the fact that the assessee has been able to file complete set of relevant documents only in rebuttal stage. We take into account the bar imposed by the legislature on the CIT(A)’s jurisdiction in section 251(1)(a) hereinabove and interfere to the limited extent that the impugned remand directions shall form part of our instant findings. In other words, we interfere on this legal aspect only. However, we direct the Assessing Officer to re-decide this entire issue afresh after taking into account the material on record submitted by way of additional evidence after affording adequate opportunity of hearing.
CIT(A) confirming the impugned unexplained cash credit addition in case of Chandrikaben Thakkar to the tune of ₹ 17,000/- this creditor is neither having any PAN card nor has she been able to explain her source. We find no reason to interfere in the lower appellate reasoning under challenge. The same is accordingly upheld.
Undisclosed investment in the cost of construction/land of the residential premises in question known as “Devnandan Palace”, Ambli-Bopal Road, Ahmedabad - AO made section 142A reference to the Departmental Valuation Officer who filed his report on 15.12.2006 ascertaining value of the residential property in question to be of ₹ 1,46,28,300 as on 31.03.2005 as against that shown in books of ₹ 64,51,242/- - Held that:- As decided in Sargam Cinema vs. CIT (2009 (10) TMI 569 - Supreme Court of India) holding that an assessing authority cannot make a DVO’s reference under section 142A without rejecting books. We accept assessee’s argument accordingly and hold that the Assessing Officer’s action in invoking section 142A reference without rejecting assessee’s books stating cost of construction of residential property in question as well as the land appurtenant thereto is not based on any incriminating material found in the course of search or any infirmity being pointed out there. We follow the above stated judicial precedents and delete the entire addition being made in assessment order
Addition made on account of excess depreciation - Held that:- The Revenue fails to point out any distinction on facts or law before us so as to reverse the lower appellate finding, upholding the impugned claim of excess deprecation @ 25% on electrical installations with sanitary fittings in assessee’ s Hotel building. This substantive ground is accordingly rejected.
Addition made on account of low house hold expenses withdrawal - Held that:- The CIT(A) has already taken into account assessee’s socio-economic circumstances for estimating the impugned household withdrawal thereby restricting the impugned addition from ₹ 25,000/- to ₹ 6,000/- only. There can be hardly any dispute about the settled proposition that wherever two views are possible, the one taken by the CIT(A) is to be confirmed. There is also no factual evidence placed on record either of the parties to rebut the findings under challenge. We accordingly affirm the CIT(A)’s action thereby rejecting the corresponding grounds raised in both these cross appeals.
Disallowance @ 20% of the total telephone expenses by terming the same to be involving personal element and non-business use - Held that:- The assessee fails in leading any evidence to prove that he had been using any other telephone or other communication system exclusively for his personal and non-business use. We see no reason to interfere with both the lower authorities’ action in invoking the impugned disallowance.
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2016 (1) TMI 1199
Reference to the Transfer Pricing Officer(TPO) - ascertain the correct Arm Length Price(ALP) of the transactions - grievance of the Revenue before us is that the Tribunal could not have restricted the application of the ALP only to International Transaction entered into by the Respondent- Assessee with its A.E. - Held that:- Grievance of the Revenue is no longer res integra, as this Court has in CIT v/s M/s Tara Jewels Exports Pvt Ltd [2015 (12) TMI 1130 - BOMBAY HIGH COURT] and CIT v/s Thyssen Krupp Industries India Pvt Ltd [2015 (12) TMI 1076 - BOMBAY HIGH COURT ] has taken a view that the ALP adjustment arrived at is only to be restricted to the international transaction entered into by the Respondent and could not apply to transactions entered into with non-A.E. This is for the reason that in terms of Chapter-X of the Act the mandate is to redetermine the consideration only with regard to International transaction with A. E.
We find that the impugned order has merely laid down the principles to be applied for the purposes of transfer pricing adjustment by restricting the same only to the international transactions entered into with the A. E. No fault can be found with the impugned order of the Tribunal in restoring the issues to the Assessing Officer for fresh consideration after laying down the parameters of its consideration. Accordingly, Question No.(A) as formulated does not give rise to any substantial question of law
Appeal is admitted on substantial Question No.(B):- Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in coming to the conclusion that AO/TPO were not justified in excluding gain on foreign exchange fluctuation from the total revenues for the purpose of computing OP/OC?
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2016 (1) TMI 1198
Interest on refund sanctioned - unjust enrichment - Held that: - Section 11BB of Central Excise Act, 1944 is unambiguously clear that non-sanction of refund within three months of filing of claim will set the ‘interest clock’ ticking. Mere pendency of any appellate / revisionary proceedings cannot justify non-sanction of such refunds. The law does not acknowledge recoveries to any such excuse or loopholes. Section 11BB is intended to ensure accountability on the part of revenue officials. To place the legally provided for interest on the backburner for any reason whatsoever would be tantamount to defying legislative intent.
The tax authorities were determined not to grant the refund to the appellant. Withholding of interest will, therefore, only serve to encourage irresponsibility and non-responsiveness on the part of tax authorities - original authority is directed to release the interest due till date of payment of refund immediately on receipt of this order - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1197
Remission of duty - whether the fire which occurred in the appellant’s premises, which originally started in the adjoining factory and later on spread to his factory, was an unavoidable accident and can be said to have occured due to the reasons beyond control of the appellant and, whether the appellant is entitled to the remission, as claimed by him? - Held that: - the learned Commissioner have erred in holding that the fire accident was avoidable and was due to negligence and carelessness on the part of the appellant. In view of the categorical finding of Chief Fire Fighting Officer, it is an unambiguous conclusion that the fire started in the adjoining factory of M/s. Jandial Shoe Factory thereafter spread to the adjoining factory of Golden Eagle Shoe and from their pursuant to caving in of the roof the fire spread to the appellant’s factory and immediately engulfed the whole factory. We have further found that the appellant had given timely notice to the Excise Authorities and hence, no case of negligence is made out against him which could have prevented the Excise Authorities in verifying the accident and/or loss.
Rejection of quantum of loss is also erroneous and no reasons have been given for the same. In case of fire where everything is lost, the loss is to be estimated on the basis of some parameters and on past records.
The appellant is held to be entitled to remission claim - appeal allowed - decided in favor of appellant.
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2016 (1) TMI 1196
‘Let export order’ - The container of stainless steel was loaded on the vessel MV Sima Touba on 1st September 2006 which sailed on the 2nd September 2006 whereas ‘let export order’ for the shipping bill was granted only on the 4th September 2006 - confiscation of goods with imposition of penalties - Held that: - any deviation in prescription relating to control over goods and conveyances before export or, in case of imports, till clearance for home consumption is not merely procedure. Nevertheless, the facts and circumstances of each case needs to examined before resorting to confiscation and penalty.
The systems are engineered to account for legal responsibility for cargo under international conventions. It is in the interests of the custodian and ‘person-in-charge’ of the conveyance to ensure that all documentation is complete before handing over and taking over of containers. That such did not occur is more likely to be attributable to inadvertence. Nor can any motive be ascribed as containerized cargo are not, in the holding area or aboard the vessel, susceptible to ingress.
The law itself mandates confiscation and penal action for such mis-adventure and, as long as the law remains on the statute book, it must be enforced. The imposition of penalty on the person incharge of the conveyance and, vicariously, therefore on the shipping agent cannot be faulted. However, considering the circumstances, the high penalty imposed in the original order and confirmed in the impugned order appears to be overkill. Accordingly, the penalty on M/s Albatross Shipping Ltd is reduced to ₹ 3,00,000. Penalty on the other two appellants are set aside - appeal disposed off - decided partly in favor of appellant.
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9911796707
