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Showing 301 to 320 of 1666 Records
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2017 (10) TMI 1369
Utilization of CENVAT Credit - Whether Section 68(2) of the Central Excise Act, 1994 read with Rule 6(2) of Service Tax rules, 1994 & Rule 3(4) of the Cenvat Rules, 2004 permit utilize of Cenvat Credit account for payment of Service Tax on Goods Transport Agency service during the relevant period of February, 2005 to September, 2006?
Held that:- The SLP is pending against the decision of Punjab & Haryana High Court - the issue is required to be answered in favour of the assessee against the department - appeal dismissed.
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2017 (10) TMI 1368
CENVAT credit - Input service - housekeeping service - denial on account of nexus - Held that:- Services in question are vital for keeping the factory, including the shop-floor, machines etc. clean and provides the requisite environment for carrying out the manufacturing process of paper and that the services in question are thus related to the manufacturing activity - Credit allowed - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1367
Breach of trust by trustee by selling the assets of the Company - sale of immovable property - value of the property and the buildings of the R1 company when it was sold to the R7 Company - Held that:- Respondents 2 to 6 have sold their entire shareholding to the R7 Company. They have also sold the properties shown in the last available balance sheet for the year 31.03.2001 of the 1st Respondent Company. All these points have been, at length, discussed above. Both the petitioners and the Respondents have not produced any documents or the accounts of the R1 Company for the subsequent years which could clearly indicate clear financial position of the R1 Company.
To enable this Tribunal to arrive at a decision based on facts, it is hereby ordered;
1. That an independent Auditor may be appointed, through mutual consent among the parties, to arrive at the value of the property and the buildings of the R1 company when it was sold to the R7 Company, (as on 31.10.2011 in terms of the sale deed attached with the petition). The auditor may also ascertain whether the proceeds have been brought into the books of R1 Company. The independent auditor will also update the accounts of the Company from 01.04.2011 onwards till the current date to ascertain the factual and financial position, with the comments, if any loss has been caused to the 1st Respondent Company by the Respondents 2 to 7, and if so, to quantify the same.
2. A Practicing Company Secretary may also be appointed through mutual consent among the parties to verify whether the procedures and the practices required to be followed in compliance to the Companies Act and various other rules have been followed while selling the shares of R2 to R6 together with the sale of the R1 Company's assets to R7.
3. The Practicing Company Secretary may also provide the details regarding shareholding pattern in the R1 and R7 Companies together with the particulars of their Board of Directors at the time when the assets of the Company and the shares held by respondents No. 2 to 6 were sold/transferred to Respondent No. 7.
4. The independent Auditor and Practicing Company Secretary may submit their reports within two months after their date of appointment.
5. In case, the petitioners and Respondents are unable to arrive at a consensus for appointing an independent auditor and Practicing Company Secretary the parties may approach this Tribunal for their appointments.
6. The fees to be paid to the independent auditor and the Practicing Company Secretary shall be borne by the R1 Company.
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2017 (10) TMI 1366
Order passed by the Settlement Commissioner in Settlement case - manufacturing and packing of Om Brand unmanufactured tobacco - The levy of Central Excise duty is not on the basis of its clearance but is on the basis of compounded levy scheme for chewing tobacco and unmanufactured tobacco - The Settlement Commission, allowed the settlement on petitioners paying full duty of ₹ 3 crores and only reduction was granted in penalty and protection was granted qua prosecution.
Held that:- The power of the Settlement Commission is essentially probing into the extinguishing circumstances that has been pleaded and examined the material placed before it by the assessee and came to its own conclusion, which is not an adjudicatory powers to access the less power to examine and give its findings qua the fact of the assessee which would indicate that Settlement Commissioner has applied its mind to the aspect pleaded and circumstances placed along with the documents in support thereof.
The Settlement Commission coming to the conclusion on a premise that as per Tobacco machine, Commission is not examining the aspect of consumption of electricity, raw material etc., would paid into insignificance is not borne out by close perusal of the Rules, more specifically Rule 6(iii), who has by way of employment of language i.e. ‘operating machine’, the said would presupposes that there is merely an existence of machine in the factory would in own strength is not making authority entitled to count the machine capacity for slapping the duty and word ‘operating machine’ would receive to take into consideration only the operating machine and even there is a specific plea that machine was not operating, it was bounden duty casted upon to clarify and examine the material placed on record and said material are available or not in that regard, the commission has to give its findings.
The matter is required to be remanded back to the Settlement Commission for its reconsideration - petition allowed by way of remand.
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2017 (10) TMI 1365
Clandestine removal - it was alleged that 504 personal computers were cleared without payment of duty - Held that:- It is seen from the original order as well as the order passed in appeal on the finding that there was clearance without payment of duty, was not based upon concrete material. Invoices are now produced. If these records had been produced before the Adjudicating Officer, probably the Adjudicating Officer could not have come to the conclusion that he did.
The impugned order is set aside insofar as the same relates to the rejection of the claim of the appellant and the matter is remanded back to the Adjudicating Officer for a fresh consideration - appeal allowed by way of remand.
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2017 (10) TMI 1364
Review of order - import of used photocopiers - restricted item - case of Revenue is that proper remedy for the assessee is to carry the matter to the Supreme Court and that this review is nothing but a further appeal in disguise.
Held that:- There can be no dispute with the settled legal principle that a review petition cannot be permitted to masquerade as an appeal in disguise. In the normal circumstances, a judgment pronounced by the Court should be treated as final and departure from this norm would be justified only when grounds for review, in terms of Order 47 Rule 1 CPC, are specifically made out.
There was a manifest error in the order dismissing the appeal, as the issue raised therein was not even considered by this Court and the mistake committed by the CESTAT was just carried forward while dismissing the appeal - review petition allowed.
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2017 (10) TMI 1363
Recovery of the dues - Held that:- The assessee does not appear to have paid even this 15% of the disputed demand and has now approached this Court by way of present writ petition.
This Court is satisfied that the Respondent-Department's lower Assessing Authorities in all fairness should await the disposal of relevant stay applications filed by the petitioner-assessee before the next higher Authorities, either on executive side the Respondent No. 4-Principal Commissioner of Income Tax and/or First Appellate Authority, viz., Respondent No. 3 - Commissioner of Income Tax. Taking recourse to the coercive process for the recovery even prior to the disposal of such stay applications has forced assessee to rush to this Court for such interim reliefs, which actually deserves to be considered by such concerned higher Authorities of the Department itself created under the provisions of Income Tax Act, 1961 after giving due and reasonable opportunity of hearing to the assessee expeditiously and by a reasoned order.
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2017 (10) TMI 1362
Rectification of mistake - levy of Sales Tax - purview of rectification - review of order not allowed in garb of rectification - Section 71 of the Chhattisgarh Commercial Tax Act, 1994 - Held that:- The application was made under Section 70 (1) of the Act of 1994 before the Board of Revenue for making reference to this Court for consideration on the question of law, but that was not done and reference application has been allowed to be converted into rectification application under Section 71 of the Act of 1994 immediately and without notice in writing as required under second proviso to sub-section (1) of Section 71 of the Act of 1994 - original application was filed for making reference to this Court, in that event, application for rectification ought not to have been entertained by the Board of Revenue that too without statutory notice prescribed under the Act of 1994 to the petitioners.
The impugned order dated 26.9.2003 and consequential orders passed by the Board of Revenue qua the petitioners herein are hereby set aside - the matter is remitted to the Commercial Tax Tribunal, who shall hear the parties and consider the application under Section 71 (1) of the Act of 1994 expeditiously in view of the fact that matter is old one - petition allowed by way of remand.
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2017 (10) TMI 1361
Validity of assessment order - main ground on which the impugned orders have been challenged is on the ground that it violates the principles of natural justice - Held that:- Since the impugned assessment orders have been passed based on mismatch, as culled out from the official website and on the alleged ground that the petitioner has effected purchases from registration certificate cancelled dealers, this is a case where the respondent should have furnished all details and given the assessee, adequate opportunity to file their objections - this Court is satisfied that the impugned assessment orders are in violation of principles of natural justice.
The matter is remanded to the respondent for fresh consideration - petition allowed by way of remand.
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2017 (10) TMI 1360
Manufacture - galvanizing of the steel products - Job-work - Revenue-neutral situation - Held that:- From the various jurisdictional pronouncements, it has been held that the activity of galvanizing of the steel items amount to manufacture and the same has been stated in the Chapter Note 4 of Chapter 73 of the Central Excise Tariff Act - Admittedly, the appellant is engaged in the activity of galvanizing which amounts to manufacture.
The appellant is liable to pay duty, therefore, demand of duty alongwith interest is confirmed and as the appellant did not pay the duty in time - the penalty on the appellant is also confirmed - appeal dismissed - decided against appellant.
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2017 (10) TMI 1359
Condonation of delay in filling appeal - bonafide reason and compelling circumstances beyond control of the appellant - as submitted the assessee was under judicial custody - Held that:- The facts with regard to the assessee’s judicial custody between 2010-2015 was not disputed by the lower authorities. CIT(A), though has given number of hearings, the assessee could not attend the hearing for the reasons beyond his control. No doubt, the assessee has to appear before the authorities if he is interested in prosecuting his appeal and file necessary evidence to justify his case. In this case, the reasons quoted by the assessee for not appearing before CIT(A), is no doubt beyond his control.
Thus the issue needs to be re-examined by the AO in the light of the fact that the assessee was not able to appear during the assessment proceedings and appellate proceedings and also additional evidences filed by the assessee - decided in favour of assessee for statistical purposes.
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2017 (10) TMI 1358
Additions u/s 68 - source of cash deposit in the bank account - CIT(A) found that the bank account in which cash have been deposited is owned by three persons including the assessee. Therefore, the whole amount of should not be taxed in the hands of the assessee. - Held that:- There is a cash deposit in the joint bank account maintained by assessee and others, the source of which is not explained. Therefore, provisions of Section 69/69A are clearly attracted in this case. The Ld. CIT(A) has already taken care of this issue and applied Section 69A of the I. T. Act while confirming the addition on merit.
The totality of the facts and circumstances clearly prove that assessee failed to explain deposit of huge cash in the joint bank account to the satisfaction of the authorities below. The authorities below therefore, rightly rejected the contention of the assessee that amount is redeposited after making withdrawal from the same bank account. The Ld. CIT(A) on proper appreciation of the facts and material on record, correctly sustained the addition of 1/3rd amount in question under section 69A of the I. T. Act. - Decided against the assessee.
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2017 (10) TMI 1357
Commercial concern - appellant is a society formed for the re-settlement of ex-servicemen - demand of service tax - Held that:- Identical issue decided in the case of PUNJAB EX-SERVICEMEN CORPORATION VERSUS UNION OF INDIA [2010 (9) TMI 871 - PUNJAB & HARYANA HIGH COURT], where it was held that As per definition of security agency under Section 65(94) service provider should be engaged in the business rendering specified service. There is no warrant for reading therein requirement of profit motive.
In view of reasoning adopted by the Tribunal and the penalty which has been waived and considering that the society is consisted of exservicemen, it can be firmly concluded that no substantial question of law arises.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1356
Refund of unutilized CENVAT Credit - closure of factory - Whether the lower authorities have correctly considered the law, for rejection of the refund claim filed by the appellant in respect of accumulated credits which could not be utilized due to closure of the appellant s unit?
Held that:- The judgement of the Hon ble High Court of Karnataka in the case of Slovak India Trading Co. [2006 (7) TMI 9 - KARNATAKA HIGH COURT], on the issue, will support the case of appellant being an identical issue, where it was held that Refund of credit is admissible, when there was no manufacture in the light of closure of factory and he has come out of Modvat scheme - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1355
Additions u/s 68 - peak credit balance in the SB accounts - additions against difference in the amount of purchases - Held that:- AO directed to restrict the addition on this issue to the extent of combined peak credit balance of all the 3 bank accounts in question. - The AO is directed to verify the working of peak credit and allow appropriate relief to the assessee on this issue.
Additions towards difference in the amount of purchases - Held that:- the said information was confronted by the AO to the assessee pointing out the difference in the amount of purchases and an opportunity was also given to the assesses to explain/reconcile the same. The assessee however failed to explain/reconcile the said difference and this failure continued even during the course of appellate proceedings before the Ld. CIT (A) where the assessee got another opportunity to reconcile/explain the difference in the amount of purchases specifically pointed out by the AO. - Addition confirmed.
The appeal of the assessee is partly allowed.
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2017 (10) TMI 1354
Disallowance of the loss arising due to the payment made by the assessee towards the premature termination of the securitization agreement with Axis Bank - Nature of loss - AO had held that the nature of the outstanding principle could partake the character of the capital loss only and not Revenue loss. - Held that:- On merits, the assessee has produced no evidence to substantiate his case that the income in respect of the securitization of the said loans has been offered during the relevant assessment years. The assessee is also not in a position to show the agreement with the Axis Bank in respect of the preclosure of the securitization or the mutually agreed to computation. - Additions confirmed.
Disallowance u/s. 14A r.w.r. 8D - CIT(A) deleted the disallowance - CIT(A) had excluded the interest amounts pertaining to the term loans for the purpose of computing the disallowance u/s. 14A r. w. r. 8D. - Held that:- The assessee has produced evidence before the Ld. CIT(A) claiming that the investment in the government securities have yielded taxable income and the same have been accepted by the Ld. CIT(A). However, as these evidences have not been verified by the AO, in the interest of natural justice, the issue of the computation of the disallowance u/s. 14A r. w. r. 8D is restored to the file of the AO only because the evidences have been produced before the Ld. CIT(A) and he has done the verification without granting an opportunity to the AO. - Decided in favor of revenue for statistical purposes.
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2017 (10) TMI 1353
Addition made on account of unexplained investment in properties as per the diaries recovered when the identity of the property has been established and found to be matching in amount with the seized document which could be treated as corroborative evidence - Addition u/s. 2(22)(e) - no addition can be made in assessment u/s. 153A which does not emanate from the incrimination documents seized?
Held that:- As decided in favour in case of the wife of the present assessee the case of the Revenue is that certain loose documents were found during search representing the assessee's cash transactions recorded in terms of rupees in crores. The assessee, however, denied this suggesting that these figures represented the calculations for the purpose of vastu shastra. CIT (Appeals) as well as the Tribunal concurrently held that there was no material suggesting that the figures indicated in loose papers represented assessee's cash transactions. This was thus purely a question of fact. No question of law therefore arises.
Second question pertains to deemed dividend under section 2(22)(e) of the Act. The Tribunal found that there was no material found during the survey relatable to this issue and therefore confirmed the view of the CIT(Appeals)
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2017 (10) TMI 1352
Addition on account of household expenses - Held that:- We notice that the Tribunal's findings are essentially based on appreciation of evidence. Even otherwise, the amount involved is not very large. Interalia on such grounds, this Tax Appeal is dismissed.
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2017 (10) TMI 1351
Addition made on account of unexplained investment in properties as per the diaries recovered w - identity of the property has been established and found to be matching in amount with the seized document which could be treated as corroborative evidence - addition on account of household expenses - Held that:- These questions have been separately considered in assessee's own cases. Tribunal correctly deleted the addition
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2017 (10) TMI 1350
Misdeclaration of value and description of imported goods - Held that:- It is established that there was mis-declaration of the value of the goods which cannot be said to be inadvertent for no rebuttal made by appellant leading any cogent and credible evidence. Chartered Engineer’s technical details could not be challenged by appellant leading any evidence - appeal dismissed - decided against appellant.
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