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Case Laws
Showing 321 to 340 of 639 Records
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2010 (6) TMI 535
Refund - the grounds of appeal were very much available when the review order was passed and the impugned order of the Commissioner (Appeals) is factually incorrect - Since no decision has been passed on merits of the refund to the assessees we set aside the impugned order insofar as it relates to the present respondent and remit the case to the lower appellate authority for fresh decision on the merits of the case - The appeal is thus allowed by way of remand for passing orders as expeditiously as possible
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2010 (6) TMI 534
Confiscation - Provisionally released on execution of a bond and security by M/s. Radha Enterprises - Demand - The evidence on record especially the statements of drivers of the trucks which carried the goods on different dates clearly point to removal of goods from M/s. Amar Food Products without preparing excise invoices and without payment of duty - show cause notice has been issued on 7-4-98 much after the date of provisional release of the goods that is 28-9-97 - The role of M/s. Radha Enterprises in abetting the unaccounted clearances by M/s. Amar Food Products is evident from the seizure of the goods from the trucks on three different dates coming from M/s. Amar Foods Products with the invoices of M/s. Radha Enterprises as clearly admitted by the drivers - Therefore, the penalty on them is justified - Decided against the assessee
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2010 (6) TMI 529
Refund of Cenvat credit - The impugned order allowed the claim for refund - The procedure prescribed in Notification No. 5/2006-C.E. (N.T.) dated 14-3-2006 issued in terms of Rule 5 of the Cenvat Credit Rules, 2004 - Revenue seeks stay of operation of this order and restore the order of the original authority. Held that: the Tribunal followed a judgment of Hon’ble M. P. High Court wherein it was held that law of limitation under Section 11B of the Central Excise Act did not apply to refund of Cenvat credit accumulated owing to export of finished goods - Hence, the Revenue’s application for staying the operation of the impugned order and the same is rejected.
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2010 (6) TMI 528
Refund on short shipped - The invoice covered two varieties of mother boards - Bill of Entry was filed by the assessees for both types of mother boards and duty payable on them was paid - The goods in this case were not subject to examination and the assessees noticed only one variety of the mother board had landed and there was a short shipment of the entire quantity of the second variety of mother board - The authorities rejected their claim for refund on the ground that there was no examination of the goods and from the airway bill the number of packages is same as that mentioned in the Bill of Entry and as contended by the appellants - It is clear from the documentary evidence that the goods in the packing list with only one variety of mother board were shipped - the importer has been able to produce contemporaneous documents to bring out the fact of short shipment - Held that the importer is entitled to refund on short shipped mother boards - Hence, set aside the impugned order and allow the appeal.
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2010 (6) TMI 525
Revision - Deduction u/s 10A - Export turnover - Exclusion of “freight, telecommunication charges or insurance attributable to delivery of articles or things or computer software outside India, or expense, if any, incurred in foreign exchange in providing the technical services outside India - The claim of the assessee has been that the reimbursements have been made on actual basis, without any involvement of profit element, and even the Commissioner has not disputed the same - Tribunal, in the case of Siemens Information Systems Ltd Vs Addl CIT (2010 -TMI - 204017 - ITAT MUMBAI BENCH ‘I’), has, on materially identical facts and by following Special Bench decision in the case of ITO Vs Sak Soft Limited (2009 -TMI - 70680 - ITAT MADRAS-D) quashed the revision proceedings - In the result, the appeal is allowed - Decided in favor of assessee.
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2010 (6) TMI 524
DTAA - Referring to Sec.9(1)(vii) of the IT Act, the learned departmental representative submitted that all types of payment constitute fees for technical services, therefore no deduction of any expenses would be allowed in case the assessee receives any amount in the guise of reimbursement of expenditure - From the above clauses of the agreement it is obvious that the expenditures narrated above are to be reimbursed to the assessee by NHAI in foreign currency and in local currency - Therefore, the expenditure reimbursable by the NHAI is the liability of the NHAI and not that of the assessee - this reimbursable expenditure cannot form part of the fee payable for technical services A per diem allowance for each of the export personnel for every day in which such personnel shall be absent from his home office and shall be outside India for the purpose of service at the daily rates - As a part of the arrangement the US company leases to the Indian company a piece of equipment which allows the Indian company to ensure the level of bacterial deposit on its machinery in order for it to which when cleaning is required - Accordingly, the cleaning services are not included services within the meaning of paragraph 4(a) Regarding 115A - In fact, the expenditure incurred by the assessee in the course of carrying on its activities in India cannot be deducted in view of section 115A(3) - Therefore, section 115A(3) also has no application at all As observed by the CIT(A), fee received by the assessee towards technical services/ consultancy would fall under Article 12 and not under Article 7 - In the result, all the appeals of the Revenue stand dismissed
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2010 (6) TMI 523
Slump sale or demerger - Depreciation – Addition u/s 40(a) and 43B - AO has observed that the scheme approved by the Hon’ble High Court u/s 391 to 394 of the Companies Act fulfils all the conditions stipulated u/s.2(19AA) of the Act - The AO has further held that s per Explanation 7A to Section 43(1), the actual cost to the assessee shall be taken to be same as it would have been if the demerged company had continued to hold the capital asset for the purpose of its own business - AO has held that the purpose of enhancement of the actual cost to the assessee is for the purpose of reduction of tax liability by claiming high depreciation - Company is not fulfilling the conditions laid down at clause (iii), (iv) & (v) to section 2(19AA), therefore, it cannot be held as a case of demerger - Therefore, the value adopted by the company on the basis of revaluation of the assets is to be considered for depreciation purpose Regarding depreciation on brand and goodwill u/s 32(1)(ii) – From the above it can be seen that trade mark or brand name has been used in conjunction and as an alternative to each other - Thus it can be concluded that even the legislature has intended that brand name or trade mark are similar intellectual properties - “Brand” falls within the ambit of section 32(1)(ii) of the I.T. Act and that the assessee is eligible for depreciation on the same - As far as goodwill is concerned, the assessee shall not be entitled to depreciation - Appeal is partly allowed Regarding the disallowance of expenditure - The AO has disallowed the claim of the appellant company on the plea that the company was started in the year under consideration and the question of allowing the expenditure incurred in the earlier years does not arise - Since the expenditure disallowed u/s. 40(a) and 43B of the I.T. Act is to be allowed on actual payment basis, therefore, it has to be allowed either in the case of the transferor company or the transferee company - Hon’ble Mumbai Tribunal has decided the issue in the case of M/s Anil Engineering Corporation vs. ITO 50 ITD 99 where it is held that the transferee of the business would be eligible to claim the deduction in respect of the liability taken over from the transferor for which the payment was made by the transferee subsequently - Therefore, this ground of appeal is allowed in appellant’s case
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2010 (6) TMI 522
Penalty – Addition of income - Bogus purchase – Unexplained cash credit – Brokerage expense - In respect of bogus purchases of Rs.3,75,984 the assessee claimed that these purchases are made from M/s Chandrakala Prints for Rs.1,92,036/- and from M/s Neminath Silk Mills for Rs. 1,83,948 - Payments were claimed to have been made through account payee cheques - On perusal of purchase and sale bills, it is seen that there is no difference in the quantity and quality of goods and contention of ld. AR is found to be correct - it is also seen that assessing officer has also failed to bring any evidence on record which indicates that assessee has not made purchases from above two parties - Accordingly that addition made by the AO is hereby deleted Regarding bogus gift - After carefully going through the observations of the AO and the arguments of ld. AR, it is seen that all the donors who made gifts to assessee’s minor sons are found to be parties of no means by the ld. AO - It is also seen that assessee has failed to produce the donors before AO and thus we do not find any reason to interfere with the findings of CIT(A) and accordingly the addition is confirmed – Appeal is dismissed In respect of bogus expenses - After considering the entire facts of the case, we are of the opinion that ld. CIT(A) has rightly confirmed the action of AO in making addition as assessee has failed to prove the nature of service rendered by the broker - Thus, the genuineness of expenditure is not fully verifiable and therefore, addition is confirmed Regarding penalty u/s 271(1)(c) - The case of the assessee is also covered in terms of Explanation -1(B) if we treat that explanation furnished by the assessee during the course of assessment proceedings as the explanation assessee could have furnished in response to show cause notice before levy of penalty - It was held that explanation raised rebuttable presumption and the burden which is cast on an assessee is akin to a civil burden which may be discharged on a preponderance of probabilities - S. 271(1)(c) applies where the assessee “has concealed the particulars of his income or furnished inaccurate particulars of such in - . In the result, the appeal filed by the assessee is partly allowed
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2010 (6) TMI 517
DTAA - Reassessment - Income escaping assessment - Addition - Short term capital gain - Tax evasion - There is no dispute that the assessee was liable to be taxed in India in the relevant assessment year, and there is also no dispute that an asset belonging to the Indian PE of the assessee company, on which depreciation was claimed in India, was also sold in the previous year relevant to this assessment year - The assessee was taxable in India in respect of its PE, and therefore, the assessee was under an obligation to share all the facts relevant to its Indian PE – whether in respect of business profits or under any other head of income - On the facts of the present case, therefore, it cannot be said that the assessee had fully and truly disclosed all the material facts necessary for his assessment - Decided in the favour of the assessee Regarding taxability of gains - Held that: under the domestic law as also under the applicable tax treaty, the assessee is liable to be taxed in respect of gains on sale of PE assets - It is thus clear that the movement of rig to the international waters was clearly connected with and consequent to sale of the rig, and necessary for fulfilling part of seller’s obligations under the sale contract - That finding is, of course, without prejudice to our understanding, based on the reasoning discussed earlier in this order, that even deferral of sale or receipt of sale consideration, on sale of PE or PE assets, does not influence the tax liability in connection with sale of PE or its assets - Appeal is dismissed
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2010 (6) TMI 516
Carry forward or set off of unabsorbed depreciation - whether depreciation for assessment years 1997-98 to 1999-2000 which could not be absorbed, can be set off against `Income from other sources’ in assessment years 2003-2004 and 2004-2005 - Section 32(2) deeming the unadjusted depreciation allowance of the current year as the current depreciation allowance of the following year, is subject to the provisions of section 72(2) and section 73(3) - It is this clarification by the Finance Minister that sealed the fate of the unadjusted brought forward depreciation upto the end of the first period as available for set off against taxable profits or income under any other head for the assessment year 1997-98 and seven subsequent assessment years - it is obvious that section 32(2) is a deeming provision and by the legal fiction, the amount of depreciation allowance u/s.32(1) which is not fully absorbed against income for that year is deemed to be the part of depreciation allowance for the succeeding year - As the assessee is seeking to claim the set off of such brought forward unabsorbed depreciation allowance against income under the head `Income from other sources’, that cannot be accepted - Accordingly decided against the assessee
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2010 (6) TMI 513
Rectification of mistakes - Disallowance made by the AO u/s 40(a)(ia) in respect of the payment against which the TDS was deduced in the month of March 2005 and deposited before the due date of filing of the return - AO has allowed the deduction only to the extent of Rs..2,83,43,188/- and maintained the disallowance of the balance expenditure on the ground that only above amount is paid on the month of march and the balance of amount is paid earlier - Since in the case in hand when the assessee had deducted the tax in the last month of the previous year i.e March 2005 and deposited the same before the due date of filing of the retune u/s 139(1) then it is covered under clause “A” of section 40(a)(ia) - Regards the decision relied upon by the learned DR when the proviso to section 40(a)(ia) is not contrary to the main section/enactment then the said decision will not help the case of the revenue.
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2010 (6) TMI 512
Income from house property or other sources or business income - Unaccounted cash credit - Set off and carry forward of losses - Held that:- The main intention of the assessee as is evident from the terms and conditions of the relevant agreements was to derive income by the exercise of property rights in the form of fixed monthly rent - The property thus was given by the assessee on leave or licence basically for earning income there from in the form of rent and the character of income so derived was income from house property falling u/s 22 as held by the authorities below - On this basis, the rental income, can reasonably be bifurcated as 80% for land and building and 20% for other assets and the same can be taxed under the head “income from house property” and “income from other sources” respectively Deduction of expenses - assessee is claimed to have incurred the major expenditure on account of interest in respect of funds borrowed for acquisition of assets - On verification, if it is found that the corresponding funds were borrowed for acquisition of land and building, the interest paid thereon has to be allowed as deduction while computing income from house property - matter remanded back for verification. Regarding unaccounted cash credit - no opportunity was specifically given to the assessee either by the A.O. or by the ld. CIT(A) to produce the cash book in order to establish the availability of cash on the relevant dates to make deposit in the bank account - Decided in the favour of the assessee by way of remand Regarding set off of brought forward business loss and unabsorbed depreciation is consequential to the main issue relating to the head of income under which rental income is chargeable to tax - the assessee will not be entitled to claim any set off of brought forward business loss and unabsorbed depreciation since there is no income chargeable to tax in its hands under the head “profits and gains of business - Decided against the assessee
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2010 (6) TMI 510
Business income or capital gain - The dispute is regarding nature of income from share transactions in delivery based shares entered into by the assessee during the year - In addition to the business as share broker from which the assessee has received brokerage income, the assessee has also been undertaking transactions in shares in his proprietary capacity - The true nature of transaction can be understood from the intention of the assessee at the time of purchase - Though frequency and volume are indicative of a trading transaction, the same are not conclusive - No shares sold have been held for more than one year as the entire capital gain has been shown as short term capital gain - Thus the assessee has been selling the share on average profit of about .5% which can happen only in a trading transaction and not in investments It has also been argued that the assessee had received increased dividend of Rs.94,31,290/- compared to Rs.44,51,213/- in the immediate preceding year which shows that the assessee was making investment in shares from this year - The dividend is an incidental income even in trading transaction because the assessee will receive dividend in case of purchases made before the record date even if the purchases are held for a short period - In this case considering the assessee had made purchases worth about Rs.3500 crores the dividend is negligible and is only an incidental income relating to the trading activity It is true but in order to hold that the assessee remained an investor it has to be shown from the circumstances of the case that the assessee was not purchasing and selling as a trader to make profit - It was held that the dominant object for acquiring right shares and renouncing of some shares and selling of some new shares was to prevent eroding the value of capital as after the right issue the value of original shares was bound to depreciate - Accordingly decided in the favour of the assessee as a trader Regarding depreciation on membership card of BSE - the issue raised is covered against the assessee by the judgment of Hon'ble High Court of Mumbai in case of Techno shares and Stock Ltd. (2009 -TMI - 34562 - BOMBAY HIGH COURT). The assessee in that case had claimed that BSE card was an intangible asset and therefore depreciation was allowable in view of the provision of section 32(l)(ii) as per which depreciation was allowable in respect of intangible assets from 1.4.1998 Regarding interest paid on arrear of SEBI turnover fees - where a particular percentage of turnover is charged as turnover charge, the latter was of the nature of tax, duty, cess or fees which come within the purview of section 43B - Accordingly decided in the favour of the assessee
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2010 (6) TMI 507
Confiscation and penalties - Import and Export Code - Martin was the real importer and that Alexander who possessed an Import and Export Code was not the importer and in the absence of possession of of IE code by Martin, contravention of Section 7 of the Foreign Trade Development and Regulation Act, 1992 - Alexander possesses a valid IE Code and he had filed the Bill of Entry for the goods in question - Hence, there is no reason not to treat Shine Enterprises (Proprietor Shri Alexander) as the importer - Therefore, set aside the confiscation and the penalties on both the appellants and the appeals are allowed.
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2010 (6) TMI 506
Demand - Adjustment of taxes paid - when adjudication in this case was done on 24th April 2006, learned Adjudicating Authority had no advantage of going through the decision of the Tribunal in appeal case No. 472-473 of 2006 in M/s. Jain Grani Marmo Private Ltd. and Another decided on 17-2-2009 - it has been considered proper to enable Revenue to examine Revenue implications of the additional ground and to do justice to both sides - Miscellaneous application and Appeals are disposed of remanding the matter to the learned Adjudicating Authority for redoing the adjudication following aforesaid direction
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2010 (6) TMI 503
Depreciation - Capital or revenue expenditure - Expenditure incurred on leased premises - the expenditure incurred by the assessee is only for carrying on the business of exhibiting feature films - it is not in dispute that the expenditure was incurred for earth filling, repair of chairs, replacement of damaged chairs, repair of underground slump, drainage and cable work, wall paper fixing, dust opening repair, carpentry and plumbing, repair of false ceiling, etc - The Apex Court after referring to earlier decision in the case of Assam Bengal Cement Co. Ltd. vs. CIT (1954 -TMI - 49686 - SUPREME Court) found that the expenditure incurred by the assessee was in the process of profit earning - Accordingly expenditure are treated as a revenue expenditure - Decided in the favour of the assessee
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2010 (6) TMI 501
Penalty - The assessee is a company engaged in the business of, inter alia, investment, horse breeding, and horse racing - The expenses were quantified at56,44,906, though in appeal the quantum of these expenses was reduced to18,25,828 - The Assessing Officer further observed that, in terms of provisions of Section 74A of the Income Tax Act, the expenses so incurred on maintenance of race horses could only be set off against gains from race horses - mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding income of the assessee – Held that appeal is allowed impugned penalty is set aside
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2010 (6) TMI 499
Recovery of tax – Hindu undivided family – Firm – Hindu undivided family or individual property – Karta of HUF becoming partner in Firm – Finding that he had become a partner in his individual capacity – HUF properties could not be attached in proceedings for recovery of tax due by firm - He never joined as a partner in the arrack business of M/s. Visakha Gowda Association in the capacity as a joint family manager and karta and that he had joined as a partner in the said firm in his individual capacity - Appeal is dismissed
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2010 (6) TMI 497
Addition of income – Gift genuine / non-genuine - Condonation of delay - The AO was not satisfied about the identity of the donor or their creditworthiness and the genuineness of the gifts as no evidence was furnished before him - Once onus is not discharged the addition has to be made under section 68 – As a result the appeal of the assessee is dismissed
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2010 (6) TMI 495
Release of goods - Conditions - Hence, the issues involved in this writ petition is covered by the order of this Court, dated 29.12.2010, in W.P.Nos.30153 and 30154 of 2010, wherein, this Court had directed the respondents therein to release the goods concerned, subject to certain conditions - The petitioner shall pay the entire amount of duty to the Department forthwith, as per the declared value which may be based on the contract or price etc - the petitioner shall provide sufficient bank guarantee, to the satisfaction of the respondents - In respect of the remaining 50% of the difference in duty, the petitioner shall furnish a personal bond to the satisfaction of the respondents
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9911796707
