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Showing 341 to 360 of 925 Records
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2012 (6) TMI 592
Applicability of section 80-I(9) - section 80-I(8) could apply only where the goods had been transferred from one unit to other unit at less than the market price – Held that:- since there was no difference between the transfers from the combing unit to the spinning unit, there was no justification for making any adjustments as made by the Assessing Officer - Tribunal on appreciation of evidence concluded that there was no difference in the rate adopted by the assessee in respect of transfers from the combing unit to the spinning unit and that the provisions of section 80-I(8) and (9) were not attracted in the present case - In favour of the assessee.
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2012 (6) TMI 591
Condonation of delay - assessee had not been keeping well and hence, he could not pursue and attend the assessment proceedings and file the appeal within time before the Commissioner of Income-tax (Appeals) – Held that:- assessee had not been able to fortify the above cause. The plea of the assessee has not been accepted to be bona fide - Assessing Officer also clearly shows that the assessee had not been co-operative in getting the assessment finalized and had not even filed the return - assessee had not been appearing and answering to the questionnaire issued by the Assessing Officer - prayer of the assessee for condonation of delay rejected
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2012 (6) TMI 590
Whether Tribunal was right in upholding the disallowance of 50 per cent. of the sales promotion expenses for free distribution of gift articles along with the appellant's product are based on any material or evidence and/or have been arrived at by ignoring and not considering the relevant material – Held that:- Gift articles were purchased and the same were sent to depots of the appellant at various places and the depot registers are maintained. Payments to the supplier were made by account payee cheque or otherwise. If this evidence is considered then it is established beyond doubt that the gift articles were purchased, and there has been no evidence that the same could not be utilized - order of Tribunal is not sustainable
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2012 (6) TMI 589
Dismissal of Appeal - delay of 2(two) days - Held that:- The bill of entry is dated 13.02.2006 and the date of challan is 13.02.2006 - Commissioner (Appeals) rejected the appeal on the premise that the Cheque is dated 10.02.2006 not giving any finding regarding the date of challan which is 13.02.2006 - it cannot be held that appeal is filed after time limit prescribed - case is remanded o decide the issue on its merit - in favour of assessee.
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2012 (6) TMI 588
Winding up petition filed u/S 433(e) and (f) of the Companies Act - petitioner, Director of the respondent Company, and also employed as CEO in the respondent company seeking to realize the amount due towards annual bonus with 15% interest and towards balance of Consultancy fee - in respect of the other claims the petitioner has initiated Arbitration proceedings as per the terms of the agreement - Held that:- Settled position of law is that the dispute would be substantial and genuine, if it is bona fide and not spurious, speculative, illusory or misconceived, it is also the position that the company Court at that stage is not expected to hold a full trial of the matter and it must decide whether the grounds appear to be substantial. In the background of facts, dispute raised by the respondent company will have to be considered as substantial and not spurious, illusory and misconceived. The petitioner will have to therefore establish his claim in an action. In any event, the petitioner has admittedly raised a claim before the Arbitrator wherein he can secure complete adjudication. At this stage, since it cannot be classified as an admitted debt, no reason is seen to exercise the discretion vested in this Court to entertain the petition - Petition dismissed.
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2012 (6) TMI 587
Winding up petition seeking advertisement - before admitting winding up petition and directing publication of company petition, it is necessary to consider question whether any prima facie case is made out by petitioning creditor – Held that:- when the learned judge has held that there was sufficient compliance of section 433(a), before ordering advertisement, the learned judge ought to have afforded opportunity to the appellant to put forth their case so as to be convinced about the prima facie case of the first respondent - statutory provisions regarding the inbuilt safeguard under the Act has not been complied with and the impugned order directing the effecting of advertisement and the appointment of the official liquidator as a provisional liquidator cannot be sustained - advertisement and publication of the winding up petition in the Official Gazette of Tamil Nadu and local dailies is set aside
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2012 (6) TMI 586
Whether appellant is required to reverse the Cenvat credit availed on the inputs and the capital goods, while clearing the same to its sister unit or is required to pay duty on the higher rate, applicable at the time of clearance of the same - Held that:- Issue is no longer res integra. It is held in various decisions that during the relevant period, reversal of Cenvat credit originally taken is required to be followed, at the time of clearance of inputs/capital goods as such. See Eicher Tractors Vs. CCE, Jaipur (2005 (9) TMI 340 (Tri))
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2012 (6) TMI 585
Denial of SSI exemption - the specified goods manufactured by assessee are affixed with the brand name of a foreign person, or a trader who is not a manufacturer – appellants contention that that the impugned brand names were owned by the 100% holding companies of the appellant-company which should not be considered completely different from its subsidiary - Held that:- Following the judgment of the Single Bench of the Calcutta High Court in the case of ESBI Transmission Pvt. Ltd. v. CCE - 1997 (1994 (9) TMI 99 (HC)) stating that it has been held that there is no bar to availing SSI exemption if the unit is using a trade mark belonging to the foreign firm so long as the said unit is exclusive owner of the said trade mark in India - in favour of assessee.
Whether the price at which the respondent sold the product should be treated as cum duty price and therefore the excise duty should be deducted from the price for arriving at the assessable value – Held that:- The case to be remanded back to the Commissioner for re-quantification.
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2012 (6) TMI 584
SSI Exemption - brand name - Invoking extended period of limitation u/s 11AC - technical know-how agreement entered between the assessee and the West German Company were not disclosed to the Department – the goods manufactured by the assessee have been cleared by the assessee with an endorsement “in collaboration with the West German Company” which constitutes user of the brand name - Held that:- Inscribing words “in technical collaboration with West German Company” would not constitute user of the brand name of the West German Company deserves acceptance - The fact that the assessee did not disclose the 1975 agreement does not enhance the case of the revenue, because the said agreement was only a technical know-how agreement and not an agreement for user of the brand name - the technical know-how agreement entered into by and between the assessee and the West German Company has expired in the year 1980 and the same has not been renewed thereafter – as there are various decisions of Tribunal and Apex court against revenue, merely because, the Apex Court subsequently in the case of Grasim Industries Ltd(2005 (4) TMI 64 (SC)) ruled to the contrary, it could not be said that the assessee had suppressed material facts - against revenue.
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2012 (6) TMI 583
Recovery of deemed Cenvat Credit availed through fraudulent bills - penalty under Rule 27 imposed - liability of bank - Held that:- The act of discounting export bills or sending export bills for collection as part of normal banking operations by the appellant bank would not render the export goods liable to confiscation and the bank liable to penalty - a banking transaction would not normally violate the Central Excise law or the Rules, especially when the same is carried out as part of the normal banking operations - no penalty can be imposed on the banking company as the maximum penalty under the said Rule is only Rs.5,000 whereas Commissioner imposed a penalty of Rs.5 lakh u/r 27 which show clear non-application of mind and ignorance - in favour of assessee.
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2012 (6) TMI 582
Whether a co-operative bank can be held to be liable for service tax in respect of providing banking and other financial services as covered by the expression "or any other body corporate, or any other person" used in Section 65 (105)(zm) and sub-section 65 (12) - Held that:- Tribunal held in case of Madhav Nagrik Sahkari Bank Ltd Vs. CCE Indore-I (2012 (3) TMI 283 (Tri)) that even the cooperative bank will be covered by the heading "any other body corporate, or any other person" used in Section 65(105)(zm) and sub-section 65(12) of the Finance Act, 1994 and would be liable to pay service tax. Hence directed to make pre-deposit and subject to deposit of the tax amount, pre-deposit of penalty and interest stands waived - Decided against the assessee.
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2012 (6) TMI 581
Adjustment of excess service tax paid for the discharge of service tax liability for the subsequent period – Held that:- Considering submission that the appellants had wrongly mentioned the provisions of Rule 6 (4A) but in fact the provisions of Rule 6(3) will be applicable in this case no point to deny the adjustment to be made – in COMMISSIONER OF C. EX., MYSORE Versus POWERCELL BATTERY INDIA LTD.[ 2010 (3) TMI 357 (Tri)] it was decided that where an assessee has paid to the credit of Central Government service tax in respect of a taxable service the assessee may adjust the excess service tax so paid by him (calculated on a pro rata basis) against his service tax liability for the subsequent period – in favour of assessee.
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2012 (6) TMI 580
Demand of service tax – C&F services - demands stand confirmed by taking the entire consideration figures from the balance sheet of the appellant – Held that:- Service Tax discharged by treating the services as Business Auxiliary services is to the tune of around Rs. 13,87 lakhs approximately. applicant-appellant directed to make further deposit of Rs. 2.5 lakhs
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2012 (6) TMI 579
Waiver of pre-deposit - services of maintenance and repair – Held that:- no maintenance contract between the appellant and their client and services have been provided under the rate contract. As and when their client required the services of the appellants, they entrust the work to them at the rates agreed by them in the contract. Decided in favor of assessee.
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2012 (6) TMI 578
Cenvat Credit – service tax paid on manpower recruitment, maintenance, electrical maintenance, ship fees, mobile phone services, insurance of building involved, service tax in rent a cab and the mobile services – Held that:- services were covered by Order of this Tribunal dated 20.1.2010 wherein the Tribunal has not allowed Cenvat credit in respect of the services given holding that these are not services connected to the manufacture of the goods in respect of the appellants - Credit not available
Availment of Cenvat Credit on the canteen services – Held that:- Cenvat credit is not admissible to the appellants if the cost of the food is borne by the workers of the factory.
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2012 (6) TMI 577
Dis-allowance u/s 40(a)(ia) - TDS u/s 194C - assessee engaged in business of forklift hiring, gives on hire forklift vehicles either owned by him or taken on hire from outside parties - dis-allowance made of hire charges paid to outside parties on hire of forklift vehicles on account of non-deduction of taxes - Held that:- For application of provisions of Section 194C in this case it has to been seen, whether the assessee has entered into any kind of sub-contract with the outside parties from whom he has hired the forklift vehicles on random basis to fulfil his own commitment towards his principals. There is no material on record to remotely suggest that there was any kind of oral or a written contract or sub-contract with the outside parties from whom he has taken the forklift vehicles. Until and unless risk and responsibility of the contract undertaken by the assessee is shifted to the sub-contractors, it cannot be held that these persons are the sub-contractors of the assessee. Hence, assessee was not liable to deduct TDS u/s 194C(2) in relation to payment made to the outside parties and accordingly there is no violation of Section 40(a)(ia) - Decided in favor of assessee.
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2012 (6) TMI 576
Validity of revisionary proceedings u/s 263 - denial of deduction u/s 54F on ground that assessee is not eligible to claim exemption as the assessee had offered income from two house properties at Trichy and Bangalore respectively u/s 64(1)(iv) for which the assessee was considered to be the deemed owner of the said properties - Held that:- If the house properties situated at Trichy and Bangalore are owned by the assessee's wife then the same cannot be considered as owned by the assessee for disallowing exemption u/s 54F. We find that the assessee has brought no material before us to show that either the house property situated at Trichy or Bangalore is not owned by him. CIT also has brought no relevant material on record to show that both the house properties were owned by the assessee. The circumstances in which the income from both the house properties were shown in the return of income by the assessee is also not clear from materials available before us. We, therefore, set aside the order of the CIT and restore the issue back to the file of the CIT for proper enquiry and verification.
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2012 (6) TMI 575
Deduction u/s 10A - exclusion of foreign currency expenses from export turnover and not from the total turnover while computing deduction - Held that:- If an item is excluded from the export turnover, the same should also be excluded from the total turnover to maintain parity between the numerator and denominator while calculating the deduction u/s 10A - Order of lower authorities set aside - AO directed to reduce impugned expenses both from export turnover as well as total turnover - Decided in favor of assessee
Transfer pricing - Adjustment in ALP of the contract software research and development services transaction entered by the Appellant with its associated enterprise - AO without giving any opportunity of being heard adopted ALP suggested by TPO on ground that submissions of the assessee were already considered by the Transfer Pricing authority while passing the order u/s. 92CA - Held that:- Issue remanded back to the file of the AO/TPO to be decided afresh after providing due and reasonable opportunity of being heard to the assessee.
Benefit of +/- 5% adjustment u/s 92C(2) - AY 2006-07 - assessee contended for standard deduction of 5% as provided under erst while proviso to section 92C(2) before making adjustment for the transfer price on ground that amendment brought in by Finance (No: 2) Act of 2009 is prospective in operation and will be applicable from AY 2009-10 and onwards - Held that:- Proviso is not a procedural piece of legislation and therefore, unless it is so clearly intended, the newly amended proviso cannot be understood to be retrospective in nature. In fact, it is a well-settled proposition that the statutory provisions as they stand on the first day of April of the AY must apply to the assessment of the year and the modification of the provisions during the pendency of assessment would not generally prejudice the rights of the assessee. We therefore find no justification to deny the benefit of +/-5% to the assessee in terms of the erstwhile Proviso for the purposes of computing the ALP - Decided in favor of assessee.
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2012 (6) TMI 574
Dis-allowance of foreign exchange loss of Rs 49.12 lacs - Tribunal while allowing appeal of assessee, directed admission of foreign exchange loss to the entire extent of Rs. 99.23 lacs - Held that:- Tribunal directed the admission of foreign exchange loss to the entire extent of Rs. 99.23 lacs on the premise this was the amount which had been disallowed by the Assessing Officer which is a mistake of fact. Hence, we set aside the order of the Tribunal and deem it proper to remand the matter to the Assessing Authority to re-determine the income after taking note of foreign exchange loss of Rs 49.12 lacs.
Expenditure incurred over the office premises for renovation and paying compensation to the lessor which was taken on lease by the assessee - revenue or capital expenditure - Held that:- Amount of Rs 6.73 lacs actually spent by the assessee as a revenue expenditure could have been allowed as a deduction, however, other amount of Rs. 22,19,000/- admittedly paid by the assessee to its lessor can never partake the character of a revenue expenditure and not even as a capital expenditure as the assessee has not constructed the building part but the amount is paid to the lessor. Order of the Tribunal is set aside to this extent and on these two aspects, the matter is remanded to the Assessing Authority.
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2012 (6) TMI 573
Addition of Income tax Receivable to the income of assessee - ignoring the submissions of the appellant that the said income tax (MAT) receivable has never been reimbursed to the assessee - changing the head of income and taxing the same under the head ‘income from other sources’- Held that:- It is relevant to first adjudicate if the additional evidences should be entertained and the consequences of the said decision thereof - examining the additional evidences furnished reveals the correspondence that took place between the assessee and the APTRANSCO and that the said documents do not require any investigation into the basic facts of the issue as they are merely the correspondence between both the parties - issue relating to the correct head of income will be decided after deciding the issue of chargeability - papers filed being admitted the impugned order of the CIT(A)is set aside and restore the matter to the file of the AO for deciding the issue, duly considering, among other things, the additional evidence filed - in favour of assessee for statistical purposes.
Entertaining an additional ground by CIT(A)which was not raised before the AO - AO contested that no revised return was filed - Held that:- As decided in Goetze (India) Ltd. vs. CIT [2006 (3) TMI 75 (SC)]that when making of a new claim before the Tribunal or for that matter the CIT(A), who is also not the assessing officer, but who is the appellate authority, assessee does not have to initiate a new claim before them by way of filing the revised return of income - can be done by way of letters or by way of filing revised computation - against revenue.
Granting of deduction u/s 80IA by CIT(A)- deemed income through insurance premia - Held that:- Every receipt of the industrial undertaking is not an eligible profits derived from the said undertaking. With the categorization done by the Supreme Court based on a logic ie eligible profits and ineligible ancillary profits, the said distinction has to be looked into by the AO while adjudicating the issue - no clear finding of the Revenue authority that it is not derived from the business of the undertaking, there is no clarity as to whether the said income falls as operational income or ineligible ancillary profit - directed to AO TO gather the relevant facts and decide the issue afresh - favour of assessee by way of remand.
Netting of the excess premium received - Held that:- As decided in Lalsons Enterprises Versus Deputy Commissioner Of Income-Tax [2004 (2) TMI 294 (Tri)]the benefit of netting of the excess premium received against the insurance premium amount paid during the year, for taking into account only the differential amount for exclusion from the income eligible for relief under S.80IA of the Act - against revenue.
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