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Showing 301 to 320 of 1635 Records
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2022 (3) TMI 1335
Deduction u/s. 80IC - claim of the assessee is that it was engaged in the manufacture of the Antivirus software at its Parwanoo unit and hence entitled to deduction of the full profit of that unit - AO found that the software development activity was done at the R&D cost centre of the assessee in Pune and only the CD writing activity, of the software developed by the Pune R&D Centre, was taking place at the Parwanoo unit thus deduction u/s.80IC could be allowed only with reference to the profit attributable to the CD writing activity at the Parwanoo unit and not the software development - as per CIT-A appellant’s claim that it was not cost effective to dispatch goods from Parwanoo units to customers outside H.P. as credit for CDT paid was not available to customers outside H.P. against the local VAT liability cannot be appreciated for the simple reason that what was sold to Pune was CD after writing and not complete software and the cost of writing CD cannot be the amount claimed by the appellant shown in its invoice and confirming the addition - HELD THAT:- On going through the above operative part of the impugned order, it is overt that the ld. CIT(A) has confined his decision precisely to the view point of the AO as incorporated in the assessment order. All the submissions made by the assessee beyond the assessment order, which have bearing on the ultimate decision, albeit recorded in the impugned order, remained unaddressed - impugned order does not deal with all the issues raised by the assessee. The ld. AR emphatically submitted, which we also endorse, that the ld. first appellate authority ought to have disposed of all the points raised by the assesee so that an effective challenge could be laid before the Tribunal against his decision, if warranted. In view of the fact that several issues raised by the assessee have not been adjudicated by the ld. CIT(A), we are of the considered opinion that it would be in the fitness of the things if the impugned order is set-aside and the matter is restored to his file for dealing with all such issues and then pass a speaking order thereon. We order accordingly. Needless to say, an adequate opportunity of hearing will be granted by the CIT(A) to the assessee in such proceedings.
Disallowance u/s.14A - AO observed that the assessee earned exempt income from mutual funds - HELD THAT:- The Hon'ble Delhi High Court in ACB India Ltd. [2015 (4) TMI 224 - DELHI HIGH COURT] has held that the average value of investments, for the purposes of Rule 8D(2)(iii), should be confined to those securities in respect of which exempt income is earned and not the total investments. Similar view has been taken by the Special Bench of the Tribunal in the case of ACIT vs. Vireet Investments (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI]. In view of the afore referred precedents, we set aside the impugned order to this extent and remit the matter to the file of the ld. CIT(A) for re-computing the disallowance under Rule 8D(2)(iii) by considering only such investments in calculating the average value of investments, which yielded exempt income during the year. The assessee will be allowed hearing opportunity in such fresh proceedings.
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2022 (3) TMI 1334
Reopening of assessment u/s 147 - Time limit for notice to be issued u/s 149 - escaped income from an asset outside India - time limit u/s 149 within which notice for reassessment can be issued in respect of "income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment - HELD THAT:- Section 149(1)(c) provides that no notice for reassessment can be issued if "more than sixteen years, have elapsed from the end of the relevant assessment year unless the income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment". Therefore, as long as sixteen years from the end of the relevant assessment year have not expired, the reassessment notice is in a case involving income from assets located outside India.
As for the retrospective application of this provision, Explanation to Section 149 unambiguously provides that "the provisions of sub-sections (1) and (3), as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012". The amendment in Section 149(1), introduced with effect from 1st July 2012, is thus expressly stated to be retrospective in nature, and there is, in our humble understanding, there is no bar on the validity of the retrospectivity of the taxing statute as long as it is clearly specified to be so.
there is no bar on the retrospectivity of a statute, though, in the absence of any express intention to that effect, it is presumed to be only prospective. The validity of a statute being retrospective in effect cannot, as such, be questioned in principle. In any event, it is not open to a forum like this Appellate Tribunal-much less a Commissioner (Appeals), to contest validity of a retrospective amendment in law. Once the statute clearly provides that the amended section 153(1) and (3), as amended by the Finance Act 2012, shall also be applicable to "any" assessment year beginning on or before 1st day of April 2012, it cannot be open to us to hold otherwise.
To suggest that this amendment was intended to be prospective in effect would mean that the legislature, which undisputedly has the powers to make amendments with retrospective effect, intended to introduce section 149(1)(c) to take full effect from 1st April 2022 - an incongruity by any standard. The interpretation adopted by the learned Commissioner (Appeals) is thus clearly contrary to the specific words of the statute and unambiguous intent of the legislature. We, therefore, vacate the relief, quashing the reassessment proceedings as time-barred, granted by the learned Commissioner (Appeals) and restore the stand of the Assessing Officer on this point.
Our humble understanding is that so far as escaped income from an asset outside India is concerned, any completed assessment can be reopened as long as sixteen years have not elapsed from the end of the relevant assessment year. Admittedly, that is not the position in the present case, as the relevant assessment year was completed on 31st March 2000, and the assessment was reopened on 27th March 2015. The plea of the Assessing Officer is thus indeed well taken.
Thus respectfully following the views so taken by the coordinate bench in the case of DCIT vs. Dilip J Thakkar [2022 (3) TMI 1307 - ITAT MUMBAI], we uphold the plea of the appellant in the terms indicated above. The impugned order accordingly stands were taken and the matter stands restored to the file of the Assessing Officer for adjudication on merits. In the light of our observations.
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2022 (3) TMI 1333
Depreciation claimed by the assessee at a higher rate - oil rigs used being plant of specific category are owned by the assessee and used in drilling operations for the purpose of exploration and extraction of mineral oil in the field of mineral oil concerns - AO substituted the accelerated depreciation rate from 60% as claimed to a normal depreciation of 15% as eligible to assessee - HELD THAT:- As relying on decision of HLS India [2011 (5) TMI 322 - DELHI HIGH COURT] and Co-ordinate Bench of ITAT [2011 (5) TMI 322 - DELHI HIGH COURT]has agreed with the plea of the assessee for entitlement of accelerated rate of depreciation @ 60% on oil rigs which has been used for drilling operations in the oil field of mineral oil concernsCo-ordinate Bench of ITAT in ITA No. 5710/Del/2014 order dated 3rd April, 2019 has agreed with the plea of the assessee for entitlement of accelerated rate of depreciation @ 60% on oil rigs which has been used for drilling operations in the oil field of mineral oil concerns.
Nature of expenditure - Disallowance of repair and maintenance charges - assessee claimed the aforesaid expenditure towards repair and maintenance as revenue expenditure - HELD THAT:- We take note of the plea of the assessee that there is no reimbursement of expenses and such expenses are integral part of the execution of the contract as demonstrated. Hence, the expenditure incurred requires to be set off against the revenue income arising from contract as per rudimentary principles of accountancy. The assessee has taken a plea that no new asset is created or no benefit of enduring nature has been derived. We do not see any rebuttal on this score from the revenue. The Assessing Officer has merely proceeded on a hypothesis of such expenditure being capital in nature without showing any justifiable grounds for doing so. The Assessing Officer has capitalized such expenditure without showing any reasonable grounds. On the contrary, we find merit in the conclusion drawn by the CIT(A) holding the same to be revenue expenditure on the face of such tell-tale facts. In the absence of any merits in the plea of the revenue, we decline to interfere with the order of the CIT(A). - Decided in favour of assessee.
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2022 (3) TMI 1332
Addition on account of ALP - CIT(A) deleted the adjustment made by the TPO in connection with international transaction on account of - TPO held that the case of the assessee failed on need, benefit and rendition test to justify any payment for reimbursements paid to the parent entity payments expatriates - HELD THAT:- This issue stands adjudicated for the A.Y. 2007-08, A.Y. 2008-09, A.Y. 2009-10 and A.Y. 2010-11 wherein it was held that there was no meaningful analysis or evidence provided by the TPO to hold that entire payment made by the assessee to expatriate should be reduced to zero.
Since, the matter squarely covered by the order of the Tribunal, the vehement arguments of the ld. DR have been duly considered. However, in the absence of any material change in the factual matrix and legal proposition, we decline to interfere with the order of the ld. CIT(A).
Security deposit written off - assessee has entered into a letter of intent for obtaining shops on lease. As per this letter, the assessee was required to pay security deposits at the time of executing this letter of intent. As per the termination clause of the letter, in case the lease has been terminated by the lessee, the entire amount of security deposit shall be forfeited by the lessor - HELD THAT:- As gone through the judgment in the case of Badridas Daga [1958 (4) TMI 2 - SUPREME COURT] wherein it was held that "the profit to be assessed are the real profits and they must be ascertained on ordinary principles of commercial training and commercial accounting. The profit should be computed after deducting losses and expenditure incurred for the purposes of business unless such losses or expenditure are expressly, or by necessary implication, disallowed by the Act.
Hon'ble Supreme Court in the case of CIT vs. Nainital Bank Ltd.[1964 (9) TMI 11 - SUPREME COURT] wherein it was held that "under section 28, the trading loss of a business is deductible in computing the profits earned by a business. Every loss is not deductible unless it is incurred in carrying out the operation of the business and is incidental to the operation. Whether loss is incidental to the operation of a business or not, is a question of fact to be decided on facts of each case, having regard to the nature of the operation carried on and the nature of risk involved in carrying them out. The degree of the risk or its frequency is not much relevant but its nexus to the nature of the business is material.
Having gone through the entire judgments quoted by both the parties, provisions of the Act pertaining to interplay between Section 28 and Section 37 and facts of the case, we have no hesitation to hold that the assessee be allowed to claim the loss incurred in forfeiture of security deposits given for lease of rental premises as the expenses are incurred wholly and exclusively for the purpose of business. - Decided against revenue.
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2022 (3) TMI 1331
Deduction on account of interest payment based on the judgment of decree passed against the appellant by the Hon'ble Delhi High Court - grievance of the department is that though the same has been claimed in the computation of income, but the same has not been charged as an expense in the audited accounts/books - HELD THAT:- Since, the issue has travelled a series of judgments of the Tribunal, Special bench and the Hon'ble High Court and the matter has been settled with regard to the payment of interest, we decline to interfere with the order of the ld. CIT(A).
Disallowance of Expenses u/s. 40(a)(ia) - HELD THAT:- The amount paid by the assessee is the cost of purchase and not in the nature of commission. The procuring organization i.e. the Village, District & State Level Co-operative Societies had to incur expenses on maintaining offices and administrative staff to carry out the work of procurement. They also had to earn some net profit from all their effort/work. Accordingly, the appellant allowed the Village, District &. State Level Co-operative Societies to raise their sales invoices on the appellant on a similar basis which the Govt. of India (GOI) has prescribed for the appellant i.e. cost plus a fixed gross margin. In fact even the market/mandi charges and other taxes etc. are also charged as a percentage. The State Level Cooperatives raise their sale bills on NAFED giving various components of the direct costs like "basic price, purchase tax, marketing fees, packing charges etc." as well as their margin of profit for meeting their own administrative costs etc.
Pricing mechanism fixed by the Government of India, it is clear that the assessee has merely paid the purchase price as agreed. However, only to monitor the pricing, the cost components are separately shown so as to reimburse the assessee for any loss incurred by it in execution of PSS/MIS - Since the amount paid by the assessee to the Dist/State Level Cooperatives is only the purchase price and not in the nature of commission, no disallowance under section 40(a)(ia)is called for.
Disallowance of Expenses u/s. 40(a)(ia) - HELD THAT:- Disallowance u/s. 40(a)(ia) was made by the AO for late deposit of TDS deducted u/s. 194C during December 2008 and February 2009 for payments made. TDS was deposited in the government treasury on 25.05.2009 which was before the due date of filing of return u/s. 139(1) of the Income Tax Act, 1961. No disallowance is called for u/s. 40(a)(ia) owing to the decision of the Income Tax Appellate Tribunal, Delhi 'H' Bench, in the case of Taru Leading Edge (P) Ltd., New [2012 (6) TMI 296 - ITAT DELHI] for Assessment year 2008-09.
50% of depreciation on the warehouse holding that it has been put to use for less than 180 days - HELD THAT:- Warehouse bills on sample basis were furnished vide letter dated 08.11.2011 to prove that the warehouse is in operation. The bills were issued by NAFED to FCI for giving warehouse storage facility by NAFED to FCI. These bills are therefore evidence to establish that the warehouse was in operation in the year under assessment. The invoices submitted on sample basis before the AO were not the purchase invoices for acquisition of the asset rather these invoices were in evidence to use of such assets. The document pertaining to handing over note of warehouse dated 31.03.2008 before the ld. CIT(A) which was remanded back to the office of AO. AO vide remand report dated 19.11.2013 rejected the claim of assessee without pointing out any reason as to why the aforesaid document does not prove the date of put to use. This contention of AO was not accepted by the ld. CIT(A) and relief was provided to assessee. Hence, we decline to interfere with the order of the ld. CIT(A)
Disallowance u/s. 14A - HELD THAT:- During the year, the assessee received dividend income of ₹ 1,01,33,000/- from IFFCO and Cooperative Bank of India. The similar issue has been adjudicated by the Co-ordinate Bench of ITAT in the case of the assessee [2012 (4) TMI 803 - ITAT DELHI] wherein the disallowance made by the AO has been deleted. Since, the matter stands adjudicated, in the absence of any material change and the legal proposition, we decline to interfere with the order of the ld. CIT(A).
Disallowance on account of Claims Rejected - HELD THAT:- Assessee claimed from railways and Government of India and an amount of ₹ 20,75,889/- for loss suffered in stock transfer from one branch to another and on account of purchase & sale of agriculture products on behalf of the Government of India. This is the rejection of expenses incurred by the assessee and not reimbursed by the GOI/Railways on account of Price Support Scheme and Market Intervention Scheme. These expenses are not penal in nature and hence claimed u/s. 37 - Since, the expenses are incurred in connection with the business of the assessee, no disallowance is called for.
Disallowance u/s. 37 - assessee has claimed in the P&L Account an amount towards "Reimbursement of Deficit/Surplus from/to business associates" on account of reimbursement as per the terms of Memorandum of Understanding dated 11th April 2008 between the said entity and the assessee - HELD THAT:- Recorded sales and purchases/costs (though made/incurred by the business associate) in the books of the assessee, as the result an amount of ₹ 10,03,22,868/- is shown as the difference between the sale and the purchase in the books of the assessee which was payable to the business associate after deducting the service charges of ₹ 53,33,813/- being income of the assessee. Thus, the balance amount of ₹ 9,49,89,055/- payable to the business associate namely M/s. R. Piyarelal Global Impex Ltd. was recorded as an expense in the books and the account of the business associates was credited.
Export sales made by the business associates, the sales have been credited by the assessee in its books of accounts as normal sales, being pursuant to the tie-up business model adopted for recording of sales and purchase transactions, to that extent the revenue is recognized in the books of the assessee. Correspondingly the purchase cost/expenses incurred by the business associates were also debited by the assessee in its books of accounts and to that extent the cost is recorded.Thus, the difference is sitting in the books of the assessee after reducing the service charges being the true income of the assessee, was nullified by debiting the profit & Loss account under the head "Reimbursement of Deficit/Surplus from/to business associates".
Disallowance of prior period adjustments - AO made the aforesaid disallowance by holding that the liability of these expenses were crystallized in previous years - HELD THAT:- Since, the expenses were found to have been crytalized during the year, no disallowance is called for.
Disallowance of interest u/s. 36/37 - HELD THAT:- Mere non-accrual of any income does not ipso facto make the tie-up advances as not for business purposes and very importantly when the same were given as held driven out of commercial expediency and the income has been earned in the past and duly included in the taxable income and assessed under section 143(3) of the Income Tax Act for those years and for subsequent assessment years. NAFED is persistently pursuing the recoveries against these tie-up advances. A Year Wise breakup of recoveries made against Tie-Up Advances and total recoveries aggregated to ₹ 158.24 crores. To expedite the remaining recovery, all the efforts are being made by the NAFED including legal proceedings which have been initiated against the defaulting parties at various levels i.e., CBI, Enforcement of Economics Offences Wing, High Court, etc.
Since, the tie-ups could be said to be a part of the business operation, no disallowance of interest on this account is called for and hence we decline to interfere with the order of the ld. CIT(A).
Appeal of revenue dismissed.
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2022 (3) TMI 1330
Exemption u/s 11 - Whether assessee is entitled to exemption of all its income, including rental income out of letting, interest income on investments and miscellaneous income, under Sec 11 & 13? - assessee has established Research Institute for learning and research and study in depth of all Vedas and effect of Vedic chants on human life, nature and universe. The trust also has objects of awarding scholarships to students and gives donation to any trust existing for charitable purpose etc. - HELD THAT:- Since the assessee was not able to carry out the activities for which it has obtained 12A registration, started construction activities and letting out to corporate houses and getting rental income out of which some portion of amount was donated to educational institution. The assessee has not carried out any activity relating to medical and education or any medical relief. Therefore, the activities carried out by the assessee cannot be said as charitable activity. The assessee was only constructing commercial complex and the same was given to long lease for 99 years. Therefore, there is no possibility that the assessee can again revive its main object of carrying out research on Vedas. We find that in the assessment years under consideration, the assessee has only carrying out construction of building and letting out it to the corporate houses.
If the assessee has to claim relief under charity, it has to carry out charitable activities of relief to poor or education or medical relief. In the case in hand, the assessee neither carried out any activity relating to relief to poor nor education or medical relief. Therefore, the provisions of section 2(15) of the Act clearly attracts in the case of the assessee, i.e., other object of general public utility. Therefore, the Assessing Officer has rightly decided that the assessee has not carried out any charitable activity and not entitled for claiming deduction under section 11 to 13 - CIT(A), without examining any material documents and provisions of section 2(15) of the Act, simply reversed the order passed by the Assessing Officer. We find that the order passed by the ld. CIT(A) is without any material and any basis. Therefore, the order passed by the ld. CIT(A) has to be reversed.
Donation given to the other charitable organization is concerned, only 10% of the assessee’s income was donated to other Trust/organization, which is only an incidental activity, though; it is not a main objective of the assessee. Once, the assessee has not carried out its main objectives and only carried out an incidental activity, it cannot be said that the assessee was carrying charitable activities and therefore, the provisions of section 2(15) clearly applies to the assessee’s case.
The income earned out of construction of multi-storeyed building and leasing out to corporate houses was not at all applied for any of the charitable activity except payment of a small amount of donation. Out of the total income of ₹.3,58,21,185/- for the assessment year 2011-12, only ₹.36,06,166/- was paid as donation out of which, a sum of ₹.25 lakhs was paid to a trust which was managed by one of the trustee viz., Smt. Meena Muthiah. If payment of a small amount is treated as charity, then everyone who pays a small amount of donation may claim charity. The assessee can claim deduction under section 80G for the above payment of donation and not exemption under section 11 of the Act. Thus we set aside the order of the ld. CIT(A) for all the assessment years under appeal and that of the Assessing Officer is restored. Thus, the ground raised by the Revenue is allowed.
Disallowance of depreciation claimed - HELD THAT:- We have perused the decision of the Hon’ble Supreme Court in the case of CIT v. Rajasthan and Gujarati Charitable Foundation [2017 (12) TMI 1067 - SUPREME COURT]as held that even though the cost of asset was allowed as application of income in the year of acquisition of asset, the charitable institution is still entitled for depreciation - the orders of the authorities below are set aside and the Assessing Officer is directed to allow the depreciation as claimed by the assessee for the assessment years 2010-11, 2012-13 and 2013-14. Thus, the ground raised by the assessee is allowed.
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2022 (3) TMI 1329
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- AO completely ignored the submission of assessee and made the disallowance. At this juncture, our attention was drawn towards the Balance Sheet observed that out of total investment of ₹ 4,33,92,050/-, a sum of ₹ 2,77,92,050/- represents the amount invested in Convertible Warrants and thus could not form part of total investments eligible for consideration of disallowance u/s 14A read with Rule 8D of the Rules. AO while computing the disallowance, considered total value of investment, thus the basic approach of the AO to the issue in hand is patently wrong. Further investment in equity shares was carried over from preceding year and was not made in the year under consideration. Apart from this, the AO has failed to bring on record the nexus between the funds borrowed and invested in the equity shares having tax free income, therefore, we are of the view that the AO without appreciating these facts concluded that investment in shares was made out of borrowed funds.
Assessee is having Closing Balance of Unsecured Loan taken from M/s Anil Special Steels Industries Ltd. (ASSIL) of ₹ 3,34,31,537/- out of which a sum of ₹ 83.20 lacs was old term loans given for the acquisition of Plant & Machinery on which interest @ 18% is being paid and balance amount is interest free receipt, meaning thereby that assessee has already received more interest free funds than advance made and no interest bearing fund were utilized during the year for making providing advance to ASSIL, thus question of making any disallowances is beyond the scope of section 14A and 36 (1)(iii) - we are of the considered view that the interest bearing funds taken by assessee were utilized wholly and exclusively for the purpose of business, in respect of which no disallowance could be made, therefore, we direct to delete the disallowance so made and confirmed qua this issue.
Addition u/s 68 - AO doubted the creditworthiness of the lender and made addition - HELD THAT:- Assessee has discharged the onus as required u/s 68 of the Act by proving identity of creditor, genuineness of transaction and creditworthiness/capacity of creditor. In fact, the AO has not disputed the identity and genuineness of lender rather made the addition solely alleging creditworthiness. So far as creditworthiness is concerned, the assessee has furnished audited Balance Sheet of M/s Pooja Vintrade Pvt. Ltd. which duly incorporates all the entries. It was submitted by the ld. AR that the assessee cannot be penalized for non compliance of notices on the part of debtor. In this regard, we are of the view that it is not the case that notice u/s 133(6) remained unserved rather notice remain uncomplied for the reason best known to them.
During the course of appellate proceedings, the ld. CIT(A) directed to produce the party, however being located outside Jaipur (at Kolkatta), they could not be produced and due to the fact that the borrower is always in subdued capacity, assessee could not compel the lender to appear. However, assessee with best efforts was able to obtain affidavit from director of Pooja Vintrade Private Ltd , duly confirming the fact that they have advanced loan to assessee in F.Y. 2011-12, which has closing balance of ₹ 21,80,000/- as on 31.03.2012, which was furnished before ld.CIT(A), however was brushed aside. The ld. CIT(A) while confirming the addition has stated that the assessee has not submitted complete Balance whereas the assessee vide letter has submitted detailed Balance Sheet.
Thus we found merit in the contention of the ld. AR and the case laws relied upon before us are also found support the case of the assessee. No new facts and circumstances has been put forth by the ld. DR, therefore, we direct to delete the addition made and confirmed U/s 68 of the Act.
Disallowance of expenses claimed in the P&L account as vehicle and travelling expenses - HELD THAT:- The Coordinate Bench of Pune Tribunal in the case of DCIT v. Kolhapur Zilla Sahakari Dudh Utpadak Sangh Ltd. [2008 (3) TMI 389 - ITAT PUNE-A] has held that “S. 37(1)-For the expenditure to be allowable u/s. 37(1), it may be incurred `voluntarily' and without any 'necessity' and if it is incurred for promoting business and to earn profits, assessee can claim deduction u/s. 37(1), even though there was no compelling necessity to incur such expenditure.” We found merit in the contention of the ld. AR and the case laws relied upon before us are also found support the case of the assessee. No new facts and circumstances has been put forth by the ld. DR, therefore, we direct to delete the addition made and confirmed qua this issue.
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2022 (3) TMI 1328
Exemption u/s 11 - entitled for exemption u/s 10(15)(iv) - HELD THAT:- AR demonstrated the computation of total income for the period 01.04.2014 to 31.03.2015 AR highlighted that as per Audited income and expenditure account, there is a deficit. But while preparing the computation of total income, only Bank interest, interest on income tax refund, scrap sale and rent from hospital are chargeable under income from other sources as the assessee is entitled for exemption u/s 11 - AR also submitted that the tax free interest on bonds cannot be brought under the purview of the taxation and referred demonstrating tax free interest on bond of NHAI, REC, PFC etc. with Actual dates. Whereas the date was changed due to the typing mistake and the computer system package. Hence the tax free interest on bonds to the extent falls in the F.Y 2014-15 relevant to current assessment year and entitled for exemption u/s 10(15)(iv) of the Act.
AR submitted that the interest income component was aggregated in the bank account and referred to the bank statements at page 9 to 12 of the paper book. On perusal of these factual aspects discussed above, We find there is a technical error/mistake in computer package which cannot be ruled out. We find the Ld.AR submissions are realistic and duly supported with material evidences in the paper book is appreciated. Accordingly, we direct the Assessing officer to delete the addition of tax free interest on securities-bonds as it pertains to F.Y 2014-15 and the assessee is eligible for exemption u/s 10(15)(iv) of the Act and allow the ground of appeal in favour of the assessee.
Addition of donation expenses - AR submitted that the assessee has not claimed deduction in respect of donation while preparing the computation of income and though donation expenses included under head “Miscellaneous income” was debited to the Audited income and expenditure account but for the purpose of exemption under the provisions of Sec.11 of the Act, the assessee has not claimed it as deduction - HELD THAT:- AR demonstrated the computation statement of income - we find that the assessee on applying the principles of mutuality has considered only the bank interest, interest on income tax refund, scrap sales and rent from hospital chargeable under income from other sources and the total income disclosed was ₹ 30,18,600/-. We find Prima facie the assessee has not claimed the deduction of donation while computing the statement of total income. Accordingly, we find the addition sustained by the CIT(A) is not justified and we direct the Assessing officer to delete the addition and allow the ground of appeal in favour of the assessee.
Dispute between committee members and the trustees and the best judgment assesseement order is passed under 144 r.w.s 147- no proper accounting principles were applied and the A.O has made an addition after allowing the certain expenditure - HELD THAT:- We considering the overall facts, circumstances and the disputes between the trustees and committee members pending before Hon’ble High Court Of Bombay are of the substantive opinion that, on the principles of natural justice the assessee should be provided one more opportunity of hearing before the lower authorities to substantiate the case with the material evidences. Accordingly, the information/details submitted before the CIT(A) by the assessee are restored to the file of the A.O to consider afresh and decide on merits and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information expeditiously and allow the grounds of appeal of the assessee for statistical purposes.
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2022 (3) TMI 1327
Benefit of exemption - second-hand slurry seal machine for filling up cracks in roads (slurry paver) - Classification of imported goods - non-acceptance of the intent of ‘deployment of the goods in construction of roads’ on the finding that the equipment could be used only for repair/maintenance work of existing roads on the part of Revenue - HELD THAT:- It is seen from the communication of 17th April 2009 that work of ‘micro surfacing of various roads’ for a period of one year under ‘M.Maintenance-I PWD (NCTD)’ was awarded to the appellant. The exemption notification envisages concessions from the standard rate of duty upon demonstrated qualification, as contract awarding authority or as contractor of project for ‘construction of road’, and upon furnishing of certain undertakings and certifications.
In the present dispute, the certifications are not of relevance and any breach of the undertaking is to be elicited upon post-importation deployment of the equipment. The apprehension of the original authority, and of the reviewing authority, that the goods were intended to be used in breach of the condition of exemption is built upon their determination of the permitted activity as cutting of paths to be levelled and hardened before being layered with macadam – just enough provide a ride smoother than on the cobblestoned highways of ancient Rome – with no immediate requirement of ‘microsurfacing’ until a few years down the line.
In GAMMON INDIA LTD, CHARAN SINGH, UMAKANT TIWARI VERSUS COMMISSIONER OF CUSTOMS (IMPORT) MUMBAI [2018 (12) TMI 1122 - CESTAT MUMBAI], the Tribunal makes it abundantly clear that any violation of the post-importation conditions is to be responded to by enforcement of the undertakings furnished at the time of import and not by pre-emptive burdening of some part of the ‘construction of ‘roads’ project by executive overreach. The eligibility of the project itself or the status of the appellant, as contractor eligible to import specified goods for the project, is not in dispute; it is the use that the impugned equipment has for the project that is with the original authority restricting the proceedings to the eligibility of the impugned goods at the threshold. Without examining the nature of the project itself, a finding on use or misuse – intended or actual – is beyond the scope of assessment to duties of customs as the actual usage of the goods thereafter are not the subject of the impugned proceedings.
In COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT], the Hon’ble Supreme Court adjured rigid application of the contents of exemption notification. As narrated supra, the eligibility for availment of the notification at the time of import is not under challenge of Revenue and entitlement to the exemption is within the terms of the notification. The cautionary directive of the Hon’ble Supreme Court is not disharmonious with the findings of the first appellate authority. The appeal, itself, is based on apprehension of likely usage after clearance by breach of condition in notification that lies entirely within the realm of empirical evidence of actual usage for purposes not intended in the notification which has not been brought on record by Revenue in the present proceedings. The strict enforcement that is obligated by the cited decision is no less pertinent to interpretation of the stage of denial or consequent recovery, as the case may be, in the exemption notification by customs authorities.
In the present case, the inclusion of the description of the imported goods in the enumeration of the eligible equipment makes it abundantly clear that, even if its purpose is to fill cracks on road surface, its utility in eligible projects is not deniable. Furthermore, we cannot conjecture the possibility of resort to filling up of cracks in ‘greenfield’ roads and it would appear that the deployment of this equipment, so essential in upgradation of existing roads, for other than ‘greenfield’ road development, is within the intent of the notification. There is nothing on record to indicate that the proposed project was not intended for permissible upgradation.
There is no reason to conclude that the road construction, as intended in the exemption notification, is limited to ‘black topping’ of surface or that the importer is likely to indulge in ineligible activities during the period of lock-in prescribed in the exemption notification. The importer has complied with all the conditions specified in the said notification and it would be incorrect in law to deny exemption allowed by the first appellate authority - appeal dismissed.
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2022 (3) TMI 1326
Provisional release of goods - API supari - Correctness of outcome, based on a selected report of sample testing - edible fruit and nuts - peel of citrus fruit or melons covering areca nuts - whether these goods are unfit for human consumption? - conflicting test results - Correct classification of goods - release of seized goods - applicability of section 110A of Customs Act, 1962 - HELD THAT:- There is no allegation about the competence of, or the quality of the test undertaken by, the laboratory to which the samples drawn on the direction of this Tribunal had been forwarded. The domain expertise of Central Revenue Control Laboratory (CRCL) in relation to classification of goods does not extend to the prescriptive requirements of Food Safety and Standards Act, 2006. In these circumstances, an unending series of tests on requests and counter-requests cannot be approved; but it was done, and with reluctance, solely owing to the procedural lacunae that strained the credibility of the conflicting reports produced.
There is a test report that is not sought for discarding except by assertion of the sanctity of Central Revenue Control Laboratory (CRCL) which has no domain expertise over food safety standards. The Food Safety and Standards Authority of India (FSSAI) has also not discredited this result. The denial of provisional release must be reviewed in the light of this report under section 110A of Customs Act, 1962 forthwith and, in any case, not later than ten days from the date of receipt of this order, and, as directed by the Hon’ble High Court of Bombay, strictly within the framework of the law.
Consequence of denial of access to impugned goods is a commercial detriment that burdens the appellant. The impugned goods are not a produce of India with nowhere else to go but have been imported from a place outside India with commercial intent. The regulatory standards of India are not mandated for implementation across the globe. Each country adopts its own and the country of origin of the impugned goods must, if necessary, be the final resting place of such as are unfit to be cleared here for home consumption - Even if customs authorities felt obliged with, or without, justification or authority, to protect domestic consumers of arecanut/supari, the option of return to sender should have been permitted in circumstances of denial of recourse to section 110A of Customs Act, 1962 on grounds other than that which legitimized seizure. Therefore, it is only equitable that the prayer for issue of ‘detention certificate’ for enabling waiver of demurrage is allowed.
The respondent-Commissioner is directed to apply the law in section 110A of Customs Act, 1962, arising from seizure under section 110 of Customs Act, 1962, in the light of the report of the tests undertaken on the samples drawn - Appeal allowed.
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2022 (3) TMI 1325
Valuation of export goods - export of goods under duty drawback scheme - enhanced valued declared - rejection of declared value - HELD THAT:- There was an existing dispute with regard to valuation of the exported goods, which is relevant for the purpose of calculation of draw back. The export was allowed under provisional ‘Let Export Order’. Hence, there was an existing dispute (subjudice) between the parties, when the amount of ₹ 18,68,000 was deposited in July, 2013. Accordingly, such deposit ipso facto is in the nature of pre-deposit, which is subject to outcome of the Adjudication Order. Such amount of pre-deposit never becomes time barred, under the provisions of the Act and the same has to be refunded.
The impugned order-in-appeal is upheld and the Revenue is directed to disburse the said amount of ₹ 18,68,000/- forthwith within a period of 4 weeks, with interest @ 12% p.a. from the date of deposit till the date of refund - appeal dismissed - decided against Revenue.
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2022 (3) TMI 1324
Seeking grant of anticipatory bail - provisional attachment order - schedule offence - proceeds of crime - Sections 44 and 45 of PMLA 2002 - HELD THAT:- The PML Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering. Being a special enactment it has overriding effect on general law. Section 71 of PML Act specially provides that provisions of PML Act shall have overriding effect on any other law time being in force. Thus, it is very clear that provisions of Code of Criminal Procedure will not be applicable until there is no specific provision given in PML Act, 2002.
Money Laundering being an offence is economic threat to national interest and it is committed by the white collar offenders who are deeply rooted in society and cannot be traced out easily. These kind of offences are committed with proper conspiracy, deliberate design with the motive of personal gain regardless of the consequences to the society and economy of Country. Hence, for money-launderers "jail is the rule and bail is an exception" - On prima facie reading of the material placed on record and considering the parameters of Section 45(1) PMLA as well as the gravity of the alleged offences, it cannot be held that the applicant was not guilty of the alleged offences or that he was not likely to commit any such offence while on bail.
The anticipatory bail application is dismissed.
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2022 (3) TMI 1323
Refund of Service Tax - Foreman Commission - amount paid under VCES would partake the character of tax or it is only a deposit - tax dues under Section 73A of the Finance Act, 1994 - Section 11B of the Central Excise Act, 1944 - HELD THAT:- The claim of the appellant is not a refund under Section 11B ibid. simplicitor , the appellant was tempted by the Scheme introduced whereby, in compliance with the payment of taxes, certain benefits would pass on to such taxpayers. Hence the decisions / orders relied on by the appellant which are mainly on Section 11B per se are not applicable to the facts of the present case.
It is clear that no amount paid by an assessee in terms of the above Scheme shall be refunded under any circumstances, which is quite obvious since, the Scheme would also pass on some benefits to the taxpayer like reduction in interest or waiver of penalty, etc. as the case may be. Clearly there was no compulsion on any of the assessees and hence, it was a voluntary option exercised by the assessee to opt for the Scheme perhaps because of other benefits that would ensue. Having opted, the rules and regulations prescribed thereunder alone are very much applicable and, because of it being a special enactment, the same excludes the applicability of general law governing the refund provisions.
Appeal dismissed.
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2022 (3) TMI 1322
Classification of services - Business Support Services or not - business of exhibiting cinematographic films across India in theatres owned by it or taken on rent - appellant acquires the rights/ license to exhibit the films at the designated theatres from various distributors by entering into separate license agreements for each film - It was alleged that the agreement between the appellant and the distributors created an Association of Persons so as to undertake jointly the activities of screening of the films - HELD THAT:- The agreement in the present appeal is almost the same as the agreement in other appeals that have been decided including that in INOX LEISURE LTD. VERSUS COMMISSIONER OF SERVICE TAX, HYDERABAD [2021 (10) TMI 893 - CESTAT HYDERABAD] It would be seen from the agreement that the producer/distributor is engaged in the business of production and distribution of films, while the appellant is an exhibitor engaged in the business of exhibition of films and owns/operates a chain of multiplex theatres. The exhibitor decides which screens would play the motion picture, the numbers of shows, the show timings and the ticket pricing including the right to decide on a week to week basis, whether or not to continue to exhibit the motion picture. The distributor/producer had granted the exhibitor the non exclusive license to exploit the theatrical rights of a motion picture and each party was entitled to conduct its business in its absolute and sole discretion.
In MORMUGAO PORT TRUST VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, GOA- (VICE-VERSA) [2016 (11) TMI 520 - CESTAT MUMBAI], the Tribunal explained that public private partnerships between the Government/Public Enterprises and Private parties are in the nature of joint venture, where two or more parties come together to carry out a specific economic venture, and share the profits arising from such venture. Such public private partnerships are at times described as collaboration, joint venture, consortium or joint undertaking. Regardless of the name or the legal form in which the same are conducted, they are essentially in the nature of partnership with each co-venturer contributing some of the resources for the furtherance of the joint business activity. The Tribunal held that such public private partnerships meet the test laid down by the Supreme Court in FAQIR CHAND GULATI VERSUS UPPAL AGENCIES PVT. LTD. [2008 (7) TMI 159 - SUPREME COURT], for ascertaining whether or not the arrangement is one of joint venture.
In view of the decision of the Supreme Court in Faqir Chand Gulati and the decision of the Tribunal in Mormugao Port Trust, no service tax can be levied on the appellant under BSS.
It is not possible to sustain the confirmation of the demand by the order dated 17.12.2018 passed by the Commissioner - Appeal allowed - decided in favor of appellant.
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2022 (3) TMI 1321
Levy of service tax - providing earthening of lightning arrestors at various building - erection, installation, commissioning, management, repairs and maintenance services or not - demand on the basis of form 26A obtained from Income Tax Department showing the deduction of income tax at source - HELD THAT:- From the work orders enumerated in the impugned order in most of the cases that there is services has been provided along with material if that is the case, in that circumstances, service tax cannot be demanded under the category of erection, commissioning and installation services and management and repair services as same is merit classifiable under works contract services.
In most of the cases the appellant has also supplied the goods which are in nature of sale of goods activity / trading activity. In that circumstances also, no service tax is payable by the appellant. Further, it is found that any services provided to deal with was excluded by virtue of entry no. 8 in the circular no. 103/05/2010-ST dated 24.5.2010. Therefore, the services provided to these agencies are not taxable. Further, Indian Institute of Technology, Kanpur is having sovereign power of clause 13/2016 in STR dated 1.3.2016. The same is exempted from payment of service tax being non commercial entity - any service in nature of erection, commissioning and installation, management and maintenance repair provided to local authority or government authority are exempt from payment of service tax.
The matter is remanded back to the adjudicating authority to ascertain the service tax payable by the appellant on services which has been provided by the appellant without material under the respective categories of services - appeal allowed by way of remand.
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2022 (3) TMI 1320
Levy of service tax - Construction of Residential Complex Services/ Construction of Commercial Complex Services - corroborative evidence is produced by the department to show that the Appellant have received unaccounted cash towards provision of construction services during the disputed period or not - Reliability on the statements - Admissible evidence or not - Jurisdiction to issue SCN - penalties on co-appellant - HELD THAT:- The revenue has proceeded in confirmation of the demand on the basis of documents and information provided by the Income Tax Department. The entire case of Revenue in the present matter is based on .xls sheets retrieved by the Income Tax Authorities and Statement of Smt. Kalindi Shah recorded by the Income tax Authorities. However, it is seen that apart from recording the statement of Shri Venkataramana Ganesa in the present matter no independent investigation has been carried out by the department. We observed that Department has not brought out any independent facts or evidence as who is the service receiver, whether the cash receipts shown in the xls. Files pertaining to the service component only or otherwise and no corroborative evidence produced in support of details mentioned in the said xls. Files. In the present matter collection of a huge amount of cash in respect of provisions of services involved. However not a single rupee of unaccounted cash was found during the search conducted by the income tax.
Reliability on the statements - Admissible evidence or not - HELD THAT:- In the whole matter revenue rely upon the statement of Ms. Kalindi Shah and Shri Venkataramana Ganesna both are the employees of the Assessee’s company. No statement of Directors of the Appellant company recorded by the revenue to find out the truth of employee’s statements. It was on records that Assessee company have raised the dispute on both the statements of employees recorded during the course of investigation by Income tax Authority and revenue. Therefore the said statement cannot be relied upon as admissible evidence in terms of the provisions of Section 9D of the Act.
In the present case the Revenue has raised the Service tax demand merely on the ground of investigation conducted by the Income Tax Authorities. We find that demand cannot be raised merely on the basis of assessment made by the Income Tax Authorities. Tribunal in the case of M/S. RAVI FOODS PVT. LTD. & OTHERS VERSUS CCE, HYDERABAD [2010 (12) TMI 290 - CESTAT, BANGALORE] has held that admission by assessee to Income Tax department as regards undisclosed/suppressed sales turnover cannot be held to be on account of clandestine removal of their final products, in the absence of any other corroborative evidence.
In the present matter entire demand of service tax as proposed in the show cause notice is not sustainable.
Construction of Residential Complex Service/ Construction of Commercial Complex Service - period from 01.04.2014 to 30.06.2017 - Ld. Adjudicating Authority in present case dropped the demand on the ground that in all cases where the assessee have entered into a sales deed or an Agreement to sale prior to 01.04.2014, the amount have been received prior to the said date - HELD THAT:- The Ld. Adjudicating Authority failed to extend the same logic where the booking amount is received by cheque and the letters of reservation have been issued prior to 01.04.2014. The demand of Service tax confirmed by the Ld. Adjudicating authority pertaining the period where the letters of reservation have been issued prior to 01.04.2014 and cheque received by Appellant prior to 01.04.2014 not sustainable on this ground.
The Revenue could not establish the charge of cash receipt beyond doubt, accordingly entire demand raised in the Show Cause Notice will not sustain even without going to the grounds of the department’s appeal - the Adjudicating Authority with careful application of mind dealt with the issue on facts and statutory provisions for dropping of part demand. Therefore, we do not find any infirmity in the finding of the impugned order, except the finding on receipt of cash. Accordingly, the same is upheld to the above extent. Consequently, the Revenue’s appeal is liable to be dismissed.
Jurisdiction - whether the DGGI has power to issue show cause notice? - HELD THAT:- The entire case is decided on its fact and merit, we do not address the issue of jurisdiction and the said issue is left open.
Penalties imposed on co-appellants - HELD THAT:- The demand itself is not sustainable against the main Appellant, hence the question of penalties on co-appellants does not arise.
Decided in favor of assessee.
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2022 (3) TMI 1319
Maintainability of appal - Monetary limit involved in the appeal - CENVAT Credit - supply of MS Platform at the site - credit can be availed or not as the component of the electronic weigh bridge (MS Platform) was not received in the petitioner's factory, but were sent directly to the customers' site for Erection and Commissioning - HELD THAT:- The demands for the respective periods, was beyond the monetary limit and technically there was no bar for the Authority to have filed appeals and to take up the matter before the higher adjudicating Authorities. In light of a finding of law and facts which is identical and has been a subject matter of earlier orders between the same assessee and the Department, it was not open for the second respondent to ignore such orders and pass an order contrary to the conclusion arrived at, as has been done in the order in original at Annexure - A.
Hon'ble Apex Court in UNION OF INDIA VERSUS KAMLAKSHI FINANCE CORPORATION LTD. [1991 (9) TMI 72 - SUPREME COURT], has clarified, that once there is an order by the Superior Authority, the Authorities low down in the hierarchy which may be adjudicating Authorities, are to give effect to the orders of the Authorities higher to them in the hierarchy.
It is further to be noted that the learned counsel for the Revenue Authority is not in a position to controvert the assertion of the petitioner that the question involved and decided in the orders at Annexures - B, C and D were identical in the facts and in law as was being considered in the proceedings leading to the passing of the Order-in-Original at Annexure-A. Normally, the Court would have remanded the matter back to the Authority for fresh consideration in light of observations made - However, in the present case, if the conclusion at Annexures - B, C and D are to be made applicable with respect to the period which was subject matter of proceedings culminating in the Order-in- Original, there could be nothing more that could be done by the second respondent except in accepting the conclusion as per the orders at Annexures - B, C and D.
Thus, though the supply of MS platforms is directly to the customers' site, as the said component is used in the manufacture of the final product on which duty of excise is discharged, the petitioners are eligible for the credit on MS Platforms used for the manufacture of weigh bridges.
Petition allowed.
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2022 (3) TMI 1318
Classification of goods - PCB assembly, also known as T.V. chassis - sub-assembly of CTV, comprising of the chassis with cabinet, speakers and picture tube etc. - classifiable under sub-heading 8529.00 of the Excise Tariff or under Sub-heading 8528.00 of Central Excise Tariff Act, 1985 - applicability of Rule 2(a) of the Rules for the Interpretation of the Schedule to the Central Excise Tariff - N/N. 6/2002-CE dated 1.3.2002 (sl. No. 204) - HELD THAT:- The observation of the Hon’ble Apex Court in the case of M/s. Salora International Ltd. 2012 (9) TMI 276 - SUPREME COURT is somewhat different wherein the Hon’ble Apex Court has observed that the complete TV was assembled thereafter it was tested and dissembled and cleared in SKD condition but it is not in the case in hand. In those circumstances, the clarification adopted by the Hon’ble Apex Court in M/s. Salora International Ltd. is not applicable to the facts of the case in hand.
Further, it is found that the learned AR has relied on the decision of this Tribunal in the case of M/S PANASONIC AVC NETWORKS INDIA CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA-I [2020 (1) TMI 672 - CESTAT ALLAHABAD]. In that case also the fact recorded by this Tribunal is that the appellant has filed declaration that goods to be complete unit of CTV and same were being cleared as CTV only.
As per section note 2 of section 16 of the Central Excise Act, the goods were rightly classifiable as parts and merit classification under heading 8529 of the Central Excise Tariff Act 1975. As it has been held that the goods in question are not complete TV sets, it has been cleared under SKD or CKD condition, therefore, the classification under chapter heading 8528.00 at Sl. No. 204 of the notification is not applicable to the facts of the case.
It is held that the merit of the facts of the case are as that the appellant is clearing the TV chassis, sub-assembly of CTV, comprising of the chassis with cabinet, speaks and picture tube etc. are not colour TV and therefore are the parts of CTV merits classification under sub heading 8529.00 of Tariff Act 1975 - appeal allowed - decided in favor of appellant.
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2022 (3) TMI 1317
Refund for unutilised Cenvat Credit - closure of the factory - HELD THAT:- The jurisdictional High Court has already held that on closure of the factory the assessees are entitled for refund claim lying unutilised in their Cenvat Credit Account. In case of MODIPON LTD. VERSUS COMMISSIONER [2015 (8) TMI 1545 - ALLAHABAD HIGH COURT] although the said order has been challenged by the Revenue before the Hon’ble Apex Court but no stay has been granted by the Hon’ble Apex Court.
In that circumstances, relying on the decision in the case of PRINCIPAL COMMISSIONER OF C. EX., DELHI-I VERSUS SPACE TELELINK LTD. [2017 (3) TMI 1599 - DELHI HIGH COURT], the Hon’ble Delhi High Court has held that unless and until the order is set aside the sanctity of the order remains.
The appellant is entitled for refund claim lying unutilised in their Cenvat Credit account on closure of the factory - appeal allowed - decided in favor of appellant.
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2022 (3) TMI 1316
100% EOU - Permission to debond the unit - allegation of irregular clearance of unutilized/surplus raw material in excess of the permissions sought from the Customs Authorities - violation of the Foreign Trade Policy - HELD THAT:- The appellant had sought to debond and was permitted to debond. The debonding was allowed by the Development Commissioner after the Jurisdictional Assistant Commissioner has confirmed in writing to him that no Central Excise or Customs Duty are pending from the appellant and they have been duty paid. The audit objection raised by CERA does not indicate how it had come to conclusion that there was a short payment of ₹ 139.58 Lakhs and that the appellant had cleared goods in excess of the permission granted by the Customs Authorities. A perusal of the letters issued by the Customs officers shows that no limit – whether in terms of quantity or value was fixed or specified in either of the letters.
If the allegation is that goods over and above these were cleared by the appellant without paying duty there must be evidence that: (a) that goods were cleared in excess; and (b) no duty was paid on such clearances - There is no evidence either in the audit report or in the show cause notice, which was issued on the basis of the audit report with respect to either of the above.
The appellant had sought the details from the Commissionerate by filing an application for information under the Right to Information Act and received a reply dated 02.11.2018 signed by the Central Public Information Officer - the clarification makes it abundantly clear that the Department has no idea as to on what basis the demand has been raised and has no documents to support the demand at all. The show cause notice raising a demand only on the ground that “audit said that you have short paid duty” with not even a vague attempt to explain how the demand was calculated cannot be sustained.
The inescapable conclusion is that the demand has been confirmed on some figment of imagination not supported by any facts or documents. Such a demand cannot be sustained and needs to be set aside - the demand of interest and imposition of penalty also cannot sustain - appeal allowed - decided in favor of appellant.
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