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Showing 421 to 440 of 628 Records
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2011 (12) TMI 373
Revision application - concealment of Income - penalty proceedings initiated u/s 271(1)(c) by the Department, was quashed by ITAT - Held that:- Once the finding of the assessing authority that the assessee made a false statement is set aside by ITAT the criminal proceedings would not be sustainable because the finding of the ITAT is conclusive. See H. T. Power Structure Pvt. Ltd. v. R. P. Sharma [2007 (9) TMI 206 - GUJRAT HIGH COURT] - All revision applications are dismissed.
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2011 (12) TMI 372
Inclusion of consumables used in course of servicing of cars and the parts used for replacement to the assessable value of the "Authorized Servicing Station" service for charging service tax - Disallowance of Cenvat credit on repair and maintenance services used in the course of servicing of cars – assessee pleaded that parts and consumables used for servicing of the vehicles had actually been sold by the Appellant on which VAT has been paid their value cannot be included in the value of the servicing of cars – pre-deposit of service tax demand, Cenvat credit demand, interest and penalty may be waived - Held that:- As in line with the decision of the Larger Bench in the case of Aggarwal Colour Advance Photo System v. CCE (2011 - TMI - 205988 - CESTAT, NEW DELHI LB ) the value of the goods used for providing a service is to be included in the value of the service - Appellant have not been able to give the break-up of total value of the goods used into the value of consumable and the value of spare parts - unable to show as to whether the services in respect of which the Cenvat credit had been taken, had been exclusively used in the service station - deposit an amount of Rs. 40 Lakh within a period of 8 weeks from the date of the order - decided against the assessee
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2011 (12) TMI 371
Cenvat credit - Renting of immovable property service - service tax paid on input services like construction service, works contract service and also inputs like cement, steel etc. utilized for construction of warehouses - learned counsel submits that the Commissioner (Appeals) has relied upon the Board's circular F. No.98/1/2008-3T, dated 04.01.08 to deny the credit - In this case the property itself is going to be rented out and therefore the appellant has a better case than the office of the provider of the service since without the building itself there cannot be any service - Decided in favor of the assessee by way of direction to decided the appeal on merit
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2011 (12) TMI 370
Stay application - Demand - the prayer of the petitioner is that as the application for waiver of pre-deposit and stay against the orders of the revenue authorities be revived and the petitioner be permitted to argue the same on merits before the Tribunal - Counsel for the petitioner, in particular, pointed out that in respect to the application made by the petitioner to the Tribunal under Right to Information Act, the Registrar of the Tribunal conveyed that the orders dated 31st May 2010 and 11th August 2010 were dispatched but were returned back to the office with the postal stamp of “non-delivery” remark - It is clarified that this date is fixed only as a preliminary date and it would be entirely the discretion of the Tribunal to fix the date of further or future hearings according to their convenience - Petitions are disposed of
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2011 (12) TMI 369
Valuation of property - Reference to DVO - In these appeals the assessee has not challenged the value as determined by the DVO in his report for the various assessment years. The dispute is with regard to the area of land that has to be considered as "asset" within the meaning of section 2(ea) of the Wealth Tax Act 1957 - It is the plea of the assessee that the property which was a vacant land had been given to M/s. Keystone Realtors Pvt. Ltd. and M/s. Ashray Dwellers P. Ltd. under development agreement and the construction activity was going on in the aforesaid property - The assessee claimed that it had retained ownership of the land until flats are fully constructed and possession of the assessee's share was handed over to it - The development agreement constituted only permissive possession according to the assessee for the limited purpose of construction of flats - Held that: claim of the assessees to exclude the land over which construction of the building was in progress by the developer cannot be accepted - Decided against the assessee Regarding penalty - assessee had not disclosed in the return of wealth the investment in land at Andheri which was valued at Rs. 60 lacs by the WTO - Hon'ble Karnataka High Court has by its order dated 21/3/2007 allowed the appeal of the revenue - Held that: No valid reason has been assigned as to why this item of asset was not included in the net wealth by the assessee - Decided against the assessee
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2011 (12) TMI 368
Refund - Erection and Commissioning - The adjudicating authority sanctioned the refund of Rs. 16,068/- and rejected the refund of Rs. 3,02,944/- on the ground that they have filed refund claim towards double payment on 29.05.09 which is after expiry of one year limitation time period prescribed under section - the submissions made by the learned counsel that they were entitled to suo motu credit and therefore there was nothing wrong in availment of the credit has to be sustained - Tribunal took the view that appellants cannot be penalized for action taken by them at the instance of Revenue Authorities which itself was not in accordance with law. In this case also appellants took suo motu credit on 17.03.09 - It has to be noted if the Range Superintendent were to advise the appellant to file a refund claim immediately after reversing the entry, the refund claims would not have been time barred at all - Appeal is allowed
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2011 (12) TMI 367
Whether the appellant's factory can take CENVAT Credit of Service Tax paid when the invoices are in the name of Head Office - CENVAT Credit of Service Tax paid on input services has been denied on the ground that the invoices were in the name of Head Office and Head Office was not registered as input service distributor - Tribunal in the case of Durferrit Asea (P.) Ltd. v. CCE [2010 -TMI - 77024 - CESTAT, BANGALORE] - Decided in favor of the assessee
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2011 (12) TMI 366
Whether the rejection of their claim for' interest on refund of the tax paid under the Wealth Tax Act, stating that the tax paid was not in response to any 'demand' raised, but by way of self-assessment, is justified or not - the income of the firm was given, as estimated, since the accounts of the firm were not finalized. But, subsequently, a revised return was filed on 22.03.1992, declaring the net wealth as Rs. 87,88,200/- based on the actual facts and figures - The absence of issuance of any notice under Section 30 will not or cannot tilt the balance in any manner as the liability to pay the amount is not on the basis of the demand notice, but on the basis of the assessment - The protracted litigation became inevitable, only because of the wrong course pursued" by the respondents and later, the version of the petitioner/assessee came to be accepted, as per Ext. P3, which became final, as the department- did not pursue the matter any further - the said excess amount was being wrongfully retained by the Revenue, virtually preventing the petitioner/assessee from obtaining the refund at proper time - Decided in favor of the assessee
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2011 (12) TMI 365
Arms length price - Principles of natural justice - Reference to TPO - McDonalds India Pvt. Ltd. [MIPL] was established as a wholly owned subsidiary of McDonalds Corporation, US [MDC] in 1993 for the purpose of setting up McDonalds restaurants in India - Under the agreement, in consideration of such license the assessee was required to pay to McDonalds [MDC] a royalty equal to 5 per cent of the gross sales, and an initial franchise fee at the rate of US $ 45,000 for each new restaurant opened during the year - the assessing officer made reference under section 92CA(1) in respect of three international transactions and the ld. TPO in his order dated 17th March, 2005 had found those international transactions at arm's length - The provisions of sub section (2A) of section 92CA inserted from 1/6/2011 do not empower the TPO to determine arm's length price in respect of an international transaction, which was not referred to him by the assessing officer - It is quite possible that in the case of a particular assessee, there may be several international transactions and the Assessing Officer may only wish to refer some of those international transactions for the purposes of computing the arm's length price while in respect of others, he may compute the arm's length price himself - The provisions of section 92-CA(2A) are prospective in nature and will not apply for the assessment year under consideration i.e. assessment year 2002-03 - Decided in favor of the assessee
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2011 (12) TMI 364
Reopening - Exemption u/s 11 - Validity of reassessment made by Assessing Officer - the assessee is a registered society with sole object of imparting education without any profit motive - Since the assessee was denied approval u/s 10(23)(iiiad), the assessee completed assessments for assessment years 2006-07 and 2007-08 were reopened - The assessee attended in the re assessment proceeding and produced all the books of account which are verified by the Assessing Officer - It was alleged that the assessee was using the trust fund for the benefit of a person who was a specified person within meaning of section 13(1)(c) r.w.s. 13(3) of the Act, being a Government Body Member - It is further contended that Assessing Officer has not been disputed that the sole object and activity of the assessee are educational in nature and the assessee is an educational institution solely existing and operating for educational purposes and not for the purposes of profit - Held that: AO has not placed any material on record as to how the rate of 12% is unreasonable but for making a bald statement Regarding depreciation - It has not been disputed that the furniture and fixed assets, namely, computer, furniture and fixture, building, library, books, vehicles etc. were utilized for the equities of the assessee - It has not been disputed by the Ld.DR that the assessee is solely engaged in the education activity and except running a CBSC recognized secondary school, no other activities were carried out - The assessee being eligible u/s 10(23C), the entire income become exempt as the assessee's receipts are in this year i.e. assessment year 2006-07 is below Re.1 crore - Decided in favor of the assessee
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2011 (12) TMI 363
Addition - Block assessment - On the basis of seized documents, recovered during search, relating to purchase of land as also the sworn statement recorded under Section 132(4), the assessing officer computed the undisclosed income - The addition made on account of personal expenses was deleted on the ground that since the assessing officer had made additions with respect to the costly items purchased, there cannot be any further addition on account of personal expenditure - it is evident that the assessee had voluntarily submitted before the Income Tax Officer that the amount shown in the document with respect to purchase of four properties were not the actual amounts and that he had paid more than that shown in the document - The statement given under oath has to be considered in the context of the long prevalent practise of not stating the actual consideration with respect to transactions of immovable properties, for the purpose of evading stamp duty - The admission made by the assessee before the assessing officer corroborated by the title deeds seized in search absolves the department from discharging any burden regarding the additions made on the strength of such admission - In the instant case on the clear admission of the assessee corroborated by the documents the burden on the department ceases to exist.
Regarding personal expenditure - The only explanation offered by the assessee for the years 1989-90 to 1992-93 was that his personal expenses in the said years were met by his parents - the approach of the Tribunal is perverse in so far as the additions made for purchase of items is distinct and different from the additions for personal expenses - Decided against the assessee.
Regarding addition made of Rs.3 lakhs in the year 1993-94 - The assessee offered absolutely no evidence to prove the transaction and the contradictions regarding the disclosure in the cash flow statement as a NRI loan and the later explanation as a loan received in cash, hits at the root of the genuineness of the transaction - When the assessee had voluntarily disclosed the same in the cash flow statement and had failed to explain the genuineness of the transaction, we are at a loss to understand why the Tribunal insisted on "search materials" to substantiate the addition - Decided against the assessee
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2011 (12) TMI 362
Penalty of Rs. 30,000 u/s 272B - Default for the failure on the part of the assessee to quote correct PAN in terms of provisions of section 139A - The learned counsel has contended that section 272B of the Act nowhere specifically relates to default under section 139A(5B) which casts an obligation on the deductor to quote the PAN of deductees - It has also been contended that due to loss of original return data, the revised return now prepared and uploaded in the system is rejected by the TIN facilitation centre - the admitted fact remains that the PANs of three deductees were wrongly quoted by the appellant in the quarterly returns as is evident from the above stated facts in which the alphabets and number were wrongly entered in the system - In response to a showcause notice before levy of penalty u/s 272B of the Act for not quoting correct PAN in terms of provisions of sec. 139(5B) of the Act, the assessee did not appear nor pleaded any reasonable cause for their failure to quote correct PAN - The only defect in PAN was due to incorrect mention of one alphabet in two cases and one numeric in the third - Decided in favor of the assessee
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2011 (12) TMI 361
Reassessment - Reference to DVO - principles of natural justice - the difference amount of Rs. 78,99,152 vide Annex. 6 (Rs. 1,17,92,000 - Rs. 38,92,848) as undisclosed income under s. 69B of the Act of 1961, the assessing authority initiated the impugned reassessment proceedings - The assessee instead of filing his reply on merits or raising his objections against the assessment under s. 69B of the Act, filed the present writ petition - show-cause notices were issued to the respondent-assessing authority by a Co-ordinate Bench of this Court on 29th Nov., 2010, however, no stay was granted to the assessee petitioner against the impugned reassessment proceedings and accordingly when on 29th Nov., 2010, the assessee did not file his reply or objections on merits of his contentions, the assessing authority passed the impugned assessment order after about 28 days on 27th Dec., 2010 - in the absence of any stay order granted by this Court, the assessing authority could very well pass the assessment order on the given date or on any subsequent date - Writ petition challenging reassessment declined - however stay granted subject to pre deposit of 25% to pursue the matter before CIT(A).
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2011 (12) TMI 360
Chief CIT, Jodhpur denying approval under s. 10(23C)(vi) - On the ground that the petitioner violated the basic mandate of s. 10(23C)(vi) of the Act - While the power of learned Chief CIT to arrive at such findings after properly and duly allowing the opportunity of hearing and supplying the adverse material to the petitioner-trust is not in doubt but at the same time, withholding the adverse material from the petitioner-assessee, not allowing him the chance of rebuttal and then relying on the same material for denying the approval under s. 10(23C) of the Act, cannot be sustained - Decided in favor of the assessee by way of remand to CCIT
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2011 (12) TMI 359
Disallowance u/s 36(1)(vii) - Rectification of mistake - Held that: it is found that undisputedly the bad debts represent advances made by the assessee as long back as 10 years prior to the period under consideration and they were not required to be examined in those periods as the assessee has not claimed them as allowable expenditure of the business - , learned counsel for the petitioner submitted that even the assessing authority was not justified in rejecting the said claim of bad advances and bad debts on the ground that the said advances were partly made to concerns of one Rajendra Porwal Group against whom upon search operation carried out under s. 132 - The requirement on the part of the assessee to establish that debts in question had really turned bad is no longer there after ast April, 1989 and it is left to the business prudence of the assessee to claim such deduction by merely writing off such advances or debts as bad debts in the books of accounts and debiting the same in the P and L a/c of the assessee - Held that: Tribunal apparently fell into an error in not rectifying the said mistake apparent on the face of record, which is nothing more than a mistake of fact and even if it is construed to be a mistake of law, it is apparent mistake of law, which would also fall within the scope of rectifiable mistake under s. 254(2) - Petition is allowed
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2011 (12) TMI 358
Application for stay of recovery - Revised return - ld. counsel for the assessee brought to our notice that the two major additions which has given rise to the outstanding demand are the disallowance of claim u/s. 80IA of the Income Tax Act, 1961 (the Act) of ₹ 179,70,52,324/- and the addition made by way of transfer pricing adjustment in respect of an international transaction of ₹ 447,76,89,010 - It was further submitted that in various tax disputes the assessee has already paid a sum of ₹ 1700 crores to the Income Tax Department, where matters are pending for adjudication before various appellate authorities - Held that: on the two major issues highlighted by the ld. counsel for the assessee before us there is a prima facie case made out by the assessee - The OECD guidelines also seem to support the plea of the assessee. It was submitted by the ld. counsel for the assessee that a sum of ₹ 35 crores towards outstanding demand has already been paid by the assessee - the appeal of the assessee is directed to be fixed for out of turn hearing on 14/2/2012
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2011 (12) TMI 357
Addition - Unexplained expenditure under section 69C - The assessee submitted the credit card statement of Rs.2,57,726/- and explained that a sum of Rs.51,175/- was paid by the assessee from his regular bank account - ld. AR for the assessee submitted that the assessee had explained the source of cash expenditure out of the money received by him from his cousin sister who was living in USA for more than 15 years - It was for the AO to make necessary enquiries and place any adverse material to controvert the claim of the assessee which has not been done in this case - Decided in favor of the assessee
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2011 (12) TMI 356
Addition - Deduction u/s 80-IB - it was submitted by the learned Departmental Representative that there is no definition of work contract in IT Act and hence, guidelines can be imported form other statute - the appellant vide his written submissions and also by way of arguments during the assessment of hearing put forth the claim that they are actually developers and builders - If the developer has acted on behalf of the landowner and has got fixed consideration from the landowner for the development of housing projects, the assessee should not be allowed deduction under s. 80-IB(10) - AO's reliance on cl. 15 of the development agreement (quoted above) to say that the appellant is not a developer is misplaced. In fact, the said clause makes it amply clear that the entire financial risk and the surplus or deficit in the venture shall rest with the appellant - If the assessee is eligible for profit and loss and not for a fixed amount then it cannot be said to be a works contract - Appeal is dismissed
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2011 (12) TMI 355
Anti-dumping duty - The petitioner had filed an application before the Designated Authority ('DA' for short) alleging dumping of Penicillin-G Potassium originating in or exported from China PR and Mexico as also of 6-Amino Penicillin Acid (6- APA for short) originating in or exported from China PR - It is the case of the petitioner that as per Rule 18 of the Rules, Central Government was required to impose Anti-dumping duty in terms of recommendations of DA within three months of the date of publication of final findings - even if Central Government were to accept the recommendations of DA for imposition of Anti-dumping duty, the extent of such Anti-dumping duty need not necessarily be as recommended by DA - several Courts have opined that the recommendations of the DA are not binding on the Government Whether the Central Government had sufficient reasons not to impose duty despite recommendations made by the DA - DA had come to certain conclusions which were not disputed by the Central Government. Insofar as factual findings are concerned, such findings were perhaps not even open to challenge by the Central Government - Held that: the Central Government has taken into consideration various factors and come to the conclusion that it is not in public interest to impose Anti-dumping duty - Decided against the petitioner
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2011 (12) TMI 354
Whether the immovable property of which was used for business purposes as an Asset within the meaning of Sec. 2(ea) of Wealth Tax Act, 1957 without considering the exemption provided under sub clause (5) of the said section in respect of a Commercial establishment and also sub clause (3) of section 2(ea)(i) - During the course of income tax assessment proceedings, it was noticed by the A.O. that the assessee has received rental income of Rs.35,40,000/- by letting out its business premises at Elcome House - According to the A.O. it is not a commercial establishment or complex as specified in the exclusion clause (5) of section 2(ea)(i) of the Act since the said premises does not provide any commercial facilities available in a commercial complex - It was submitted that a part of the premises was let out to sister concern which is part of their business and hence the property has been used for the purpose of business carried out by the sister concern - the assessee in the instant case has let out a part of its business premises and since the assessee is not in the business of letting out properties, therefore, the said property, in our opinion, is not exempt either u/s.2(ea)(i)(3) or 2(ea)(i)(5) of the Wealth Tax Act - Decided against the assessee
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