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Showing 401 to 420 of 558 Records

• 2012 (2) TMI 290
  

  Rejection of appeal for not filing appropriate papers before Court - Exemption under Notification No.1/93 dated 28.02.2003 – CESTAT allowed such exemption affirmed by High Court – Revenue is in appeal - final order passed by CESTAT is not produced – Held that:- In the absence of the such orders it would not be proper for us to decide between the parties and would be handicapped while appreciating the legal issues. Hence, appeal is rejected solely on the ground that the Revenue has not filed the appropriate papers before this Court.

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• 2012 (2) TMI 289
  

  Classification of Slagwool and Rockwool under Chapter sub-heading No.6807.10 – revenue contending it to be classified under sub- heading No.6803.00. - assessee submits that they are manufacturing `Min wool' using more than 25% of blast furnace slag by weight, right from 1993 - Held that:- Sub-heading No.6807 is specific to the goods in which more than 25% by weight, red mud, press mud or blast furnace slag is used. The heading is based entirely on material used on composition of goods. A tariff heading, based on composition of goods, is also specific heading like a heading based on commercial nomenclature. Therefore, we are of the view that the goods in issue are appropriately classifiable under Sub-heading No.6807.10 of the tariff entry. See CCE, Raipur Vs. Punj Star Insulation Fibre Co (2004 - TMI - 48995 - CESTAT, Northern Bench, New Delhi), M/s.Rockwool (India) Pvt. Ltd. Vs. CCE, Hyderabad (2005 - TMI - 54236 - CESTAT, South Zonal Bench, Bangalore)

  Further, in a classification dispute, an entry which is beneficial to the assessee requires to be applied and the same has been done by the adjudicating authority, which has been confirmed by the Tribunal – Decided in favor of assessee.

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• 2012 (2) TMI 288
  

  Non-reversal of proportionate credit on input service going into the manufacture of exempted product – slag generated during the course of manufacture of MS ingots – Revenue contended procedure under Rule 6(3A) has not been followed – reversed the credit and imposed demand & penalty – Held that:- Dispute is only about compliance with some procedure. Proportionate credit on inputs and input service going into the manufacture of exempted product stands reversed and hence a demand for 10% of the value of exempted goods is prima facie not warranted. Dues are waived – Decided in favor of assessee.

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• 2012 (2) TMI 284
  

  Validity of reopening of assessment previously framed after scrutiny beyond 4 years from the end of relevant A.Y. - wrong cliam of depreciation since business was yet to commence – no failure or omission on the part of the petitioner to furnish fully and truly all material facts – Held that:- Petitioner had disclosed full and true particulars relating to the claim of depreciation at the time of original assessment. The notice u/s 148 has been issued beyond the period of 4 years from the end of relevant A.Y. Therefore, primary jurisdictional condition for issue of such notice has not been satisfied – Decided in favor of assessee.

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• 2012 (2) TMI 283
  

  Validity of reopening of assessment – A.Y. 06-07 sought to be reopened on the basis of an order of assessment for A.Y. 07-08 framed after scrutiny - Petitioner, wholly owned subsidiary of a non resident shipping line – retention of US $ 1.5 per day per container collected on behalf of the principal between 1993 to 2009 as administration charges in accordance with norms prescribed by RBI - offered the same as its own income during the period 1993 to 2009 for A.Y. 2010-11 – Held that:- The Assessee in the present case had made a disclosure in the notes forming part of the accounts of the nature of payments required to be made to the foreign principal on account of Container Detention Charges. Moreover, entire amount has been offered to tax. There was no tangible material, no new information and no fresh material which came before the Revenue in the course of assessment for A.Y. 2007-08 which can justify the reopening of the assessment for Assessment Year 2006-07 – Decided in favor of assessee.

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• 2012 (2) TMI 282
  

  Validity of reopening of assessment beyond 4 years from the end of relevant A.Y – A.Y. 04-05 sought to be reopened on the basis of an order of assessment for A.Y. 07-08 framed after scrutiny - Petitioner, wholly owned subsidiary of a non resident shipping line – retention of US $ 1.5 per day per container collected on behalf of the principal between 1993 to 2009 as administration charges in accordance with norms prescribed by RBI - offered the same as its own income during the period 1993 to 2009 for A.Y. 2010-11 – Held that:- Beyond a period of four years the test is not merely whether there has been an escapement of income, but whether, there has been a failure on the part of the Assessee to disclose fully and truly all material facts necessary for the assessment. Since there was a disclosure by the Petitioner of the material facts necessary for the assessment. Hence, primary jurisdictional requirement under the proviso to Section 147 has not been fulfilled – Decided in favor of assessee.

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• 2012 (2) TMI 281
  

  Validity of reopening of assessment previously framed after scrutiny beyond 4 years from the end of relevant A.Y – A.Y. 04-05 sought to be reopened on the basis of an order of assessement for A.Y. 06-07 – A.O. did not specifically deal with the eligibility to claim a deduction u/s 10A – Held that:-The order for A.Y. 2006-07 is based on disclosures made by the assessee during the course of assessment proceedings for that year and it is not the submission of the assessee before this Court that the same disclosures were also made during the course of A.Y. 2004-05. In the circumstances, we are of the view that though the reopening of the assessment in the present case has taken place beyond a period of four years, the jurisdictional condition for reopening the assessment u/s 147 has been fulfilled – Decided against the assessee.

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• 2012 (2) TMI 280
  

  Penalty u/s 271-B – failure to get accounts audited u/s 44AB - A.Y. 2000-01 to 2003-04 – Tribunal deleted the penalty on ground that penalty proceedings having been initiated long after the completion of the assessment – Held that:- In the given case, penalty proceedings for the A.Y. 2000-01, 2001-02, 2002-03 & 2003-04 were initiated after the period of more than 4.5, 3.5, 2.5 & 1.5 years respectively after the completion of assessment. Therefore in wake of Section 275(1)(c), no penalty can be imposed – Decided against the Revenue.

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• 2012 (2) TMI 279
  

  Expenditure Incurred on Increasing authorized Share Capital - Capital OR Revenue - Held That:- When expenses are incurred to increase the share capital and it was immaterial for what purpose the share capital was utilized by the assessee. Reliance placed on CIT vs Kotak India (2001 -TMI - 6052 - SUPREME Court). - Decided against the assessee.

  Employees’ contribution to the provident fund after the due date under relevant act - Held That:- CIT Vs. Nexus Computer P. Ltd.(2008 - TMI - 33881 - MADRAS HIGH COURT) and in view of Vinay Cement (2007 - TMI - 102762 - Supreme Court of India), payments made before date of filing return under 139(1), deduction allowed.

  Deemed Dividends - Deposits from common shareholders having more than 20% equity - Deposits for office space - Held That:- It could not be brought to notice that assessee and the creditor were in the line of the same business of garment export and as to whether there was any business relation earlier to this transaction. As the facts are not clear we remand the matter back to AO.

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• 2012 (2) TMI 278
  

  Deduction - Projects to be completed within time after "approvals" - Facts: "Hill Side" and "Silver Valley" different projects - Land transferred on 9.02.05 and 10.02.05 - Building Plan approved and Commencement Certificate received on 30.04.05 - Held That:- Completion time for above projects were 31.03.10 and when the above projects are completed on 18.11.09 it is well within stipulated time. Decided against revenue.

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• 2012 (2) TMI 277
  

  Assessee exporting human hair - Cash purchases - AO: disallowed 25% cash & cheque purchases - CIT(A) restricted disallowance upto 20% - Held That:- Quantitative details cannot be accepted to be true and correct because internally prepared purchase memos are not reliable at all in absence of name, address and signature of the vendors. What is surprising is that even signature or thumb impression has not been taken on any memo, which leads to the conclusion that some or all of them have been prepared by the assessee at its convenience. CIT(A) was correct in disallowing 20%. All details were provided for cheque purchases thus no disallowance required.

  Addition on account of purchases from director - CIT(A): Purchases were made by cheques and duly accounted in stock register - Purchases at Rs.2806/- per kg. as against overall average purchase price of Rs.3233 per kg. - Held That:- When relevant material were on record, additions cannot be made. On the above factual matrices, purchases cannot be disallowed.

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• 2012 (2) TMI 271
  

  Whether proceeding dropped before revalidation law shall revive after revalidation – GTA services - proceeding initiated by SCN dated 31.12.98 ended with no liability - said proceeding was revalidated by SCN dated dated 9.2.2004 u/s 116 of Validation Act, 2000 - Held that:- Under the provision of law at the relevant point of time when recipient was not required to discharge tax liability for availing GTA service filing of return did not arise. Once such legal obligation was not there, it cannot be said that Section 73 of Finance Act, 1994 is invokable. Accordingly, appeal is allowed without re-adjudication.

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• 2012 (2) TMI 269
  

  Offence committed under Negotiable Instrument Act - non-payment of debts arising out of dishonour of cheques - sanction of a scheme u/s 391 of the Companies Act, 1956 – whether such sanction amounts to compounding of an offence u/s 138 read with Section 141 of the N.I. Act - High Court held aforesaid in negative and also held that such sanction will not have the effect of termination or dismissal of complaint proceedings under N.I. Act – Held that:- In the instant appeal in most of the cases the offence under the N.I. Act has been committed prior to the scheme. Therefore, the offence which has already been committed prior to the scheme does not get automatically compounded only as a result of the said scheme. Scheme u/s 391 of the Companies Act cannot have the effect of overriding the requirement of any law.

  Further, basic mode and manner of effecting the compounding of an offence under Section 320 of the Criminal Procedure Code cannot be said to be not attracted in case of compounding of an offence under N.I. Act in view of Section 147 of the same. However, the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of N.I. Act. For the reasons aforesaid - Appeal stands dismissed.

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• 2012 (2) TMI 268
  

  FERA 1973 - Release of foreign exchange in violation of the instructions of the RBI resulting in a violation of the relevant provisions of the FERA 1973 - allegation against the Appellants is a failure to discharge their responsibilities under the law and to ensure legal compliance - Section 68(1) & 68(2) – Held that:-The burden of establishing a defence in terms of the proviso to subsection (1) of Section 68 lies upon the person against whom the contravention is established under the substantive part of the provision. Having failed to establish their burden, the absence of connivance cannot come to the aid of the Appellants. Hence, no substantial question of law would arise in these appeals. The Appeals are accordingly dismissed.

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• 2012 (2) TMI 267
  

  Goods detained on alleged mis-declaration in the description of the goods - Revenue contends goods imported was machine declared as heavy melting scrap – appellate authority held that detained goods can be released upon mutilation rendering it as scrap and clearance upon payment of duty as scrap - Held that:-There is no evidence to controvert averment of appellant about life and condition of goods. Neither revenue had any material to prove that the goods imported was not 20 50 years nor proved that the same is usable for more than the period certified by Chartered Engineers without major repair and renovation and also looking to lapse of 18 months from the import. Accordingly there is no scope to reverse the first appeal order – Appeal of Revenue dismissed.

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• 2012 (2) TMI 266
  

  Availment of non- existent Cenvat Credit by Second stage dealer on goods – non-manufacturing & non-payment of duty by manufacturer of goods – assessee claimed credit on basis of invoices showing payment of duty – Held that:- Prima facie there are evidences appearing to show that the credit that was passed on was not against proper duty payment. The real merit in the matter can be decided only during final hearing. Thereby, appellants are directed to make pre-deposit.

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• 2012 (2) TMI 265
  

  Cenvat credit on services used for outward transportation of goods from the factory to the buyers premises - period involved prior to 01.04.2008 – appellant provided evidences showing satisfaction of conditions specified in Circular no. 97/6/2007-ST dated 23.8.07 for availment of credit - Held that:- Matter was not contested at earlier stages by the Appellants and they did not have opportunity to adduce evidence. Now evidences are submitted which should be examined and credit allowed if they are legally eligible. The impugned order is set aside and the appeal is allowed by remand to the original authority.

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• 2012 (2) TMI 262
  

  Bad debts versus Provisions for bad and doubtful debts - rural banking - Scope and ambit of the proviso to Section 36(1)(vii) - whether deduction of the bad and doubtful debts actually written off in view of Section 36(1)(vii) limits the deduction allowable under the proviso to the excess over the credit balance made under clause (viia) of Section 36(1) – rural advances - Held that:- U/s 36(1)(vii), the assessee would be entitled to general deduction upon an account having become bad debt and being written off as irrecoverable in the accounts of the assessee for the previous year, while the proviso will operate in cases under clause (viia) to limit deduction to the extent of difference between the debt or part thereof written off in the previous year and credit balance in the provision for bad and doubtful debts account made under clause (viia). The proviso to Section 36(1)(vii) will relate to cases covered under Section 36(1)(viia) and has to be read with Section 36(2)(v) of the Act. Thus, the proviso would not permit benefit of double deduction, operating with reference to rural loans. Therefore, we hold that provisions of Sections 36(1)(vii) and 36(1)(viia) are distinct and independent items of deduction and operate in their respective fields – Decided in favor of assessee.

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• 2012 (2) TMI 261
  

  Waiver of penalty u/s 271AAA – search & seizure conducted – disclosure of income in a statement u/s 132(4) – underpayment of self assessment taxes – shortfall paid within permissible time, upon receiving the notice of demand u/s 156 – Held that:- On the facts of the present case wherein entire tax and interest has been duly paid well within the time limit for payment of notice of demand u/s 156 and well before the penalty proceedings were concluded, the assessee could not be denied the immunity u/s 271AAA(2) only because entire tax, along with interest, was not paid before filing of income tax return or, for that purpose, before concluding the assessment proceedings – Decided against the Revenue.

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• 2012 (2) TMI 260
  

  DTAA with Singapore – Singapore company entered into contract with IOCL for residual offshore construction work and Installation of SPM - contract with L&T Ltd for installation and construction services for Single Point Mooring (SPM) - applicant contending non-existence of PE in India and presence in India for less than 180 days – taxability of revenue - 'FTS' or 'Royalty' – applicability of Section 44BB in respect of the contract with L&T - Held that:- In case of Ishikawajima-Harima Heavy Industries Ltd.(2007 - TMI - 3467 - Supreme Court) it is specified that where consideration of each portion of the contract is separately specified, it can be separated from the whole. Since payment in respect of contract with IOCL specifies separately consideration for mobilization and demobilization falling under the definition of royalty under Article 12.3(b) of the DTAA , consideration for actual installation falling under the definition of FTS as per Article 12.4(a) of the DTAA, and the rest relating to pre and post execution work and drawing/design documentation. Therefore, part of consideration is in nature of FTS and part of consideration is in nature of royalty u/s 9(1)(vii) & (vi) of the Act and under Article 12 of DTAA

  In respect of contract with L&T – it is noted that services and facilities being rendered by the applicant go beyond installation and include pre-installation services, post-installation services, procurement and transportation and sub-contract is effective as of 23.04.2008 and obligations under the contract continued to exist even after the vessels left the shores of India. The applicant's plea of counting the duration of services from 3.12.2008 when the applicant's vessels were mobilized to India till 19.05.2009 when the vessels left the shores of India is untenable and unacceptable.

  Hence the applicant has a PE in India in terms of Article 5.5 of the DTAA and falls within the ambit of Section 44BB of the Act. The consideration received by the applicant for mobilization and demobilization is taxable in India u/s 44BB of the Act.

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