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Case Laws
Showing 301 to 320 of 1843 Records
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2017 (1) TMI 1547
TDS u/s 194C - payee furnishing PAN to the payer - Held that:- The provision contemplated in Sec 194C(6) permits no deduction of TDS shall be made u/s. 194C(1) if the payee furnishes PAN to the payer. We find that the requirement of Section 194C(6) of the Act submission of Permanent Account Number which enable the payer from no deduction of TDS.
In the present issue as discussed the fact remains admitted the payees furnished PANs to the Assessee, but, the Assessee could not furnish the same to the prescribed authority within time and whether such failure attracts the addition and disallowance under section 40(a)(ia)of the Act, in our opinion there is violation of section 194C(7) and disallowance under section 40(a)(ia) does not arise - Decided in favour of assessee.
Addition on account of GIFT treating the same as bogus expenses - Held that:- Assessee made piecemeal payments for purchase of Diary, Calendar, Pen from “Uma Chabighar' and shirt and trouser pieces from “Shamsundar Bastralaya" and treated said amounts as "credits" and in our opinion the Assessee correctly done so as the Assessee did not have received the items from the said two parties - finding of the AO was that the payments should not have been treated as credits and should have been offset on receipt of items ordered - Assessee had shown the expenses on gifts in the books of accounts by directly debiting the expenses in the cash book and without routing the same through the concerned supplier account. Thus assessee has correctly debited in the Profit & Loss Account and since there is no dispute that the expenses under the head Gift to customer so incurred were incidental to business and could not be said that the expenses were disallowable - Decided in favour of assessee.
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2017 (1) TMI 1546
TPA - selection of comparable - Held that:- Assessee is into providing Information Technology (IT) Enabled Back Office support services related to creation and maintenance of database of prospective employers and candidates who have submitted their resumes to HSII, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
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2017 (1) TMI 1545
Non collection of TCS on sale of scrap - addition made u/s.206C(1) - interest charged u/s.206C(7) - HC [2016 (7) TMI 68 - GUJARAT HIGH COURT] held that mere minor delay in filing the said declaration would not defeat the very claim AND there was substantial compliance with the requirement of filing the declaration - Held that:- The appellant shall take steps for service of notice upon the respondent.
Dasti service is also permitted.List all these matters for hearing and disposal on 30th March, 2017.
The pleadings shall be completed in this case before the next date of hearing.
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2017 (1) TMI 1544
Demand of interest - provisional assessment - whether the interest is payable on the differential duty paid before finalization of the assessment or otherwise?
Held that: - the issue has been settled by the Hon'ble High Court of Bombay in appellant's own case reported as CEAT Ltd. [2015 (2) TMI 794 - BOMBAY HIGH COURT], where it was held that interest is not chargeable on the differential duty paid before finalization of assessment - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1543
Manufacture - whether conversion of waste oil obtained from various sources into reclaimed fuel oil amounts to manufacture as per Section 2(f) of CEA 1994? - Held that: - In Circular No. 1024/12/2016-CX, dated 11-4-2016 on the subject wherein the issue of clarification regarding re-refined used or waste oil has been discussed threadbare and certain instructions are given therein - The circular specifically talks about the lubricating oil obtained from re-refining or re-processing waste oils and other oils obtained from various sources - In the instant case the product was not lubricating oil falling under the 2710 19 80 but is reclaimed fuel oil falling under 2710 99 00.
The deeming fiction provides that when one of the process listed in the chapter note is carried out on lubricating oil or lubricating preparations, it shall be deemed to be manufacture. The instant case is the reclaimed fuel oil which is also waste oil falling under 2710 99 00 but used as fuel only and is not a lubricating oil or used as lubricating oil.
The process of cleaning of waste oil to yield reclaimed fuel oil does not amount to manufacture as defined under Section 2(f) of the Central Excise Act, 1944 - Once it is held that the activity is not manufacture all other demands and imposition of penalty stands negated.
Appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1542
Misdeclaration of goods - finished leather - Public Notice No. 21/2009-14, dated 1-12-2009 - Held that: - in the entire order there is no finding that the impugned leather was not finished leather or was semi-finished leather and the only finding is that does not satisfy the norms and conditions for the type of finished leather as declared. There is no other evidence to suggest any contumacious conduct or deliberate misdeclaration - appeal dismissed - decided against Revenue.
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2017 (1) TMI 1541
Import of restricted item - Rough Marble Blocks - confiscation - Held that: - Since, the importer failed to submit a valid import license, the goods are liable for confiscation under Section 111(d) of the Customs Act.
However, the imported goods have already been disposed of by Customs Authorities since the importer has failed to clear the same within a reasonable period of time. Since, the goods are no longer available, the same cannot also be redeemed by the appellant-importer. Consequently, there is no question of payment of redemption fine as well as Customs duties.
The importer will be entitled to receive the part of sale proceed received by the Customs at the time of auction of imported goods, subject to the Rules and regulation in this regard - appeal disposed off.
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2017 (1) TMI 1540
Ad-hoc exemption orders - Order Nos. 121/12/2005-CX and 122/13/2005-CX, both dated 8-8-2005 - goods cleared was meant for supply to the Tsunami victims without being cleared for sale - Held that: - appellant had cleared the goods to Tsunami victims prior to 8-8-2005 i.e. before receipt of the above ad hoc exemption orders, on payment of duty. Appellant having been held to be instrumentality of the State is not expected to be enriched at the cost of the citizens - the refund claim to the extent not paid is allowable to the appellant - appeal allowed.
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2017 (1) TMI 1539
SSI Exemption - use of Brand Name - Department was of the view that the stoves sold under the brand name “Suzuki” and “Mitsubishi” are not eligible for SSI exemption as the same are sold by affixing with the brand name of other persons - Held that: - assessee-appellants are not eligible for the SSI exemption in respect of the goods sold under the brand name “Mitsubishi” and “Suzuki”, as they have failed to produce any evidence before the lower authorities pertaining to the ownership of the brand name “Mitsubishi” and “Suzuki” - duty demand upheld.
As regards the stoves cleared by the assessee-appellants by affixing the brand name/logo of BPCL and HPCL along with their own brand name “Advanta” and “Advanta Green” which were sold through sale outlets of BPCL and HPCL, they would be eligible for the SSI exemption.
Appeal allowed in part.
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2017 (1) TMI 1538
Rectification of mistake - submissions of the applicant are that vide paragraph 16 in the final order “only duty/Cenvat credit demand of ₹ 54,096/- along with interest and equivalent penalty is upheld and the remaining duty/Cenvat credit demand along with interest and equivalent penalty is set aside - Held that: - the final order dated 20-3-2015 passed by this Tribunal is amended to the extent for inserting paragraph 17 in this regard which reads as: “The appeal filed by Shri K.K. Maheshwari is allowed and the impugned order to that extent is set aside” - ROM application allowed.
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2017 (1) TMI 1537
Erection and assembling of towers at specified sites - Held that: - in the Central Excise Act, 1944, the leviability of the excise duty is different for the towers which are assembled in the factory than those erected at the site and come out as an immovable structure. From the impugned order, it appears that the authorities below have not examined the issues properly in a right perspective - matter remanded to the adjudicating authority for de novo adjudication - appeal allowed by way of remand.
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2017 (1) TMI 1536
Restoration of appeal - appeal was dismissed for non-compliance of the condition to pay cost for condoning the delay in filing the appeal - Held that: - the delay in depositing could not be represented before the Tribunal as the Counsel who was then appearing for the appellant was laid up due to serious illness - also, the appellant has already made the deposit of cost - the appellant can be given a chance to contest the case on merits - appeal restored.
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2017 (1) TMI 1535
Confiscation - penalty - smuggling - it was alleged that the appellant could not produce any documentary evidence for their legal importation and possession of these goods - Held that: - it is not incumbent upon the appellant to prove that these goods seized from his possession are not smuggled goods. Therefore, the burden of proving that the seized goods are smuggled goods would lie upon the Customs authorities.
No such evidence has been brought on records by Customs authorities to substantiate that the goods seized from the appellant are smuggled goods - there is no justification for confiscation of such goods u/s 111 of the CA, 1962 - also the appellant is also not liable for any penalty u/s 112.
Appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1534
Re-credit of duty paid twice - Rule 8(3)(a) of the Central Excise Rules, 2002 - Held that: - on payment of duty in cash which had been paid in CENVAT credit earlier, the appellant would be entitled to take recredit - it is an admitted fact that the appellant had paid the duty twice, once through Cenvat credit and again in cash and once duty has been paid in cash along with interest, appellant is well within his right to take recredit of the same - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1533
Taxability of interest on loans categorized as NPA’s/sticky loans - whether on accrual basis as contended by the Revenue or on receipt basis as claimed by the assessee? - Held that:- In the case of The Ludhiana Central Co-op. Bank Ltd. (2015 (6) TMI 1100 - ITAT CHANDIGARH), the decision rendered therein would squarely apply to the present cases, following which we hold that the interest on sticky loans/NPA’s has to be taxed on receipt basis. We, therefore, uphold the order of the CIT(A) and dismiss the ground raised by the Revenue.
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2017 (1) TMI 1532
Depreciation @60% on inverter batteries - whether inverter batteries are not separable part of the computer and can be utilised for other functions as back up batteries and hence not eligible for depreciation @60%? - Held that:- Computer accessories and peripherals such as, printers, scanners and server, etc., form an integral part of the computer system. In fact, the computer accessories and peripherals cannot be used without the computer. Consequently, as they are the part of the computer system, they are entitled to depreciation at the higher rate of 60 per cent. See BSES Yamuna Powers Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT]
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2017 (1) TMI 1531
Offences punishable under Section 304B, 34 of the Indian Penal Code - acquittal of accused person - whether the learned trial judge had really pronounced the judgment of acquittal on 31.10.2007? - whether the High Court could have in exercise of its administrative power treated the trial as pending and transferred the same from the Court of Second Additional Sessions Judge, Ambikapur to the Court of District and Sessions Judge, Surguja at Ambikapur for rehearing and disposal?
Held that: - Chapter XVIII of CrPC provides for trial before a court of session. Section 227 empowers the trial judge to discharge the accused after hearing the submissions of the accused and the prosecution and on being satisfied that there is no sufficient ground for proceeding against the accused. The key words of the Section are “not sufficient ground for proceeding against the accused” - the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.
Though CrPC does not define the term “judgment”, yet it has clearly laid down how the judgment is to be pronounced. The provisions clearly spell out that it is imperative on the part of the learned trial judge to pronounce the judgment in open court by delivering the whole of the judgment or by reading out the whole of the judgment or by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader - as is evincible in the instant case, the judgment is not available on record and hence, there can be no shadow of doubt that the declaration of the result cannot tantamount to a judgment as prescribed in the CrPC. That leads to the inevitable conclusion that the trial in both the cases has to be treated to be pending.
Jurisdiction - whether the High Court on its administrative side could have transferred the case from the Second Additional Sessions Judge, Ambikapur to the Court of District and Sessions Judge, Surguja at Ambikapur? - Held that: - it is suffice to understand the jurisdiction and authority conferred under the Constitution on the High Court in the prescription of power of superintendence under Article 227 - Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice.
In the case at hand, the High Court on the administrative side had transferred the case to the learned Sessions Judge by which it has conferred jurisdiction on the trial court which has the jurisdiction to try the sessions case under CrPC. Thus, it has done so as it has, as a matter of fact, found that there was no judgment on record. There is no illegality. Be it noted, the Division Bench in the appeal preferred at the instance of the present appellants thought it appropriate to quash the order as there is no judgment on record but a mere order-sheet. In a piquant situation like the present one, we are disposed to think that the High Court was under legal obligation to set aside the order as it had no effect in law.
When a situation like the present one crops up, it causes agony, an unbearable one, to the cause of justice and hits like a lightning in a cloudless sky. It hurts the justice dispensation system and no one, and we mean no one, has any right to do so. The High Court by rectifying the grave error has acted in furtherance of the cause of justice. The accused persons might have felt delighted in acquittal and affected by the order of rehearing, but they should bear in mind that they are not the lone receivers of justice. There are victims of the crime. Law serves both and justice looks at them equally. It does not tolerate that the grievance of the victim should be comatosed in this manner.
Appeal dismissed.
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2017 (1) TMI 1530
Rejection of books of account - Estimation of gross profit rate @ 12.50% as against 11.59% declared by the assessee - Held that:- Neither the Assessing Officer nor the ld. CIT(A) has conducted any independent enquiry regarding the same and just on the basis of guess work has observed that assessee is not bringing out full particulars. Even the judicial pronouncements are clear on the facts that in the nature of trade as like assessee, cash memos for day-to-day sales are not required and that a consolidated entry in the cash book along with relevant documents of purchase of liquor are sufficient to prove the genuineness. In this view of the matter, we hold that the ld. CIT(A) was not justified in confirming the rejection of the books of account and adopting the G.P. rate on the higher side and, therefore, we set aside the order of the ld. CIT(A) on this issue and allow grounds No.1 & 2 of the appeal of the assessee.
Ad-hoc disallowance on account of shop rent paid - Held that:- Only affidavits and confirmation of receipts of shop rent are enclosed and the Department did not conduct any independent enquiry and physical verification regarding rent paid and both the Assessing Officer and the ld. CIT(A), on ad-hoc and summary basis, have stated that the rent should be @ ₹ 3,000/- per month per shop, however, neither the order of the Assessing Officer nor of the ld. CIT(A) was a speaking order on this issue and the reasons for arriving at the conclusion was not spelt out specifically. We are of the considered view that any ad-hoc disallowance made summarily by a quasi-judicial authority, without any factual basis, cannot be held justified and accordingly we set aside the order of the ld. CIT(A) - Decided in favour of assessee.
Ad-hoc disallowance on account of salary paid - Held that:- As held in various judicial pronouncements discussed hereinabove, how the business has to be conducted, it is the prerogative of the assessee and not of the Department. The Department is, however, free to conduct enquiry and have a physical verification to put forth the allegation on the assessee, but on guess work and summary basis any addition made is unwarranted. In view of commercial expediency of the expenditure incurred and the evidences placed before us in the paper book and the judicial pronouncements discussed hereinabove, we set aside the order of the ld. CIT(A) on this issue and allow ground of the appeal.
Disallowance of processing fee, assessment fee and renewal fee - Held that:- The additional evidences go to the root of the matter wherein all these details of renewal, processing and assessment fees paid to the Government are there and such evidences filed by the assessee are accepted. We also find that these payments were paid to the Government agencies and that is certified from the receipt letter of the District Excise Officer. We are of the considered view that under these facts and circumstances of the case, these expenses cannot be held as unjustified expenses and it has direct nexus with the nature of business of the assessee and the payment is also duly debited in the cash book and it has been paid to the Government. - Decided in favour of assessee.
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2017 (1) TMI 1529
Classification of imported goods - hard disk drive - eligibility for concessional rate of CV duty - Held that: - The terms hard disk drive used in the notification has not been amplified either by adding “external” or “internal”. On this simple premise alone, exemption to the said item cannot be denied. Admittedly, the imported items are hard disk drive and are meant for external use with computer or lap-top as plug-in device. They are portable hard disk drive. The contention of the Revenue that they are only removable or exchangeable disk drive, is not factually or technically correct - Appeal dismissed - decided against Revenue.
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2017 (1) TMI 1528
Reopening of assessment - ‘reasons to believe’ - Held that:- In the absence of any tangible material, which can be the only basis for reopening a completed assessment, the Revenue could not have issued the impugned notice. As to the applicability of General Motors India Private Limited’s case (2012 (8) TMI 714 - GUJARAT HIGH COURT) the Court is of the opinion that the view taken is sound and an added factor inhibited the Revenue from reopening the assessment. The benefit of carrying forward of depreciation was, in one sense, limited by the pre-existing rule that it can be done for eight years. All that the amendment did with effect from 01.04.2002 was to remove the cap which meant that the previously limited benefit was now not subjected to such restrictions.
We also do not agree with the Revenue’s contention with respect to non-application of mind. In view of the interpretation adopted by this Court, the occasion for disallowing itself would not have arisen given that the limit of eight years which existed prior to 2002 had been done away with on account of the amendment. This contention too is, therefore, rejected.
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