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Showing 361 to 380 of 2067 Records
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2017 (11) TMI 1709
Revision u/s 263 - Held that:- It is agreed between the learned counsel for the appellant and the learned counsel for the assessee that the order set aside by the Commissioner of Income Tax (Appeals) and confirmed by the Tribunal by the orders impugned in these appeals, was passed consequent upon the remand made by the Commissioner of Income Tax-I under Section 263 and that the said remand order was set aside by the Tribunal, which order in turn was affirmed by this Court by its judgment.
Inasmuch as, the very order of remand in pursuance of which the Assessing Officer has passed a fresh assessment order was set aside, the consequential order of the Assessing Officer would cease to have any legs to stand.
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2017 (11) TMI 1708
Bogus purchases - profit estimation - assessee is engaged in the business of trading and export of diamonds - Held that:- Considering the fact that the profit margin in this sector is around 2 to 3 percent and the taxes saved is also around 1%, it is of the considered opinion that if the addition is sustained to the extent of 3% of the disputed purchases, the same will meet the ends of justice. Thus, after considering the totality of facts the addition made by the AO is restricted to 3% of the disputed purchases.
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2017 (11) TMI 1707
Applicability of section 2(15) - charitable activities - charitable purpose - Held that:- AS relying on COMMISSIONER OF INCOME TAX VERSUS GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION [2017 (7) TMI 811 - GUJARAT HIGH COURT] assessee was not involved in the activities in the spirit of commercial accommodation and therefore falls within the ambit of definition of ‘charitable purpose’ contemplated under s.2(15) of the Act. In view of the foregoing, we find that the relief sought by the assessee to the extent that the activities carried on by the assessee should be recognized to be of charitable nature requires to be endorsed. However, all other issues raised in the respective appeals of the assessee and revenue would require re-examination in the light of conclusion drawn in favour of assessee towards applicability of section 2(15) of the Act as noted above. Thus, all other issues are kept open for re-examination at the end of the AO.
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2017 (11) TMI 1706
Refund of pre-deposit - Board’s Circular No. 275/37/2K-CX.8A dated 02.01.2002 - Held that:- The pre-deposit will have to be refunded to the assessee-Appellants if the case is allowed in appeal - the adjudicating authority is directed to decide/pass the original order as per the directions of the Tribunal within a period of two months from the date of receipt of this order failing which the Department will have to make the refund to the assessee-Appellants, as per law - appeal disposed off.
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2017 (11) TMI 1705
Addition towards construction of factory as unexplained investment - addition on the basis of Valuation Officer’s report given u/s 142A invalid - Held that:- It has come on record that before passing the order, Director of the company was not available and time was sought time. However, they have returned only on 8.1.2007 and the matter was concluded without giving proper opportunity to the assessee.
In that view of the matter, as observed explanation tendered under Rule 46A was found to be satisfactory. Therefore, the report of DVO was not considered valid and the same was not found acceptable in view of the explanation tendered by the assessee and others. Tribunal has given cogent reasons while passing the impugned judgment. We are in complete agreement with the view taken by the tribunal. - Decided in favour of the assessee
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2017 (11) TMI 1704
Demand of service tax - Consulting Engineer Service - Invocation of extended period of limitation - Held that:- There is no cogent reason to entertain the appeal. The judgment impugned does not warrant any interference - appeal dismissed on the ground of delay as well as on merits.
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2017 (11) TMI 1703
Penalty u/s 114A of the Customs Act, 1962 - import of equipment - undervaluation - Held that:- Section 114AA does not get attracted as sine qua non for invoking the said provision is that it must be established that a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document, which is false or incorrect in any material particular, in the transaction of any business for the purposes of the Act. As noted herein before, when the Act itself has envisaged provisional assessment, it cannot be said that incorrect value of the imported goods per se amounts to any of the acts referred to in the said provision.
In respect of design, engineering and technical supervision charges, the actual value of the services requires interpretation of the agreement and from the nature of the contract, which includes design, engineering and technical supervision charges, it is a matter of interpretation of contract as to whether value of those services form part of the value of goods and services and if so, how to quantify the same.
Penalty not warranted and is set aside - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1702
Refund claim - import of Capital Goods - duty paid under protest - Section 27 of the Customs Act - case of Revenue is that the respondent did not discharge his burden of proving that the incidents of duty was not passed on to the consumers - Held that:- The burden of proof was discharged by the respondent by producing certificate issued by the Chartered Accountant which was not considered by either of the lower authorities - Tribunal was only following judgment of the Madras High Court in CC, Chennai v. Venkataeswara Hospitals [2009 (4) TMI 925 - MADRAS HIGH COURT], which took the view that the concept of unjust enrichment would not be applicable to the import of capital goods.
The findings of the Tribunal are not vitiated by any illegality for interference - appeal dismissed.
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2017 (11) TMI 1701
Classification of goods - boora - mishri - batasha - makhana - N/N. 57/2008 CE dated 05.12.2008 - whether the goods fall under CTH 17019100 or otherwise? - Held that:- There are no cogent reason to entertain the appeals. The judgment impugned does not warrant any interference - appeal dismissed.
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2017 (11) TMI 1700
Reopening of assessment - depreciation on plant and machinery - Held that:- The assessee had in fact disclosed all its depreciation details in Form 3CD Annexure 1A. Her case however is that Section 149(1)(b) envisages time limit for issuing Section 148 notice to be between four years to six years squarely applies in facts of the instant case. We find no merit in the instant argument as the above statutory provision does not operate as an exception to Section 147 (first proviso). It is not a proviso to proviso in other words. Learned Departmental Representative further fails to dispute that the question whether or not a port terminals Jetty / Trestle is to be treated as plant and machinery is no more res integra since this tribunal’s in Kandla Port Trust case (2006 (4) TMI 243 - ITAT RAJKOT) has held such assets to be plant and machinery entitled for 25% rate of depreciation. Hon’ble jurisdictional high court has upheld the said view in Revenue’s tax appeal no. 1942 of 2006 decided on 05. 07. 2016. We therefore find no reason to accept in Revenue’s arguments seeking to treat assessee’s Jetty & Trestle as building block of assets instead of plant and machinery in all cases on merits as well.
Bad debts disallowance - debtors in question were in fact public sector undertakings in whose cases it could not be held that the sums in question had become actually bad - Held that:- CIT(A) quotes hon’ble apex court’s judgment in TRF Limited case (2010 (2) TMI 211 - SUPREME COURT) holding that it was nowhere incumbent for an assessee to prove that the debts in question had actually become bad w. e. f. 01. 04. 1989. There is no dispute that the assessee had been duly including the said amounts as its income in preceding assessment years or that it has actually written off the same in the impugned assessment year. We therefore hold that the CIT (A) has rightly accepted assessee’s claim of bad debts.
Disallowing deferred revenue expenditure claim - Held that:- Learned Departmental Representative invites our attention to the case records containing a co-ordinate bench’s order in assessee’s case for the said earlier assessment year [2016 (8) TMI 771 - ITAT AHMEDABAD] has decided the very issue in Revenue’s favour. Mr. Mehta however seeks to draw a fine line of distinction on the ground that the relevant head of deferred revenue expenditure was not the same. He fails to indicate the relevant distinction of allowability of deferred revenue expenses in question in principle as adjudicated in Revenue’s favour. We therefore see no reason to adopt a different approach in the impugned assessment year. This issue is therefore decided against the assessee
Reopening of assessment - non allowable depreciation claim having gone accepted during assessment - Held that:- There is no dispute that the Assessing Officer initiated the above reopening within four years from the end of relevant assessment year. It has further come on record that the assessee itself has accepted disallowance of depreciation of ₹ 18, 006/- (supra). Section 147 explanation 2 of the Act envisages that escapement of assessment of taxable income would arise in case of excessive depreciation computation. It is therefore a case wherein there has been a claim of non allowable depreciation claim having gone accepted during assessment. Hon’ble apex court’s judgment in Raymond Woolen Mill vs. ITO (1997 (12) TMI 12 - SUPREME COURT) holds that sufficient prima facie material available with an Assessing Officer pointing towards escapement of taxable income from being assessed is enough in setting into motion the reopening in question. We therefore find no merit in assessee’s instant argument
Allowability of repair and maintenance expenditure - Held that:- We invited both parties’ attention towards assessment year 2006-07 appeal hereinabove. The assessee had moved its FRO tanks from one place to another by way of cranes and shafts in order to collect chemical from incoming cargo and for having replaced existing Naptha pipeline from Jetty to tank. There is no material on record indicating any increase in assessee’s already installed capacity in both the above instances. Or that the repair and maintenance expenditure in question pertains to replacement of assets concerned. We therefore observe that the assessee’s arguments claiming both the above items as revenue expenditure deserve to be accepted in the impugned assessment year 2004-05 as well as in 2006-07
Prior period expenditure disallowance - expenditure crystallized in the impugned assessment year - Held that:- As issue is that of evidence of crystallization. Learned counsel has filed a lengthy paper book to this effect. The same nowhere proves as to how and in what circumstances the expenditure in question got crystallized. The fact however also remains that neither the Assessing Officer nor the CIT(A) doubt genuineness of the expenditure in question in principle. We therefore direct the Assessing Officer to allow the said expenditure in the corresponding assessment year instead of the impugned assessment year after calling for necessary records as per law. This issue is taken as accepted for statistical purposes.
Disallowing depreciation on foreign exchange loss on payment u/s 43A - Held that:- As assessee strongly argues that both the lower authorities have erred in making the impugned disallowance and has also filed elaborate written submission that the assets in question had in fact been acquired from within India only. There is however no rebuttal to the CIT(A)’s findings that the assessee had in fact imported machines, parts from outside India for the purpose of constructing its Jetty. Lower appellate authorities’ further conclusion on actual payment aspect has also not been controverted. We therefore find no merit in assessee’s instant substantive ground. The same stands rejected.
Treating of loan restructuring expenses as capital in nature - Held that:- The assessee has admittedly made the said payment to M/s. Brescon Corporate Advisor for the purpose of loan restructuring. Pages 100 to 104 inter alia demonstrate that assessee had been paying interest at average rate @12. 89% stated to have come down to 7. 85% further reducing its average interest outgo from ₹ 55. 29crores to ₹ 47. 17crores on year to year basis. There is further no quarrel that the interest in question is otherwise allowable as Revenue expenditure. CIT vs. Gujarat State Fertilizers & Chemicals Ltd. (2013 (7) TMI 701 - GUJARAT HIGH COURT) hold that restructuring expenses are admissible as revenue expenditure.
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2017 (11) TMI 1699
Classification and eligibility to the benefit of Notification - Import of chemicals of various descriptions declared them as Pharmaceutical Reference Standards (PRS) classifying the same under Customs Tariff Heading No.38 22 00 90 - claimed benefit of Notification No.21/2002-Cus. dated 1.3.2002 and Notification No.12/2002-Cus. dated 17.3.2012 - Held that:- There is no cogent reason to entertain the appeals - The judgment impugned does not warrant any interference - appeal dismissed.
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2017 (11) TMI 1698
Clarification under Section 94 of the Kerala Value Added Tax Act, 2003 - Transfer of right to use goods - installation of hoardings and providing the services of putting up advertisements on the said hoardings - taxable event or not - Held that:- Even if the irregularities pointed out by the learned Government Pleader did exist, it was incumbent upon the respondents to have brought the anomaly to the notice of a judicial forum for the purposes of setting aside Ext.P4 order of clarification, which, according to them, was illegal. The said course of action not having been adopted by the respondents, permitting the 1st respondent to withdraw an earlier order passed by him, would tantamount to blessing an illegality that is committed by the 1st respondent, in that it would amount to permitting the 1st respondent to exercise a power to review, which is not conferred under the Statute.
Ext.P5 order is quashed, to the limited extent that it withdraws Ext.P4 earlier order of clarification.
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2017 (11) TMI 1697
Dishonor of Cheque due to insufficiency of funds - proceedings against the guarantor - Proceedings under IBC has been initiated against the defaulter and NCLT has ordered a moratorium against the defaulter company - a decree is sought against the Defendants in the Summons for Judgment - It is the case of the Plaintiff that even though the principal borrower had agreed to secure the said term loan of ₹ 4 Crores by way of a mortgage of all the assets of the principal borrower, however, the principal borrower failed to execute the same and the Plaintiff as on the date of filing of the suit have security only in the form of a pledge of shares, which according to the Plaintiff, is not sufficient to recover its entire dues.
Held that:- It is now well settled that one can initiate proceedings against the guarantor without initiating action against the principal borrower.
The defences raised on merits is totally moonshine and illusory. There is no real dispute on the merits of the case. However, purely out of mercy, leave is granted to the Defendants to contest the suit subject to:- (i) The Defendants jointly and/or severally depositing in this Court the sum of ₹ 3.22 Crores within a period of Twelve weeks from today; (ii) If the aforesaid deposit is made, the Suit shall get transferred to the list of Commercial Causes and the Defendants shall file their Written Statement within a period of eight weeks from the date of deposit; and (iii) If the order of deposit is not complied with within the stipulated period as mentioned earlier, the Plaintiff shall be entitled to apply for an ex-parte decree against the Defendants after obtaining a non-deposit certificate from the Prothonotary and Senior Master of this Court.
Summons for Judgement disposed off.
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2017 (11) TMI 1696
Late contributions made to the Employees State Insurance Corporation (ESIC) - disallowance u/s 43B -
Held that:- As far as the second aspect goes, the Court notices that the assessee had established, before the lower authorities, that the disallowance was not warranted because of a one-time settlement, with the lender IDBI and, furthermore, that the relief amount had been declared as income for the concerned assessment year.
Admit - “Did the ITAT fall into error in deleting the amount of ₹ 6,90,055/-, having regard to the provisions of Section 36(1)(va).”
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2017 (11) TMI 1695
Reassessment - interpretation of explanation (1) to Section 147 - exception u/s 11 - charitable activity - whether the assessee as local authority instead of AOP - Held that:- The reasons recorded for reopening are contrary to the records. The assessee has, during the course of original assessment furnished all its accounts, Balance Sheets and the Revenue account before the AO. Therefore, there is no material suggesting that the assessee has not disclosed the material facts fully and truly for his assessment. - Reassessment proceedings are invalid - Decided in favor of assessee.
Regarding charitable activity and exemption u/s 11 - Following the decision in the case of CIT vs. Raj Housing Board Jaipur [2017 (5) TMI 1607 - RAJASTHAN HIGH COURT], Decided against the revenue.
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2017 (11) TMI 1694
Cancellation of registration of the assessee-trust - provision empowering cancellation of registration of a trust granted under Section 12A - Held that:- When the cancellation proceeding was initiated by the revenue authorities, they had no power to invoke sub-section 3 of 12AA of the Act to cancel the registration of the assessee-trust, which was registered under Section 12A of the Act. The Commissioner was clothed with such power only with effect from 1st June 2010. Admitted position is that the Commissioner had passed the cancellation order initially on 31st December 2008. The subsequent order of 22nd June 2010 was passed on remand, as appeal of the assessee before the Tribunal was decided in its favour on 19th August 2009, and Tribunal had directed fresh adjudication. The provisions of sub-Section (3) of Section 12AA, to the extent they cover registration of a trust under Section 12A of the Act, have not been given retrospective effect or operation - Decided in favour of the assessee
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2017 (11) TMI 1693
Penalty u/s 78 - non-discharge of service tax liability on the GTA services received during the period February 2006 to March 2010 - Held that:- It is on record that appellants had not discharged the service tax liability; as also after the orders have been passed, the entire tax liability has been discharged on 10.03.2014 i.e. after almost 1 years of passing of the impugned order - penalty cannot be set aside - appeal dismissed - decided against appellant.
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2017 (11) TMI 1692
Irrationality - Grant of licence to collect empty bottles and sell eatables in the Bar attached to the TASMAC liquor retail vending shops - first and foremost ground of challenge is that the licence fee, which has been fixed is very high - Rule 9A in the Tamil Nadu Liquor Retail vending (in Shops and Bars) Rules 2003 - no malafides found.
Held that:- Admittedly, in the instant case, there is no allegation of malafides. A faint plea of legal mala fide was raised by Mr.Umapathy, and to drivehome such a contention, the learned counsel referred to certain statistics with regard to the number of shops, which were in existence in Tiruppur District from the year 2014-15 and in how many shops there were successful bidders for the bar and the remaining shops though had a bar attached were illegally run by TASMAC themselves as there were no bidders.
Irrationality - It was argued that the method of fixation of the upset price was irrational, since the volume of sales in the bar has to be considered and not the volume of sales in the retail vending shops - Held that:- Admittedly, the exclusive right to vend liquor vest with TASMAC. The licence to be granted by TASMAC for which the impugned notification has been issued, is to sell eatables and collect empty bottles in the bar attached to the shop. The normal concept of a bar cannot be adopted in the present batch of cases, unlike the bars, which are functioning in hotels where licence is granted in form FL-II and FL-III. Though the respondent/TASMAC states that the eatables ought to be sold in the “bar” attached to the shop to term the premises as a “bar” in the general sense, as it is popularly understood as incorrect. This is so because, the licensee is not permitted to vend liquor in the premises termed as “bar” attached to the shop. TASMAC does not vend liquor in the premises termed as “bar” attached to the shop - It is not for this Court to examine as to whether fixation of 3% or 2.5% or 1.5% or 1% of the turnover of the shop for computing the quantum of Security Deposit/licence fee.
On a careful reading of the tender conditions, it is clear that the turnover for the month of October, 2017 is being taken for consideration for calculating the Security Deposit payable by the intending tenderer by calling upon him to pay 3%/2.5% or 1% of such amount. This fixation cannot be stated to be irrational, as it has been shown that there should be some yardstick for the TASMAC to arrive at the quantum of Security Deposit. The respondent/TASMAC has not fixed a static amount as upset price as found in other bid documents.
The petitioner cannot equate the licence, which will be granted to them as any other licence issued by the Government or Government Corporations. But for the permission granted by TASMAC to create a faclity for permitting customers to consume liquor in a designated area, no independent right flows in favour of the petitioners. There are specific prohibition under the Rules, which prohibit establishment of shops near places of worship, educational institution etc.
Thus, it is concluded that there is no irrationality or arbitrariness in the conditions stipulated in the impugned tender notification and the basis for calculating the Security Deposit and the monthly licence fee has been shown to be done in an appropriate manner taking into consideration the turnover of a particular retail vending shop. Apart from that the licence fee does not remain static throughout the period of licence, as was earlier, but would depend upon the sale in the preceding month - the petitioners have not made out any case for interference with the impugned notification and accordingly, these Writ Petitions fail - petition dismissed - decided against petitioner.
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2017 (11) TMI 1691
Principles of Natural Justice - case of petitioner is that petitioner's objections dated 10.06.2017 and 11.06.2017 respectively, though received by the Assessing Officer has not been taken note of and the assessment has been completed stating as if no objections have been received - Held that:- When the dealer has produced the copy of the objections dated 10.06.2017 and 11.06.2017 respectively, wherein the Assessing Officer has signed and a seal has also been affixed, unless and until the Assessing Officer took a stand that it is a case of forgery, communication made by the officer to the learned Special Government Pleader has to be held to be factually incorrect.
In the absence of any specific material to show that the objections filed by the dealer are not on record and in the absence of any denial of the signature and the seal affixed in the office copy of the objections dated 10.06.2017 and 11.06.2017 respectively, this Court is inclined to accept the case of the petitioner.
Matter is remanded to the Assessing Officer for fresh consideration, who shall consider the petitioner's objections, afford an opportunity of personal hearing and re-do the assessment in accordance with law - petition allowed by way of remand.
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2017 (11) TMI 1690
Input tax credit - Whether the Hon’ble Tribunal is correct in deciding the eligibility of input tax credit on LSHFHSD to M/s City Lubricants when LSHF and HSD are different in nature? - Held that:- Since the Tribunal has concurred with the view of the Revenue that the respondent-assessee is ineligible for claiming the input tax credit on LSHF-HSD, the said question of law does not arise for consideration in this appeal.
time limitation - Penalty - Held that:- The Tribunal has set aside the penalty on the ground that for a particular period, there was no misdeclaration by the respondent-assessee, and that the levy of penalty for the subsequent period is barred by limitation - the substantial question of law raised is answered against the Revenue.
Appeal dismissed - decided against Revenue.
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