|
Advanced Search Options
Case Laws
Showing 301 to 320 of 1914 Records
-
2016 (12) TMI 1616
Penalty u/s 77 and 78 - payment of tax before issuance of SCN - Held that: - the respondent is a Govt. of India Undertaking engaged in the business of planning, design, consultancy in the matter of mining. The respondent paid the entire amount of tax before issuance of the SCN voluntarily - there is no material available on record of fraud, collusion or willful misstatement etc. to evade payment of tax. Therefore, the imposition of penalty u/s 78 of the Act, 1994 is not justified.
The imposition u/s 77 is proper for not making the application to the Superintendent.
Appeal allowed - decided partly in favor of appellant.
-
2016 (12) TMI 1615
Clandestine manufacture - evidence - Held that: - the appellant had raised several issues for difference between the SION and actual production depending on the factors as quality of raw-materials, the industry practices, etc.. The allegation of clandestine removal is required to be established by proof of positive evidence - In the present case, the department merely proceeded on the basis of SION, without examining the facts of the case, which are required to be examined by the Adjudicating Authority in the interest of justice - the matter is remanded to the Adjudicating Authority to decide the case - appeal allowed by way of remand.
-
2016 (12) TMI 1614
Penalty u/s 271(1)(c) - deduction u/s 54F allowability - Held that:- JDA agreement was not completed and assessee had not received the balance payments and had also not received the flat as promised in the agreement. The ld. CIT(A) has also held that the belief of the assessee that the capital gains on which he had to pay tax has to be computed only on the basis of the amount which he had actually received, cannot be considered to be totally unreasonable.
It is undisputed fact that in the present case the assessee had invested ₹ 17,65,000/- towards investment in residential house and had claimed deduction to that extent and Assessing Officer has also allowed deduction. Therefore, keeping in view of the decision in the case of C.S. Atwal Vs. CIT, Ludhiana [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT ] the assessee was required to pay capital gain tax only on the amount received which in the present case is ₹ 15,00,000/- and for which assessee has been allowed deduction u/s 54F. Therefore, no capital gains tax was payable during the year and if there was no capital gain tax payable, the question of penalty does not arise. In view of the above facts and circumstances the assessee cannot be said to have concealed the particulars of his income. - Decided in favour of assessee.
-
2016 (12) TMI 1613
Deceleration of Rule 29(2) of the Income Tax Rule 1962 as ultra vires - Trustees should be removed and the Association should be allowed to run the said Company and that suit was decreed - Both the parties have settled the matter amicably before the Mediation Centre - Held that:- Considering the submission advanced by the learned advocates and after perusing the record I am of the view that justice would be sub-served if the respondent no.2, the Commissioner of Income Tax, Kolkata–III is directed to consider and dispose of the representation made by the Association dated 31st August, 2016 appearing at page 64 of the writ petition as well as the representation made on 30th Semptember, 2016 by the petitioner No.1 and respondent no.3 after giving an opportunity of hearing to the parties or their authorized representatives within three weeks from the date of communication of this order and thereafter communicate the decision to the parties within one week.
Needless to mention that the money which has already been deposited by the respondent no.3 pursuant to the Court’s order will be utilized by the respondent no.3 in terms of the settlement which has been approved by the Hon’ble Karnataka High Court.
-
2016 (12) TMI 1612
Issue notice. Sh. Sanjeev Narula, Sr. Standing Counsel accepts notice on behalf of respondents. The counter affidavit, if any, shall be filed within a week. List on 09.01.2017.
In W.P.(C) 11575/2016, this Court is of the opinion that during the pendency of the petition, the respondents should not pass any final orders on the impugned Show Cause Notice although the proceedings may continue.
-
2016 (12) TMI 1611
Expenditure towards gift to Doctors disallowed - allowable business expenditure - Held that:- In the present case the assessee was required to demonstrate the expenditure in relation to business. So far the reasoning given by the AO that the expenditures were prohibited by law, in our considered view, the issue requires fresh consideration by the AO. We, thus set aside the order of ld. CIT (A) and restore the issue to the file of AO for decision afresh.
Disallowance of dealer entertainment expenses - expenses are disallowed on the basis that the personal element in such expenses cannot be denied - Held that:- We find that the AO has not demonstrated as to how the personal element is involved in these expenses. Therefore, the action of the ld. CIT (A) confirming the finding of the AO is not justified. We, therefore, direct the AO to delete this disallowance. This ground of the assessee is allowed.
-
2016 (12) TMI 1610
Validity of attachment orders u/s 281B - seeking release of amount pursuant to the SBLCs - confirmation of tax liability of non-resident (FOWC) having PE in India - Held that:- The Court is of the opinion that in the light of the judgment delivered in Formula One World Championship Limited, Jaiprakash Associates Ltd. Versus CIT, International Taxation-3 & Anr. [2016 (12) TMI 123 - DELHI HIGH COURT] the order impugned and the attachment appear to be prima facie warranted in law. In the light of this order, the Court is of the opinion that the petitioner’s bank is obliged to honour the direction of attachment by the Revenue and not to release any amount pursuant to the SBLCs as well as any consequential instruments and acts which would effectuate the commitments there under pending crystallization of the actual amounts by the revenue, till further orders. Directed accordingly.
Counsel for the revenue states that the actual amounts would be indicated in an appropriate consequential order within two weeks under Section 195 of the Income Tax Act, 1961 and till further orders in these proceedings.
-
2016 (12) TMI 1609
Show cause violating the Central Board’s instruction vide F.No. 1080/11/DLA/CC dated 8.7.2016 - Pre show cause notice - Held that: - the pre-show cause notice was issued without supplying the Annexures-A to E. In spite of petitioner request to supply the document the date fixed for discussion in the said show cause notice is fruitless. Thus the demand notice issued vide Annexure-1 is not sustainable - we quash Annexure-1 and remit the matter back to opposite party to supply the documents as per pre-show cause notice - petition allowed by way of remand.
-
2016 (12) TMI 1608
Refund claim - Education Cess and Secondary and Higher Secondary Education Cess paid on services used for export of goods - survey fees - short-shipment of quantity - Held that: - the claim on account of Education Cess and Secondary and Higher Education Cess is inadmissible in terms of N/N. 41/2007-S.T., dated 6-10-2007 - The violation of statutory provisions on limitation cannot be treated as mere technical nature of breach. Therefore, the denial of Cenvat credit on this issue cannot be accepted.
Regarding rejection of refund claim on short shipment, N/N. 41/2007-S.T. provides that the Central Govt. exempts the taxable services specified in the schedule received by an exporter and used for export of goods from the whole of the Service Tax leviable thereon - In the present case, there is no dispute that the taxable services were used for export of goods which was found short shipped. Revenue has not disputed that the taxable service used for export of goods and thereafter, there is a short shipment which cannot disentitle the appellant from the benefit of the notification. Therefore, refund claim on short shipment of quantity of exported goods cannot be rejected - refund claim on proportionate deduction of service tax on short shipment is allowed
Appeal allowed - decided partly in favor of appellant.
-
2016 (12) TMI 1607
TPA - ALP determination - TNMM used as the most appropriate method to arrive at Arms length price (ALP) - comparables selection - Held that:- Assessee has been treated as a low end ITES service provider, rendering data processing or an IT enabled services, who is not involved in domain knowledge, so as to include any KPO service provider as a comparable. Companies functionally dissimilar with that of assessee need to be deselected from final list of comparability.
Deduction under section 10A being granted on the gross total income - set of the brought forward losses of assessment year 2001-02 and 2002-03 against the balance profit under the head claimed - Held that:- No infirmity in the directions given by Ld.CIT(A), in computing deduction under section 10 A before carry forward of losses. Accordingly this ground raised by revenue stands dismissed. See CIT vs. Black & Veatch Consulting Pvt. Ltd.[2012 (4) TMI 450 - BOMBAY HIGH COURT]
-
2016 (12) TMI 1606
Winding up - Inability to pay the admitted dues - attachment orders - Held that:- For the reasons stated in the order dated 28.11.2016 passed by this Court and in continuation of the same, in view of the fact that the respondent Company has reiterated its inability to pay the admitted dues of the petitioner, the following order is passed.
The Notice of the admission of the petition shall be advertised in the English daily newspaper “Business Standard”, Ahmedabad Edition and the Gujarati daily newspaper, “Jai Hind”, Ahmedabad Edition.
The Official Liquidator attached to this Court is appointed as the Provisional Liquidator of the respondent Company and directed to take over the charge and possession of the assets of the respondent Company and to prepare an inventory of the office premises, books of accounts and all other assets of the respondent Company, as required. Publication of the Notice in the Government Gazette is dispensed with.
-
2016 (12) TMI 1605
Revision u/s 263 - peak value of the amount lying in the undisclosed bank account not added to the assessee’s income for assessment year 2006-07 on protective basis - entire peak of US$ 21,51,725 (INR 9,57,07,316) was added on protective basis in assessment year 2007-08 - A.R. has stated that the addition on substantive basis has been admitted by the legal heirs/executors of the estate of late Shri V.C. Mehta, whereas the addition in question has been made in the case of the assessee only on protective basis
Held that:- Since the executors of estate of late Shri V.C. Mehta have owned up the amount lying in the HSBC Bank and have paid the taxes thereupon and they have also given an undertaking to the Commissioner of Income Tax (Appeals) that they owned up the bank balances lying in the bank account of late Shri V.C. Mehta, hence, under such circumstances, the addition, if any, made on protective basis in the hands of assessee will not have any tax effect.
Thus when the estate of late Shri V.C. Mehta, in whose case the additions have been made on protective basis, have owned up the amount lying in the bank account and have also given an undertaking to the Commissioner of Income Tax (Appeals) that they stand by the disclosure made by them in relation to the above said bank account and will not be claiming any refund of the taxes already paid except the inter-se adjustment of taxes paid amongst various assessment years, no useful purpose will be served in making a fresh assessment on protective basis in the hands of the assessee merely because that some of the income was to be added in assessment year 2006-07 instead of the entire addition made in assessment year 2007-08 on protective basis. Thus ustification in invoking the provisions of section 263 of the Act for passing the above said revision order by Ld. PCIT - Decided in favour of assessee.
-
2016 (12) TMI 1604
Oppression and mismanagement - illegal & unlawful allotment of shares - EOGM was held without giving prior notice to the non applicant-petitioner - Dismissal of Company Petition on the ground of delay and laches - Held that:- Even in the absence of application of the provisions of Limitation Act, the petitioner cannot surmount the difficulty of delay and laches. It is well settled that when a member of a company files a petition under S. 397 and 398 read with S. 402(g) of the 1956 Act, he is necessarily invoking equitable jurisdiction of this Tribunal. S. 402 of the Act expressly provides that the Tribunal is empowered to pass any order which it considers just and equitable. Similar provision has been made by S. 403 of the Act vesting the Tribunal with the power to pass any interim order as it deems just and equitable. Similar provisions have now been made in S. 242(2) of 2013 Act. Therefore, from that point of view, the petition is liable to be dismissed as barred by delay and laches.
The allotment of share was made to the father of Respondent No. 3 Late Mr. Francis Wacziarg who is no more. It is not understood as to how the allotment could be effectively defended by his daughter who is impleaded as Respondent No. 3. The intervention of third party right is also a relevant factor for us to conclude that the petitioner had disentitled himself to claim any relief under the equitable jurisdiction, particularly, when the Tribunal has been assigned the role and status as that of the High Court (see the observation made in the case of Union of India v. R. Gandhi, President, Madras Bar Association (2010 (5) TMI 393 - SUPREME COURT OF INDIA).
We are also not impressed with the submission that the decline in payment of dividend on 22.03.2013 furnished the petitioner knowledge of its reduced share capital and clothed it with a cause of action because in the year 2006, 2009 and 2010 no dividend were paid. Again in the year 2012 the Respondent No. 1-company did not announce any dividend. If any foul play was to be apprehended then the petitioner should have set in motion the machinery of ventilating its grievances during those years. Moreover, the petitioner is not a member of gullible public but is a private limited company which is ordinarily assisted by competent professionals like company secretaries and chartered accountants. Therefore it is not believable that they had no knowledge of various events taking place in the Respondent No. 1-company starting from the year 2007 to 2011. Therefore we are unable to persuade ourselves to accept aforesaid submissions for commencement of the period of limitation w.e.f 22.03.2013.
Whether once mandatory provision of law is infringed then irrespective of question of delay, the invalidity cannot be allowed to continue? - There is no rule of law that a void order challenged at any time without requirement of complying with the principles covering delay and laches and can thus be ignored. In other words a void and unlawful order does not attract any period of limitation. In the case of State of Punjab v. Gurdev Singh (1991 (8) TMI 328 - SUPREME COURT)it has been led out by Hon'ble the Supreme Court that even void and illegal order have be challenged within the period of limitation. Therefore we are unable to persuade ourselves to accept the submissions made by Mr. Vasisht. Thus petition fails
-
2016 (12) TMI 1603
Penalty u/s 271(1)(c) - concealment of income/furnishing of inaccurate particulars of Income - Held that:- The contention raised by the appellant is required to be accepted and in the finding of Assessing Officer in the assessment order it is held that the AO, has to give a notice as to whether he proposes to levy penalty for concealment of income or furnishing inaccurate particulars. He cannot have both the conditions and if it is so he has to say so in the notice and record a finding in the penalty order. See Chennakesava Pharmaceuticals Vs. CIT [2013 (7) TMI 808 - ANDHRA PRADESH HIGH COURT] - Decided in favour of the assessee
-
2016 (12) TMI 1602
Licences for liquor shops both on the national and state highways - Held that:- A detailed survey has been made by the OSD in which observations in regard to liquor shops located along the highway have been recorded. We may also advert at this stage to a letter dated 4 August 2012 of the Project Director of National Highways Authority of India (NHAI) to the Deputy Commissioners of various regions in Punjab. The letter highlights that on a stretch of 291 kilometres on the Panipat-Jalandhar section of NH-1, there are as many as 185 liquor shops (though in comparison the trauma centres and hospitals where immediate medical service can be provided to road accident victims is almost negligible). Many of the liquor shops have encroached on national highway land. Though, NHAI has sought the removal of these shops, “concrete action” is yet to be taken due to the lack of support from various quarters. Liquor shops, the Project Director notes, are owned by influential people making the removal of unauthorised encroachment impossible without the support of the district administration.
Thus as concluded no licences for liquor shops should be allowed both on the national and state highways. Moreover, in order to ensure that this provision is not defeated by the adoption of subterfuge, it would be necessary to direct that no exception can be carved out for the grant of liquor licences in respect of those stretches of the national or state highways which pass through the limits of any municipality corporation, city, town or local authority. Necessary safeguards must be introduced to ensure that liquor vends are not visible or directly accessible from the highway within a stipulated distance of 500 metres form the outer edge of the highway, or from a service lane along the highway.
Also duly borne in mind the practical difficulty which has been expressed on behalf of the licence holders (including those in the town of Mahe) and the states that there are licences which have been duly renewed and whose term is still to expire. The states apprehend that premature termination may lead to claims for refund of licence fee for the unexpired term, with large financial implications. Hence we would direct that current licences may continue for the existing term but not later than 1 April 2017.
-
2016 (12) TMI 1601
Limitation in respect of deduction from non-residents - administrative convenience - TDS u/s 195 - reopening of assessment - Assessee in default - Petitioner, a telecommunications service provider, engaged the services of both domestic (resident) and foreign (non-resident) entities for providing interconnections to its users - Held that:- The court was conscious of the absence of any limitation period in respect of payments to non-residents, for the purpose of Section 195 read with Section 201. Yet, it was held that proceedings could be initiated within reasonable time. The circular relied on by the revenue, furnishing a rationale for not providing limitation: "as it may not be administratively possible to recover the tax from the non-resident”, was decisively rejected in G.E. Technologies (2010 (9) TMI 7 - SUPREME COURT OF INDIA)
Since Vodafone Essar (2016 (8) TMI 509 - DELHI HIGH COURT) considered the entire issue and noted that even recently a reasonable period was read into the Act, in relation to exercise of powers (although in a different context) accepting the petitioner’s contention in the present case is based on precedent. Furthermore, the only reason cited by the respondent, i.e. administrative convenience, cannot outweigh the harsh nature of the consequence, which would expose resident payers to the onerous responsibility of maintaining books and documents for an uncertain period of time. Given these considerations, the impugned notices are quashed. The writ petition is allowed in these terms
-
2016 (12) TMI 1600
TPA - selection of comparable - Tribunal excluding two comparables viz. Indowind Energy Ltd. and B. F. Utilities Ltd. - Held that:- The impugned order of the Tribunal holding that a party is not barred in law from withdrawing from its list of comparables, a company, if the same is found to have been included on account of mistake as on facts, it is not comparable. The Transfer Pricing Mechanism requires comparability analysis to be done between like companies and controlled and uncontrolled transactions. This comparison has to be done between like companies and requires carrying out of FAR analysis to find the same. Moreover, the Assessee's submission in arriving at the ALP is not final. It is for the TPO to examine and find out the companies listed as comparables which are, in fact comparable. The impugned order has on FAR analysis found that M/s. Indowind Energy Ltd. and B. F. Utilities Ltd. are not comparable. They are in a different area i.e. wind energy while the Respondent-Assessee is in the field of solar energy. No substantial question of law.
Determination of Arm's Length Price (ALP) with regard to Sales made to AEs and not on entire sales - Held that:- Issue raised herein is concluded against the Revenue and in favour of the Respondent-Assessee by the decision of this Court in CIT v/s. Tara Jewellers Pvt. Ltd.[2015 (12) TMI 1130 - BOMBAY HIGH COURT ]
-
2016 (12) TMI 1599
Penalty u/s 271(1)(c) - capital gain addition - JDA agreement - AO had imposed penalty treating the whole amount of sale consideration to be received by assessee as accruing during the year - Held that:- The Hon’ble Punjab & Harayana High Court in the case of C.S. Atwal Vs. CIT, Ludhiana [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] had deleted the similar addition confirmed by the Hon’ble ITAT and has held that capital gain under these circumstances can be worked out only on the basis of sale consideration received by assessee
JDA agreement was not completed and assessee had not received the balance payments and had also not received the two flats as promised in the agreement. The ld. CIT(A) has also held that the belief of the assessee that the capital gains on which he had to pay tax has to be computed only on the basis of the amount which he had actually received, cannot be considered to be totally unreasonable. It is undisputed fact that in the present case the assessee had declared capital gains on proportionate basis and therefore, cannot be said to have furnished wrong particulars of income or concealment of income. Appeal filed by the Revenue is dismissed.
-
2016 (12) TMI 1598
Amounts paid by the assessee to its licensors - whether sum amounted to royalty within the meaning of the expression under Section 9(1)(vi) and Article 12 of the Indo-Finland Double Taxation Avoidance Agreement (DTAA)? - Held that:- The Income Tax Appellate Tribunal (ITAT) followed the previous judgments of this Court including the judgment in DIT v. Infrasoft Ltd. [2013 (11) TMI 1382 - DELHI HIGH COURT] and also the judgment – DIT (International Taxation) vs. Nokia Networks (2012 (9) TMI 409 - DELHI HIGH COURT ). The later decision had an occasion to interpret the same provision in the context of the very same treaty.
Since the ITAT has followed the previous binding judgments of this Court, the present appeals do not raise a substantial question of law.
-
2016 (12) TMI 1597
The Delhi High Court admitted the case for consideration regarding the interpretation of Section 68 of the Income Tax Act, 1961 concerning a sum of Rs. 3.10 crores. Notice was issued to the respondent, and the case was listed for further hearing on 17.03.2017.
............
|
9911796707
