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Case Laws
Showing 421 to 440 of 835 Records
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2010 (4) TMI 795
Purchase of material with logo is to be treated as a contract for sale or a works contract - Held that- the supply of printed material purchased by the assessee for use in manufacture and trade of footwear was transaction for purchase and sale. This is strengthened by the fact that suppliers charged 4 per cent value added tax which is not disputed. - assessee was not liable to deduct tax at source under section 194C on the payments made for purchase of printed material.
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2010 (4) TMI 791
Transfer of capital asset - Company was managed by 2 groups of shareholders. Some dispute is alleged to have cropped up between these 2 groups. & An arrangement has been made between and Shares transferred to each other. Whether these transfer was a 'Gift or family arrangement'. - There was consideration for the alleged transfer by the applicant. or not. - Held that:- Kantilal group relinquished and waived their right, title and interest in the property described in annex A & B and also consideration which the company was to receive out of the land transaction and in lieu thereof they got properties shown in annex C free from all liabilities on ownership basis. Nature of consideration is transfer of property shown in annex C in favour of the Kantilal group and in consideration thereof Kantilal group relinquished their rights over the properties shown in annex A and B. This consideration for the transaction in question can conveniently be spelt out from arbitration award of arbitrator. decided in favour of Assessee.
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2010 (4) TMI 789
Registration under section 12AA and for approval under section 80G(5)(vi) of the Act - CIT observed that trust has not been able to bring any evidence on record to establish, that any activity of the trust/association has been taken for the charitable purposes as a result genuineness of the activities - Assesse contended that without giving a reasonable opportunity to the appellant and is thus violative of the principles of natural justice - appellant contended that as a part of its objectives had sponsored a money towards computer hardware education course belonging to an economically weaker scheduled tribe - As here is no condition for grant of registration that the institution is supposed to carry out a charitable trust for entire 12 months nor is there a requirement which states that the minimum number of activities a trust is required - Held that Commissioner of Income-tax was not justified in rejecting the application for registration - Hence impugned order is set aside and the trust is allowed to get registered u/s 12AA - Commissioner of Income-tax is further directed to verify the application of the appellant seeking approval under section 80G(5)(vi) of the Act - Appeal is allowed.
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2010 (4) TMI 787
Cenvat credit on capital goods - whether the appellant is eligible to avail cenvat credit on the capital goods, which were purchased by him and the Cenvat credit availed, on transfer to their depots situated in various States - The provisions of Rule 4(5)(a) of the Cenvat Credit Rules, 2004 allows an assessee to avail the credit on Capital Goods even if they are sent to job worker for any other purpose - The provisions of Rule 4(5)(a) have not been examined by the lower authorities in this case - If the provisions of Rule 4(5)(a) are examined, then the relief eligible to the appellant under the provisions of Rule 4(5)(a) cannot be denied - Therefore, set aside the impugned order and remand the matter back to the Adjudicating Authority to re-consider the issue afresh.
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2010 (4) TMI 786
Change of name of the another company - resembling name - the petitioner in April, 2000 came to know that respondent No. 1 company was registered under the Companies Act, 1956 by name Pino Bisazza Glass (P.) Ltd., vide registration certificate dated 8-3-2000. Respondent No. 1 company was set up with the same object of manufacturing and selling similar products to that of the petitioner. The petitioner, therefore, applied to respondent No. 2, i.e., the Regional Director, Western Region, Mumbai for cancellation of the registration of respondent No. 1, in May, 2000 under sections 20 and 22 of the Companies Act, 1956. - Held that:- there does not seem to be any similarity between these two names. The only question, therefore, remains is to decide as to whether the name of one company appears to be too nearly resembling with the name of another company. In the name of the petitioner-company, there are three words, namely, Bisazza India Ltd., whereas in the name of respondent No. 1 company, there are four words, namely, Pino Bisazza Glass (P.) Ltd. The only word common in both these names is Bisazza. It has come on record that the word ‘Bisazza’ indicates the surname in Italy. The surname remains a surname whether in Italy or in India or anywhere else. This word is not coined by the petitioner. No one can claim any monopoly over this word. - writ petition dismissed.
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2010 (4) TMI 784
Assessee in default - TDS u/s 195 - Fees for technical services - The agreement entered into by the assessee with IMAX is very clear. The total purchase price for the system and the technology transfer fee is stated to be US $ 23,15,000. It also specifics that out of the above sum, US $ 13,65,000 is for the purchase of the system and US $ 9,50,000 is the fee for transfer of technology. Schedule C to the agreement is also very clear to point out that IMAX is to install the equipment/test it and also provide training for upto four projectionists - These services are auxiliary to the sale of the equipment The payment of US $ 9,02,500 is a part of the equipment price which includes the services of installation and training. Therefore, it follows that the said sum of US $ 9,02,500 is not chargeable to tax in India and hence the assessee was justified in not deducting any tax at source - Decided in favor of the assessee. If the assessee has not applied to the AO under s. 195(2) for deduction of tax at a lower or nil rate of tax under a bona fide belief that no part of the payment made to the non-resident is chargeable to tax, then he is not under any statutory obligation to deduct tax at source on any part of the payment.
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2010 (4) TMI 781
DEPB licences - Penalty - non-transferable advance license - Notification No. 34/97 dated 7-4-1997 - Forgery of DEPB licence may entail prosecution under the ordinary criminal law or under any other provision of the EXIM Policy under which the DEPB licences are issued - it is apparent that the same provides for penalty for improper importation of goods, etc. Thus any person who acts or omits to do any act in relation to goods so as to render such goods liable to confiscation under Section 111 or acquires possession of or deals with goods in the manner provided under clause (b) of Section 112 would be liable to penalty as laid down thereunder - there is no evidence of any direct involvement of the respondent as regards forgery of the licences, even otherwise the provisions of Section 111 and 112 of the Act would not be attracted so as to vest the Customs Authorities with the power to take action against the present respondent in connection with his alleged involvement in the purchase of the DEPB licences - Appeal is dismissed
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2010 (4) TMI 778
Clandestine removal - Rule 3(1) and Rule 7 of CENVAT Credit Rules, 2002 and Rule 57AE(3) of the Central Excise Rules, 1944 - Circular No. F.No. 345/2/2000-TRU, dated 28-8-2000, has clarified that in a situation where inputs are received in a factory prior to supersession of the Central Excise Rules, however, credit has not been availed of for any reason, such credit earned, can be availed in terms of the transitional provisions under the subsequent rules - Tribunal further noticed that in Show Cause Notice F.No. VIII/10-83/COMMR/2001, dated 24-7-2001 in the customs proceedings, the Department had agreed to the fact that due records had been maintained by the respondent - There was no evidence that the clearance of goods was with the intention to evade payment of duty - Merely because there was non-compliance with some directions issued by the Settlement Commission, it would not affect the rights of the respondents to avail of the benefit of the CENVAT credit - Appeal is dismissed
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2010 (4) TMI 775
Cenvat Credit - “Whether the Hon’ble Tribunal was justified in holding that credit can be allowed merely on the ground of the invoices of manufacturer if the goods are not manufactured by him - In absence of any finding having been recorded by the Tribunal nor any reasons having been assigned as to why the penalty imposed upon the respondent is required to be set aside, it is not possible for this Court to state one way or the other as to whether the Tribunal was justified in setting aside the said penalty - The impugned order of the Tribunal, being a non-speaking order insofar as the case of the present respondent is concerned, cannot be sustained to that extent.
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2010 (4) TMI 774
Penalty u/s 11AC - Since their is no allegation with supporting evidence regarding the duty was short-levied or short-paid on account of suppression of facts, misdeclaration, fraud or collusion, etc. in the show cause notice - therefore, Tribunal is correctly deleted the penalty.
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2010 (4) TMI 769
Disallowance - Expenditure incurred for the training of the staff etc.- Since, the staff had been recruited, it was not ready for rendering services as the staff had to be trained with the systems - The assessee had not taken premises on rent and, therefore, installation of computer therein had not been done - Therefore, the assessee was not in a position to solicit custom till the end of May, 2004. The advances were received from the parent company but these were used for training the personnel and paying salaries and incidental charges, necessary for setting up the business - Thus, in a nutshell, it is held that a business is set up when it reaches a stage where it is in a position to procure business and not before. However, the expenditure becomes deductible from such stage irrespective of the date of actual receipt of the business - Therefore, it is held that the business had not been set up till the end of May, 2004 - Accordingly, the assessee is not entitled to deduction of these expenses. Higher rate of depreciation - Computers - UPS - Held thst:- As per the decision of Hon’ble Delhi High Court in the case of CIT v. BSES Rajdhani Power Ltd. [2010 -TMI - 78240 - DELHI HIGH COURT],in which higher rate of depreciation was allowed on printers and scanners - If peripherals such as printers, scanners and servers etc. form integral part of the computer system, we have no hesitation in holding that UPS is also an integral part of the computer system, entitled for deduction of depreciation at the rate of 60 per cent - Tribunal held that computer accessories and peripherals such as, printers, scanners and server etc. form an integral part of the computer system - In fact, the computer accessories and peripherals cannot be used without the computer - Consequently, as they are the part of the computer system, they are entitled to depreciation at the higher rate of 60 per cent.
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2010 (4) TMI 767
Reopening - Income escaping assessment - Time barred - It is very clear from the facts that the respondent issued a notice under Section 148 of the Income Tax Act - Since the petitioner had already paid the return for the assessment year 1995-96 on 29.02.1996 admitting nil income and an order of assessment had already been passed under Section 143(3) of the Income Tax Act on 31.03.1998 accepting the petitioner's return, in the above said circumstances, the present impugned notices were issued, for which the petitioner submitted his explanation stating that he had already submitted return of income for the assessment year 1995-96 on 29.02.1996 - ssessing Officer is under a mandate to dispose of such preliminary objection by passing speaking order, before proceeding with the assessment in respect of the assessment year for which such notice has been issued After a notice for reassessment has been issued, an assessee is required to file the return and seek reasons for issuance of such notice - The two notices has not complied with the command of Section 151, which clearly rules that no notice shall be issued under Section 148, by an Assessing Officer, unless, the Joint Commissioner is satisfied on the reasons recorded by such assessing officer that it is a fit case for the issue of such notice - Writ petition is allowed
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2010 (4) TMI 766
Refund Claim - Search - Interest on the excess amount seized in the search - A search conducted in the petitioner's residential/business premises - It was kept in the Commissioner's Personal Deposit Account for being adjusted towards the tax liability of the petitioner - The block assessment for the period 1989-90 to 1999-2000 was completed on 22.12.2000 - The tax liability was adjusted from and out of the monies seized from the petitioner - The balance was refunded to the petitioner - The petitioner prayed for interest vide his representation invoking the provision u/s 132B of the Income Tax Act. The petitioner is not entitled to any interest on the excess amount seized in the search conducted under section 132 of the Income Tax Act, as the search was made well beyond the cut off date referred to under section 132(5) of the Act - The respondent has rightly rejected the plea for interest made by the petitioner -While passing the impugned order, the respondent has rightly applied the relevant provisions of law and dismissed the plea for interest on the amount seized in the search conducted and refunded after assessment was made - Therefore, the writ petition stands dismissed.
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2010 (4) TMI 765
Addition of income - AO did not agree with the assessee and computed the capital gain at Rs. 11,33,690 by taking the fair market value of the land as on 1st April, 1981 @ Rs. 4/ per sq. mtr. against the capital gain declared by the assessee at Rs. 1,45,199 - The learned Authorised Representative before me has vehemently contended that the assessee has computed the capital gain by taking the fair market vahie as on 1st April, 1981 @ Rs. 20 per sq. mtr. while the AO has taken the fair market value @ Rs. 4.108 per sq. mtr - This is apparent from the record that the Inspector has brought out the rate of the agricultural land and not of the commercial land - If the AO did not agree with the land rate as estimated by the assessee, in my opinion the onus is on the AO to bring evidence on record in respect of the comparable land so that the land rate estimated by the assessee can be rejected – It is decided in the favour of assessee Capital loss or business loss - The AO, as is apparent from the finding as reproduced hereinabove, held that the assessee has done speculative business in shares and allowed the said loss as speculation loss, not as short-term capital loss - The learned Departmental Representative, on the other hand, relied on the order of the learned AM and contended that the genuineness of the transaction entered into by the assessee are required to be looked into and for that purpose the matter be restored to the file of the AO – It was held that the matter will now go before the regular Bench for deciding the appeal in accordance with the majority opinion
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2010 (4) TMI 761
Restoring the writ petition - It appears from the application that in the said writ petition challenge was to the notice dated March 27, 1974 for the assessment year 1969-70 under section 148 of the Income-tax Act, 1961 - Directions for affidavits were also issued, it was recorded that the respondents would be at liberty to continue and conclude the reassessment proceedings - After the application for reconstruction being C. A. N. No. 2144 of 2009 was moved on May 6, 2009 the petitioners were directed to serve copies of the application on the respondents as well as on the learned advocate appearing on behalf of the Union of India So far as the prayer for fresh affidavit by the petitioners is concerned, the submission is court should not allow a cause of action which was arose 32 years back - The petitioners have tried to plead that the trustees, who had filed the writ petition, subsequently ceased to be trustees by virtue of death, resignation or otherwise - It appears from the application that in January, 2008 the petitioners came to know that the erstwhile advocate on record had expired on August 20, 2007 - Therefore, since delay of about 32 years has not been explained at all for moving the application belatedly and no sufficient cause has been made out for the restoration of the petition being C. R. No. 3100 (W) of 1974, the application for registration is dismissed - Hence, no order is passed on the application for reconstruction being C. A. N. No. 2414 of 2009 and the same is, thus, disposed of
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2010 (4) TMI 760
Addition - Adoption of rate of 5 per cent as against the rate of 8 per cent to the gross receipts - Since, during the remand proceedings, the assessee had produced the books of account and the same were found to be as per the book results, shown by the assessee find no merit in adoption of rate of 8 per cent to the book results for working out the income for the year - However, as the assessee has failed to file evidence in respect of the material purchased and certain expenses and in the absence of the assessee filing the same on record, even before the lower authorities or before us, conformity with the order of CIT(A) in adopting net rate of 5 per cent to the gross receipts for working out the income of the assessee for the year under appeal. Introduction of capital - Source - Held that:- no merit in the ground raised by the revenue, where the Assessing Officer himself had made verification in respect of capital introduction made by the partners of the assessee firm and held the same to be properly explained - Decided in favour of assessee. Addition on account of creditors - genuineness of the sundry creditors - So far as genuineness of sundry creditors is concerned, it is seen that these creditors have been reflected in the books of account maintained by the assessee - Besides, the assessee has filed attested copies of affidavits of these creditors who confirmed that the amount mentioned by the assessee in its balance sheet in their names was on account of material supplied by them or services rendered by them which has been received by them from the assessee firm in the subsequent year - Decided in favour of assessee.
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2010 (4) TMI 759
Disallowance u/s 40(a)(ia) - Car lease rentals covered u/s 194-I or u/s 194C - Held that:- before the Tribunal, the revenue was unable to dispute the fact that the vehicles in question were given on lease and that they did not carry any responsibility of the day-to-day maintenance or upkeep of the vehicles - Thus, both the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal have returned findings of fact that the contract was not a transport contract, but merely entailed the taking of vehicles on lease and the payments were in the nature of lease rentals simplicitor - Consequently, the disallowance made by the Assessing Officer u/s 40(a)(ia) was liable to be deleted - Decided in favour of assessee.
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2010 (4) TMI 755
Exemption u/s 11(1)(a) - Scrutiny - Condonation of delay - Submission of Form No. 10 - Circular No. 273, dated 3-6-1980 - The Assessing Officer’s computation of income available for accumulation under section 11(1)(a) is correct and is in accordance with law - As rightly pointed out, for accumulation of income under section 11(1)(a), it is to be computed on commercial principles and not on gross receipts on rejection of the condonation application by the CIT, the assessee filed an additional ground before the Tribunal and the Tribunal in that case found the funds accumulated are for charitable purpose and the amounts are set apart/accumulated in FD in nationalized bank - whether the conditions mentioned in Circular No. 273, dated 3-6-1980 is fulfilled or not - if the delay in filing Form No. 10 is condoned by the Administrative CIT, this order of ours should not be an impediment for claiming exclusion from the total income as contemplated under section 11(2) of the Act - In the result, the appeal filed by the revenue is allowed
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2010 (4) TMI 754
Disallowance - Deduction u/s 80-IB(10) - There is no dispute on the fact that the assessee filed its return declaring total income of Rs. 1.30 crores on which the tax payable, by way of advance tax/self-assessment tax, was to the tune of Rs. 43.83 lakhs, which was admittedly not paid by the assessee along with the return of income - where the assessee did not file any return for the relevant year and still the assessment was made, the assessee can file first appeal even without the payment of tax provided he satisfies the CIT(A) for the reasons of non-payment of tax - It is trite law that omission to comply with a mandatory requirement renders the action void, whereas omission to do the directory requirement makes it only defective or irregular - The pre-requisite is that the payment of such tax, in the category of cases in which tax is paid after the filing of return, should be before the admission of first appeal - the defect in the appeal due to non-compliance of a directory requirement of paying such tax before the filing of the appeal, stood removed - Appeal is allowed
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2010 (4) TMI 751
Business income Vs. Other sources - Deduction u/s 80HHC - The activity of discounting local sale bills or of advancing loans to sister concerns was held to be only an additional activity, which commences after the activity related to the business of export has ended - Merely because an assessee carries on business and the income of the business is invested in deposits, that would not result in an inference that the return on the investments must partake of the character of business income - Where the assessee engages in an independent line of business, interest earned on deposits cannot be regarded as falling under the head of profits and gains of business or profession - Such income would fall for classification as income from other sources Regarding deduction u/s 80HHC - In the present case, the contention of the assessee both before the Assessing Officer and in appeal was that it carries on the business of the export of seeds, spices and similar goods - If the assessee has no export orders and if there is still a balance, the assessee used its funds to discount the purchase bills of private parties for short periods of time of three to five weeks - Income received by way of discounting charges and interest on intercorporate deposits would not fall under the head of profits and gains of business or profession but would fall under the head of income from other sources - Having no direct and proximate nexus with the export activity such income has to be wholly kept out of the reckoning for computing the deduction under section 80HHC - The appeal is disposed of
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