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Showing 301 to 320 of 1495 Records
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2016 (6) TMI 1198
Benefit of N/N. 94/96-Cus - denial on the ground that the goods under import were engine assemblies and not FIPs which were earlier exported - Held that: - the same issue came for decision before the Tribunal in the case of Ford India Private Ltd. v. Commissioner of Customs, Chennai [2008 (4) TMI 108 - CESTAT CHENNAI], where it was held that exemption not admissible to the fuel injection pumps and injectors imported as integral part of Diesel engine assemblies.
The matter came to be clarified by the Board vide Circular No. 1/2005, dated 11-1-2005 to the effect that FIPs and injectors exported and re-imported after fitment into engines were not covered by N/N. 94/96-Cus - appeal dismissed - decided against appellant.
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2016 (6) TMI 1197
Addition applying notional capital gain - proof of transfer - whether Joint Development Agreement which was not executed and sale as per that agreement was not complete - Held that:- Since no possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.02.2007 so as to fall within the domain of section 53A of the Transfer Act and consequently, section 2(47)(v) did not apply, that further, willingness to perform their part of the contract was absent on the part of the developers, or it could not be performed by them, which was one of the conditions precedent for applying section 53A of the transfer Act; that in clause 26 of the JDA dated 25.02.2007, the principle of force majeure had been provided for, which would be applicable with full vigour in the circumstances; that from the cumulative effect of the covenants contained in the JDA read with the registered special power of attorney dated 26.02.2007, it could not be held that the mandatory requirements of section 53A of the Transfer Act were complied with, which stood incorporated in section 2(47)(v); that once that was so, it could not be said that the assessees were liable to capital gain tax in respect of the remaining land which was not transferred by them to the developer/builder because of supervising event and not on account of any volition on their part; and that viewed from another angle, it could not be said that any income chargeable to capital gains tax in respect of the remaining land had accrued or arisen to the assessee in the facts of the case. See Charanjit Singh Atwal vs. CIT [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT]. - Decided in favour of assessee.
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2016 (6) TMI 1196
Registration under section 12A refused - Held that:- Commissioner of Income Tax (Exemptions) has refused to grant registration to the assessee as the assessee has not been filing its income-tax returns in the earlier years is not a good reason to reject the application for registration since the two conditions which the Commissioner of Income Tax (Exemptions) has to satisfy while granting the registration under section 12A of the Act, are that the objects of the assessee are charitable in nature and the activities are genuine. Just because the assessee has not filed its income tax returns in earlier years, it can not be said that the activities of the assessee are not genuine.
With regard to the second objection raised by the Commissioner of Income Tax (Exemptions) that as per clause-12 of the Memorandum of trust, the trustees have been given absolute powers to manage the property as perused the clause-12 of the Memorandum of the trust, whereby the trustees are authorized to demise the immovable property or properties of the trust either from year to year or for any fixed term or for any term of years or no monthly basis at such rent and subject to such conditions as they deem fit and proper and also accept surrender of lease and may manage the property as they think proper. From the perusal of this clause, we observe that the trustees have been given powers to give property of the trust on lease or on rent. We do not find anything wrong in this clause so as to deny the assessee the registration under section 12A of the Act. As regards the apprehension of the Commissioner of Income Tax (Exemptions) that his clause may attract the provisions of section 13 (1) (c) of the Act, we are of the view that the conditions as provided in section 13 or elsewhere are to be seen by the Assessing Officer at the time of assessment proceedings on yearly basis and not by the CIT (Appeals) while granting registration under section 12A of the Act.
Section 13 comes into play at the time of granting exemption under section 11 of the Act and not at the time of granting registration under section 12A of the Act. Since we observe that no adverse remarks have been made by the Commissioner of Income Tax (Exemptions) with regard to the objects contained in Memorandum and as stated hereinabove that the observations of the Commissioner of Income Tax (Exemptions) do not lead to the conclusion that the activities of the assessee are not genuine, we here by direct the Commissioner of Income Tax (Exemptions) to grant registration under section 12A of the Act to the assessee. - Decided in favour of assessee
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2016 (6) TMI 1195
Release of detained cargo - toys imported from China - the petitioner requests for release of goods covered in Bill of Entry No. 293510, dated 24-8-2009. The said request has been rejected on the ground that the goods have not been tested - petitioner prays for release of goods pursuant to testing - Held that: - the samples of toys are sent for testing - the respondent shall proceed further to release the consignment, if the test report certifies that the samples meet the required compliance - petition allowed by way of remand.
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2016 (6) TMI 1194
Refund claim - amount paid as pre-deposit - Time limitation - Held that: - the refund claim preferred by the assessee is dated 1-7-1998, which is less than three months after the date of the final order of the CESTAT (21-4-1998) and, further, insofar as the amount sought to be refunded was one that was recognised by the CESTAT as a pre-deposit of duty, the assessee’s claim would fall within the ambit of the Board’s Circular 275/37/2K-CX. 8A, dated 2-1-2002 - the order of the Tribunal, that is impugned in this appeal, does not need to be interfered with - refund allowed - appeal dismissed - decided against Revenue.
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2016 (6) TMI 1193
Capital gain - income relevant to the assessment year - Held that:- We find that in Onkar Nath (1966 (10) TMI 157 - Allahabad high court) held that the law gives the AAC the power to give direction that a certain sum which was deleted from the assessment of the firm should be assessed in the hands of a partner as his individual income. For the assessment year 1957-58, the ITO made an addition which included certain sum introduced in the head office cash book in November 1955. On appeal, the AAC deleted the addition of said sum on the ground that the said sum was outside the financial year 1956-57, relevant to the assessment year in question.
The Court further observed that in the instant case the AAC was dealing with the propriety of the assessment for assessment year 1957-58. He found that the said sum did not relate to that year. That finding was sufficient to dispose of the item. He would not record a definite finding that this very item represented income of the assessee from an undisclosed source for assessment year 1956-57. We find that in the instant case the assessment year involved before the ld. CIT(A) was A.Y. 2011-12. The observations made for assessment years 2010-11 and 2009-10 would be out of the jurisdiction of the ld. CIT(A), as before him no such assessment year was pending. Thus we hold that the directions of the ld. CIT(A) to take remedial action in the A.Y. 2010-11 and 2009-10 is uncalled for and liable to be expunged. We direct accordingly.
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2016 (6) TMI 1192
Maintainability of appeal - pre-deposit - the issue in appeal was denial of input tax credit for purchases made by assessee from a dealer whose registration was cancelled - Held that: - the assessee desired to file first appeal in order to contend that mere cancellation of the registration of the selling dealer would not result into automatic denial of input tax credit of assessee as a purchaser. The Tribunal has made certain observations in the impugned judgement raising doubt about the very genuineness of the transactions which prima facie did not form part of the original assessment proceedings.
The appellant shall deposit 10% of the principal tax demand exclusive of interest and penalty before the Government latest by 31.7.2016 upon which the first appellate authority shall hear the appeals on merits, unmindful of the observations made by the Tribunal in the impugned judgement - appeal allowed.
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2016 (6) TMI 1191
Whether Tribunal is justified in fixing part payment amount equal to basic tax amount and not granting stay without any part payment or at token amount?
Held that: - The Tribunal should be aware that the First Appeal is still pending before the Deputy Commissioner of Sales Tax (Appeals). He has yet to apply his mind to the merits. All that was under consideration of the Tribunal was a direction of pre-deposit. There, the pre-deposit amount was determined as ₹ 68,95,367/-. If this was the position and the request was to bring it down to appropriate and reasonable sum, we do not see any justification for the Tribunal to then go into the merits and express such opinion as would influence the outcome of the Appeal. The Tribunal could have imposed a reasonable condition or a right of appeal ought to be preserved and not rendered illusory by an arbitrary and excessive direction - appeal will be considered on merits on payment of revised sum.
Appeal allowed - decided partly in favor of appellant.
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2016 (6) TMI 1190
Dismissal of appeal - non-compliance with condition of pre-deposit - Held that: - the appellant is at first appellate stage, insistence of the appellate authority and the Tribunal, for the assessee to deposit a total of ₹ 2.66 crores which roughly exceeds 40% of the tax, interest and penalty liabilities was extremely harsh. Coupled with the fact that the assessee's immovable property under attachment secures the Government dues, we modify the pre-deposit condition by requiring the appellant to deposit 15% of the total principal tax liability for both years under both cases - appeal allowed in part.
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2016 (6) TMI 1189
Natural justice - demand - The ground on which the challenge was made was that the order was passed without furnishing to the appellant the details sought for by her and requesting the extension of time for submitting her reply - Held that: - the first respondent should have given such an information to the appellant, so that the appellant could have approached the Indian Oil Corporation Ltd and obtained the details. This was not done, and instead, the first respondent rejected the request made by the appellant and proceeded to pass Ext.P5 order of assessment fastening huge liability on the appellant towards tax and interest. This is untenable - Ext.P5 order was passed in violation of the principles of natural justice - appeal allowed - decided in favor of appellant.
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2016 (6) TMI 1188
Maintainability of petition - petition raised the question whether on account of not giving an opportunity as claimed by the petitioner, she had suffered any prejudice or not. - Held that: - Such issues cannot be considered by this Court in a writ petition filed under Article 226 of the Constitution of India. It shall be open for the petitioner to take up all such issues as to whether any prejudice had been caused to him including the contentions on merits before the competent appellate authority - petition not maintainable and is dismissed.
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2016 (6) TMI 1187
Sentencing the petitioner solely on the basis of uncorroborated testimony of sole witness Mr.Chanderkant Khemka - Held that:- Admittedly, the remedy of appeal is available against the impugned order under Section 17 of the Foreign Exchange Management Act, 1999.
Since, the petitioner has an alternative efficacious remedy, the present writ petition is dismissed. However, the petitioner is given liberty to raise all his pleas and contentions before the Appellate Authority in accordance with the law.
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2016 (6) TMI 1186
Unexplained cash found credited in the books of the assessee - Held that:- Considering the totality of facts of the case and the surrounding circumstances we concur with the Ld. CIT(A) that the withdrawal were for the purpose of business and not available for redeposit.Moreover, we also agree with the Ld. CIT(A) that in the absence of any detail of expenses incurred by the assessee in this period the cash flow statement has no relevance and the entire withdrawal cannot be said to have been redeposited.Moreover as held by the Ld. CIT(A) the withdrawals have been found to be subsequently redeposited after a gap of two or three months which is not probable. The assessee therefore we find has not been able to link the cash withdrawn from the bank with cash deposit we therefore uphold the order of the Ld. CIT(A) treating the cash deposit as unexplained income of the assessee. - Decided against assessee
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2016 (6) TMI 1185
Eligibilty for section 80IB deduction - Held that:- There is no quarrel about the fact that the assessee received the impugned purchase discount from raw materials/consumables suppliers to the tune of ₹ 2,99,153/- as utilized in its eligible business of manufacturing of specialty chemicals whose profits are already eligible for section 80IB deduction. Both the ld. lower authorities do not rebut assessee’s books specifically stating the crucial live nexus between the discounted raw materials and its manufactured specialty chemicals. Net effect thereof is that assessee’s eligible profits derived from its manufacturing activities have seen increased since raw material costs have come down due to the impugned discount forming integral part of the manufacturing process. We conclude that the authorities below have wrongly equated these facts with those involved in hon’ble apex court decision in Liberty India vs. CIT (2009 (8) TMI 63 - SUPREME COURT ) involving DEPB sales figures. We accept assessee’s contentions on merits and reject those raised at Revenue’s behest supporting the impugned disallowance.
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2016 (6) TMI 1184
Government subsidy received - capital receipt or revenue receipt - Held that:- Revenue did not seriously dispute that the subsidy received by the assessee was a capital receipt. Therefore, the same could not have been subject to taxation.
Bogus share capital addition - assessee failed to furnish evidences of identity and creditworthiness of the persons from whom share capital was claimed to have been received and also genuineness of the said transaction - Held that:- When any sum is found credited in the books of accounts of the assessee, either on account of a capital receipt or a revenue receipt, the assessee is liable to prove that the money was actually received. The assessee is also liable to prove the nature of receipt. Therefore, the Assessing Officer was well within his right to make enquiry. Upon enquiry, it transpired that the so called shareholders were non-existent. The Assessing Officer, in the circumstances, was entitled to take the view which he did by his order dated March 31, 2006.
The submission advanced by assessee that if the Assessing Officer was in a hurry to complete the assessment and he, therefore, had no time to scrutinise the evidence adduced by the assessee, it cannot be said that the assessee failed to discharge his burden is not without substance. Therefore, the appropriate course will be to remand the matter to the Assessing Officer who shall consider issue.
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2016 (6) TMI 1183
Detention order - Smuggling of gold - Held that: - at the time of recording of the statement under Section 108 of the Customs Act and at the stage when a show cause notice was issued to the detenue, copies of these CDs were provided to him and simply because the detenue was aware of what was the material which was contained in the CDs cannot be accepted.
In the case of Pawanammal v. State of Tamil Nadu & Ors., reported at [1999 (1) TMI 538 - SUPREME COURT], the Supreme Court explained the distinction between the document, which has been relied upon by a detaining authoring on the grounds of detention in comparison to a document, which may find a mere reference in the grounds of detention.
Merely because the CDs provided to the detenue along with the show cause notice or he was shown the CCTV footage at the time of recording of the statement under Section 108 of the Customs Act, in our view cannot take the place of providing the mechanism for viewing the CDs in view of the settled law of the land - Petition allowed.
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2016 (6) TMI 1182
CENVAT credit - dumpers - parallel flange beam, column, rail and MBS sleepers - materials viz anhydrous, mud-gun clay, EBT Filling mass, radex and indion - inputs and capital goods - Held that: - As all the issues stand decided by the order of the same Commissioner, has not been followed in the present proceedings, we deem it fit to set aside the present proceedings and remand the matter to the Commissioner to decide afresh - appeal allowed by way of remand.
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2016 (6) TMI 1181
Depreciation allowable under Section 11 - whether there is no double claim of capital expenditure? - effect of amendment to Section 11(6) - Held that:- The question involved in this case is no more res integra. This question was considered by this Court as far back as in the year 1984, in the case of Society of the Sister's of ST. Anne [1983 (8) TMI 44 - KARNATAKA High Court] held that the income derived from property held under trust cannot be the total income because s. 11(1) says that the former shall not be included in the latter, of the person in receipt of the income. The expression "total income" has been defined under s. 2(45) of the Act to mean "the total amount of income referred to in s. 5 computed in the manner laid down in this Act". The word "income" is defined under s. 2(24) of the Act to include profits and gains, dividends, voluntary payment received by trust, etc. It may be noted that profits and gains are generally used in terms of business or profession as provided u/s. 28. The word "income", therefore, is a much wider term than the expression "profits and gains of business or profession". Net receipt after deducting all the necessary expenditure of the trust (sic).
Depreciation is the exhaustion of the effective life of a fixed asset owing to 'use' or obsolescence. It may be computed as that part of the cost of the asset which will not be recovered when the asset is finally put out of use. The object of providing for depreciation is to spread the expenditure, incurred in acquiring the asset, over its effective lifetime; the amount of the provision, made in respect of an accounting period, is intended to represent the proportion of such expenditure, which has expired during that period.
It cannot be held that double benefit is given in allowing claim for depreciation for computing income for purposes of section 11. The questions proposed have, thus, to be answered against the Revenue and in favour of the assessee. See Director of Income Tax Vs. Al-Ameen Charitable Fund Trust [2016 (3) TMI 462 - KARNATAKA HIGH COURT ]
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2016 (6) TMI 1180
TPA - comparables selection - Held that:- Assessee being characterised as a routine service provider companies functionally different and having two different segments IT and ITeS and that it has earned supernormal profits due to this similar nature of services need to be excluded.
Foreign exchange gain/loss arising out of revenue transaction is required to be considered as an item of operating revenue/cost.
Not allowing suitable adjustments on account of differences in the risk profile of the comparable vis-a-vis that of the assessee - Held that:- As observed from the transfer pricing study the assessee functions in a low-risk or almost risk mitigated environment viz-a-viz enterprise a real risk borne by the comparables. The assessee is thus operating under economic circumstances that warrant adjustments to the margins made by the comparables so as to make the comparison between the margins earned by the comparable companies and the assessee appropriate we therefore are of the considered opinion that the entitlement of the assessee in respect of adjustments on account of differences in the risk profile of the assessee with that of the comparable cannot be denied.
Disallowance of benefit under section 10A - AO had reduced the lease line charges from export turnover, however rejected the similar treatment while computing total turnover - Held that:- The issue has been considered at length in favour of assessee in assessee’s own case for assessment year 2007-08, 2008-09 and 2009-10. After considering the rival submissions and pursuing the relevant material on record we find force in the contentions advanced by the ld.AR, requiring the exclusion of lease line charges from total turnover as well.
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2016 (6) TMI 1179
Refund claim - jurisdiction - whether in the absence of impugning the original order of assessment by preferring a statutory appeal which was available, should this court, ought to exercise its extra-ordinary jurisdiction? - Held that: - The Petitioners though had statutory remedy of an appeal against the order of assessment, did not invoke that remedy, but instead directly filed the applications for refund - While dismissing the Petition, the Court noted that where the party feels aggrieved by an order of the authority and has adequate alternative remedy which it may resort to and if it does not avail of that remedy, the High Court will require a strong case to be made for entertaining the petition in its writ jurisdiction.
This court in Wasp Pump Private Limited v. Union of India, [2008 (1) TMI 22 - HIGH COURT, BOMBAY], in a case where the Petitioner did not avail of the alternative remedy, but had alleged violation of the principles of natural justice and fair play, entertained the writ petition in spite of alternative remedy being available.
Appeal dismissed - decided against appellant.
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