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Showing 401 to 420 of 1515 Records
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2016 (1) TMI 1115
Principles of promissory estoppel - whether Principles can be invoked in favour of the appellants so as to entitle them to the benefit of concessional tariff of electricity? - Held that:- The principle of promissory estoppel would have no application to the case of the appellants so as to entitle the applellants any right to the continuation of the concessional tariff earlier granted.
The appellants have urged certain other issues to persuade the court to strike down the impugned action of the respondents in withdrawing the concessional tariff, the foremost being that the industries in question had earned no profits so as to attract the withdrawal/disabling condition introduced in the Amended Schedule. In this regard it is pointed out that Kothari Industrial Corporation Ltd. had incurred losses as a whole though its caustic soda unit, to whom concessional tariff was promised and granted, may have earned a profit. The concessional tariff having been granted to the industry by the Act in question, though in respect of its caustic soda unit, the assessment of profit/loss made by the industry as a whole and not by the unit alone, cannot be said to be an arbitrary or irrational basis for determining the application of the impugned G.O. to the appellants in C.A.Nos.9748 and 9750 of 2003. Similarly in the case of the appellant National Oxygen Ltd. the refusal of the respondent to compute the issue of profit/loss by distributing the depreciation of cylinders for a period of five years instead of the first year in which the depreciation was allowed, as claimed, cannot be termed as an unjustified basis for holding the industry to be a profit making enterprise. The contention on the above score made on behalf of the appellant National Oxygen, therefore, is of no consequence. Similarly the withdrawal of the G.O. 861 dated 30.4.1982 in the year 1988 and a reversal to the situation prevailing earlier cannot invalidate the G.O. (No. 861 dated 30.4.1982) inasmuch as it is for the State and not for the court to determine what should be the policy for grant/refusal of concessional power at different points of time. These are questions that must be left to the State and not to the Courts to decide.
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2016 (1) TMI 1114
Rectification of mistake - net profit as per profit and loss account is ₹ 1,94,33,895 and that the depreciation as per books of accounts, which is required to be added back to the profit as per profit an dloss account, is ₹ 3,20,466 and not ₹ 32,40,466 - Held that:- The fact that mistake has occurred is beyond doubt. The fact that it is attributed to the error of the assessee does not obliterate the fact of mistake or legal remedies for a mistake having crept in. It is only elementary that the income liable to be taxed has to be worked out in accordance with the law as in force. In this process, it is not open to the Revenue authorities to take advantage of mistakes committed by the assessee. Tax cannot be levied on an assessee at a higher amount or at a higher rate merely because the assessee, under a mistaken belief or due to an error, offered the income for taxation at that amount or that rate. It can only be levied when it is authorised by the law, as is the mandate of Art. 265 of the Constitution of India. A sense of fairplay by the field officers towards the taxpayers is not an act of benevolence by the field officers but it is call of duty in a socially accountable governance. If authority is needed even for justifying this approach to the taxpayers, one need not look beyond the circulars issued by the CBDT itself.
One can understand the young Assessing Officers being overzealous in their approach and making such mistakes, something is needed to be done to ensure that the appeals are not filed before the higher forums as a matter of routine. Only if the field authorities are little more cautious, and stay away from such pedantic approach, such thoughtful initiatives and pragmatic approach of the Government, at the highest level, will earn more goodwill and greater trust at the ground level. As we are dismissing this appeal, and confirming the relief granted by the learned CIT(A), we make it clear that while we are not awarding any costs in this case, we must put in a word of caution here. There has to be proper mechanism to ensure that such frivolous appeals are not filed. However, if that does not happen and these frivolous appeals continue to clog the system, it is only a matter of time that the Tribunal starts awarding costs, in such cases, as a measure to deterrence to the officers concerned. We hope that does not happen. - Decided against AO
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2016 (1) TMI 1113
Bogus sales transactions - accommodation bills - denial of natural justice - Held that:- We find that the AO received certain pieces of information from the STD,that as per the information JE was supplying bogus bills,that the AO did not supply the copy of the statement of JE to the assessee and neither made him available for cross examination,that the assessee had filed all the details from placing of order to the receipt of final bills before the AO during the assessment proceedings, that the assessee had discharged the onus cast upon it,that after that the AO did not make any inquiries,that the assessee had not rejected the books of accounts of the assessee ,that he had accepted the sale made by the assessee.In our opinion the AO had violated the basic principles of natural justice and the FAA had rightly held that addition made by the AO would fall in the category of addition made behind the back of the assessee.
The Hon’ble Bombay High Court in the case of Nikunj Eximp Enterprises Ltd.(2013 (1) TMI 88 - BOMBAY HIGH COURT ) has held that if the AO accepts the sales as genuine,there cannot be any justification in rejecting the purchases.Information received from STD was a good starting point for further investigation.But,the AO stopped at that point itself and did not bring on record anything that could rebut the documentary evidence produced by the assessee.In our opinion,addition made by the AO was justifiably deleted by the FAA - Decided in favour of assessee
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2016 (1) TMI 1112
Stay on the refund granted to the petition - The High Court had dismissed the department's [2015 (5) TMI 293 - GUJARAT HIGH COURT] - SC issued notice on application for condonation of delay and on special leave petitions as also on prayer for interim relief.
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2016 (1) TMI 1111
Withholding of refund as allowed by the Central Excise (Appeals) - appellant submitted that no Revision Application or any other Petition by the revenue - Revenue submitted that the Revision Petition was sent within time to the address given in the preamble of the order passed by the Commissioner (Appeals) and, therefore, the contention that the 2nd respondent did not file any Revision before the 1st respondent is false and due to pendency of the Revision only the amount could not be paid and along with the Revision the Miscellaneous Application filed for early and out of turn hearing are pending, therefore, non payment of the amount is not due to any other reason and finally prayed to dismiss the Writ Petition. - The problem arouse due to change of address of revision authority
Held that:- No doubt, retention of huge amount would cause financial loss to the petitioners and at the same it will affect the Revenue of the Government. In such case, the Court has to strike a balance between the rights of both the parties and pass appropriate order by exercising jurisdiction under Article 226 of the Constitution of India.
To avoid loss to any one of the parties to this Writ Petition, we find that it is a fit case to direct the 1st respondent to dispose of the Appeal pending before them, as expeditiously as possible, in any event not later than two months from the date of receipt of a copy of this order, by exercising an equitable jurisdiction conferred on this Court under Article 226 of the Constitution.
Writ Petition disposed of.
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2016 (1) TMI 1110
Additions made u/s.206C(1) on account of non-collection of TCS on sale of scrap - interest charged u/s.206C(7) - whether the CIT(A) has erred in accepting the assessee’s argument on merit submitting belated Form No.27C along with consequential interest? - Held that:- We make it clear in Revenue’s appeal that there is no substantive ground challenging lower appellate findings of the CIT(A)’s order clarifying that a part of its high seas sales is already covered in earlier survey. There is also no dispute about the fact that the assessee has belatedly submitted relevant Form No.27C collected from its buyers. The same were placed on record before the Assessing officer itself who declined to accept the same in view of delay in submission thereof. There is no issue qua genuineness of these Forms. We find that the co-ordinate Bench decision of Tribunal (supra) already holds that such a belated submission of relevant Form is a procedural lapse only. The Revenue is unable to point any distinction on facts or law therein. We accordingly see no reason to interfere with lower appellate findings remitting the issue back to the Assessing Officer for adjudication afresh as per law. The Revenue’s corresponding ground accordingly fails. The Revenue’s next argument seeks to restore interest component of the above stated impugned demand. We are of the view that this issue is a consequential one only. We uphold lower appellate findings qua this interest issue as well. - Decided against revenue
Challenging applicability of section 206C we have already extracted hereinabove Special Bench finding in the case of M/s. Bharti Auto Products vs. CIT [2013 (9) TMI 274 - ITAT RAJKOT ] rejecting an identical plea. The assessee fails in pointing out any distinction on facts or law therein - Decided against assessee
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2016 (1) TMI 1109
Condonation of delay in filing an appeal before the Commissioner (Appeals) - appeal against the Bill of Entry or assessment order - Held that:- On perusal of copy of note sheet file which is marked as AC(EDI)/DC (EDI)/DC(Gr.7) on 20.2.2007, we find that appellant cannot agitate that this an order and this was not issued to the appellant. Therefore appeal is filed against Bill of Entry and not against any letter or order issued by the AC. - Commissioner (Appeals) has no powers to condone delay beyond condonable period. - Decided against the assessee.
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2016 (1) TMI 1108
Reopening of assessment - Held that:- As far as AY 2005-06 is concerned, it is sought to be urged is that while framing the original assessment, the Assessing Officer (AO) had inadvertently failed to notice that accrued income of the Assessee from the disposal of stocks in the bonded warehouse had escaped assessment. As noticed by the ITAT, the original assessment was framed under Section 143(3) of the Act and a specific query was raised by the AO to the effect: "why income from bonded warehouse be not accounted for on accrual basis?" and had been clarified by the Assessee in writing. In objecting to the re-opening of the assessment the Assessee pointed out: "As a matter of fact, the assessing officer had called (for) certain clarifications and the assessee had furnished the required clarifications, where-after this issue was dropped by him." The Court concurs with the ITAT that the re-opening of the assessment by the AO for AY 2005-06 was based on a change of opinion and, therefore, impermissible in law.
As pointed out by the learned counsel for the Assessee, and as noted by the Commissioner of Income Tax (Appeals) in the order dated 15th October, 2012 for the AY 2004-05, in the original assessment order dated 29th December 2006 under Section 143 (3), the AO had "elaborately discussed Section 14A of the Income tax Act and disallowed a sum of ₹ 1,59,03,771. A questionnaire was also issued by the AO vide questionnaire dated 19.9.2006 specifically asking a query why the proportionate administrative and management expenses incurred for earning the exempted income should not be disallowed under section 14A. The assessee Corporation had replied the questionnaire vide letter dated 3.10.2006 which was taken into account and the AO had proceeded to proportionately disallowed a sum of ₹ 1,59,03,771/- under Section 14A." Further, the said addition was challenged before the CIT(A) who by order dated 28th December 2007 gave relief of Rs.l,54,03,771.
In the circumstances, the conclusion reached by the CIT (A) that the AO was by seeking to reopen the assessment for AY 2004-05, reviewing his earlier order, cannot be faulted.
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2016 (1) TMI 1107
Reopening of assessment - reliance on audit party report - Held that:- It emerges from the recorded portion of the noting of the Assessing Officer that she had not accepted the point of view of audit party at all. She in fact, recorded that the objections raised by the Revenue's audit party is not acceptable. However, for some strange reasons, later on proceeded to issue the notice for reopening on the ground that action is getting time barred and that remedial action is being initiated within four years. It is by now well settled for issuing notice for reopening, the Assessing Officer herself ought to have recorded the satisfaction that income chargeable to tax had escaped assessment. Even the revenue's audit party cannot prevail over such opinion of the Assessing Officer. The audit party can bring to the notice of the Assessing Officer an element which might have escaped her notice, nevertheless, once she was convinced that the objection of the revenue party was not valid, her act of issuing notice for reopening was simply not permissible. We may refer to the decision of the Supreme Court in case of Indian and Eastern Newspaper Society v. Commissioner of Incometax, New Delhi reported in [1979 (8) TMI 1 - SUPREME Court ] . - Decided in favour of assessee.
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2016 (1) TMI 1106
Permanent Establishment(PE) in India - whether assessee only having activities that are proprietary or auxiliary in nature - Held that:- We have observed from the findings of the ld. CIT(A) that the assessee has been involved in supplying the literature relating to marketing and sales without any participation in actual sales activity. The Israeli company is selling the products to the distributors as per the requirements directly from Israel, and also makes efforts to services and maintain products used within the territory, which are sold directly by the Israeli company. The Israeli company further sells to the distributors within the territory not being the assessee and that these distributors further resale the products to ultimate customers independently.
The Liaison office only provides certain servicing of the equipments to the distributors for which the expenses are reimbursed by the Israeli company. The Liaison office in India is merely in the nature to facilitate the contract between the distributors and the Israeli company. The distribution contract, per se at page _____ of the paper book, do not result into any generation of income and, therefore, the activities of the assessee have to be definitely considered to be proprietary and auxiliary in nature. The ld. AR has brought to our notice RBI approval, at page 10 of the paper book, which has been received by the assessee, for the purposes of undertaking liaison activities and to act as a communication channel between the parties in India and the Israeli company.
In view of the foregoing discussion, we conclude that the assessee does amount to a PE in India, and are of the considered opinion that the assessee is a liaison office and are providing services which are proprietary or auxiliary in nature. We, therefore, do not find any infirmity with the findings of the ld. CIT(A). See UAE Exchange Centre [2009 (2) TMI 56 - DELHI HIGH COURT ] - Decided in favour of assessee.
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2016 (1) TMI 1105
Illegality and arbitrariness - Revision order not passed for want of Form 'C' - Inter-state sale and sale made to SEZ - Respondent submitted that the Writ Petition is not maintainable, as the assessee / writ petitioner has invoked this jurisdiction despite the availability of an equally efficacious alternative remedy of filing an appeal - Held that:- the petitioner is regularly filing their monthly returns and complying with the statutory requirements. The respondent has also accepted the turnover reported by the petitioner as correct and determined the same. However, for want of Form 'C' and Form 'I', the respondent adopted higher rate of tax at 14.5% also. Therefore, in view of the Full Bench Judgment of this Court in the case of State of Tamil Nadu v. Arulmurugan and Company [1982 (11) TMI 143 - MADRAS HIGH COURT] and also the circular dated 01.02.2000 issued by the Commissioner of Commercial Taxes, Chennai, the Writ Petition is allowed by setting aside the impugned orders and directing the respondent to accept the Form “I” filed by the petitioner on 19.01.2016 for the sales made to “SEZ” for the assessment year 2011-2012 and pass orders afresh in accordance with law. - Decided in favour of petitioner
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2016 (1) TMI 1104
Revision u/s 263 - non assigning reasons for accepting the valuation of the work-in-progress by AO - Held that:- The twin test propounded by the Hon'ble Courts for invoking the provisions of Section 263 of the Act, are not satisfied in the present case. As discussed above, the CIT proceeded to initiate proceedings under Section 263 of the Act only on the ground that the Assessing Officer has not assigned any reasons for accepting the valuation of the work-in-progress declared by the assessee. As per the materials placed before the Tribunal in the records pertaining to the assessment year in question, a detailed examination is made by the Tribunal, Tribunal is of the view that the Assessing Officer has applied his mind before accepting the figure declared by the assessee in the work-in-progress report. Such an order cannot be held to be erroneous and prejudicial to the interest of the revenue. It is not a case of 'lack of inquiry'. Further inquiry ordered by the CIT would amount to fishing/rowing inquiry in the matter already concluded.
The ITAT having considered the material placed before it, rightly set-aside the order passed under Section 263 of the Act, as not sustainable. Accordingly, the assessee's appeal is allowed as the consequential order passed under Section 143(3) read with Section 263 of the Act does not survive for consideration as having become infructuous. No exception can be found with the well reasoned order passed by the ITAT. - Decided against revenue
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2016 (1) TMI 1103
Revision u/s 263 - whether in the present case the AO made the necessary enquiry with regard to the money received by the assessee from prospective buyers of the developed land? - Held that:- O had conducted inquiries with regard to the money receipt by the assessee from prospective buyers of developed land. The CIT therefore could not have invoked the jurisdiction u/s 263 of the Act on the ground that there was lack of inquiry on the part of the AO - Decided in favour of assessee.
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2016 (1) TMI 1102
Valuation of goods - Enhancement in valuation of goods - Inclusion of value of the mixed acid oils and mixed fatty acid imported - DIFFERENCE OF OPINION
Whether there was deliberate mis-declaration of description and value of imports proved from investigation result, report of CRCL and various evidence gathered by investigation as well uncontroverted adjudication finings as recorded by Technical Member and adjudication should be upheld? OR
Whether merely relying on the decision of tribunal in the case of H.K. International (2011 (7) TMI 825 - CESTAT, NEW DELHI) irrespective of peculiar facts of each case tested on the basis of law, adjudication is to be set aside as recorded by Judicial Member? - Matter referred to larger bench.
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2016 (1) TMI 1101
Extension of stay - Whether Hon'ble CESTAT was right in holding that as per the third proviso to Section 35C(2A) of the Central Excise Act, 1944, it has got the power to grant extension of stay beyond 365 days from the initial grant of an order of stay - Demand of Service tax along with interest and penalty - Business auxilliary service - Not disclosed the fact of providing this service - Held that:- in view of the decisions of various High Courts in various case laws, wherever the appeal could not be decided by the Tribunal due to pressure of pendency of cases and the delay in disposal of the appeal is not attributable to the assessee in any manner, the interim protection can continue beyond 365 days in deserving cases. - Decided against the revenue
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2016 (1) TMI 1100
Addition of expenses incurred for earning exempt dividend income by invoking section 14A r.w Rules 8D - Held that:- On the identical issue as pointed out by the Ld. A.R. the Chennai bench of the Tribunal for the assessment year 2009-10 [2013 (8) TMI 999 - ITAT CHENNAI] has remitted back the matter to the Ld. Assessing Officer to decide the matter once again afresh based on the findings whether the assessee had actually incurred any expenditure in earning the dividend income.
Thus we hereby remit the matter back to the file of Ld. Assessing Officer to examine the issue involved in this case afresh and pass appropriate order.
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2016 (1) TMI 1099
Eligibility of Cenvat credit on outdoor catering - Held that:- It is not deniable that providing of the canteen service to the factory workers is a statutory obligation under section 46 of the Factories Act, 1948. Once the labour legislation as welfare measure provides such facility which is having intimate connection with the manufacture, such an object cannot be over ridded by fiscal statute. Therefore, appeal is allowed.
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2016 (1) TMI 1098
Addition made on account of disallowance of interest paid on borrowed funds - partial allowance of interest by the CIT(A) as against the total disallowance made by AO under section 36(1)(iii) - Held that:- We find no merit in the orders of authorities below in working out the interest attributable to the loans relatable to 12 projects under construction, has been not allowable as deduction in the hands of assessee. The assessee was following unit sale method of accounting, where revenue was recognized on sale of the units completed by it. The assessee was not following project completion method. Though the assessee was capitalizing the cost of projects which were under consideration, the revenue relatable to units of such projects was offered to tax as and when the units were sold by the assessee. Thus, in such circumstances, there is no merit in holding that the interest attributable to the alleged loans utilized for 12 projects under consideration is to be disallowed in the hands of assessee. We find no merit in the orders of authorities below in this regard.
Where the assessee is engaged in the business of construction and development and the project undertaken by the assessee constitute stock in trade / work-inprogress and are not capital assets owned by the assessee, the proviso to section 36(1)(iii) of the Act do not apply and there is no merit in restricting the deduction on account of interest expenditure on loan availed for carrying on the business of the assessee. Accordingly, we direct the Assessing Officer to allow the expenditure of ₹ 11,26,17,000/- in the hands of the assessee. At this juncture, we also want to refer to the alternate plea raised by the assessee before the Assessing Officer that at best disallowance of ₹ 52,15,480/- can be made being attributable to qualifying assets. The said alternate contention was without prejudice to the main contention and in view of our allowing the claim of the assessee in totality, we find no merit in the alternate plea raised by the assessee. Consequently, the grounds of appeal raised by the assessee are allowed and the grounds of appeal raised by the Revenue are dismissed.- Decided in favour of assessee
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2016 (1) TMI 1097
Withdrawal of petition - with liberty to file an appeal challenging the said order - Held that:- Dismissed as withdrawn. It shall be open to the petitioner to take recourse to the remedies as may be available to it, in accordance with law. - Petition dismissed
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2016 (1) TMI 1096
Withdrawal of petition - with liberty to file an appeal challenging the said order - Held that:- Dismissed as withdrawn. It shall be open to the petitioner to take recourse to the remedies as may be available to it, in accordance with law. - Petition dismissed
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