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Case Laws
Showing 301 to 320 of 721 Records
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2010 (11) TMI 840
Interest income - taxable under the head ''income from business''- HELD THAT:- We find that it is not in dispute that the assessee had to invest funds in fixed deposits and offered them as margin towards obtaining the letters of credit and other guarantees for various projects. In the case of Lok Holdings[2008 (1) TMI 365 - BOMBAY HIGH COURT] held that money received by a property developer from prospective purchases during the progress of construction and where such funds were deposited by an assessee with the bank, interest earned on such deposits was held to have arisen out of business activity and, therefore, the same had to be construed as income from business. In view of this, we are of the view that the order of CIT(A) holding that the interest income is income from business has to be upheld and dismiss ground in the appeals.
claims in respect of general administrative expenses incurred by the foreign head office and foreign companies operating through branches in India - HELD THAT:- In this regard the assessee had field time sheet, on daily basis for each employee in the organization and have recorded the man hours on daily basis through ERP software.The time spent on the Indian Projects are properly segregated. The same have been-verified by the auditors and certified. In the remand report the AO has not found fault with the same. In such circumstances we are of the view that the findings of the CIT(A) have to be accepted. Once it is held that the disputed expenses are directly related to the Indian Project then the provisions of section 44C will not come into operation. In this view of the matter, we do not find any infirmity in the order of the CIT(A) and Ground No. 2 of the revenue in both the appeals are dismissed.
services provided by Samsung Corporation is not technical in nature and hence, the fees received cannot be taxed in India in absence of PE in India - HELD THAT:- Admittedly the payments were made by the assessee to Samsung Engineers through the head office outside India and since the services were also rendered outside India no income cart be said to accrue or arise in India and, therefore, the payments in question are not chargeable to tax in India. In these circumstances’ there was no obligation on the part of the assessee to deduct tax at source. Consequently, the provision of section 40(a)( i) were not applicable. In the circumstances the disallowance made by the AO was rightly deleted by the CIT(A). We do not find any ground to interfere in the findings of the CIT(A). Consequently, the ground raised in both the appeals are dismissed.
Barauni is a well established township - clauses of Rule 6 DD are not applicable - HELD THAT:- The CBDT in Circular No. 220 dated 31-5-1977, has clarified that certain cash payments made in certain circumstances will not be hit by the provisions of section 40-A(3). Therefore, we are of the view that the disallowance u/s 40A(3) deleted by the CIT(A) was right and deserves to be confirmed and the Department’s appeal on this point also is dismissed.
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2010 (11) TMI 839
TP Adjustment - Computation of arm’s length price - failure to allow the appellant an option for the downward variation of 5 percent in determining the arm’s length price - HELD THAT:- The facts stated in the assessment order are very clear. The Assessing Officer is taking the entire turnover while computing the arm’s length price whereas the international transactions of the assessee constitute only 9.71 per cent of the total transactions. The matter being clear from the record itself, it is not considered proper to restore this issue to the file of CIT (A).
The case of the assessee is well supported by the decision of Coordinate Bench in the case of IL JIN ELECTRONICS (I) (P.) LTD. VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-11(1), NEW DELHI [2009 (11) TMI 669 - ITAT DELHI], where it was held that the Assessing Officer directed to modify the assessment and make the adjustment only to the extent of difference in the arm’s length operating profit with adjusted profit with reference to the 45.51 per cent of the turnover, and not to the total turnover of the assessee. - Applying the said ratio, the Assessing Officer are directed to modify the assessment and make the adjustment only to the extent of difference in arm’s length price operating profit with adjusted profit with reference to 9.71 per cent of the turnover and not to the total turnover of the assessee.
Grant of 5 per cent profit - HELD THAT:- The issue is also supported by the aforementioned decisions relied upon by ld. AR. Therefore, the Assessing Officer are directed to give the said adjustment also to the assessee.
We direct the Assessing Officer to go through the figures shown in the chart and if the chart prepared by the assessee is in accordance with the aforementioned directions, then, the Assessing Officer will compute the arm’s length price as per the aforementioned chart and give proper relief to the assessee - The appeal filed by the assessee is partly allowed for statistical purposes.
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2010 (11) TMI 838
Addition - Unexplained investments - addition u/s 68 - On the basis of mere credit entry, it cannot be accepted as interred as to who has given this amount - assessee has filed most of the details in respect of each and every share applicants. In some cases assessee filed new confirmatory Emails, since long time had elapsed and parties were away, out of India. Lower authorities have given lot of preference to the requirement of filing of new evidence ignoring that at the relevant time assessee had filed documents to discharge its onus. - Held that:- it is settled law that the assessee need not to prove the 'source of source - assessee has duly discharged its onus viewed from any angle and the addition u/s 68 is not justified in this case - Decided in favour of the assessee
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2010 (11) TMI 837
Demand - Time limitation - Since it is a fact that the appellants have not filed the requisite return, the penalties imposed under Section 77 are in order and the same do not require to be interfered with - Since the appellants have not challenged the applicability of longer period of limitation to the tax demand on the ground of suppression etc., I am of the view that the penalty in respect of the tax demand for the longer period is imposable - The appellants are also required to be given an option to pay 25% of the penalty amount within one month of passing the order as provided under the statute - Appeals are allowed
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2010 (11) TMI 835
Cenvat credit - Demand - warehousing and cargo handling services - Time limitation - it is clear that the criteria for invoking extended period of limitation under proviso to Section 11A(1) is identical to the criteria for imposition of penalty under Section 11AC - there is no dispute about the fact that the ER-I Returns had disclosed the availment of Cenvat Credit but since there is no requirement for enclosing the invoices or giving the details of such credit or neither such details were given nor the invoices were enclosed - Moreover when the quantum of service tax credit availed had been disclosed, the officers were always free to inquire from the respondent about details of the same and satisfy themselves about its correctness - Decided in favor of the assessee
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2010 (11) TMI 834
Valuation of share - reduction of equity share capital - valuation of shares - objections - minor shareholder - intervenor - held that:- In my view KPMG has used the widely accepted methodologies i.e., the Discounted Cash Flows Methodology and the Comparable Companies Methodology which inter alia includes the P/E multiple analysis for valuation of WIL’s shares.
the role of the court whilst approving such schemes is limited to the extent of ensuring that the scheme is not unconscionable or illegal or unfair or unjust. Merely because the determination of the share exchange ratio or the valuation is done by a different method which might result in a different conclusion, it alone would not justify interference, unless found to be unfair.
Even if only the non-promoter shareholders’ voting is taken into account, the resolution proposing reduction of the share capital of WIL is approved by an overwhelming majority of 93.94 per cent of non-promoter shareholders in number and 85.97 per cent in value in the said EGM.
Except for the four intervenors, no other person has come forward to oppose the Petition. Among these intervenors, two of the four did not even attend the EGM. As regards their position - where a shareholder did not attend the meeting and vote against the scheme, it is too late in the day for him to contend that the scheme was unfair to him.
The intervenors have not attributed any motives to KPMG, nor commented on its independent professional status or competency, nor have they been able to point out that the method adopted by them in valuing the shares was impermissible or absurd.
Company Petition allowed.
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2010 (11) TMI 833
Winding up – default in payment to creditors - petitioner issued a notice of demand for the recovery of USD 582,095.40, stating, inter alia, respondent had never previously objected to the quality of the components/goods supplied by the petitioner – no settlement was possible - Held that:- winding up petition has been admitted and the Official Liquidator attached to this Court has been appointed as the provisional liquidator of the company
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2010 (11) TMI 832
Winding up order due to non payment of lease rent - possession of land - priority over other debts payable by the lessee on its liquidation. - payment of lease rent as liquidation expenses - held that:- no legal impediment in handing over of the actual vacant possession of the land by the official liquidator to the appellant-Port Trust as, to reiterate, M/s. Scrapt Traders, as on date, has no right in law to hold on to the said land. - In the face of the categorical finding of the court that the rent payable by the official liquidator must be disbursed before discharging any debts of the company in liquidation, the plea based on section 529A by M/s. Scrapt Traders is also of no avail. - The official liquidator would forthwith deliver vacant physical possession of the land to the appellant-Port Trust and would simultaneously quantify and defray the rent payable to it in terms of the present adjudication.
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2010 (11) TMI 831
Shortage of finished goods - clandestine removal of the goods – penalty - Director of the company Shri Virendra Jakhodia admitted shortage in his statement given under Section 14 of the Central Excise Act and explained that the same would have happened due to the workers clearing the goods without issuing invoices and without payment of duty – Held that:- Merely because the company admitted the duty liability and paid the same, that is no ground for setting aside penalty. The Commissioner (Appeals) has either not noticed the admission statements of the Director or ignored in recording the same in his order-in-appeal. On both occasions huge shortages were found and the admission by the Director that the goods would have been cleared by his staff without payment of duty is sufficient to conclude that there was clandestine removal of the goods, Department appeals are allowed
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2010 (11) TMI 830
Delay in filing appeal – Held that:- before the Commissioner (Appeals) if the appeal is not filed within the period of 90 days from the date of communication, such appeal cannot be entertained by the Commissioner (Appeals) nor the Commissioner (Appeals) can condone the delay beyond 90 days. It is also settled law that the Appellate Authority also cannot condone the delay in that regard, appeal dismissed
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2010 (11) TMI 829
Order - Commissioner of Customs (Appeals), Cochin reducing the quanta of fine and penalty imposed on the respondent by the original authority - respondent, it is submitted that they did not receive any copy of the above order and that what they received is a copy of Order-in-Appeal of even number passed on 30-9-08 but issued on 19-11-08 - submitted that they did not know as to which of the order is the order passed by the Commissioner (Appeals) in the appeal filed by them against the Order-in-Original – Held that:- other order was issued on 19-11-2008 and the same was not received by the Commissioner of Customs, Cochin, though it was received by the respondent. Both the orders were apparently passed in an appeal filed by the respondent against Order-in-Original No. 64/2008 dated 13-6-2008 passed by the Joint Commissioner of Customs (SIIB), Cochin, orders of the Commissioner (Appeals) are set aside and this appeal is allowed by way of remand
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2010 (11) TMI 828
Liability of the appellant to pay sales tax on the sales made by it - notification contemplates deferment of sales tax for a period of 5 years wherever sales tax levy is applicable on the purchases for the film city project – Held that:- stand of the appellant that the notification would cover the sales made by it to the Corporation in the years 1994-95 and 1995-96 which fall in the stipulated period of five years, court would be loathe to examine contentions of facts based on evidence, advanced for the first time before this court without there being any adjudication by the High Court on the same, judgment is set aside and the matter is remitted back to the Tribunal appeal is allowed
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2010 (11) TMI 826
Confiscation and penalty - smuggled goods - defence of the appellant was that he had legally purchased the goods and was not responsible for the alleged smuggling of these goods. However, he could not give the name of the person from whom the goods were allegedly purchased - seized goods carried the name of country ‘Malaysia’ with year of manufacturing 2000 whereas the baggage receipts were of the year 1998-99 and from this fact it is concluded that the said receipts did not relate to the seized goods - contention of the appellant qua Section 123 of the Customs Act, No question of law arises, appeal is dismissed
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2010 (11) TMI 824
Delay in filing the application u/s 10(23C)(vi) - Held that:- Period of limitation for entertaining applications under section 10(23C)(vi) for grant of exemption on or after the 1st day of June, 2006. The Legislature has, however, not made any provision for condonation of the delay in presenting such an application. The Chief Commissioner of Income-tax, being a creature of the statute, cannot travel beyond the statutory provisions, and could not, therefore, have condoned the delay in presenting the application under section 10(23C)(vi) beyond the period of limitation, fourteenth proviso does not empower the Chief Commissioner of Income-tax to condone the delay in filing the application, the order passed by him, rejecting the petitioner's application for the assessment year 2008-09 on the ground that it was belated, cannot be faulted
Some of their objects were non-educational, and they were not registered under A. P. Act 30 of 1987 - Held that:- The order of the first respondent, in rejecting the petitioner's application for the assessment year 2009-10 on the ground that their objects were non educational, cannot be faulted. Even if the petitioner's contention that registration under A. P. Act 30 of 1987 is not a condition precedent, in view of the judgment of this court in New Noble Educational Society v. Chief CIT [2010 (11) TMI 761 - Andhra Pradesh High Court] & is to be accepted, since the object of "eradicating unemployment" can neither be said to be integrally connected with or as being ancillary to, the object of providing education, the order of the first respondent in rejecting the petitioner's application for exemption under section 10(23C)(vi) for the assessment year 2009-10 cannot be faulted. Against assessee.
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2010 (11) TMI 823
Revision application - drawback claim under Section 74 of Customs Act - Assistant Commissioner of Customs (Drawback) rejected claim - Government notes that the description of the goods as given in all the import tallies with the description given in export documents. The foreign remittance is also received as per B.R.C. - Held that:- Satisfaction is reached by inspection of the goods/packages, comparing the examination report or other connected documents relating to import formalities with examination of goods as reflected in the shipping bill against which drawback is claimed, there is a sufficient evidence on records as discussed above, to establish the identity of goods re-exported and correlate the re-exported goods with the imported goods. As such, identity of the goods gets established and applicants are eligible for drawback as claimed by them. Government set aside the impugned orders and diverts the original authority to sanction the said drawback if otherwise in order, revision application succeeds in terms of above.
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2010 (11) TMI 822
Cenvat credit - Assessee procured central excise duty paid invoice but have not received the goods mentioned in the invoice physically as the dealers who has supplied the goods have never received the goods auctioned by M/s. Ispat Industries Ltd. and the same were diverted to Viramgam units which are availing SSI exemption and are not required the duty paid invoices - Held that:- Allegation that the appellant was in knowledge that these impugned goods have not suffered any duty has not been established by the department with corroborative evidence that these goods are for the Hot Rolled Trimmings (HRT). For the earlier period also this Tribunal on the similar facts have found that the Revenue has not considered the fact that the appellant has received the goods and consumed the inputs in the factory premises and paid duty for the same and there is no contrary evidence to show that the appellant has not paid duty to their supplier on the invoice raised on them and allowed CENVAT credit to the appellants, appellant is entitled to avail CENVAT credit on the inputs procured by them against the duty paid invoice. Accordingly, the impugned order is set aside. Appeal is allowed with consequential relief, if any.
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2010 (11) TMI 821
Waiver of pre-deposit and stay of recovery - 100% EOU - raw materials indigenously procured by them without payment of Central Excise duty - demand is based on the finding that the said raw materials were not used for the intended purpose of manufacture of goods for export in discharge of export obligation but, instead, diverted - condition attached to Notification No. 1/95-C.E. ibid was that the indigenously procured raw material be used in the manufacture of finished goods for export – Held that:- In the absence of the requisite certificates from the Development Commissioner, it cannot be said that M/s. Umaji Overseas complied with this condition. The EOU apparently failed to satisfy the other important condition of having to attain Net Foreign Exchange proportionate to the value of the raw materials procured from indigenous sources. When the two prime conditions of the Notification were not satisfied by the EOU, they were required to pay the duty of excise foregone in respect of the raw materials indigenously procured by them under the EOU scheme. Therefore, prima facie, M/s. Umaji Overseas are liable to make pre-deposit of the amount of duty demanded by the Commissioner, stay application filed by M/s. Umaji Overseas, there is an averment that their factory was closed in August, 2002 and that they are not in a position to pre-deposit any amount of duty. There is also a reference to “balance sheet enclosed to this stay application” but not found any. Apparently, the appellant has no financial hardships, assessee directed to pre-deposit
Job work - Penalty - counsel for M/s. Enkay Texofood Industries Limited has submitted that no penalty was liable to be imposed on them under Rule 26 of the Central Excise Rules inasmuch as this company did not collude with M/s. Umaji Overseas (assessee). It is submitted that this company undertook job-work for M/s. Umaji Overseas by making use of a diesel-driven generating set in the absence of electricity connection to their premises – Held that:- No evidence in support of this submission. The DGCEI officials, who visited the premises of this company, did not find any DG sets. They found no manufacturing activity in the said premises, no prima facie case for the above job-worker company against the penalty imposed on them. The learned counsel for this job-worker has also pleaded financial hardships, in support of which she has submitted that BIFR proceedings are on against them, BIFR notice in this connection but no order of BIFR declaring this unit to be sick has been produced, only a nominal pre-deposit vis-a-vis the above amount of penalty of Rs. 25 lakhs imposed on them. M/s. Enkay Texofood Industries Limited should, therefore, pre-deposit an amount of Rs. 2 lakhs under Section 35F of the Central Excise Act within four weeks.
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2010 (11) TMI 820
Stay petition - Cenvat Credit on the inputs in work in progress and inputs containing in finished goods - Held that:- Appellant is entitled for credit on the inputs in work in progress and inputs containing in finished goods as on the date the inputs work in progress lying in their stock and on the date of cross of SSI exemption limit. Accordingly, the appellant is entitled for credit on the inputs containing in work in progress and inputs containing in finished goods.
The only dispute remains how much of the inputs gone in work in progress and how much inputs containing in the finished goods. For this aspect, the matter needs further examination by the adjudicating authority. Hence, the mater is sent back to the adjudicating authority to ascertain the quantity of inputs by applying the formula input and output ratio and to ascertain how much the manufacturer is entitled to claim the credit, stay petition is also disposed in the above manner.
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2010 (11) TMI 819
Cenvat credit denied - appellants has not received the inputs against the duty paying document - inputs which were received by the appellant are not those inputs which are mentioned in the invoice - Demand, interest and penalty - Held that:- Allegation can be verified only by inspection of the input in the factory of the appellants only, which could not be done in this case as the inputs have already gone in the process of manufacturing. Being a prudent buyer the appellant has taken the credit on a duty paying document which is not in dispute and same has been cleared after processing by paying duty on the same at the time of clearance. In that situation, if there is an allegation that the appellant has taken the credit at bona fide belief same is to be dealt with in accordance with the C.B.E. & C. Circular No. 766/82/2003-CX., dated 15-12-2003 wherein it has been clarified that if any action is to be taken; that is to be taken against the supplier of the goods. On the identical facts, this Tribunal has already held that demand is not sustainable in the appellant’s own case vide order dt. 11-10-2007, which has been accepted by the department, appellant has taken the credit on the duty paid invoice in accordance with the law. In the facts and circumstances of the case, the demand, interest and penalty are not sustainable. Accordingly impugned order is set aside and the appeal is allowed.
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2010 (11) TMI 815
CENVAT credit on capital goods used in the manufacture of exempted goods wrongly availed - Demand duty, interest and penalty – Held that:- Proviso to Notification No. 30/2004, dated 9-7-2004 there was no bar to the availment of exemption under Notification No. 30/2004 by a manufacturer availing capital goods credit. This apart, Rule 6(4) of the CENVAT Credit Rules, 2004 bars availment of credit on capital goods used exclusively in the manufacture of exempted goods, while in the present case, the duty on cotton yarn is an optional one enabling a manufacturer to clear the goods either without payment of duty or on payment of duty, it cannot be said that capital goods are exclusively used in the manufacture of exempted goods. The assessees paid duty subsequently, namely, during the month of August, 2008 on cotton yarn in terms of Notification No. 29/2004-C.E., dated 9-7-2004 and, therefore, the availment and utilisation of credit for paying duty on capital goods is in accordance with law. order upheld and appeal rejected
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