|
Advanced Search Options
Case Laws
Showing 361 to 380 of 1861 Records
-
2018 (6) TMI 1503
Eligibility for claim of deduction u/s 80IA - sale receipts of sludge/waste oil eligible for deduction - AO was of the view that sale receipts of sludge/waste oil is only incidental not derived from the business of the assessee - Held that:- Sludge/waste oil is bye-products which are used in the power generation, therefore, the same is part and parcel of business of the assessee and is eligible for deduction u/s 80IA of the Act. We find that similar issue has been decided by the coordinate bench of this Tribunal in assessee’s own case for AY 2010-11 [2015 (9) TMI 493 - ITAT HYDERABAD] we hold that the assessee is eligible for claim of deduction u/s 80IA. - Decided in favour of assessee.
-
2018 (6) TMI 1502
Disallowance on account of prior period expenses - Held that:- As the business of the assessee is going concern and the tax rates are rationalized and same in the respective AY under consideration, there is no loss to the revenue to allow the prior period expenditure. In large organisation, there are chances of pending approval or some issue with administration, the expenses may be claimed in the subsequent year. As per disclosure norms, assessee is to disclose the same as prior period expenses but there are regular business expenditure and as long as these expenditures are matched with the income, then, expenses are allowable expenditure. Assessee has offered both income as well as expenses. Therefore, AO is not correct in disallowing expenses selectively - we direct the AO delete the disallowance made on account of prior period expenditure. - decided in favour of assessee.
-
2018 (6) TMI 1501
Transfer pricing adjustment to the international transaction of intragroup services - Held that:- Intragroup services involved in the year under consideration are identical to the facts and circumstances and the intragroup services availed in assessment year 2012-13 it is expected from the assessee for proper benchmarking to lead evidence with respect to each of the nature of services with respect to each class of services mentioned in the above chart with corresponding manner of rendering of the services, the time lag of initiation of services and closure of the services. The evidences produced are apparently very general and do not show the rendering of the services. We set aside the appeal of the assessee to the file of TPO/AO for verifying the evidence of rendering of the services by the AE with respect to nature of each of the services listed in the agreement. The assessee is also further directed to lead proper and credible evidence with respect to nature of services and how and when those services have been rendered by the AE. It is also made clear that AO shall not question the need and benefit arising out of these services as the same have been conclusively decided by the order of the coordinate bench for earlier years in the case of the assessee itself. Appeal of the assessee with respect to ground No. 1, 2, and 3 are allowed with above direction accordingly.
Addition made on account of fall in gross profit of the assessee - Held that:- It is evident that the Assessing Officer has neither invoked section 145 (3) nor rejected books of accounts of the assessee. In such circumstances, we do not understand as how the Assessing Officer has made addition for decrease in gross profit rate during the year under consideration. In the normal business, it is not necessary that always the gross profit rate will be steady and it may increase or decrease depending on the prevailing business atmosphere. Without rejecting books of accounts of the assessee, the Assessing Officer cannot tweak with the gross profit rate declared by the assessee. We direct the Assessing Officer to delete the said addition.
Disallowance of expenditure in respect of intra-group services made under section 37(1) - Held that:- We find that though the transfer pricing addition for intra-group services has been made, but no disallowance under section 37(1) has been made on protective or otherwise basis in those years. Thus, the Revenue has in earlier and subsequent year accepted this position that no such disallowance is required. The facts and circumstances in the year under consideration on the issue in dispute are identical to the earlier and subsequent assessment years and the Revenue has accepted that no disallowance under section 37(1) is required, in such circumstances, the Revenue cannot insist for sustaining the addition in view of the rule of consistency - Appeal of the assessee is partly allowed for the statistical purposes.
-
2018 (6) TMI 1500
Special audit under section 142(2A) - validity of appointment - assessment by limitation - Held that:- In the light of the ITAT’s finding in the assessment year 2009-10, we have analysed the objection of the assessee in the present assessment year and find that these objections were also similar to that of the assessment year 2009-10.
AO ought to have visualized the complexity of accounts and compelling circumstances for exercising such power. Though while making a proposal for approval, an opportunity was provided to the assessee, but after submitting explanation no opportunity was granted to the assessee, nor any reasons were assigned. The proposal was sent without communicating to the assessee and the ld.Commissioner has approved the proposal. Thereafter, an order under section 142(2A ) was passed running into few lines. The question was also raised before the Tribunal that it has no jurisdiction to entertain objection of the assessee against appointment of special auditor. The Tribunal after taking into consideration time limit provided in section 153(1) of the Act for passing assessment order observed that the assessment order in assessment year 2009-10 was to be passed before 31.12.2011 whereas, it was passed on 1.82012. The special auditor was appointed on 8.12.2011 just 23 days prior to expiry of limitation for passing the assessment order. Thus, in this given factual matrix, the Tribunal has considered that had the case was not referred for special auditor, the assessment would have become time barred and in order to gain time, a reference for appointment of special auditor was made.
We allow the preliminary grounds of appeal raised by the assessee and hold that directions dated 26.03.2014 by the learned Addl. CIT, Range-18, New Delhi for special audit under section 142(2A) of the Act were illegal, invalid and not in accordance with the law; therefore, the assessment order impugned in the present appeal is barred by limitation and thus quashed. - Decided in favour of assessee.
-
2018 (6) TMI 1499
Interpretation of Statute - Refund of SAD - Benefit of Notification dated 14-9-2007 - refund of additional duty of Customs paid by the importer of goods u/s 3(5) of the Customs Tariff Act, 1975 - Held that:- A mere conversion of imported logs in the Sawn Timber without loss of identity of the original product would not deprive the importer of the benefit of the exemption notification - appeal dismissed - decided against Revenue.
-
2018 (6) TMI 1498
Validity of Criminal Prosecution against petitioner - case of petitioner is that in absence of any departmental proceedings, prosecution of the present petitioner cannot be continued - Held that:- The fact remains that criminal prosecution of the petitioner is based on some departmental proceedings which were formed to be basis for taking out Customs Appeal before the Division Bench of this Court which already stood withdrawn upon the request of the Revenue as is apparent from the order dated 10-4-2017 - Once the basis for such prosecution being departmental proceedings have already come to an end in favour of the petitioner and against Revenue.
The prosecution initiated against the petitioner in Criminal Complaint No. 43/S/2013 pending on the file of Chief Metropolitan Magistrate, Esplanade, Mumbai needs to be quashed - petition allowed.
-
2018 (6) TMI 1497
SEZ Unit - Refund claim - duty paid under protest - the question of refund of duty remained suspended because of inter-departmental disputes though the petitioner had succeeded before the High Court and the SLP was also dismissed by the Supreme Court - Held that:- Mere filing and pendency of the review petitions would not enable the Department to withhold the refund claims of the petitioner, whose writ petition was allowed in the year 2009 and SLP was dismissed in the year 2010. The Department cannot consider such belated development as automatic implementation of the declaration [laid down] by the High Court. It is always open for the Department to pursue its remedies, but in facts of the present case, must release the refund, if otherwise payable in law, subject to outcome of such proceedings.
The petitioner’s refund applications shall be decided latest by 31-12-2017 - petition disposed off.
-
2018 (6) TMI 1496
Classification of imported goods - encoders, modulators and multiplexers - whether classifiable under Heading 8517 or under Heading 8528? - Held that:- It is directed that the competent authority shall proceed to hear and dispose of the show cause notices. Since the notices have been issued way back in the year 2014, it may be desirable to hear them expeditiously. Subject to the cooperation of the petitioner, the competent authority will take a final decision on such SCN latest by 15-2-2018 - petition disposed off.
-
2018 (6) TMI 1495
Rectification of Mistake - case of appellant is that the Tribunal has passed the Final Order without dealing with several contentions which were strongly submitted during the hearing - Held that:- It appears that the Tribunal sustained the impugned order passed by the lower Authority in toto and dismissed the appeals. It is also seen that the Final Order is not passed in limini or in any summary fashion. Detailed reasons have been given in the Final Order for each and every conclusion.
ROM review of the appeal is not permissible.
-
2018 (6) TMI 1494
Valuation of imported goods - Titanium Dioxide Anatase B101 - enhancement of value on the basis of contemporaneous import - Held that:- The Transaction value has been assessed by the lower authority on the ground that contemporaneous import of Chinese Origin Titanium Dioxide Anatase B 101 indicates the proper value. While assessing the value at US $ 1390 PMT he has taken into consideration the country of origin, Quantity of grade - when the revenue has taken the quantity of grade and country of origin into consideration for comparing contemporaneous import and thereafter reached to the conclusion and enhanced the assessable value - appeal dismissed - decided against appellant.
-
2018 (6) TMI 1493
Lifting of attachment of Bank Account - the account have been frozen by Revenue without any demand being persisting against the appellant - Held that:- Revenue has to explain the reason why the bank accounts have been attached and whether there is any order against the appellant calling for such mode of recovery passed in the presence of appellant and hearing him. If so, how the enforceability of the order arose and in which proceeding to be informed to Tribunal - The Authority should also explain the initiation of the proceedings and its outcome in his reply. Such reply to reach Tribunal on 24-11-2017.
-
2018 (6) TMI 1492
Powers of investigation in relation to the contraventions of the FEMA - Power to compound contravention - Power of Reserve Bank to compound contravention - Held that:- we are in agreement with the petitioner that if the Enforcement Directorate is of the view that the compounding proceedings relate to a serious contravention suspected of money laundering as in this case, then, this court is not prevented from seeking appropriate clarifications from the Enforcement Directorate with regard to presence or availability of material in its possession before it forms the view. In our opinion, the use of the word 'view' hardly makes any difference. Eventually, whether a view can be equated with an opinion or not in the light of the far reaching consequences, the Enforcement Directorate would have to satisfy this court that there is some material available with it, based on which, it communicated to the RBI its view as in this case of serious contravention suspected of money laundering. Thus, there is a broad agreement that this court, in exercise of its powers of judicial review, can seek such answers and clarifications from the Enforcement Directorate.
Course adopted by the RBI and its remittance of the proceedings straight away to the adjudicating authority can be questioned by the applicant seeking compounding of the contravention under the FEMA, by making an application to the RBI. Thus, the applicant invoking the RBI's power of compounding can then approach a court of law and challenge both, the refusal or reluctance on the part of RBI to proceed further as also the Enforcement Directorate's communication or view to the aforesaid effect. If that is the constitutional safeguard and protection ensured to every aggrieved applicant, then, it is not necessary to declare the proviso unconstitutional.
We agree with Mr. Dwarkadas that no interpretation which totally takes away the power to compound contravention vesting in the RBI be placed on the proviso. We must, on a harmonious and complete reading of the statutory scheme, together with the rules, hold as above and that would ensure that the contravention can be compounded by resort to section 15 and the requisite rules by the RBI. It is only when a situation of the above nature is faced, then, the applicant seeking compounding of the contravention may invoke the powers of judicial review to strike down the actions of the statutory authorities.
In no case, the RBI can probe or question the sufficiency or adequacy of the materials regarding the view of the Enforcement Directorate, but must leave the matter to the applicant seeking compounding to workout his/her remedies. That is how we can ensure that the proviso does not become a weapon or tool of unbridled harassment nor will it allow the misuse of the power conferred in the Enforcement Directorate. It is precisely to rule out such exercise of power that we have allowed the view of the Enforcement Directorate to be tested in exercise of our powers of judicial review.
It is a right at best to make an application seeking compounding of the contravention, but beyond that, the applicant cannot insist on an order of compounding contravention, as prayed by him, to be passed. The matter is left to the Compounding Authority's discretion and if that discretion is not exercised reasonably, the applicant has a legal remedy available to him/her to approach a court of competent jurisdiction questioning that action of the RBI. Hence, if the exercise of the right to seek compounding of the contravention is controlled and regulated by the statute, then, we cannot agree with Mr. Dwarkadas that the intervention as envisaged by the proviso is unconstitutional or ultra vires the parent Act.
While upholding the constitutional validity and legality of the proviso, particularly by reading it in the manner noted above, we are in agreement with Mr.Dwarkadas that in the facts of this case, the RBI was not bound to put an end to the compounding proceedings. We are of the opinion that the compounding proceedings initiated vide the compounding applications of the petitioner and pending before the RBI should proceed, but strictly in accordance with law.
Thus, the above discussion concludes this judgment. Rule is made absolute by quashing and setting aside the communication dated 1st December, 2017 and further directing the RBI to consider the compounding applications in accordance with law uninfluenced by the communication of the Enforcement Directorate dated 1st December, 2017 or any prior letters/communications, which are quashed and set aside by this judgment
We also proceed to direct the RBI to render the necessary guidance to the petitioner in the matter of compounding of the contraventions under the FEMA. Since it was clearly stated before us by the RBI that it is presently inhibited in considering the compounding applications or proceeding to decide the same in view of the communication/letter of the Enforcement Directorate, then, as a result of quashing of the same, the RBI is free to proceed and decide the same.
-
2018 (6) TMI 1491
Offence under FEMA - Person deemed to be guilty of contravention alleged against AEL. - Sh. Rajesh S. Adani resposibility for the conduct of business of AEL - Held that:- Letters and conduct goes to show that Sh. Rajesh S. Adani is covered u/s 42 of FEMA, 1999 being responsible for day to day affairs\business activities of AEL as Managing Director. All the aforesaid actions of Sh. Rajesh S. Adani justified the findings in the impugned order therefore it is held that the Adjudicating Authority is correct in holding that Sh. Rajesh S. Adani is the person incharge and responsible for the conduct of business of AEL and shall be deemed to be guilty of contravention alleged against AEL.
Question of retrospective operation of section 13 of FEMA, 1999. Admittedly the present proceeding has been initiated after coming into force of FEMA, 1999 and various regulations there under. If the violations are proved then penal provisions have been provided under section 13 of FEMA, 1999. Therefore, question of retrospective operation of section 13 of FEMA, 1999 does not arise. Hence, we do not subscribe to the said contention of the appellants. Accordingly, this contention of the appellants are not legally valid hence rejected.
The Adjudicating Authority in exercise of power u/s 13 of FEMA, 1999 has imposed consolidated penalty of ₹ 4, 00,00,000/- (Rupees Four Crore only) on AEL and a penalty of Rs, 1,00,00,000/- ( Rupees One Crore only) on Sh. Rajesh S. Adani in respect of the contraventions of the provisions section 6(3)(a) r/w the relevant Regulations. Further A sum of ₹ 10,00,000/- (Rs. Ten Lakhs only) has been imposed on AEL and a Penalty of ₹ 2, 50,000/- (Two Lakh Fifty thousand only) on Sh. Rajesh S. Adani for violation of provisions of Section 8 of FEMA,1999 r/w with relevant Regulations for non- repatriation of USD 2,71,293/-. Adjudicating Authority has imposed consolidated penalty on the ground stated in second para of the last but one page of the impugned order.
The impugned judgment of the Securities appellate Tribunal has set a serious wrong precedent and the powers of the SENBI to impose penalty under Chapter VIA are severely curtailed against the plain language of the statute which mandatorily imposes penalties on the contravention of the Act/Regulations without any requirement of the contravention having been deliberated or contumacious. The impugned order sets the stage for various market players to violate statutory regulations with impunity and subsequently plead ignorance of law or lack of mens-rea to escape the imposition of penalty. The imputing mens rea into the provisions of Chapter VI A is against the plain language of the statute and frustrates entire purpose and object of introducing Chapter VI A to give teeth to the SEBI to secure strict compliance of the Act and the Regulation.’
The materials placed before us are very much clear that the AEL started the setting up of AGL, Mauritius, WOS of AEL with the permission of the RBI to carry on trading business in marine products, Agro based products, Plastics, PVC goods, Shoe polish etc. by virtue of RBI approval dt. 07.08.1996. The WOS at Mauritius started its operation in 1997 but instead of doing trading business as aforesaid it started investment by way of setting up of step down subsidiaries at Dubai and Singapore and in setting up a Joint Venture Company. The AEL had mis-declared about the non-pendency of investigation in the ODA form and also has not repatriated a sum of USD 2,71,293/- accrued to its WOS, Mauritius on liquidation of joint venture company namely Adani-Wilmar (Singapore) Pvt. Ltd. The intention of AEL was clear and deliberate leading to contravention of various provisions of law under FEMA,1999 and Regulations their under as held in earlier paragraphs.
Taking into consideration the amount involved in the contravention, the consolidated penalties imposed on the appellants are confirmed even though it is on the lower side as there is no appeal filed by the ED challenging the quantum of penalties.
-
2018 (6) TMI 1490
CENVAT Credit - various input services used in providing taxable and exempted output services - non-maintenance of separate records - Rule 6(3A) of Cenvat Credit Rules, 2004 - Held that:- The issue is covered by the judgment of Hon’ble Madras High Court in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS GOYAL PROTEINS LTD. [2014 (2) TMI 1321 - RAJASTHAN HIGH COURT], where it was held that the assessee, having accepted before the Tribunal to reverse the Cenvat credit as recorded by the Tribunal as regards reversal of the amount involved under such a situation, the High Court held that when the matter has been remanded back to the Adjudicating Authority to redetermine the credit in accordance with law there was no substantial question of law and accordingly dismissed the appeal of the Revenue.
To ascertain the exact amount required to be reversed on the input services used in providing the exempted output services, the matter needs to be remanded to the adjudicating authority - appeal allowed by way of remand.
-
2018 (6) TMI 1489
Sale or service - Commercial Training or Coaching Service - liability of service tax on sale of study material to students who did not attend the classes - case of appellant is that no Service Tax is liable to be paid since no service of coaching has been rendered and the study material has simply been sold - Held that:- Identical issue decided in the case of COMMISSIONER OF CENTRAL EXCISE & S.T., LUCKNOW VERSUS ANURAG MATHS CLASSES, ANIL CHEMISTRY CLASSES AND RAJESH PHYSICS CLASSES [2018 (4) TMI 114 - CESTAT ALLAHABAD], whee it was held that the benefit of Exemption N/N. 12/2003 dated 26/06/2003 will be available for the cost of study materials sold - appeal allowed - decided in favor of appellant.
-
2018 (6) TMI 1488
Commercial or industrial construction service - benefit of abatement under N/N. 1/2006-ST dated 01.03.2006 - receipt of free supply from the service recipient - Held that:- Identical issue decided in the case of M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], where it was held that Value of free supplies by service recipient do not comprise the gross amount charged under Notification No. 15/2004-ST, including the Explanation thereto as introduced by N/N. 4/2005-ST. - benefit of abatement cannot be denied - appeal dismissed - decided against Revenue.
-
2018 (6) TMI 1487
Refund of service tax paid which is otherwise exempted - Rejection on the ground that the same is filed beyond the period of limitation u/s 11B of CEA - Held that:- Identical/similar facts arose in the case of Parijat Construction before the Hon’ble High Court of Bombay, [2017 (10) TMI 659 - BOMBAY HIGH COURT], where the petitioner-appellant therein had filed refund claim beyond the period of one year on noticing that they are not supposed to pay service tax liability, the view of the Tribunal that provision of Section 11B of Central Excise Act, 1944 would be attracted was set aside by Lordships - following the same, the refund allowed in present case also - appeal allowed - decided in favor of appellant.
-
2018 (6) TMI 1486
Penalty u/s 78 - payment of service tax liability on being pointed out - Manpower Recruitment and Supply Agency Services - ground taken by appellant is being an illiterate person and located in a rural area and was not aware the liability to service tax during the period - Held that:- The service tax liability on “Manpower Recruitment and Supply Agency Services” was introduced from 16.06.2005 and the issue was very much confusing and it is possible that the appellant from rural area may not have access to an expert advice regarding on taxability of services - the appellant has put forth justifiable reason for invoking the provision of Section 80 of the Finance Act, 1994 - penalty set aside - appeal allowed - decided in favor of appellant.
-
2018 (6) TMI 1485
Demand of Interest and Penalty - Section 15(4) of the Oil Industry (Development) Act, 1974 - failure to pay cess on due dates during the period from April, 2002 to June, 2003 - Held that:- Section 15(4) does not provide for payment of interest. Therefore, in the absence of any substantive provision in the Oil Industry (Development) Act, 1974, which obliges the respondent to pay interest on delayed payment of cess, the Tribunal has rightly dismissed the appellant’s appeal - appeal dismissed - decided against Revenue.
-
2018 (6) TMI 1484
Clandestine removal - demand based on third party evidences - the entire case of the Revenue is based upon the records recovered from M/s Monu Steels and based upon the statement of the representative of M/s Monu Steels as also the appellant’s Director - Held that:- The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established - the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods.
Demand set aside - appeal allowed - decided in favor of appellant.
............
|
9911796707
