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Showing 341 to 360 of 2855 Records
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2015 (10) TMI 2523
Refund claim - Notification No. 51/94-C.E. (N.T.), dated 22-9-1994 and Notification No. 45/2001-C.E. (N.T.), dated 26-6-2001 - duty paid on export - payment is received in freely convertible currency and the procedure laid down is fulfilled - bond for clearance of goods under above notifications, not executed by the appellant - Held that:- Needless to say the condition to execute bond is incorporated in the notification to safeguard the revenue when the export is made without payment of duty. In the present case, the goods have been exported after payment of duty. The execution of bond, in such case, would be a futile exercise. The second condition of receiving payment in foreign currency is undeniably fulfilled by the appellant. Therefore, by applying the ratio of decision of Apex Court in the case of Share Medical Care v. Union of India [2007 (2) TMI 2 - SUPREME COURT OF INDIA], even if the assessee does not claim benefit under particular notification initially, he is not debarred from claiming such benefit at the later point of time. Hence, we are able to reach inescapable conclusion that the appellant is entitled for refund. - Decided in favour of appellant
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2015 (10) TMI 2522
Whether the impugned order has examined that dispute in the present matter in the light of the direction issued by this Tribunal - adjudicating authority has approved the action of the Board in amending the anomaly in the circular of 25th April 2005 by circular of 16th June 2005 and has invalidated the decision of the Larger Bench in re Eicher Tractors [2005 (9) TMI 340 - CESTAT, NEW DELHI] - Commissioner has not discharged the directions of the remand - Held that:- The Larger Bench was seized of the earlier decision of the Tribunal in re Eicher Tractors holding that fresh valuation at the time of removal would not be in conformity with the statute as the goods have already borne the burden of duty of excise. Further, the genesis of the reference to the Larger Bench was also a matter of consideration. Above all else was the factum of rescinding of the erstwhile Central Excise Rules, 1944 with effect from 1st July 2001 and subsequent notification of the CENVAT Credit Rules, 2002. Taking note of a clarification issued by the Central Board of Excise & Customs in circular no. 6/39/2000-CX-I dated 1st July 2002 for handling removal of inputs effected under erstwhile provisions by categorizing them for determining value under section 4 of Central Excise Act, 1944 and the subsequent clarification in circular no. 813/10/2005 dated 25th April 2005, the Larger Bench confirmed that the latter prevailed and continued to prevail, notwithstanding the circular of 16th June 2005, in view of the superceding nature of the clarification issued in April 2005. It was not open to the adjudicating Commissioner to go beyond the decision of the Larger Bench unless it was distinguishable. There is no finding by the Commissioner to that effect. he appellant had reversed the credit of duty taken or paid equivalent amount and was, thereby, in conformity with Rule 3(5) of CENVAT Credit Rules, 2004 as applicable to earlier clearances. This is in conformity with the ruling of the Larger Bench supra. - Decided in favour of appellant
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2015 (10) TMI 2521
Cenvat credit - Service tax paid on transport charges for transportation of cement from the factory to the premises of the buyers - appellant were paying duty on basis of retail sale price preprinted on the cement bags as per notification number 4/2006-CE - goods are sold on FOR basis on the door step of the buyer - Held that:- in the facts of this case, “the place of delivery of goods” is the customer’s premises and the freight is borne by the appellant manufacturer. The “place of removal” has to be held at the customer’s premises This position has been clarified by CBEC in the Circular No. ST/137/85/2007-CX-4 dated 23/8/2007. Even after the amendment in the definition of input services with effect from 1/4/2008 replacing the words “from the place of removal” by “up to the place of removal” the place of removal gets extended up to the buyer’s premises in the case of FOR-destination sales and as such, the said amendment does not make any difference, where the sales are on FOR-destination basis. In the case of destination sale, the ownership and property is transferred when the manufacturer delivered the goods to the buyer at his premises. Accordingly, I hold that Cenvat Credit of service tax is available to the appellant on outward transport for FOR Sales made to the buyers. - Decided in favour of appellant with consequential relief
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2015 (10) TMI 2519
The applicant filed for restoration of appeal dismissed for non-compliance of stay order. The Hon'ble Bombay High Court directed the applicant to deposit the balance amount of Rs. 3.5 Lakhs within 8 weeks, which was done. The appeal stands restored in its original number, with the hearing set for 16.11.2015.
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2015 (10) TMI 2518
Variation of actual stock of sugar and baggase with the records – Held that:– variation tolerable as there is bound to be some error in the stock taking as the element of estimation is present – appeal allowed for this issue
Baggase and press mud not excisable - extended period of limitation not invokable on scrap sold – proper invoices issued,all records maintained – on sale of scrap normal period of duty imposed – duty on tin deleted – penalty imposed set aside – appeal allowed in part.
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2015 (10) TMI 2517
Disallowance u/s 14A - Held that:- If there is no exempt income claimed by the assessee, then there is no disallowance ought to be made u/s 14A of the Income-tax Act. See CIT vs. Corrtech Energy P. Ltd [2014 (3) TMI 856 - GUJARAT HIGH COURT ] - Decided in favour of assessee.
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2015 (10) TMI 2516
Cenvat credit availed on inputs utilised in the fabrication of tools and dies denied - Held that:- It is an admitted fact that the appellant have utilised the inputs in question falling under Chapter 72 of the CET Act in the fabrication of tools and dies which have been further utilised in the main factory for manufacture of goods which have been cleared on payment of duty. Further as find that moulds and dies, have been defined as capital goods in Rule 2(A)(iv) of the Cenvat Credit Rules, 2004. Accordingly, allow the appeal with consequential benefits if any.
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2015 (10) TMI 2515
Demand of VAT on exempted turnover - suppression of turnover - principle of natural justice - chillies and chilly powder fall under Entry 18 of the Part-B of IV Schedule to the TNVAT Act and sale of the same by any dealer is exempted from tax by Section 15 of the TNVAT Act, whose turn over in respect of those items does not exceed Rupees three hundred crores in a year. The petitioner total turn over of chillies and chilly powder for the assessment year 2014-2015 is below the limit of Rupees three hundred crores and hence, the petitioner claimed exemption on their local sales turn over of ₹ 10,22,09/,426/- in the regular monthly returns filed under the TNVAT Act. - the respondent stated that the 'petitioner have reported a total turn over (CST+VAT) of ₹ 353,63,85,695 for the year 2014-2015' and requested the petitioner firm to pay tax of 5% for exempted sale under commodity code-2052.
Held that:- as per Section 22(4) of the Act, before passing the impugned order, personal hearing is must to put forth the contentions of the petitioner firm. In the case on hand, it is seen that no such personal hearing was given to the petitioner to substantiate the claim of the petitioner. Accordingly, the order impugned in this Writ Petition stands set aside and the respondent is directed to provide a personal hearing to the petitioner within a period of four weeks from the date of receipt of a copy of this order. After doing so, the respondent is directed to pass appropriate orders on merits and in accordance with law within a period of four weeks from the date of personal hearing.
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2015 (10) TMI 2514
Constitutional validity - Demand of service tax while treating the petitioners as joint holder of the immovable property for the purpose of renting thereof - Scope of the definition of the term "Person" - association of persons or body of individuals, whether incorporated or not - Scope of Section 65B(37) - Held that:- A perusal of the above provisions shows that the word “person” has been defined to include an association of persons or body of individuals whether incorporated or not under clause 37(vii) of Section 65B of the Finance Act. In the present case, the petitioners are owners of the premises in question. They are receiving rent from the tenant though individually. Nothing has been shown by the learned counsel for the petitioners that the Parliament was not empowered to define the expression 'Person' in the statute. Once there exists legislative competence in the Parliament to enact a provision, in the absence of the learned counsel for the petitioners to demonstrate that the same is arbitrary, discriminatory or violative of Article 14 of the Constitution of India, it cannot be declared to be unconstitutional.
Writ petition dismissed. - Decided against the assessee.
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2015 (10) TMI 2513
Sale of software and maintenance services – Payments to be taxable as Royalty u/s 9(1)(vi) of the Act – Article 12 of DTAA between India and US - Held that:- Even though there is amendment to the Finance Act, 2012, there is no change in the DTAA between India and USA and the same was not refuted by the DR. Therefore, in light of assessee’s own case for the A.Y 2008-09 [2014 (4) TMI 369 - ITAT DELHI ]appeals are covered in assessee’s favour wherein held what has been transferred is not copyright or the right to use copyright but a limited right to use the copyrighted material and does not give rise to any royalty income - The consideration received on grant of licences for use of software is not royalty within the meaning of Article 12(3) of the Double Taxation Avoidance Agreement between India and the United States of America – the addition made for sale of software and provisions of maintenance/other support services to the customers in India is not taxable - Decided in favour of Assessee.
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2015 (10) TMI 2512
Disallowance of claim for deduction u/s. 37(1) in respect of revenue expenditure - Held that:- The assessment order and the order of the First Appellate Authority in the case of M/s. Reliance Footprint Ltd (2013 (12) TMI 161 - ITAT MUMBAI ) are identical to the assessment order and the order of the First Appellate Authority in the case in hand and as no distinguishing decision has been brought to our notice, respectfully following the same we set aside the order of the Ld. CIT(A) and direct the AO to delete the impugned addition. - Decided in favour of assessee.
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2015 (10) TMI 2511
Expenditure on account of consultancy fee disallowable u/s. 14A - as observed that the assessee had considerable business income from management consultancy during the relevant year and majority of expenses were incurred by the company for earning such business income - CIT(A) deleting the expenditure on account of consultancy fee as not disallowable u/s. 14A oHeld that:- While applying Rule 8D(2)(ii), the AO should have excluded those expenses which were directly attributable to consultancy business income earned by the assessee. We find from records that the assessee filed the details of consultancy income and expenses incurred for the same before AO during the course of assessment proceeding but he has not considered the same. We further find that the dividend income amounting to ₹ 1,66,06,788/- was received by the assessee only from eight companies and dividend cheques were received though post or were directly credited to the assessee' bank account through ECS. As such no major expenses were incurred by the assessee for earning such income and collection of dividend cheque. Similarly, in respect of long term capital loss of ₹ 3,97,694/- there were only two transactions for purchase and sale of shares and two for investment and redemption of units of mutual fund which too were transacted over telephone through the broker/bank. No separate staff was employed for this purpose and extra expenses were incurred for such transactions. - Decided against revenue
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2015 (10) TMI 2510
Inter-state sale - failure to submit 'C' Forms and 'F' forms - under the CST Act, certain turnovers which have been claimed on account of export as well as inter-State sales have been rejected for granting exemption as the assessee/dealer did not substantiate the same by filing necessary declarations as required under section 6A read with rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 ("the Rules", for short). - Held that:- A liberal approach ought to have been adopted, though statutorily a period of three months has been prescribed for filing of declaration in terms of section 6A read with rule 12(7) of the Rules. How- ever, the very fact that a discretion had been given to the assessing officer to make an exception to the rule would itself indicate that the same need not be viewed in a rigid manner. In that view of the matter, the endorsements dated July 25, 2015 cannot sustain so far as the issue with regard to the C forms is concerned. - Matter remanded back for considering 'C' Form and passed the modified orders.
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2015 (10) TMI 2509
ALP of the payment of royalty - Held that:- On the question of addition made by the AO on account of ALP for the payment of royalty, learned counsel for the Assessee has rightly referred to the decision in Commissioner of Income Tax v. Sony Ericsson Mobile Communication (2015 (3) TMI 580 - DELHI HIGH COURT ) where the determination of the ALP of the royalty paid as Nil was not approved. There is merit in the contention of learned counsel for the Assessee that once the TPO found that no adjustment was called for under the TNMM method, no adjustment could have been made by applying some other method as that would be contrary to Section 92C(1) of the Act.
The Court also finds that there is no justification for the TPO to come to the conclusion that the payment of royalty was not necessary in the present case particularly since the collaboration agreement between the Assessee and Stanley has been continuing since 1984. As held by the ITAT, after a detailed examination of the clauses of the collaboration agreement, the Assessee did receive full technical assistance from Stanley for which the royalty payment was made. Thus the Court is not inclined to frame a question on the issue of deletion of the addition sought to be made by the AO for the AYs in question on account of ALP of the payment of royalty.
Adjustment under Section 115JB on account of provision for retirement benefits - Held that:- ITAT noted that the provision was made on the basis of actual valuation and was not a contingent liability. Reference was made to the decision in Bharat Earth Movers v. Commissioner of Income Tax (2000 (8) TMI 4 - SUPREME Court ). The order of the ITAT upholding the order of CIT (A) is not found to be perverse. The Court declines to frame a question on this issue.
Disallowance of expenses on account of foreign trips of the Director of the Assessee after holding that the visits made to USA and Dubai were for the business purposes. The disallowance by the AO of the said expenses was found to be not justified. Since the above finding turned purely on facts, the order of the CIT (A) as affirmed by the ITAT, does not give rise to any substantial question of law.
Disallowance of the expenses on account of provision for warranty - ITAT deleted it since the provision was made by the assessee based on actual warranty expenses incurred for the unexpired warranty period - Held that:- As rightly pointed out by learned counsel for the Assessee the question is covered in its favour by the decisions in Rotork Controls Pvt. Ltd. v. Commissioner of Income Tax (2009 (5) TMI 16 - SUPREME COURT OF INDIA ) and Commissioner of Income Tax v. Becton Disckinsion [2012 (12) TMI 210 - DELHI HIGH COURT]. Therefore, no substantial question of law arises as regards this issue as well.
Depreciation on computer peripherals @ 60% - Held that:- Revenue does not dispute that the question stands answered in favour of the Assessee by the decision in Commissioner of Income Tax v. BSES Rajdhani Power Limited (2010 (8) TMI 58 - DELHI HIGH COURT ).
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2015 (10) TMI 2508
Reversal of Cenvat Credit on inputs lying in stock - Conversion of DTA unit to 100% EOU - Deemed removal of inputs - Held that:- dispute has arisen from the morphing of the manufacturing operation as an Export Oriented Unit. - An infrequent occurrence, it is even more rare for such an occurrence to be accompanied by transfer of raw materials in this manner. That, probably, is one of the reasons for the absence of any reference to such a contingency in the CENVAT Credit Rules, 2002. It is more likely that it was not perceived as having an impact at all on revenue. The transformation does not alter the works undertaken in the unit. Nor is the statutory jurisdiction altered. Eligibility for CENVAT Credit remains unchanged except that, as an Export Oriented Unit, duty-free procurement is an alternative.
Excise duty is fastened on goods and not on the status of the manufacturer; payment of duty and availment of credit of duty so paid is in relation to goods. As long as the goods on which CENVAT Credit has been taken are used in production, revenue is not jeopardized. Instead of procuring goods without payment of duty, the respondent has used already duty neutralized goods for manufacture of export goods. Had the CENVAT Credit been reversed by the erstwhile unit before the conversion, the newly minted Export Oriented Unit would be entitled to avail CENVAT Credit of like amount. These circumstances of revenue neutrality are a clear pointer to the rationale for redundancy of a specific provision for such an event in the CENVAT Credit Rules. - Demand is not sustainable - Decided against the revenue.
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2015 (10) TMI 2507
On-money received in cash - AO branding the assessee as trader in the land - assessement u/s 153A - Held that:- As we have held that the assessee is not a trader. Therefore, if any cash component received by him, the same be treated as receipt from transfer of agricultural land exempt from tax.
Addition u/s 50C - Sale of land - addition on between the sale consideration shown in the sale deed vis-a-vis the value on which the stamp duty was paid - Held that:- Section 50C of the Income Tax Act provide that where consideration received or accruing as a result of transfer by an assessee of a capital asset being land or building or both is less than the value adopted or assessed by any authority of a State Government for the purpose of payments of stamp duty in respect of such transfer the value so adopted by the assessee for the purpose of section 48 be deemed to be full value of the consideration received or accrued as a result of such transfer. Thus, a conjoint reading of both sections would indicate that while calculating the capital gain under section 48, the value adopted for the payment of the stamp duty would be considered as full sale consideration received or accrued to the assessee on transfer of a capital asset. In the present case no capital gain computation is there. The assessee is a purchaser therefore deeming fiction provided under section 50C cannot be applied upon the assessee.
Addition on account of accrued interest income of the assessee - Held that:- AO atleast ought to have proved that it is in the hand-writing of the assessee or of any family member. In the absence of corroborative evidence, it is quite difficult to give any categorical finding. The first onus is upon the Revenue to charge the assessee with exact details pointing out that these details relate to the assessee. No such effort was done by the AO also. Therefore, we give benefit doubt to the assessee and on the basis of such insufficient incomplete evidence, the assessee cannot be burdened with taxability. Thus additions deleted
Addition on opening capital balance - Held that:- This aspect needs verification. The AO has not recorded any categorical finding on this issue. We direct the AO to verify whether the assessee has filed the balance sheet with the return of income in earlier years, more particularly, for the Asstt.Year 2002-03 and disclosed the capital balance in the closing account at ₹ 19,11,522/-, then no addition will be made on account of opening capital balance in the Asstt.Year 2003-04. The ld.AO shall carry out this exercise after providing due opportunity of hearing to the assessee.
Addition on account of unaccounted cash found at the time of search - Held that:- CIT(A) has granted telescopic benefit to the assessee. Once the ld.CIT(A) has accepted the fact that the additional income offered by the assessee of ₹ 9 lakhs can easily be take care of alleged unaccounted cash found during the course of search carried out during the accounting period 2009-10. We find no error in the finding of the ld.CIT(A), which is confirmed
Addition on cash credit - Held that:- A perusal of the finding recorded by the CIT(A) would indicate that the seized documents pertained to Asstt.Year 2001-02. These are loans taken by M/s.Liberty Polymers Industries and not by the assessee. Therefore, their additions cannot be made in the hands of the assessee, more so, in the Asstt.Year 2009-10. The ld.AO has not assigned any particular reasons for treating the income in the hands of the assessee. We, therefore, do not find any error in the order of the CIT(A)
Addition on promissory notes inventory - Held that:- no amount is outstanding towards the assessee taken from the Shroff. Because, according to the CIT(A), if the assessee has taken loan and then returned that loan and collected back his promissory note, then also no unaccounted income could be construed as generated. The AO did not find unexplained investment during the course of search. Thus, we do not find any error in the findings of the ld.CIT(A) in deleting the addition
Undisclosed investment - Addition on account of some rough working - CIT(A) deleted addition - Held that:- First Appellate Authority has deleted the addition on the ground that it is difficult to infer the nature of income whether the investment or otherwise. The entries reflected in the seized paper do not goad adjudicating authority to any logical conclusion. The ld.DR also failed to point out the error in the conclusions arrived by the CIT(A). He simply relied upon the order of the AO. Therefore, we do not see any reason to interfere with the order of the CIT(A) on this issue.
Appeal decided partly in favour of assessee
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2015 (10) TMI 2506
Condonation of delay of 40 days - Section 85(3A) of Finance Act, 1994 - Revenue submitted that in view of the judgement of the Hon'ble Supreme Court in the case of Singh Enterprises v. CCE-JSR. [2007 (12) TMI 11 - SUPREME COURT OF INDIA], the ld.Commsisioner is not vested with the power to condone the delay beyond one month in addition to the statutory limit of two months in filing the appeal before him - Held that:- we find force in the contention of Revenue, therefore, the appeal is dismissed. - Decided against the assessee
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2015 (10) TMI 2505
Seeking modification of order - rejected by lower authority as they had no power conferred under the provisions of Finance Act, 1994 to review his own order - Held that:- the impugned order passed by the ld. Commissioner (Appeals) rejecting the assessees appeal is in the circumstances impeccable and warrants no appellate interference. - Decided against the appellant
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2015 (10) TMI 2504
Bogus purchases - Held that:- We find that the FAA had,during the appellate proceedings directed the assessee to file various details with regard to the discrepancies highlighted by the AO in his assessment order, that after obtaining the reconciliation statement she had given a categorical finding of fact that in case of 44 parties the amount claimed as purchases made of raw cotton remained outstanding as on 31.3.2009,that in case of remaining purchases the assessee had produced necessary documents, that there was no justification for upholding the entire addition, that the AO had accepted the sales with regard to purchases made, that entire purchases could not be doubted.We find that after segregating the purchases in two categories the FAA had judiciously upheld a portion of it and deleted the other portion.It was found by her that the assessee had not proved the purchases to the tune of ₹ 1.05 crores and she had confirmed the addition.As far as the remaining addition is concerned,we are of the opinion that her order does not suffer from any legal infirmity especially after the reconciliation statement was filed by the assessee before her. - Decided against revenue
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2015 (10) TMI 2503
Addition u/s 69B on basis of the valuation report of the District Valuation Officer (DVO) - Held that:- Here is a case in which the assessee claimed to have purchased the property for a sum of ₹ 3.50 crore and the AO has made addition of ₹ 5,59,66,000/- lac simply on the basis of difference between the DVO’s report and apparent sale consideration. No attempt has been made for verifying the price from the seller of the property. There is no positive material evidencing the making of actual investment by the assessee over and above ₹ 3.50 crore.
Under such circumstances, there can be no point in making any addition towards unexplained investment u/s 69B of the Act. It is relevant to mention that the legislature has carried out amendment by the Finance Act, 2013 w.e.f. 1.4.2014 by substituting section 56(2)(vii)(b) providing that where an individual or HUF receives any immovable property, inter alia, for a consideration which is less than the stamp duty value of the property by an amount exceeding ₹ 50,000/-, the stamp duty value of such property as exceeded such consideration shall be taxed as ‘Income from other sources.’ The legislature has brought in section 56(2)(vii)(b) with the sole intention of bringing under-hand payment of sale consideration of immovable property to tax. This provision has been enshrined w.e.f. the A.Y. 2014-15 and is not applicable retrospectively to the A.Y. 2006-07 under consideration. Since this provision is prospective and there is no other authentic evidence of the assessee having actually made any investment over and above the declared sale consideration, we are of the considered opinion that the ld. CIT(A) was justified in deleting the addition to the extent of ₹ 5,59,66,000/-
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