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Showing 421 to 440 of 1237 Records

• 2014 (3) TMI 819
  

  Denial of refund of unutilized CENVAT credit of service tax - Export of IT enabled servcies - Held that:- appellant is eligible for the benefit of refund in respect of all the services in dispute and therefore appeal is allowed and the matter is remanded to the original adjudicating authority for considering the refund claim in accordance with law as regards other aspects except the eligibility in respect of the services - amount claimed is in accordance with the Notification which requires refund to be sanctioned on the basis of proportion of exports to the total turnover only. However, since the matter is remanded to the original refund sanctioning authority, he can verify whether this claim is correct or not - Decided in favour of assessee.

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• 2014 (3) TMI 818
  

  Non-payment of service tax - difference in the gross taxable value as declared in their ST-3 Returns and the amount reflected in their Debtors ledger - Held that:- Appellant was given sufficient opportunities of hearing between 18th May, 2011 and 2nd September, 2011. The Appellant sought adjournments on one pretext or the other. We find from the observation of the ld. Commissioner that even though the Appellant had given re-conciliation statement, they have not adduced proper evidences explaining the discrepancies as claimed by them. Thus, there has been no proper adjudication of the case due to non-participation of the Appellant. However, from the submissions of the ld.C.A. for the Appellant, we find force in his arguments that they could furnish relevant documents in support of their claim that the differential value between ST-3 Returns and Debtors ledger, were on account of receipts attributable to non-taxable activity and or adjustments. In these circumstances, we are of the opinion that it is an appropriate case for remand to the adjudicating authority for re-appreciation of the facts and evidences on record. - Decided in favour of assessee.

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• 2014 (3) TMI 817
  

  Waiver of pre deposit of Service Tax - demand on the basis of receipt shown in the Balance Sheet in comparison to their ST-3 Returns filed with the Department - Held that:- for the period 1.6.2007 onwards, they have not discharged the exact amount of Service Tax against the receipts shown in their balance sheet. The explanation submitted by the Ld. Advocate is that they were under severe financial hardship and thus they have undertaken the trading of textile items from their Head office in Kolkata, and the excess receipts shown in their Balance Sheet against the value in ST-3 returns, are due to the said reason. We find that the said plea has not been raised earlier before the adjudicating authority, hence, prima facie not acceptable at this stage. In these circumstances, we are of the view that the applicant could not be able to make out a prima facie case for total waiver of pre deposit of dues adjudged against them. Even though the applicant has pleaded financial hardship and submitted that the Bank has withdrawn their cash credit facilities but failed to substantiate by producing evidence including the Profit & Loss A/c. for the relevant years. In such circumstances, we are of the view that the claim of the financial hardship has not been substantiated through material particulars - Conditional stay granted.

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• 2014 (3) TMI 816
  

  Benefit of Notification No.12/2003-ST, dated 20.06.2003 - Outdoor Catering Service - Held that:- As per the agreement entered into between the parties, it is 'service of supply of food', under Outdoor Catering Service. In view of that the applicant has failed to make out a prima facie case - Conditional stay granted.

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• 2014 (3) TMI 815
  

  Substantial questions of law not examined on merits - Held that:- The questions of law raised before the High Court are significant and needs to be decided by the High Court considering the provisions under Section 260A of the Act - The High Court in its judgment and order has merely quoted the judgment of Tribunal in extenso without deciding the substantial questions of law raised by the revenue - Matter remanded back to the High Court for proper consideration of the issues and provisions of Section 260A of the Act – Decided in favour of Revenue.

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• 2014 (3) TMI 814
  

  Disallowance of Guest house expenses – Precedential value of Britannia Industries Ltd. Vs. CIT [2005 (10) TMI 30 - SUPREME Court] - Whether the Tribunal have erred in holding that the disallowance under the head "Guest House Expenses" could not be made – Held that:- The law as it has been laid down in Britannia industries has to be looked into as it is binding law being a judgement delivered by the Supreme Court - the intention of the Legislature appears to be clear and unambiguous and was intended to exclude the expenses towards rents, repairs and also maintenance of premises/accommodation used for the purposes of a guest-house of the nature indicated in sub-section (4) of Section 37.

  If the Legislature had intended that deduction would be allowable in respect of all types of buildings/accommodations used for the purposes of business or profession, then it would not have felt the need to amend the provisions of section 37 so as to make a definite distinction with regard to buildings used as guest-houses as defined in sub-section (5) of Section 37 and the provisions of Sections 31 and 32 would have been sufficient for the said purpose - both the Appellate Authority and the Tribunal committed error in deleting the order of the Assessing Officer who had disallowed the expenses of "Guest House Expenses" – Decided in favour of Revenue.

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• 2014 (3) TMI 813
  

  Imposition of penalty u/s 271(1)(c) of the Act – Inaccurate particulars furnished for claiming deduction – Held that:- The assessee in this case furnished inaccurate particulars and sought to avoid liability to pay tax on that basis - It was not a bona fide mistake - The assessee did not establish by any cogent evidence that inaccurate particulars were furnished accidentally or by mistake - deduction was claimed knowingly on a wrong basis – thus, penalty was rightly imposed – but, the amount of penalty should be reduced by 50% considering that there is nothing to show any antecedent – Decided partly in favour of Assessee.

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• 2014 (3) TMI 812
  

  Justification for taxability of LTCG – Date of acquisition of interest – Held that:- The assessee acquired possession of the plot on 12.12.2005 and sold through a registered sale deed dated 9.1.2008 - having regard to the findings recorded by the Tribunal, the assessee had acquired beneficial interest to the property at least 96% of the amount was paid i.e. by 3.10.1999 – Relying upon Madhu Kaul vs. CIT [2014 (2) TMI 1117 - PUNJAB & HARYANA HIGH COURT] – there is no need for interference in the order of the Tribunal – Decided against Revenue.

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• 2014 (3) TMI 811
  

  Offer to surrender treated as admission – Inability to produce evidence under Rule 46A of the Rules - Whether the Authorities below wrongly construed the offer to surrender as an admission - Held that:- The Assessing Officer considered net profit at the rate of 5% and made addition accordingly on the amount of Rs. 11,12,052/- on the failure of the assessee to produce any documents regarding giving of such spare parts to the purchasers - the CIT(A) considered the additional evidence sought to be produced by the appellant and upheld the view of the AO - assessee contended that he has lead sufficient evidence to prove that the tractor’s parts were given to the purchasers of the tractors, as a farmers kit without any charges and the same could not be added to the income of the appellant - the entire evidence has been taken into consideration by the CIT(A) - the CIT (Appeals) has not accepted the plea raised by the appellant – the finding returned is based on the facts which were before the CIT(A) – thus, there is no substantial question of law arises for consideration – Decided against Assessee.

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• 2014 (3) TMI 810
  

  Grant of stay on recovery - Legitimacy of demand – Held that:- The Special Bench found that the assessee in that case had incurred extremely high AMP expenses for promotion and development of the L.G. brand in India. The decision turned to a large extent on the facts of the case. Further the Special Bench observed in paragraph 9.7 that the first question which falls for consideration in such cases is whether there is any transaction between the assessee and the foreign AE building, in India, a brand the legal ownership of which vests in the foreign AE. The Special Bench in paragraph 9.09 also held that there can be no presumption about two parties acting in concert.

  It was necessary for the authorities to indicate some reasons at least before rejecting the application on the basis of the order of the Special Bench. The AO however, did not do so. None of the factors indicated in the order of the Special Bench have been adverted to.

  The ITAT also in its impugned order dated 20.01.2014 did not address itself to the relevant facts and issues. It merely rejected the application on the ground that the petitioner had not made out a case of irreparable loss which cannot be compensated in terms of money in the case stay is not granted.

  This Court in the case of KEC International Limited vs. B.R. Balakrishnan [2001 (3) TMI 32 - BOMBAY High Court] set out the parameters for considering applications for stay. These observations have been repeatedly referred to in subsequent judgments of this Court.

  In the case before us the petitioner has serious issues to urge, some of which have so far not been dealt with either in the assessment order or in the orders on the stay application. We would ourselves have considered the application for stay but we refrain from doing so for two reasons. Firstly, the entire material is not on record. The respondents may well rely upon further material in support of their case, especially in view of the order in L.G. Electronics. Secondly, the Tribunal has expedited the hearing. – Decided in favour of Assessee.

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• 2014 (3) TMI 809
  

  Power tariff concession - Whether the Tribunal was right in law in holding that the Power Tariff Incentive received by the appellant from the Government is a revenue receipt liable to tax – Held that:- The decision in Sahney Steel And Press Works Limited And Others Versus Commissioner of Income-Tax [1997 (9) TMI 3 - SUPREME Court] followed - the basic test to be applied in judging the character of the subsidy - the character of the receipt in the hands of the assessee whether Revenue or capital has to be determined with respect to the purpose for which the subsidy was given and that the point of time at which it is paid, its source or its form were irrelevant - if the object of the subsidy was to enable the assessee to run the business more profitably then the receipt is on revenue account - on the other hand, if the object of the assistance under the subsidy scheme was to enable the assessee to set up a new unit or to expand the existing unit, then the receipt of the subsidy was on capital account.

  The condition is not contingent upon establishment of the unit, but, for the purpose of assisting the assessee in carrying out the business operation and the subsidy is given subject to strict compliance of the conditions given in Notification No.G.O.Ms.No.29, Energy (A2), 31.01.1995 – Thus, the receipt has to be treated as Revenue receipt, as it is contingent upon the commencement of the production and to enable the assessee to run the business more profitably – Decided against Assessee.

  Deduction u/s 80HHC of the Act - Scrap sales - Whether scrap sales to be included in the total turnover for the purpose of deduction u/s 80HHC of the Act – Held that:- The decision in Commissioner of Income-tax Vs. Ashok Leyland Ltd. 2007 (2) TMI 151 - HIGH COURT, MADRAS] followed - both sides agree that scrap sales is not to be included in the total turnover for the purpose of computing the deduction under Section 80HHC of the Act – thus, the order of the Tribunal set aside – Decided in favour of Assessee.

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• 2014 (3) TMI 808
  

  Deduction u/s 80IA of the Act – Set off of loss and depreciation - Whether the depreciation and losses of the eligible business can be set off against the profits earned by the eligible business for the period anterior to the claim for deduction put forth under Section 80IA – Held that:- An assessee is given the benefit of 100% deduction of the profits and gains from the eligible business - The quantum of deduction is to be calculated when the claim for deduction is made - For the purpose of determining the quantum of deduction u/s 80IA(5), the revenue cannot take into consideration the loss and depreciation which is already set off against the income of the assessee from other source and compute the profit u/s 80IA - the Assessing Authority and the Commissioner committed a serious error in setting off the profit earned by the assessee u/s 80IA against the losses and depreciation of the eligible business which is already set off from other source before such a claim is put forth - thus, there is no error committed by the Tribunal in setting aside the order passed by the Assessing Authority as well as the lower Appellate Authority.

  Both the Assessing Authority and the Appellate Authority proceeded on the basis that the initial claim for deduction is made in the assessment year 2006-07 - the assessee contends that the claim for deduction was put forth for the first time in the Assessment Year 2008-09 and therefore, it is his specific contention that loss and depreciation incurred by the eligible business was set off against the income of the assessee from other source - for the first time, when the claim was put forth for the Assessment Year 2008-09, the Assessing Authority was not justified in setting off the profit from eligible business against the loss and depreciation which had already been set off against the income of the assessee - this aspect has not been carefully looked into by either of the Authorities and the finding to be recorded is based on the finding of fact – thus, the matter remitted back to the Assessing Authority to consider the claim of exemption u/s 80IA of the Act – Decided in favour of Revenue.

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• 2014 (3) TMI 807
  

  Addition made in account of country liquor – Net profit @15% applied – Held that:- When the sale vouchers have not been maintained or issued then certainly provisions of Section 145(3) can be invoked by the Revenue - The assessee cannot contend that when all other things are fully proved and only because sale vouchers are lacking then book results cannot be rejected - the authorities have rightly rejected the trading results by invoking the provisions of Section 145(3) of the Act - when the trading results have been rejected, books of accounts have been rejected then a fair estimate is required to be made - there was no other alternate with the AO to have adopted an average gross profit rate, which has been upheld by the CIT(A) and ITAT – relying upon Chhabildas Tribhuvandas Shah v. CIT [1964 (9) TMI 8 - SUPREME Court] - where GP rate is applied or trading addition is made or addition is on the basis of appreciation of evidence, no substantial question of law arise – thus, there is no merit in the appeal – Decided against Assessee.

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• 2014 (3) TMI 806
  

  Cancellation of block assessment u/s 158BC of the Act - Whether the Tribunal committed error in rejecting the Revenue's appeal confirming the decision of the CIT(A) – Earlier order of the ITAT was not challenged by the revenue - Held that:- In the order dated April 26, 2013, all that the Tribunal has done is to confirm the decision of CIT (A) when it was found that there was no dispute about non-issuance of notice u/s 143(2) of the Act to the assessee - The Commissioner only followed the direction and when found that no such notice was issued - The Revenue, if at all, was perturbed by the directions of the Tribunal in the order dated May 16, 2008, should have challenged the same - Admittedly, this was not done. In that view of the matter, there was consequential order passed by the Commissioner (Appeals), which was in term confirmed by the Tribunal – the contentions of the revenue could not be accepted because it would lead to challenge the order, which was not done – Decided against Revenue.

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• 2014 (3) TMI 805
  

  Disallowance of depreciation on investments – Held that:- Whether the method adopted by the assessee for valuation of investments for Income tax purposes was consistently followed by the assessee in the earlier years also has not been considered - the assessee has been claiming deduction only for income tax purposes (without making appropriate entries in the books of account), the assessee would be entitled to claim deduction of only the incremental amount of provision - the assessee has not furnished any details to show that the claim made by it represents only the incremental amount of provision for depreciation on investments - this aspect also requires verification at the end of the AO – thus, the order of the CIT(A) set aside and the matter remitted back to the AO for fresh adjudication – Decided in favour of Assessee.

  Restriction of deduction claimed u/s 36(1)(viia) of the Act – Held that:- The word(s) defined under the Act should be assigned the same meaning and hence no other meaning can be ascribed to it - when the section specifically states the amount of deduction is required to be computed at a figure not exceeding 7-1/2% of the total income, the AO was not justified in computing the amount of deduction at 7-1/2% of the income generated out of the rural advances - CIT(A) was also not justified in confirming the action of the AO – thus, the order of the CIT(A) set aside and the matter is remitted back to the AO for verification – Decided in favour of Assessee.

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• 2014 (3) TMI 804
  

  Disallowance of deduction u/s 80IB of the Act - Business of Developing & Building Housing Projects and sale of flats and villas – Approval taken from the local authority – Held that:- The decision in Commissioner of Income-tax Versus Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT] followed - the terms of agreement of sale entered into between the parties the condition must be revealed that the owner of the land has received part of sale consideration and in lieu thereof he had granted development permission to the assessee - this condition is satisfied that the assessee developer was given possession and assessee has undertaken the construction as per plans approved by Local Authority - The assessee developer has paid fees to the Architects and Engineers.

  The assessee has carried out and admitted the members - The land owner has agreed to give necessary signature, agreements, and even power of attorney to facilitate the work of the developer - the assessee has undertaken the entire task of development, construction and sale of the housing units to be located on the land belonging the original land owners - as per the sale agreement the developer was given full power of attorney and the land owner was given Rs. 95 lakhs in consideration of the property – the assessees were entitled to the benefit u/s 80IB(10) even where the title of the lands had not passed on to the assessees and in some cases, the development permissions may also have been obtained in the name of the original land owners – Decided against Revenue.

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• 2014 (3) TMI 803
  

  Addition made on account of Transfer pricing adjustment towards AMP expenses – Held that:- A sum of ₹ 54.75 crore was incurred on `Incentive’ which was passed on to the subscriber who actually got made bookings for their customers through the network of Amadeus group - But for the payment of incentive, the subscribers had no interest in dealing with the assessee - As the revenue generated from bookings done by the subscribers is the major source of the assessee’s income from its A.E, such `Incentive’ to the subscribers cannot be viewed as anything other than `Selling expense’ which is liable to excluded from the total AMP expenses – Relying upon LG Electronics India Pvt. Ltd. Vs ACIT [2013 (6) TMI 217 - ITAT DELHI] - the discount and incentive passed by the assessee to its dealers and distributors on effecting the sales was required to be excluded from the total AMP expenses for the purposes of determination of ALP in respect of AMP expenses – thus, the incentive amounting to ₹ 54.75 crore should be deducted from total AMP expenses of ₹ 58.66 crores and the remaining amount of ₹ 3.91 crores should be considered by the Assessing Officer for a fresh determination of its ALP – Decided partly in favour of Assessee.

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• 2014 (3) TMI 802
  

  Claim of deduction on account of interest expenditure – Held that:- The decision in Hitesh S. Mehta Versus DCIT Central Circle- 23, Mumbai [2013 (10) TMI 1065 - ITAT MUMBAI] followed - rejection/reliability of the books of accounts and the proposed adjudication of the CIT(A) in view of the direction may have direct impact on the issue of the liability – thus, the order of the CIT(A) set aside and the matter remitted back to the CIT(A) for fresh adjudication –Decided in favour of Assessee.

  Deletion of interest u/s 234A, 234B and 234C of the Act – Held that:- The charging of interest u/s. 234A, 234B and 234C squarely depends on the adjudication of the CIT(A) and since the matter is remitted back to the CIT(A).

  Levy of interest of notified person – Held that:- The decision in M/s. Topaz Holdings Pvt. Ltd. Versus ACIT, CC-31 Mumbai [2013 (10) TMI 1067 - ITAT MUMBAi] followed - the chargeability of interest u/s. 234A, 234B and 234C of the Act does not fall within the domain of the Special Court (Control of offences relating to transactions in securities) at 1992 - Since levy of interest is mandatory and is very much applicable in the case of notified persons – thus, the levy of interest would be consequential – Decided partly in favour of Revenue.

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• 2014 (3) TMI 801
  

  Revision u/s 263 - Claim of exemption u/s 10(10C) of the Act – Compliance of provisions of Rule 2BA of the Rules - Assessee had taken Voluntary Retirement – Held that:- The decision in Pandya Vinodchandra Bhogilal vs. ITO [2010 (7) TMI 796 - ITAT AHMEDABAD] followed - claim for exemption u/s.10(10C) cannot be denied on the ground that the scheme of Voluntary retirement framed by the employer is not in accordance with the Rule 2BA – also in Dy. CIT v. Krishna Gopal Saha [2009 (7) TMI 173 - ITAT CALCUTTA-B] it was held that the assessee, who had exercised the option for retirement under the Scheme floated by the employer bank and had received the compensation from the employer bank, was entitled to exemption u/s.10(10C) even though the scheme was not in conformity with the requirement of Rule 2BA - the view taken by the AO while allowing the claim of the assessee for exemption u/s.10(10C) in the assessments framed u/s.143(3) was a possible view and the CIT was not justified in treating the assessments as erroneous and prejudicial to the interest of revenue – thus, the order of the CIT set aside – Decided in favour of Assessee.

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• 2014 (3) TMI 800
  

  Project Import - Valuation - inclusion of value of certain costs and services forming part of Off-Shore Engineering/Technical Assistance Contract (OETAC) - Rule 9(1)(b)(iv) of the Customs Valuation Rules, 1988 - - miss-declaration of value of plant and machinery imported under Project Import Regulations Act, 1986 - Held that:- Other than the opinion of the consulting engineer, there is not much else provided by the appellants. While we agree that substance has to be preferred to form, in this case, we find that it is the appellant who is requiring the adjudicators to prefer form over substance. - Further it is also seen that the opinion of the expert consulting engineer to a specific question on the fact of use, is hypothetical. As submitted by the learned special counsel, references to equipment design and connected engineering work in the contract have not been reflected upon in the expert opinion.

  The analysis of the different contracts and the type of services rendered by KHIL as per OETAC would show that the submissions made by the learned special counsel for the Revenue regarding addition to be made in terms of Rule 9(1)(b)(iv) of Customs Valuation Rules have to be upheld and accepted. - Decided against the assessee.

  Issuance of SCN when assessments were provisional - Held that:- A question of res judicata may not arise in view of the fact that provisional assessments are resorted for specific purposes and once the assessee is able to specify the purpose for which provisional assessment was resorted to, the assessment can be finalized. Therefore, even if short-levy is disputed, notice issued, adjudicated, the finalization of provisional assessment or assessment process as per the document can be a separate subject and in both cases issues involved will be different.

  In the present self-assessment regime, there may be many occasions where the assessee may assess and pay higher duty and assessment be provisional. In our opinion, the conclusions reached by us above are more valid today than ever before especially in view of the complications involved in application of law to the facts and difficulties involved in making self-assessment. - Decided against the assessee.

  Regarding confiscation of goods and penalty penalty imposed by the Commissioner - Held that:- In this case what the appellant’s submission is whether action of the importer does not amount to defrauding revenue or not has to be based on the gravity of offence. It is submitted that in this case, the appellant had a bona fide belief. However, the submission of Revenue is contrary and we happen to agree with the submission of Revenue. - Confiscation and penalty confirmed.

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