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Case Laws
Showing 341 to 360 of 1764 Records
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2016 (11) TMI 1426
Speaking order - duty paid under protest - Section 128 of the Customs Act, 1962 - Held that: - Section 17(5) contemplates the re-assessment order in writing by the proper officer on the re-assessment, within a specified time. Apparently, no such order had been passed whereas additional duty has been imposed in the bill of entry, which the petitioner paid under protest. Unless an order is passed in terms of Section 17(5), the reassessment made by the officer in the bill of entry does not become a decision or order which could be appealed against - in order to enable the petitioner to prefer an appeal, necessarily, the officer concerned will have to pass an order in terms of Section 17(5) - petition dismissed - decided against petitioner.
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2016 (11) TMI 1425
Right to information - sought information as held by the respondent Supreme court in their computer data-base - seeking information on impugned orders in relation to the cases as mentioned in the RTI application; to upload the details of the impugned orders on the Supreme Court’s website; and inspection of digital data of the cases - Held that:- It is observed that the appellant is not seeking any certified copy of the judicial record but has sought information on the impugned orders already publicly available on the kiosk maintained by Hon’ble Supreme Court in its premises viz. the name of Court/Agency which passed the order, date of judgment and the case number. In the alternate, the appellant has sought the inspection of the digital data in relation to the cases mentioned in his RTI applications.
It is observed that the sought for information is available in many cases in the database of the Hon’ble Court. No case to deny this information has been made out. Besides, provision of this information can help the general public, litigants, etc., in linking the Hon’ble Supreme Court’s orders with the impugned orders and thereby serve a larger public interest.
The respondent is directed to furnish, if available, the impugned order details of the cases mentioned in the RTI requests and provide the same within 30 days of this Order. The respondent is advised to update and upload the details (as available) of the impugned orders on the Hon’ble Supreme Court’s website in larger public interest.
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2016 (11) TMI 1424
Set-off of the brought forward unabsorbed depreciation - Held that:- As decided in General Motors India Pvt. Ltd. vs. DCIT [2012 (8) TMI 714 - GUJARAT HIGH COURT] any unabsorbed depreciation available to an assessee on 1st day of April 2002 (A.Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001, thus once the Circular No.14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation from A.Y.1997-98 upto the A.Y.2001-02 got carried forward to the assessment year 2002-03 and became part thereof, it came to be governed by the provisions of section 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever. - Decided against revenue
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2016 (11) TMI 1423
Validity of Assessment Order issued u/s 143(3) - non compliance of requirement of section 144C(1) - no draft order u/s 144C was framed before passing the final order u/s 143(3) - Held that:- Since the Assessing Officer straightaway passed final Assessment Order under section 143(3) without first forwarding a draft of the proposed order of assessment to the assessee, the order is liable to be quashed for this reason alone.
Respectfully following the esteemed views of the Hon’ble High Courts in the case of Vijay Television Pvt. Ltd. (2014 (6) TMI 540 - MADRAS HIGH COURT) we hold that the learned CIT(A) was perfectly justified in quashing the Assessment Order issued under section 143(3) without complying the requirement of section 144C(1). - Decided in favour of Assessee.
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2016 (11) TMI 1422
100% EOU - Refund of unutilised CENVAT credit - rejection on the ground that the CENVAT credit taken were not directly used in the manufacture of final products or for providing output services and not received in the premises of the appellant - Held that: - the issues are no longer res integra and has been decided in favour of the appellant by this Tribunal in the cases, where the refund has been allowed on various services - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1421
Benefit of exemption u/s 11 - proof of charitable activities - activities of education - Held that:- As carefully gone through the material available on the record. In the present case, it is an admitted fact that the assessee was engaged in the activities of education and to achieve the objects, the assessee was engaged in publication and sales of books. The profits from the said activities were used in order to feed the charitable activities of imparting the education and relief to poor. The ld. CIT(A) in the impugned order categorically stated that the assessee had given in detail the Curriculum and Pedagogy of the society which revealed that the assessee was catering to children coming from under privileged families and providing education in such a manner as to merge them into main stream by awarding certificates, recognized and approved by the National Open School and that the list of schools furnished by the assessee included schools in slums of Delhi, traffic lights and remedial across centres across Delhi reflecting the beneficiaries. The aforesaid observations of the ld. CIT(A) were not rebutted. - Decided against revenue
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2016 (11) TMI 1420
Excisability - Soya Sludge - classification of goods - Held that: - the issue has been squarely covered by Tribunals decision in the case of Commissioner of Central Excise, Indore v/s. Ambika Refinery [2013 (9) TMI 821 - CESTAT NEW DELHI], where the item has not been found excisable and it has been held that the same is not covered under Chapter 15.07 (presently it is Chapter Heading 15.22) under Central Excise Tariff. When it is so, the subject item is not excisable - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1419
Revision u/s 263 - Held that:- In a given set of circumstances two different opinions can be formed, it is not appropriate to interfere with one of the opinions expressed until and unless the opinion is found to be perverse or based on no evidence or material. If this principle is applied to the present case, we find that the Tribunal has not committed any error, it was a case where the exercise of jurisdiction under section 263 by the Commissioner being unsustainable, the Tribunal has rightly interfered into the matter, in view of the interpretation to section 263 made by the Supreme Court, as detailed hereinabove, interference made by the Commissioner being unsustainable, we answer question Nos. 1 and 3 by holding that the exercise of power under section 263 by the appellate authority namely the Commissioner while passing the appellate order on December 31, 2012 was not proper and by interfering in a proceeding under section 263 an error has been committed and if the Tribunal has interfered on same, no illegality is committed by the Tribunal. Once we hold that the exercise of power under section 263 by the Commissioner while passing order on December 31, 2012 was not warranted we have to dismiss this appeal and the other questions, i.e. question No. 2 formulated need not to be gone into.
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2016 (11) TMI 1418
Addition made u/s 14A r.w.r. 8D - Held that:- Section 14A(3) of the Act specifically excludes applicability of section 14A(2) and shifts the burden entirely on Assessee to establish absence, if any, of expenditure disallowable under section 14A of the Act. Besides, Rule 8D(2)(iii) of the IT Rules, 1962 has been enacted for such eventualities where it is not possible to allocate the indirect expenditure towards administration, etc. with any scientific accuracy.
No logic in the arguments of the assessee in so far as disallowance under Rule 8D(2)(iii) is concerned. However, in so far as disallowance of interest towards interest is concerned, we find that the averment made on behalf of the assessee that the own capital together with accumulated reserves are in excess of corresponding investment remains unrebutted. Therefore, in view of the long line of the judicial precedent on the issue, the disallowance towards proportionate interest under Rule 8D(2)(ii) is not sustainable in the facts. As a result, order of the CIT(A) is partially allowed in terms of our observations noted above. Appeal of the assessee is party allowed.
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2016 (11) TMI 1417
Penalty levied in 271(1)(c) - assessee claimed the foreign payment as the compensation for cancellation of a contract and is a capital receipt. Whereas the Assessing Officer relied on the judicial decisions treated the receipt as the revenue receipt u/s. 28(v)(a) - Held that:- We found that the Assessing Officer in penalty proceedings relied mainly on the Assessment Order and is of the opinion that the assessee has disclosed inaccurate particulars while filing the Return of income. Further, we found the issue is not clear and debatable and the Hon'ble High Court of Madras has admitted the case. Considering the above facts and there is no lapse on the part of the assessee in filing the Return of income and the disputed issue of sharing success bonus is debatable to treat as capital or revenue and co-ordinate bench of this Tribunal in the assessee's husband case penalty issue [2015 (6) TMI 1129 - ITAT CHENNAI] wherein held that there is debtability on this issue. It is also undisputed fact that the Hon'ble High Court has admitted the appeal and the same is pending for final adjudication. Considering all these undisputed facts, we find no default in disclosure of information in the return of income by the assessee. Debatability is evident as narrated by the ld. Counsel for the assessee before us. On the other hand, the Revenue failed to prove the absence of debatability on the issue. Considering the overall factual matters of the case, we are of the opinion that it is not a fit case for levying penalty u/s. 271(1)(c) of the Act - Decided in favour of assessee.
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2016 (11) TMI 1416
Deduction under section 11 - charitable nature of assessee - Held that:- Assessing Officer has not seen the fact that the assessee has stopped transaction during the assessment year 2012-13 as it got some better deal from Reliance which was tried in previous years also but did not work out. It also shows the intention of the assessee. If the assessee wants to take any undue benefit under the heading of trust then transactions must have been continued in the assessment year 2012-13. On page no.91 and 92 of the paper book, the FPP at the same rate was sold to other blood banks also but this fact was not considered by the Assessing Officer as life of FPP is one year because it is a perishable item and after one year it is of no use.
Considering the charitable nature of assessee, Celestial Biologicals Limited has provided unsecured loan to the tune of ₹ 3.43 crores since financial year 2003-04. If we consider the notional interest rate of 12.5% p.a., the interest would have been more than ₹ 2.50 crores till 31.03.2009. However, no interest has been charged by Celestial Biologicals Limited and its promoters are only trying to help the assessee financially. If the promoters were to take any undue advantage, they would have preferred to draw interest from assessee and ask for complete loan repayment. The Assessing Officer has not considered the fact that the Celestial Biologicals Limited has given interest free unsecured loan of ₹ 3.36 crores and closing balance of ₹ 2.26 crores as on 31.03.2009. - Decided in favour of assessee.
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2016 (11) TMI 1415
Rejection of books - profit estimation - Held that:- When the asssessee is not maintaining the books of account properly and the correct income of the assessee could not be computed on the basis of the books of account maintained in the course of business, the books of account can be rejected. The assessing officer can estimate the profit on the basis of the material available on record.
In the case before us, the books of account of the assessee are not rejected by the assessing officer. Merely because, the assessee has disclosed the profit less than 5% in some of the project, that alone cannot be a reason for the assessing officer to estimate the profit uniformly at 5% for all the projects. It is for the assessing officer to examine the books of account and find out why he could not accept profit of the assessee on the basis of books of account maintained. Since such an exercise was not done and the books of account of the assessee was not rejected, this Tribunal is of the considered opinion that the CIT(A) has rightly allowed the claim of the assessee. - Decided against revenue
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2016 (11) TMI 1414
Condonation of delay of 370 days in filing appeal - delay on the ground that the original order meant for appeal was misplaced by clerical staff - Held that: - It does not appeal to common sense as to how the order giving raise to consequences under law was carelessly misplaced and the attitude of the appellant shows that it was not at all conscious to have regard or respect to law. Such a careless attitude never permits a negligent appellant to receive any leniency under law - For no good reason stated and the reason stated being not appreciable and also not appealing to common sense, delay not condoned - appeal dismissed - decided against appellant.
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2016 (11) TMI 1413
CENVAT credit - cement used for treatment of waste - The Revenue is of the view that since exclusive use of cement was to treat the effluent and it was not used in connection with the manufacture of final product, the appellant is not entitled to take Cenvat credit on cement so used - Held that: - the issue has come up before the Tribunal in assessees own case M/s Hindustan Zinc Ltd Versus Commissioner of Central Excise And Service Tax, Jaipur [2015 (10) TMI 1558 - CESTAT NEW DELHI], where it was held that appellant has used cement for stabilization of hazardous waste 'jarosite' as toxic effluent at secured land fill which is part and parcel of their manufacturing activity - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1412
Validity of assessment order - the contention of the petitioner is that full particulars were not furnished and that the system failed because of the connectivity problem and other issues. Therefore, the petitioner seeks one more opportunity to go before the Assessing Officer - Held that: - this Court is not inclined to set aside the impugned orders in entirety, as the petitioner has been granted partial relief in the impugned orders. Therefore, the proper thing for the petitioner is to approach the respondent by way of a rectification petition under Section 84 of the State Act - the writ petitions are disposed of with a direction to the petitioner to file a petition under Section 84 of the State Act.
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2016 (11) TMI 1411
Revision of assessment proceedings - Section 84 of the TNVAT Act read with Section 9(2) of the CST Act, 1956 - Held that: - the entire matter, as projected by the petitioner in the petition dated 26.10.2015, has not been considered - the respondent has referred only to C and F Forms, but has not referred to Form WW along with xerox copy of annual returns, export documents and other documents produced by the petitioner - the order has not even referred to the petition under Section 84 of the State Act, 2006 read with Section 9(2) of the Central Act, the matter requires consideration - respondent is directed to redo the assessment only in respect of the issues, which were not considered and pass a fresh order in accordance with law - appeal allowed by way of remand.
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2016 (11) TMI 1410
Validity of assessment order - seeking respondent to pass orders on Form W applications dated 22.2.2014 and 25.3.2014 and issue a refund voucher for ₹ 1,64,39,081/- - Held that: - after the filing of this writ petition, the respondent passed an order proposing to adjust the said sum as against tax dues, which were the subject matters of challenge in W.P.Nos.30989 to 30992 of 2016 and they were disposed of by this Court by orders dated 9.11.2016 i.e. today - this writ petition is disposed of giving liberty to the petitioner to challenge the order passed by the respondent on Form W applications.
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2016 (11) TMI 1409
Admit on the following substantial questions of law :
(i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in allowing the appeal of the assessee in respect of disallowance made by the Assessing Officer on account of mark to market loss of ₹ 2,46,031/on unexpired future and option contract?
(ii) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in allowing the appeal of the assessee i.e. to the extent of claim of cost of acquisition as per Section 55(2)(ab) on the issue of calculating the long term capital gain on sale of shares of BSE at ₹ 4,40,41,965/as against ₹ 2,83,63,407/claimed by the assessee?
Derivatives transactions entered into by the respondent assessee does not seem to be supported by an underlying asset i.e. to safeguard loss in export / import of goods on account of the foreign exchange variation.
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2016 (11) TMI 1408
Valuation - development warrant - Held that: - Bank Guarantee in a sum of ₹ 10 crores in favour of the Department was furnished and the Writ Petitioner was directed to keep the Bank Guarantee alive till the disposal of the Writ Petition. In view of the above interlocutory order dated 7.4.2014, passed by this Court, all we need to direct the Writ Petitioner was to ensure that the unconditional and unqualified Bank Guarantee drawn in a sum of ₹ 10 crores favouring the Department shall be kept alive and renewed from time to time - petition closed.
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2016 (11) TMI 1407
Nature of land sold - location of the property - agricultural lands - capital gains - Held that:- The assessee produced the copy of the revenue records. In the revenue records, the lands in question were recorded as ‘agricultural lands’. The survey report shows that the lands in Survey No.67/22, 67/8C 1D16A, 67/8C 1D16C, 67/8C 1D16F and 67/8C1D19 were categorized as ‘Dry – Well/Borewell irrigation – Class-II’.
As per the photographs enclosed alongwith the DVO’s report, the assessee was growing casurina trees, sapotta trees, coconut trees and mango trees. In a nutshell, the DVO’s report also supports that the assessee was using the lands for agricultural purposes and carrying on agricultural operations. DVO is departmental valuer referred by the Assessing Officer for valuation who has personally visited and satisfied that the lands were used for agricultural purposes.
Thus we hold that the lands sold were agricultural lands not being capital asset and therefore, confirm the order of the Ld.CIT(A). - Decided in favour of assessee.
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