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Showing 341 to 360 of 1478 Records
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2016 (3) TMI 1146
Condonation of delay - the decision in the case of 2015 (4) TMI 955 - CESTAT CHENNAI [2015 (4) TMI 955 - CESTAT CHENNAI] referred - Held that: - The appeal is dismissed on the ground of delay leaving the question of law open - decided against appellant.
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2016 (3) TMI 1145
The decision in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS Versus ROYAL FILAMENTS [2008 (8) TMI 373 - GUJARAT HIGH COURT] contested - Held that: - We see no reason to interfere with the order impugned - the appeal is accordingly dismissed - decided against appellant.
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2016 (3) TMI 1144
Responsibility of banks to verify whether proper stamp duty has been paid on all instruments executed - can bank officers can be adjudicating officers under the stamp act - Validity of Maharashtra Tax Laws (Levy and Amendment) Act, 2013 insofar as it enacts the Stamp Act Amendment (Exhibit A) - whether ultra vires and void on account of being viiolative of Article 14 of the Constitution and being beyond the legislative competence and power of the Stte Legislature and also for being vague, arbitrary and irrational and be pleased to quash the same - Held that:- We do not see how by the obligation under the Banking Stamp Act, 1958, which is extremely limited and restricted and equally in public interest can it be said that the State legislature has overreached or has taken over taken over or interfered with the field occupied by the Banking Regulation Act, 1949
Once there is a wide discretion and latitude in the Legislature, then, it would be apparent that the financial institutions such as banks, non-banking financial company, housing finance company or alike deal with large number of instruments. These instruments are in favour of or executed by such entities. It came to the notice of the State that in relation to such instruments and which are of the nature referred to in clause (a) to (g) of section 30, the proper stamp duty has not been collected. Therefore, section 30A was inserted by Maharashtra Act No.8 of 2013 with effect from 1st May, 2013. The Statement of Objects and Reasons to this amendment would indicate as to how there was a revenue loss.
We find that both sections of the Maharashtra Stamp Act, 1958, and the Registration Act, 1908, read and understood so also interpreted in the above manner need not be struck down.
While arriving at the above conclusion, we have taken the aid and assistance of the very principles which have been pressed into service by Mr. Tulzapurkar. We need not advert to each and every judgment relied upon by counsel. We have referred to the very principles and which are enunciated in the case of State of Madhya Pradesh vs. Rakesh Kohli & Anr. (2012 (5) TMI 262 - SUPREME COURT OF INDIA ) about constitutional validity of taxing statutes.
We are not in agreement with Mr. Tulzapurkar that the provisions of the Stamp Act and particularly, section 30A need to be struck down on the anvil that they violate the mandate of Articles 14, 19(1)(g) and 300A of the Constitution of India. We do not think that section 30A is in any way on par with section 73 of the Andhra Act which was under consideration in the case of District Registrar and Collector, Hyderabad vs. Canara Bank [2004 (11) TMI 569 - SUPREME COURT ].
Nonetheless, none of the principles that we have referred above would run counter to the paragraphs in this judgment and heavily relied upon by Mr. Tulzapurkar. When the banks and financial institutions are not required to perform the functions of the nature enunciated in this judgment, then, we need not refer to it any further. - Writ petitions dismissed - Decided against the banks.
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2016 (3) TMI 1143
Refund - Rule 6(3)(ii) of the CCR, 2004 - Held that: - I find that it was appellant who opted to pay proportionate Cenvat credit on their own. In Rule 6(3) two options are available i.e (1) payment of 5%/10% of the value of exempted goods and (2) proportionate Cenvat credit attributed to the inputs consumed in the exempted goods. Explanation (1) to Rule 6(3) is very clear, which provides that in a financial year once any particular option is availed, the same cannot be withdrawn, that means when the asssesse has availed option for payment of proportionate credit as provided under Rule, they are not allowed to change the option and claim that they want to pay 5%/10% of value of the exempted goods, therefore the refund of differential duty is not admissible - Appeal dismissed.
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2016 (3) TMI 1142
Grant of stay - realization of entry tax - Held that: - tax not to be recovered and further proceedings will be kept in abeyance provided the petitioner furnishes security in the form of bank guarantee, which will remain valid till the disposal of the case - It is also directed that the goods already seized shall be released in favor of the petitioner, provided the petitioner furnishes bank guarantee, to the satisfaction of the authority concerned, for different taxes - application disposed off.
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2016 (3) TMI 1141
Revision u/s 263 - CIT proposed to revise the assessment on the reasoning that the assessment order is erroneous and prejudicial to the interests of the revenue - as per CIT(A) AO has allowed the claim of the assessee including the opening value of WIP without realising that the assessee is not entitled to claim the same - Held that:- The assessee was constrained to incur expenses over the years, i.e., since 2006 onwards in order to clear the encumbrances and rival claims so that the plot of land on which the development took place is free from all kinds of encumbrances. There is no dispute with regard to the fact that the assessee is required to bear all the expenses in order to perfect the title of the land. There is also no dispute that the assessee has been incurring the expenses in this regard over many years. In fact, the assessing officer has sought to assess the income relating to the project in the hands of the assessee in AY 2009-10, by which time, the assessee has already incurred expenses to the tune of ₹ 2.13 crores.
Thus, it is not a case that the assessing officer was not aware of the expenses claimed by the assessee. The facts narrated by the assessee shows that the assessee has purchased the land from the owners, who had earlier entered into an agreement with two other parties. Hence the possibility of creating hindrances by the concerned persons should have been available and the assessee was constrained to clear all of them, lest assessee’s project should suffer. However, the Ld Principal CIT has taken the assessee has incurred those expenses on humanitarian grounds or gratuitously and hence the same cannot be considered as business expenses. We are of the view that the learned CIT has merely taken a different view of the matter, where as it is seen that the view taken by the assessing officer in allowing the claim was one of the possible views, since the same has been incurred in furtherance of the business objectives. It is well settled proposition that the assessment order would not be rendered prejudicial to the interests of the revenue, if the assessing officer has taken a possible view of the matter.
The assessment order cannot be considered to be erroneous, if the assessing officer has allowed the claim of the assessee after carrying out necessary examination and further if the assessing officer has taken one of the possible views, it cannot be taken as prejudicial to the interests of the revenue.In the instant case, we are of the view that the AO has allowed the claim of the assessee after carrying out necessary examination and has also taken one of the possible views. - Decided in favour of assessee
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2016 (3) TMI 1140
False VCES declaration - rejection due to difference of taxable value taken by the department and as claimed by the appellant for calculation of service tax dues - demand - Held that: - I find that as per the submissions made by the Ld. Advocate as reproduced above and the findings of the Ld. Commissioner there are variations in the stand taken by both sides. In my view, the appellant should be given an opportunity to explain their case regarding quantification as observed by the adjudicating authority viz-a-viz claimed by the appellant. I therefore of the view that matter needs to be remanded to the original adjudicating authority - appeal allowed by way of remand.
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2016 (3) TMI 1139
Duty drawback - confiscation - mis-declaration of description of goods - fraudulent export - Held that: - there is no dispute that the goods attempted to be exported is unfinished leather as per CLRI report whereas the appellant has mis-declared as finished goods. The drawback is available on finished leather therefore it is clearly established that the misdeclaration of the goods is with clear intention to claim fraudulent drawback. Right from the adjudication and first appellate stage, the appellant though submitted that there is violation of principles of natural justice but the fact that the goods were mis-declared could not be rebutted. The Commissioner (Appeals) with proper application of mind, considering all the aspects taken lenient view and accordingly reduced the redemption fine and penalties - there is no infirmity in the impugned order - appeal dismissed - decided against appellant.
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2016 (3) TMI 1138
Transfer pricing adjustment - selection of comparable - DRP excluding the comparable companies having related party transaction - Held that:- It has been pointed out by the ld. DR that the CIT(Appeals) has directed the TPO to exclude the companies which have Related Party Transactions (RPT) without specifying the exact percentage of RPT to be taken as threshold limit. We find that the TPO has not applied any filter of RPT for selection of comparable companies. The CIT(Appeals) while passing the impugned order held that there is no need for inclusion of the companies which have RPT and accordingly directed the AO to exclude the companies having RPT from the comparables. It is pertinent to note that in the normal circumstances the Tribunal has considered 15% as threshold limit of RPT, when there is no difficulty of finding the comparable companies. Therefore, in view of the fact that the CIT(Appeals) has not fixed any threshold limit of RPT, we modify the impugned order of the CIT(A) and direct the AO/TPO to apply 15% RPT as threshold limit for the purpose of selecting comparables. This ground of the Revenue’s appeal is partly allowed.
Exclusion of comparable companies having abnormal/high profit margin - Held that:- Merely a company or entity having a high profit margin or high loss cannot be a reason for exclusion or inclusion in the list of comparables. However, if the high profit or high loss is as a result of some abnormal event or circumstances in a particular comparable company, the same is to be investigated and examined, and if it is found that due to the said particular extra-ordinary or abnormal circumstances the said company cannot be regarded as functionally comparable to that of assessee, then only it is to be excluded from the list of comparables. Accordingly, we direct the AO/TPO to further verify and investigate the actual reason of the high profit margin of the company and then decide the issue in the light of the finding of the Special Bench in the case of Maersk Global Centres (India) (P.) Ltd. (2014 (3) TMI 891 - ITAT MUMBAI ).
Exclusion of certain comparable companies by the CIT(A) by applying the turnover filter - Held that:- Classification of comparables on the basis of companies selected on turnover basis is not appropriate and acceptable. The turnover, no doubt, is a relevant factor to be taken into account, but there should be some proper and reasonable parameter to apply the difference of turnover between the assessee and the comparable which may be a multiple in the range of 2 times, 3 times, X times or any other number of times which should be applied to all the comparable companies, instead of taking a slab from ₹ 1 crore to ₹ 200 crores. Thus, if appropriate multiple to say 10 times is applied, then the assessee having turnover of ₹ 8.15 crores can be compared with a company which is having a turnover of ₹ 81.5 crores. Accordingly, in view of the above facts of the case, we set aside this issue to the record of the AO/TPO to apply appropriate multiple or differential factor regarding the turnover of the comparable and the assessee.
Exclusion of telecommunication expenses and other expenses in foreign currency from total turnover as well - Held that:- If the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded in computing the export turnover as a component of total turnover in the denominator. The reason being the total turnover includes export turnover. The components of the export turnover in the numerator and the denominator cannot be different. Formula will be = Profits of the business of the undertaking × Export turn over / (Export turnover + domestic turn over) Total Turn Over [See ACIT v. Tata Elxsi Ltd.[2011 (8) TMI 782 - KARNATAKA HIGH COURT ]
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2016 (3) TMI 1137
Levy of duty - MS Scrap - manufacture of Sponge Iron, falling under Chapter 72 of the Central Excise Tariff Act, 1985 - During the process, MS Scrap generated, which were sold by the appellant without payment of Central Excise duty. Non-payment of Central Excise duty on the MS Scrap was disputed by the Central Excise Department - decision in the case of Hindustan Zinc Ltd. vs CCE Jaipur-II,[2011 (5) TMI 715 - CESTAT, NEW DELHI] relied upon by the learned DR - Held that: - It is an admitted fact on record that MS Scrap was generated from MS Plate, Angles, Channels etc. Since generation of scrap was not arisen out of any manufacturing process, in my view, the appellant is not required to pay any Central Excise duty on removal of those scrap items. I find from the available records that the Department has alleged contravention of Rule 4 and 8 of the Central Excise Rules, 2002. Since scrap is not manufactured by the appellant, the said provisions have no application, because the said Rules provide for payment of duty on removal of excisable goods from the factory.
In the present case, Rule 14 of the Cenvat Credit Rules has not been invoked for demanding the irregularly availed cenvat credit on the M.S. Plates, Angles, Channels etc. The decision of this Tribunal in the case of Hindustan Zinc Ltd. cited by Ld. DR is distinguishable from the facts of the present case inasmuch as the issue involved in that case relates to reversal of cenvat credit on removal of waste and scrap from the factory. Whereas, the issue involved in this case relates to payment of duty on removal of scrap from the factory and not reversal of cenvat credit. Since M.S. Scrap is not excisable goods for the appellant, I am of the considered view that invocation of Section 11A is not proper and justified for confirmation of duty demand. Therefore, I do not find any merits in the impugned order.
Appeal allowed - decided in favor of appellant-assessee.
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2016 (3) TMI 1136
Denial of CENVAT credit - credit taken on the basis of photocopy of the invoice - Held that: - It is an admitted fact that the cenvat credit has been taken by the appellant based on the photocopy of invoice issued by the supplier of goods and that photocopy of invoice is not prescribed as a valid document under Rule 11 of the Central Excise Rules 2002. However, upon verification of the books of accounts maintained by the appellant, since the original authority has held that the goods covered under the disputed invoice has suffered duty and the goods have been received in the factory for use in or in relation to manufacture of the final product, the requirement of Rule 9 of the Cenvat Credit Rules 2004, in my opinion, has been complied with for the purpose of cenvat benefit. Since the duty paid character is not under dispute, it cannot be said that taking of cenvat credit on the basis of photocopy of the invoice is attributable to fraud, collusion, suppression of facts with intent to evade payment of duty. Thus, SCN in this case should be confined to a period of one year from the relevant date. Since, cenvat credit in the present case has been taken in the month of April 2006 and the SCN was issued on 19.02.2009, I am of the view that the same is barred by limitation of time.
Since the SCN has been issued beyond the period of one year, I am of the opinion that proceedings initiated for recovery of cenvat demand and for imposition of penalty is not proper, and accordingly, I hold that the impugned order is not sustainable - appeal allowed - decided in favor of appellant-assessee.
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2016 (3) TMI 1135
Valuation - Import of Oracle packaged software - condition of sale or condition of use - The decision in the case of Shri Atul Kaushik, Shri Krishan Dhawan, M/s. Oracle India Pvt. Ltd. Versus C.C. (Export) , New Delhi [2015 (9) TMI 317 - CESTAT NEW DELHI] referred - Held that: - We see no reason to interfere with the impugned order passed by Customs, Excise & Service Tax Appellate Tribunal - appeal dismissed.
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2016 (3) TMI 1134
Entitlement of interest on delayed refund - Held that: - I find that in the subsequent decision in the case of I.T.C. Bhadrachalam [2015 (8) TMI 534 - SUPREME COURT] the Honourable Supreme Court have held that where duty is paid under protest, the interest has to be paid from the date of payment, to the date of grant of refund. Following the same I allow the appeal with a direction to the adjudicating authority to grant interest from the date of payment to the date of grant of refund, within a period of 60 (sixty) days from the date of receipt of a copy of this order - appeal allowed - decided in favor of assessee.
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2016 (3) TMI 1133
Doctrine of merger - Rebate claim - Notification Number 193/82 - whether the notification having retrospective effect or prospective effect? - Held that: - I hold that Show Cause Notice was required to be issued in terms of Section 11A for demanding erroneous refund. I further find that the refund in this case vide order dated 28/12/1999 was granted by the Assistant Commissioner in terms of the order of the Honourable Tribunal. Thus the appeal of Revenue before Commissioner (Appeals) was also hit under the ‘doctrine of merger', And as such i hold the order of the Commissioner appeals is hit by the 'doctrine of merger' and as such this appeal is an abuse of the process of loss. In this view of the matter the appeal of Revenue is dismissed as no Show Cause Notice was issued.
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2016 (3) TMI 1132
CENVAT credit - non-disclosure of availing of credit in ST-3 returns - Held that: - I hold that inputs credit availed on catering service is allowable as the same is directly utilised in the business of the appellant of banking and other financial services. It goes without saying that satisfied customers, will lead to increased business and development. So far the Cenvat credit is concerned for April to September 2007, the appellant have filed in the paper book details of the invoices with date etc. amount of service tax paid etc. is reflected. I hold that the appellant will be entitled to Cenvat credit for the period in question. I remand to the adjudicating authority for the limited purpose to verify the amount of Cenvat credit and allow the credit accordingly. Upon such hold that extended period of limitation is not invocable in the facts and circumstances - appeal allowed - decided in favor of appellant-assessee.
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2016 (3) TMI 1131
Exemption from filing the original of the impugned Compounding Order - a photo copy thereof may be accepted for the purpose of the Appeal - Held that: - the Revenue has no objection in accepting the prayer of the applicant since the original copy of the impugned order is available in the file of the co-appellants - the said prayer of the applicant is allowed.
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2016 (3) TMI 1130
Validity of reopening of assessment - reasons to believe - information received from ACIT, Central Circle-19, New Delhi - Held that:- The very perusal of the reasons, it is apparent that these were based on the information received from ACIT, Central Circle-19, New Delhi after narration of which, the Assessing Officer has simply recorded that she has reason to believe that amount/income of ₹ 25 lacs has escaped assessment for the assessment year 2004-05 for failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment within the meaning of sec. 147 of the Income-tax Act, 1961. Notice under sec. 148 of the Act has accordingly been issued by the Assessing Officer
The basic requirement is that the Assessing Officer must apply his mind to the material in order to form reasons to believe that the income of the assessee has escaped assessment. Such basic requirement while recording the reasons for initiation of proceedings under sec. 147 of the Act is missing in the present case before us. As it is evident in the reasons recorded, reproduced hereinabove, the Assessing Officer has simply recorded the information received from her colleague and without making any exercise of her mind on those information to form her own reasons to believe for the escaped assessment has issued notice under sec. 148 of the Act. Hence, the initiation of the proceedings was not valid and nor the assessment made in furtherance to the said initiation of the proceedings - Decided in favour of assessee
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2016 (3) TMI 1129
Disallowance of depreciation on the cost of foundation/ installation of the windmill - Held that:- We find that the controversy in the present case is squarely covered by the recent decision of the Pune Bench of the Tribunal in the case of Shreem Electric Limited vs. JCIT [2015 (11) TMI 1607 - ITAT PUNE] that the expenses incurred on erection & commissioning, civil work, etc. being necessary adjunct to the windmill and is not meant for any other purposes other than for operational functioning of wind turbine and therefore cannot be treated differently.
Therefore, impugned capital expenditure towards civil work & commissioning etc. also will qualify for the same rate of depreciation as applicable to wind turbine itself. The issue is no longer res-integra and is covered by the decision of Co-ordinate Bench of the Tribunal in the case of Poonawala Finvest & Agro (P.) Ltd. vs. ACIT, (2008 (6) TMI 586 - ITAT PUNE ) wherein it has been clearly held that the capital expenditure incidental to the windmill has to be tested on the touchstone of the functional test and the assessee will be entitled to higher rate of depreciation on such incidental expenditure, if it has no other use except for power generation done by the windmill. - Decided in favour of assessee
Disallowance on account of element of personal user towards vehicle repairs and maintenance, telephone expenses and travelling expenses, etc. on estimated basis - Held that:- It is the case of the assessee that in the case of a company element of personal user out of expenses cannot be inferred. We find merit in the plea of the assessee. The company being juristic person, it is difficult to accept the basis for disallowance of the Revenue. A company is incapable of having any personal user of the facilities. The directors are separate from the company. Even assuming that facilities were occasionally used for personal purposes, it is a business expenditure in so far as company is concerned. Such usage of facilities at any rate can be possibly taxed in the hands of the user as perquisite alone. Therefore, no estimated disallowance on account of personal user is called for.- Decided in favour of assessee
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2016 (3) TMI 1128
Capital gain computation - transfer of property as per the provisions of section 2(47) - transfer of leasehold rights by the firm to its retiring partners - Held that:- The provisions of section 45(4) of the Act are not applicable for the year under consideration, i.e. A.Y. 2010-11 as there is no retirement of any partner during this period.
There is no transfer of leasehold rights in the said property by the assessee firm to the retiring partners; which continue to stay vested in the assessee firm even after the change in the constitution of the assessee firm.
As per the provisions of section 45(4) of the Act the income is not to be taxable under the head ‘business income’ but rather the income should be exigible to tax under the head ‘Income from Capital Gains’ and the indexed cost of acquisition of the capital asset should be deducted from the full value of consideration computed under section 48 of the Act. - Decided against revenue
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2016 (3) TMI 1127
Jurisdiction of enquiry officer - implmentation of Risk Management Systems (RMS) in exports - Held that: - though there are serious allegations made by the petitioner that he has taken upon himself to be vigilant in bringing the errant customs officials to book by recording their actions, by video-recording in the past years, it would be for the petitioner to establish his case insofar as the defence sought to be raised by him and the allegations sought to be put forth against the customs officials - the petitioner shall be given full opportunity to establish his case, that insofar as the goods once having been released in his favour, there was no power in the customs authority to take them to their custody, which aspect shall be addressed at the enquiry, and if the finding is that there was such power available to the authorities, the goods, which have been seized from the custody of the petitioner, shall be released in his favour, as vehemently claimed by the counsel for the petitioner. Accordingly, the petition is disposed of without prejudice to the case of the petitioner to establish his several contentions and allegations at the enquiry.
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