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Showing 381 to 400 of 628 Records
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2011 (12) TMI 413
Revision u/s 263 - Deduction u/s 10B - 100% EOU - Held that: the assessing officer had passed the order under section 143[3] of the Act, on 9-11-2009, whereas the circular issued by the CBDT, based on which the CIT declined the exemption under section 10B of the Act, was on 6-1-2005 - Non consideration of the circular issued by the CBDT is clearly falls in the category of non-application of mind by the assessing officer in passing the assessment order under discussion. Hence, it is clear that the assessing officer had not applied his mind while granting the exemption under section 10B of the Act. In the case under consideration, there are no two opinions possible. Hence, the action under section 263 of the Act is valid in law. There are no two possible ways of interpreting section 10B of the Act in the instant case. - Revision u/s 263 upheld.
Whether the period of ten consecutive assessment years is to be reckoned from the date of commencement of the manufacturing as a DTA Unit or from the date of commencement of manufacture as a EOU Unit. - held that:- since the assessee has availed deduction under section 10B of the Act for only one assessment year 2000-01, the benefit is available for balance 9 years is not correct - on plain reading of the aforesaid circular, the exemption period ends at the tenth year of its commissioning whether as DTA unit or EOU unit. - in the circular, certain illustrations were given to clarify the intention of the circular and even from such illustrations it is clear that the ten year period is to be reckoned from the date of its original commercial production. - Decided against the assessee.
Fresh claim during the proceedings under section 263 of the Act. - held that:- the CIT was right in rejecting the fresh claim made by the assessee that it has gone for massive expansion and hence, the same should be considered as setting up of new unit which would be entitled for deduction under section 10B of the Act. Even otherwise, on expansion, such benefit cannot be claimed whatever may be the addition to plant and machinery or enhancement of the production capacity. - Decided against the assessee.
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2011 (12) TMI 412
Application for stay - Waiver of pre-deposit - Supply of Tangible Goods Service - The appellant have supplied and installed storage tanks, vaporizing coils, and plant & machinery for generation of gases at the premises of their customers for which rentals are being charged. According to the department this activity of the appellant is "Infrastructure Support Service" as defined in Explanation to section 65 (104c) of the Finance Act, 1994, and, therefore, is covered by the definition of "Business Support Service" as defined under section 65(105)(zzzq) - Held that: the expression "support service of business or commerce" would cover only the services of supporting nature for the main business, manufacture, trading or services like services relating to marketing, customer relationship, distribution and logistics, accounting and transaction processing, office infrastructure, etc. and would not include service of renting of machinery and equipment for production or manufacture which being services relating to manufacturing activity are of altogether different nature The appellants' activity, however, prima facie became taxable w.e.f. 1.4.2008 under supply of "Tangible Goods Service" as defined under section 65 (105)(zzzzj). But, even if the appellants activity is treated as taxable as "Supply of Tangible Goods Service" under section 65(105)(zzzzj) the service tax demand of Rs. 18,65,646/- for the period from 1.4.2008 to 31.3.2009 would be sustainable - Decided in favor of the assessee by way of direction to deposit Rs. 12 lakhs
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2011 (12) TMI 411
Avoidance of tax by certain transactions in securities - The assessee had claimed before the Assessing Officer that for certain transactions done by the assessee, as reproduced in paragraph 5 of the order of the ITAT, the provisions of Section 94(7) of the Income Tax Act (for short "the Act") can not be attracted since the conditions contained in clauses (a) (b) & (c) of Section 94(7) of the Act are not cumulatively satisfied - Delhi High Court in the matter of CIT v. Shambhu Mercantile Ltd. [2009 -TMI - 202297 - Delhi High Court] wherein it was held that the three conditions of Section 94(7) of the Act are to be cumulatively satisfied - Appeal is dismissed
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2011 (12) TMI 410
Disallowance of Rs.12,46,272/- made by the Learned Assessing Officer on interest free advances made to sister concerns - According to AO the assessee diverted interest bearing funds towards interest free advances to sister concerns for non-business purposes. Had the assessee not advanced interest free advances, the funds would have been available to the assessee and its interest cost would have been reduced - The company has got own capital of Rs.37.40 crores as against outstanding loan of Rs.3.63 crores (excluding Rs.20 lacs given as deposit to Palss Properties) given to the sister concern as on 30.3.2006. - in the instant case the assessee has conclusively proved that the amount has been paid to subsidiary companies for the purpose of business and no part of the amount of advance has been utilized by the Directors for their personal purpose and the entire amount has been utilized for the purpose of business, therefore, no proportionate disallowance of interest, in our opinion, can be made in the instant case - Decided in favor of the assessee Regarding disallowance of Rs.22,28,082/- pertaining to the assessment year 2006-07 claimed by the appellant during the course of assessment proceedings - Held that: the assessee has filed a letter before the A.O. giving details of the prior period expenses to be considered in A.Y. 2006-07 which the assessee has suo motu disallowed in A.Y. 2007-08 - assessee in the impugned case has made a claim for the deduction of expenditure by way of submitting written submission before the A.O. which has not been adjudicated by the A.O. A specific ground taken before the ld. CIT(A) has not been adjudicated by him - Decided in favor of the assessee by way of remand to AO Regarding 'punitive charges' as payments and not an offence or prohibited by law - According to the A.O., as per the provisions of Explanation to Sec. 37 any expenditure incurred by an assessee for any purpose which is an offence or prohibited by law shall not be deemed to have been incurred for the purposes of business and no deduction shall be allowed - It is the case of the Revenue that the same being a penalty paid to the Railways for violation of the rules and regulations, explanation to section 37(1) is attracted and therefore the same should be disallowed - Held that: the punitive charges paid by the assessee to Railways for overloading of the wagons is compensatory in nature, therefore, the same cannot be disallowed by invoking the provisions of Explanation to section 37(1) - Decided in favor of the assessee
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2011 (12) TMI 409
Reopening - Determination of date of commencement of business - The main issue is with reference to allowance of expenditure claimed by the assessee, disallowed by the Assessing Officer on the reason that the assessee has not commenced the business in the year under consideration - Filing the revised return was due to the fact that an expenditure of ₹ 57.44 lakhs stated to have been incurred on prospecting activities were not claimed as per the provisions of section 35E of the Act and was capitalized by the assessee - Held that: - There is no dispute with reference to the fact that the assessee has undertaken prospecting activities in the year under consideration and has suo moto disallowed the expenditure pertaining to the prospecting activities under section 35E of the Income Tax Act - High Court of Gujarat in the case of Saurashtra Cements and Chemical Industry Ltd [1972 (8) TMI 19 - GUJARAT High Court] it is held that the assessee has commenced its business activities. - Claim of expenditure allowed.
Regarding interest received on short term deposit under the head 'income from other sources' instead of 'business income' as claimed in the return of income - There is various case law on the issue, holding if the capital funds are kept in deposits then the income is to be assessed as income from other sources and if the working capital funds are kept then to be treated as business income but, most of the case law was given on respective facts. Most of the issues arose as deductions are being claimed on non-operational incomes also. In that context various decisions were rendered depending on facts and applicable law. The discussion will become only academic in nature in this case without there being any consequential effect as interest income is eligible for set off to business loss whether assessed as income from business or income from other sources. The Assessing Officer is however directed to allow the set off of business loss as per the provisions of the Act. - Appeals are partly allowed
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2011 (12) TMI 408
Real estate agent / booking agent - Difference between commission as per TDS certificate and commission as shown in the profit and loss account. - Production of additional evidence - documents lost in fire - revenue challenges the CIT(A)'s finding that the assessee's books were destroyed in fire and this is an after thought of assessee to avoid scrutiny of books. - held that:- CIT(A) has accepted the additinal evidence concretely - If AO had any issue in this behalf, proper enquires could have been conducted by him. The fire department officer could have been called. AO has not carried out any enquiry from his side. The report of a govt. department which is substantiated by payment of corresponding service charges cannot be brushed aside unless there is material against it. In these circumstances, CIT(A)'s finding being based on the facts is to be upheld.
Besides, non-production of books do not stop the process of Income tax Act; in this eventuality best judgment assessment u/s 144 is the alternative. AO in any case relied on the assessee's audit statements and passed the order u/s 143(3). - Decided in favor of assessee.
Regarding difference in commission in P and L a/c and TDS certificates - held that:- CIT(A) has considered the explanation, reconciliation and has given adequate factual findings explaining this discrepancy and as a consequence thereof sustained the addition to the tune of Rs. 1926640/-. In the absence of any contrary comments in remand report or the revenue arguments we see no infirmity in the order of CIT(A) in allowing part relief. Assessee is following mercantile system of accounting and thus the sum of Rs. 1926640/- having accrued in the year is to be taxed as the income of the assessee for the year under appeal.
Claim of expenditure on account of commission and discount - dis allowance u/s 40(1)(is) - held that:- The material/information and confirmations have not been disputed to be of the business of the assessee i.e. real estate brokerage business. TDS is deducted and paid as per law which is substantiated. Revenue has not raised the ground of section 40(a)(ia) in its ground of appeal. Revenue except raising suspicions could not indicate any valid basis to reject these documentary evidences. - Decided in favor of assessee.
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2011 (12) TMI 407
Addition - long-term capital gain and unexplained commission expenditure - In appeal for asst. yr. 2002-03, the Department is objecting in deleting the addition of ₹ 12,48,481 made on account of accommodation entry taken for long-term capital gain and unexplained commission expenditure for assessment - Decided in favor of the assessee
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2011 (12) TMI 406
Appellants registered for paying service tax under the head for "Event Management Services" - scrutiny of records - demanding tax short paid and proposing penalties - appellants contested that they are not required to pay service tax - eligible for the exemption under Notification 12/2003-ST dated 20-06-2003 Held that:- Cost of materials that get consumed in the construction of floats and stalls will get excluded under Notification 12/2003-ST - issue has been decided by the Tribunal in Aggarwal Colour Advance Photo System Vs. CCE (2011 - TMI - 205988 - CESTAT, NEW DELHI (LB) a case where the appellant procures raw materials and make objects necessary for rendering services and uses it for rendering such services - The value of other goods and material, if sold separately would be excluded under exemption Notification No. 12/2003 - directed to deposit Rs.30 lakhs towards duty demand within 12 months from the date of the order against assessee.
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2011 (12) TMI 405
Real estate agent's service - service tax demand alongwith imposition of penalty Held that:- To levy the service tax, it shall have to be proved that the person acted as a "real estate agent - while acting as the "real estate agent", the person concerned should have provided service of sale, purchase, leasing or renting of real estate - assessee had very clearly stated at the time of investigation itself that he collected administrative charges for effecting the changes in his records - a service even if provided for consideration only to make few change about sale or purchase of real estate in the records without being the causative factor for such sale or purchase is not taxable service in favour of assessee.
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2011 (12) TMI 404
Cenvat credit - outward freight - Board's circular No.97/8/2007-ST dated 23.08.07 - In the case of High Court of Karnataka in the case of CCE & Service Tax, Bangalore Vs. ABB Ltd. reported in (2011 -TMI - 203985 - KARNATAKA HIGH COURT) wherein it was held that the definition of 'input service' contains both the word 'means' and 'includes', but not 'means and includes' - The portion of the definition to which the word means applies has to be construed restrictively as it is exhaustive. However, the portion of the definition to which the word includes applies has to be construed liberally as it is extensive. The exhaustive portion of the definition of 'input service' deals with service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products - Decided in favor of the assessee
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2011 (12) TMI 403
Waiver of pre-deposit of service tax on the NSE/BSE transaction charges and Demat charges - Held that:- In lieu of decisions of the this Bench in the case of M/s. Navkar Share & Stock Brokers Pvt. Limited (2011 -TMI - 205847 - CESTAT, AHMEDABAD) wherein after granting unconditional stay the Tribunal remitted the matter back to the first appellate authority - allow the stay petitions filed by the assessee and stay recovery thereof, till disposal of appeals.
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2011 (12) TMI 402
Application for stay - Special additional duty - Right to use - Notification No. 102/07-Cus dated 14.09.2007 - In this case the respondent after import of the Set Top Boxes, supplied those Set Top Boxes to consumers on right to use basis and in respect of such supply, the VAT was paid by them by treating the same as sale - Held that: there is no dispute that the Set Top Boxes have been imported by the respondent for supply to their consumers on right to use basis for which some amount is charged by the respondent and on that amount VAT has been paid in terms of provision of the VAT Acts of the State Governments - the word 'sale' has not been defined in this notification, it is clear that the word 'sale' must be understood in the sense in which it has been defined in sales tax /VAT Acts of various State Governments or Central Tax Act, 1956 and in their Acts, the word 'sale' also includes transfer of right to use any goods for any purpose (whether or not for a specified period) for cash or deferred payment or other valuable consideration there is no order for remand and what the Commissioner (Appeals) has done is that he has allowed the appeals subject to verification of the original documents for the purpose of refuned wherever necessary in terms of the Notification No. 102/2007-Cus. and this direction cannot be treated as remanding the matter to the original adjudicating authority for denovo adjudication - Decided in favor of the assessee
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2011 (12) TMI 401
Demand is confirmed after denying the benefit of Notification no. 64/95-CE dated 16.03.1995 - The contention is that the Notification provides exemption from payment of duty if the systems and sub-systems of launch vehicles or satellite projects were cleared to the Indian Space Research Organization and the only condition is that before the clearance of the goods, a certificate from an officer not below the rank of an Assistant Scientific Secretary in the Indian Space Research Organization giving the description and quantity of goods is to be produced - Held that: the Notification was amended on 1.03.2008 i.e after the period in dispute, whereby the entry at serial no. 7 is substituted and components, raw materials, tools, lubricants and propellants for and including systems and sub-systems of launch vehicles and satellite projects were given the benefit of the Exemption notification - A person invoking an exception or exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In the present case, the appellant failed to show how aluminium alloy rods, aluminium alloy flats and aluminium alloy billets can be considered as systems or sub-systems - Decided against the assessee
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2011 (12) TMI 400
Application for waiver of pre-deposit of duty, interest and penalty - demand in respect of free replacement of the expired pharmaceutical products Held that:- Goods are transferred from the factory on stock transfer basis to the depot on payment of duty and the free replacement is from the depot out of the duty paid goods in favour of assessee.
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2011 (12) TMI 399
Disallow CENVAT credit on service tax paid on insurance services relating to Group Medical Claim and Group Personal Accident Policies - Held that:- In respect of accident group insurance policy insurance coverage to the employees in area of health and granting cover for risks are statutory requirements under the Employees State Insurance Act, 1948 and the same should be treated as input services' - decided in case of CCE, Bangalore-III, Commissionerate Versus Stanzen Toyotetsu India (P.) Ltd. (2011 - TMI - 204471 - KARNATAKA HIGH COURT)
Group Insurance Health Policy is referred only to employees but in the present case, undisputedly the coverage is for both the employees and the family members - It is not clear whether the benefit of cover given to the family members involved any additional premium in which case the services relating to said coverage cannot be treated as 'input services' - matter is remanded for fresh consideration in the light of observations made above after granting reasonable opportunity of hearing to both sides.
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2011 (12) TMI 398
Whether discounts/incentives given to the appellant as an advertising agency receive from the print media would be liable for the service tax under the business auxiliary services Held that:- The discounts/incentives received by the assessee from the print media will not be liable for service tax under the category of advertising agency services - if the said discounts/incentives itself cannot be considered for the purpose of taxability under the head business auxiliary services as the amounts which are received are in respect of the services provided under the category of advertising agency services and the amount are discounts and incentives and not as charges for services decided in P. Gautam & Co. Vs CST [2011 (9) TMI 392 - CESTAT, AHMEDABAD] in favour of assessee.
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2011 (12) TMI 397
Waiver of the penalty under Section 80 as the initial non-payment of the tax by the appellants on account of confusion in the interpretation of the statutory provisions JCDR while reviewing the original order has reversed the decision and has imposed a penalty - Held that:- there is no satisfactory reason given to reverse the finding of the original authority in regard to extending the benefit under Section 80 to the appellants - no finding of any suppression, fraud etc. and the fact that the appellants have retained some amount out of the loan disbursed does not alter the character of the amount and this is the first instance where the tax was not paid on account of the confusion regarding the tax liability - Order-in- Revision is set aside and the original authority's order is restored - in favour of assessee.
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2011 (12) TMI 396
Availment of Cenvat Credit being the amount of Service Tax paid on Security Service received for the Cell Phone Towers - M/s. BSNL, a Public Sector Undertaking claimed before the revenue authorities that that they had reversed the wrongly taken credit and, they availed the Dispute Resolution Scheme of 2008 by paying unpaid interest amount Held that:- During the Audit conducted for subsequent period M/s.BSNL have not produced documentary evidence to support their claim of reversal - M/s. BSNL fails to submit the proof of initial payment of the tax and reversal or fresh payment and submits that the Appellants' Office in Trichy have clarified that since M/s. BSNL follows a Central Accounting System, it is not possible for them to reverse the wrongly taken credit - M/s.BSNL made a blatantly wrong claim under the Dispute Resolution Scheme sought by making payment of the interest amount alone amounts to fraud, duplicity and misstatement Confirm the demand of tax and imposition of equal penalty no warrant to impose additional penalty of ₹ 2,000
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2011 (12) TMI 395
Commercial Training or Coaching Services - vocational training institute - appellants' claimed benefit of Notification No.24/04-ST, dated. 10.09.04 - Held that:- The courses offered by appellant do not impart skills to engage themselves in self-employment directly after the training or coaching. These courses may provide opportunities of 'employment' only - the tuition fee received for these courses are not exempted from service tax under the notification - the demand stands confirmed as the appellants have entered into a franchisee agreement with a UK based commercial institute for imparting degrees and are liable to pay service tax on reverse charge basis - direct the appellants to deposit an amount of Rs.75 lakhs within a period 10 weeks from date of Order
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2011 (12) TMI 394
Addition u/s 68 - Cash Credit - Unexplained share application money - held that:- Even in the instant case, it is projected by the Revenue that the Directorate of Income Tax (Investigation) had purportedly found such a racket of floating bogus companies with sole purpose of landing entries. But, it is unfortunate that all this exercise is going in vain as few more steps which should have been taken by the Revenue in order to find out causal connection between the cash deposited in the bank accounts of the applicant banks and the assessee were not taken. It is necessary to link the assessee with the source when that link is missing, it is difficult to fasten the assessee with such a liability.
once adequate evidence/material is given, as stated by us above, which would prima facie discharge the burden of the assessee in proving the identity of shareholders, genuineness of the transaction and creditworthiness of the shareholders, thereafter in case such evidence is to be discarded or it is proved that it has "created" evidence, the Revenue is supposed to make thorough probe of the nature indicated above before it could nail the assessee and fasten the assessee with such a liability under Section 68 and 69 of the Act.
the share-applicants could not be examined by the AO, since they were existing on the file of the Income Tax Department and their income-tax details were made available to the AO, it was equally the duty of the AO to have taken steps to verify their assessment records and if necessary to also have them examined by the respective AOs having jurisdiction over them (share-applicant), which has not been done by him - It is settled proposition of law that the information gathered behind the back of the assessee cannot be used against him unless until an opportunity of rebutting the same is given to the assessee. It is against the principle of natural justice - Decided in favor of the assessee
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9911796707
