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Case Laws
Showing 321 to 340 of 2133 Records
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2018 (2) TMI 1814
Adjustment of amount payable - remittance of the amount - KVAT Act - Amnesty Scheme - Held that:- There is no difficulty in issuing the direction sought by the petitioners, if the first petitioner executes the supplementary agreement required to be executed by them. As far as the work covered by Ext.P2 agreement is concerned, it is admitted by the petitioners themselves that the work has been executed by another contractor. True, the petitioners have made the said contractor as a party to this proceedings and the said contractor has not appeared on receipt of notice. But, according to me, that by itself is not sufficient to issue the direction sought by the petitioners.
The writ petition is disposed of directing the Board to transmit the amounts due to the first petitioner in respect of the work covered by Ext.P1 agreement to the second respondent to be adjusted against the amounts payable by the petitioners in terms of Ext.P6 order, if the first petitioner executes all the requisite agreements/documents for effecting the payments due.
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2018 (2) TMI 1813
Refund claim - BL charges and IHC - denial of refund on the ground that the registration number of the service provider is not mentioned in the invoice - N/N. 41/2007, dated 6-10-2007 - Held that:- The service provider has raised an invoice on the appellant showing the services namely BL Charges and IHC which has been explained by the appellant that these charges have been paid by the appellant for Bill of Lading and Inland Haulage charges. Further, in the invoice, the service tax element has been shown and appellant has paid service tax to the service provider.
The refund claim cannot be rejected to the appellant under N/N. 41/20017, as the appellant has received the services for export of goods - Refund allowed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1812
Provisional release of the seized jewellery - Section 124 of the Customs Act, 1962 - Held that:- The petitioners are directed to deposit 50% of the duty for the value of the gold jewellery seized from them. On such deposit being made, the respondents 2 and 3 shall release the seized items forthwith. It goes without saying that the petitioners shall cooperate with the adjudication proceedings that may be initiated by the respondents - petition allowed.
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2018 (2) TMI 1811
Addition as Income from Other Sources - eligibility for the purpose of calculation of deduction under Sections 10A and 10B - Held that:- RIVIERA HOME FURNISHING VERSUS ADDL. COMMISSIONER OF INCOME TAX, RANGE 15 [2015 (11) TMI 1139 - DELHI HIGH COURT] held that Section 10A/10B of the Act is a complete code providing the mechanism for computing the "profits of the business" eligible for deduction u/s 10B of the Act. Once an income forms part of the business of the income of the eligible undertaking of the assessee, the same cannot be excluded from the eligible profits for the purpose of computing deduction u/s 10B - Decided in favour of the assessee and against the Revenue
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2018 (2) TMI 1810
Penalty u/s.271(1)(c) - non specification of charge - Held that:- Omission by the AO to explicitly specify in the penalty notice as to whether penalty proceedings are being initiated for furnishing of inaccurate particulars or for concealment of income makes the penalty order liable for cancellation. CIT vs. SSA’s. Emarld Meadows [2016 (8) TMI 1145 - SUPREME COURT] followed - In the present case having regard to the manner in which the Assessing Officer has issued notice under section 274 r.w.s. 271(1)(c) without striking off the irrelevant words, the penalty proceedings show a non-application of mind by the Assessing Officer and is, thus, unsustainable.- Decided in favour of assessee
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2018 (2) TMI 1809
Condonation of delay in filing appeal - proceedings have been initiated for realisation of the penalty imposed on him - Held that:- It is deemed appropriate to dispose of the writ petition directing the fourth respondent to consider Ext.P9 application for condonation of delay in filing Ext.P5 appeal - appeal disposed off.
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2018 (2) TMI 1808
Investments made by the bank in security as stock in trade - whether Tribunal is right in law in confirming the order of CIT (Appeal) in treating the securities held by the assessee under the category of “held to maturity” as held in the nature of stock in trade? - Held that:- Substantial questions of law against the revenue and in favour of the assessee.
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2018 (2) TMI 1807
Promotion to the grade of UDC - the respondent had been notionally promoted to the grade of UDC with effect from 23rd August, 1999 by Pune-1 Commissionerate and was placed at serial No.358A in the seniority list of UDCs as on 1st January, 2002 - Held that:- Respondent has been given notional promotion from 2002. The respondent pursuant to the notional promotion, has joined on the promotional post and since then he has been receiving all the consequential, ancillary and incidental benefits arising from the date of notional promotion on 6th December, 2002 as in the case of other persons - It does not appear in the facts of the case, that the respondent has been ignored for promotion or for that matter there had been no reason for not giving promotion to the respondent, as observed by the tribunal. The tribunal appears to be oblivious of prevailing facts and circumstances from time to time, as have been referred to by the petitioner. The tribunal's order does not take into account all these aspects which would have bearing in the matter.
Having regard to the attending circumstances, inter-alia, the others to whom also notional date of promotion is given, financial benefits are not given from such a date - we do not see that the impugned decision rendered by the Chief Commissioner for Persons with Disabilities, new Delhi is sustainable on facts and in the circumstances and the position as would be obtaining from the developments taking place from time to time - petition allowed.
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2018 (2) TMI 1806
Disallowance u/s 14A read with Rule 8D - Held that:- Own funds available in the form of capital and reserves and surplus were ₹ 15769.49 lacs and whereas the investments in mutual funds were only ₹ 43.81 lacs as on 31.03.2010. The net profit earned during the year and available for appropriation was ₹ 1736.90 lacs. These facts clearly prove that the investments were made only out of own funds. Accordingly, we hold that the CIT(A) rightly deleted the disallowance made under second limb of Rule 8D(2) of the Rules. With regard to the disallowance made under third limb of rule 8D(2), we hold that only dividend bearing investments in shares and mutual fund debt schemes should be considered by the ld. AO for working out the disallowance at 0.5% of average value of investment. This finding is in consonance with the decision rendered by this Tribunal in REI Agro Ltd. [2013 (9) TMI 156 - ITAT KOLKATA].
Disallowance of provision for leave encashment - neither statutory liability nor contingent liability - disallowance u/s 43B(f) - Held that:- We find that though the Hon’ble Calcutta High Court in the case of Exide Industries Ltd vs Union of India [2007 (6) TMI 175 - CALCUTTA HIGH COURT] had struck down the provisions of section 43B(f) of the Act as unconstitutional. The revenue had carried the matter further to the Hon’ble Supreme Court in [2008 (9) TMI 921 - SUPREME COURT] it could be inferred that the Hon’ble Supreme Court had not stayed the judgement of the Hon’ble Calcutta High Court during Leave proceedings. But the Hon’ble Supreme Court had only passed an interim order on the impugned issue. Hence we deem it fit and appropriate , in the interest of justice and fair play, to remand this issue to the file of the ld AO to pass orders based on the outcome of the main appeal on merits by the Hon’ble Supreme Court as stated supra. Accordingly, the Ground No. 2 of assessee appeal for Asst Year 2010-11 is allowed for statistical purposes.
Addition towards provision for mark to market loss - Held that:- CIT(A) has applied this decision of the Tribunal in the assessee’s own case and granted relief. We find no infirmity in the same and dismiss this ground of the revenue.” Accordingly, we find that the assessee would be given double deduction if relief is granted in assessment year 2010-11 for the very same provision of ₹ 2,12,48,372/-, Hence, we hold that the Ld. CIT(A) had rightly dismissed the plea of the assessee.
Disallowance of other income while computing the deduction u/s 10B - Held that:- The details of other income to the tune of ₹ 18,20,101/- as detailed hereinabove pertains to 100% EOU as could be evident from the segmental profit and loss account of 100% EOU furnished by the assessee before the lower authorities. Hence the entire other income becomes the profits of the business of the undertaking (i.e 100% EOU) . Then automatically the assessee is entitled for deduction as per the computation mechanism provided in section 10B(4) of the Act.
Disallowance of additional depreciation - use for a period of less than 180 days - Held that:- The assessee is entitled to claim 20% of depreciation equal to the actual cost of plant and machinery, but, where as the 2nd proviso to section 32(1) of the Act restrains the authority to allow depreciation to 50% of such 20% if the subjected plant and machinery acquired during the previous year and is put to use for a period of less than 180 days in that previous year. According to AO in his order at page no-4 referred that the assessee put to use new plant and machinery for less than 180 days and confirmed by the CIT-A in para-8 of impugned order and it is a requirement under 2nd proviso to section 32(1) which lifts the restriction on AO allow the further depreciation of 10% of which remained unclaimed out of 20% as referred in Clause (iia) to sub-section (1) of section 32 of the Act - As relying on CIT & Anr Vs. Rittal India Pvt. Ltd. [2016 (1) TMI 81 - KARNATAKA HIGH COURT ] assessee is entitled to claim remaining 50% depreciation of such 20% which is equal to the actual cost of new plant and machinery, accordingly ground no-1 raised by the assessee is allowed.
Disallowance of provision for mark to market loss - Held that:- Loss incurred on restatement of foreign currency liabilities in conformity with exchange rate prevailing on the balance sheet date is not a contingent liability but defined and ascertained liability and therefore the loss incurred on restatement is liable to be allowed in the case of an assessee who follows mercantile system of accounting. Further such loss is allowable if the underlying asset or underlying liability is incurred on trading account. In the appellant’s case, it had entered into foreign exchange forward contracts for hedging exchange fluctuation risks in respect of export orders. As such the underlying transaction in relation to forward contract entered into by the assessee was trading transaction and therefore any loss connected with such trading transaction and was in the revenue field and therefore to be allowed in view of the ratio laid down by the Hon'ble Supreme Court in the case of CIT vs. Woodward Governor India (P) Ltd. (2006 (1) TMI 68 - GUJARAT HIGH COURT ) and O.N.G.C. vs. CIT (2010 (3) TMI 81 - SUPREME COURT ).
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2018 (2) TMI 1805
Disallowance in respect of payment made to retired partners - overriding title to the ex-partners or spouses of deceased partners (herein referred to as ‘retired partners’) as per partnership deed - Held that:- We find from the perusal of the partnership agreement of the assessee herein, the continuing partners cannot carry on business without making the payment to retired partners. Similarly there is no clause in the partnership agreement of the assessee which enables the continuing partners to carry on the business with majority partners consent. Hence it could be safely concluded that the decision of S.B.Billimoria [2008 (12) TMI 671 - ITAT MUMBAI] is factually distinguishable. Case of CCIT vs C.C.Chokshi & Co.[2008 (7) TMI 1055 - BOMBAY HIGH COURT] to be followed. No infirmity in the order of the CIT-A in this regard. Accordingly, the grounds raised by the revenue are dismissed.
Disallowance of interest on TDS - belated payment of TDS - Held that:- Assessee had merely made belated payment of TDS belonging to the payees and not the assessee. Hence the said interest which was paid for delayed remittance of TDS is only compensatory in nature. The decision relied upon by the ld CITA was in the context of payment of interest on payment of direct taxes and since the direct tax payment is not an allowable expenditure, the interest paid thereon is also not an allowable deduction. But the assessee had only made payment of professional fees to third parties on which tax has been deducted at source and remittance was made belatedly to the account of the central government. Hence the TDS does not belong to the assessee and instead it belongs to the payee. Hence the said TDS / tax belongs to the payee. The assessee had merely made compensatory payment of interest on delayed remittance of TDS which is squarely an allowable deduction in the computation of income of the assessee firm.
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2018 (2) TMI 1804
Addition on statement u/s 133A - estimating the income of the assessee on basis of the statement recorded during survey - assessee had offered a higher amount of income at the time of survey - whether ostensibly was not based on any account books, but was merely an estimation - return of income as “fabricated” - Held that:- CIT(A) has not appreciated the facts in their proper perspective. Even if one is to discount the date on which the assessee filed the letter of retraction, it goes without dispute that the return of income itself was filed by the assessee on 29.03.2007, based on the audited account books, and we find no reason to affirm the observation of the CIT(A) that the audit report dated 23.03.2007 was fabricated.
Much has been written by the lower authorities on this aspect, but we find that when the entire account books alongwith the supporting documents were available for verification by the Assessing Officer in the remand proceedings, nothing adverse has been brought out. Even the CIT(A) has not found anything amiss with the quality of audited account books or the supporting documents, which were available on record and, therefore, in our view, there was no justification for having rejected the income deduced by the assessee from the project in its return of income. Accordingly, we hereby set-aside the order of CIT(A) and direct the Assessing Officer to delete the addition - decided in favour of assessee.
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2018 (2) TMI 1803
Transfer pricing adjustment - rejection/selection of some of the comparables - functinal similarity - Held that:- The assessee an Indian company is engaged in the business of providing non-binding investment advisor services to its Associated Enterprise (A.E) General Atlantic Service Corporation, USA thus companies functionally dissimilar with that of assessee need to be deselected from final list.
As AR has submitted before us that on inclusion of ICRA Management Consulting Services Ltd., IDC (India) Ltd. and exclusion of Ladderup Corporate Advisory Pvt. Ltd. and Motilal Oswal Investment Advisors Ltd., assessee's margin will fall within +/- 5% of the average margin of the remaining comparables. In view of the aforesaid submissions of the assessee, the issue relating to comparability of Crisil Rest and Infrastructure Solutions Ltd. being of mere academic nature is not required to be deliberated upon. Grounds raised by the assessee are partly allowed and ground raised by the Department is dismissed.
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2018 (2) TMI 1802
Reopening of assessment - valuation of closing stock - ITAT affirmed the CIT’s opinion but held that the re-assessment was unwarranted - Held that:- This Court is of the opinion that these arguments are untenable in view of the subsequent decision of the Supreme Court in CIT Vs. Kelvinator of India Ltd [2010 (1) TMI 11 - SUPREME COURT OF INDIA] with regard to the permissible framework within which the Revenue Authority can issue re-assessment notice.
Nevertheless, the Court has also considered all the relevant previous decisions especially in the light of the amendments to Section 147 which has also inserted Explanation 1. No question of law
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2018 (2) TMI 1801
Suppression of turnover - Estimation to the turnover for probable omission and suppression - Rejection of accounts - no further transactions of suppression having been detected by the Assessing Officer - Held that:- We are unable to sustain the view taken by the Tribunal, insofar as relegating the assessee to the Assessing Officer after having sustained the taxable turnover on the suppression detected. There can be no further re-assessment made on the basis of the result of the criminal case.
The challenge in the aforesaid revision is of the State against the complete deletion of the estimation made - The deletion was not proper, especially since the actual suppression detected has been sustained by the Tribunal and there is no challenge to that by the assessee. Hence, the question of law is answered in favor of the Revenue and against the assessee - The order of the Tribunal is modified to the extent of setting aside the deletion of estimation as also the direction enabling the assessee to approach the assessing authority on the basis of the outcome of the case pending before the Court of Judicial First Class Magistrate-I, Palakkad.
Revision allowed.
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2018 (2) TMI 1800
Provisional Attachment of Bank Accounts of petitioners - GVAT Act - CST Act - section 45 of the GVAT Act - Held that:- For the purpose of invoking section 45 of the GVAT Act, the Commissioner is required to record satisfaction that for the purpose of protecting the interest of the Government revenue, it is necessary to provisionally attach any property belonging to the dealer. Such satisfaction has to be based upon objective facts and should fall within the circumstances enumerated in the above referred decision or circumstances which are akin to the circumstances enumerated therein.
In the present case, no satisfaction whatsoever as envisaged under section 45 of the GVAT Act has been recorded by the Commissioner while ordering provisional attachment of the petitioners’ bank accounts. Also, the assessment order has not yet been passed - it is evident that the action of attaching the bank accounts of the petitioners has been taken in a perfunctory and casual manner without application of mind to the relevant statutory provisions.
The action of the respondents of attaching the bank accounts of the petitioners’ stands vitiated by non-application of mind to the relevant factors and other infirmities - petition allowed.
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2018 (2) TMI 1799
Classification of imported goods - parts of Air-Conditioner - the case against A2 [Sanjay Kakkar] was quashed on a technical ground for want of proper sanction to prosecution - Held that:- Quashing of complaint on technical reason for want of sanction will not ensure any benefit to the co-accused. It is now well settled by catena of the judgments that when the prosecution has placed before the trial Court prima facie material for the trial, the Court cannot probe into the records summarily and discharge the accused persons. In this case, the material placed by the prosecution, if proved to be true it will lead to conviction.
The observation of the Commissioner in the adjudication proceedings that there was no loss to the State cannot be considered at this juncture, because on going through his report, though he has discussed at length about various proposition of law, he has not addressed the core issue of mis-declaration of goods and wrong reference of Tariff code.
This Court holds that order of the Trial Court is legally sustainable and need no interference - petition dismissed.
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2018 (2) TMI 1798
Release of detained goods - Rule 140(1) of the KGST Rules, 2017 - Held that:- Identical matter has been disposed of by a Division Bench of this Court in THE COMMERCIAL TAX OFFICER AND THE INTELLIGENCE INSPECTOR VERSUS MADHU. M.B. [2017 (9) TMI 1044 - KERALA HIGH COURT], directing expeditious completion of the adjudication of the matter and permitting release of the goods detained pending adjudication, in terms of Rule 140(1) of the Kerala Goods and Services Tax Rules, 2017 - petition disposed off.
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2018 (2) TMI 1797
Maintainability of appeal - non-Compliance with pre-deposit on the part of Director - case of Revenue is that Director being a separate legal entity against whom penalty has been imposed, is required to make separate pre-deposit in terms of Section 35F - Held that:- Under Section 35F of the Central Excise Act, payment of deposit at the rate of 7.5% of the demand is mandatory before the appeal can be entertained - the Private Limited Company as well as its Directors are to be considered as separate entities and since separate penalties have been imposed, the Director is required to make a pre-deposit of 7.5% of the penalty imposed on him before the appeal filed by him can be entertained - application dismissed.
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2018 (2) TMI 1796
Benefit of N/N. 10/2003-C.E., dated 1-3-2003 - Process of manufacture of decorative plywood/fibre board, flush doors, panel doors etc. - Held that:- The Tribunal in the case of CCE, Meerut v. Simba FRP (P) Ltd. [1999 (12) TMI 452 - CEGAT, NEW DELHI] held that the process of manufacture of doors are different. Both are classified under separate heading not only in the Bureau of Indian Standards (BIS) but also by the Customs Tariff Act. The flush doors and panel doors are technically and commercially different processed. In the market among dealers, builders, construction engineers, architects, etc., both items are identified separately and used differently.
Both doors are different - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1795
Refund of excess duty paid - unjust enrichment - demand of Interest - Held that:- In the absence of any other contrary evidence to show that the excess amount paid by the appellant is recovered from anyone, the impugned order holding that the doctrine of unjust enrichment has not been satisfied, is incorrect and impugned orders are liable to be set aside.
Refund of Interest - Held that:- Both the lower authorities have not considered the issue in its correct perspective, as the amount of interest which has been paid by the appellant is due to faulty assessment of imported goods - the interest liability which has been demanded when the consignment was cleared was not due and is not correct - the interest paid by appellant which has been charged by Revenue, needs to be refunded to appellant.
Appeal allowed - decided in favor of appellant.
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