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Showing 321 to 340 of 1914 Records
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2016 (12) TMI 1596
Revision u/s 263 - genuineness of the gift proved - Held that:- No reason to entertain this special leave petition, which is, accordingly, dismissed. HC Order confirmed [2016 (6) TMI 1004 - BOMBAY HIGH COURT]
HC held that AO was satisfied, consequent to making an enquiry and examining the evidence produced by the Assessing Officer, establishing the identity and creditworthiness of the donor as also the genuineness of the gift. The CIT in his order of Revision, does not indicate any doubts in respect of the genuineness of the evidence produced by the Assessee. There can be no doubt that where the view taken by the Assessing Officer is a possible view, interference under Section 263 of the Act, is not permissible. - Decided in favour of assessee
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2016 (12) TMI 1595
Maintainability of appeal - Held that: - as the party Appeal No.20412/2015 filed against the very same Order-in-Appeal was already disposed by this Tribunal vide Final Order No.31040/2016, dated 14-10-2016, the appeal filed by the department is infructuous and is dismissed - decided against Department.
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2016 (12) TMI 1594
Presence of counsel for the petitioner during the recording of statement under Section 108 of the Customs Act, 1962 - Summon to appear personally with desired documents - Held that: - the Supreme Court and this Court have routinely permitted the counsel of the noticee to remain present at the time of interrogation/questioning of the noticee u/s 108 of the Act, subject to the condition that the counsel shall be placed at a visible distance, but beyond audible distance from the place of inquiry, so that the counsel may be able to see that the noticee is not subjected to any physical harm, but he is not able to hear the process of interrogation/inquiry undertaken by the authorities.
The inquiry shall be conducted uptill 5:00 p.m. and if the same is required to be continued, the same may be continued on a day to day basis during office hours only. The same shall be conducted in the presence of a lady officer of the DRI. Counsel for the petitioner shall be permitted to accompany her - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1593
Presence of counsel for the petitioner during the recording of statement under Section 108 of the Customs Act, 1962 - Held that: - Let the petitioner appear before respondent no.3 for inquiry on 03.01.2017 at 11:00 a.m. for her questioning along with all the documents required of her in the earlier notices issued to her - petition disposed off.
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2016 (12) TMI 1592
Provisional release of goods - Circular No.01/2011-Customs, dated 04.01.2011 - communication to SIIB according to 'Let Export Order' - whether it is a fit case to allow provisional release of the subject goods, by relaxing the rigour of the condition contained in clause (i) of paragraph 6 of the impugned order? - Held that: - taking notice of the fact that the goods in question are newsprint which is perishable in nature, we issue a direction that the goods of the respondents shall be cleared by the appellants herein on the respondents' furnishing a bank guarantee of 30% of the differential duty to the satisfaction of the Commissioner of Customs. The goods shall be released in terms of this order immediately on furnishing of the aforesaid bank guarantee and satisfaction of the concerned Commissioner of Customs.
Clause 2.2. (c) of the Board's Customs Manual, clearly says that save and except in exceptional cases, pending investigation, wherever, importer or exporter is willing, he should be allowed provisional clearance of goods, by furnishing a bond for full value of the goods supported by an adequate Bank Guarantee, as may be determined by the proper Officer.
The condition imposed sub clause (i) of paragraph 6 of the impugned order can be relaxed, by substituting the said condition, with an option being given to the petitioners to seek release of the subject goods/consignments by furnishing a Bank Guarantee of a nationalised bank equivalent to 30% of the export duty. This is so, as finished leather, as per the extant policy, is freely exportable, while, generally, unfinished leather, i.e., hides, skins, leather - tanned and untanned, are subject to export duty, at the rate of 60%.
Petition allowed - decided in favor of petitioner.
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2016 (12) TMI 1591
Sub-contract - levy of tax - liability of sub-contractor to pay tax when the principle contractors had suffered tax - Erection, Commissioning and Installation Service - Held that: - In view of the passage of time and no reply has come from Revenue, it is preferable to send the matter back to the ld. Adjudicating authority to verify whether the service rendered by the appellant has suffered tax in the hands of the principal contractors - appeal allowed by way of remand.
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2016 (12) TMI 1590
Penalty U/s 271B - non filing the audit report U/s 44AB - Held that:- Rule 12(2) of the Rules was made effective from 01/04/2013 wherein the assessee was required to furnish the report of the audit U/s 44AB of the Act electronically. However, the auditor of the assessee could not do it in time. This is well established fact that the assessee has got his accounts audited as per provisions of Section 44AB of the Act in time. However, the newly inserted Rule wherein the audit report was to be electronically submitted alongwith the return of income, skipped the attention of the auditor, which he has admitted by filing a letter.
On the enquiry from the Bench with regard to filing electronically audit report in the subsequent years, it was stated that the assessee is regularly submitting the same and there was no fault in any subsequent year. It is also observed that the assessee was getting his accounts audited well in time regularly since last three years. The audit for the financial year relevant to assessment year under consideration was completed on 24/09/2013 in time and the assessee submitted its return on 28/09/2013. Therefore, in my considered view, the default on the part of the assessee was a bonafide human mistake. There was no dishonest attempt to break the law. Thus penalty need to be deleted - Decided in favour of assessee.
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2016 (12) TMI 1589
TPA - ALP in respect of management support services - Whether the AO/TPO was justified in adopting the ALP at Rs.Nil in respect of management and support services fee paid by the appellant to its AE? - Held that:- No doubt, now it is settled proposition of law that it is beyond scope and powers of AO/TPO to question the necessity of incurring any expenditure. The Hon’ble Delhi High Court in the case of CIT Vs. EKL Appliance Ltd. [2012 (4) TMI 346 - DELHI HIGH COURT] held that TPO cannot determine the ALP at Nil by holding that there was no need to incur any expenditure.
The onus lies on the assessee to prove that the services are actually rendered by the AE. But the assessee had failed to discharge this onus lying upon it despite being asked to do so by the TPO. The TPO had especially invited the assessee company to produce the proof in support of the services rendered by AE. The appellant only had tried to prove this by producing some correspondence which does not prove that the services are actually rendered. The failure by the assessee to discharge the onus can be presumed that the assessee had no evidence to establish that services of management support are rendered by its AE in consideration to payment.
The submission that the TPO had impliedly accepted the rendition of services cannot be accepted as there was no finding given by the TPO that services are actually rendered. In fact, the TPO while summarizing this observation vide page No. 30 of his order vide column No.6 had specifically mentioned that the assessee had failed to prove that the services are actually rendered by AE. Furthermore the finding of the TPO that the invoice was raised much after the closure of the accounting year and the payment of management fee in nothing but siphoning of the profits from India with the intention of avoiding tax are serious enough to doubt the genuineness of transactions. The appellant had made no effort to controvert the findings of the TPO.
Therefore, in our considered opinion the TPO/AO is justified in adopting ALP at Nil.
The alternative submission of the appellant that the transaction of management and support fee should be bundled with other transactions and bench marked by adopting TNMM cannot be accepted for the reason that bundling of transactions is permissible only when the transactions are closely related to each other and reliance in this regard can be placed on the decision of Delhi High Court in the case of Sony Ericsson Mobile Communications India Pvt. Ltd., Vs. CIT [2015 (3) TMI 580 - DELHI HIGH COURT] and Knorr Bremse India (P) Ltd., Vs. Asst. CIT (2016 (5) TMI 145 - PUNJAB AND HARYANA HIGH COURT ). It is not the case of the appellant that these transactions are closely linked with the other transactions and therefore the submission that these transactions should be bundled with other transactions cannot be accepted. - Decided against assessee.
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2016 (12) TMI 1588
TPA - ALP determination - selection of MAM - TPO jurisdiction to decide allowability of expenditure u/s.37 - Held that:- As find from the order of lower authorities that TPO wanted the assessee to show that services were actually rendered to the assessee and payment was made for the same, also it was noted by the DRP that the invoices submitted by the assessee pertaining to the fees paid by the assessee to its AE for registration of patents developed by AE in their own country with hardly anything to show as to how the assessee benefitted from the same in its business.
Similarly, in relation to invoice for MIS, the same had been pertained to the year under consideration and assessee failed to substantiate its claim of service were actually received or that services are not in nature of stewardship services. Further, DRP observed that the TPO had discussed in detail the nature of various services, claimed to have been received the assessee from its A.E. Hence, the DRP directed the AO for disallowance of ₹ 78,57,058/-. In our opinion, if the assessee produces the particulars of actual expenditure for availing these services, then it is to be allowed. With this observation, we remit the issue to the file of AO for fresh consideration.
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2016 (12) TMI 1587
Reopening of assessment - report of the District Valuation Officer relied upon - calculation on valuation of land - Held that:- It is clear that there was no basis or material on record to calculate the value of land @ ₹ 1000/- per sq.yd. and of the cost of construction at ₹ 100/- per sq.ft. as is noted in the reasons. There is no material, what to say of tangible material available on record to justify re-opening of the assessment. The Assessing Officer merely on assumption, presumption, recording vague and nonexisting reasons, recorded the reasons for re-opening of the assessment which are not sufficient to validate the re-opening of the assessment in the matter. Thus, there is no reason to believe with the Assessing Officer to assume the jurisdiction under section 148 of the Income Tax Act.
Considering the above discussion, we are of the view that reasons recorded under section 148 of the Act reflect an arbitrary use of power conferred under section 147 of the Act. In this view of the matter, we set aside the orders of authorities below and quash the reopening of the assessment under section 147/148 of the Income Tax Act. - Decided in favour of assessee.
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2016 (12) TMI 1586
Manufacture - Packaging activity - liability to tax - The appellants are engaged in packaging bumpers for the tractors - Held that: - the claim of appellant that the activity performed by the appellant is packing of bumpers and no new product emerged after such packing, is not correct - The provisions of Section 2 (f) of the Central Excise Act are attracted in the present case - appeal dismissed - decided against appellant.
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2016 (12) TMI 1585
TPA - selection of comparable - Held that:- Assessee provides Information Technology ('IT') enabled back office processing services thus companies functionally different and operates on a different business model with that of assessee need to be de-selected from final list of comparable.
Working Capital Adjustments - Held that:- As far as working capital adjustments are concerned, there is no dispute about the adjustment per se. the dispute is regarding the working of adjustment only. As regards the quantum of working capital adjustment, we direct the AO/TPO to verify the correctness of the amount of working capital adjustment claimed by the assessee and then decide as per facts and law. The ground is allowed accordingly.
AO is also directed to work out the correct margins of the comparable companies as directed by Ld. CIT(A) in his order as assessee submits that this direction of Ld. CIT(A) was not followed by AO. After that AO/TPO is directed to work out the ALP as per the provisions of the Act.
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2016 (12) TMI 1584
Determine fair market value of the property - reference matter to DVO - contemplation under section 50C(2) - Held that:- At the time of execution of agreement in respect of an immovable property, the right in persona is created in favour of the transferee/vendee. When such right is created in favour of the vendee, vendor is restrained from selling the said property to someone-else, because vendee in whose favour the right in persona is created has legitimate right to enforce specific performance of the agreement, if vendor for some reason is not executing sale deed. Thus, by virtue of agreement to sell, some right is given to the vendee by the vendor. It is an encumbrance on the property and considering this aspect, the ld.AO should have remitted this issue to the file of DVO for determining fair market value on the date of transfer of land.
DVO will have to keep in mind the encumbrance over the property by virtue of sale agreement. It is also pertinent to note that validity or genuineness of the agreement has also to be decided because under the agreement, consideration was promised and not paid at the time of agreement. It was paid on 15.12.2008. All these factors are to be kept in mind by the DVO while determining the FMV of the property. Considering these aspects, we deem it appropriate to set aside the issue to file of the AO for re-adjudication. The ld.AO shall refer the matter to the DVO as contemplated under section 50C(2) of the Income Tax Act, 1961. The ld.DVO shall determine fair market value of the property on the date of sale deed, but keep in mind the encumbrance over the property by virtue of agreement. The ld.AO shall determine the long term capital gain thereafter. Accordingly, appeal of the assessee is partly allowed for statistical purpose.
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2016 (12) TMI 1583
TPA - selection of comparable - Held that:- Assessee-company is engaged in the business of providing Information Technology [IT] and IT enabled services [ITES] thus companies dissimilar with that of assessee need to be deselected from final list of comparable.
Deduction u/s 10A computation - exclusion of lease line charges from the Total Turnover - Held that:- This issue is squarely covered by the decision of the Hon’ble Bombay High Court in the case of CIT Vs. Gem Plus Jewellery India Ltd., [2010 (6) TMI 65 - BOMBAY HIGH COURT ] wherein it has been held that communication charges etc., attributable to the delivery of the computer software outside India which are to be reduced from the export turnover should be reduced from the total turnover as well, while computing the deduction u/s. 10A. Thus we affirm the order of Ld.CIT(A) to reduce the same from the export turnover as well as total turnover while computing the deduction u/s. 10A of the I.T. Act.
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2016 (12) TMI 1582
Condonation of delay - no satisfactory reason has been adduced by the appellant - The reason cited for the delay is that while initially there was no scope for appeal by virtue of the judgment of the Supreme Court in J.K.Udaipur Udyog, [2002 (8) TMI 162 - CEGAT, NEW DELHI], the reversal of the judgment by the Full Bench gave hope to the Appellant to file further appeals - Held that: - The judgment of the Supreme Court was delivered on 16.1.2006 and the appeals were filed on 25.11.2006. However, in the facts and circumstances of the matter, we take a lenient view and condone the delay of 25 months and 14 days upon payment of costs of ₹ 5,000/- in each case, to the Tamilnadu Mediation and Conciliation Centre, High Court, Chennai - delay condoned - decided in favor of assessee.
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2016 (12) TMI 1581
CENVAT credit - catering services - denial on the ground that the same is not used in or in relation to the manufacture of the finished excisable goods in its factory - Held that: - the issue stands decided in favor of assessee in the case of The Commissioner of Central Excise v. M/s. Borg Warner Morse Tec Murugappa Pvt Ltd [2015 (4) TMI 254 - MADRAS HIGH COURT], where similar issue was raised - It is made clear that the cost of food borne by the worker should not be taken into consideration for the purpose of grant of credit of service tax - appeal allowed - decided in favor of assessee.
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2016 (12) TMI 1580
Penalty u/s. 271(1)(c) - disallowance of part of depreciation - Held that:- From the record we found that penalty has been levied with respect to the inadvertent claim of depreciation which was withdrawn when pointed out by the AO. The issue under consideration is covered by the decision of Hon'ble Supreme Court in case of Price Waterhouse Coopers Pvt. Ltd., (2012 (9) TMI 775 - SUPREME COURT). We found that plant and machinery was purchased more than six months prior to the close of the accounting year, however, it was put to use in the far end of the year. It was found to be an inadvertent mistake, hence penalty cannot be levied.
The detailed finding given by CIT(A) by relying on various judicial pronouncements are as per material on record. Accordingly, we do not find any reason to interfere in the findings recorded by the CIT(A) resulting into deletion of penalty. - Decided against revenue.
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2016 (12) TMI 1579
Order against u/s 201(1)/201(1A) - short/non deduction of TDS - Held that:- As the assessee was not interested in pursuing this appeal and therefore this appeal may be permitted to be withdrawn. Ld. DR had no objection for withdrawing the appeal by the assessee.
The present appeal is permitted to be withdrawn and thus dismissed as withdrawn.
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2016 (12) TMI 1578
Condonation of delay - Held that:- We notice that the Revenue has filed this appeal after an inordinate delay of 646 days. The reason for the delay has not been properly explained. A general explanation that the process of e-filing required several procedural compliances which could not be fulfilled within the time and that the defects pointed out by the Registry too could not cured since there was overload of work on the part of the Revenue, is not sufficient cause to warrant condonation of delay.
Besides, on merits too, the Court notices that the question of law urged - whether assembling of the ultimate product i.e. air springs - for use by the railways, which conformed to exact specifications - amounted to process of manufacture or amounted to manufacture.
The ITAT concluded on detailed analysis that specialised nature of the task showed that the process was manufacture. It also relied upon the clearances given by various other authorities including the Central Excise Authorities on the self saying issue. Furthermore, the ITAT took note of the fact that for the previous year, same question had been gone into and a finding was rendered in favour of the assessee.
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2016 (12) TMI 1577
Scope of SCN - the Commissioner (Appeals) in the impugned order alleged clandestine removal whereas in the SCN no such allegation was raised - imposition of penalty u/s 11AC, as there was no suppression of facts - Held that: - at this stage, the appellant cannot raise any issue as regard the confirmation of demand and invoking the provision of Section 11AC - since the proposal of penalty u/s 11AC and imposition of penalty u/s 11AC was not disputed then the penalty u/s 11AC has to be equal to duty confirmed - appeal dismissed - decided against appellant.
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