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Showing 381 to 400 of 1903 Records
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2015 (11) TMI 1523
Reopening of assessment - reasons to believe - Held that:- No fresh material is brought by the Revenue on record but the assessment has been reopened on the basis of the return of income and the documents submitted alongwith the return of income. Therefore reopening of assessment is not valid. Hence, the same is quashed and accordingly, the assessment order passed in pursuance of the notice issued under section 148 is also quashed. Also see CIT vs. Orient Craft Ltd [2013 (1) TMI 177 - DELHI HIGH COURT ] - Decided in favour of assessee.
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2015 (11) TMI 1522
Computation of deduction under section 10A - whether the deduction is to be computed before set off of brought forward losses and unabsorbed depreciation relating to earlier years? - Held that:- Assessee is entitled to the claim of deduction under section 10A of the Act before setting up of brought forward losses and unabsorbed depreciation. The deduction under section 10A of the Act is first allowed against the eligible profits and in case there are certain left over profits for the year under appeal, then the same are to be adjusted against the brought forward losses and unabsorbed depreciation / loss as claimed by the assessee in return of income. Accordingly, we direct the Assessing Officer to re -compute the deduction under section 10A of the Act. - See M/s. Vishay Components India Pvt. Ltd., Vs. Addl.CIT (2015 (11) TMI 118 - ITAT PUNE ) and Precision Camshafts Limited Vs. ACIT (2015 (12) TMI 1501 - ITAT PUNE ) - Decided in favour of assessee
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2015 (11) TMI 1521
TDS u/s 194H - discount given to distributors on sale of pre-paid products, being, "right to use Airtime for a specified value" - non-deduction of tax - Held that:- The relationship between assessee and its distributors qua the sale of impugned products is on principal to principal basis; the consideration received by assessee is sale price simpliciter.There is no relationship of Principal and agent between assessee and distributors as held by authorities below their orders are reversed. Looking at the transaction being of Sale/Purchase and relationship being of principal to principal the discount does not amount to commission in terms of sec. 194H, the same is not applicable to these transactions. Therefore, assessee cannot be held in default; impugned demand raised applying sec. 194H is quashed. - Decided in favour of assessee
Demanding the tax which is already subjected to tax in the hands of the distributor - Held that:- We have already held while deciding Ground that the margin paid to the distributor is not a commission which is liable for deduction of tax at source u/s 194H. When there is no commission, the liability for deduction of tax at source does not arise at first place. In any case, the ld. CIT(A) has given a specific direction ‘’the alternative plea of the appellant was allowed in view of the decision of M/s. Hindustan Coca Cola Beverages (P) Ltd. (2007 (8) TMI 12 - SUPREME COURT OF INDIA ). AO is directed to allow the benefit of taxes paid by the deductees after due verification’’. However, the ld. AR has not pointed out as to how the said direction causes prejudice to the assessee. Hence, we find no reason to interfere with the findings of the ld. CIT(A) on this issue.
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2015 (11) TMI 1520
Seeking modification in the sentence order - Offence punishable under Section 55(a) - Seizure of spirit - Appellant contended that there is a difference in the number of the car in the forwarding note and in the Chemical Analysis Report. Also sample was taken only from one of the compartments and the non-production of the tube used for taking sample - Held that:- true, there is a slight difference in the number of the car in the forwarding note and in the Chemical Analysis Report. But the crime number is shown in the Chemical Analysis Report and so also it is stated that the sample seal forwarded tallied with the seal found on the sample bottle sent for analysis. The number shown in the Chemical Analysis Report can only be a clerical error. Even assuming that the articles were produced only on the next day, there is nothing to show that any prejudice has been caused or any tampering could have been done in the meanwhile.
PWs 1 and 3 have uniformly stated that the contents of all the compartments found in the car were identical and they did not feel that each of the compartments contain different liquids. In such circumstances, it is by now well settled that it is sufficient if the sample is taken from one of the bottles or one of the compartments as the case may be. This contention therefore too should fail. Therefore, the court has found that the defence set up is totally false. On an independent analysis of the evidence in the case, it is also found that story of the accused travelling in a lorry etc., are nothing, but a cock-and-bull story.
Seeking modification in the sentence order - Offence punishable under Section 55(a) - Seizure of spirit - Appellant contended that the sentence imposed is too severe and is disproportionate to the offence alleged to have been committed by the accused - Held that:- the antecedents and nature of the offence are relevant factors as regards sentencing policy is concerned. There is no antecedents or history of the accused having been involved in such transportation or carrying of contraband articles and nor after going on bail, he has done it again. Under these circumstances, it can be said that there is some substance in the contention of the appellant that some leniency may be shown with regard to the sentence. True, the crime is heinous and the consequences are drastic. Spirit flows and flows in Kerala. That has necessarily to be curbed. But in the process, the court shall not be carried away in the matter of sentencing an accused when situation warrants a lenient consideration. Since there is no antecedents shown as regards the accused and since it is felt that probably a proportionate term of imprisonment may reform him, it is felt that under the circumstances, some leniency can be shown in the matter of sentence. Therefore, while confirming the conviction of the accused for the offence punishable under Section 55(a), the sentence awarded is set aside. - Decided in favour of appellant
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2015 (11) TMI 1519
Reopening of assessment - Held that:- The assessee, in its return of income, has claimed depreciation on ATMs and UPS @ 60% by classifying them under the computers block as against allowable depreciation of 15%. This was not examined at the time of the scrutiny assessment under section 143(3) of the Act dated 31.12.2007. Thus, there is an underassessment of taxable incomes, within the meaning of section 147 of the Act. As no details were called for by the Assessing Officer or filed by the assessee on this issue, no finding either positive or negative was arrived at during the course of the original assessment proceedings, there is no question of change of opinion as contended by the assessee. Therefore, the reopening of assessment is not amounting to any change of opinion. Thus, we find no infirmity in the order passed by the ld. CIT(A) on this issue and accordingly, we dismiss the ground raised by the assessee.
Disallowance of excess depreciation claimed on ATMs and UPS - Held that:- Respectfully following the decision of the Delhi Benches of the Tribunal in the case of DCIT v. Global Trust Bank Limited (2011 (4) TMI 1380 - ITAT DELHI), we set aside the order passed by the ld. CIT(A) on this issue and direct the Assessing Officer to allow depreciation @ 60% to ATMs.
UPS attached to the computers are part of computer systems and eligible for depreciation @ 60%
Claim of deduction under section 36(1)(viia) - Held that:- Allowable deduction u/s. 36(1)(viia) of the Act is @ 10% of the 'total average aggregate advances' made by the rural branches and not on the incremental average aggregate advances, as contemplated by the Assessing Officer. See Lakshmi Vilas Bank [2010 (12) TMI 1204 - ITAT CHENNAI]
Claim of brought forward unabsorbed depreciation losses to be set off against the income of current assessment year - Held that:- the unabsorbed depreciation losses carried forward to eight assessment years immediately succeeding the assessment year in which the depreciation allowance was computed is not in dispute [1994-95 to 1998-99]. However, the finding of the ld. CIT(A) that for the current year 2007-08, the brought forward unabsorbed depreciation losses is eligible is found to be incorrect since the reckoning of eight years period end by 2006-07 and therefore, for the assessment 2007-08, which is current assessment year, the assessee is not eligible for claiming the depreciation loss. - Decided in favour of revenue
Disallowance of bad debts written off [technical Write-off] under section 36(1)(vii) = Held that:- Section 41(4) of 1961 Act, inter alia, lays down that, where a deduction has been allowed in respect of a bad debt or a part thereof under Section 36(1)(vii) of 1961 Act, then, if the amount subsequently recovered on any such debt is greater than the difference between the debt and the amount so allowed, the excess shall be deemed to be profits and gains of business and, accordingly, chargeable to income tax as the income of the previous year in which it is recovered. In the circumstances, we are of the view that the Assessing Officer is sufficiently empowered to tax such subsequent repayments under Section 41(4) of 1961 Act and, consequently, there is no merit in the contention that, if the assessee succeeds, then it would result in escapement of income from assessment.See Vijaya Bank v. CIT [2010 (4) TMI 46 - SUPREME COURT ] - Decided in favour of assessee.
Inclusion of income of foreign branches at Singapore and Colombo with the income chargeable to tax in India - Held that:- The income of the assessee at Singapore and Colombo would be included in the return of income of the assessee in India and whatever taxes paid by the branches in foreign countries, credit of such taxes shall only be given. Accordingly, the ground raised by the assessee is dismissed.
Disallowance u/s 14A - Held that:- In the case of Godrej and Boyce Mfg. Co. Ltd. v. DCIT (2010 (8) TMI 77 - BOMBAY HIGH COURT ) states that application of provisions of 14A are 'Constitutionally valid' and provisions of section 14A are still applicable for earlier assessment years and the Assessing Officer is duty bound to determine expenditure by adopting a reasonable basis or method. Accordingly, we set aside the order of the ld. CIT(A) on this issue and direct the Assessing Officer to disallow only 2% of gross dividend received towards expenditure for earning such dividend income. Thus, the ground raised by the assessee is partly allowed for statistical purposes.
Disallowance u/s 35D - Held that:- Amendment had been brought about to extend the benefit of deduction under section 35D of the Act to the service sector also. Banks cannot fall under the definition of "industrial units". If the assessees like banks were to fall under the definition of "Industrial units", there would not have been any necessity for amending the Act to include service sector. Since the amendment extending the benefit to service sector and made effective only from the assessment year 2009-10 and, the banks are coming under service sector, the benefit can be extended from the assessment year 2009-10 only to the extent of setting up of a new unit for five successive years. Accordingly, we set aside the order passed by the ld. CIT(A) and remit the matter back to the Assessing Officer to examine whether the assessee has set up a new unit or not and if so, he is directed to allow the benefit from 2009-10 onwards
Disallowance of provision made for claims against the bank - Held that:- As the assessee has not furnished any details about the nature of expenses. If any expense is required to be allowed, it is for the assessee to prove the nature of the expenditure and its relation to its business. In the present case, the assessee has not able to prove the nature of the expenses. Therefore, we are of the opinion that the ground raised by the assessee is liable to be dismissed.
MAT applicability - Provisions of section 115JB of the Act could not be applied on the assessee
Taxability of interest on securities on due basis - Held that:- As per the terms of securities issued by the Government, the proceeds at maturity along with interest shall be paid to the persons who are holding the securities on the date of redemption. The holder of the security cannot encash the security prematurely before the date of redemption like bank deposits. A fixed bank deposit can be redeemed even before the maturity date and the depositor may get a portion of the interest accrued on the deposit till the date of surrender. In such cases, the interest is generated on accrual basis. But in the case of a Government security, it is not possible to encash it prior to the due date. A holder of the security may be able to sell it to another person; but there is no provision for premature encashment. Encashment can be made only on the due date. When the principal amount involved, in the instrument itself is redeemable only on due date, there is no reason to hold that the interest element would be generated on accrual basis. The interest, also goes along with the principal amount in the case of securities. The fall out of the above position is that in the case of a Government security, the interest could be recognized only on due date and not on accrual basis. This fundamental character of a Government instrument itself is sufficient to justify the method of interest income recognition by the assessee-bank. - Decided against revenue
Loss on account of revaluation of forward foreign exchange contracts - Held that:- Loss wrongly been treated as speculative in nature. The loss claimed by the assessee on evaluation of un-matured forward foreign exchange contract taken to cover the current assets on the last date of the accounting period i.e. before the date of maturity of the forward contract, is allowable, as deduction
Provision made for wage arrears to staff - Held that:- It cannot be said that since the Bipartite agreement was signed only on 27.04.2010, the wage revision will be effected from the date of signing of the agreement. The ld. CIT(A) has observed that the assessee has made a provision in books based on reasonable estimate in accordance with mercantile system of accounting followed by it. The actual payment of this sum has been made during June, 2010 on signing the agreement. Though the agreement was signed on a later date, there definitely existed a liability on the part of the assessee to provide for it in its books. Therefore, by following the decision of the Coordinate Bench of the Tribunal in the case of Neyveli Lignite Corporation v. ACIT [2004 (8) TMI 364 - ITAT MADRAS-B], the ld. CIT(A) has correctly directed the Assessing Officer to allow the claim of the assessee.
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2015 (11) TMI 1518
TDS u/s 194C - non tds on contractual payments of cutting and transporting of sugarcane from the fields to the factory gate - Held that:- There is no dispute with regard to the fact that the payment @ ₹ 185/- P.M.T. was given as advance purchase price to farmers to enable them to meet the expenditure of harvesting, cutting and transporting. Therefore, in our considered view, the Assessing Officer was not justified in making the assessee liable for deducting the tax on such payments as the payments were not given for carrying out the work of harvesting, cutting and transporting on behalf of the assessee.
In the case on hand, the supply of sugarcanes at the gates of factories of the respective assessees was a part of sale transaction, and therefore, we are of the opinion that the assessees are not liable to deduct TDS - Decided in favour of assessee.
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2015 (11) TMI 1517
Seeking provisional refund of ₹ 2,49,24,613/- along with interest for the quarters ending 30.6.2013 to 31.3.2014 - Petitioner submitted that for the relief claimed in the writ petition, the petitioner has moved applications dated 15.12.2014 followed by a reminder dated 11.9.2015 to the Excise and Taxation Commissioner, Panchkula, but no action has so far been taken thereon - Held that:- the present petition is disposed of by directing respondent No.2 to take a decision on the applications dated 15.12.2014 followed by a reminder dated 11.9.2015, in accordance with law by passing a speaking order and after affording an opportunity of hearing to the petitioner within a period of one month from the date of receipt of certified copy of the order. It is further directed that in case it is found that the petitioner is entitled to the amount, the same be paid to it within next one month, in accordance with law. - Petition disposed of
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2015 (11) TMI 1516
Assessment u/s 153A - Held that:- Merely on the basis of statement which is not supported by the Department with cogent corroborative material cannot be a valid addition basis for sustaining such adhoc additions. It is the burden of the Department to prove that there existed relevant and cogent material to enable the Assessing Officer to make such additions. The Department has grossly failed to prove or demonstrate existence of any such relevant or cogent material supporting the addition. The assessee has demonstrated that the additions were not based on any incriminating material found during the course of search. Even in the absence of proof supported with cogent material, the statement recorded u/s 132(4) by itself cannot be taken as conclusive. A perusal of the CBDT Instruction dated 10.3.2003 reveals that even the Board is aware of such laconic disclosures and excepts its officers to rely on incriminating evidence. The CBDT also is not in favour of search assessments being based on such disclosures, it wants them to be based on incriminating material. In view of the facts and circumstances, CBDT instruction and various case laws relied on by the assessee, we are unable to uphold the additions made solely on the basis of statement recorded u/s 132(4) of the Act. Accordingly, we are of the opinion that for the assessment years 2005-06 to 2009-10 wherein assessments were framed not as a result of any material found during the course of search operation, in view thereof, the said additions cannot be sustained as they do not conform the mandate of section 153A of the Act.
Assessment year 2010-11, there is time limit to issue notice u/s 143(2) upto 30.9.2011 as in this case, original return was filed on 25.9.2010. Therefore, in our opinion, even though there was no search material, the proceedings are pending on the basis of the return filed, therefore, the Assessing Officer has to pass a composite order for the undisclosed income and the normal income. In other words, one order has to be passed for the block period computing the taxable income including the undisclosed income, therefore, the Assessing Officer has to compute total taxable income on the basis of the material available on record. Since the assessee has admitted that calendaring, clearing and washing charges, staff salary were inflated, the same are to be considered.
Assessment year 2011-12, the return of income was filed consequent to notice u/s 153C and no return was filed u/s 139. As discussed for assessment year 2010-11, the Assessing Officer has to pass a composite order for the undisclosed income and the normal income on the basis of material available on record. Being so, as discussed in assessment year 2010-11, the Assessing Officer is justified in passing assessment order for this assessment year also to bring the undisclosed income into tax. Accordingly, the assessee’s appeals for assessment years 2005-06 to 2009-10 are allowed and appeals for assessment years 2010-11 and 2011-12 are dismissed.
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2015 (11) TMI 1515
Applicability of provision of sec 50C - whether SRO value on the date of the agreement of sale has to be considered under the provisions of section 50C - Held that:- Since the process of sale has been initiated from the date of sale agreement, the applicability of the provisions of section 50C should be looked at only on the date of sale agreement. CIT(A) was correct in holding that the SRO value as on the date of the agreement of sale has to be considered under the provisions of section 50C of the I.T. Act.
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2015 (11) TMI 1514
Refund claim rejected - commissioner has kept the appeal in “call book” - Held that:- Commissioner has kept the hearing of the appeal in abeyance sine die. This is presumably because the Department's appeal against the judgment of the Tribunal, which is in favour of the petitioner, is pending before the High Court. However, we notice that while admitting the appeal, the High Court has rejected the Department's stay application. When, thus, the Court refused to stay implementation of the judgment of the Tribunal, benefit thereof must flow in favour of the assessee who has succeeded. The action of the Commissioner in keeping the appeal against the order of the adjudicating authority refusing to grant refund would be an indirect attempt to deny the benefit to the petitioner flowing from such judgment of the Tribunal when the High Court refused to grant protection. The Commissioner by way of indirect method cannot bestow the same unto himself. Under the circumstances, the Commissioner shall withdraw the appeal from the Call Book and dispose of the same as directed. The petition is disposed of with these directions.
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2015 (11) TMI 1513
Demand of non payment of duty as per the provisions of Rule 8 (3) A of the Central Excise Rules, 2000 - Held that:- We hold that demand of duty under Rule 8(3A) is unsustainable as the said Rule has been struck down by the Hon'ble High Court and the demand of duty and penalty imposed in the impugned orders is liable to be set aside. See Cheran Cements Ltd. and Others Versus CCE Trichy and CCE Coimbatore [2015 (8) TMI 99 - CESTAT CHENNAI], Indusur Global Ltd. Vs. UOI [2014 (12) TMI 585 - GUJARAT HIGH COURT], Precision Fasteners Ltd.Vs. CCE [2014 (12) TMI 655 - GUJARAT HIGH COURT], Malladi Drugs & Pharmaceuticals Ltd. [2015 (5) TMI 603 - MADRAS HIGH COURT] and A. R. Metallurgical Pvt. Ltd. Vs CCE, Chennai [2010 (10) TMI 140 - CESTAT, CHENNAI] - Decided in favour of assessee
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2015 (11) TMI 1512
Addition on account of membership fee income - whether so called security deposit was inextricably linked to grant of membership? - Held that:- In the present case, the assessee-club had received refundable non-interest bearing security deposit would remain liability for the assessee-club. Member by giving security deposit entitles himself for the concessional rate services provided by the assessee-club. The assessee would entitle for spreading over the non-refundable fee on accrual basis, undisputedly the one time security deposit is refundable. The Hon’ble Supreme Court in the case of Siddheshwar Sahakari Sakhar Karkhana Ltd. (2004 (9) TMI 6 - SUPREME Court ) has held that these deposits are akin to transaction of loan. They are clearly liable to be excluded from taxable income. Therefore, respectfully following the judgement of the Hon’ble Apex Court in the case of Siddheshwar Sahakari Sakhar Karkhana Ltd., we are of the considered view that the security deposits as received by the assessee-club cannot be subjected to tax - Decided in favour of assessee
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2015 (11) TMI 1511
Disallowance under section 14A of the Act read with Rule 8D - Held that:- In the absence of requisite satisfaction recorded by the Assessing Officer showing how the disallowance offered by the assessee under section 14A was not correct having regard to its books of account, it was not permissible to the Assessing Officer in law to invoke section 14A and make a further disallowance. As such, considering all the facts of the case, we are of the view that the disallowance made by the Assessing Officer and confirmed by the ld. CIT(Appeals) under section 14A read with Rule 8D is not sustainable either in law or on the facts of the case and deleting the same we allow the ground in favour of assessee
MAT - addition to be made on account of disallowance made towards interest under section 14A while computing book profits of the assessee-Company under section 115JB - Held that:- We find that this issue no more survives for consideration independently on merit as a result of deletion by us of the disallowance made by the Assessing Officer and confirmed by the ld. CIT(Appeals) on account of interest under section 14A while deciding Ground No. 1 involved in this appeal of the assessee. Consequently this ground is treated as allowed. - Decided in favour of assessee
MAT credit against tax before levy of surcharge and education cess - Held that:- Assessee’s appeal is squarely covered against the assessee by the decision of the Hon’ble Supreme Court in the case of CIT -vs. - Tulsyan NEC Limited ( 2010 (12) TMI 23 - Supreme Court of India ), and respectfully following the same, we uphold the impugned order of the ld. CIT(Appeals) holding that MAT credit has to be allowed after calculation of tax plus surcharge and education cess - Decided against assessee
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2015 (11) TMI 1510
Cenvat credit on annual club membership fee denied - Held that:- If we see the definition of input service, we will find that the definition of input service is very wide. It covers not only services used directly or indirectly in or in relation to manufacture of finished products but also various services used in relation to business of manufacture whether prior to manufacture or after manufacture. Further, I also find that the club service is utilised to promote sales and purchase activity by attending the clients and holding conferences and such expenses are part and parcel of manufacturing cost of final product as held in the case of Mangalam Cement Ltd. (2015 (9) TMI 942 - CESTAT NEW DELHI ).
Adjudicating Authority has categorically held that mandatory penalty is not imposable under Section 11AC due to lack of suppression, fraud, collusion, wilful misstatement with intend to evade payment of duty. the period in dispute is 2005-07 and the show-cause notice was issued on 02.03.2009 which is clearly beyond the period of limitation and consequently when there is no suppression, fraud or wilful misstatement and collusion the extended period cannot be invoked. - Decided in favour of assessee
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2015 (11) TMI 1509
Disallowance of 25% of the foreign Travel expenses - vouchers for each of the expenditure incurred were not furnished - Held that:- The nature of the business of the assessee and the income generated by the assessee, we are of the considered view that the expenses incurred by the assessee to the tune of ₹ 15,02,047/- towards overseas travels is quiet reasonable. Moreover it is evident that the assessee had purchased the foreign currency and no portion of the same is surrendered. From the meager amount of ₹ 15,02,047/- incurred towards foreign travel expenditure it cannot be presumed that any significant amount would have been spent for personal purpose. Therefore, we hereby direct the Ld. Assessing Officer to delete the addition made for ₹ 3,75,512/- towards disallowance of foreign travel expenses. - Decided in favour of assessee
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2015 (11) TMI 1508
Transfer pricing adjustment - working capital adjustments directed by the DRP - Held that:- Considering the grievance posed qua the working capital adjustments directed by the DRP, we are of the view that in the peculiar facts and circumstances of the case in the face of the above quoted speaking directions the TPO in judicial propriety had no occasion to ignore the directions of the higher forum and was bound to follow the directions issued by the DRP whatever his personal opinion may be. The issue accordingly is restored back to the TPO/AO with the direction to decide the issue in terms of the speaking direction of the DRP and pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.
Infosys Technology Ltd. as a comparable company has to be excluded from the list of comparables.
Exclusion of Bodh Tree Consulting Ltd is warranted on facts
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2015 (11) TMI 1507
Levy of fee u/s 234E in the order u/s 200A - Held that:- The adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A.
In view of these discussions, as also bearing in mind entirety of the case, the impugned levy of fees under section 234 E is unsustainable in law. We, therefore, uphold the grievance of the assessee and delete the impugned levy of fee under section 234E of the Act. - Decided in favour of assessee
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2015 (11) TMI 1506
Additions made on account of Transfer pricing adjustment - Held that:- It is an undisputed fact that the assessee is engaged in the business of investment advisory, therefore, the comparables relating to merchant banking cannot be accepted.
Chartered Capital & Investment Ltd be excluded as comparable as this company is totally functioning on different platform and cannot be used as comparable.
Edelweiss Capital Ltd. company is also functionally not comparable.
Sumedha Fiscal Services Ltd. company is also functionally not comparable with the assessee as The investment service provide by this company are in the field of Stock Broking, Depository services, Commodity Broking and Currency Derivatives Broking and Corporate services are for equity placement, Financial Restructuring, Merchant Banking and also Mergers and Takeovers. This company has earned income from fee based activities like Loan Syndication and Project Consultancy Services at ₹ 787.63 lacs.
Motilal Oswal Investment Advisors Pvt. Ltd. company also cannot be included in the final list of comparable firstly because it is doing business on a different filed and secondly and more importantly the related party transaction is more than 50%.
Disallowance of foreign travel expenditure - Held that:- The details of expenditure which are exhibited at pages 6,7 & 8 of the assessment order. We find that the details are complete and exhaustive. The AO has not understood the nature of expenditure qua the business of the assessee. As mentioned elsewhere, the assessee is an Investment Advisory Company and for the purpose of its advisory business, it has to meet various clients across the globe for which travelling is must. It is an error to say that assessee was soliciting/seeking potential investors by taking these foreign visits. The findings of the AO are clearly erroneous on the facts of the case and the DRP further fell into error by confirming the same. We, therefore direct the AO to delete the impugned disallowance - Decided in favour of assessee
Incorrect adjustment on account of refund not received - Held that:- We restore this issue to the file of the AO. The AO is directed to furnish the complete adjustment sheets to the assessee explaining how the refund was adjusted after giving a reasonable opportunity of being heard to the assessee - Decided in favour of assessee.
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2015 (11) TMI 1505
Claim of exemption from CVD - import of ‘Red Fine Standard Grade Murate of Potash (MOP) - whether the appellant are eligible to the benefit of Notification No.12/2012-CE dated 17.03.2012 - Held that:- We do not find that the benefit of excise Notification No.12/2012-CE dated 17.03.2012 has been denied to the appellant, recording any observation that the appellant are not eligible to the benefit of both the Notifications simultaneously - it is clear that denial of benefit to the said exemption Notification rests only on the issue of lack of evidence to establish that the condition of Notification No.12/2012-CE dated 17.03.2012 has not been satisfied. Vehemently challenging the same, the ld.Advocate for the appellant submits that the ld.Commissioner(Appeals) observation is de hors of the conditions of the said Notification, hence, untenable in law. However, rebutting the said finding of fact, claimed that the entire quantity of imported MOP was meant and in fact had been used in the manufacture of fertilizers; in support, the appellant have produced a certificate issued by their statutory auditors. Further, it is their contention that the benefit of concessional rate of Basic Customs Duty @ 5% was allowed only on the condition that the imported MOP had been used in the manufacture of fertilizers, therefore, it cannot be said that the imported MOP were not used in the manufacture of fertilizers, but sold in the market.
Imported MOP had been used in the manufacture of fertilizers. In any case, it is needless to mention that at any point of time, if the department is able to unearth facts or bring evidences that would lead to an inference that the imported MOP had not been used in the manufacture of fertilizers, on that ground alone the benefit of exemption Notification could be denied alleging suppression or mis-declaration of facts. However, at this stage since the evidence produced by the appellant, has not been rebutted by the revenue by producing contradictory evidences, hence, in our opinion, it is safe to conclude that they have complied with the condition of Notification No.12/2012-CE dated 17.03.2012; accordingly, eligible to the benefit of the said Notification. - Decided in favour of assessee.
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2015 (11) TMI 1504
Valuation of goods - Determination of assessable value - Inclusion of royalty amount for use of the trademark - Held that:- royalty is not related to the imported raw material; the royalty is related to the finished goods. Only because imported goods are contained in the finished goods, it cannot be said that royalty is related to the imported goods. The royalty is only paid for using the Trademark i.e. Sandvik on the products manufactured and sold in India. Therefore, we are of the view that the first condition of Rule 10 (1) (c) is not satisfied because the royalty is not related to the imported goods. - The Agreements with Sandvik Materials Technology and Sandvik Mining and Construction to whom the royalty is paid do not require the import of material from them only. The material may be procured other foreign suppliers or even locally. There is no condition that the Trademark can be used only if the appellant imports the raw materials from Sandvik. The appellants have made a statement that they have imported the goods from other suppliers and sourced locally too. This establishes that even the second condition under Rule 10 (1) (c), that royalty is paid as a condition of the sale of imported goods, is not met. In any case it is not as if the imported raw materials were sold by the appellant under the brand name Sandvik.
There is no finding by Commissioner that the buyer had adjusted price of imported goods in the guise of enhanced royalty. Nor that the appellant was compelled to import raw material from Associate companies. Nothing in the Agreements indicate any binding to buy raw material from Associate companies. Rather, the Ld. Counsel submitted a statement showing use of raw material sourced locally as well as from unidentified origin. Therefore in the circumstances, the judgment of the Apex Court in the Ferodo case [2008 (2) TMI 12 - Supreme Court] is applicable in the present case. - invoice value is not required to be loaded by including the royalty - Decided in favour of assessee.
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9911796707
