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Showing 421 to 440 of 871 Records
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2012 (5) TMI 455
100% EOU - exported goods for display at Fair Singapore 2006 on returnable basis, claiming clearance without payment of duty – Held that:- goods imported by an EOU is exempt from customs duties vide Notification No. 52/2003-Cus., dated 31-3-2003. I further, find force in the submission of appellant that the imported goods will be finished and re-packed which according to para 9.37 of chapter 9 of the policy is a manufacturing process. Therefore, the imported goods are going to be used for the purpose mentioned in the exemption Notification, Revenue’s appeal is accordingly rejected
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2012 (5) TMI 454
Non fulfillment of export obligation - demand imposed for the duty free import of the capital goods along with interest and for imposition of penalty - assessee registered for an 100% EOU, on failure to comply with export obligation, re-exported impugned capital goods imported - Held that:- Since the goods imported after availing of the facility under EOU scheme, were subsequently exported after observing Customs and Central Excise procedure, no duty liability continue to exist on the assessee and they fulfilled all the conditions as laid down in Para 6.18(e) of Foreign Trade Policy 2004 2009 to exit from the EOU scheme, there is no question of further imposition of duty of Customs on such imported goods subsequently allowed to be re exported. Charge of non fulfillment of export obligation is not established - Decided in favor of assessee.
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2012 (5) TMI 453
Whether matter can be kept pending before Tribunal on ground of pendency of an application/petition before High Court when order staying the operation of the Predeposit Order or modifying the Predeposit Order has not been passed by High Court - assessee neither pre-deposited the directed amount nor reported any compliance on stipulated date - Held that:- It is settled position of law pendency of any appeal or for that matter any proceedings which is akin to appeal do not operate as a stay, the stay has to be obtained specifically from the higher forum. Therefore, Tribunal was justified in dismissing the appeal on ground of failure of assessee to make pre-deposit within stipulated time,
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2012 (5) TMI 452
Application for restoration of appeal - the demand and recovery of excise duty against Main party and also penalty on various other parties including applicant (transporter) – Held that:- Hon'ble High Court vide order directed Main party to deposit ₹ 15 crores in eight equal installments and in the event of such deposit pre-deposit of the penalties imposed on other appellants shall stand waived - the main appellant has failed to comply with the order - since the petitioner has failed to comply with the order of deposit, his appeal has been rightly dismissed for contravention of Section 35F of the Central Excise Actand there is no merit in the request of the restoration of the appeal - against assessee.
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2012 (5) TMI 451
Cenvat credit - 100% credit availed in the first year – Held that:- at the time of receipt of the capital goods while the credit should have been confined only to 50% of the duty amount and balance amount of the credit should have been taken in the next financial year, the appellant have taken full credit at the time of receipt of the capital goods, appellant would become eligible for the balance 50% of the credit and as such the appellant liability would be only in respect of interest on the amount of wrongly Cenvat credit taken for the period for which it was irregular, appellant are directed to deposit an amount of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand only) within a period of eight weeks from the date of this order. On deposit of this amount within the stipulated period, the requirement of pre-deposit of balance amount of Cenvat credit demand, interest and penalty would stand waived and recovery thereof stayed till the disposal of the appeal
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2012 (5) TMI 450
Whether the Learned Tribunal not err in dismissing the Appellant’s Appeal even though the issue of pre-deposit was pending before the Hon’ble Court - Tribunal vide order dated 19th July, 2010 dismissed the appeal of the appellant on the ground of non-compliance of the order dated 15th February, 2010 - Held that:- Tribunal erred in dismissing the appeal of the appellant vide order dated 19th July, 2010. Time upto 16th May 2011 is granted to the appellant to make deposit of the entire tax amount and in case the said deposit is made, the appeals filed by the appellant will be heard by the Tribunal. - However stay order not to be interfered.
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2012 (5) TMI 449
Pre-operative expenses - revenue or cpaital expenditure - Non deduction of TDS - testing charges paid to the US Company - Disallowance u/s 40(a)(i) - fee for technical services under Section 9(1)(vii)(b) - held that:- the fees for technical services are taxable in the hands of the US Company under the provisions of the Act. The question to be considered then would be whether there is anything in the agreement for avoidance of double taxation between India and USA which would exempt or reduce the burden of taxation in respect of the fees for technical services received by the US Company. This aspect of the matter has not been examined by the Tribunal, though raised before it by the assessee, since there was no occasion for the Tribunal to do so on account of the view it took regarding the taxability of the fees for technical services under the Act. It is axiomatic that if the receipt is not taxable under the Act, then there is no need to examine whether it would fall under any of the provisions of the agreement for avoidance of double taxation. - Decided against revenue.
Pre operative expenses - held that:- The fact that in the books of account the assessee had capitalised the expenses does not prevent the assessee from claiming them as revenue expenses since the question of allowance of expenses has to be considered in the light of the legal position and the accounting treatment cannot be conclusive. - Decided in favor of assessee and against the revenue.
Expenditure relating to fully convertible debentures - whether related to issue or shares or merely related to issue of debenture - held that:- It is well settled that expenditure incurred in connection with the issue of debentures or obtaining loan is revenue expenditure. - The question before us however, is whether it is a debenture issue or an issue of share capital involving the strengthening of the capital base of the company.
Though it prima facie appears that there are sufficient facts to indicate that what was contemplated was an issue of shares to the Mauritius Company under the Investor Agreement which would result in strengthening of the assessee's capital base, having regard to the judgments cited on behalf of the assessee [India Cements Ltd. v. CIT [1965 (12) TMI 22 (SC)], in which it has been held that despite indications to the effect that the debentures are to be converted in the near future into equity shares, the expenditure incurred should be allowed as revenue expenditure on the basis of the factual position obtaining at the time of the debenture issue - Decided in favor of assessee.
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2012 (5) TMI 448
Demand of service tax along with interest and penalties - appellant had claimed that the amount which is sought added in gross value in storage and warehousing services, is pertaining to rent received for leasing out of godown to various customers and that the amount accounted as 'dispatch money' is nothing but an incentive received for speedy discharge of goods. It is the submission that they had produced various evidence before the Commissioner (Appeals) in support of the claim which have not been considered - appellant's claim that he had produced the evidence seems to be correct. It is also seen that the Commissioner (Appeals) had not considered the said evidence and no findings have been recorded. appeal is allowed by way of remand
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2012 (5) TMI 447
CENVAT credit of Service Tax paid on outdoor caterer's service – Held that:- Under the provisions of Section 46 of the Factories Act, 1948, it is mandatory for the appellant to provide canteen facility for the worker in their factory premises as a measure of welfare of the workers. The canteen facility also helps in furtherance of the manufacture. Thus, the caterer service has nexus or integral connection with the business of manufacture of final product and this would qualify to be input service under Rule 2(1) of Cenvat Credit Rules, 2004. Revenue's appeal is dismissed
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2012 (5) TMI 446
CENVAT credit - assessee availed CENVAT credit on 'Business Auxiliary Services' for the period from March, 2005 to June, 2007 – Held that:- in the case of ABB Ltd. (2009 - TMI - 34139 - CESTAT, BANGALORE - Service Tax) has held that the services availed by a manufacturer for outward transportation of final products from the place of removal shall be treated as input services in terms of Rule 2(l)(ii) of Cenvat Credit Rules, 2004. ultimate order passed by the Larger Bench of the Tribunal does not suffer from any infirmity so far as period prior to amendment of the said Rule i.e.01.04.2008, is concerned. decision is squarely applicable to the present case since the period involved in the case is prior to 01.04.2008 as already discussed, supra. order is set aside and appeal is allowed.
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2012 (5) TMI 445
Refund claim - refund claim of Service Tax paid on GTA services on outward freight in relation to transportation of export consignment under Notification No. 41/07 dated 6.10.2007 – Held that:- expression used in the Notification No. 3/2008 is 'in relation to transport of export goods'. This expression covers the transport of empty container from the factory to place of export of goods.The Tribunal in the case of Tata Coffee Ltd. (2010 - TMI - 204927 - CESTAT, CHENNAI - Service Tax) has held that the expression 'in relation to transport of export goods' is wide enough to cover even transport of empty containers from the yard to the factory for stuffing of export goods. Commissioner (Appeals) is not sustainable in law, the same is set aside and the appeal is allowed
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2012 (5) TMI 444
Business Auxiliary Service (BAS) - Service provided to bank in relation to loan - arranging documents for the bank to evaluate creditability, eligibility and financial status of the prospective customer for funding by the bank. - held that:- Appellant promoted funding business of bank gathering documents and preparing profiles to enable the bank to consider its funding activity. All these facts and attendant circumstances bring the bank and the Appellant to the understanding as taxable service provider and recipient of such service. - Appellant provided 'Business Auxiliary Service' to the bank liable to tax.
Extended period of limitation - Show Cause Notice issued on 22.8.2006 for the period from 1.7.2003 to 31.3.2005 – Held that:- In the present case, limitation can be reckoned from the date of knowledge of the department on 20.1.2005 giving rise to cause of action. Adjudication is not time-barred. - Decision of Apex Court in CCE, Visakhapatnam Vs. Mehta & Co. (2011 (2) TMI 2 (SC)), followed.
Whether amendment made by Finance Act 2004 coming into force with effect from 10.9.2004 read with Notification No.14/2004 dated 10.9.2004 granted immunity to the Appellant from levy – Held that:- service provided by the Appellant in the present case was to the financing bank but not to the borrower. Relation between the Appellant and the bank proves that there was quid pro quo between the Appellant and the bank to meet the requirement of funding. The Appellant had only served the bank but not acted on behalf of the bank. Borrower was not privy to the contract between the Appellant and the bank. So also in absence of any letter of appointment and agreement. Appellant has no scope to be benefited by the amendment of law.
Penalty - held that:- But while appreciating the levy was new imposition of penalty under Section 78 and 76 of the Act, simultaneously shall be harsh. Therefore levy of penalty under Section 78 shall be proper dose to prevent the Appellant from recurrence of the contravention of law and to cause loss of revenue.
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2012 (5) TMI 443
Set Off of Losses - rectification application u/s 154 seeking set off of brought forward loss and carry forward of the balance loss rejected stating that set off of losses cannot be a matter of rectification - in electronic processing of e-return filed by assessee, loss set off was shown at Zero - Held that:- Copy of return as well as the processing done by the CPC clearly shows that the assessee had claimed set off of losses amounting to Rs. 9.53 crores out of total carry forwarded losses of Rs.12.43 crores. Further the assessee had also filed the copy of return for earlier years which shows that the losses were returned in those years. Once the losses have bee claimed the same were required to be allowed as set off after verification that such losses were determined losses - Decided in favor of assessee.
AO and appellate authority passed orders while performing their duty, therefore, this is not a fit case for levy of cost.
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2012 (5) TMI 442
Reassessment - Addition u/s 69C - Unexplained expenditure - Withdrawal of cash from third party account after making payment against purchases - held that:- The information emanates from a third party, namely, JECPL. - The impugned bank account and the Kachhi Rokar is owned, operated and maintained by JECPL. The third party in factual terms accepted that the assessee used to make the payment of purchases by way of a/c payee cheques, which are deposited in JECPL a/c in clear and unambiguous terms. - In our considered opinion, looking at the entirety of facts and circumstances and in view of above observations, the addition on the basis of such a third party's evidence cannot be made in the hands of the assessee. - The bank a/c is owned and operated by JECPL, assessee clearly has no role or involvement in operation of this bank a/c. - In our considered opinion, by interpreting 2 or 3 sentences of third party's statement, which is not allowed for cross-examination by the assessee, cannot be made a basis to make these additions in the hands of the assessee u/s 69C as unexplained purchases. - Decided in favor of assessee.
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2012 (5) TMI 441
Revision u/s 263 - computation of Capital gains - determination of cost of acquisition - It is on record that A.O. has issued show cause notice to the assessee to enquire about the working of the capital gains. It is also on record that assessee has replied in detail as stated in the arguments with reference to the working of long term capital gain of lese hold land and relied on the valuer's report - In the year 1989, for the first time Ready Reckoner was prepared and relevant instructions were issued in respect of how to adopt the valuation of properties of 1981 on the basis of the valuation adopted in the year 1989 - As seen from the above letter it is very clear that there was no fixed guidelines as of year 1981 and it is only on estimation and presumptions the valuation was done, therefore, even the rate at which the CIT took decision of Rs.72/-per sq.ft. is not based on any authentic documentation but only on certain instructions given how to adopt valuation of property based on Ready Reckoner 1989.
At the time of passing the assessment order the A.O. has relied on the valuation report in which the valuer for the reasons stated therein has adopted the average value of the value of open land and value of land with buildings and adopted an average value so arrived at - A.O. has taken one of the possible views in adopting the cost of acquisition as supported by the valuation report - the action of the CIT in invoking of section 263 is without any jurisdiction for the reasons stated - Decided in favor of the assessee
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2012 (5) TMI 440
Disallowance of 90% of expenses related to other group concerns and their directors or their relatives - held that:- while accepting the principle that for eligibility of an allowance under section 10(2)(xv), there should be a nexus between the expenditure and the purpose of the business and the expenditure should have been wholly and exclusively laid out for that purpose.
Merely because the assessee's income, after incurring such expenses, was found to be little or negligible, it cannot be said that the said expenditure became an impermissible deduction. Once it is found that the expenditure was bona fide incurred and that the same related to the business activity, then it would become deductible as the same is permitted by the provisions of law. In the light of view taken in these decisions, we are of the opinion that disallowance of a portion of establishment expenses by the ld. CIT(A) was not justified. -
The mere fact that no tangible business came out of the foreign visit is not a ground for disallowing the foreign travel expenditure, because it is possible that in the first meeting only business discussions would take place and nothing tangible may come out. -
Unless the business is abandoned or closed and even if business is at a dormant stage waiting for proper market conditions to develop, the expenditure incurred in the course of such a business is to be allowed as deduction.
Delay in filing an appeal - Appeal against order of Rectification u/s 154 - held that:- the asseessee seems to be quite negligent by not taking the necessary steps for filing the appeal within the time prescribed by the statute. The conduct of the assessee reveals that the assessee takes the condonation of delay provision as granted. The assessee did not care to submit any request for condonation of delay, even when it was brought specifically to their notice. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence whatsoever. - Delay not condoned - decided against the assessee.
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2012 (5) TMI 439
Non deduction of TDS - Payment to directors - Disallowance under section 40(a)(ia) - TDS u/s 194H or 192 - held that:- the commission paid to directors as per terms of employment for the work done in their capacity as whole-time directors is to be treated as incentive in addition to salary, etc. and did not come within the purview of commission and brokerage as defined in section 194H or fee for professional or technical services as defined in s. 194J and therefore, same cannot be disallowed under s. 40(a)(ia) of the Act. - Decided in favor of assessee.
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2012 (5) TMI 438
Penalty u/s 271(1)(c) - It is quite evident that the appellant had made wrong claim of deduction in respect of commission intentionally and inspite of a number of opportunities given to the appellant by the A.O. the said claim was not withdrawn suo-moto - As per the evidence before us in this case, we have to draw the inference that it was a deliberate or conscious attempt on the part of the assessee to manipulate the book result by passing the false entry of 'commission payment' to evade the tax. Admittedly, as per the reply filed by the assessee to the A.O. it was contended that the assessee has paid the commission to M/s. KAP Ltd. and only after investigation was started by the A.O. through DDI (Invt), New Delhi, assessee came forward claiming innocence and stated it was a bona fide mistake - Decided against the assessee
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2012 (5) TMI 437
Deduction u/s 10(23G) - assessee is a public sector scheduled bank and earned income of Rs.146,33,70,763/- by way of interest from infrastructure bonds - It was noted by the Assessing Officer that the total interest was to the extent of Rs.146,33,70,763/-. The notification granting the approval by the CBDT in respect of the other projects which involved the interest of Rs.109,56,32,636/- was not produced before the Assessing Officer Hence, the Assessing Officer made the addition - Held that: Learned CIT(A), in our view, has rightly directed the granting of exemption under Section 10(23G) of the Act in respect of interest on such bonds whose certificate of exemption was filed before him - However no assessee produced the remaining certificates - matter remanded back to AO - If the assessee, for any reason, is not able to produce such certificates when the Assessing Officer is giving effect to, the Assessing Officer is free to confirm the addition to that extent - Appeal is allowed for statistical purpose.
Remission of liability - Deemed income u/s 41(1) - amount transferred from inter branch transaction blocked accounts to reserves through the medium of profit and loss account. - held that:- the disputed amounts were part of inter branch transactions and there was a mismatch of the transactions between different branches of the same bank and it was not reconciled and these are all carried forward from so many years from the bank and its branches. - None of these transactions, as we see from the records presented before us and the information available with us, show that the involved transactions have revenue implications by nature which could spring the income subject to assessment under the Income-tax Act.
Transaction between the head office of the assessee and its branch in India was a transaction between the principal and principal. In law, there cannot be a valid transaction of sale between the branch and its head office. As it is ultimately based on a proposition that no person can enter into contract with one self. Debiting or crediting one's account cannot alter the legal position.
When that primary requirement is absent, the question of bringing the sums in question to tax under Section 41(1) may not be legally permissible to the Revenue. - Decided in favor of assessee.
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2012 (5) TMI 436
Rejection of book of accoutns - Estimation of income at 5% of the gross turnover of the company - A.O. noticed that there are huge losses incurred by the assessee and the losses cannot be accepted as the projects undertaken by the assessee were having escalation clause - held that:- The provision empowers the A.O. to reject the books of account and estimate income as provided under section 144 / 145 only if he is satisfied about the correctness and completeness of accounts of assessee or accounting standards notified have not been followed by the assessee.
The assessee has maintained complete books of account including vouchers and also justified the increase in cost, reasons for suffering losses and also the fact that stock registers were maintained at the respective places. Just because the assessee has suffered losses, it does not mean that the assessee's books of account are to be rejected.
Assessee has maintained complete books of account including vouchers and also justified the increase in cost, reasons for suffering losses and also the fact that stock registers were maintained at the respective places - The assessee also justified why it has suffered losses by giving detailed reasons including the escalation clause, cost of increase in material and difficulty in implementing the road projects in Naxal-hit areas as a new venture - Decided in favor of the assessee
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