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Showing 341 to 360 of 1439 Records
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2015 (7) TMI 1103
Period of limitation - Assessment is out of time - not initiated or completed within five years from the expiry of the year to which tax relates - Section 19 of the KGST Act - Amendment to Section 17 of the KGST Act - authority has power to complete the assessment in terms of section 19 of the KGST Act - Held that:- Sections 17 and 19 of the KGST Act operate in a different domain. Section 17 of the KGST Act relates to the assessment. Section 19 of the KGST Act relates to the assessment of escaped turnover. In section 19 of the KGST Act, specifically five years time is provided. Unless and until that five years is altered or amended by statutory provision, that cannot be taken away by an amendment to section 17 of the KGST Act. Section 19 of the KGST Act being an independent provision, necessarily, the limitation has to be reckoned in terms of section 19 of the KGST Act itself and not with reference to section 17 of the KGST Act. In view of the fact that there is no corresponding amendment to section 19 of the KGST Act, the assessment in terms of section 17 of the KGST Act is barred by limitation. - Decided in favour of petitioner
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2015 (7) TMI 1102
Addition on account of finance charges/interest on borrowed funds - whether assessee could not prove with evidence at the time of assessment that the borrowed funds are wholly exclusively used for business purpose or diverted to give interest free advance to sister concern - Held that:- The assessee purchased non-convertible debentures of ETHL Communications Series-A on 11/02/2010 being 171 number of units of face value of ₹ 10,00,000/- and deal value of ₹ 15,09,93,000/-. Thus, it is seen that the Commissioner of Income Tax (Appeals) after verifying this letter has arrived at a conclusion that the amount borrowed was for purchase of debentures and not for any other purpose by the assessee. Further no evidence was brought on record by the Revenue to show that the assessee has advanced interest bearing funds to its subsidiaries as interest free advance - Decided in favour of assessee
Addition made on account of interest free loans advanced to the sister concerns - Held that:- We find that the Commissioner of Income Tax (Appeals) has observed that the assessee had given interest free advances to its subsidiaries in its business requirements. He placed reliance on the decision of the Hon’ble Bombay High Court in the case of CIT-7 Vs. Reliance Communications [2012 (5) TMI 160 - BOMBAY HIGH COURT ] and has held that where interest free borrowed funds are advanced as interest free loans to its subsidiaries for business expediency, the interest cannot be disallowed. Commissioner of Income Tax (Appeals) held that in the case of the assessee, business expediency exists and interest free own funds have been advanced. No interest expenses have been claimed by the assessee on this account. Therefore, he correctly deleted the notional interest - Decided in favour of assessee
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2015 (7) TMI 1101
Notice u/s 153C – Search and seizure u/s 132(1) – Satisfaction note - Held that:- Matter stands covered against the Revenue by virtue of the judgment of this Court in Pepsi India Holdings P. Ltd. v. ACIT (2014 (8) TMI 898 - DELHI HIGH COURT) wherein held Tthe finding of photocopies in the possession of a searched person does not necessarily mean and imply that they “belong” to the person who holds the originals - Possession of documents and possession of photocopies of documents are two separate things.
The finding of photocopies in the possession of a searched person does not necessarily mean and imply that they “belong” to the person who holds the originals - Possession of documents and possession of photocopies of documents are two separate things - the ingredients of Section 153C of the Act have not been satisfied - thus, the notice issued u/s 153C is set aside – Decided in favour of Assessee.
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2015 (7) TMI 1100
Scope of assessment u/s 153C - Held that:- The Court is of the view that the essential principle of law that has been settled by this Court in Pepsico [2014 (8) TMI 898 - DELHI HIGH COURT ] in regard to the interpretation of the words “belongs to” in Section 153 C of the Income Tax Act, 1961 would apply on all fours to the facts of the present case irrespective of whether the document recovered (viz., the accounts) is in the form of a hard copy or a hard disk.
Consequently, the Court does not find any error in the impugned order of the ITAT which gives rise to a substantial question of law.
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2015 (7) TMI 1099
Eligibility of Container Freight Station as infrastructure facility for the purpose of deduction under section 80-IA(4) - Held that:- In view of the status of CFS having been clarified by the Ministry of Commerce and Industry as "inland ports" and the Chennai Port Trust has issued a certificate stating that the CFS of the assessee may be considered as extended arm of the Port in accordance with the Central Board of Direct Taxes Circular No. 793 dated June 23, 2000, read with Circular No. 133 of 1995-Cus dated December 22, 1995 of the Central Board of Excise and Customs, New Delhi, we hold that the assessee is entitled to the benefit under section 80-IA of the Income-tax Act.- Decided in favour of assessee.
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2015 (7) TMI 1098
Recovery of duty alongwith interest and imposition of penalty - Clandestine removal of MS ingots - 10 consignments of MS ingots weighing 150MT, involving central excise duty of ₹ 4.92,464/- was cleared by the appellant to M/s. Ranbir Steel Industries without payment of central excise duty - Held that:-the demand of duty was confirmed based on the assumption and presumption only and in the absence of any positive evidence of clandestine removal of goods without payment of duty, the charge of clandestine removal cannot be levelled against the appellant. Thus, the central excise duty confirmed by the authorities below along with interest and imposition of penalty under Section 11 AC of the Central Excise Act, 1944 is not legal and proper. Therefore, the impugned order is set aside. - Decided in favour of appellant with consequential relief
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2015 (7) TMI 1097
Seeking direction to issue NOC to allow clearance of duty payable on perishable goods - Imported Rostaa processed triangle cheese lying in the warehouse for more than four months.
Held that:- the petitioner as per the requirement of notification S.O. 655(E) dated 07.07.2001 of the Ministry of Agriculture imported the subject goods into India with a SIP and the said shipment arrived into India on 10.09.2014, which is prior to the notification S.O. 2666(E) was introduced on 17.10.2014. Therefore, the notification S.O. 2666 (E) itself provides a remedy to the petitioner in terms of applicability of the provision of S.O. 655 (E) over its subject goods. Since the consignment already arrived before the notification S.O. 2666 (E) came into force, the argument that the petitioner‘s subject goods satisfy the requirements as prescribed under S.O. 655 (E) find favour with this Court.
However, as the petitioner has not been able to convince this Court so as to whether the said certification meets the Indian vegetarian requirements and standards. Therefore, the submission of the respondents that the conditions need to be certified as the other ingredients viz. cheddar cheese, butter, milk protein concentrate have been imported from other countries by the manufacturer in Egypt in addition to skimmed milk powder from India, finds favour with this Court.
It is a contention of the respondents that the concerned department has asked the petitioner to submit the test reports and animal rennet certification conducted by the Egyptian authority so that the department can examine and take a considerate view, but the petitioner has failed to oblige. Since it has been confirmed now that the Egyptian authorities will not issue the health certificate as per the Indian requirement for this particular consignment, this court is of the view that the testing of the samples has to be conducted in India. There is no justifiable reason so as to understand why any deficiency on the part of the Indian importer/petitioner cannot be made up by the petitioner itself in India. The object of this entire process is to satisfy the respondents/concerned authority that no animal rennet has been used in the process of creation of the subject goods. In order to issue a NOC, the respondents must be satisfied so as to the veracity of the declaration on the label and the requisite tests need to be carried out in this regard.
Therefore, this court gives the liberty to the petitioner to allow the Central Government to take requisite samples of the subject goods for conducting the necessary tests or if the petitioner wants to get the samples tested from the Central Government authorized and approved laboratories; he may be entitled to do so. The results of such samples are to be provided to respondent No.4 who may then take a decision whether the products are entitled to be released or not based upon such samples. Petition disposed of
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2015 (7) TMI 1096
Demand of Service tax - Manpower Recruitment or Supply Agency - Appellant contended that it was only entitled to 5% service charges on actual payment made to labour by SZDUSSL and on such service charges, the service tax has already been deposited. No suppression or wilful misstatements and it was its bona fide belief that the service tax was being rightly discharging by it.
Held that:- it is not in dispute that the gross amount charged for the service was inclusive of the amount of payment made to the labourers and therefore the service tax is leviable on such gross amount and not merely on the amount of commission to which the appellant was entitled. The C.B.E.& C.’s view is also in conformity with this view as is evident from its Circular No. B1/6/2005-TRU, dated 2-7-2005.
Invokation of extended period of limitation - time bar - Held that:- in view of the special facts and circumstances of this case, we are of the view that adequate ground exists to sustain the contention of the appellant that there was no wilful suppression or mis-statement of facts on its part with the intention to evade service tax. The entire demand pertains to the period beyond the normal period of one year and hence is hit by time bar. Therefore, the demand is set aside. - Decidde in favour of appellant
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2015 (7) TMI 1095
Determination of assessable value of export goods - Iron ores - exported after 1-1-2009 - Held that:- Tribunal had already decided the issue and observed that for the period after 1-1-2009, the said goods be assessed to duty adopting the FOB Price reported in [2014 (4) TMI 658 - CESTAT KOLKATA] and later followed in the appellant’s own case reported in [2014 (4) TMI 1117 - CESTAT KOLKATA]. By following the same, the said issue is decided in favour of the Revenue and against the respondent.
Whether duty to be calculated on ‘Wet Weight’ basis or on the transaction value on ‘Dry Weight’ basis - period after 13-6-2008 - Held that:- Tribunal had decided the issue in favour of the assessee, observing that the export goods namely, Iron Ore Fines, be assessed to duty, adopting the criteria of ‘Dry Weight’, as agreed to between the assessee and the overseas purchasers, reported in [2014 (8) TMI 213 - CESTAT KOLKATA].
Determination of assessable value - on the basis of Bench-Marked Price of CCCMMC - Evidence/data not supplied to the respondent - Held that:- the matter is remanded back to the ld. Adjudicating Authority for re-determination of the assessable value , after supplying the necessary data to the respondent, in the appellant's own case reported in [2014 (4) TMI 1117 - CESTAT KOLKATA]. - Appeal disposed of
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2015 (7) TMI 1094
Denial of Modvat Credit - certain capital goods and inputs obtained by the appellants - Delay in acknowledging the declaration - Tribunal held that the delay on the part of the Department in acknowledging the declaration cannot be a reason to deny the benefit claimed by the respondent reported in [2003 (9) TMI 642 - CESTAT, BANGALORE] - Court dismissed the appeal by taking the Tribunal's decision as legal
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2015 (7) TMI 1093
Entitlement for bail - Recovery of gold - Petitioner contended that the offence, if it is taken separately, is bailable however, the prosecution has clubbed many past alleged incidences though no recovery of gold was made in the past from the petitioners. In view of above, petitioners are entitled for the bail - Held that:- the issue raised by the applicant has already been decided by the co-ordinate Bench of this Court in the case of Smt. Amal Mubarak Salim Al Reiyami v. Union of India & Ors. [2015 (9) TMI 196 - RAJASTHAN HIGH COURT]. The clubbing of total quantity of gold is permitted to find out whether the offence is bailable or non-bailable. If the total value, after clubbing, comes to more than ₹ 1 crore, it does not remain the bailable offence. - Decided against the applicant
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2015 (7) TMI 1092
Benefit of treatment of value received as cum duty and reduction of penalty - High Court held that there is no evidence to show that value received by assessee was excluding duty and the penalty is reduced reported in [2011 (3) TMI 1649 - GUJARAT HIGH COURT] - Apex Court dismissed the petition as it did not find any reason to entertain these petitions.
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2015 (7) TMI 1091
Maintainability - Letter of Assistant Commissioner - Request for cross-examination rejected - No reason for the same communicated - Held that:- the letter dated 2-7-2015 signed and issued by the Assistant Commissioner (Adjudication) cannot be considered as decision or order passed by the Commissioner (Customs), as the Adjudicating Authority. Even assuming that the said communication is to be considered as an appealable order, yet in view of the fact that the Assistant Commissioner has conveyed the decision of the Commissioner (Customs), but appeal against the said communication is premature, in view of the fact that the order of rejection of the request for cross-examination by the Adjudicating Authority has not been passed and communicated to the appellant. Therefore, the letter of Assistant Commissioner (Adjudication) is not maintainable. - Early hearing application dismissed
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2015 (7) TMI 1090
Levy of penalty u/s. 271D - Held that:- The assessee admitted the fact that the assessee had received a sum of ₹ 20,000/- from each of eleven creditors totaling to ₹ 2,20,000/- in cash. The reasonable cause for receipt of this cash loan was that the assessee received cash loan from relatives, who are neither income tax assessee nor having any bank account. Hence, he has no other alternative except to receive loans in cash for an amount of ₹ 20,000/- from each of them. CBDT Circular No.572 dated 03.08.1990 has clearly brought out the provision of section 269SS explaining that “for taking or accepting any loan or deposit in excess of ₹ 20,000/-
Considering above, we find that the facts are exactly identical what was before the Hon’ble Bombay High Court in MADHUKAR B. PAWAR (2008 (6) TMI 321 - BOMBAY HIGH COURT ) and in each of case cash loan is not exceeding ₹ 20,000/- rather it is exactly ₹ 20,000/- - Decided in favour of assessee
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2015 (7) TMI 1089
Non furnishing of name and designation of officers responsible for timely uploading of Central Excise and Customs and Service Tax notification and circulars on the official website of the C.B.E. & C. - Held that:- The FAA has admitted that he had overlooked the fact that the CPIO had not furnished the name and designation of the officer responsible for timely uploading of Central Excise and Customs and Service Tax notifications and circulars on official website of the C.B.E. & C. In view of this the Commission finds that technically there is no legal flaw in the order of FAA and hence it is legally tenable. In view of this no interference with order of FAA is required. We would, however like to suggest that the FAA should as far as possible prescribed a time limit for providing information. The Commission also directs the CPIO to furnish the name and designation of officers responsible for timely uploading of Central Excise and Customs and Service Tax notification and circulars on the official web-site of the CBE & C to the appellant by 15-7-2015.
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2015 (7) TMI 1088
RTI application - Held that:- The Commission is of the considered view that the appellant has been deprived by the respondents deliberately from having the benefits of the RTI Act 2005, even after lapse of more than five months period. Thus, the respondents have defeated the very purpose of the RTI Act, 2005 for which it was legislated by Parliament of India. It is also admitted fact that, as on date, respondents failed to provide the required information to the appellant. As such, the Commission feels that it would be appropriate and even justified to allow the appellant’s second appeal in toto instead of remanding back to learned FAA for disposal of FA which is even more time consuming. Therefore, it is allowed in toto.
Thus the respondents are hereby directed to provide the complete and categorical information, issue-wise, to the appellant as per his RTI application, in accordance with the provisions of RTI Act 2005, within 30 days from the date of receipt of this order under intimation to this Commission. If needed Section 5(4) of the RTI Act, 2005 be also invoked in the matter.
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2015 (7) TMI 1087
Tax effect - monetary limit - ITAT direction to deduct the amount of prior year adjustment out of current year's net profit for arriving at the book profit for the purpose of computation of income under section 115J - Held that:- In view of the Instruction No. 5 dated 10 July 2014 read with decision of this court in CIT v. Madhukar K. Inamdar (HUF) [2009 (7) TMI 145 - BOMBAY HIGH COURT]; CIT v. Pithwa Engg. Works [2005 (7) TMI 66 - BOMBAY High Court ] and CIT v. Smt. Vijaya V. Kavekar [2013 (2) TMI 451 - Bombay High Court] the instruction No. 5 of 2014 issued by the Central Board of Direct Taxes would also be applicable to pending appeals and references.
Nothing has been shown to us to indicate that the issue raised in this particular reference would fall within the exclusion clause of the 2014 Instruction No. 5 of 2014 nor that the issue has a cascading effect or would otherwise be covered by the decision of apex court in CIT v. Surya Herbal Ltd. [2011 (8) TMI 137 - Supreme Court of India ]. In view of the above, we return the reference unanswered.
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2015 (7) TMI 1086
Seeking non-release of foreigners on bail which are in judicial custody - brought six bricks of gold - goods seized and liable to be confiscated - Held that:- as per Chapter 71 of Classifications of Export & Import Items (with Customs Tariff Rates & Exemptions 2015-20) under Notes in clause 4 (A) it is prescribed that “precious metal” meats silver, gold and platinum. The duty upon the said metals is 24.463% and policy on the said metal is free to import. The gold is not banned to be imported in India, but it comes under the restricted items which can be imported only with certain conditions and under policy which is obviously not available to the respondents. Therefore, no doubt, the seized goods are liable for confiscation, penalty and to be dealt under the Customs Act. By granting bail, the learned trial court has not discharged the respondents from the case. Simply because they are foreigners cannot be kept detained in judicial custody if they are entitled to be released on bail. Further the respondents are directed to surrender their pass-ports before the Trial Court. The learned trial court is at liberty to release the respondents on the same terms and conditions as imposed vide its order dated 29.06.2015 and by this Court. - Decided against the revenue
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2015 (7) TMI 1085
Deferred receipt v/s accrued receipt - nature of receipt - assessee is following mercantile system of accounting - Held that:- In the case in hand, it appears from records that in its best interest the assessee had agreed for deferment of fees. Accordingly the original agreement was modified which was supported by a resolution of the board. The genuineness of such modification is not in question as the financial institution was a party to such modification. Therefore, as the accrual of income was deferred prior to the closing of the accounting year, which as evident from facts was for business expediency, and as the right to receive the fee was suspended, the Tribunal was justified in deleting the addition - Decided in favour of the assessee.
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2015 (7) TMI 1084
Penalty u/s 271E - Tribunal upheld the penalty under section 271D and set aside the penalty under section 271E - Held that:- . In so far as the order setting aside the penalty under section 271E, is concerned, we do agree with the findings rendered by the Tribunal by accepting the contention of the assessee, that he was constrained to repay the loan account as per the whims and fancies of A. Kannan and the repayment of loan amount by way of cash is out of compelling reasons.Having regard to the statement of the financier, A. Kannan. The Tribunal, after having duly appreciated the difficulty faced by the borrower in the hands of the financier and their compulsion to accept the terms imposed by the money lender, accepted the explanation and such findings need not be interfered by us and the same disentitles the Revenue to get any order in their appeals
One consistent stand taken by the assessee before the authorities below that the assessee was deprived of valuable opportunity to defend his case for want of copy of the statement given by the financier Kannan and the copy of the materials seized from him and without giving him an opportunity to cross-examine Kannan is acceptable. The Commissioner of Income-tax (Appeals) as well the Appellate Tribunal though allowed the party to raise additional ground regarding the urgency for receiving the amount in cash and also to produce additional documents, have not duly applied their mind to ascertain the genuineness and relevancy of the same in deciding the issue in hand. The authorities below have also omitted to consider that there is serious violation of the principles of natural justice in not allowing the assessee to have the copy of the statement of the financier Kannan and the documents seized from him and to cross-examine him. Such failure on the part of the authorities below, in our considered view, has deprived the assessee of his valuable opportunity to satisfactorily prove the reasonable cause for receiving the amount in cash and to defend his case properly and effectively. As such, we feel that it is a fit case, to give the assessee such an opportunity and for such purpose, set aside the impugned order and to remand the same for fresh disposal, after giving the copies of the relevant documents to the assessee and after giving him an opportunity to cross-examine the witness and after duly considering the additional grounds raised and additional documents produced by the assessee and the substantial questions of law are accordingly decided in favour of the assessee.
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