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Showing 361 to 380 of 1760 Records

2015 (9) TMI 1408

Waiver of pre-deposit - service of repair and maintenance - whether services to be taxable under MMR or CICS - appellant providing services to the non-commercial Govt. buildings - Adjudicating authority resorted to best judgement assessment under Section 72 ibid on the ground that appellant did not submitted ST-3 returns - Held that: there is force in the contention of the appellant that it was entitled to the benefit of Notification No.12/2003-ST. Therefore, appellant is required to pay pre-deposit of 50% of the adjudicated service tax liability along with proportionate interest as per Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. - stay granted partly
2015 (9) TMI 1407

Addition on account of difference in the balance of one debtor, M/s. Sen & Associates - Held that:- As rightly contended by the ld. Counsel for the assessee, when the debit balance in the account of M/s. Sen & Associates was a result of sales made to the said party by the assessee and the entire sales made to the said party were duly accounted for by the assessee in its books of accounts, the difference in the balance arisen as a result of any payment made by the said party but not accounted for by the assessee cannot be treated as income of the assessee, as the same would result in double addition. It is observed that this stand was taken by the assessee even before the ld. CIT(A), but he proceeded to sustain the addition made by the AO to the extent of ₹ 1 lakh observing that the payment made by the concerned debtor having not been accounted for by the assessee in its books of account, the same might have been spent out of books of accounts or was available with the assessee. He accordingly held that the addition to the extent of ₹ 1 lakh was liable to be made under section 69A or 69C of the Act. In my opinion, this altogether new basis adopted by the ld. CIT(A) while sustaining the impugned addition, was not supported by any evidence and the same being based on mere surmises and conjectures is not tenable. Therefore, delete the addition made by the AO on this issue and sustained by the ld. CIT(A) - Decided in favour of assessee
2015 (9) TMI 1406

Assessment under Section 153 A - whether no incriminating document pertaining to the assessee for this assessment year in the seized record found from the residence of the assessee - Held that:- Question that arises is answered in favour of the Assessee and against the Revenue by holding that the additions made in the assessments made pursuant to the search are unsustainable in law.
2015 (9) TMI 1405

Transfer Pricing Adjustment relating to international transaction of provision of non binding advisory and support services - whether the MOIAPL is a good comparable and whether it passed the functional test? - Held that:- The said company MOIAPL has undertaken 23 assignments successfully in the year under consideration. Major portion of the income is earned by MOIAPL out of cross border activity services and related financial services. The capital market business is one of the source3s of the advisory fees earned by the assessee. Assessee has also earned fees out of assessee‟s capability of the structured finance teams, financial markets, ie both equity and credit market, is another source of income for the assessee
MOIAPL is into merchant banking, and therefore, is functionally different to that of the assessee which is engaged in the business of non-binding advisory services. Therefore, in our opinion, the assessee is engaged in the function of non-binding advisory services whereas MOIAPL is into the merchant banking, capital markets, finance markets etc. Therefore, we find the MOIAPL is functionally dissimilar and therefore, the same should be excluded for benchmarking the international transactions. Accordingly, AO / TPO is directed to exclude the same. - Decided in favour of the assessee.
2015 (9) TMI 1404

Income from scrap sales - eligibility for section 80IB deduction - Held that:- Income arising from sale of scrap is eligible for section 80IB deduction as derived from the manufacturing activity in question. The hon’ble jurisdictional high court in Harjivandas Zaveri case (1999 (12) TMI 5 - GUJARAT High Court ) has adjudicated this very substantial question in asssesee’s favour - Decided against revenue
Sec. 80IB disallowance qua income from exchange rate difference - Held that:- We find that the hon’ble jurisdictional high court in CIT vs. Deversons Industries Ltd. [2015 (1) TMI 394 - GUJARAT HIGH COURT ] has considered hon’ble apex court decision in Liberty India vs. CIT (2009 (8) TMI 63 - SUPREME COURT) and holds that such an exchange rate gain is derived from industrial undertaking in question. The Revenue does not quote any case law to the contrary.- Decided against revenue
2015 (9) TMI 1403

Entitlement to benefit of Section 80P - interest income received on fixed deposit kept with Nationalized bank, commission income and other income - Held that:- The assessee society’s main object is to give credit facilities to its members from the funds received from the members by way of collection of deposits from its members in the common fund and such common fund is deployed in the form of granting loan to the members of the society. As the co-op. credit society is engaged in the money lending business it has to maintain certain liquid funds as per various rules and regulations and also to meet the minimum requirement of the funds. As a measure of safety minimum liquid and convenience of fund movement the appellant society had to keep its surplus liquid funds with different banks including nationalized banks. Therefore, in view of above discussion and relying on the decision of Tumkur Merchants Souharda Credit Co-op. Ltd.(2015 (2) TMI 995 - KARNATAKA HIGH COURT ), the assessee is eligible for deduction under section 80P(2)(a)(i) of the Act; however, rent income at ₹ 18,600, commission income at ₹ 13,701, other income ₹ 400 and incometax refund of ₹ 13,271 totalling to ₹ 45,542/- is not eligible for deduction under section 80P(2)(a)(i) of the Act - Decided partly in favour of assessee
2015 (9) TMI 1402

Fair market value - CIT(A) adopting the fair market value of the land as on 1.4.1981 @ of ₹ 76/- per sq. meter as against ₹ 105/- per sq. meter determined by the Valuer for assessing capital gain on transfer of inherited land - Held that:- As required on the part of the AO to make a reference to the valuation officer under section 55A of the Act in order to ascertain the fair market value of the asset because Valuation Officer is a person of technical knowledge for the purpose of such valuation. In the present case no such reference was made by the AO to approach the valuation officer. We, therefore, find it appropriate to give cognizance to various rates as referred to above in such a way so as to cover the rates for the purpose of valuation given by Sub-Registrar, Daman to the AO, rates given by Sub-Registrar, Daman to the assessee as well as the rate given by the govt. approved valuer. We, therefore, decide to apply the average of three rates i.e. minimum rate given by Sub- Registrar, Daman at ₹ 33, maximum rate given by Sub-Registrar, Daman and the rate given by the govt. approved valuer at ₹ 108/-. The average rate will work out at ₹ 102/- per sq.meter (Rs.33 + ₹ 165 + ₹ 108 = ₹ 306/3 = ₹ 102/-). In the circumstances, we direct the AO to adopt the fair market value of the asset as on 1.4.1981 at ₹ 102/- only. - Decided partly in favour of assessee
2015 (9) TMI 1401

Imposition of penalty under section 77, 78 and also section 70 - Held that:- Penalties imposed under section 70 read with rule 7C of the service tax rules cannot be waived any conditions. Accordingly, the penalties imposed under section 70 is upheld and appeal to that extent is rejected.
As regards, penalties imposed under section 77, find that said penalty imposed for non-obtaining of the S.T. registration. This set penalty is also upheld.
As regards penalties imposed under section 78, find that the appellant has discharged 25% of penalty as per section 78. In the facts and circumstances of this case find nothing in records to invoke provisions of section 80 of the Finance Act 1994 for setting aside the penalty. In any case 25% of penalty is discharged by the appellant as per the provisions of section 78 of the Finance Act 1994, accordingly balance penalty imposed under section 78 need not be recovered.
2015 (9) TMI 1400

Levy of fees under section 234E - intimation issued under section 200A - Held that:- We find that the issue in all these appeals is now squarely covered in favour of the assessee by the decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Limited vs. DCIT [2015 (6) TMI 437 - ITAT AMRITSAR] adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A. - Decided in favour of assessee
2015 (9) TMI 1399

Disallowance of CENVAT credit on garden maintenance - Held that:- Learned counsel is correct to submit that maintenance of plantation in the factory to prevent air pollution being necessity of law, CENVAT credit only on that aspect to be allowed. If there is any maintenance of garden in the office premises that should not be allowed. Learned authority shall work out the extent of allowance.
So far as art work is concerned, it is explained that it is business related expenditure to discharge social responsibility. He is correct to say that for no contrary finding against the appellant nor also the authority has found anything not connected to business activity. Therefore, CENVAT credit on that part is allowed.
So far as FOREX money service is concerned, that being relevant for the purpose of export and import and inextricably connected with the business, CENVAT credit of availment of such service is allowed.
2015 (9) TMI 1398

Transfer pricing adjustment - Held that:- Accel Transmatic Ltd. - in this case, the assessee does not have any objection in making this company i.e, software segment of Accel Transmatic Ltd. as a comparable to that of the assessee.
Avani Cimcon Technologies Ltd. was rightly included in the list of comparables as find from the description of business activity of this company as reproduced on internal page 90 of the TPO’s order, that it is a pure software development service provider.
Celestial Labs Ltd. - exclusion of this company from the list of comparables directed as this company can’t be considered as functionally similar to that of the assessee .
Datamatics Ltd. - The assessee has no objection to the inclusion of this company in the list of comparables.
E-Zest Solutions Ltd. -TPO has rightly included the said comparable in the list of comparables. Therefore, the objection of the assessee is rejected.
Flextronics Software Systems Ltd. (Seg.) - exclusion of this company from the list of comparables as the year ending of this company is not coinciding with that of the assessee and it is not known as to how the TPO has adopted the relevant figures for comparison.
Geometric Limited (Seg.) - The assessee has no objection to the inclusion of this company in the list of comparables.
Helios & Matheson Information Technology Ltd. - direct the exclusion of this company from the list of comparables as the assessee is not engaged in software sales unlike Helios & Matheson Information Technology Ltd
IGate Global Solutions Ltd. - The assessee has no objection to the inclusion of this company in the list of comparables.
Infosys Technologies Ltd. - direct the exclusion of this company from the list of comparables as is a giant company in terms of risk profile, scale, nature of services, revenue ownership of branded/proprietary products, onsite and offshore services, etc., cannot be compared with the assessee.
Ishir Infotech Ltd. - exclusion of this company from the list of comparables as functional difference of this company vis-a-vis the assessee. So, the assessee’s objection is upheld.
KALS Information Systems Ltd. (Seg.) exclusion from the list of comparables
LGS Global Ltd. (Lanco Global Solutions Ltd.) - The assessee has no objection to the inclusion of this company in the list of comparables.
Lucid Software Ltd. - direct the exclusion of this company from the list of comparables as this company developed software products in-house. The expenditure so incurred on product development has been duly capitalized by Lucid Software Ltd. These facts amply bring out that Lucid Software Ltd. cannot be considered as comparable
Mediasoft Solutions Ltd - The assessee has no objection to the inclusion of this company in the list of comparables.
Megasoft Ltd. (Seg.) -rect the exclusion of this company from the list of comparables because of exceptional financial results due to mergers/demergers etc.
Mindtree Ltd. - The assessee has no objection to the inclusion of this company in the list of comparables.
Persistent Systems Ltd. - Because of the merger of subsidiary into this company, we hold that the financial position of this company cannot be construed as normal capable of a good comparison
Quintegra Solutions Ltd.,R S Software (India) Ltd. and R Systems International Ltd. (Seg.), SIP Technologies & Exports Ltd. - The assessee has no objection to the inclusion of this company in the list of comparables.
Sasken Communication Technologies Ltd. (Seg.) - we direct the exclusion of this company from the list of comparables because the company has undergone significant restructuring during the relevant FY and the company also failed on R&D filter and also owns of intangibles
Tata Elexi Ltd. (Seg.) - we direct the exclusion of this company from the list of comparables as the nature of activity carried out by the assessee in question is nowhere close to that of Tata Elxsi Ltd.,
Thirdware Solutions Ltd. (Seg.) - A perusal of the annual report of Thirdware Solutions Ltd. reveals that the said company has made income from sale of licence to the tune of more than ₹ 1 crore, which means the company is into production of software products which apparently cannot be a comparable to assessee dealing with contract software development and not into sale of any product. Therefore, we direct TPO/AO to exclude this company from the list of comparables.
Wipro Ltd. (Seg.) - we direct the exclusion of this company from the list of comparables as as it is a giant company in terms of parameters
Accentia is into high end service (KPO), which cannot be compared with the assessee. So, we direct its exclusion from the list of comparables.
Allsec Technologies Ltd. - uphold the decision of TPO to include this comparable in the list of comparables.
Asit C Mehta Financial Services Ltd. (earlier known as Nucleus Netsoft & GIS Ltd., Caliber Point Business Solutions Ltd., HCL Comnet Systems & Services Ltd. and Informed Technologies India Ltd. - we find that in this list of comparables considered by the TPO, the assessee itself had accepted eleven (11) comparables as comparable with that of the assessee. In such a scenario, we are of the opinion that the TPO may take into consideration only those comparables where related party transactions are to the extent of 15% because it is not a case of the revenue that by applying threshold limit of 15%, it will not get sufficient number of comparables. Since we are not entering into any other grounds raised by the assessee against these companies, the other grounds are left open.
Eclerx Services Ltd. and Vishal Information Technologies Ltd. - both these companies cannot be compared with the low end service provider like the appellant in this case.
Infosys BPO Ltd. - is into high end service to financial industries, manufacture and telecom, so on that account it should be excluded cannot be countenanced because we are not able to find any functional dissimilarity with that of the assessee in this case. So, we uphold the action of the TPO to include this company as a comparable
Maple eSolutions Ltd. and Triton Corp Ltd. - Both companies directed to be excluded due to extra ordinary events taking place in the instant financial year
Mold – Tex Technologies Ltd. - the assessee is engaged in low end BPO services whereas the Moldtek is involved in high skilled KPO services which cannot be compared with that of the assessee’s company
Wipro Ltd. -we find where there is amalgamation, then the accounts do not portray the correct picture in the profits due to the merging of accounts. So the financial results cannot be relied upon for the computation of PLI of this comparable. Therefore, due to this extra ordinary events taking place in the instant financial year of this company, we are of the opinion that this company should be excluded from the list of comparables
Aditya Birla Minacs Worldwide Limited (earlier known as Transworks Information Services Ltd.), Apex Knowledge Solutions Pvt. Ltd., Appollo Healthstreet Ltd., Cosmic Global Ltd., Datamatics Financial Services Ltd. (Seg.), Flextronics Ltd. (Seg.), Genesys International Corporation Ltd., ICRA Techno Analytics Ltd. (seg), IServices India Pvt. Ltd., R Systems International Ltd (Seg) and Spanco Ltd. (Seg.) (earlier known as Spanco Telesystems & Solution Ltd.) - AR submitted that the assessee has no objection in including the same in the list of comparables.
Risk adjustment - Held that:- Risk adjustment sought by the assessee has not been dealt with as per Rule 10B(1)(e)(iii). The ld. AR pointed out to the order of the coordinate Bench in Motorola Solutions India Private Limited (2014 (10) TMI 358 - ITAT DELHI ) wherein in an identical matter, the Tribunal has given direction as afore-stated when the TPO repelled similar contention of the assessee. Since the risk adjustment sought by the assessee has also been turned down by the TPO on similar reasons, it has to be set aside and a computation exercise as envisaged under Rule 10B(1)(e)(iii) need to be done. Therefore, we restore this matter back to the file of the TPO/AO to consider the computation of risk adjustment as per CAPM model by availing the services of technical experts.
2015 (9) TMI 1397

Penalty u/s 271(1)(c) - disallowance of claim of deduction u/s.54(1) in respect of residential flats acquired by the assessees in consideration of old house sold to the builder - Held that:- The Tribunal deliberated the issue with respect to declining the claim of deduction u/s 54 of the Act and by following the decision of the Special Bench in the case of ITO vs Ms. Sushila M. Jhaveri (2007 (4) TMI 289 - ITAT BOMBAY-I) and also Geeta Duggal (2013 (3) TMI 101 - DELHI HIGH COURT) decided the claimed deduction in favour of the assessee. We further note that the ld. Assessing Officer imposed penalty with respect to claimed deduction u/s 54 of the Act, therefore, when the basis no longer survive on the basis of which penalty was imposed, in our view, penalty u/s 271(1)(c) of the Act cannot survive. - Decided in favour of assessee.
2015 (9) TMI 1396

Applicability of section 115WB - Fringe Benefit Tax - ITAT held that Fringe Benefits cannot arise when the expenditure is incurred on non-employees - Held that:- Tribunal has allowed the respondent's appeal by following its decision in case of Kotak Mahindra Old Mutual Life Insurance Ltd (2011 (11) TMI 497 - ITAT MUMBAI ) for Assessment year 2006-07 and restored the issue to the Assessing Officer for fresh determination. Mr.Kotangale learned counsel for the revenue very fairly states that the appeal filed from the order of the Tribunal in case of Kotak Mahindra Old Mutual Life Insurance Ltd (2015 (10) TMI 82 - BOMBAY HIGH COURT ) by the revenue to this Court being Income Tax Appeal No.674 of 2012 was dismissed by an order dated 22nd August, 2014. -No substantial question of law. - Decided against revenue
2015 (9) TMI 1395

Penalty under section 271(1)(c) - whether amounts disclosing after search, which was not previously offered to tax is not a concealment on the part of the respondent/assessee ? - Held that:- The manner in which the income was derived has also been disclosed and the assessee has thereafter paid the tax and the applicable interest, thus all the requirements of the clause were met by the assessee and, therefore, the correct view of the matter in allowing the immunity and upholding the setting aside the order of penalty passed by AO. See Commissioner of Income-Tax, Central-I, Kolkata vs. Amardeep Singh Dhanjal [2013 (2) TMI 291 - CALCUTTA HIGH COURT ] and Commissioner of Income Tax, Central-III, Kolkata vs. Brijendra Gupta [2015 (7) TMI 451 - CALCUTTA HIGH COURT ] - Decided in favour of assessee.
2015 (9) TMI 1394

Benefit of exemption Notification No. 5/1998-CE - adjudicating authority had taken the view that after the Molybdenum Ore was subjected to the process of Concentratic and Roasting it had become a different product, namely, Molybdenum Oxide and did not remain 'Ore' and, therefore, was not entitled to the benefit of exemption notification which applied only to the commodity 'Ore' - Tribunal [2006 (7) TMI 370 - CESTAT, MUMBAI] has held that, " even after Molybdenum Ore had undergone the process of Roasting, it remained Ore and there was no difference between Ore and Concentrate which were one and the same product." - Supreme Court dismissed the appeal filed by Revenue since the tax effect involved in the instant appeal is negligible.
2015 (9) TMI 1393

Estimation of turnover towards local sales whereas no proof of local sale - suppression was detected at check-in-borders during transportation - Demand of security deposit - Habitual defaulter - Conversion of security deposit to penalty - best judgment assessment - Held that:- The assessing officer opined that when a pattern of suppression can be established on the basis of two instances spreading over different months of a financial year, the proposed addition is reasonable. It is also indicated that the detection was noticed while transporting goods through different check-posts at Vazhikadavu and at Tholpetty. It is also found that the modus operandi practised by the dealer was to transport twice the quantity conceded. - Therefore when the authorities under the KVAT Act proceeds on the basis that despite the suppression being detected only twice, taking into consideration the manner in which goods were being transported, the assessment could be made under section 24 of the KVAT Act cannot be found to be unreasonable which requires interference.
But, tribunal failed to consider the question relating to the estimation made by the assessing officer in relation to the fact that the assessee has no local sales at all and therefore the turnover estimated under section 6(1) of the Act is bad in law, the same is required to be considered in accordance with the procedure prescribed. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
2015 (9) TMI 1392

Demand of differential duty - Levy of CVD on MRP basis - undervaluation - Confiscation u/s 111(m) - Penalty u/s 112 - Held that:- Following decision of assessee's own previous case [2015 (9) TMI 761 - CESTAT MUMBAI] - Matter remanded back - Decided in favour of assessee.
2015 (9) TMI 1391

Denial of modvat credit - penalty under erstwhile Rule 57U(6) read with 173Q(bb) of CER - Held that:- TN Govt had granted mining lease in favour of the respondent for the period of 30 years and 20 years respectively subject to fulfilment of various conditions as set out in the G.O itself and also subject to the payment of royalty and other rents etc. In terms of above G.O's, appellants have executed lease deed dated 17.6.95 and 5.3.92. On perusal of the lease deed, I find that the rights, liabilities, restrictions of use of mines and the mode of payment are set out in the agreement. Therefore, it is clearly established beyond doubt that respondents had captive mining lease during the relevant period from 8.5.1991 onwards - appellants availed the credit on lubricating oils for the use in the manufacture at their captive mines and by following the ratio of the Hon'ble Supreme Court in the case of Vikram Cement Vs CCE (2006 (2) TMI 1 - Supreme court), the appellants are eligible for cenvat credit on capital goods and at captive mines. Accordingly, the impugned order is upheld and Revenue appeal is rejected subject to the condition that mining products in dispute are not cleared to outsiders which may be verified by the Revenue - Decided against Revenue.
2015 (9) TMI 1390

Refund claim - the money has been deposited by the decree-holder with the Department with respect to the Service Tax which is now not applicable - Management, maintenance or repairs service in relation to Road - Held that:- It is an undisputed thing that the decree holder has also filed an undertaking that the decree holder would not make any claim on the Service Tax Department or with the PWD or with any other authority with respect to the said amounts. In view of the said undertaking, there is no impediment why the Department should not pay the remaining amount deposited by the decree-holder as Service Tax.
Under these circumstances, I direct that the Department shall forthwith refund the amount of ₹ 1,14,84,925/- which includes service tax element of ₹ 26,25,580/- and interest of ₹ 89,59,345/- out of the total amount of ₹ 4,76,57,617/- deposited by the decree-holder with Delhi Project. The undertaking given by the decree holder which is filed by an affidavit is duly accepted. The Department of Commissioner of Service Tax shall issue the said payment to the decree holder within four weeks - Appeal disposed of.
2015 (9) TMI 1389

Refund claim - Unjust enrichment - cum-tax computation - deposit of tax which was not leviable - Service tax was paid as Clubs or associations service on amounts collected as entrance fee for admission of new members - Held that:- Mere capacity to deliver a service cannot be equated with providing or agreeing to provide a service; such service has to reach the recipient in exchange for the consideration or the consideration is made over in exchange for a schedule of delivery of the service. In a combined human activity, contribution of, or agreement to contribute, funds cannot, therefore, be construed as consideration to be taxed under Finance Act, 1994 unless attributable to an activity or performance or promise thereof on the part of an identified provider to an identified recipient. Unless the existence of provision of a service can be established, the question of taxing an attendant monetary transactions will not arise. Contributions for the discharge of liabilities or for meeting common expenses of a group of persons aggregating for identified common objectives will not meet the criteria of taxation under Finance Act, 1994 in the absence of identifiable service that benefits an identified individual or individuals who make the contribution in return for the benefit so derived.
Tax was paid on the entrance fee without collecting the tax amount from the new members. Though the first appellate authority has granted the benefit of a cum-tax computation of the entrance fee, it must be borne in mind that the tax liability was discharged before the re-computation allowed in the impugned order. It, therefore, does not alter the origin of the funds utilized for discharge of tax liability - viz. from the common funds of the appellant without recourse to the members who paid nothing more than the entrance fee. Moreover, entrance fees are fixed in the bye-laws without reference to tax leviable, if any, thereon. For both these reasons, it can be concluded that tax burden has not been transferred to the members from whom entrance fees were collected. Clearly, the service tax so paid does not carry the taint of unjust enrichment. - Decided in favour of assessee.