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Showing 301 to 320 of 1237 Records

• 2014 (3) TMI 939
  

  Computation of deduction u/s 80HHC of the Act – Treatment of Receipts – Sale of DEPB scrips – Held that:- The decision in M/s Topman Exports Versus Commissioner of Income Tax, Mumbai [2012 (2) TMI 100 - SUPREME COURT OF INDIA] followed - DEPB has direct nexus with the cost of imports for manufacturing an export product, any amount realized by the assessees over and above the DEPB on transfer of the DEPB would represent profit on the transfer of DEPB and while the face value of the DEPB will fall under clause (iiib) of Section 28, difference between the sale value and the face value of the DEPB will fall under clause (iiid) of Section 28 – Decided against Revenue.

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• 2014 (3) TMI 938
  

  Deduction u/s 80HHC of the Act – Receipts arising out of fluctuation of rate of foreign exchange - Whether the Tribunal was justified in holding that the receipt resulting out of exchange rate difference pertaining to the export made by the assessee was not the profit of business within the meaning of section 80HHC of the Act – Held that:- The decision in Commissioner of Income-Tax Versus Amba Impex [2005 (12) TMI 58 - GUJARAT High Court] followed - As a corollary, by the time such sale proceeds are received within the prescribed time, by virtue of exchange rate difference there might be a situation where a larger amount is received that the amount as reflected in the shipping bill - merely because an amount is received in a year subsequent to the year of export by way of exchange rate difference, it does not necessarily always follow that the same is not relatable to the exports made.

  The foreign exchange gain arising out of the fluctuation in the rate of foreign exchange cannot be divested from the export business of the assessee - once export is made, due to variety of reasons, the remission of the export sale consideration may not be made immediately - Under the accounting principles, the assessee, on the basis of accrual, would record sale consideration at the prevailing exchange rate on the quoted price for the exported goods in the foreign currency rates - The exact remittance in Indian rupees would depend on the precise exchange rate at the time when the amount is remitted.

  The Tribunal followed the judgement of assessee’s own case in PRIYANKA GEMS. Versus ASSISTANT COMMISSIONER OF INCOME TAX [2004 (12) TMI 288 - ITAT AHMEDABAD-B] was of the view that receipts on account of exchange rate difference is derived from the export sales and is part and parcel of export proceeds only, and by no stretch of imagination it can be given colour of income from other sources to be excluded from profits of the business in terms of Expln. (baa) below s. 80HHC(4A) of the Act - There is no distinction possible on the basis of different situations under which foreign exchange fluctuation may result - law permits hedging of foreign exchange fluctuation risk to an importer or an exporter - The exporter may take steps as found commercially prudent to safeguard himself against drastic foreign exchange rate fluctuations and in the process may also limit the possibility of gain in case of favourable currency rate trends - the resultant gain in foreign exchange rate would still be due to the export made by the assessee – order of the Tribunal upheld - Decided against Revenue.

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• 2014 (3) TMI 937
  

  Allowability of expenses as per mercantile system - Disallowance of diesel expenses and hire charges/ interest – Held that:- CIT (A) as well as the Tribunal both ruled in favour of the assessee on the ground that eventually there would be no difference in tax rate - the contention of the revenue would have been considered that the expenditure could be allowed only during the year under which liability is crystallized, if the assessee is following the mercantile system of accounting. But,in the present case the amount is very meager – Decided against Revenue.

  Disallowance of unpaid carting charges – Expenses not verifiable and substantiated – Held that:- The CIT (A) had given reasons for limiting the disallowance including the portion of the GP rates of the previous year - The Tribunal also while confirming the approach adopted by the CIT(A) might have enhanced the admissible enhancement of Rs. 8 lakhs - The entire issue is based on appreciation of evidence – thus, as such no question of law arises for consideration in the appeal – Decided against Revenue.

  Deletion made on account of difference in receipts – TDS certificate and P&L account not tallying – Held that:- The CIT(A) as well as the Tribunal both accepted the assessees’s explanation that M/s. CFCL would in certain cases, instruct the assessee to deliver the goods at the places of various dealers from the Railway godown - However, CFCL, had deducted at source, on completion of the work of carting up to the last destination i.e. till the point of delivery at the respective places of the dealers by making provision for such payments – they have not committed any error - The assessee had not carried out the transportation work of the goods in toto - In some cases, the principal employer of the truck would instruct the assessee to deliver the goods to the ultimate point of destination, after some time depending on the need of the dealers - CFCL would deduct at source on the entire payment by making the provision for the same - The assessee had counted for such income in the immediately preceding year, thus explained the discrepancies - The deletion of amount confirmed by the Tribunal is upheld – Decided against revenue.

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• 2014 (3) TMI 936
  

  Validity of Notice u/s 148 of the Act - Reopening of assessment – Income escapement - Held that:- Notice for reopening had been issued within a period of four years from the end of the relevant assessment year - the additional requirement arising out of the proviso to Section 147 of the Act of the income escaping the assessment due to failure on the part of the assessee to disclose truly and fully all material facts would not arise - certain aspects of the matter were brought to the notice of the AO by the audit party.

  The Assessing Officer was convinced that on third ground recorded in the reasons, income chargeable to tax had escaped assessment - such ground was also brought to her notice by the audit party and that by itself would not mean that she was acting at the instance of the audit party – Relying upon Commissioner of Income Tax v. P.V.S Beedies Private Limited[1997 (10) TMI 5 - SUPREME Court] – if a particular issue is brought to the notice of the AO by the audit party and the AO of his/her application of mind finds that the ground is valid, reopening of assessment cannot be quashed merely because such ground was brought to the notice of the AO by the audit party - thus, the notice cannot be quashed – Decided against Assessee.

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• 2014 (3) TMI 935
  

  Deduction u/s 80IB of the Act – Held that:- Section 80IB(2) is applicable only in the case, where there is an Amalgamation or demerger - That does not mean that a transferor of industrial undertaking by any other mode is not entitled to claim deduction u/s 80IB - it would not be correct to say that deduction u/s 80IB is available only where transfer of the unit/industrial undertaking is under the scheme of amalgamation or demerger - the unit/industrial undertaking enjoyed the deduction u/s 80IB from 01.04.1993 till 30.08.2000 i.e., till the unit/industrial undertaking was transferred to the assessee – thus, there is no reason to interfere with the findings of the Tribunal allowing the claim of the assessee – Decided against Revenue.

  Entitlement for depreciation u/s 32(1) of the Act - Whether the Tribunal was justified in holding that the land and factory building, agreed to be purchased from M/s. Wipro Ltd., which had a right under a lease cum sale agreement, would be entitled to depreciation u/s 32(1) of the Act – Held that:- The assessee got into possession of the unit/industrial undertaking from Wipro by virtue of the Agreement to sale and since then, is in possession thereof in its own right exercising such dominion over the same and have right to use, occupy and to enjoy its usufruct in its own right – the decision in [2000 (12) TMI 4 - SUPREME Court] followed - the Tribunal has rightly allowed the depreciation - it was not possible to reach the conclusion that the assessee had acquired domain over the Mill in question - there is lot of materials placed on record, which indicate that the assessee had acquired dominion over the unit/industrial undertaking on 30.08.2000 – thus, there is no merit in the appeal – Decided against Revenue.

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• 2014 (3) TMI 934
  

  Computation of deduction 80HHC of the Act – Exclusion of Excises duty - Whether the Tribunal is right in holding that excise duty is to be excluded for the purpose of computation of deduction u/s. 80HHC of the Act – Held that:- The decision in Commissioner of Income-Tax Versus Lakshmi Machine Works [2007 (4) TMI 202 - SUPREME Court] followed - The tax under the Act is upon income, profits and gains. It is not a tax on gross receipts - Under Section 2(24) of the Act the word "income" includes profits and gains - The charge is not on gross receipts but on profits and gains - Where a deduction is necessary in order to ascertain the profits and gains, such deductions should be allowed - Profits should be computed after deducting the expenses incurred for business though such expenses may not be admissible expressly under the Act, unless such expenses are expressly disallowed by the Act.

  Sales tax and excise duty also do not have any element of "turnover" which is the position even in the case of rent, commission, interest etc. - excise duty and sales tax are indirect taxes - They are recovered by the assessee on behalf of the Government - if they are made relatable to exports, the formula under Section 80HHC would become unworkable – thus, the Tribunal has not committed any error in holding that the excise duty is excise duty is to be excluded for the purpose of computation of deduction u/s. 80HHC – Decided against Revenue.

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• 2014 (3) TMI 933
  

  Disallowance on account of presenting up expenses – Held that:- The Assessing Officer went wrong in making addition and in holding that the claim of the assessee cannot be allowed being preset up expenses - the CIT(A) rightly observed that when similar kind of expenditure was incurred in the earlier assessment year which was allowed, then the stand cannot change without any basis and the addition was deleted - the addition made by the AO on wrong assumption was rightly deleted by the CIT(A) - the order of the CIT(A) upheld – Decided against Revenue.

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• 2014 (3) TMI 932
  

  Revision u/s 263 of the Act – Validity of taking up of closed matters by the successor CIT - Loss incurred in Sterling Exports – Held that:- An error which is not raised in the 263 notice cannot be raised by the CIT – The decision in COMMISSIONER OF INCOME TAX, DELHI (CENTRAL) – I Versus CONTIMETERS ELECTRICALS PVT. LTD. [2008 (12) TMI 4 - HIGH COURT DELHI] followed - the department cannot travel beyond the show cause notice - it would be against the principles of natural justice that a person who has not been confronted with any ground be saddled with the liability - the issue did not form part of the show cause notice and the assessee was not even confronted with it, even before the CIT, it cannot for the basis for revision of the assessment order under section 263 – thus, the issue of SE loss having not been mentioned u/s 263 show cause notice, the setting aside order by CIT in this behalf cannot be sustained - Successor CIT cannot take up the closed 263 proceedings on the same issues and review the order of her predecessor on same issues.

  FDR Interest u/s 10AA of the Act – Held that:- The show cause notice was to verify whether interest income was included in the books or not – Assessee had demonstrated this aspect to the satisfaction of audit party, CIT(Audit) and predecessor CIT - the set aside for a new issue i.e. eligibility of FDR interest u/s 10AA cannot be sustained.

  The issue has been examined by CIT and sec. 10AA eligibility has not been disturbed in 263 order - Thus the direction to re-examine eligibility of 10AA qua the FDR interest has to fail on both counts i.e. it is not raised in show cause notice and sec. 10AA has been not disturbed - as long as the audit correspondence, letter of CIT(Audit) and predecessor CIT correspondence and order are available on record, they become part of record - Successor CIT cannot gloss over the same as it implies non perusal of record and non-application of mind - These omissions violate the 263 provisions – Decided in favour of Assessee.

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• 2014 (3) TMI 931
  

  Regular Assessment - Matter remitted back from High Court – Bar of limitation - Failure to serve Notice u/s 143(2) of the Act within time – Held that:- The observations made by Hon’ble High Court are very much relevant that, during the course of argument, the appellant contended that the very issuance of notice u/s 143(2) and the time provided u/s 143(2)(ii) was over – the High Court has made its mind very clear that the proceedings cannot be taken against the assessee, if the notice issued u/s 143(2)(ii) is beyond the time specified under the provisions – assessee pointed out that the return of income is filed on 06.05.2005 - the notice u/s 143(2) was served on 03.11.2006 - The time gap between the date of filing of return and the date of service of notice is more than 12 months - the notice is barred by limitation in terms of the time limit prescribed u/s 143(2) of the Act – thus, the order of the Ao set aside – Decided in favour of Assessee.

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• 2014 (3) TMI 930
  

  Condonation of delay – Delay of 39 days – Held that:- The assessee failed to convince the bench for the delay in filing the appeals belatedly by way of proper explanation/evidence - the law assists those who are vigilant, not those who sleep over their rights - The delay cannot be condoned simply because the assessee’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief – In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence, whatsoever - Seekers of justice must come with clean hands - as stated in the affidavit, the reasons advanced by the assessee are not supported by any cogent evidence – thus, the condonation of delay cannot be granted – Relying upon Collector, Land Acquisition Vs. Mst. Katiji and Others [1987 (2) TMI 61 - SUPREME Court] - the assessee is not vigilant and also not explained the reasons for delay in filing the appeals with sufficient and good reasons as well as not shown the delay was due to beyond the control of the assessee - the delay could have been avoided by due care and attention of the assessee – Decided against Assessee.

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• 2014 (3) TMI 929
  

  Addition made – Valid explanation for sources of investment not made – Held that:- CIT(A) was of the view that the assessee explained usage of receipt which was used for payment to the landlords - the assessee has not explained the sources from whom he had received and the purpose for which it was received - In the absence of source and nature of expenditure, the receipt is to be considered as trading receipt and income on this is to be estimated, as the assessee estimated on other receipts, at 25% - Decided partly in favour of Revenue.

  Addition made u/s 69A of the Act – Held that:- The observation of the CIT(A) is not proper - When the amount is included in Form No. 26AS the CIT(A) is not proper to hold that the assessee received the amount from M/s. Jana Chaitanya Housing Ltd., and paid to the landlords and the assessee acted only as an agent - It is the mobilisation advance given to the assessee which is liable for TDS towards land development expenditure - When the assessee undertakes the land development, it cannot be said that the assessee carried out the work without element of profit - as it is a regular work carried on by the assessee, applying net profit rate as adopted by the assessee on regular trading receipts, the AO is directed to adopt 25% of the receipt as income of the assessee – Decided partly in favour of Revenue.

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• 2014 (3) TMI 928
  

  Deleting of dis-allowance u/s.14A of the Act r.w. Rule 8D – Held that:- The decision in Godrej & Boyce Mfg. Co. Ltd v. DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] followed - Rule 8D is applicable from assessment year 2008-09 – it cannot now turn around and say that no expenditure whatsoever was incurred for earning the exempt income – thus, the matter is remitted back to the AO for fresh adjudication – Decided in favour of Revenue.

  Deletion of dis-allowance u/s 40a(i) of the Act - Overseas payments of professional and consultancy charges – TDS not deducted - The decision in CIT Vs. M/s. Vector Shipping Services (P) Ltd. [2013 (7) TMI 622 - ALLAHABAD HIGH COURT] followed - the provisions of section 40a(i) do not apply to those amounts which have already been paid by the assessee before the close of the relevant previous year – thus, the dis-allowance u/s.40a(i) applies only to the amounts ‘payable’ and not to those amounts which are already ‘paid’ – Decided against Revenue.

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• 2014 (3) TMI 927
  

  Determination of rate of duty or value of goods - exemption notification - failure to achieve pro-rata export obligation prescribed in Notification No.44/2002-Customs dated 19.4.2002 - Held that:- in this case, rate of duty is already determined and is linked to the export obligation and therefore, the question of determination of fresh rate of duty does not arise. The assessment part is already completed when the concessional rate of duty was extended by the department and the issue in consideration is only whether the assessee is eligible for the concessional rate of duty which was the result of assessment or not. Therefore it cannot be said that this is a case where rate of duty is to be determined by interpreting a notification or tariff heading or any other matter. Similarly, the value of the goods is also determined and it is nobody’s case that here the assessing authority would be revising the value or would be considering concessional rate of duty, etc.

  There was no letter issued by Ministry of Commerce to the appellant for approaching the DGFT and one arm of the Government having advised the appellant to approach DGFT, it would be appropriate to at least wait for a decision by that authority. Therefore I consider that it would be in the interest of justice to give some more time to the appellants. Accordingly the appellant is given six months time from today to produce the decision of the DGFT and in the alternative deposit an amount of ₹ 10.5 lakhs as pre-deposit - Decided partly in favour of assessee.

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• 2014 (3) TMI 926
  

  Vacation of stay order - recovery of dues - 100% EOU - clandestine removal of capital goods imported duty free for the product Cut Flower-Rose - Levy of penalty - Held that:- The stay granted earlier is vacated and the Revenue is free to recover the dues adjudged against the appellant, as the appellant has not appeared before the Tribunal for final hearing inspite of service of notice. - Decided against the assessee.

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• 2014 (3) TMI 925
  

  Redemption fine - Enhancement - Whether redemption fine once imposed while allowing clearance of imported goods can be enhanced subsequently - Held that:- redemption fine cannot exceed the market price of the confiscated goods less the duty chargeable on the imported goods. - For the purpose of determining the quantum of redemption fine, therefore it is essential to determine the market price of the confiscated goods adjudicated upon. It is possible that adjudicating authority may not have determined the Margin Of Profit (MOP) properly and actual MOP could be more. Under such circumstances theoretically redemption fine could be enhanced. However, to arrive at such an opinion of enhancing redemption fine concerned authorities need to determine the market price of the imported goods around the time of import and determine the Market Price and the MOP.

  In the instant case there is no evidence at all that after adjudication a higher MOP with respect to the imported goods, was determined by the Appropriate Authorities. In the absence of any such evidence on record, there is no justification for enhancing the redemption fine imposed by the Adjudicating Authority - Decided in favour of assessee.

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• 2014 (3) TMI 924
  

  Denial of refund claim - Unjust enrichment - Subject to final assessment, Revenue deposit was made - refund of Security/Revenue deposit - Held that:- Provisions of unjust enrichment are not attracted in this case. Further, I find the issue of unjust enrichment have been duly considered in the Order-in-Original - Decided in favour of assessee.

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• 2014 (3) TMI 923
  

  Winding up petition - failure to pay debts - respondent contended that, this petition is not maintainable as the Gati has put the decree into execution, and since the decree has not yet been returned unsatisfied, the petition must be dismissed in limine. - Held that:- A petitioning-creditor with a decree need not put it into execution before bringing a winding up petition. - He can proceed either under Section 434(1)(b) or, having served a notice, move against the debtor-company under Section 434(1)(a).

  Whether claim is time barred - Held that:- The petition is based entirely on the decretal debt, not the underlying cause of action. Limitation would be governed not by Article 137 but by Article 136, and that provides a period of 12 years from the date when the decree is enforceable. - It is also settled that winding up is an equitable mode of execution.

  There is no manner of doubt that Atcom is commercially insolvent. Not only must it be deemed to be unable to pay its debts on account of its failure to comply with the demand in the statutory notice, but its reply contains vital admissions of financial inability, commercial insolvency, its lack of income and that it is doing no business. Gati has a valid decree in its favour.

  Petition admitted - The Official Liquidator is appointed Provisional Liquidator of the respondent company. - Decided in favor of petitioner.

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• 2014 (3) TMI 922
  

  Denial of refund claim - Unjust enrichment - Classification of goods 'Gulabari' - Classification under sub heading 3003.30 or under sub heading 3303.00 - Whether, under the facts and circumstances of the case the respondents have rebutted the statutory presumption under Section 12-B of the Act so as to be entitled for refund under Section 11-B of the Act - Held that:- differential excise duty paid by the appellant after the order dated 11.12.1997 related to the period 1st March, 1990 to 30 September, 1997. The classification of the product by the department, which imposed 18% excise duty, was challenged by the respondent and in pursuance to the demand as made by order dated 11.12.1997, the deposits were made by the respondent under protest after writing letter dated 18.12.1997 which has been brought on the record as Annexure-C.A.-3. In the letter dated 18.12.1997, it was clearly mentioned that the respondent does not agree with the classification of the product. It was further mentioned that the respondent is not changing the maximum retail price or wholesale price of the product.

  When the payment of differential excise duty was made by the respondent under protest and the M.R.P. has not been raised by the respondent, we fail to see that how the incidence of such duty shall be treated to have been passed on the buyer of such goods. The Assistant Commissioner Central Excise had referred to the letter dated 18.12.1997 sent by the respondent by which it was mentioned that respondent has not change maximum retail price or wholesale price and is paying the duty under protest.

  Amount of ₹ 10,94,263/- was deposited by the party on their own has not been shown in the balance sheet of relevant year 1997-98 in the schedule of loans and advances to be recovered for the department is not sustainable as the party had deposited this amount under protest as an advance payment of central excise duty pending enquiry and investigation and intimated this fact to the Additional Director General of DGAE, Central Excise New Delhi vide their letter dated 06.12.1997 and has also shown in their Balance Sheet of the company for whole of the group in the relevant year 1997-98 in the schedule of "OTHER CURRENT ASSETS". - Revenue had not disputed the facts of examination of balance sheet in their Grounds of Appeal. So, it is evident from the record that the Commissioner (Appeals) allowed the refund claim after examining the unjust enrichment. Hence, I do not find any reason to interfere the order of the Commissioner (Appeals) - Decided against Revenue.

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• 2014 (3) TMI 921
  

  CENVAT Credit - Place of removal - Place of removal is defined in section 4(3)(c) of Central Excise Act, 1944 – Cargo Handling Services - Assessee took credit of Cargo Handling Services used for export of goods manufactured by it - Department denied said credit on ground that credit could be availed only upto place of removal, port of shipment cannot be regarded as place of removal - Whether the Tribunal was correct in holding that Credit of Service tax paid on Cargo Handling Services is admissible to the manufacturer as "input service tax credit", by overlooking the Statutory provisions of Rule 2(l) of the Cenvat Credit Rules, 2004.

  Held that:- When manufacturer transports his finished goods from factory to any other place such as, go-down, warehouse, etc. from where it would be ultimately removed, such service is covered in expression "outward transportation upto place of removal" since such place other than factory gate would be place of removal - Taking this analogy further, in case services are availed essentially for purpose of exporting goods, then, place of removal shall have to be essentially ' port' from where goods are actually taken out of country and, accordingly, said services (including transportation of finished goods upto such place of removal being port) would be input service - Therefore, in case of export of final product, place of removal would be port of shipment and not factory gate and therefore, manufacturer would be entitled to credit of input services availed upto such ' port of shipment'.

  Though there is no express inclusion of cargo handling service in definition of input service; however, in light of precedents, it can be held that in case of export of final product, place of removal would be port of shipment and not factory gate and therefore, manufacturer would be entitled to avail amount claimed towards cargo handling as input service under Cenvat Credit Rules - Since, in this case, cargo handling services were utilized for purpose of export of final product, said services availed upto place of removal being port of export (i.e., until goods leave India from port) were service used in relation to clearance of final products upto place of removal - Therefore, assessee was entitled to credit – Decided against Revenue.

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• 2014 (3) TMI 920
  

  Valuation - waiver of pre-deposit - whether the trade discount passed on by the appellant to Oil Marketing Company can be considered as trade discount or not and whether excise duty is leviable on this amount considering the same as part of the value of the goods sold - Held that:- stay petition came up for consideration before this Tribunal on the last occasion on 21.1.2014, this Tribunal after considering the submissions made by both the sides, directed the appellant to make a pre-deposit of 50% of the duty confirmed on the ground that on the earlier decisions, pre-deposit was ordered taking into account the demand for the normal period of time. In the case before us, the entire demand is for the normal period of time. It is a well settled position that while considering various decisions on a matter, the latest decision should be preferred as that would have taken into account all the previous decisions on the subject - Conditional stay granted.

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