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Case Laws
Showing 301 to 320 of 1764 Records
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2016 (11) TMI 1466
Cancelling the Registration certificate granted u/s 12A - providing providing bogus donation - name of the assessee was reflecting in the list of bogus donors as provided by the Managing trustee of the BERT in his statement - activities of the assessee are not in accordance with the objects for which it was established - Held that:- We find that the investment was made by the assessee trust within the mode as specified. The ld. AR has produced the list of investments for the years ending 31.3.2012, 31.3.2013, 31.3.2014, 31.3.2015 which were not questioned in any of the income tax proceedings and it can be inferred that these were accepted as investment within the specified mode. The ld. DR has also not brought anything contrary to the arguments of ld. AR. Therefore, this cannot be reasons for cancelling the registration certificate u/s 12A of the Act. Besides the above we also find that the ld. CIT(E) has not given any finding that the investment has been made assessee in contravention to the provisions of Section 11(5) of the Act. Merely the money invested in the modes specified u/s 11(5) of the Act and trust carrying no charitable activity cannot be a ground for the cancellation of registration.
the assessee has been giving donation in every year which has been duly accepted by the Revenue as evidenced from the income & expenditure account of the assessee of the financial statements which are placed on pages 91 to 130 of the paper book. The amount of donation given by the assessee trust over the several years to the other trust is very much charitable activities. There is also no adverse remark in the audit report about the investment made by the assessee.
We also find that the notice for the cancellation of the registration certificate was issued under section 12AA(3). However, Ld. CIT(E) has also invoked the provisions of section 12AA(4) of the Act for cancelling the registration certificate which in our considered view against the principal of natural justice. The ld. CIT(E) before invoking the provisions of Section 12AA(4) should have issued the show cause notice. Therefore, we find that the proper opportunity to the assessee has not been furnished.
We also find that the lower authority should have issued summon u/s 131 of the Act for the cross examination but from the facts we find that the no such summon has been issued. We also find that assessee has given the detailed profile of the donee along with the correspondence. The transaction for the donation was made through banking channel and the department failed to bring anything on record that the donation given by the assessee has come back to it in the form of the cash. -
As per question no. 14 of the statement of the managing trustee of BERT, it is clear that SGP was the only party to arrange all the bogus donations but his statement is missing which was crucial to crack the chain of bogus donation - Decided in favour of assessee.
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2016 (11) TMI 1465
TDS u/s 194J - TDS liability of licence fees paid to IRCTC - Held that:- The issue in appeal is no longer res integra. A co-ordinate bench of this Tribunal, in assessee’s own case in respect of assessment under section 143(3) for the assessment years 2006-07 to 2011-12 has observed to hold that assessee’s licence fee payments to IRCTC were not liable for TDS and cannot be disallowed u/s. 40(a)(ia). Assessee by IRCTC dated 27.03.2014 and form no 26 has demonstrated that license fees paid by him for FY 2005-06 to 2010-11 has been included by IRCTC in its annual Profit & Loss account, Balance sheet and their returns of income. In view thereof we see no reason as to why the assessee shall be held to be liable for TDs and disallowance u/s 40(a)(ia). - Decided in favour of assessee.
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2016 (11) TMI 1464
Bogus purchases - Held that:- Considering the law declared by the Supreme Court in the case of Vijay Proteins Ltd. Vs. Commissioner of Income Tax [2015 (4) TMI 1146 - SUPREME COURT ] wherein confirmed the order passed by the Gujarat High Court and other decisions of the High Court of Gujarat in the case of Sanjay Oilcake Industries Vs. Commissioner of Income Tax (2008 (3) TMI 323 - GUJARAT HIGH COURT) and N.K. Industries Ltd. Vs. Dy. C.I.T. [2016 (6) TMI 1139 - GUJARAT HIGH COURT ]. Justification in disallowing 25% of the purchase price.
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2016 (11) TMI 1463
Addition of share capital and share application money in the hands of the assessee as income u/s 28(iv) - Held that:- Share capital and share application money with premium received by the assessee company is an amount received on capital account. From the above case laws it is quite evident that sums received on capital account cannot be treated as income. Once it is held that the share capital and share application money with premium are received on capital account, such receipts cannot be added as income from business and profession u/s 28 of the I.T or for that matter u/s 28(iv) of the I.T. Act.
In this regard even at the risk of repetition we find that section 28(iv) provides that following amount shall be chargeable to income-tax under the head profits and gains from business or profession, “the value of any benefit or perquisite convertible into money or not arising from business or the exercise of a profession. In this regard we fail to understand as to how section 28(iv) is applicable on the facts of the present case where share application, application money has been received. Section 28(iv) covers the value of any benefit or perquisite and not sums received on capital account which is the case in the present context.
Hence in our considered opinion the AO could not resort to this provision as the receipt was of capital nature. Appeals filed by the Revenue stand dismissed
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2016 (11) TMI 1462
Exemption/deduction u/s 80P(2)(a)(i) - interest earned from surplus fund parked in FDs with other cooperative banks - allowability of relief u/s 80P in respect of the income of the assessee when the assessee is a 'credit cooperative society - Held that:- Such lending activities do not constitute banking activities as the same are transacted between the cooperative society and the members of the society. Since, no public is involved the definition of 'banking' does not cover such activities. As such, there is no Reserve Bank of India's approval for conducting such banking activities in this case
As the assessee demonstrated that the members of the Credit Cooperative Society do not constitute “public” and there is no depositing, withdrawal by cheque or draft etc. After considering the said judgment of the Hon'ble jurisdictional High Court in the case of Quepem Urban Cooprative Credit Society [2015 (6) TMI 573 - BOMBAY HIGH COURT] we are of the opinion that decision of the CIT (A) is fair and reasonable and it does not call for any interference. Accordingly, issue raised in the Revenue's appeal is dismissed.
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2016 (11) TMI 1461
Contempt Petition - invalidating the registration - Held that:- In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014.
We thus find the Company and its Directors/servants namely alleged Contemnor Nos.1, 4, 5, 6, 7 and 8 guilty of having violated the Order of 08.05.2014. In our view, ends of justice would be met if fine is imposed on the Contemnors. We impose fine of ₹ 2,000/- on the Company. Further, fine of ₹ 2,000/- each is imposed on Contemnor Nos.4, 5, 6, 7 and 8. Fine shall be deposited with the Registry of this Court within four weeks from today. In case of failure by Contemnor Nos.4, 5, 6, 7 and 8 to deposit the amount of fine within the time stipulated, they shall undergo sentence of simple imprisonment for one month.
With these observations, we close Contempt Petition
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2016 (11) TMI 1460
Simultaneous penalty u/s 76 and 78 prior to 16.05.2008 - Held that: - Even if technically, the scope of Sections 76 and 78 is different, penalty under Section 76 may not be justified if penalty had already been imposed under Section 78 - appeal dismissed - decided against Revenue.
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2016 (11) TMI 1459
CENVAT credit - Electrode Carbon Paste (ECP) - input/capital goods - case of Revenue is that ECP which is used in furnace for manufacture of finished goods, appears to be capital goods and thereby only 50% of credit is available during a financial year - Held that: - There is no denial of the finding of the Commissioner (Appeals) that the goods get consumed and contained in the Ferro Alloys - The tribunal in the case of Industrial Chemicals & Monomers Ltd. Vs. Collr. Of C.Ex., Madurai [1995 (6) TMI 184 - CEGAT, NEW DELHI], held that carbon paste used in manufacture of calcium carbide either as technical necessity or otherwise, and consumed therein.
In the present case, the said Electrode Carbon Paste is in the nature of consumable as it gets consumed in the manufacturing process and also contain in the ferro alloys. Therefore, it cannot be said such goods is capital goods in terms of rule 2(a) of the said Rules - Electrode Carbon Paste used in the process of manufacture of ferro alloys is actually an input eligible for credit under rule 2(k) of the said Rules.
Credit allowed - appeal dismissed - decided against Revenue.
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2016 (11) TMI 1458
Penalty u/s 78 of FA, 1994 - case of appellant is that Non-compliance to the provisions of Service Tax is merely because the appellant was not aware about the statutory provisions of the service tax - Held that: - when the assessee is not disputing his liability for discharging the statutory obligations and has paid the entire tax along with the interest and thereafter discharging his obligations as a taxpayer, in view of the provisions of Section 73 (4A) the proceeding should be deemed to have been concluded - penalty set aside - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1457
CENVAT credit - duty paying invoices - appellants produced photocopy of the duplicate copy of Bill of Entry and could not produce original of duplicate copy of Bill of Entry - Held that: - the appellant produced the evidence that M/s. Shiva Polyplast Pvt. Ltd., Kanpur, had not availed credit on the basis of the said Bill of Entry and no attempt was made by the department to verify the said evidence - department should have examined the evidences, as placed by the appellant, for the purpose of availing Cenvat Credit - matter is required to be examined by the lower authorities.
Interest on CENVAT credit availed wrongly - credit not utilised in terms of rule 14 of CCR, 2004 - Held that: - the issue of interest on unutilized reversed credit entry was the subject matter of Hon’ble Supreme Court decision in the case of Union of India Vs. Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court], where it was held that once the entry was reversed, it is as if that the Cenvat credit was not available - interest is not payable on reversal of the unutilized Cenvat Credit - appeal allowed.
Appeal allowed in part and part matter on remand.
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2016 (11) TMI 1456
Exemption from payment of CVD - N/N. 30/2004-CE dated 09/7/2004 - denial on the ground that condition of non-availment of Cenvat credit by the manufacturer does not stand satisfied - Held that: - the ratio of law as declared by the Hon'ble Supreme Court in the case of SRF Ltd. vs. CC, Chennai [2015 (4) TMI 561 - SUPREME COURT] is fully applicable to the facts, where Its stand held by the Hon’ble Supreme Court that CESTAT denied the exemption from CVD only on the ground that condition of non-availment of Cenvat credit was not fulfilled in as much as Cenvat credit was not admissible to the importer and the question of fulfilling of the said condition does not arise - exemption allowed - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1455
Re-assessment proceedings - Held that:- After some hearing, learned counsel seeks liberty to withdraw the petition. It is stated that the grounds urged in this proceedings should be permitted to be urged on the merits in the re-assessment proceedings. Liberty granted.
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2016 (11) TMI 1454
Sale of residential premises - LTCG OR STCG - nature of gain - A.O. has considered the date of agreement to sell which is 30th December, 2003 as the date of acquisition of the flat - assessee along with his wife had purchased the flat by jointly raising bank loan - Held that:- As observed that the CBDT Circular No. 471 dated 15th October, 1986 relating to allotment of flat under self financing scheme of Delhi Development Authority shall be applicable as we do not see any reason why the said circular shall not be applicable to a private builder, and date of letter of allotment i.e. 27- 01-2003 shall be deemed to be date of acquisition of flat and hence since the flat was sold on 24-11-2006, the gains accrued to the assessee are long term capital gains as the asset is held for a period of more than thirty six months.
Assessee will be entitled for cost inflation index(CII) based on the actual payments made and date of payment, accordingly CII will be worked out with reference to amount of payment and date of payment, on progressive payments. Further it is observed that the assessee has raised additional grounds before the learned CIT(A) which were not admitted by the ld. CIT(A) and rejected at the threshold and hence consequently not adjudicated while framing appellate order dated 23.05.2014. In our considered view and in the interest of justice , these additional grounds raised by the assessee before the learned CIT(A) need to be admitted as they rise from the order of the AO and the matter is to be set aside and restored to the file of the learned CIT(A) for adjudication of these issue’s raised in these additional grounds on merit , after considering the evidences/explanations filed by the assessee .
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2016 (11) TMI 1453
TPA - determination of arms length price - adjustments in respect of the interest on outstanding receivables that the Ld. - AO also disallowed certain Corporate Additions alleged to have been made for the purposes of business - pure market support service provider - Held that:- Explanation has sought to include, 'any other debt arising during the course of business' as international transaction with a retrospective effect thereby covering the assessment year under consideration That being so, the payment/nonpayment of interest or receipt/non-receipt of interest on the loans accepted or allowed in the circumstances as mentioned in this clause of the Explanation, also become international transactions, requiring the determination of their ALP. - The decisions relied upon by the assessee are prior to the insertion of the explanation to section 92B and therefore the ratio laid down cannot be applied to the assessee before us - As the facts have not brought on record by the assessee, in our opinion the DRP was right in directing the Ld.TPO to examine the facts and ascertain the interest on receivables in accordance to the decision of Hon’ble Delhi High Court in the case of CIT vs. Cotton Naturals India private limited [2015 (3) TMI 1031 - DELHI HIGH COURT]. - Matter restored before the TPO.
Disallowances u/s 37(1)- assessee could not discharge burden of proving that the advertisement, business promotion expenses, and travel expenses to doctors and other medical personnel are business expenses - Held That:- assessee has incurred expenses in the garb of marketing the cardiac machine, onus is upon the assessee to prove that the expenses incurred do not violate any law that may be applicable. we are of the considered opinion that entertaining doctors inside/abroad and luring doctors to solicit business by, which is prohibited under Regulation 6.8.1 of the MCI Regulations, and hence is clearly not allowable - Decided against assessee.
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2016 (11) TMI 1452
Requirements laid down under section 244 to file the company petition under Companies Act 2013 - petitioner as religious and charitable institution - Held that:- The petition, in essence, is a representative petition which falls within the purview of order 1, rule 8 of the Code of Civil Procedure, 1908. The petitioner represents a large number of persons who have a common interest in R1-company which is a religious and charitable institution and admittedly, a public trust. Once, it is established that R1-company is a charitable institution which caters the needs of the beneficiaries/stakeholders, the properties of such religious and charitable trust must be protected jealously. In view of the factual and legal position stated above, it is of the view that it is a fit case where all the requirements laid down under section 244(1)(b) of the Act, 2013 for filing company petition under section 241 of the Act, 2013 need to be waived off. The proviso to section 244 must be interpreted liberally so as to advance the cause of justice.
Under the attending circumstances, the company petition cannot be dismissed at the threshold because it requires a detailed enquiry into the matter complained of and, thus, in exercise of the powers conferred under proviso to section 244 of the Act, 2013, I waive all the requirements of section 244(1)(b) of the Act, 2013 by treating the company petition under order 1, rule 8 of the Code of Civil Procedure, as a representative petition read with section 241 of the Act, 2013 for the purpose of proceeding to enquire into the matter complained of. Thus, the company petition is held maintainable. Any of the observations made above shall have no bearing on the merits of the case.
Since the company petition is held maintainable and in the given circumstances there is an urgent need to regulate the affairs of R1-company. Thus, proceed to remove all the directors and managing committee including office bearers by appointing hon'ble Justice Shri K. Samanth (Retd.) as the chairman who is authorised to nominate four suitable persons to be chosen from the sub-units/Dioceses of Churches and three office bearers. The chairman will recommend the names of the persons to this Tribunal for appointment as director and as office bearers, respectively. The remunerations of directors and office bearers shall be fixed by the chairman
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2016 (11) TMI 1451
CENVAT credit - various input services - denial on the ground of nexus - Held that: - The explanation given by the appellant about the periodicity of the availment of the service and nature of service availed, throws light that those are integrally connected with the manufacturing activity and indispensable - credit allowed.
Revenue may conduct enquiry in respect of Service tax credit taken based on incomplete distribution invoice issued by their corporate offices to ascertain the genuineness of the services and if satisfied about the genuineness thereof, there should not be denial of Cenvat credit of the appropriate claim by the appellant - appeal allowed in part and part matter on remand.
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2016 (11) TMI 1450
Maintainability of petition - alternative remedy of appeal - Held that: - This Court is of the considered view, that if at all the petitioners are aggrieved by such notice, the remedy available to them is to approach the Appellate Authority by way of an appeal as factual questions are raised and the same cannot be entertained by this Court in the writ petition - petition dismissed being not maintainable.
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2016 (11) TMI 1449
CENVAT credit - input services - co-ordination fees paid by appellant - Held that: - It cannot be disputed that in any organization, whether a manufacturing unit or service provider, repair and maintenance are vital for ensuring smooth functioning of the manufacture or business - This being the case, and also considering that they do not feature in the exclusions, impugned services will very much be in the nature of eligible ‘input service’ for the purpose of Rule 2(l) ibid - credit allowed - appeal allowed in toto.
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2016 (11) TMI 1448
CENVAT credit - inputs - inputs services - Exposy Coating, Floor coating or Floor Material - Wall panel, Ceiling panel - Gauges rack - Tools rack - Trolley - Held that: - as regards Exposy Coating, Floor coating or Floor Material, and Wall panel, Ceiling panel, the services availed was to make the environment dust-free, which is one of the requirement of the Factories Act, 1948. Therefore, denial of the Cenvat credit of the tax paid is uncalled for.
Gauges rack - Tools rack - Trolley - Held that: - it is probably considered by the adjudicating authority as not capital goods. These Gauges Racks are purchased for the purpose of storage and need not be considered as capital goods and being integraly connected with the manufacturing activity, these are recurring expenditures to hold such goods as input on the facts of the present case and that is not unreasonable - same reasoning applies for Tools rack and Trolley.
The word “include” is used in the statutory definition generally to enlarge the scope and meaning of the words used in law without restriction - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1447
Consulting engineer’s services - appellant provided technical assistance for preparation of detailed project reports for water shed development and received payments against such services provided by it - Held that: - Professionally qualified engineer or any other firm, who renders any advice, consultancy or technical assistance in one or more disciplines of engineering, falls under the purview of the definition of “consulting engineer”, contained in Section 65(31) ibid - Since the word “or” is finding place in the definition between ‘professionally qualified engineer’ and ‘engineering firm’ and the appellant being an engineering firm, is falling under the purview of the said taxable service for the purpose of payment of service tax - demand upheld.
Penalty - Held that: - appellant was under the bona fide belief that only services provided by a professionally qualified engineer should attract payment of service tax - penalties set aside by invoking section 80.
Appeal allowed - decided partly in favor of appellant.
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