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Showing 301 to 320 of 1817 Records
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2013 (11) TMI 1519
Disallowance of expenditure incurred towards retainership fee paid - Held that:- authorities below have relied on their respective decisions taken in the earlier years on the same ground for the purpose of not allowing and allowing the deduction. The appeal of the assessee for the immediately preceding assessment year, i.e., 2004-05 came up for decision before the Tribunal. Vide order in Deputy CIT v. Philips Carbon Black Ltd. [2011 (5) TMI 489 - ITAT, KOLKATA], the Tribunal has accepted the assessee's claim on this issue by following the earlier order of the Tribunal. Respectfully following the precedent, we uphold the impugned order in granting the deduction in respect of retainership fee paid.
Disallowance of deduction in respect of guest house expenses - Held that:- Tribunal was pleased to grant deduction in respect of guest house expenses vide its aforestated order for the assessment year 2004-05. In the absence of any distinguishing feature having been brought to our notice by the learned Departmental representative, we uphold the impugned order in allowing deduction of the guest house expenses. This ground fails.
Disallowance of belated payment of provident fund, employees' State insurance, sales tax and other statutory liabilities - Held that:- amendment to the first proviso and the omission of the second proviso to section 43B by the Finance Act, 2003 to be retrospective - the amount of employees' provident fund deposited before the due date cannot be disallowed under section 43B of the Act.
Disallowance of Aircraft flying rights charges - Held that:- assessee adduced necessary material to indicate that the aircraft was taken on hire for its business purposes. The Assessing Officer is not competent to decide the business expediency of incurring any expenditure. Be that as it may, it is observed that the Assessing Officer did not deny that log book of the aircraft was not furnished but only that the purpose for which the journeys were undertaken or the names of the persons who undertook the travel was not specified in the log book. It is in such circumstances, that he held 25 per cent. of the expenditure was for non-business purpose. - there can be no disallowance of expenses by considering the personal use of the assets by the directors. It has further been held that this disallowance cannot be sustained by treating the expenditure as for non-business purpose. The Delhi Bench of the Tribunal in Deputy CIT v. Haryana Oxygen Ltd. [1999 (12) TMI 107 - ITAT DELHI-D] has also taken similar view. Under these circumstances, we are therefore of the considered opinion that the learned was justified in deleting this addition - Decided against Revenue.
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2013 (11) TMI 1518
Penalty u/s 271(1)(b) - assessee's failure to comply with the notice under section 142(1) - Held that:- it is evident that the notice had three paragraphs. In the printed pro forma of the notice, there is instruction to the Officer to "strike out items not applicable". However, none of the paragraphs has been stroked out. Sub-para (c) where the date and place of hearing is mentioned reads as "furnish in writing and verified in the prescribed manner information called for as per annexures and on the points or matters specified therein before me at my office at Room Nf.G-301, D-Block, Vikas Bhawan on November 3, 2010 at 11.30 AM". A statement has been made by learned counsel at the bar that along with the said notice, there was no annexure specifying the points or matters on which the assessee was supposed to file the explanation. On these facts, in our opinion, the notice is a vague notice and, when no specific information was called, what compliance is expected from the assessee is not mentioned, then if the assessee had not appeared on the date of hearing, it cannot be said that the assessee committed a default liable for penalty under section 271(1)(b). - it is not a fit case for levy of penalty under section 271(1)(b) of the Act. - Decided in favour of assessee.
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2013 (11) TMI 1517
Method of accounting - Current liability - Purchase of negative of flim - Held that:- Amount of ₹ 10,00,000 was received as an advance by the assessee in the course of its business in the assessment year 2005-06. Even if the assessee following the cash system of accounting, the said advance of ₹ 10,00,000 would be considered as income of the assessee, in the year in which the assessee has performed the work. There is no material on record that the assessee has completed the work in the assessment year under consideration, viz, assessment year 2008-09. In view of the above, we consider it prudent that this issue be set aside to the file of the Assessing Officer to consider whether the income has accrued to the assessee in the assessment year under consideration, viz., assessment year 2008-09 in respect of the said advance amount received by the assessee in the assessment year 2005-06. The Assessing Officer will allow due opportunity of hearing to the assessee and decide the issue afresh after considering such evidences as may be furnished by the assessee by a reasoned order as per law - Matter remanded back - Decided in favour of assessee.
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2013 (11) TMI 1516
Reassessment of proceedings - Change of opinion - Wrong applicability of rate of tax - Held that:- Assessing authority has not recorded any finding or had taken view either way as to whether VCD and DVD players, would attract tax at the rate of 12 per cent. under entry 75(i)(a) or at the rate of eight per cent. in the residual entry 75(ii), (iii). The assessing authority simply accepted the return filed by the assessee, and agreed that there was an error in respect of some of the consignments in which tax was erroneously charged at the rate of 12 per cent. He did not express any opinion with regard to taxability of the items so as to accept the argument that the proceedings of reassessment were based on change of opinion. - The order of the Commissioner under section 35 of the Act would form the material, the basis on which the reassessments proceedings have been initiated is the wrong application of rate of tax by the assessing authority. The order of the Commissioner may not be conclusive in that regard but would definitely be a material to initiate proceedings under section 21(2) of the Act. It will be open to the petitioner to establish by producing all such material, which may be relevant that VCD and DVD players are based on different technology and would not fall within the category of entry 75(i)(a), for the purpose of rate of tax, in the proceedings for reassessment. - Decided against assessee.
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2013 (11) TMI 1515
Levy of tax under KVAT Act - Respondent was allotted duty-free shops at the arrival and departure terminals of the Bangalore International Airport (old), Bangalore - Registration not obtained - Held that:- In view of the authoritative pronouncement of the apex court Hotel Ashoka (Indian Tour. Dev. Cor. Ltd.) v. Assistant Commissioner of Commercial Taxes reported in [2012 (2) TMI 62 - Supreme Court of India] holding such sales which are in the course of import or export are not liable to pay tax under the Karnataka Sales Tax Act. The order passed by the Karnataka Appellate Tribunal cannot be found fault with. Accordingly, there is no merit in this petitions - Decided against Revenue.
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2013 (11) TMI 1514
Rectification of mistake - Held that:- Admittedly, the petitioner did not produce the books of accounts pursuant to the notice issued by the respondent in reassessment proceedings under section 39(1) of the Act. The petitioner thereafter filed an application dated November 11, 2013, seeking declined of the reassessment order. By endorsement dated November 14, 2013, the request for rectification has not been entertained by stating that as the petitioner had not produced the books of accounts for verification nor responded to the notice issued under section 39(1) of the Act and the reassessment has been made having no other alternative. The endorsement issued for rectification shows that there are no apparent mistakes in the reassessment order and therefore, the application for rectification cannot be considered. - As the reassessment order as well as the endorsement impugned in these writ petitions have been passed without looking into the books of accounts, the only relief that could be granted to the petitioner is, to permit its representative to appear before the respondent-authority, so that its application seeking rectification could be considered after verifying the books of accounts to be produced by the petitioner - Matter remanded back - Decided in favour of assessee.
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2013 (11) TMI 1513
Whether the respondent/petitioner is bound to pay tax as per the provisions of section 3(2) of the Tamil Nadu General Sales Tax Act, 1959 or entitled to get deduction as per the provisions of section 3B(2)(b) of the said Act - Held that:- identical matters [2009 (7) TMI 1159 - MADRAS HIGH COURT] and [2013 (7) TMI 492 - MADRAS HIGH COURT] have been dealt with and both the Division Benches have uniformly and consistently held that if a person carries on his work on the basis of works contract and in connection with works contract purchased raw materials and subsequently converted the same as finished goods, he is not liable to pay tax under section 3(2) of the said Act and entitled to get deduction as per section 3B(2)(b) of the same. Since the decisions relied upon by the respondent/petitioner are later in point of time and since in the said decisions identical matters have been dealt with and ultimately found that in case of works contract, the person who engaged in the works contract, need not pay tax on finished goods as per section 3(2) of the said Act and he is entitled to get deduction under section 3B(2)(b) of the said Act, it is needless to say that the contention put forth on the side of the appellants/respondents cannot be accepted, whereas, the contention put forth on the side of the respondent/petitioner is really having subsisting force. - Decided against Revenue.
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2013 (11) TMI 1512
Disallowance u/s 40(a)(ia) for non deduction of TDS - Lease rent – applicability of provisions of section 201(1) as inserted by Finance Act, 2012 where recipient has shown the income in its return and paid the appropriate tax on such income - Held that:- The assessee was unable to pay the lease rent and therefore has passed only accounting entry for the treatment of leaserent and not deducted tax source thereon - The receiver of lease rent has filed the returns of income belatedly subsequent to the impugned proceedings - The assessee cannot be said to have satisfied the conditions prescribed in the proviso to sec. 201 of the Act inserted by the Finance Act, 2012 – The assessee did not demonstrate as to how the provision of section 40(a)(ia) is not applicable on it – Decided against assessee.
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2013 (11) TMI 1511
Validity of reassessment u/s 147 - Without recording the reasons for reopening - Held that:- The AO has not showed that escapement of income is on account of failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment - The assessment year involved is A.Y. 2004-05 and impugned notice u/s. 148 was issue on 23.3.2011 i.e. after expiry of about 4 years from the end of the said assessment year - Following Sound Casting Pvt. Ltd. Vs. DCIT [2012 (4) TMI 248 - BOMBAY HIGH COURT] - The AO has failed to establish that there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for assessment - Decided against Revenue.
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2013 (11) TMI 1510
Penalty u/s 271(1)(c) - addition on account of Deemed dividend u/s 2(22)(e) - whether amounts to concealment of income - Held that:- The assessee has taken the amount for meeting normal business transaction and travelling and other expenses - The assessee's explanation that the addition was on account of deeming provision of which he was not aware is sufficiently cogent - The assessee's contention that no material was suppressed - There was no malafide intention on the part of the assessee to evade the tax - It was an inadvertent error which was genuine and bonafide - Following Dilip Sheroff case [2007 (5) TMI 198 - SUPREME Court] - Mensrea was a essential requirement of penalty u/s 271(1)(c) - Following Hindustan Steel vs. State of Orissa [1969 (8) TMI 31 - SUPREME Court] - Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act, or where the breach flows from a bonafide belief that the offender is not liable to act in the manner prescribed by the statute - Decided against Revenue.
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2013 (11) TMI 1509
Restoration of appeal dismissed by the CESTAT for failure to comply with conditional stay order - appellant submits that as the appellant has deposited the entire amount as demanded by the revenue, though after the time period fixed by the Tribunal, the lapse on the part of the appellant may be condoned - negligence - Held that:- The plea that the Chartered Accountant retained by the Municipal Corporation did not pursue the appeal, did not absolve officers of the Municipal Corporation from seeking information relating to the appeal, but as the Municipal Corporation has deposited the amount determined by the CESTAT and the matter in dispute involves public funds, the appeal is allowed, impugned order is set aside and the appeal is restored to the CESTAT - appeal restored - decided in favor of appellant.
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2013 (11) TMI 1508
Exemption of tax under Section 4-A of the U.P. Trade Tax Act, 1948 - Rejection of review filed under Rule 25(3)(C) - whether the unit is self-financed or it is financed by any financial institution. - Date of application of loan - whether the assessee had applied for a term loan to the Oriental Bank of Commerce on 5.1.2000 as alleged or on 1.5.2000 as held by the authorities - Held that:- A bare perusal of the two applications alleged to have been submitted by the assessee for grant of term loan which have been filed by the revenue along with the counter affidavit reveals that the application dated 5.1.2000 is for a term loan of Rs.1,52,000/- and a cash credit limit of Rs.2,00,000/- total Rs.3,52,000/-. It has been submitted by one Smt. Kamal Narang as proprietor of the assessee - The other application for term loan dated 1.5.2000 is only for a term loan of Rs.1,52,000/-. It has been submitted on behalf of Smt. Kamal Narang - A bare perusal of the two applications clearly reveals that they are two different applications and the application dated 5.1.2000 is by the assessee whereas the application dated 1.5.2000 is in the individual capacity of the proprietor of the assessee firm. The financial assistance sought by both the applications are different.
No evidence was adduced to establish that no application was filed by the assessee for the grant of term loan on 5.1.2000 - tribunal as well as a Divisional Level Committee have manifestly erred in rejecting the exemption application of the petitioner - assessee is held entitle to grant of exemption under Section 4-A of the Act subject to fulfillment of other conditions - Decided in favour of assessee.
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2013 (11) TMI 1507
Suomotu refund of excess payment - waiver of Penalty under section 76 - Erection, Commissioning and Installation Service - Held that:- liability admitted during a proceeding either at the adjudication stage or at the first appeal stage, cannot be agitated in further proceedings. Therefore, I hold that the appellant cannot get any refund of the payment made subsequently for the period Oct 10 to March 11 - there is payment in excess of the actual tax liability because of the wrong understanding of the service tax laws by the appellant and it is not proper to impose penalty in such circumstances where tax is already paid twice. Considering the facts and circumstances of the case, there is force in the submission of the appellant that there was reasonable cause for delay in payment of tax for the period Oct 10 to Mar 11. So I invoke the provisions of section 80 of the Act and waive the penalty imposed on the appellant. Thus the demand of tax along with interest is upheld and penalty imposed is set aside - Decided partly in favour of assessee.
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2013 (11) TMI 1506
CENVAT Credit of service tax paid of GTA service - Retreading of tyres - Goods Transport Agency service - Held that:- any test with reference to ‘place of removal’ cannot be applied in the case of output service because said expression is defined in Central Excise Act and has relevance for the purpose of paying excise duty. In the case of services which are intangible, place of removal cannot be determined easily and the expression ‘place of removal’ defined in Central Excise Act for determining excise duty payable cannot apply. I am also not in agreement with the argument that transportation of tyres to and fro from the place of repair has no nexus with the output service because the service is undertaken as per the contract. Therefore, I am of the view that the case law quoted by the Ld. AR in the matter of excisable goods is not relevant to the facts of this case. In the circumstances, I set aside the orders of the lower authorities and allow the appeal holding that Cenvat credit on the GTA service will be available to the appellant - Decided in favour of assessee.
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2013 (11) TMI 1505
Stay application - works contract - composite contract or not - Department had issued a demand notice by adding the value of supply of materials/equipments to the portion of civil works, while computing the service tax liability - Penalty u/s 78 - Held that:- prima facie, it is clear that a composite contract or turn-key project could be vivisected and the service portion of the contract could be separated from the pure supply portion of the equipments and materials contract. After going through the sample copies of the invoices and contracts relating to pure supply of materials, prima facie, we find that the Applicant have raised separate invoices for supply of equipments/parts on which VAT had been discharged by them. In these circumstances, we are of the view that the Applicant could able to make out a prima facie case for total waiver of predeposit of the dues adjudged. Accordingly, predeposit of all dues adjudged is waived and its recovery stayed during pendency of the Appeal - Stay granted.
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2013 (11) TMI 1504
Condonation of delay - No specific reason mentioned in application - Held that:- Merely averring accident of spouse of an employee, appellant is not absolved of its obligation to adhere to the limitation prescribed by law. When the fact situation does not demonstrate now the appellant was prevented by the cause of spouse of an employee to seek appeal remedy. Appellants have not explained anything on this court. Laxity does not add to longevity to a remedy which exhausts with the callous and abuse of process of law following doctrine of resjudicata. Casual approach of appellant shows its scanty regard to law. Had there been bona fide, the appellant would have pursued its right duly. But that has not come to record. No vigilant attitude of appellant is visible from record - if the appeal is thrown at the threshold, the appellant shall suffer. But the appellant having caused prejudice to other side, law of limitation shall not grant him any immunity today. We are also conscious that no one shall prefer to cause prejudice himself following the decision of the apex court in Collector Vs. Land Acquisition, Anantnag and other vs. Mst. Katiji and Others [1987 (2) TMI 61 - SUPREME Court]. But this is not the case where the appellant has acted bona fide. Therefore the stay application for condonation of delay does not deserve any consideration - Condonation denied.
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2013 (11) TMI 1503
Waiver of pre-deposit - Stay application - Business Auxiliary Service - Commission remitted by the petitioner in foreign currency for facilitating export of cotton, rice, cashew and sesame claimed to be agricultural produce by the petitioner - Corporate bank guarantee - Held that:- Notification No.8/2004-ST amended several earlier exemption Notifications including Notification No.13/2003-ST. Under this Notification, inter alia, Notification No.13/2003-ST was amended to introduce an additional clause in the Explanation to the earlier Notification No.13/2003-ST. The scope of the primary exemption granted was also restricted. Under the earlier Notification No.13/2003-ST, business auxiliary service provided by commission agents was exempted from the liability to tax. By Notification No.8/2004-ST, the exemption was restricted to business auxiliary service provided by commission agents in relation to sale or purchase of agricultural produce.
Conclusion by the adjudicating authority that commission paid by the petitioner to its overseas agents for facilitating export of rice, sesame seeds, cashew nuts etc. is not entitled to the benefit of exemption Notification No.8/2004-ST, is unsustainable. - stay granted on this issue.
Regarding demand of service tax on corporate guarantee commission - held that:- Singapore corporate entity was neither a Bank nor had provided a bank guarantee. It provided a guarantee on the basis of its own resources assets to Indian banks to facilitate lending of money by Indian banks to the petitioner. This would not, in our considered view, constitute bank guarantee within the meaning of the said expression in Section 65(12) of the Act - provision of corporate guarantee clearly falls outside banking or financial services. however it would be falling under "Business Support Services" (BBS) - entire amount of service tax with interest directed to be deposited - stay denied
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2013 (11) TMI 1502
Denial of refund - Export of goods - Notification No.41/2007, dated 06.10.2007 - Bar of limitation - from the date of export (i.e. shipping bill) or from the date of payment of service tax where service tax has been paid under reverse charge method - Held that:- The service tax law requires payment of tax only on payment of consideration to the agent abroad from who service is received. That being the case, the facts of this case cannot be equated with that in the case of GTN Engineering (I) Ltd. (2010 (8) TMI 314 - CESTAT, CHENNAI) and the legal principle of implying necessary changes into a section of one Act made applicable for purposes of another Act cannot go to such extent to defeat the very objective of a beneficial scheme like grant of refund due on exports.
After coming to the conclusion that clause (a) to Explanation B will not apply, I have sequentially gone through the other clauses and I find that the most appropriate clause that will apply in this particular case, is clause (f), that is date of payment of service tax. In this case the applicant filed his claim within one-year from the date of payment of service tax and, therefore, I am of the view that the claim is filed within the time-limit and the appellant is eligible for refund - Decided in favour of assessee.
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2013 (11) TMI 1501
Penalty u/s 76 and 78 - Simultaneous penalty - Held that:- show cause notice was issued in this case after 10.05.2008 when proviso to Section 78 of the Finance Act, 1994 was already existing after its amendment - Recourse can be had to the provisions as prevailing at the time of initiation of proceedings, and the period available would be the one as permissible under the provisions existing at the time of issuance of show cause notice, in spite of the fact that the short-levy or non-levy refers, to the period when different period of limitation was available - provisions existing on the date of show cause notice will be applicable. In the present appeal, the period involved is 01.04.2006 to 31.03.2011 and show cause notice was issued on 05.07.2011. Proviso to Section 78 of Finance Act, 1994 was introduced with effect from 10.05.2008 and was thus existing on the date of issue of show cause notice - show cause notice was issued when proviso to Section 78 of Finance Act, 1994 was existing, therefore no penalty under Section 76 is imposable when Section 78 of Finance Act, 1994 penalty is imposed - Following decision of ATMA Steels Pvt. Ltd. & Ors Vs. CCE Chandigarh & Ors [1984 (6) TMI 60 - CEGAT, NEW DELHI] - Decided in favour of assessee.
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2013 (11) TMI 1500
Waiver of pre-deposit of Service Tax - Commercial Training and Coaching Services - Exemption under Notification No.24/04-ST dated 10.09.2004 - Vocational training institute - aircraft maintenance engineer approved by D.G.C.A - Held that:- Applicant have been issuing certificates after completion of necessary training at their institute to candidates enrolled with them and the said certificate has been approved by the D.G.C.A. and qualify the candidates to sit for an examination conducted by DGCA to make them eligible to take employment as an aircraft maintenance engineer. We find that in denying the said benefit to the Applicant the reasoning of Ld. Adjudicating Authority that since the certificate issued by the Applicant would not directly entitle a candidate to seek employment or undertake self-employment, hence their institute could not be called as vocational institute - prima facie to qualify as vocational training institute, it is not necessary that the certificate issued to the candidate should lead directly to employment or self-employment. In these circumstances the Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged. Accordingly all dues adjudged are waived and recovery thereof stayed during pendency of the Appeal - Following decision of M/s Indian Institute of Aircraft Engineering Versus Union of India & Ors [2013 (5) TMI 592 - DELHI HIGH COURT] - Stay granted.
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