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Showing 401 to 420 of 1739 Records
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2017 (8) TMI 1341
Penalty u/s 271(1)(b) - failure to comply with the statutory notices - Held that:- As the key person of the group aware with the tax matters was in legal custody during the period of compliance of notices and voluminous submission in more than 300 assessments in the group cases etc. it constitute reasonable cause for non-compliance. See case of Jawala Prashad Aggarwal [2017 (12) TMI 349 - ITAT DELHI] . - Decided in favour of assessee
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2017 (8) TMI 1340
Liability of duty - by-product, Spent Sulphuric Acid - Fabric brightener - N/N. 89 of 1995 dated 18/09/1995 - Held that: - Tribunal in Keti Chemicals [1999 (7) TMI 91 - CEGAT, COURT NO. III, NEW DELHI] while examining the similar product held that the Spent Sulphuric Acid should be considered as a waste - the product held to be by-product - no duty liability arises.
Fabric brightener - Held that: - the impugned order recorded the process undertaken by the respondent as only diluting of raw material - Relying on the decision of the tribunal in Jyoti Laboratories, [1993 (8) TMI 196 - CEGAT, NEW DELHI] impugned order held that no process amounting to manufacture has happened in the present case - duty liability do not arise.
Appeal dismissed - decided against Revenue.
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2017 (8) TMI 1339
Penalty levied u/s 271(l)(b)- non-compliance of statutory notices - Held that:- We find that in the case of Jawala Prashad Aggarwal, which is also one of the cases of the MDLR Group, the Tribunal has deleted the penalty u/s 271(1)(b) of the Act wherein also due to non-compliance of statutory notices on two occasions penalty under section 271(1)(b) Act was levied by the Assessing Officer in each of the assessment years from 2002-03 to assessment year 2008-09.
In the said case also the assessee submitted reasons of non- compliance as more than 303 group assessments conducted during short span of five months and therefore it was difficult to comply with all the notices on the appointed dates. Also it was submitted that main controlling person of the group, Sh. Gopal Goyal was detained in judicial custody since August, 2012 and he was entrusted with all the decisions and was aware of the tax matter and documents and therefore there was a delay in collecting information and consequently making compliances. Tribunal deleted the penalty mainly on the ground that facts and circumstances of the case constituted reasonable cause being under the scope and ambit of sections 273B of the Act. The Tribunal also held that that in view of the demand in quantum proceeding reduced to nil, the alleged breach or non-compliance is merely technical and venial in nature and therefore penalty should not be levied for such venial breach.
In the instant case also the facts and circumstances are identical and thus, respectfully following the finding of the Tribunal (supra), levy of penalty under section 271(1)(b) of the Act is directed to be deleted. - Decided in favour of assessee.
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2017 (8) TMI 1338
Condonation of delay - extraordinary delay of 278 days in filing the appeal - application filled t under Section 254 before the ITAT - Held that:- Mere pendency of an application filed by the Appellant under Section 254 before the ITAT cannot extend the limitation for filing the appeal in this Court under Section 260A(1) of the Act. If the application filed by the Appellant was not taken up by the ITAT for some reason, the Appellant ought to have filed the present appeal within time and mentioned in the memorandum of appeal that the Appellant has also moved an application before the ITAT. In fact, there are numerous occasions when appeals are filed by the parties in this Court without waiting for the decision of the ITAT in the application filed under Section 254 of the Act.
Therefore, this is neither a bonafide nor a valid justification for the inordinate delay of 278 days in filing the appeal
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2017 (8) TMI 1337
Sales tax subsidy received by the assessee in the form of sales tax exemption not to be included in book profit u/s 115JB - nature of receipt - MAT computation - Held that:- Sales tax subsidy received is nothing but capital investment by investing huge amount. [ See Commissioner of Income Tax Ajmer, New Central Revenue Building, Statue Circle, Jaipur (Raj) Versus Shri Cement Ltd - 2017 (8) TMI 1336 - RAJASTHAN HIGH COURT].
Eligibility to benefit under Section 80IA for the value of the goods or services - Held that:- a) the value adopted by the Assessee be it value as per independent third party trading transactions or as per Power Exchange (IEX etc.) or any other independent transaction (for the relevant period and which has taken place in the relevant area where the eligible unit is located) constitute ‘market value’ in terms of explanation to Section 80IA(8);
(b) the value at which State Grid has sold power to the Cement Unit of the Assessee (average annual landed cost) also constitute ‘market value’ in terms of explanation to Section 80IA(8) but the value at which State Grid or third party has purchased power from the Power Unit of the Assessee, which represents its power which is sold when not required by the Cement Unit, does not constitute ‘market value’ in terms of 16 explanation to Section 80IA(8). It is the ‘principle’ and not the ‘quantum’ which is deciding factor;
(c) where a basket of ‘market values’ are available for the relevant period and relevant geographical area where the eligible unit is situated, the assessee has discretion to adopt any one of them as market value; and
(d) If the value adopted by the assessee is ‘market value’ as explained above, it is not permissible for Revenue to recompute the profits & gains of the eligible unit by substituting the said value (as adopted by the Assesse) by any other ‘market value’. Accordingly, we delete the disallowance on account of deduction u/s 80IA - Decided in favor of the assessee
Sale proceeds received by the company from the sale of Certified Emission Reduction (CER) pertaining to Carbon Credit - revenue or capital receipt - Held that:- Receipt on account of Carbon Credit is capital in nature & neither chargeable to tax under the head Business Income nor liable to tax under the head Capital Gains. Our above view is also supported by the decision of Supreme Court in the case of Vodafone International Holdings Vs. UOI (2012 (1) TMI 52 - SUPREME COURT OF INDIA) wherein Supreme Court has held that treatment of any particular item in different manner in the 1961 Act and DTC serves as an important guide in determining the taxability of said item. Since DTC by virtue of the deeming provisions specifically provides for taxability of carbon credit as business receipt and Income Tax Act does not do so, our view gets duly fortified by the principles stated in the above decision of Supreme Court. This ground of the assessee is allowed
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2017 (8) TMI 1336
Sales-tax subsidy - nature of receipt - whether is a capital receipt which is not exigible to tax? - Held that:- Tax liability, we have considered original purpose for which the Scheme has been floated by the State Government by going through the Scheme.
At the relevant time the State Government need employment generation therefore it has come out with the Generation of Employment for which capital investment was necessary and therefore to boost capital investment scheme has been floated for exemption of sales tax which can be capitalised against the capital which has been invested against the loss of interest which they have made investment apart from 1.50 crores and over a period of 11 years they have to realised the investment made.
As gone through the Scheme and relevant Budget Speech of the Finance Minster and all other documents and more particularly the tribunal while considering the Scheme has analyised completely in para no.5.13 and has come to the conclusion in view of the observations made by the Supreme Court in Pony Sugar ( 2008 (9) TMI 14 - SUPREME COURT).
Tribunal has not committed any error and view taken by the Tribunal is just and proper. It is nothing but capital investment by investing huge amount of 1.57 crores. - Decided in favour of assessee.
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2017 (8) TMI 1335
CENVAT credit - input - M.S.Channel, M.S.Angels, M.S.Beams, Joists, plate etc. - Held that: - Hon’ble Allahabad High Court in the case of Commr. of Central Excise, Ghaziabad Vs. Samtel Colour Ltd. [2013 (1) TMI 586 - ALLAHABAD HIGH COURT], has allowed the cenvat credit on paints and building materials - in the case of Commr. of Central Excise, Coimbatore Vs. Jawahar Mills Ltd. [2001 (7) TMI 118 - SUPREME COURT OF INDIA], the cenvat credit was allowed on power cables, capacitors, control panels, which were used for high voltage transfer electricity.
Penalty - Held that: - it appears that the adjudicating authority has mentioned that the same is on interpretation of law - penalty is hereby cancelled by taking a lenient view.
Appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1334
CENVAT credit - inputs used for manufacture of components of capital goods and also used for manufacture of supporting structures of capital goods - Held that: - the amendment of Rule 2 (R) by Notification dated 07.07.2009 would be effective prospectively - The period of dispute in the present case is prior to 07.07.2009 - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1333
The Bombay High Court issued an order to finally dispose of an appeal regarding the jurisdiction of the Customs, Excise and Service Tax Appellate Tribunal to entertain an application for stay of an impugned order. The respondent was given notice for final disposal on 19 September 2017, and the appeal was placed under the caption of "Fresh Admission." (2017 (8) TMI 1333 - BOMBAY HIGH COURT)
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2017 (8) TMI 1332
Allowance of application with amendment in the main C.P. - Held that:- It is very strange to see that the petitioner is attempting to direct the Bench to pass the order in I.A. as per his own convenient and whims, which is against the judicial norms, This type of application is not only bad in the eye Of law, but is also grave abuse of process of law.
Hence, the instant application is dismissed with a cost of ₹ 5,000/-. The party is hereby directed to deposit the amount in the Central Army Welfare Fund, before proceeding with any further hearing of the main C.P.
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2017 (8) TMI 1331
Petition with a prayer to implead one Mr. Jitendra Lavjibhai Patel, as a party to the Company Petition apart from other prayer - Held that:- On perusal of the record, it reflected from Form 32, that Jitendra Lavbhai Patel was appointed as a Director of the Uniworth Resorts Limited sometime on 05.02.2010, whereas the C.P. is filed sometime in the year 2006. But the petitioner from 2010 till 2017 has made no endeavor to make him party to the main C.P. That apart, had the petitioner made any endeavor to dispose of the C.P, the C.P. could have been disposed of much earlier than 2010, then this type of situation would have never been arisen. Further petitioner also failed to show any valid reason for filing application in such a belated stage, when ail the information are available in M,C.A, Portal.
Thus no reason to entertain such petition filed in such a belated stage. Hence, the same is dismissed.
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2017 (8) TMI 1330
Corporate Insolvency Resolution Process - Held that:- The finding of the learned Adjudicating Authority insofar as it relates to 'award', 'default of debt' and the 'alternative remedy', are not based on sound principle and against the provisions of law, we refrain to decide the question as to whether the 1st appellant is an 'operational creditor' or not which is first required to be decided by learned Adjudicating Authority.
For the aforesaid reasons, we set aside the impugned order dated 24th March, 2017 and remit the case to the learned Adjudicating Authority, Principal Bench, New Delhi to decide as to whether the 1st appellant is an 'operational creditor' and if so, whether the application under Sec. 9 preferred by the appellants is complete for admitting and initiation of corporate insolvency resolution process. If the first question relating to status of appellant as 'operational creditor' is decided in affirmative, in favour of the appellant, then learned Adjudicating Authority will decide the issue whether the application is 'complete or not' and if not complete may grant seven days' time to the appellants to complete the record as per the proviso to Sec. 9 of the I&B Code.
The appeal is allowed with aforesaid observations. We make it clear that we have not expressed any opinion in regard to other questions such as whether the 1st appellant is an operational creditor and whether the application preferred under Sec. 9 is complete or not, which is to be decided by the Adjudicating Authority after notice to the parties uninfluenced by any observation made in the impugned order.
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2017 (8) TMI 1329
CENVAT credit - input services - services rendered by TNWML for disposal of hazardous waste and chemical sludge generating during the course of manufacture - Rule 2 (l) of CCR - Held that: - Various Courts have held that the term ‘in or in relation to’ as mentioned in the definition of the input service is very wide and expensive and any work done in connection with the manufacture and clearance of the final product, whether used directly or indirectly is cenvatable - In the case of India Pesticides Ltd. Vs. CCE & ST, Lucknow [2016 (8) TMI 724 - CESTAT ALLAHABAD], it was held that emergence of hazardous waste and disposal of the same is an activity connected with the business and the same has to be held as admissible cenvatable input service - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1328
Addition of unexplained expenditure - profit estimation - Held that:- As under Income-tax Act, the only real income can be taxed by the Revenue, even if the transaction is not verifiable due to any reason, the only taxable is the taxable income component and not aggregate of the transaction. After considering the fact and nature of business of assessee, we are of the opinion that in order to fulfill the gap of revenue leakage, the disallowance of reasonable percentage of impugned purchases would meet the end of justice.
We have noted that neither the AO nor the ld. CIT(A) examined the Gross Profit or Net Profit ratio of assessee for previous or subsequent years. Considering the facts and the circumstances of the case, we are of the opinion that a reasonable disallowance of impugned purchases/ unexplained expenditure @ 12.5% would meet the end of justice. Hence, the AO is directed to restrict the disallowance on account of unexplained expenditure u/s 69C of the Act @ 12.5% of aggregate purchases (Rs. 43,84,048/-) of impugned purchases. With the directions the appeal of the assessee is partly allowed.
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2017 (8) TMI 1327
Registration u/s 12AA and application for approval u/s 80G denial - CIT(Exemptions)'s power refusal to the registration - Held that:- CIT(Exemptions) can refuse the registration of a trust of institution u/s 12AA of the Act only when (a) he should be satisfied that the objects of the trust or institution are not charitable in nature or he finds that the activities of the trust of institution are not genuine. In our view registration cannot be denied on the ground that there is no clause prescribing that as dissolution of the institution, the income and assets of the assessee shall be transferred to another similar institution which is registered under section 12AA of the Act.
Thus we hold that the order of ld. CIT(Exemptions) was an error in rejecting the application of the assessee for registration u/s 12AA of the Act.
We are also convinced with the arguments the assessee that section 115TD(1)(a) of the Act protects the interest of the revenue and the findings of the ld. CIT(Exemptions) on this issue is not correct.
In view of the above discussion we direct the ld. CIT(E) to grant registration to the assessee u/s 12AA of the Act. Consequently we also direct the ld. CIT(E) to grant approval u/s 80G of the Act to the assessee university.
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2017 (8) TMI 1326
Natural justice - recall of order dated 10.3.2017 - applicant states that when the said order was passed no notice was given to the counsel for the D.R.I.-respondent nos. 3 to 5 - Held that: - the order dated 10.3.2017 to that extent in which the opportunity was given to the petitioner for necessitating his arrest is hereby recalled - recall application allowed.
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2017 (8) TMI 1325
Reopening of assessment - Held that:- Assessee was supplied with the reasons recorded and opportunity to raise objections thereto was given to him. It was availed as the assessee raised the objections against the validity of initiation of reopening proceedings and the Assessing Officer duly disposed off the said objections. The reason to believe was based on search operation in Bhushan Steel Group and survey at the assessee. We thus do not find substance in the contention of the ld. AR that initiation of reopening proceedings against the assessee was not valid. It is well established position of law that for initiation of reopening proceedings formation of reasons to belief is required to be based upon a prima facie view that taxable income has escaped assessment. Sufficiency of such belief cannot be questioned before the court of law. We thus do not find reason to interfere with the first appellate order in this regard, as in our view, the ld. CIT (Appeals) under the facts and circumstances of the case as discussed above has rightly upheld the validity of initiation of reopening proceedings. - Decided against assessee.
Addition u/s 68 - Held that:- There is no dispute that in case of all the 7 investor companies, the assessee had filed primary documents and had accordingly discharged its initial onus to establish identity and creditworthiness of the investor companies and genuineness of the transaction as there is no dispute that all the transactions have been done through banking channels i.e. through account payee cheques and demand drafts. We thus find that the Assessing Officer has failed to discharge its onus to prove that the documents filed by the assessee, as discussed above, were false or fabricated as the Assessing Officer has not made any efforts to verify those documents especially when there is no dispute that all the investor companies were filing their returns of income and were being assessed by the Department.
Under these circumstances, we are of the view that the ld. CIT (Appeals) was justified in deleting the addition of ₹ 5,50,00,000./- made under section 68 of the Act on account of unexplained share capital and share premium. - Decided in favour of assessee.
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2017 (8) TMI 1324
Scheme of amalgamation - Held that:- A perusal of the representation of Regional Director shows that notice to the Principal Commissioner of Income Tax, Delhi had been duly sent and that no specific comments/observation have been received raising any objections. A perusal of the Regional Director report states that the letter was also sent to the Reserve Bank of India who have given the response dated 28th April, 2017 stating that Signature Global (India) Private Limited, namely the Transferee Company is carrying NBFC's activities illegally without the permission of the RBI.
Since this Tribunal cannot be made an accomplice to illegality, we are not convinced by the explanations given by the Petitioner Companies. Further, prior approval of RBI is a must for proceeding further with the consideration of the Scheme, which has not been obtained and hence we are unable to sanction the scheme before us and hence the petition is dismissed with costs of ₹ 25000/- payable to Prime Minister National Relief Fund.
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2017 (8) TMI 1323
Statutory appellate remedy availability - Held that:- In view of the fact that statutory appellate remedy is available, we are not inclined to entertain this writ petition.
Number of questions of facts and law would arise which can always be raised before the appellate authority. In a taxation matter, when levels of appeals are provided under the statute, we would be extremely slow in by-passing such appellate remedies and directly exercising writ jurisdiction. Keeping all the contentions of the petitioner open, this petition is therefore dismissed.
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2017 (8) TMI 1322
Disallowance of expenditure under section 40(a)(ia) - Non deduction of tds - whether payee has paid the tax? - Held that:- Quite apart from the assessee’s legal contention that appropriate tax as prescribed under the law was deducted from time to time, the Tribunal in the impugned judgement referred to the decision of the Delhi High Court in case of Commissioner of Income-Tax vs. Ansal Land Mark Township (P) Ltd vs. reported in [ 2015 (9) TMI 79 - DELHI HIGH COURT] and held that if the payee has paid the tax, disallowance under section 40(a)(ia) would not be applicable. For verification of full details in this regard the Tribunal placed the matter back before the Assessing Officer.
We notice that Delhi High Court in the said judgement had referred to the newly inserted proviso to section 40(a)(ia) and considered in light of the proviso to sub-section (1) of section 201 of the Act with effect from 01.07.2012. It was noticed that such provisos were added to obviate the difficulties of an assessee who, though may not have deducted tax at source while making certain payments, can establish that the payee had furnished the return of income and also paid the tax due on such income. In such a case, the assessee would not be treated as assessee in default. - Decided in favour of assessee.
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