|
Advanced Search Options
Case Laws
Showing 361 to 380 of 590 Records
-
2011 (10) TMI 408
Issues: Imposition of personal penalty for taking cenvat credit on alleged fake invoices
Analysis:
The appeal was filed against an order imposing a personal penalty of Rs. One lakh on the appellant for taking cenvat credit based on invoices from M/s. Subham Textiles, which were alleged to be fake. The Tribunal heard both sides and noted that the entire original order had been set aside in a previous judgment, with the matter remanded back to the adjudicating authority for reconsideration. The learned SDR requested the adjudicating authority to reconsider the issue in this case as well.
After considering the submissions, the Tribunal found that since the original order had been set aside and remanded in a prior judgment, the present matter also needed to be remanded to the adjudicating authority. Following the principles of natural justice, the Tribunal set aside the impugned order and remanded the matter back to the original adjudicating authority for fresh consideration. The appeal was allowed by way of remand, ensuring a fair process in line with the previous judgment.
-
2011 (10) TMI 406
Interpretation of statutes - Taxability of the gains arising on transfer of the capital assets - Asset transferred as "Gift" - Period of Holding - cost of acquisition - deeming fiction in Explanation 1(i)(b) to Section 2(42A).
HELD THAT:- When the legislature by introducing the deeming fiction seeks to tax the gains arising on transfer of a capital asset acquired under a gift or will and the capital gains under Section 48 of the Act has to be computed by applying the deemed fiction, it is not possible to accept the contention of revenue that the fiction contained in Explanation 1(i)(b) to Section 2(42A) of the Act cannot be applied in determining the indexed cost of acquisition under Section 48 of the Act.
To accept the contention of the revenue that the words used in clause (iii) of the Explanation to Section 48 of the Act has to be read by ignoring the provisions contained in Section 2 of the Act runs counter to the entire scheme of the Act. Section 2 of the Act expressly provides that unless the context otherwise requires, the provisions of the Act have to be construed as provided under Section 2 of the Act. In Section 48 of the Act, the expression 'asset held by the assessee' is not defined and, therefore, in the absence of any intention to the contrary the expression 'asset held by the assessee' in clause (iii) of the Explanation to Section 48 of the Act has to be construed in consonance with the meaning given in Section 2(42A) of the Act. If the meaning given in Section 2(42A) is not adopted in construing the words used in Section 48 of the Act, then the gains arising on transfer of a capital asset acquired under a gift or will be outside the purview of the capital gains tax which is not intended by the legislature. Therefore, the argument of the revenue which runs counter to the legislative intent cannot be accepted.
The question of deducting the cost of improvement incurred by the previous owner in the case of an assessee covered under Section 49(1) of the Act would arise only if the period for which the asset was held by the previous owner is included in determining the period for which the asset was held by the assessee. Therefore, it is reasonable to hold that in the case of an assessee covered under Section 49(1) of the Act, the capital gains liability has to be computed by considering that the assessee held the said asset from the date it was held by the previous owner and the same analogy has also to be applied in determining the indexed cost of acquisition.
If indexation is linked to the period of holding the asset and in the case of an assessee covered under Section 49(1) of the Act, the period of holding the asset has to be determined by including the period for which the said asset was held by the previous owner, then obviously in arriving at the indexation, the first year in which the said asset was held by the previous owner would be the first year for which the said asset was held by the assessee.
Since the assessee in the present case is held liable for long term capital gains tax by treating the period for which the capital asset in question was held by the previous owner as the period for which the said asset was held by the assessee, the indexed cost of acquisition has also to be determined on the very same basis.
In the result, we hold that the ITAT was justified in holding that while computing the capital gains arising on transfer of a capital asset acquired by the assessee under a gift, the indexed cost of acquisition has to be computed with reference to the year in which the previous owner first held the asset and not the year in which the assessee became the owner of the asset.
Accordingly, we dispose off the appeal by answering the question in the affirmative i.e. in favour of the assessee and against the revenue.
-
2011 (10) TMI 400
100% EOU engaged in manufacture of cotton yarn and knitted fabrics - Refund claim of Credit denied on the ground that power plant had started functioning on 31/3/08, the goods in respect of which this refund claim had been filed, had been exported prior to 31/3/08 - Held That:- No one to one relation is required to be established between the availment of Cenvat credit in respect of same inputs and input services and their use in the manufacture of final products, that the appellant were eligible for Cenvat credit in respect of input services as soon as the same had been received by them and payment for the same had been made by them. Decided in favour of assessee.
-
2011 (10) TMI 399
Issues Involved:
Refund claim denial, unjust enrichment, remand proceedings, pending show cause notice, fresh order requirement.
Analysis:
The appeal was made against the denial of a refund claim by the appellant, which was the second round of litigation. Initially, the refund claim was sanctioned by the Adjudicating Authority, but the Revenue appealed to the Commissioner (Appeals) who denied the claim citing unjust enrichment. The appellant then appealed to the Tribunal, which remanded the matter back to the Adjudicating Authority to reexamine the issue of unjust enrichment. However, during this process, a show cause notice was issued, and the refund claim was again denied, leading to the current appeal.
The appellant's representative argued that since the Tribunal had directed the Adjudicating Authority to reexamine the issue of unjust enrichment and pass a fresh order, the impugned show cause notice and adjudication were not justified. It was requested that the matter be sent back to the Adjudicating Authority in accordance with the Tribunal's order from August 31, 2010.
Considering the narrow compass of the issue at hand, both the stay application and the appeal were taken up together for disposal after the waiver of predeposit of the impugned demand. The Tribunal found that in the remand proceedings, the adjudicating authority was still tasked with examining whether the bar of unjust enrichment applied to the circumstances of the case. Therefore, issuing a fresh show cause notice was deemed unnecessary. Consequently, the impugned order was set aside, and the matter was remanded back to the adjudicating authority to examine the issue as directed by the Tribunal in its previous order from August 31, 2010. The appeal and stay application were disposed of accordingly.
-
2011 (10) TMI 398
Waiver of pre-deposit - show-cause notice dt. 25.6.2009 in respect of the exports of goods under bond which were lying in stock on 15.8.2008 when the applicants started availing benefit of notification No. 30/2004 and during the month of October only in certain goods on payment of duty - Appeal is allowed by way of remand
-
2011 (10) TMI 397
RG 1 vis a vis Daily production record - Product comes out of reactor in very hot conditions and daily production report maintained on rough estimate basis - Ao issued demand notice as quantity in Daily production report greater than RG 1 - Held that:- Some months the entries in the RG.1 register are more than quantity recorded in the daily production report - Demand on the basis entries made in daily production report which are on estimate basis is not sustainable.
-
2011 (10) TMI 392
Waiver of predeposit - A notice to show cause was issued to the Appellants on 24 October 2008 demanding service tax dues in the amount of Rs . 5.85 crores ; interest therein and to explain as to why penalty should not be imposed - Learned Counsel submitted that the Appellants paid almost 99% of the service tax dues besides 25% of the penalty and interest as required in law - From the record before the Court, it appears from the order of the Tribunal that the Appellants had by their stay application sought a waiver of a predeposit of an amount of Rs . 14,61,843/being the balance amount payable towards service tax and of the penalty - Appellant is directed to deposit an amount of Rs . 25 lakhs within a period of four weeks from today instead and in substitution of the direction issued by the Tribunal
-
2011 (10) TMI 391
Writ petition - Subsidy - Whether increased percentage of subsidy is allowed to assessee - In case of investment made in Modernization/Expansion/Diversification, the amount of subsidy shall be subject to a maximum of 50% of the additional amount of Rajasthan Sales Tax and the Central Sales Tax or VAT payable or deposited whichever is higher, in any of the three immediately preceding years known as base years - As investment predates the issue of notification dated 2.12.05, and particularly in one of the two cases the production commenced only 19 days after 2.12.05, therefore, be no doubt at all that the Applicant Company had started investment for expansion at Ras long before the new scheme was ever conceived The provision of the RIPS 2003 including amendments made thereof on 2.12.05 by addition of clauses 7 (vi) and (vii), were withdrawn on 28.4.06, primarily because of the promulgation of the Rajasthan Value Added Tax Act, 2006, the new tax regime now been legislated across the country in a bid to have a common national taxation system - the special tax dispensation made available to cement units by the issuance of the notification dated 2.12.05 lated but for just about five months - Held that: Applicant Company cannot retain tax subsidy in excess of the provisions of the amended RIPS 2003 Regarding principles of promissory estoppel - The amending notification dtd.2.12.2005 nor the RIPS, 2003 itself sought initiation of effective steps just after such notification and the only condition imposed was that the option should be given within the stipulated period and commercial production should be commenced during the operative period of the Scheme and subject to investment being over ₹ 200 crores and employment provided to more than 100 persons, and all the conditions admittedly and undisputedly were satisfied by the petitioner company - Held that: The orders granting increased benefit of 75% rebate or subsidy against additional tax liability to the petitioner company were neither erroneous nor prejudicial to the interest of State in any manner - Decided in favor of the assessee
-
2011 (10) TMI 390
Clandestine removal - Removal of goods without issue of sales bill - Excise officer relied on statement of Buyers - Adjudicating authority gave offer to pay duty based on cum duty price - Held That:- Duty liability has been evaded further payment of cum duty price is justified. Penalty was reduced to 25%.
-
2011 (10) TMI 389
Input Service Distributor - Head Office distributed credit - Show cause issued as services rendered were not availed by the Kanhe unit - Held That:- Services were rendered at wagholi had no nexus or connection with the activities which were taking place at the Kanhe unit, where the credit has been availed. . The input service distributor can distribute the Service Tax paid on input services amongst its various units only if such services are used among the units where the credit is taken. Firstly service has to qualify as input before it can be distributed (Maruti Suzuki (2009 -TMI - 34348 - SUPREME COURT)). - appellant directed to pre-deposit.
-
2011 (10) TMI 384
Deductability of salary and interest paid by firm - Non registration of firm with original partnership deed - AO disallowed interest and salary as were not in accordance with partnership deed - Held That:- As per Circular No.739, read with provisions of 40B, where neither the amount of wages has been quantified nor even the limit of total remuneration has been specified and that the same has been left to be determined by the partners at the end of the accounting period, such payment of remuneration to partners cannot be allowed as deduction in the computation of the firm's income. - Decided against assessee.
-
2011 (10) TMI 383
Fringe Benefit Tax - amount paid to approved hospitals on behalf of the employees and the reimbursements given to employees against the payments made by them to the approved hospitals – Held that:- In sub-section (3) of s.115WB of the Act, it is made crystal clear that s.115WB(1)(a) does not include such perquisite in respect of which tax is paid or payable by the employees. In the present case, the medical reimbursement is taxable but for the exemption provided in the proviso (ii) to s.17(2) of the Act. It cannot be said, merely because of grant of exemption, that the tax is not payable. Therefore, a specific item of perquisite which is normally taxable in the hands of individual employee cannot be subjected to FBT, only for the reason that the same is exempt in the hands of the employees. - Decided in favor of assessee.
-
2011 (10) TMI 382
Capital gain vs Business income – transfer of entire shareholding – transfer agreement provides for non- compete in business – no consideration was assigned towards non-compete fees – Held that:- Section 28 (va) would be attracted where the assessee was carrying on business and not where assessee only had right to carry on business in the form of capital asset. Further, extinguishment of right to manufacture, produce or process any article or thing or right to carry on any business comes within the ambit of capital gain tax. Thereby, amounts held to be attributable to non compete obligations are taxable as capital gains and not as business income. Decided in favor of the assessee.
-
2011 (10) TMI 380
Advance licence - according to the Petitioners, tyres with multiple cuts and/or shredded tyres are restricted items which require a licence from the Director General of Foreign Trade - public Notice 22/2009 was issued to provide a procedure for drawal of samples and testing of import consignments - In the present case, it has been stated that no live consignment of the Petitioners is pending and the Petitioners are raising academic issues, in order to preempt the Customs Authorities from implementing the required tests prescribed for Hazardous cargo under Hazardous Wastes (Management, Handling and Transboundary Movement) Rules 2008 - Clearly any movement of hazardous wastes from an area under the jurisdiction of one country to an area under the jurisdiction of another country is covered by the expression " transboundary movement" - Held that: The Rules have been made in the public interest and with a view to ensure that the import, management and handling of hazardous wastes does not result in a deleterious effect on public health and the environment - Decided against the assessee
-
2011 (10) TMI 379
Anti dumping duty - Rule 12 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Opal Glassware - de facto doctrine - Ms.Joshi came to be notified as Designated Authority on 14 February 2011 by the Ministry of Commerce and Industry. - During the pendency of the investigation, Ms.Joshi came to be promoted as Additional Secretary to the Government of India in the Department of Commerce with effect from 5 May 2011 by upgrading the post which she had held to its original level - The de facto doctrine was evolved in order to balance the absence of power on the one hand with the consequence emanating from an annulment of the act or the decision of the officer consequent upon a finding of an invalidity in his appointment - the validity of the constitution of a judicial body or for that matter of an appointment of a Judge cannot be questioned in independent proceedings between two private parties with which the Judge is really not concerned - Held that: the de facto doctrine would protect the preliminary findings rendered by Ms.Joshi on 27 June 2011 both having regard to the underlying object and nature of the provision which is contained in Rule 3 and the rationale for the doctrine - Petition is dismissed
-
2011 (10) TMI 378
Demand - In reply to the show cause notice, the respondents said that the amount stated in the Show Cause Notice to be unexplained amount was towards gunnitting and epoxy coating of MS pipes to be done at project sites - Revenue has not made out any case that at the time of removal from the factory, the clearance is not against sale - Unless it is proved that if the risk of any damage to the pipes stored at project site till the processes were carried out, was to the respondents account, it cannot be held that the place of sale was the project site - Decided in favor of the assessee
-
2011 (10) TMI 377
Principle of Natural Justice - Held That:- When the appeals filed by revenue were allowed but no notice of personal hearing were given to applicant. The order stands against Principle of Natural Justice. Order set aside after waiver of Pre-deposit of duty interest and penalty.
-
2011 (10) TMI 372
Expenditure in relation to exempt income - Held That:- Expenses reduced from the export turnover for the purpose of computing deduction under Section 10A has to be reduced from the total turnover.
Refund of Central Sales Tax deductible under Sec 10B.
Deduction of Merchant Overtime Charge paid to excise department - Revenue expense relates to earlier years thus not allowed in assessment year under question - Held That:- Assessee was entitled to claim deduction in the assessment year in which such over time charges came to be paid by them. Therefore, the third substantial question of law is also answered in favour of the respondent-assessee and against the revenue.
-
2011 (10) TMI 371
Exclusion of interest income for calculating the deduction u/s.80HHC – interest income earned on deposits made with bank to avail credit facilities – export business – assessee contending that deposit is a condition precedent to availment of credit facilities and unless the credit facilities are availed, the assessee cannot carry on business as exporters – assessee treating interest income under the head "business" – Held that:- Letters of banks produced do not show that they relate to the particular A.Y. and the amount was deposited out of compulsion and mandatory. In such view of the matter, the plea made by assessee that the matter may be remanded to the Assessing Authority cannot be accepted - Substantial questions of law is answered against the Assessee.
-
2011 (10) TMI 370
TDS - Payments made to non resident prima facie appeared as Royalty - Show cause issue under 201 - Tribunal relied on Wipro Ltd and set aside the order of Assessing Officer - Held That:- Payments made M/s. Gartner, a non-resident are considered as royalty and thus liable to tax deduction. Order of wipro ltd. [2004 (12) TMI 304 - ITAT BANGALORE-B ] - is set aside and AO is restored.
............
|
9911796707
