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Case Laws
Showing 301 to 320 of 1404 Records
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2016 (10) TMI 1104
Disallowance u/s. 36(1)(iii) - nexus between interest bearing funds and interest free advances - proportionate disallowance of interest - Held that:- Tribunal in the impugned order rendered a finding of fact that the Respondent-Assessee had its own sufficient funds available to make advances it had made to its sister concern. This on the basis that the assertions of Respondent-Assessee to the above effect were not controverted before the Tribunal at the time of hearing nor in the remand report of the Assessing Officer.
The impugned order of the Tribunal about availability of sufficient interest-free funds with the Respondent-Assessee to make advances to its sister concerns, is finding of fact. The same is being assailed without in any manner showing the same to be perverse. Hence, the question as framed does not give rise to any substantial question of law. Thus, not entertained.
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2016 (10) TMI 1103
Condonation of delay - Held That:-Present appeal is delayed by 975 days and there is hardly any explanation for the same.The appeal was filed on 19.10.2013 but appears to have been kept objected to. The Income Tax department does not seem to have any clue about the filing of the appeal or the objections raised by the registry. It refers to re-organisation of its panel and cites the pendency of large number of appeals marked defective. The reasons can hardly be considered sufficient cause to condone the delay. - Appeal and application are accordingly dismissed.
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2016 (10) TMI 1102
Scheme of Amalgamation - dispense with the requirement of convening and holding a meeting of the equity shareholders and unsecured creditors of the Transferor company - Held that:- In view of the written consent/NOC given by all the Equity Shareholders of the Transferor Company, the requirement of convening meeting of the Equity Shareholders of the Transferor Company is dispensed with.
The transferor Company has no secured creditors. Hence the requirement of convening their meeting does not arise. The requirement of convening and holding the meeting of unsecured creditors of the Transferor Company which includes the customers of the Prepaid Payment Instrument is dispensed with.
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2016 (10) TMI 1101
Rectification of mistake - Tribunal’s powers of rectifying mistakes on applications filed under section 254(2) - Held that:- The present miscellaneous applications deserve to be dismissed on the short reason that the mistakes which are sought to be rectified, in these miscellaneous applications, are alleged to have crept in order passed by the Tribunal under section 254(2), but then as held by the Special Bench of this Tribunal in the case of Padam Prakash (HUF) vs. ITO [2011 (1) TMI 226 - ITAT, NEWDELHI] Tribunal’s powers of rectifying mistakes apparent from record are confined to mistakes in orders under section 254(1) and not under section 254(2). In this view of the matter, we dismiss the miscellaneous applications on the short ground of jurisdiction and decline to deal with the matter on merits.
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2016 (10) TMI 1100
Oppression and Mismanagement - maintainability of petition as shareholding of the petitioner is below 1/10th of the shareholding on the date of filing of the petition - Company Petition under Section 397 and 398 of the Companies Act 1956 - Held that:- In the cases where an applicant alleges that his shareholding has been brought down by way of oppression and mismanagement below 1/10th of the total shareholding without notice and knowledge then it is the duty of the Tribunal to determine whether the applicant had 1/10th of the shareholding prior to the date of alleged oppression and mismanagement. Such petition cannot be dismissed on the ground that the applicants shareholding is below 1/10th of the total shareholding of the Company on the actual date of presentation of the Company Petition.
In the present case, the Tribunal failed to apply the aforesaid principle and erred in holding that the Company Petition preferred by the appellants under Section 397 and 398 of the Companies Act 1956 was not maintainable on the date of presentation of the Company Petition.
The question of oppression and mismanagement and maintainability in the present case is a mixed question of facts and law. As the petition was filed on the ground that the shareholding of the applicant(s) has been brought down below 1/10th of the total shareholding of a Company by oppression and mismanagement, Tribunal was required to decide the question of maintainability at the time Of final hearing of the Petition. Both the merit and question of maintainability were required to be decided together. On hearing the parties, in case the Tribunal forms opinion that there was no oppression and mismanagement on the date of cause of action as alleged by the applicant then in such case it was open to the Tribunal to dismiss the petition as not maintainable in view of Section 399 of the Companies Act 1956.
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2016 (10) TMI 1099
Disallowance of loss in trading of shares - genuine business loss incurred in the normal course of business - sham or fake share transactions - off market transactions undertaken by assessee - Held that:- The undisputed fact is that all the impugned transactions were routed through Demat accounts. It is also an undisputed fact that the transactions have been done at market rates. Simply because some of the transactions are off market transactions, it cannot be said that such transactions are sham or fake even the off market transactions have been done at market rates. The Assessing Officer has failed to bring any cogent material evidence on record which could suggest that the transactions are sham or bogus. It is pertinent to mention here that wherever there was a profit in similar off market transactions, the A.O. has accepted the same. Therefore, no merit in disbelieving the losses incurred by the assessee in the ordinary course of his business. - Decided against revenue
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2016 (10) TMI 1098
Expenses incurred in connection with maintenance - non-payment of service tax - notional interest - includibility - Held that: - From the terms of the agreement, it is evident that the maintenance deposits have been paid by the buyers in terms of the agreement for carrying out the maintenance of the immovable property. From this, it is prima facie evident that the applicant is rendering service under Section 65(64) and service tax is required to be paid.
Inclusion of notional interest - Held that: - The issue is fairly complex and needs to be gone into in great detail. This would be possible only at the time of detailed final hearing when both sides would be given opportunity for detailed arguments. Under the circumstances, we are of the view that the applicant should be made to deposit around 10% of the total service tax demanded in the impugned order.
The applicant are directed to deposit an amount of ₹ 50,00,000/- within a period of eight weeks - Subject to this pre-deposit, the balance amount of service tax demanded as well as the interest and penalties would stand stayed until disposal of the appeal.
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2016 (10) TMI 1097
Validity of SCN - It was the case of the appellant that the respondent was not entitled to issue the show cause notice in respect of an amount of ₹ 36,54,460/- as the service tax for the construction made for M/s. Sanvijay Rolling and Engineering was paid by the appellant even before the issuance of the SCN - Whether the Tribunal was justified in deciding the appeal filed by the appellant by a cryptic order and without considering the grounds raised by the assessee in the memorandum of appeal? - Held that: - Since the order of the Tribunal is a cryptic and not a reasoned one, it would be necessary to remand the matter to the Tribunal for a fresh decision on the appeal filed by the assessee, in accordance with law.
Since the order of the Tribunal is liable to be set aside and the matter is liable to be remanded to the Tribunal for a fresh decision, it would be necessary in the interest of justice to permit the appellant-assessee to canvass the point in regard to the liability of the appellant-assessee to pay the service tax in respect of the construction carried out for the Nagpur Improvement Trust as the appellant claims to have executed the agreements with the Nagpur Improvement Trust a couple of years before the provision for the payment of service tax was brought into effect - matter is remanded to the Tribunal for a fresh decision on the appeal filed by the appellant-assessee on merits - appeal allowed by way of remand.
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2016 (10) TMI 1096
Refund claim - unjust enrichment - tax paid on Chit Fund activity, which was not taxable - Held that: - When there is no taxability, there shall not be any leviability. When Revenue did not make any verification from any chit subscriber or from any record available at their disposal, there cannot be any presumption of undue enrichment by the appellant - refund allowed - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1095
Auction of aircraft - nomination - whether it is agreeable to the involvement of an auctioneer nominated by respondent No. 3? - fixation of the reserve price sufficiently in advance - Held that: - it is in the peculiar facts and circumstances of this case. This arrangement nor any disclosure made in advance in this case shall be treated as precedent in future cases. None can rely on this order and the arrangement made in future auctions and sale of goods by public auctioneers or agencies like MSTC. The procedures incorporated in the manual are not given a go-bye nor any of the provisions of that manual are interpreted by this order - It is purely to expedite the process so that the aircraft is shifted from the site that we have proposed this arrangement and parties have accepted it on that basis - the aircraft to be auctioned and sold as expeditiously as possible.
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2016 (10) TMI 1094
Disallowing claim of Bad Debts - accounting treatment to debt - Held that:- In the present case, the debt has been written off in the sense that account of the debtor is squared up by crediting the debtor and debiting the bad debt reserve account. This accounting treatment, in our considered view, does amount to actual writ off of the debit. However, since this entry does not touch upon the profit and loss account at this stage directly, the authorities below have declined to treat it as a write off of the debts. What is overlooked in the process is that provision, which is partially squared up in this year to the credit of the debtor, was created in earlier years to the debit of profit and loss account but added back as provision is not tax deductible. As regards the learned CIT(A)’s reference to proviso to section 36(1)(vii), which, in turns, refers to section 36(1)(viia), to provisions made under section 36(1)(viia) which admittedly is not the case here. In view of these discussions, as also bearing in mind entirety of the case, the grievance of the assessee must be upheld. Accordingly, disallowance of deduction for bad debts is deleted. - Decided in favour of assessee.
Excess provision of interest payable written back - provision was never claimed as deduction - Held that:- CIT(A) has justified the same by observing that “considering these facts, reversal of interest expense is income under section 41(1) of Income Tax Act” but then section 41(1) comes into play only when “an allowance or deduction has been made in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee.” In the case before us, the provision was never claimed as deduction as it was added back in the computation of income. Clearly, section 41(1) has no application in the matter. When provision was never claimed as deduction, there cannot be any occasion to bring to tax reversal of such a provision. The entire exercise of creating this provision, and reversing the same – partly or fully, is completely tax neutral. The fact that income was eligible for deduction under section 80P, even if that be so, is wholly irrelevant in this context. In view of these discussions, we uphold the grievance of the assessee. Additions deleted - - Decided in favour of assessee.
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2016 (10) TMI 1093
Clearing and Forwarding Agent Services - appellant has entered into contracts with the fertilizer companies for carrying out certain specified activities - Held that: - The important feature that distinguishes the “C&F Agent Service” is that the agent should provide a warehouse for storage of goods to the principal company and to dispatch the goods to the destination as instructed by the principal company. However, in the present case maintain a warehouse for the principal company is not a part of the agreement - the main activity undertaken by the respondent is clearly for transportation of goods by road and other activities such as loading/unloading are incidental to principal activities of transportation - services not covered under the ‘C&F Agent Service’ - appeal dismissed - decided against Revenue.
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2016 (10) TMI 1092
Penalty - case of appellant is that due to confusion in the application of the law, the input credit taken, which was reversed on being pointed out - Held that: - When erection and commissioning of water treatment plant was essential, there should not be denial of Cenvat credit of service tax paid in respect of such service availed for recycling of the water for use in manufacture - When the authority did not rule out use of the area for parking of the vehicles which are used in the manufacturing activities of the appellant, there cannot be disintegration between the input service as well as the purpose of the business and manufacture. Therefore, denial of Cenvat credit on this count is inconceivable.
So far as the availing of services of the service of contractor for clearing of the jungle to accommodate the vehicle for transportation of the materials of the factory is concerned, the authority could not appreciate the necessity of such parking place for the vehicles - penalty only for this part upheld - appeal allowed - decided partly in favor of appellant.
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2016 (10) TMI 1091
CENVAT credit - duty paying invoices - In one of the invoice credit was taken on Xerox copy of the invoice - Serial Number of the invoices either not printed or hand written - Held that: - The allegation made by the Revenue is of procedural nature and for such procedural lapse substantial benefit of Cenvat credit cannot be denied as the duty payment under invoice, receipt of input and use thereof has not been disputed - In the appellant’s own case PEPSICO INDIA HOLDING P LTD Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-II [2012 (7) TMI 53 - CESTAT, MUMBAI], on the similar issue this Tribunal held that as per Rule 11 of Cenvat Credit Rules, 2002 Cenvat credit can be availed on the strength of invoice which shall be serially numbered, there is no requirement in the rule that invoice should have printed serially numbered, accordingly Cenvat credit was allowed.
As regard the credit taken on Xerox copy of invoices, the issue is covered by judgment of Hon’ble Gujarat High Court in case of Steelco Gujarat Ltd. [2010 (2) TMI 307 - GUJARAT HIGH COURT], where it was held that denial of credit on this procedural irregularity would not be justified - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 1090
Penalty - Rule 96ZQ(5)(ii) of the Central Excise Rules, 1944 - Held that: - The penalty levied under Rule 96ZQ(5)(ii) of the Central Excise Rules, 1944 cannot survive once the Rule itself has been struck down by the Hon’ble Supreme Court of India. It is conceded, therefore, that the Revenue’s appeal would have to be dismissed - decided against Revenue.
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2016 (10) TMI 1089
Seizure of 16 MT of dry betel nuts - grievance of petitioner is that despite the order dated 5-11-2015 of this Court in WP(C) No. 329 of 2014, the concerned authority has not considered the preliminary issues and the matter is sought to be taken up for final hearing without the decision of preliminary issues by the competent authority - Held that: - The conclusion of the letter dated 10-5-2016, effectively nullifies the decision, if at all taken by the Assistant Commissioner. Moreover, when it had been an admitted position that the adjudication was to be carried out by some other authority who would be competent to deal with the matter, we find it rather unjustified that the preliminary issues were sought to be dealt with by the Assistant Commissioner at all.
When we have enquired if any date has been fixed by the competent authority for further proceeding in the matter, learned counsel Mr. N. Mozika, after taking instructions, submits that no further date after 15-9-2016 has been fixed - this writ petition is disposed of at this stage itself with the observations foregoing and with directions that the petitioner shall appear before the concerned Additional Commissioner on 9-11-2016 - petition allowed by way of remand.
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2016 (10) TMI 1088
‘Waterfall’ provision of Section 150 of the CA - auction of goods - import of 2,000 MT of Heavy Aromatics of South Korean origin from a Singapore supplier - orders injuncting respondent Nos. 1 & 2 from selling, transferring, alienating and/or creating any third party interest or parting with possession of 2002.01 MT of Heavy Aromatics pledged with the petitioner and lying in the bonded warehouse of respondent No. 2 at Mundra till such time as the entire dues of the petitioner were recovered from respondent No. 1 - Held that: - it requires to be noticed that, ordinarily, a direction under Section 9 of the Act will not be issued to a party which is not a party to the arbitration agreement. However, this Court has in a series of judgments held that Section 9 of the Act does not limit the jurisdiction of the Court to pass appropriate interim orders which might affect third parties deriving a title “from the party to the agreement unlike the third party having an independent right.”
It is, therefore, seen that the owner of the goods is last in the sequence. The petitioner as a pledgee could at best be said to have stepped into the shoes of the owner and, therefore, in terms of Section 150 of the CA, the dues of the petitioner would have to await the settlement of the Customs duty and dues of respondent No. 2.
The Court finds merit in the submission of Mr. Sibal that the sale of the goods can take place only in terms of Section 150 of the CA. The goods in question are imported and have not been cleared within a period of thirty days after such import. Sections 48 read with Sections 142A and 150 of the CA are straightway attracted. Therefore, the sale of the warehoused goods has to take place only in accordance with Section 150 of the CA and the proceeds thereof have to be applied in the manner provided therein. The dues of the Customs authorities and that of respondent No. 2 have a priority over those of the petitioner and the sale proceeds will have to be applied to settle the dues in that order. Consequently, the question of permitting the petitioner as a pledgee of the goods to bring the goods to sale by way of public auction does not arise.
Without any unnecessary delay, respondent No. 2 should initiate the process, if it has not done so already, to bring the goods to sale by way of public auction after notice to the petitioner. The application of the proceeds of such auction sale will abide by the ‘waterfall’ provision of Section 150 of the CA - The interim orders passed by this Court, thus, far, stand vacated - petition disposed off.
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2016 (10) TMI 1087
SAD refund - benefit of N/N. 45/2005-Cus., dated 16-5-2005 - The Revenue’s contention was that since no sales tax and VAT tax stand paid by the appellant in respect of their final product, so cleared, the benefit of the Notification will not be available to them - Held that: - bills of entries are also appealable in nature and any appeal filed theiragainst was required to be taken up as an appeal by Commissioner (Appeals) and to be decided on merits - Inasmuch as merits have not been considered by him, we deem it fit to remand the matter to Commissioner (Appeals) for decision on merits - appeal allowed by way of remand.
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2016 (10) TMI 1086
PMLA - Attachment orders - Held that:- The documents relied upon or referred to in the matter may not be supplied simply on the grounds that most of the documents are already in the possession of the appellants or on the ground that they are not relevant. We are of the considered view that once the documents are referred or likely to be referred while passing the order after considering the reply and taking into account all the relevant materials placed on record, under sub-section (2) of Section 8 of the PMLA, the same are necessary to be supplied, even though some of the documents are already in the possession of the accused person. As far as the attachment of any other properties and/or further attachment of properties are concerned where the investigation is ongoing, the appellants are not entitled to any document and part of the statement(s) of witnesses recorded during the investigation at this stage if it relates to such attachment/on-going investigations. Only the documents referred to in the statement of witnesses in relation to the attachment of properties as covered in the present P.A.O. and relied on in the present original complaint are to be supplied.
The prayers made in the above-mentioned appeals are partly allowed by setting aside the impugned orders dated 8-9-2016. The limited prayer is granted by directing the respondent to supply the copies of statement(s) of witnesses recorded by the investigation and pertaining to the attachment of certain properties under the present P.A.O. and relied on in the present original complaint which are in its possession, and the documents shown/tendered during such statement(s) to the appellants within a period of 10 days from today. It is agreed by the learned counsels for the appellants that they will file the reply within 10 days thereafter and would not seek any adjournment in the matter before the Adjudicating Authority so that the Adjudicating Authority would be at liberty to decide the show cause notice issued within the time prescribed under the Act.
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2016 (10) TMI 1085
Valuation - Iranian Pistachios with Shell - enhancement of value - value enhanced solely on the basis of European Public Ledger - Held that: - It is settled that for applying the comparable price of any goods, it is necessary to bring on record that the quality of goods is identical, country of origin is same and the quantity of goods imported and the quantity of the comparable import is also same - In the present case obviously when the price was taken from the European Public Ledger no quantity or any particular import might have been referred in the public ledger - there is no discussion or any evidence taken on record which can show that the price mentioned in European Public Ledger is in respect of the same quality/quantity of goods and from the same country of origin - the price mentioned in the European Public Ledger cannot be blindly applied for enhancement of the declared invoice value of the respondent - appeal dismissed - decided against Revenue.
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