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Case Laws
Showing 401 to 420 of 835 Records
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2010 (4) TMI 832
Deduction under sections 80HH and 80-I of the Act - Tribunal unambiguously mentioned that this certificate cannot be taken as an evidence to comply with the requirement of income-tax law under reference and, therefore, seems to be of no use to the assessee. Under the circumstances, the Assessing Officer should not have relied on his certificate and allowed the deduction under sections 80HH and 80-I of the Act - Held that:- Assessing Officer has referred to the certificate wherein the Department of Industries, Government of Andhra Pradesh, has specified that the unit of the assessee holds a permanent registration certificate as a small scale industrial undertaking within the meaning of section 11B of the Industries (Development and Regulation) Act, 1951. It is also necessary to consider the effect of section 80-I(5) of the Act, Ad interim relief granted earlier to continue as interim relief, Direct service is permitted.
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2010 (4) TMI 831
Reassessment - Validity of notice - successor Assessing Officer has come to form a different opinion and recorded reasons thereupon without establishing any lapse on part of the petitioner or any fresh information (2010 - TMI - 35201 - SUPREME COURT OF INDIA) , successor Assessing Officer has merely recorded a different opinion in relation to an issue to which the Assessing Officer, who had framed the original assessment, had already applied his mind and come to a conclusion that the method of accounting employed by the petitioner was correct and was not required to be disturbed, In the circumstances, the notice, issued under section 148 of the Act and the consequential reassessment order, framed under section 144 read with section 147 of the Act are hereby quashed and set aside
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2010 (4) TMI 830
Business carried on by assessee and other family members in same premises-survey conducted for the assessee as well as his father on the same day- Assessee was assessed for the excess cash found in Survey-validity of Statement under survey. - Held that:- materials collected during the course of survey action under section 133A shall not have any evidentiary value.CBDT Circular No. 286 which discourages Revenue officials from taking any statement during survey proceedings.When the assessee has explained by giving entire details including their PAN, etc. and the availability of cash at the time of survey or during the relevant period, in our opinion, by simply mentioning why the cash should be kept in assessee's house may not be a valid reason for assessment, when all the members are assessed to tax and have made a valid claim with proof. - Thus case was decided in favor of assessee .
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2010 (4) TMI 827
Deduction under section 80-IB - transfer of undertaking - constitution of the assessee-firm change by admission of a partner - claim of deduction declined by the Assessing Officer on the plea that there was a transfer of plant and machinery already in use in the business of proprietorship firm - On the conversion of proprietorship firm into partnership firm - Held that:- there was no transfer of plant and machinery to the new firm but it was transfer of the industrial undertaking as a whole along with all the assets and liabilities. Neither there was any splitting up nor reconstruction of business already in existence, but it was a case of change in the constitution of the same industrial concern which continued to manufacture the same item even after admission of a partner. Thus, both conditions which disqualify the deduction are not present in the instant case. We, therefore, do not find any infirmity in the order of the Commissioner of Income-tax (Appeals) allowing claim for deduction under section 80-IB for the remaining period of its eligibility, appeal filed by the Revenue is dismissed.
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2010 (4) TMI 826
Capital or revenue expenditure - effluent plant repair and maintenance expenses - Assessing Officer found that this amount was paid towards capital of Ranitec who is the agent acting on behalf of a number of entrepreneurs in installing plant which is giving enduring benefits to all the units. It was also found that in case the treatment plant was installed by the assessee itself the entire expenditure would have been capitalised, tannery unit situated at Ranipet has just complied with the directions of the Tamil Nadu Pollution Control Board so as to run the unit and thereby contributing its share to Ranitec would amount to revenue expenditure only because it is necessary for the survival of the business of the assessee-company - Held that:- Commissioner of Income-tax (Appeals) that this can be treated as an expenditure incurred on account of business exigency. deletion confirmed.
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2010 (4) TMI 823
Order ultra vires Section 14 of the Customs Act - standing orders which are formulated by respondent cannot fetter jurisdiction and vest power under the statute under Section 14 of the Customs Act and the Customs Valuation Rules framed thereunder, standing orders and the guidelines framed therein, cannot have the effect of superseding provision of Section 14 of the Customs Act and Customs Valuation Rules which have a statutory force. Assessments of the bills of entry - order being in breach of principles of natural justice, considering the rival submissions, without examining merits or demerits thereof and dispensing with the reasons in support of this order, by consent of parties, we set aside the order of assessment and remit the matter back to the assessing officer, petition is allowed.
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2010 (4) TMI 822
Clandestine removal of the goods - Evasion of duty - Penalty - case of the Revenue is based upon the statements of traders and brokers who have stated that M/s. A.S. Corporation had procured fictitious bills from them and sold goods to their buyers as well as statements of transporters who have stated that they had lifted the goods from the factory of Sulekhram. M/s. A.S. Corporation had rebutted the statements of traders and brokers and no Director or employee of Sulekhram has admitted clandestine manufacture and removal of goods, there is nothing to indicate that M/s. A.S. Corporation had actually purchased the goods from Sulekhram so as to indicate any connection between Sulekhram and M/s. A.S. Corporation - held that:- Revenue has not been able to establish clandestine manufacture and clearance by Sulekhram, as a necessary corollary, it had to be held that penalty could not be imposed upon dealers and suppliers on the allegation of having supplied bogus bills, it cannot be stated that the impugned order of the Tribunal suffers from any legal infirmity so as to warrant interference. No question of law, much less any substantial question of law can be stated to arise out of the impugned order of the Tribunal. The appeals are accordingly dismissed.
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2010 (4) TMI 821
Dissallowance-The assessee-company had neither carried out any manufacturing activities nor made any sales but claimed the expenses to the tune of Rs. 13,41,135 on account of salary, depreciation, etc. - Held that:- The facts are similar to Sassoon J. David & Co. (P.) Ltd (1979 -TMI - 5203 - SUPREME Court) the assessee-company was neither dissolved nor its business was closed and was holding regular meeting of its directors and also filing the return, the expenses claimed by the assessee are allowable as rightly held by the learned first appellate authority.
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2010 (4) TMI 818
Pre-deposit towards duty and penalty - Tribunal observed that one cannot expect the Department to recover and produce authentic records of the assessee’s illegal activities. The responsible functionary of the petitioner-company has stated in his statement that the records of the earlier period have been destroyed. Taking into account the financial hardship pleaded by the petitioner and the amount of Rs. 52.00 lakhs paid by the petitioner, the petitioner was directed to deposit a sum of Rs. 2.00 crores - Held that:- order is set aside and the Writ Petition is allowed. The Tribunal is directed to take up the appeal filed by the petitioner and the appeal filed by the Department together for hearing within a period of eight weeks from the date of receipt of a copy of the order.
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2010 (4) TMI 815
Extended period of limitation - Held that:- order of the Commissioner (Appeals) shows that the appeals of the respondents had been allowed on merits and not on the ground that the show cause notice was time-barred. In absence of such opportunity having been given to the appellant, the impugned order of the Tribunal suffers from the breach of the principles of natural justice and as such, cannot be sustained, appeals are allowed. order of the Tribunal set aside.
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2010 (4) TMI 813
Penalty - imposition of only 25 per cent of penalty on the respondents, who paid part of the service tax prior to the issue of the show-cause notice and the balance tax along with interest prior to adjudication, on the ground that mandatory penalty of amount equal to the tax payable was required to be imposed - payment of 25 per cent of the penalty was sufficient. order upheld and the appeal rejected.
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2010 (4) TMI 812
Cenvat credit – Rebate - applicant has procured the exported goods as capital goods and exported them after carrying out certain tests/processes which does not amount to manufacture the capita! goods has been exported as such under Rule 3(4) of the Cenvat Credit Rules, 2002 as themselves declared by the applicant in their form ARE-1s. As per Rule 3(4) of the Cenvat Credit Rules, 2002, the applicant were required to reverse the amount of cenvat credit taken on these capital goods on receipt in their factory. But the applicant has paid duty on the transaction value as if the said goods are manufactured by them which is not the case, as no manufacturing activity was carried out on these goods, and they were removed as such after carrying out certain tests. The manufactured goods can be removed from the factory or warehouse of the manufacturer only under claim of rebate. This being not the case the applicant is not eligible to claim rebate on the transaction value. The rebate claim has to be restricted to the amount of cenvat credit availed on these capital goods under Rule 3(4) of the Cenvat Credit Rules, 2002, no infirmity in the impugned order-in-appeal and upheld, Revision application is rejected being devoid of merit.
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2010 (4) TMI 811
Retrospective exemption under 12AA - Trust formed on 1.6.2007 - Registration applied from 01.04.2001 -Held that:- CIT was right in respect of the application made on or after 1.6.2007, he has no power of condonation so as to grant registration from earlier date other than the first day of the financial year in which the application for registration is made. Thus retrospective application for registration under 12AA not allowed.
Taxability of interest where assessee has no control on the principal amount - Held that:- In view of the case of CIT(A) vs Delhi Industrial Development (2007 - TMI - 2464 - HIGH COURT, DELHI) if principal amount does not belong to the assessee because of overriding title of the Government then interest income on principal amount would not belong to the assessee.
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2010 (4) TMI 810
Whether conversion of printed aluminium sheets into pilferage proof caps, is a process which can be called a manufacturing activity - Job worker - Heated Aluminium sheets and toughened through coating of varnish so that the printed matter remained permanent - Assessee further processed on printed aluminium sheets and the end is pilferage proof caps - AO denied exemption under 80-IB as the process didnt amount to manufacture. - Held that:-The raw material used which was printed aluminium sheet, were through such processes converted to pilferage proof caps which was an entirely different product, having different commercial use than from the printed aluminium sheet. The aluminium sheet as such cannot serve the purpose of closing a bottle in a pilfer proof manner.The Apex Court in the case of India Cine Agencies v. CIT (2008 -TMI - 31532) has clearly held that even conversion of jumbo rolls of photographic films into small flats and rolls would amount to manufacture or production. - Decided in favor of assessee.
Disallowance u/s 40(1)(ia) - shartfall in deduction of tax at source - held that:- The disallowance contemplated under section 40(a)(ia) is where tax has not been deducted or where, after deduction, it is not paid. Whether such disallowance can be done even when deduction has been effected but at a rate lower than the prescribed one has not been looked into by the learned Commissioner of Income-tax (Appeals). The view of the learned Commissioner of Income-tax (Appeals) that the exercise is futile is not correct since it will have ramifications in future years, when allowances are claimed by the assessee after remitting the short fall. - matter remanded back to CIT(A)
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2010 (4) TMI 805
Applicability of provisions of Section 14A - 'exempted income' versus 'deductible income' - held that:- it has not been disputed that income was derived by the assessee from co-operative banks and interest on deposits with the co-operative bank and the same are not exempt under section 10 and are includible in its income. Deduction, if any, is given by the statute under section 80P which pertains to deduction of income. The terms "exempt income" and "deduction from income" are two different propositions and a deduction from income will not amount to an exemption from income. Since both the above receipts of the assessee were not exempt and includible in income merely because deduction under section 80P is provided, it cannot be assumed to be hit by section 14A. - Decided in favor of assessee.
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2010 (4) TMI 803
Deduction under section 80P(2)(a)(i) - claim for deduction of its interest income - Assessee engaged in construction activity and contended that it carries operation on lines of co-operation ,self help & thrift - Held that:- In view of Madras Autorickshaw Drivers' Co-operative Society Ltd.'s (1982 - TMI - 28720 - MADRAS High Court) which was later on afirm by Apex Court. "The tax relief under section 80P(2)(a)(i) is a grant by Parliament not to a category to income but to a category of the assessee. If the society in question does not answer this description, it is not entitled to the relief. For invoking or applying this provision, it is not permissible to make a break-up of the income of the society as so much derived from the provision of credit facilities and so much from other income. Thus appeal of revenue were allowed.
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2010 (4) TMI 802
Applicability Section 11AC of the Central Excise Act - appellants submits that option to pay duty, interest and 25% of the duty amount towards penalty within 30 days of the order has not been given by both the lower authorities. Learned DR agrees that such option should have been given to the appellants as per proviso to Section 11AC of Central Excise law - Held that:- option extended to the appellants to deposit duty, interest and 25% of the duty amount towards penalty, within 30 days from receipt of this order. It is made clear that failure to pay either duty or interest in full and 25 % of duty towards penalty within 30 days of receipt of this order, appellants shall be liable to pay 100% of duty demand towards penalty.As regards the appeal of the Partner, no penalty is imposable on the Partner under Section 11AC and there is no specific direction as regards penalty on Director. Tribunal order passed as regards Director shall remain undisturbed.
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2010 (4) TMI 799
Penalty u/s 271(1)(c) - tax payable under regular computation as per return of income was nil and under section 115JB the tax payable was Rs. 83,15,934 - The memo of income is prepared through Excel software and the assessee claims that the wrong reporting took place because of error in Excel formula - Excel software has been correctly programmed to do the subtraction operation and has arrived at the correct figure Rs. 8,51,66,606 but with the brackets which is impossible to happen in Excel sheet unless the brackets are deliberately included - Held that: it is not merely a clerical error as claimed by the assessee but deliberate furnishing of inaccurate particulars of income and thereby attracting penal provisions under section 271(1)(c) If the tax payable under section 115JB is nil as mentioned in the report then how in the annexure to the same report can the book profit be Rs. 10,81,45,235 and the income of the company under the Income-tax Act the loss of Rs. 8,62,60,370 - in this case, the explanation offered by the assessee is itself proved to be false because the assessee has not taken any further step in this regard and has simply stated that it may be a computer mistake - this is a clear cut case of "furnishing of inaccurate particulars of income" on which penalty under section 271(1)(c) of the Act is exigible - Decided against the assessee
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2010 (4) TMI 797
Interest u/s 234D - retrospective effect - Held that:- If any rule is made applicable from a particular date and has not been specifically made retrospective, the rule do not apply to cases pending on specific date, irrespective of the assessment year involved therein. See Sree Karpagambal Mills Ltd. Vs CIT(1998 - TMI - 16208 - Madras High Court). In particular case, the Assessing Officer has charged interest u/s 234D which was non-existent provision and was effective from a later date. Decided in favor of the assessee. Rectification u/s 154 - Substantive law - Held that:- Application of a non-existent provision, which was effective from a later date, such mistake does not involve long drawn process of reasoning on points on which there may be two opinions. Mistake is glaring, patent and obvious and the same has to be rectified under section 154 of the Act. - Decided in favor of assessee.
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2010 (4) TMI 796
Power of jurisdiction - Order of CBDT u/s 120 - Held that:- the question of jurisdiction can neither be waived nor compromised and has to be precisely decided - Central Board of Direct Taxes Notification No. 285 of 2006 dated October 10, 2006 was in operation and was not withdrawn and even if the Assessing Officer has concurrent jurisdiction, this notification would not permit the Assessing Officer at Coimbatore to make assessment under section 143(3) as is evident from the above extracted portion of this notification. In our opinion, the assessment orders made by the Assessing Officer in all these cases are ultra vires and beyond the permission granted by the Central Board of Direct Taxes which is binding on him.
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