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Case Laws
Showing 341 to 360 of 1962 Records
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2017 (3) TMI 1623
CENVAT credit - capital goods - imported two extruder machines - credit denied on the ground that said machines were used only for demonstration purpose so as to explain their features to the prospective customers of the appellant, as the appellant is also manufacturing the same machine and not used directly in manufacture - Held that: - careful reading of the definition of “capital goods” what emanates is that such goods are to be used in the factory of manufacturer of final products and nowhere it is stipulated that the said goods are to be used “in or in relation to the manufacture of final products” - it is also found that both the authorities below are reading a non-existent condition into the definition of capital goods which is impermissible.
Extended period of limitation - Held that: - it is not sufficient to invoke extended period of limitation as the department has not brought any evidence to prove suppression.
Appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1622
Whether the appellant cleared manufactured goods in the guise of bought out items during the period from 1995-96 to 1999-2000? - Held that: - Suspicion, however grave may be, shall not be substitute of proof and the authority when failed to bring evidence to show that appellant manufactured the traded goods, adjudication fails to sustain - In absence of evidence to support the allegation of Revenue, appellant succeeds.
Whether packing charges is includible in the assessable value of the goods cleared? - Held that: - there is no material to repel the reasoning given by the adjudicating authority which was concurred by the appellate authority to hold that those packing were primary for removal of goods - there is no scope for appellant to succeed on this point.
Whether appellant had removed Modvat availed inputs in the guise of bought out items without reversing the credit availed thereon? - Held that: - when the Modvatable inputs were cleared as such and those were not traded goods, such clearance calls for levy. Therefore on this point, appellant fails to succeed.
Penalties - Held that: - There was no deliberate intention of appellant to cause prejudice to revenue nor such intention has been discovered by Revenue. Therefore there shall be no penalty on the aforesaid three counts.
Appeal allowed in part.
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2017 (3) TMI 1621
Rectification of mistake - whether education cess and secondary and higher education cess has to be paid for the third time when inputs are supplied by 100% EOU to DTA? - it was claimed that said issue stands covered by the judgment in the case of Kumar Arch Tech Pvt. Ltd. v. CCE, Jaipur-H [2013 (4) TMI 482 - CESTAT NEW DELHI]. instead of noting the above judgment of the Larger Bench, the Tribunal has relied upon the judgment in the case of CCE and-S.T., Ludhiana v. Khanna Paper Mills Ltd. [2015 (9) TMI 1380 - CESTAT NEW DELHI].
Held that: - it is indeed correct that the issue stands covered by the Larger Bench judgment in the case of Kumar Arch. Tech Pvt. Ltd. Instead the Tribunal has erroneously relied upon the judgment in the case of Khanna Paper Mills Ltd., which deals with another issue. In view thereof, it is fit to allow the application seeking rectification of mistake in the Final Order - ROM application allowed.
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2017 (3) TMI 1620
Demand of interest - failure to pay interest on due dates - Held that: - there is no provision in the Oil Industry (Development) Act, 1974, for demand of interest for delayed payment of cess - interest cannot be levied - appeal dismissed - decided against Revenue.
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2017 (3) TMI 1619
Validity of second SCN - imposition of penalty - initially the SCN were issued and no penalty was imposed on the appellant, on the same facts and investigation, the second SCN issued imposing penalty - Held that: - As on the same investigation, the SCN was issued and no penalty imposed on the appellant. Therefore, on the same investigation another SCN cannot be issued to the appellant - as SCN is not maintainable against the appellant, no penalty is imposable on the appellant - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1618
Whether or not the amended provisions apply to the suit transaction, the suit transaction itself having been executed prior to the amendment and the suit also having been filed and defence raised as well as the suit decreed by the courts below before the amended act was introduced?
Held that: - there is no need to consider the further question as to whether the Defendant, in the present case, has proved the source of his income through which the consideration is paid for the suit property. The whole edifice of the Defendant's argument is based on the retrospective applicability of the Amended Act or the expression "daughter" even otherwise including a 'step-daughter'. Since this very foundation is untenable, the edifice must fall - it is pertinent to note that it was not the case of the Defendant in his written statement or even in his appeal before the lower appellate court that there was any fiduciary relationship coming within clause (b) of Section 4(3) of the Benami Act between the parties. But more importantly, the averments, such as they were in the written statement, may at the most suggest that it was the Defendant who held such position of trust or fiduciary capacity. It cannot be suggested that the Plaintiff was either a trustee or a person standing in a fiduciary capacity, vis-à-vis the Defendant, holding the property for the benefit of the Defendant. There is, accordingly, no merit whatsoever in this contention.
Appeal dismissed - decided against appellant.
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2017 (3) TMI 1617
TDS u/s 194C - TDS liability - Held that:- Contentions of the assessee requires re-consideration as the Assessing Officer has picked up the payment made for assessment year 2012-13 for fixing the liability of the assessee for the impugned assessment year. However, we make it clear that if the assessee's claim that the payee TAM Media Research Pvt. Ltd. has offered the amount as income and paid tax on such amount, the assessee cannot be treated as a assessee in default in respect of such payment. Similarly, the Assessing Officer must examine assessee's claim made in respect of provisions made of ₹ 5 lakh which was subsequently reversed. Another glaring error committed by the Assessing Officer which has come to our notice is, though, the Assessing Officer in the impugned order has mentioned that the payments were made to Star India Pvt. Ltd., however, from the details submitted by the assessee, we do not find any payment made to Star India Pvt. Ltd. This fact also requires verification. Thus restore the matter back to the file of the Assessing Officer for considering afresh
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2017 (3) TMI 1616
Insolvency Resolution Process - proceedings for recovery of the claim - existence of eligible debt - Held that:- Code itself is meant for the cases falling within the realm of Insolvency and Bankruptcy. It need not be mentioned any further in the sections that the purpose and object of the Code is to empower the creditors to initiate insolvency proceedings before company quietly slid into insolvency or bankruptcy keeping the creditors at bay, therefore no section could be taken out of context and read separately so as to interpret that any person, who has claim against any and every company, can invoke provisions under I & B Code. The duty is cast upon NCLT to apply these provisions in the context the statute warranting, and it is the bounden duty of NCLT to see the object of the Code is implemented.
Thus though no dispute is in existence as mentioned under definition of Section 5(20) and Section 8 of I & B Code, we are of the view that the facts of the case do not warrant to invoke section 9 to declare moratorium and consequential directions. Company petition dismissed.
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2017 (3) TMI 1615
Addition on account of Notional ALV of unsold flats/spaces - Held that:- This ground is to be decided against the assessee because the Delhi Bench of ITAT and Hon’ble Delhi High in the assessee’s own case for assessment year 1994-95 to 1998-99 [2009 (10) TMI 49 - DELHI HIGH COURT] has rejected the assessee’s plea on this count. Accordingly, ground no.1 is dismissed.
Denial of deduction u/s 80IB(10) – Held that:- There could not be any dispute as regards non-compliance of clause (a) to section 80IB(10). Now, coming to the second ground for rejection of assessee’s claim on the ground of some units being of more than 1000 sq.ft., we find that this issue has also been considered in earlier year’s appeal and proportionate deduction was allowed. Therefore, for the sake of brevity, we do not repeat the same.
Non-fulfilling of the condition of completion of units is concerned, the contention of ld. counsel is that the amendment is prospective. However, he has also pointed out that in the case of assessee, all the projects were completed before the terminal date of completion and completion certificate were also received for majority of the units/houses. Therefore, we do not consider it necessary to go into the issue regarding amendment being prospective or not. The claim of assessee is that actually it has complied with the condition as per amended provisions. The Assessing Officer is directed to verify this aspect and allow the claim in accordance with law. In the result, this ground is partly allowed for statistical purpose.
Benefit of section 23(1)(c) - Held that:- This provision is applicable in respect of let out/ letiable property. However, in the present case, admittedly, the assessee was holding various commercial and residential flats and spaces for being sold to the prospective buyers. The assessee in its reply, inter-alia, clearly stated that spaces/flats formed part of stock-in-trade of the assessee company as the same was for business purposes and was kept in self possession till the time it was sold. The vacant possession thereof was handed over to the buyers on sale. Thus, the assessee never claimed that the properties were letiable properties and, therefore, assessee cannot get the benefit of section 23(1)(c). The next objection of the assessee is in regard to determination of annual letting value in respect of farm lands.
No findings have been recorded in this regard by lower revenue authorities, as to whether annual letting value could be determined in respect of such farm lands in terms of section 22 or not. We may observe that if there was no building on farm lands then it will not come within the ambit of section 22. On this aspect, the Assessing Officer is directed to examine the issue afresh.
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2017 (3) TMI 1614
Appeal admitted on question 5
Whether on the facts and circumstances of the case and in law, the Tribunal has erred in confirming the action of the CIT(A) of calculating the adjustment made to the ALP after giving credit of 5% margin u/s 92C even when the same is not a standard deduction and cannot be reduced from the ALP determined for the purpose of adjustment ?
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2017 (3) TMI 1613
Matter to be listed before the Principal Bench of NCLT - Held that:- Under the Rules known as "the Companies (Transfer of pending proceedings) Rules 2016', the petitioner is required to furnish the details of provisions under which, this petition is to be treated by this Tribunal. All the proceedings are time-lined and cannot brook any delay.
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2017 (3) TMI 1612
Addition of bogus purchase - CIT-A deleted the addition admitting additional evidence - Held that:- Lot of fresh evidences were furnished before the First Appellate Authority in respect of purchase account, sundry creditors, salary and wages to artists and other staff, security deposits account. That, however, these evidences were not sent to the AO asking for a remand report on the basis of such evidence adduced in compliance with Rule 46A of the Income Tax Rules, 1962 in effect the views and adjudication by the AO was not complied with so far as these fresh evidences are concerned. In the interest of natural justice, the matter is set aside to the file of the AO for reassessment de novo after affording reasonable opportunity of being heard to the assessee and upon considering the fresh evidences to be supplied before him. Appeal of revenue is allowed for statistical purposes.
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2017 (3) TMI 1611
Clandestine removal - variation in stock - method of stock taking - Held that: - the stock valuation has been done by weighment of only a sample and thereafter eye estimation is made for the whole lot of the stock. In this view of the manner of stock taking, there is bound to be variation and no adverse inference could be drawn on the basis of such variation - the weighment have been done by way of eye estimation and if the proper stock taking was done and tallied with the computer records, there shall be hardly any discrepancy.
The stock taking by the Revenue is defective and it has been rightly held so by the ld. Commissioner (Appeals). On such defect in stock taking, there cannot be any adverse inference is drawn against the respondent - appeal dismissed - decided against Revenue.
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2017 (3) TMI 1610
Entitled for deduction u/s. 80P(2)(a)(i) - Interest earned by the assessee from its deposits placed in Sub-Treasury and banks - Held that:- It may be true that for application of Sec. 80P(2)(a)(i) of the Act assessee was considered as a primary agricultural credit society based on certificate issued by Joint Registrar, Kottayam. In our opinion para 3.2 of the circular reproduced above has accepted the judgment of Hon’ble Apex Court in the case of CIT vs. Nawanshahar Central Cooperative Bank Ltd [2005 (8) TMI 28 - SUPREME COURT OF INDIA], as correct for cooperative societies /banks claiming deduction u/s. 80P(2)(a)(i) of the Act. In other words, the Board has taken a view that interest earnings of a cooperative society which was having as its primary business, providing credit facilities to its members who were agriculturists, could be considered under the head income from business and not from income from other sources.
We are of the opinion that assessee has to succeed in this appeal. Interest earned by the assessee from its deposits placed in Sub-Treasury and banks are eligible for deduction u/s. 80P(2)(a)(i) of the Act. See Kizathadiyoor Service Cooperative Bank Ltd vs. ITO [2016 (7) TMI 1405 - ITAT COCHIN] - Decided in favour of assessee.
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2017 (3) TMI 1609
Maintainability of appeal - Section 35 G of the Central Excise Act, 1944 - Held that: - where the order of the Appellate Tribunal deals with a question of rate of duty or valuation of the goods for the purpose of assessment as well as with other questions relating to other aspects, an appeal is not maintainable under Section 35 G of the Central Excise Act, 1944 - It is admitted that the order of the Tribunal deals with the question of valuation of the goods for the purpose of assessment as well as with other questions.
Appeal is dismissed only on the ground that it is not maintainable under Section 35 G of the Act.
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2017 (3) TMI 1608
Pre-deposit - maintainability of appeal - Held that: - either the unamended or the amended provision of appeal is couched and in such a language as would only enable the petitioner to avail of the remedy only if there is compliance with arbitrary and exorbitant conditions - the conditions imposed by the statute are either excessive or arbitrary requiring our interference in writ jurisdiction, particularly in the absence of any material in that behalf - petition dismissed on the ground that there is an alternate and equally efficacious remedy available to the petitioner.
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2017 (3) TMI 1607
Set off of unabsorbed depreciation - whether to be dealt with in accordance with the provisions of Section 32(2) of the Income Tax Act as amended by Finance (No.1) Act, 2001 and not by the provisions of Section 32(2) as it stood before the said amendment? - Held that:- The issue arising in the present appeal stands concluded against the Revenue and in favour of the respondent-assessee by the order of this Court [2016 (7) TMI 1245 - BOMBAY HIGH COURT] as held that the unabsorbed depreciation for the Assessment Year 1997-98 upto Assessment Year 2001-02 could be allowed to be set off, if it was still unabsorbed on 1st April, 2001. CBDT circular No.14 of 2001 dated 22nd November, 2001 hold that any unabsorbed depreciation which is available on 1st day of April, 2001 would be dealt with in accordance with the provisions of Section 32(2) of the Act as amended by the Finance Act of 2001. Moreover, the Circular No.14 of 2001 issued by the CBDT clarifies that restriction of eight years to carry forward and set off the unabsorbed depreciation has been dispensed with. Consequently, unabsorbed depreciation for the intervening periods between assessment 1997-98 upto 2001-02, if available in the assessment year 2002-03 would be allowable as part of carried forward depreciation from Assessment Year 2002-03 onwards. - Decided in favour of assessee.
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2017 (3) TMI 1606
Refund claim - unjust enrichment - Held that: - The deduction of the service tax is not a benefit which will amount to undue enrichment as the burden of payment of service tax cannot be passed on to the consumer - Once the liability of service tax was of the assessee, therefore, it is the assessee alone who would be entitled to refund - appeal dismissed.
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2017 (3) TMI 1605
Extended period of limitation - Cargo Handling Service - Held that: - The question as to whether the cargo handling contract given to the assessee by M/s. Manganese Ore India Limited fell within the definition of Section 65(23) of the Finance Act, 1994 itself was subject matter of bona fide interpretation - Since the levy itself was subject matter of interpretation, it cannot be said that the assessee had any intention to evade payment of service tax which alone would entitle the Revenue to apply the extended period to recover the service tax - appeal dismissed.
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2017 (3) TMI 1604
Reopening of assessment - reasons to believe - Held that:- It is clear that the reasons recorded for re-opening of the assessment was already examined by the AO in the assessment made u/s.143(3) r.w.s.147 of Income Tax Act on 30.12.2010 and the Ld.AR submitted that no fresh material is available to the AO to re-open the assessment. The Revenue could not establish that the income has escaped assessment due to the failure on the part of the assessee. Therefore, we hold that the notice issued u/s.148 lacks jurisdiction and the same is quashed. Appeal of the assessee is allowed.
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