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Showing 301 to 320 of 1439 Records
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2015 (7) TMI 1144
Condonation of delay - reasons for delay - Held that:- It could not be explained by the learned advocate that when the authorized signatory was with the company after offering his resignation letter firstly on 01/09/2011 and was with the appellant company for another about over 3 months i.e. till 22/12/2011, why the company did not take over the relevant central excise files and papers from the said authorized signatory. This clearly shows that the appellant company has been completely negligent in managing their affairs and they were not bothered about their liability and obligations under the Central Excise laws. The learned advocate has not been able to satisfactorily explain and could not give substantial justification for this long delay of 10 months and 15 days in filing the appeal.
Considering the facts and circumstances, when there is no justifiable explanation for the long delay of 10 months and 15 days, there is no option but to reject the appeal as time-barred under the provisions of Section 35B(3) of Central Excise Act, 1944.
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2015 (7) TMI 1143
Denial of CENVAT credit - manufacture of sheet metal parts falling under Chapter 72, 76 and 82 of the Central Excise Tariff Act, 1985 - exemption claimed from payment of excise duty - whether the denial of CENVAT credit justified on the ground that the supplier was not liable to pay the Central Excise duty and has paid the same, the recipient of the goods i.e. the appellant is not eligible for CENVAT benefit? - Held that: - Taking of CENVAT credit of Central Excise duty and service tax paid by the supplier, is in conformity with Rule 3(1) of the CENVAT Credit Rules, 2004. The fact is not under dispute that the goods covered under the disputed invoices have not been received by the appellant for use in the intended purpose. Further, it has also not been alleged by the authorities below that the Central Excise duty/ service tax liability has not been discharged by the suppliers of disputed goods/ services. Thus, in absence of any specific prohibition in the CENVAT Statute, restricting availment of CENVAT credit, in the eventuality, of any dispute between Central Excise Department and the supplier, the recipient of the goods, cannot be held liable for reversal of CENVAT credit.
The decision in the case of CCE & CC vs MDS Switchgear Ltd. [2008 (8) TMI 37 - SUPREME COURT] relied upon where it was held that quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers incharge of recipient unit.
Denial of CENVAT credit not justified - appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1142
CENVAT credit - service tax paid on Group Insurance Policy taken for the family members - Group Insurance Policy taken for the family members of the employee is input service or not? - Held that: - the decision in the case of PTC Software India (P) Ltd. vs CCE Pune-III [2014 (12) TMI 498 - CESTAT MUMBAI] relied upon where it was held that the appellant is rightly entitled to take credit of Service Tax paid on insurance premium on group insurance policy as the said service is an eligible input service.
Distribution of input service paid by the ISD - Held that: - the Chartered Accountant upon verification of the books of accounts of the appellant has certified the actual amount of service tax distributed by the head office to the appellant under the cover of proper and valid invoice. On the basis of such invoice, the credit has been taken by the appellant. Since, the practicing Chartered Accountant firm has certified that the credit has been distributed correctly, the same cannot be denied without adducing any other evidence proving these facts as wrong - cenvat credit distributed by the ISD and taken by the appellant based on the valid invoice, cannot be denied to the appellant.
CENVAT credit allowed - appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1141
Valuation - KVAT Act - assessee purchased cement and sold it at a price lower than the price at which it was purchased by him - whether for the assessment year 2005-2006, the discount received by the assessee were also to be included to the turnover of the assessee, for the purpose of levying tax under the KVAT Act? - Held that: - provisions of Explanation III to Clause 2 of Section 2(lii) referred to. This provision clarifies that what is to be excluded from the turnover is only a discount on the price allowed by a dealer, where such discount is shown separately in the tax invoice and the buyer pays only the amount reduced by such discount.
Any reimbursement of the price received by a dealer, is liable to be included in his turnover whereas the discount allowed to the customer, and shown separately in the tax invoice, is liable to be excluded.
Revision application dismissed - decided against revisionist.
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2015 (7) TMI 1140
Addition made on account of capital gains on sale of agricultural land - whether the land sold by the assessee is agricultural land or non-agricultural land for the purpose of capital gains? - Held that:- For the elaborate reasons given by the Commissioner of Income Tax (Appeals), we hold that the land sold by the assessee is agricultural land and thus sustained the order of the Commissioner of Income Tax (Appeals) and reject the grounds raised by the Revenue.
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2015 (7) TMI 1139
Disallowance under section 14A read with Rule 8D - Held that:- In the light of the judgment of Hon’ble Jurisdictional High Court in the case of CIT vs. Corrtech Energy (P) Ltd. (2014 (3) TMI 856 - GUJARAT HIGH COURT) the disallowance under section 14A cannot be made when no income is claimed to be exempt in that particular year. That precisely is the undisputed situation before us. In the present year, the assessee does not have any income from the related investments. In this view of the matter, the disallowance under section 14A must be held to be unsustainable in law. As for the question whether this plea can be taken up in the second round of proceedings, we find that it is a purely legal and fundamental issue which can be taken up before us even at this stage. We, therefore, direct the Assessing Officer to delete the disallowance.
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2015 (7) TMI 1138
Period of limitation - Demand - cargo handling services - Section 65(23) of the Finance Act, 1994 for the period February, 2003 to April, 2004 - handling of iron and steel materials - Held that:- the grounds of appeal before the Tribunal has also not been made available in the typed set of papers so as to enable this Court to entertain the above plea of limitation raised before this Court. That being the case, we do not find any justification to entertain the appeal on the plea that merely because the original order has not invoked the provisions for imposing the penalty, automatically the plea of no tax invoking proviso to Section 73(1) would apply. This plea of the appellant appears to be on a wrong premise, as we find from the order of the Tribunal that what has been agitated is the fact that the nature of services provided by the assessee does not fall within the service tax net, which the original authority, the appellate authority as also the Tribunal, have concurrently held against the appellant holding that the activity performed by the appellant would fall squarely within the provisions of Section 65(23) of Chapter V of Finance Act, 1994, viz., ‘cargo handling services’.
Therefore, we find no error in the order of the adjudicating authority as confirmed by the appellate authority and further confirmed by the Tribunal. In the absence of material pleading before the competent authority, we are unable to countenance the argument advanced by the appellant in regard to limitation. For the reasons stated above, this court is not inclined to entertain the appeal by framing any questions of law for consideration, as no question of law, much less substantial question of law arises for consideration in this appeal. - Decided against the appellant
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2015 (7) TMI 1136
Whether M/s. Ultra Tech Environmental Consultancy and Laboratory and Aavanira Biotech Pvt Ltd are accredited by the Ministry of Environment and Forest to test the samples for parameters of rubber process oil namely; colour, Ash Content, Flash Point(COC), Density, Kinematic Viscosity, Aniline Point, Poly Aromatic Hydrocarbon(PAHs) and Test for Halogens etc. - Held that: - M/s. Ultra Tech Environmental Consultancy and Laboratory replied that they are not accredited by the Ministry to test parameters. The accreditation is given for testing certain products; it is not given for testing particular parameters.
With the consent of both sides, the samples may be drawn in the presence of both sides and send to M/s. Ultra Tech Environmental Consultancy and Laboratory. While sending the samples for testing, it may be kept in mind that the accreditation by the Ministry of Environment and Forest is for product testing as per Standards and not for individual parameters. Letter may be addressed to the laboratory accordingly.
Drawal of samples and analysis may be completed within 15 days. The sample may be tested by the laboratory to meet the requirement of the Hazardous Waste(Management, Handling and Transboundary Movement) Rules, 2008 - Cost of analysis to be born by the applicant.
Application disposed off.
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2015 (7) TMI 1135
Demand alongwith interest and penalties - Tour Operator services - whether three vehicles would fall within the meaning and scope of Tourist Vehicles, under Section 65 (114) of the Act, 1994 or not - Held that:- the Commissioner (Appeals) after examining the Contract Carriage Permit observed that the said three vehicles were permitted as contract carriage under Gujarat Motor Vehicle Rules, 1989 and are not covered under the definition of Tourist Vehicles, within the meaning of Section 2(43) of the Motor Vehicle Act, 1988 read with Rule 82 to 85 and 128 of the Central Motor Vehicle Rules, 1988. In view of that, Commissioner (Appeals) held that demand of service tax in respect of said three vehicles would not sustain. The Tribunal, on the identical issue in the case of CCE, Vadodara-II vs. Gandhi Travels [2007 (2) TMI 57 - CESTAT, AHMEDABAD] dismissed the appeal filed by the Revenue. In that case, the vehicles owned by the Respondent held as not covered under Tourist Vehicles as per certificate from the transport authority produced before the Commissioner (Appeals). It has been observed that the Tourist Vehicles has to be read in the line and provisions of the Motor Vehicle Act and Rules thereunder. - Decided against the Revenue
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2015 (7) TMI 1134
Cenvat credit - service tax taken by the appellant on the services indicated in the invoices were received prior to 10.09.2004, when the Cenvat Credit Rules, 2004 was not in vogue - Held that:- the Cenvat Credit Rules, 2004 were framed vide Notification No. 23/04-CE(NT), dated 10.09.2004. In Rule 3 of the said Rules, the embargo has been created, which is to the effect that input service received by the manufacturer of the final product on or after such effective date i.e. 10.09.2004, will be eligible for taking the cenvat credit. Since the disputed invoices were issued on 28.09.2004, 29.09.2004 and 20.12.2004, the Department took the view that the services in relating to those invoices were provided prior to such effective date, and accordingly denied the cenvat benefit to the appellant. In arriving at such conclusion, the Department has not produced any evidence to show that the work/ service, in question, were completed prior to 10.09.2004. However, I find from the certificate produced by the appellant that the service provider M/s Mcnally Bharat Engineering Co. Ltd. vide their certificate dated 11.09.2007 has categorically stated that work/service relating to the disputed invoices were completed after 10.09.2004.
Though the said certificate was produced by the appellant before the authorities below, but no findings have been recorded in dis-proving the same and since no material evidence has been brought on record by the Department to prove that the works/ service has been completed before 10.09.2004 and the genuineness of the certificate having not been disputed either by the Adjudicating Authority or by the Appellate Authority, the cenvat benefit cannot be denied to the appellant. - Decided in favour of appellant
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2015 (7) TMI 1133
Period of limitation - Refund claim - availment of Modvat Credit of Central Excise duty paid on inputs i.e. Grinding Media, used in manufacture of cement - appellant reversed the modvat credit amount pursuant to adjudication order in which it was held that grinding media is not an input and the same is a machinery item but in appeal to the Tribunal, it was held that grinding media is an input - Held that:- there was no necessity for filing the fresh refund application by the appellant on 19.10.2011 with regard to the same refund amount, which was initially filed on 30.06.1994, which was returned by the Department on the ground that the Tribunal’s order is the subject matter of dispute before the Hon’ble High Court. Perusal of the Provisions of Section 11B ibid reveals that no provisions exist therein to return the refund application to the assessee. Since, the ground of filing refund application on 30.06.1994 is same in the application filed on 19.10.2011, in my considered view, application filed on 30.06.1994 should be constructed as proper application for the purpose of computation of limitation of time. Since, the initial application was filed within the statutory time frame, there is no delay in filing the subsequent application on 19.10.2011, which was in confirmation to the earlier application dated 30.06.1994, involving the same set of facts. - Decided in favour of appellant
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2015 (7) TMI 1132
Disallowance in respect of the salary - Held that:- We noted that the Assessing Officer found that the assessee has debited towards salary a sum of ₹ 1,06,339/- in the Profit & Loss A/c. of its proprietary concern M/s. Janardan Hosiery Mills and in addition to this, the salary of ₹ 21,000/- was claimed in the computation of income under the head ‘profit & gains from business’ but the assessee has not adduced any evidence and explain how the salary has been claimed.
Before us, the assessee contended that the salary has been incurred for the purpose of business. The CIT(Appeals) has simply rejected the submission of the assessee. We find from the order of CIT(Appeal's) that the CIT(Appeal s) without discussing the submissions made by the assessee just strictly confirmed the order of the Assessing Officer disallowing the salary. We, therefore, set aside the order of the CIT(Appeals) and delete the disallowance in respect of the salary.
Disallowance towards the consultancy fees in respect of income-tax matters - Held that:- We have heard the rival submissions and carefully considered the same. The assessee is a proprietor of proprietorship concern M/s. Janardan Hosiery Mills and is also carrying on the business. Therefore, the assessee, in our opinion, is required consultancy from time to time in respect of its business. The expenses incurred by the assessee towards income-tax consultancy are for the purpose of business. We accordingly delete the disallowance made by the Assessing Officer. Thus this ground is allowed.
Disallowance u/s 14A as well as Rule 8D - Held that:- We have heard the rival submissions and carefully considered the same. We noted that the Assessing Officer had disallowed the expenditure by invoking Rule 8D read with section 14A of the Income Tax Act. We noted that Rule 8D has been inserted by the Income Tax (5th Amendment) Rules, 2008 w.e.f. 24th March, 2008. Hon’ble Mumbai High Court in the case of Godrej & Boyce Mfg. Co. Ltd. –vs.- DCIT reported (2010 (8) TMI 77 - BOMBAY HIGH COURT ) has clearly held that Rule 8D is not retrospective but prospective.
The impugned assessment is the assessment year 2007-08 while Rule 8D has been inserted w.e. f. 24t h March, 2008. Therefore, the Assessing Officer, in our opinion, is not correct in law in allowing the disallowance by applying Rule 8D. We further noted that in the case of Sanjiv Jajodia –vs. - DCIT [2010 (9) TMI 1026 - ITAT KOLKATA ] has taken the view that the disallowance under section 14A out of the expenses should be restricted only to 1% of the dividend income.
Respectfully following the above decision we set aside the order of CIT(Appeal s) and direct the Assessing Officer to disallow 1% of the dividend income under section 14A of the Income Tax Act, 1961.
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2015 (7) TMI 1131
Claim for carry forward of loss u/s 7I B - income from house property - Held that:- The observation of the ld. CIT(A) that the assessee had itself stated that the income was from business and not from house property is of no consequence at all. It is for the taxing authority to decide such issues correctly and the claim of the assessee, either way, is not decided. Also, it is not of any detriment to the assessee that as observed by the ld. CIT(A), while acquiring the property, only occupation certificate was received by the assessee and electricity or water connection, inter alia, having been applied for, the property was not rendered lettable. This is also in view of the fact that in its meeting on 15-7-2007, the Board of Directors of the assessee company resolved that attempt be made to let out the property as a bare-shell, without making any renovation or furnishing. This fact has been taken note of by the ld. CIT(A) at page 4, para (d) of the impugned order.
For the above discussion, the grievance of the assessee is found to be justified and is accepted as such. The order of the ld. CIT(A) in this regard is cancelled and it is held that the income of the assessee is to be computed as ‘income from house property’. The assessee’s claim in this regard is, thus, allowed.
Coming to the Department’s grievance, once we have held that the income is to be assessed as ‘income from house property’ as above, on this very basis, the order of the ld. CIT(A) on this issue is upheld, rejecting the grievance of the Department as shorn of merit.
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2015 (7) TMI 1130
Power of Petroleum and Natural Gas Regulatory Board to fix or regulate the maximum retail price at which gas is to be sold by entities such as Indraprastha Gas Ltd, to the consumers - power of Board to fix any component of network tariff or compression charge for an entity having its own distribution network - Petroleum and Natural Gas Regulatory Board (Determination of Network Tariff for City or Local Natural Gas Distribution Networks and Compression Charge for CNG) Regulations, 2008 - invocation of the jurisdiction under Article 226 of the Constitution - Section 22 of the Act - network tariff and compression charges for CNG - Delhi City Gas Distribution (CGD) network - Sub-section (e) of Section 11 of the Act - Sub-section (2) of Section 61 - whether reading of provisions namely, Sections 20 to 22 of the Act, it can be construed that they confer any power on the Board to fix the transportation tariff of a consumer of natural gas?
Held that: - the Board has not been conferred such a power as per Section 11 of the Act. That is the legislative intent. Section 61 enables the Board to frame Regulations to carry out the purposes of the Act and certain specific aspects have been mentioned therein. Section 61 has to be read in the context of the statutory scheme. The regulatory provisions, needless to say, are to be read and applied keeping in view the nature and textual context of the enactment as that is the source of power. On a scanning of the entire Act and applying various principles, it is concluded that the Act does not confer any such power on the Board and the expression “subject to” used in Section 22 makes it a conditional one. It has to yield to other provisions of the Act. The power to fix the tariff has not been given to the Board. In view of that the Board cannot frame a Regulation which will cover the area pertaining to determination of network tariff for city or local gas distribution network and compression charge for CNG - appeal dismissed - decided against appellant.
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2015 (7) TMI 1129
Reopening of assessment - whether Assessing Officer ought to have examined the applicability of 2008 Scheme to the Petitioner as required in terms of Rule 18C of Rules while passing assessment order? - Held that:- Rule 18C of the Rules itself provides that the same would apply only to undertaking established after April, 2006 and before March, 2011. In this case, admittedly, the Petitioner was established prior to April, 2006. Prima facie, it appears that 2008 Scheme would not have any application to the Petitioner. Further, the other issue namely income on renting of property should be charged as business income is already dealt with in the Assessment Year. Thus, it prima facie, amounts to a change of opinion. The other objections are factual and the order disposing of the objections not having dealt with the objections, at this stage, it appears to be valid.
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2015 (7) TMI 1128
Allowability of prior period expenses - Held that:- The assessee is a government company. The genuineness of the expenses has not been doubted by the Assessing Officer. The ld CIT(A) had followed the Coordinate Bench decision passed on identical fact, therefore, we uphold the order of the ld CIT(A) holding prior period expenses as allowable expense
Allowability of deduction for the contribution made to an unapproved gratuity fund - Held that:- The issue is identical to A.Y. 2006-07, in assessee’s own case. As the assessee has applied for its approval in time but formal approval had not been issued by the department, therefore, there is no fault on the assessee. The identical issue has been decided by the Coordinate Bench, which is squarely application on this year also. Therefore, we uphold the order of the ld CIT(A) allowing the deduction for contribution made to an unapproved gratuity fund.
Allowability of contribution to state renewal fund - Held that:- As the State Govt. had set up a State Renewal Fund in the year 1995 with the object of providing a safety net for the workers likely to be affected by restricting in the State Public Enterprises, as a result of this process, these expenses have been correctly claimed by the assessee. Allow the expenses as being covered by the decision of the Hon’ble ITAT for A.Y. 2006-07.
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2015 (7) TMI 1127
Addition on account of interest received from head office - Held that:- Tribunal was correct in holding that addition on account of interest received from head office has been wrongly made by the Assessing Officer. The respondent-assessee has not claimed benefit of the double taxation avoidance agreement. See DIT (Intnl. Txn.) v. Credit Agricole Indosuez [2015 (6) TMI 974 - BOMBAY HIGH COURT ]
Tribunal is correct in holding that section 44C is not applicable and these expenses are allowable and under section 37(1) of the Income-tax Act. See Commissioner of Income-Tax Versus Emirates Commercial Bank Ltd. [2003 (4) TMI 2 - BOMBAY HIGH COURT]
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2015 (7) TMI 1126
Refund claim - excess amount of central excise duty paid, which has resulted on account of revision of the invoices consequent upon the appellant allowing the discounts to their dealers - claim of the appellant was rejected both by the primary as well as the appellate authorities and the same was confirmed by the CESTAT - Held that:- the present appeals are connected with C.E.A.No.51 of 2004 and batch, which were allowed by this court by a common order in favour of the assessee, allowing the claim of the assessee for refund of the excise duty. - Appeals allowed
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2015 (7) TMI 1125
Cenvat credit - lubricant oil used in dumpers and water sprinkler - lubricant is used in heavy earth moving machines, which are used for production of coal and water sprinkler has been used for controlling pollution within the mining area - Held that:- since the disputed goods are used in or in relation to production of excisable goods, I am of the view that the said goods fall under the purview of the definition of input for availment of cenvat credit. Further, lubricant used for smooth functioning of water sprinkler, which is used for controlling pollution in the mining area as per the requirement of mines Act, in my opinion, will also qualify as input for the purpose of cenvat benefit. The definition of input contained in Rule 2 (k) of the Cenvat Credit Rules, 2004 entitles a manufacturer to take cenvat credit on all goods except the excluded goods itemized there in. Since lubricants are not falling under the negative list of goods mentioned in the definition clause, credit cannot be denied to the appellant. - Decided in favour of appellant
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2015 (7) TMI 1124
Cenvat credit - admissibility - Shape and Section, M.S. Plate, H.R. Plate, M.S. Channel, Angles, Roughly Shaped Forged Rolls, Paints and Primer, Aluminium Bar, Sheet Foam etc. - Held that:- the assessee was given full opportunity to lead evidence to show that the items procured were used in the manufacture or fabrication of items, which was capital goods in order to claim Cenvat Credit. In spite of repeated opportunity being granted, we find that no credible evidence was filed by the assessee. On the other hand they delayed the proceedings raising various frivolous objections. The Commissioner, eventually passed an order-in-original holding that the items procured by the assessee were used for the construction of a factory, shed, building and laying of a foundation for Rolling Mill and, therefore, no Cenvat Credit could be granted. The appeal was also dismissed by the Tribunal. There is no substantial question of law arises for consideration in the present case. - Decided against the appellant
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