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Showing 381 to 400 of 1387 Records
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2016 (2) TMI 1008
Benefit of Target Plus Scheme - exemption Notification No. 32/2005-Cus., dated 8-4-2005 - interpretation of the scheme - the Target Plus Scheme allows Star Export Houses to import goods by debiting the duty leviable thereon from the duty credit certificates issued by DGFT, in relation to the exports made by them prior to the date of imports - whether the import of Palmolein oil as against the export of rice and wheat is covered by the Target Plus Scheme introduced in the FTP and whether the appellant is entitled to pay duty on the imported goods, by using the duty credit certificates issued by the DGFT?
Held that: - inasmuch as the rice and wheat i.e. exported products and the palmolein oil i.e. imported item fall under the same product group i.e. E-Food products, they have to be held as having broad nexus thus satisfying the condition of Target Plus Scheme.
Inasmuch as the appellant has established the broad nexus between the imported item and the exported item and has also satisfied the condition of the Notification No. 32/2005, they are entitled to avail the benefit of the Target Plus Scheme.
Appeal allowed - decided in favor of appellant.
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2016 (2) TMI 1007
Reversal of Cenvat credit on inputs - inputs used in finished/semi-finished goods lost by fire - Held that: - the issues raised relate only to quantification of the value of the goods and therefore, the resultant situation is not one that generates an appeal at the instance of the Revenue under Section 35G of the Central Excise Act. We also do not find any question of law much less any substantial question of law arising for decision in these appeals at the instance of the Revenue - appeal dismissed - decided against Revenue.
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2016 (2) TMI 1006
Cenvat credit - Interest - Penalty - written off of the stock - Held that: - It concluded that the issue is squarely covered by the decision in Bharat Heavy Electricals Ltd. v. CCE, Bangalore [2002 (2) TMI 1322 - CESTAT BANGALORE] - The Tribunal relied on the relevant circular and held that the issue involved is regarding the reversal of Cenvat credit on duty paid on inputs/capital goods and stores and spares which were written off from accounts as obsolete - right to joint inspection reserved - appeal dismissed - decided against appellant.
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2016 (2) TMI 1005
Addition for trade outstanding u/s 68 - Verification of the sundry creditors - Held that:- Assessing Officer is of the view that the assessee has tried to cover up unexplainable credits by splitting them under 38 names under the imprest account. However, the Ld. AR has submitted that all the entries appearing therein can be explained and correlated by the assessee, if given a chance to do so. Therefore, in the interest of justice, we restore the matter to the file of the Assessing Officer for fresh adjudication.
Disallowance u/s 40(a)(ia) - retrospective amendment - Held that:- We find that the Agra Bench of the ITAT in the case of Rajiv Kumar Agrawal (2014 (6) TMI 79 - ITAT AGRA) wherein held a curative amendment to avoid unintended consequences is to be treated as retrospective in nature even though it may not state so specifically, the insertion of second proviso must be given retrospective effect from the point of time when the related legal provision was introduced - it cannot subscribe to the view that it could have been an "intended consequence" to punish the assessees for non-deduction of tax at source by declining the deduction in respect of related payments, even when the corresponding income is duly brought to tax - That will be going much beyond the obvious intention of the section - the insertion of second proviso to Section 40(a)(ia) is declaratory and curative in nature and it has retrospective effect from 1st April, 2005, being the date from which sub clause (ia) of section 40(a) was inserted by the Finance (No. 2) Act, 2004 – thus, the matter is remitted back to the AO for fresh adjudication
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2016 (2) TMI 1004
Income from sale of shares - capital gain or business income - Held that:- In view of the above discussion and keeping in view the decision of Tribunal in case of Gopal Purohit [2009 (2) TMI 233 - ITAT BOMBAY-G] which was confirmed by Hon’ble Bombay High Court [2010 (1) TMI 7 - BOMBAY HIGH COURT] as well as decision in the case of SMK Shares & Stock Broking, [2010 (11) TMI 714 - ITAT, MUMBAI] and in the case of Vinod K. Nevatia (2010 (12) TMI 73 - ITAT, MUMBAI), which have already been discussed by the lower authorities in their respective orders, we do not find any merit for deviating from the conclusions drawn by the department in earlier year while framing the assessment u/s.143(3) without change in facts and circumstances during the year under consideration. It is pertinent to mention here that assessee was investing in shares and continuously showing not only short term but huge long term capital gains as well as dividend income which has been accepted by the department in their scrutiny assessment. - Decided against revenue
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2016 (2) TMI 1003
CENVAT credit - denied on the ground that depreciation was claimed on the goods - whether the Appellant have actually claimed the depreciation on the part of the excise duty on which Cenvat credit was availed? - Held that: - the department concluded the denial of Cenvat credit on the basis of initial statement of the representative of the Appellant and data submitted by them. However subsequently the Appellant strongly claimed that the amount of credit availed on capital goods and proposed to be denied, was not included in the capital goods account and no depreciation was claimed thereon. In this regard, the Appellant referred to the audited balance sheet and produced Chartered Accountant’s certificate. However it clearly appears from the findings of the impugned order that the claim of the Appellant was not properly verified by both the lower authorities - thus, the matter required to be remanded to original Adjudicating Authority for fresh consideration - appeal allowed by way of remand.
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2016 (2) TMI 1002
Refund - Clerical mistake - Held that: - Despite such mistake, which has been admitted by the appellant, if all the documents such as purchase order /invoices/ER-1 returns/debit notes and treatment given in the books of account are verified, it can be clearly establish, whether the appellant have paid the excess duty. On this basis if it is proved that the appellant have paid excess duty for which debit note was issued by the customer to the appellant, then appellant is prima facie entitle for the refund claim - The adjudicating authority shall carry out proper verification of all the documents to find out whether the appellant have paid excess duty in respect of the goods cleared by them and on that basis refund should be reprocessed in accordance with law - Appeal allowed by way of remand.
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2016 (2) TMI 1001
Refund - Cenvat credit - Rule 5 of the Cenvat Credit Rules, 2004 - Notification No. 50/2008 CE(N.T.) - even prior to this notification, as per SEZ Act, supplies made to SEZ has been considered as export which has been endorsed by CBEC in its circular dated 28/4/2015 and on very identical issue, this Tribunal and Hon’ble High Court in the judgments cited by the Ld. Counsel, consistently settled the issue that against the supplies made to SEZ the assesse is entitle for the benefits/incentive which is otherwise available to the physical exports of the goods made out of country, therefore appellant is undoubtedly entitle for the refund under Rule 5 of the CCR, 2004 in respect of inputs used in the goods manufactured and supplied to SEZ developer - Appeal allowed - decided in favor of the assessee.
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2016 (2) TMI 1000
Penalty u/s 271(1)(c) - defective notice - Held that:- The show cause notice u/s. 274 of the Act is defective as it does not spell out the grounds on which the penalty is sought to be imposed. Following the decision of CIT & Anr. v. Manjunatha Cotton and Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT ] we hold that the orders imposing penalty in all the assessment years have to be held as invalid and consequently penalty imposed is cancelled.
We may also add that the provision of section 292B of the Act cannot cure the basic defect in assumption of jurisdiction and only cure the mistake, defect or omission in return of income, assessment, notice or the proceeding is in substance and effect in conformity with or according to intent and purpose of the Act. As we have already seen that the Hon’ble Karnataka High Court in the decision referred to earlier view the show cause notice and the reasons mentioned in the show cause notice are part of the process of the natural justice and the defect in such notice cannot be overlooked. In view of the aforesaid decision we do not find any infirmity in the arguments advanced by the learned AR before us.
Thus we hold that levy of penalty in the present case cannot be sustained. - Decided in favour of assessee.
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2016 (2) TMI 999
Demand - Section 28(2) of the Customs Act, 1962 - bonafide belief - period of limitation - Held that: - since the adjudicating authority has admitted in the impugned order that the appellant has paid amount of duty to concerned CHA, who has defaulted the Govt. exchequer without the knowledge of connivance of the respondent, it cannot be said that the respondent has committed any fraud. He further held that there was nothing available on record to suggest that the CHA has committed the fraud on the suggestion of the Director of the respondent - charges of fraud cannot be levelled against the respondent and thus extended period of limitation set aside - appeal dismissed - decided against Revenue.
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2016 (2) TMI 998
Confiscation of prohibited goods with imposition of redemption fine - imposition of penalty u/s 114(i) ibid - antique statues - Held that: - the opinion delivered by the Committee declaring the objects, i.e., Decorative Female Figure with two hands and legs missing, to be Antiquity appears to be not sustainable - goods not proved to be antique and hence not prohibited - appeal dismissed - decided against Revenue.
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2016 (2) TMI 997
Validity of reopening of assessment - Held that:- A plain reading of the reasons recorded demonstrate that the A.O. has not applied his mind to the material/information received from the Director (Investigations). Without such independent application of mind, it is not possible for the A.O. to come to a conclusion that he has reason to believe that income assessable to tax has escaped assessment. Thus, respectfully following the propositions of law laid down by the Hon’ble Delhi High Court in the case of Pr.CIT vs. G & G Pharma India Ltd. ( 2015 (10) TMI 754 - DELHI HIGH COURT ) we hold that the reopening is bad in law. - Decided in favour of assessee.
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2016 (2) TMI 996
Addition u/s 14A r.w.r.8D - Held that:- When the Assessing Officer is not satisfied about the correctness of the claim of expenditure or the assessee’s claim that no expenditure was incurred, then the Assessing Officer shall recompute the expenditure by applying the procedure laid down in Rule 8D(2). As per sub-Rule (2) of Rule 8D, the aggregate of the three limbs provided therein has to be taken into consideration for the purpose of computing the expenditure.
In the case before us, the assessee admittedly utilized the reserve available to the extent of ₹ 54,54,90,000/-. Therefore, no direct expenditure was incurred for earning the income which does not form part of total income. The assessee also has not incurred any expenditure by way of interest. Therefore, the second limb of the Rule 8D(2) is not applicable. Now coming to the third limb, the amount equal to 0.5% of the average value of the investment, income from which does not or shall not form part of total income as appearing in the balance sheet of the assessee on the first day and the last day of the previous year, has to be taken into consideration. This Tribunal is of the considered opinion that the third limb of Rule 8D(2) has to be applied. Therefore, the computation made by the Assessing Officer by adopting second limb of Rule 8D(2) may not be correct.
Accordingly, the orders of the lower authorities are modified and the Assessing Officer is directed to take 0.5% of the average value of the investment, income from which does not or shall not form part of total income as appearing in the balance sheet of the assessee on the first day and the last day of the previous year, as expenditure for earning income.
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2016 (2) TMI 995
Addition on account of transfer pricing adjustment - Held that:- Unable to accept argument that the comparables should be selected on the basis of similarity even under TNMM. The Hon’ble High Court has laid down that selection of comparables does not differ with the method adopted. Ex consequenti, it is no more open to argue that the functional dissimilarity of the companies under the overall broader category can be ignored under the TNMM. In view of the foregoing discussion, we find the functional similarity of Apitco Limited lacking on entity level with the assessee company. As such, we order for its exclusion from the final set of comparables.
Global Procurement Consultants Ltd. can be considered as comparable to the assessee company. We, therefore, order for the elimination of this company from the final list of comparables.
NTPC Electric Supply Ltd.'s activities carried out by the assessee in facilitating purchase and sale of goods for its AEs, can by no standard, be compared with the nature of activity carried out by NTPC Electric Supply Ltd. We, therefore, order for the exclusion of this company from the list of comparables.
Askme Info Hubds Ltd. hardly bears any similarity with the assessee company. We, therefore, reject the assessee’s contention for including this company in the list of comparables.
Crisil Research & Information Services Ltd only reason given for its exclusion is the nonavailability of data for the relevant financial year. The ld. AR fairly admitted that it is not possible to deduce operating profit margin of this company for the financial year ending 31.3.2007 on the basis of information as is available in public domain. As such, we hold that the authorities were justified in excluding this company from the list of comparables on this score alone.
Addition towards the expenditure incurred on account of leasehold improvements by treating the same as capital in nature - Held that:- It is evident from the description of the items on which the above referred expenditure has been incurred that it is a case of renovation of premises immediately after taking it on lease. As such, there can be no question of replacement. We cannot help if the Revenue has accepted the part deletion of disallowance by the ld. CIT(A). Be that as it may we are concerned only with the items of disallowance raked up in the appeal before us and hold that the ld. CIT(A) has taken unimpeachable view in treating the instant amount as capital expenditure.
Claim of depreciation - Held that:- In order to bring any amount within the ambit of Explanation 1 to section 32, it is paramount that the expenditure incurred by the assessee on the premises in the capacity of non-owner should firstly be in the nature of capital expenditure and then it should fall within any or both the clauses as discussed above. If these conditions get satisfied, as is the case under consideration, then the amount incurred for such works falls for consideration under Explanation 1 to section 32. In other words, the amount so incurred would be capitalized entitling the assessee to depreciation as per the eligible rate. In view of the foregoing discussion, we uphold the impugned order on this issue subject to grant of depreciation.
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2016 (2) TMI 994
CENVAT credit - whether the appellant manufacturer of sugar and molasses have rightly availed Cenvat credit of ₹ 18,36,911/- during the period August, 2006 to December, 2006 on Plates/Coils/Shape and Section/M.S. Angles/M.S. Round and Flat/M.S. Channels falling under chapter 72 and 73 of the CETA, 1985 by treating these goods as inputs? - Held that: - I hold that the appellant is entitled to Cenvat credit on the items of iron and steel in question if the same have been used for fabrication of capital goods, for repair and maintenance of capital goods, for fabrication of staging structures and supporting structures etc. as no excisable products can be manufactured without the same. Further, the amended definition of inputs under the Cenvat Credit Rules provides for availability of Cenvat dredit to a manufacturer on all items utilised by the manufacturer in the factory of production. Accordingly, I allow this appeal by way of remand with a direction to the Adjudicating Authority to verify the claim of the appellant in the light of the directions and findings recorded hereinabove after verification of the utilisation of the items of iron and steel - appeal allowed by way of remand.
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2016 (2) TMI 993
100% EOU - confiscation of goods - clandestine removal - procurement of material form un-registered dealer - Held that: - I take notice of the fact that the goods on interception were found by the purchase bill of the appellant and secondly, the goods were being transported with road permit (statutory document, pre authenticated by the Sales Tax Department). Under such circumstances, the genuineness of the transaction is prima facie established as being one of purchase/trade and prima facie no goods of clandestine removal is made out and/or established by the Revenue. Accordingly, I allow all the three appeals and set aside the duty and penalty confirmed in the impugned appellate Order - appeal allowed - decided in favor of appellant-assessee.
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2016 (2) TMI 992
Refund claim - Clandestine removal - supply of goods to 100% EOU - N/N. 22/2003-CE dated 31.03.2003 - Held that: - I find that the issue is settled in favor of the appellant by Hon’ble Gujarat High Court in the case of NBM Industries [2011 (9) TMI 360 - GUJARAT HIGH COURT], where it was held that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value, Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed exports should have been taken into account. Thus clearances made by one 100% EOU to another 100% EOU which are "deemed exports" are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rule, 2004 - Accordingly, I hold, the Commissioner (Appeals) have erred in rejecting the refund claim. Thus, the appeal is allowed and the impugned order is set aside. The appellant to be granted refund by the Adjudicating Authority with 30 days, with interest as per Rules, on receipt of this order - appeal allowed - decided in favor of appellant-assessee.
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2016 (2) TMI 991
CENVAT credit - Telephone services - input services - Installation, liasioning & documentation for electricity connection at cell sites - DG Sets Maintenance & Diesel filling to keep cell site operational - House keeping/Cleaning services - Hotel Services - Balloon delivery services - Held that: - I find that the appellant, is a provider of Mobile Telecom service, needs to keep its tower operational even during power failure to provide good quality of service to their customers/subscribers. These towers are located quite often scattered over a large geographical area and accordingly, the service availed for maintenance of the D.G. sets including filling in fuel etc. I hold that same is essential service for providing the Telecom service. Accordingly, I allow the input credit on the D.G. sets maintenance and Diesel filling activity provided by the service providers to the appellant and allow the Cenvat Credit ₹ 8,25,071/-
House cleaning services - Held that: - This service have been held to be having not nexus with the provision of output services. Further, observing that the category of service is not mentioned in the invoices in question in the impugned order. I find that Housekeeping and gardening services, wherein employer spends money to maintain their factory premises in an eco friendly manner and have paid services tax on such services, the same forms part of the cost of final products and accordingly, same would fall within the ambit of input services.
Hotel services - Held that: - I hold that the Hotel services have been availed for the business travel etc. of the appellant company and the same is necessary for providing the output services. Accordingly, the Cenvat Credit of ₹ 1,28,897/-, is held allowable.
Balloon delivery services - Held that: - I find that the said expenses relates to delivery of 43 packets of Balloons being hiring charges for delivery to Meerut-I+Courier charges+ agency charges paid to Communique Marketing Solutions Pvt. Ltd., who have a valid service tax registration and have been interested by the appellant as a regular marketing/sales promotion vender. Finding that the same relates to marketing and sales promotion by making the name of the company widely known among the probable customers. I find the same as an eligible input service and accordingly, the Cenvat Credit of ₹ 426, is held allowable for the same.
Appeal allowed - credit allowed - decided in favor of assessee.
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2016 (2) TMI 990
SIC company - Grant of a concession or relief in terms of the Scheme presented before the BIFR - relief relating to capital gains tax under Section 45 on sale of assets disallowed on the basis of projected figures and not on the basis of actual figures - whether the difference between the actuals and the projected figures should be absorbed by the Petitioner?
Held that:- Referring to the order passed by AAIFR it requires the Income Tax Department to accept or reject the plea for grant of a concession or relief in terms of the Scheme presented before the BIFR. The AAIFR observed that “the Department should have only considered the proposed concession and taken its own decision.” That order does not by any means suggest that when there are actual figures available at the time of the decision to be taken by the Department, reliance can be placed on the projections of the Petitioner which were submitted at the time of submission of the scheme before the BIFR. In any event, it does not support the plea of the Revenue that the difference between the actuals and the projected figures should be absorbed by the Petitioner.
Consequently, while setting aside the order dated 29th November 2012 passed by the DIT Recovery, the Court requires the DIT (Recovery) to once again consider the proposed scheme and the question of entitlement of the Petitioner to concession as sought for by the Petitioner. A fresh decision based on the actual figures submitted by the Petitioner will be taken.
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2016 (2) TMI 989
Denial of CENVAT credit - services related to certain modernization and renovation activities of the existing factory premises - whether denial of CENVAT credit on the ground that goods have been cleared availing benefit of exemption Notification No.30/2004-C.E. dated 09.07.2004 and Notification No. 04/2006-C.E. dated 01.03.2006, justified? - Held that: - I find that the appellant have availed the CENVAT credit in respect of input services of renovation and modernization of their factory for in house manufacturing of partially oriented Yarn, on which they have discharged the Excise duty. As regard the exemption availed by the appellant under Notification No. 30/2004-CE, the said exemption was not availed an POY Yarn for which the renovation and modernization of plant was undertaken. Therefore the service on which CENVAT credit was taken mere not used for manufacturing of exempted goods. It is also admitted fact that the appellant have not cleared any goods under exemption during and after the renovation and modernization of plant of the appellant. With these undisputed fact, I do not see any reason why the CENVAT credit on the input services should not be allowed when the service is related to the manufacturing of dutiable goods - CENVAT credit allowed - appeal allowed - decided in favor of appellant.
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9911796707
