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Showing 321 to 340 of 558 Records
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2012 (2) TMI 419
Restoration of appeal - Denial of refund claim - Incomplete refund claim - Held that:- original refund claim was returned to the appellant and was not processed on the ground that requisite documents were not supplied by the appellant. The learned Counsel submits that all the documents were subsequently given. In view of the above fact, we are of the view that inasmuch as, no decision has been taken by the adjudicating authority on the refund application filed by the appellant; the matter needs to be remanded to him. Needless to say that based on the facts and circumstances as also the submission of the Counsel for the appellant, if any, he would process the refund claim, after observing the principles of natural justice including issuance of the show cause notice - Decided in favour of assessee.
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2012 (2) TMI 418
Valuation of goods - Whether transportation of the goods will form part of the assessable value of the goods cleared by appellants - Held that:- On going through the case records, we find that no such case has been made out therefore the argument that the transporting company is a related person and consideration realised by the transporting company for transportation should form part of the assessable value has no legal support. Section 4 of the Central Excise Act refers to “related person” only in the context of a sale to a related person. The Revenue has not been able to prove that the partnership firm of M/s. Miracle Trading Co. is a proxy with no separate entity. Neither is any case made out that part of the price of the goods is being realised by the transporting company for the benefit of the appellant company. Therefore in the facts of the case we do not see any merit in the orders of the lower authorities and we are in agreement with the argument of the appellants that the proceeds realised by M/s. Miracle Carrier and Trading Co. towards transportation of the goods will not form part of the assessable value of the goods cleared by appellants - Decided in favour of assessee.
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2012 (2) TMI 417
Clandestine removal of goods - Detention of trucks loaded with M.S. Rod of M/s. J.M.D. weighing 15 MT and 14.99 MT - Held that:- there are three similar statements have been deposed by the both drivers which were contradictory to each other. I find that their second interrogatory statement is in complete contradiction of their first interrogatory statement and their third interrogatory statement is a complete contradiction of their second interrogatory statement. Undoubtedly the statement made U/s 14 of the Central Excise Act, 1944, has an evidentiary value, but if there is any contradiction among them, it needs further corroboration. The lower adjudicating authority has wrongly considered and appreciated the statement, dated 1-8-2008 of drivers, who deviated from their previous statement. Merely gross resemblance in distance and time taken in travelling to reach the loading place would not be incriminatory fact in absence of its specific and tangible corroboration.
Non-production of duty-paying document is not at all incriminatory fact on their part. Hence I hold that seized 29.99 MT MS bars is not liable for confiscation nor trader and its proprietor are liable for penalty U/s 11AC of the C. Ex. Act, 1944 read with Rule 25 & 26 of the Central Excise Rules. Moreover, in view of the discussion as above, as Demand of Central Excise Duty upon seized 29.99 NT MS bars has been found to be unsustainable, the appeals of M/s. Durga Rai Vijay Kumar of Samaur Bazar (UP) and its proprietor succeeds on merit. Hence technical issues, like time bar and jurisdiction of demand notice not being discussed. When the core issue of clandestine removal from JMD factory is not established, the question of confiscation of goods and imposition & penalty on the appellants does not arise. Where allegation of violation of Central Excise Act is not established, then subsequent imposition of fine or penalty or confiscation of goods is of no consequence. Invocation of Sec. 11AC of Central Excise Act is not sustainable in law if allegation of fraud, suppression of facts and misstatement are not proved to the contrary - Department could not produce any evidence contrary - Decided against Revenue.
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2012 (2) TMI 416
Whether Drills and Bits used in the instant case are eligible for Cenvat credit - Held that:- The Lower Adjudicating Authority in his finding at page Three has admitted that the said goods were used in the “Captive Mines of the assessee” - As regards the Modvat/Cenvat credit on capital goods, if the mines are captive mines so that they constitute one integrated unit together with the concerned cement factory, Modvat/Cenvat credit on capital goods will be available to the assessee. On the other hand, if the mines are not captive mines but they supply to various other cement companies of different assessees, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules. The matters are remanded to the respective original authorities for decision only on the above issue - Following decision of GAJAMBUJA CEMENT Versus COMMISSIONER OF C. EX., BHAVNAGAR [2007 (11) TMI 139 - CESTAT AHMEDABAD] - Decided in favour of assessee.
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2012 (2) TMI 415
Availment of CENVAT Credit - Availment in wrong and fraudulent manner on the basis of invoices for PVC compound wrong and fraudulent manner on the basis of invoices for PVC compound issued by M/s. Kashish Products Impex Pvt. Ltd. without actually receiving any material - Held that:- while the miscellaneous application is for rectification of the stay order dated 25-7-2011 on the ground that there are mistakes apparent from record in the stay order and the prayer in the application is for rectification of the order by withdrawing the same, the application does not mention as to under which provision of the Central Excise Act, the same has been filed. If, it is treated as application for rectification of the mistakes apparent from record under Section 35C(2), the same would not be maintainable as what Section 35C(2) provides is rectification/amendment of an order passed by this Tribunal under sub-section (1) of Section 35C, while the impugned order is not an order passed under Section 35C(1), but an order passed under Section 35F on the question of waiver of pre-deposit.
The burden to prove that the material covered under invoices, on the basis of which Cenvat credit had been taken by the appellant had actually been received by them, would be on the appellant and prima facie we find that no evidence in this regard has been produced by the appellant. Thus, the absence of manufacturing activity in the factory of KPIPL on the date of officer’s visited to the factory in 2006 is not the only ground for conclusion that the invoices issued by KPIPL to the appellant, on the basis of which Cenvat credit amounting to Rs. 72,56,374/- was taken, were bogus invoices - Time to make deposit is extended to six weeks - Decided partly in favour of assessee.
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2012 (2) TMI 414
Waiver of pre deposit - Penalty u/s 114A - Held that:- whole case is built on the premise that raw material i.e. chemicals and yarn are not sent for job work and in fact are sold to the so called job worker by the applicant and the fabrics which is used by the so called job worker is not brought to the unit of the applicant. However prima facie there is no case of the department that raw materials imported are diverted or substituted or not accounted for or final product not exported. The 100% EOU is eligible for procuring raw material and goods locally without payment of duty besides importing raw material and chemicals without payment of duty. Movement of locally procured goods in this case have been under ARE-3. In these circumstances, we find that applicants have been able to make out a prima facie case in their favour and since the unit is 100% EOU, the balance of convenience is in their favour - Stay granted.
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2012 (2) TMI 413
Denial of Cenvat credit - After-sale repair services during warranty period - Service has been received after the removal of the goods from the place of removal of the goods - Held that:- On going through the definition of ‘input service’ and especially the inclusive portion of the definition, we are of the prima facie view that this ground for denial of credit is not correct, as there are a number of services mentioned in the inclusive portion of the definition of ‘input service’ which cannot be linked with the removal of the goods. Moreover, it has not been denied by the Department that the cost of providing free after-sale services i.e. warranty charges are part of the price of the goods on which Central Excise duty had been paid. In view of this, Cenvat credit of Service Tax paid on the after-sale services cannot be denied - the appellant have a strong prima facie case and requiring the pre-deposit of the Cenvat credit demand, interest and penalty would cause undue hardship - Stay granted.
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2012 (2) TMI 412
Profit on the alleged inaccurate sale and on account of unexplained investment - Held that:- Customs, Excise and Service Tax Appellate Tribunal in the assessee's own case there is no merit in any addition being made in the hands of the assessee on account of the alleged suppression in production and also alleged investment in purchase of raw material. In view thereof, we hold that no addition on account of profit on the sale of unaccounted production or on account of unexplained investment merits to be made in the hands of the assessee. In agreement with the observations of the Commissioner of Income-tax (Appeals) in deleting the aforesaid addition as no independent evidence has been brought on record to establish that the assessee had, (a) suppressed its production and ; (b) it made sale of its unaccounted production, outside the books of account. Upholding the order of the Commissioner of Income-tax (Appeals) we dismiss ground Nos. 1 and 2 raised by the Revenue.
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2012 (2) TMI 411
Issues involved: Appeal by Revenue against deletion of addition made by Assessing Officer, treatment of loss from share transaction as speculation loss, eligibility for set off against other heads of income.
Summary:
The appeal before the Appellate Tribunal ITAT Chennai involved a dispute between the Revenue and the assessee regarding the treatment of a loss from share transactions. The Revenue contested the deletion of an addition made by the Assessing Officer, claiming that the loss should be treated as speculation loss and not allowed to be set off against other heads of income.
The Appellate Tribunal considered the facts that the assessee, a medical practitioner running an ultrasound scan center, had filed her return of income for the assessment year 2008-09, showing income of Rs. 9,65,200. The Assessing Officer assessed the income at Rs. 68,89,899, disallowing the loss of Rs. 24,06,208 from share transactions as speculation loss.
The learned Commissioner of Income-tax (Appeals) allowed the set off of the loss, holding that the transactions were settled by delivery or transfer of scrips, making them eligible transactions carried out in a recognized stock exchange. The Commissioner found that the transactions satisfied the criteria for "eligible transactions" as per the Explanation to section 43(5)(d) of the Income-tax Act, thus allowing the set off against other heads of business or professional income.
The Revenue contended that section 43(5)(d) was not applicable in this case, arguing that the transactions were not derivatives as specified. However, the Tribunal found that the transactions were delivery-based and actual delivery had taken place, leading to the conclusion that the loss was not speculative within the meaning of section 43(5) of the Act.
Ultimately, the Tribunal confirmed the order of the Commissioner of Income-tax (Appeals) and dismissed the appeal of the Revenue. The cross-objection filed by the assessee in support of the Commissioner's order was also dismissed as no grounds were raised challenging the decision.
In conclusion, both the appeal of the Revenue and the cross-objection of the assessee were dismissed by the Appellate Tribunal ITAT Chennai.
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2012 (2) TMI 410
Issues involved: Appeal against deletion of addition u/s 2(22)(e) of the Income-tax Act, 1961.
Summary:
In the present case, the Revenue appealed against the deletion of an addition made u/s 2(22)(e) of the Income-tax Act, 1961 by the learned Commissioner of Income-tax (Appeals). The facts revealed that the assessee-company had shown a certain amount as sundry creditors in its balance sheet, which was explained to be due to non-execution of an order for supply of packing boxes. The issue revolved around whether the provisions of section 2(22)(e) were applicable in this scenario. The learned Commissioner of Income-tax (Appeals) considered various case laws and concluded that the provisions of section 2(22)(e) could only be applied to the shareholder and not to the appellant-company. Consequently, the addition was deleted, and the Assessing Officer was directed to take action in the case of beneficiaries/shareholders.
Upon careful consideration of the facts and submissions, the Appellate Tribunal upheld the findings of the Commissioner of Income-tax (Appeals) and dismissed the Revenue's appeal. Ground No. 1 was decided in favor of the assessee, while Ground Nos. 2 and 3 were deemed general in nature and required no further adjudication. The order was pronounced on February 22, 2012.
In conclusion, the appeal against the deletion of the addition u/s 2(22)(e) was dismissed based on the interpretation that the provisions of this section applied only to the shareholder and not to the appellant-company, as established through relevant case laws and the specific factual circumstances of the case.
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2012 (2) TMI 409
Issues Involved:
Appeal against order of Commissioner of Income-tax (Appeals) regarding waiver of loan amount under section 41(1) of the Income-tax Act, 1961 for assessment year 2003-04.
Comprehensive details of the judgment for each issue involved:
The appeal was filed by the assessee against the order of the Commissioner of Income-tax (Appeals) regarding the waiver of a loan amount under section 41(1) of the Income-tax Act, 1961 for the assessment year 2003-04. The assessee had taken a loan from M/s. TVS Finance and Services Ltd. and reached a one-time settlement during the relevant assessment year, resulting in a waiver of Rs. 30,23,762. The Assessing Officer invoked section 41(1) of the Act to tax this waived amount as income of the assessee. The assessee contended that since the amount was not claimed as a deduction in any earlier assessment years, it could not be brought to tax under section 41(1). The Tribunal agreed with the assessee, stating that for section 41(1) to apply, the amount must have been claimed as a deduction in earlier years, which was not the case here. Therefore, the addition made by the Assessing Officer and confirmed by the Commissioner of Income-tax (Appeals) was deleted, and the appeal of the assessee was allowed. The order was pronounced on February 10, 2012.
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2012 (2) TMI 408
Stay petition - Since both sides agree for co-operation for verification of the document and resolving dispute of Cenvat credit, matter is remanded back to adjudicating authority and the matter shall be resolved by a reasoned and speaking order.
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2012 (2) TMI 407
Validity of Assessment under 147 after Intimation under 143(1) But no notice under 143(2) - Held That:- It is open to Revenue to issue notice u/s 147/148 even if notice u/s 143(2) was never issued or for that matter even if assessment u/s 143(3) had taken place.
Income Escaping assessment 147 - Change of opinion - two business - Seprate books of account maintained - common expense pertaining to all unit claimed for deduction under 80IA - Held That:- whether appellant was entitled to deductions or not, already stood examined, considered and adjudicated by the Assessing officer in the previous years.Its not the case that assessee suppressed information or relevant facts were not disclosed neither it was based on report of audit party. Re-asseement is invalid
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2012 (2) TMI 406
TDS - Assessee develops and markets 3D Solutions - sale of shrink wrap software - Royalty - NO Permanent Establishment(PE) - Held That:- In view of DIT Vs. Ericsson AB, (2011 - TMI - 207919 - Delhi High Court) consideration received by the Assessee for software was not royalty. The receipts would constitute business receipts in the hands of the Assessee. Admittedly the Assessee who is a non resident does not have a permanent establishment and therefore business income of the Assessee cannot be taxed in India in the absence of a permanent establishment. Decided in favour of revenue.
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2012 (2) TMI 405
Deduction under 35(2AA) - Approval pending - Donation claimed in return at 100% and will increase to 125% after approval - Additional ground regarding deduction u/s 35(1)(ii) - Held That:- 35(1)(i) and section 35(2AA) operate entirely in different fields and are mutually exclusive. For claiming deduction under 35(2AA) amount should be paid to National Laboratory, University, and under a programme approved in this behalf by the prescribed authority. In the instant case the amount simply was lying with the IIT but it could not be used for scientific research. However for deduction under 35(1)(i) its not necessary that research to be carried in house. For additional ground we remand case back to CIT if CIT(A) allows claim under 35(1)(ii), AO to give effect and if does not allow the assessee’s claim entire deduction of 143 Laks to be withdrawn.
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2012 (2) TMI 404
Penal Charges paid to Sister Concern towards cost of storage - AO: penal charges not a liability related to business of assessee - Held That:- If expenditure relates to commercial expediency its allowable. As far as penal rent is concerned it should be governed by the agreement entered between two parties. In the instant case, it was not shown by the assessee that the impugned liability was fastened upon it. Decided against assessee.
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2012 (2) TMI 403
Revision under 263 - lack of enquiry - Held That:- There is nothing on record which could show that Assessing Officer had inquired into financial charges paid on the borrowed fund for purchase of property which is forming part of closing stock. Assessing Officer has also not inquired into the method of valuation of stock. Assessing Officer has passed a summary order without looking into the issue of genuineness of transactions relating to sale and purchase of shares of G.R. Industries. - Revision justified.
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2012 (2) TMI 402
Penalty Proceedings - Survey - Incriminating documents found - Surrender of 22,32,000 in statement u/s 132(4) - Tax and Interest not paid while filing return but paid before completion of assessment - Held That:- Penalty cannot be imposed u/s 271(1)(c) of the Act as the assessee has paid tax alongwith interest before imposition of penalty. Reliance placed on CIT Vs. Mahendra C Shah and CIT (2008 - TMI - 3705 - GUJARAT HIGH COURT) Vs. Radha Kishan Goel (2005 - TMI - 10686 - ALLAHABAD High Court)
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2012 (2) TMI 401
Revision u/s 263 by commissioner - Deduction under 80IB - Failure to file audit report - Held That:- In view of 80IA(7) read with rule 18BBB, unless audit report of p/y is furnished no deduction is available. Therefore We have no hesitation in holding that the learned CIT was justified in holding the order of the AO as erroneous in so far as it was prejudicial to the interests of Revenue. Decide against assesee.
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2012 (2) TMI 400
FERA Act, 1973 – violation of the provisions of Sections 8(3) and 8(4) of the Act by four companies - whether banks and their respective employees can be held guilty of abetting Companies for such violation – fresh LC opened even on failure to file BE for prior import - remittance of substantial amounts of foreign exchange against large number of confirmed L/Cs – failure to scrutinse defective import documents – Third bench of Tribunal held in negative – Held that:- The order passed by the Third Member, besides being cryptic, does not take note of all the materials which were on the record of the adjudication proceedings. Therefore, impugned order of the Tribunal based on the decision rendered by the third Member on the points of difference, should be set aside and the appeals be remanded back for hearing afresh – Decided in favor of assessee.
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