Try our new portal www.taxtmi.com for a better experience!

Home

Case Laws

Home Case Index All Cases Income Tax Section Wise 2010 2010 (6) This

Law
Court
Citation	- -
Landmark
Order by

Advanced Search Options

Case Laws

Showing 341 to 360 of 639 Records

2010 (6) TMI 494

Appeal to Tribunal - Concessional rate of duty - Claimed of benefit of concessional rate of duty in terms of Notification No. 21/2002-Cus - The Commissioner (A), which were rejected on the ground that the claim for the benefit under the said notification was not raised before the adjudicating authority - The plea for coverage under the notification can be raised by the assessee before the lower appellate authority who should have examined the merits of the claim or remanded the case to the adjudicating authority for such examination - Therefore, set aside the impugned order - The appeal is thus allowed by way of remand.
2010 (6) TMI 491

Waiver of the pre-deposit - Limitation - Cargo handling services - Period 16-8-2002 to 30-6-2002 - The issue of categorization of services rendered by the appellant was in dispute during the relevant period and divergent views were taken by the Benches and hence there was a reference to the Larger Bench - find strong force in the contentions raised by the learned counsel that the issue was not free from doubt and they had a bona fide belief - Hence, show-cause notice issued on 18-7-2007 for the period in this case from 16-8-2002 to 30-6-2003 is hit by limitation - The appellants have made out a prima facie case for waiver of the amounts involved - Decided in favour of assessee.
2010 (6) TMI 489

Penalty - It is in respect of the disallowances made by the A.O u/s 14A to Rs. 3,10,058 and u/s 80HHC at Rs. 4,92,99,692 - Supreme Court in the case of CIT vs Reliance Petroproducts Ltd (2010 (3) TMI 80 - SUPREME COURT) it was held that merely because the assessee has made some legal claim which has not been accepted by the A.O. that will not amount to furnishing of inaccurate particulars of income of the assessee – Appeal is allowed
2010 (6) TMI 487

DTAA - TDS - Royalty - Singapore company vide their sales order dated 18th December, 2001 has supplied the licensed software to the assessee for a consideration of USD 43,000 - Delhi Special Bench of the Tribunal in the case of Motorola Inc. Vs. DCIT reported has Held that: one cannot have the copyright right without the copyrighted article but at the same time just because one has the copyrighted article, it does not follow that one has also the copyright in it - a computer software when put into a media and sold, it becomes goods like any other audio cassette or painting on canvass or book - Held that: the amount paid by the assessee towards purchase of IXOS-eCON for R/3 50 users cannot be treated as payment of royalty taxable in India under Article 12 of DTAA between India and Singapore - Decided in the favour of the assessee
2010 (6) TMI 485

Assets - Whether the immovable property owned by the Assessee can be included in the net wealth of the Assessee? - Held that: - the Assessee had given the property on lease and therefore it cannot be said that he was in occupation of the property for the purpose of a business or profession carried on by him. The exclusion clause in the definition of ‘assets’ u/s. 2(ea) of the Act contemplates physical possession by the Assessee as opposed to dejure possession. - the Value of the the immovable property owned by the Assessee has to be included in the net wealth of the Assessee.
Regarding valuation - Computation of GMR - if the actual rent received is much higher than the annual value assessed by local authority then that has to be taken as laid down in Rule-5(i) of Schedule-III to the Act. - the registered valuer report was never filed before the WTO and therefore the same cannot be taken cognizance. - under Proviso (iii) to Expln., to Rule 5 Schedule-III to the Act, the addition of 15% interest on interest free security deposit to the annual rent received by the Assessee was proper and in accordance with law. -
2010 (6) TMI 483

Unaccounted investment – Addition of Rs.43,59,881 out of Rs.2,18,26,105 - The first legal issue raised is that the cost of construction was referred to the DVO without pendency of any proceedings u/s.153C of the IT Act for A.Y.2005-06 - On the basis of evidences, that the assessee has regularly maintained books of account and various records along with supporting evidences of various raw materials like cement, steel, bricks, sand, wood, labour cost, sanitary wares etc. but the AO has not found out any defect in the books/records/bills etc. and has not rejected books of account - Without causing any defects in books regularly maintained and without rejecting the books u/s.145, of the Act there is no reason to add any amount on the presumption that the cost/investment in construction is low
Referring the matter to the DVO u/s.142A of the Act for the purposes of estimating the cost of construction u/s.69 of the Act - It is quite apparent that reference to valuation cell u/s.142A can be made during the course of assessment and reassessment and not for the purpose for initiating reassessment - From the reading of sub-s.(1) of s. 142A, it is clear that the legislature referred to the provisions of ss. 69, 69A and 69B but specifically excluded 69C - In fact during the course of arguments, learned counsel for the assessee produced the assessment order which clearly demonstrates that the expenditure shown by the assessee from the time, when it was an on-going project, was examined and accepted by, the AO - If the intention of the Legislature to include unexplained expenditure as contemplated in Sec.69C of the Act, the provision of Sec.142A should have been specifically mentioning the same – Decided in the favour of the assessee and against the revenue
2010 (6) TMI 481

Addition of income - ceased liability u/s 41(1) - The AO made the additions on the basis that the assessee had shown the liabilities in respect of the expenditure incurred during the years but he has not given the details and addresses of the parties and thus are not verifiable, hence, the liabilities claimed in respect of the expenditure incurred, has ceased and income is liable to tax u/s 41 (1) of the IT Act - The assessee submitted before the learned CIT(A) that these are very old creditors and hence does not have Permanent Account Numbers and confirmations of these parties - Section 41(1) of the IT Act is attracted when there is cessation or remission of a trading liability - However, considering the provisions of section 41 (1) would not apply to the facts and circumstances of the case; there is no need to give further findings on this issue – Appeals are allowed
2010 (6) TMI 479

Demand - In terms of the remand order passed by this bench it was incumbent upon the importer to adduce evidence to the satisfaction of the Commissioner about the “foreign-going” nature (if any) of M.V. Kashi Sagar - It is seen from the agreement that the vessel could be plied not only in the coastal waters of India but also at the Bombay High beyond the territorial waters - In respect of the goods covered by the transshipment permit dated 21-1-92, there is no evidence adduced by the respondent to show that the vessel has actually sailed between the Indian territorial waters and Bombay High during the material period - In the result, M.V. Kashi Sagar is not liable to be classified as foreign-going vessel for the purpose of Section 87 of the Customs Act, and consequently the respondent will have a duty liability - Admittedly, the demand of duty is for a period beyond the normal period of limitation prescribed under Section 28 of the Customs Act - Decided in the favour of the assessee
2010 (6) TMI 477

Extension of the warehousing period - Interest on warehoused goods - The delay in clearance of goods was occasioned on account of the classification dispute - Held that:- when the petitioner had not been able to show reasons and circumstances beyond its control for seeking re-extension, no infirmity can be found in the impugned order of the Chief Commissioner in not extending the warehousing period. - Except for stating that the delay had been caused by the respondents, no specific averments have been made to point out as to how the respondents are responsible for delay, or as to how the factual findings recorded by the Chief Commissioner are erroneous. In the circumstances, the petitioner has not been able to point out any prejudice on account of non-supply of the said reports. - etitioner is not entitled to the relief prayed for in the petition.
2010 (6) TMI 475

Capital or Revenue Expenditure - Delhi High Court in the case of CIT Vs. Hi Line Pens Pvt. Ltd., (2008 -TMI - 30864 - HIGH COURT DELHI) - Held that - nature of expenses were renovation of rental premises by having false ceiling, fixing tiles, replacing glasses, wooden partitions, replacement of electric wiring, earthing, replacement of GI pipes etc - the expenditure incurred by the assessee in the present case is revenue expenditure and has to be allowed as a deduction
Regarding disallowance of bad debt - In the present case, the Assessing Officer has not disputed that the debts have in fact been written off as bad and irrecoverable in the accounts of the assessee for the previous year - Hon'ble Supreme Court in the case of T.R.F.Ltd. Vs. CIT, (2010 -TMI - 76626 - SUPREME COURT) - Accordingly decided in the favour of the assessee
Regarding disallowance of reimbursement of expenses to the parent company - Invoice clearly mentions the fact that it is recharge of cost incurred by the parent company - Hon'ble Bombay High Court in the case of CIT Vs. Siemens Aktiongesellschaft, (2008 -TMI - 32211 - BOMBAY HIGH COURT) - Held that reimbursement of expenses cannot be the subject matter of disallowance u/s. 40(a)(i) of the Act - In the result, appeal by the assessee is partly allowed
The necessary approval from Reserve Bank of India had been obtained and the amount was utilized for the purpose of clearing the outstanding liabilities that the assessee had and to meet its overhead expenses - In the result, appeals by the Revenue are dismissed while appeal by the assessee is partly allowed
2010 (6) TMI 473

Cenvat credit - Remission of duty - As a result of explosion on 3-11-98 in the factory premises of the assessee, certain semi finished goods were destroyed. - The assessee approached the Revenue for remission of duty on the said semi finished goods which request was rejected. The appellant approached the Tribunal and the matter was remanded vide Order dated 16-8-07 for passing a reasoned order. It is seen in remand Commissioner vide his order dated 29-10-07 observed that since the goods that were destroyed in the factory on 3-11-98 were semi finished goods which were yet to attain RG-1 stage and therefore not attracting any central excise duty. He accordingly rejected the remission application. - Show cause notice was issued to the respondents on 29-4-99 seeking to recover the modvat credit of duty involved in the inputs used in the manufacture of the semi finished goods - Revenue’s appeal lacks merit and is rejected accordingly - The issue of reversal of credit would arise only when the final product destroyed in the fire has been allowed remission of duty.
2010 (6) TMI 472

Cenvat credit - Input services -the appellants were manufacturer of excisable goods and the issue was relating to admissibility of cenvat credit on input services and therefore, appeals should have been filed under Section 35B of Central Excise Act, 1944, whereas the appeals nave been filed by using ST-7 forms - There was no Commissionerate at Valsad during the relevant time and the appeals have been filed in the form of ST-7 - Hence, the appeals filed by the Revenue are rejected as not maintainable.
2010 (6) TMI 469

Provisional assessment - Valuation - Refund - While the matter was remanded by the Tribunal to the Commissioner (Appeals) to consider the evidence on record to verify whether the incidence of duty has been passed on to the buyers or not with a liberty to the appellant to produce the evidence in support of their contention - Commissioner (Appeals) had considered the documents like ledger A/Cenvat credit, C.A. Certificate, Balance sheet and invoices but did not specify that what more evidence is required to verify the claim of the appellant - appellant has been able to establish that incidence of duty has not been passed on to the buyers. Accordingly, he is entitled to claim the refund.
2010 (6) TMI 468

Demand - Prima facie Section Note 6 to Section XVI of the Customs Tariff and Board’s Circular relied upon by the appellants support the case of the appellants that the process undertaken by them amounts to manufacturing - Secondly, if the Department’s view is held to be correct that no further manufacturing has been done, then no further duty would be payable on the finished goods - Hence taking into account the payment of about Rs. 33.00 Lakhs already made by the appellants as against the demand of Rs. 44.00 Lakhs - Balance amount of pre-deposit is waived accordingly
2010 (6) TMI 465

Penalty - Cenvat credit - First stage dealers - The appellants had neither purchased the goods from the manufacturer M/s. Swastika Pipe Ltd. nor from the their consignment agent - rather they had purchased the goods from M/s. Rameshwar Das Devi Dayal (P) Ltd., who was only an indenting agent and not the consignment agent of the manufacturer , that the appellants are not covered by the definition of first stage dealer as rightly held by the adjudicating authority - The accountant, of the appellant clearly shows that the appellant were aware that in respect of the goods purchased from M/s. Swastika Pipes Ltd., they are not the first stage dealer but they still issued invoices by posing themselves as first stage dealer.
Held that: the penalties have rightly been imposed on the appellant - However, in view of nature of contravention and the fact that the cenvat credit has been allowed by the Commissioner (Appeals) to the end users, the penalties on the appellant are reduced to 25% of cenvat credit demand.
2010 (6) TMI 464

Demand - Port services - Disallowance of Cenvat credit - Held that: Cenvat credit taken in respect of the service tax paid on insurance charges taken for the individual employees who are working within the port area. allowed.
100% credit on Capital Goods - demand and penalty set aside but interest confirmed.
Terminal charges/port charges retained by the appellant from out of the sale proceed of auction of goods that were not cleared by the importers - the auctioning of the goods not cleared by the importer is not a port service rendered by the importer and hence cannot be subjected to any service tax.
Pre stage operations - appellant had created infrastructure facility for examination of the cargo by the customs authorities, before it enters into port area. - charges which are collected are in the nature of fees for making available the infrastructure to the exporters - these charges collected at the pre-stage yard for the examination of the goods by the customs authorities would not get covered under the category of port services.
Sharing of Income - Since the amount which has been received by the appellant is an amount on which service tax liability has already been discharged by M/s. CONCOR, the said amount cannot be held to be taxable under the category of port services in the appellant’s hand
Cenvat Credit on banking services - amount of ST debited by bank - Since the documents were not produced and not explained before the adjudicating authority - the adjudicating authority to reconsider this issue afresh after following the principles of natural justice and come to a conclusion.
2010 (6) TMI 462

DTAA - Fees for technical services or business income - There is no finding by the AO or CIT(A) that there was a profit element embedded in the payments received from the Assessee from its agents in India - Installation and operation of sophisticated equipments with a view to earn income by allowing customers to avail of the benefit of the user of such equipment does not result in the provision of technical service to the customer for a fee - The Hon’ble Delhi High Court in the case of DIT v. K. Royal Dutch Airline, (2008 -TMI - 31360 - DELHI HIGH COURT) upheld that rent received was also income from operation of aircraft in international traffic - Accordingly the receipt is considered as business profit, the same cannot be taxed in India because the assessee does not have PE in India - Decided in the favour of the assessee
2010 (6) TMI 460

CENVAT credit - Utilize the credit on molasses for payment of duty on sugar - The proviso to Rule 57F(12) enabled the assessee to utilize the credit of duty paid on molasses, towards payment of duty on sugar - The existence of the sugar and distillery divisions as two distinct units within the same factory would not ipso facto disentitle the assessee - If there is any conflict between the Tribunal’s decision and the Board’s clarification, the former will prevail - Hence, the assessee’s appeal succeeds and the Revenue’s fails
2010 (6) TMI 458

Depreciation - Composite purchase of various assets - Held that: the hardware under question, involved in the execution of the printing processes by the assessee, does not qualify to be categorized as ‘computers’ and, thus, not eligible for a higher rate of depreciation in its respect.
Claim of abour charges - services provided by the supplier of goods - Payment without TDS - dis allowance u/s 40(a)(ia)- As such, it is difficult to say that the contract is for the supply of labour or for work, and would rather fall to be categorized as one for purchase of goods, though on which some labour work stands performed - The assessee is buying goods in the processed form, and it is not the Revenue’s case that material stands bought in the unprocessed form at first stage and then given for job work - There is no finding in the present case by any of the authorities below quo existence of a separate contract in respect of labour work - Disallowance made by AO deleted.
2010 (6) TMI 456

The Appellate Tribunal CESTAT, Kolkata dismissed the appeal against the Commissioner of Customs' decision to not extend a CHA license, stating that the Tribunal does not have jurisdiction as the order was not passed under the relevant regulations. (2010 (6) TMI 456 - CESTAT, KOLKATA)