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Showing 421 to 440 of 935 Records
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2013 (6) TMI 522
Unexplained investment - cash deposited in bank - Held that:- As from the bank statements & cash flow statements prepared by the assessee, there was a pattern of regular withdrawals in round figures on several occasions. There were huge withdrawals such as, a sum of Rs.1,80,000/- on 29/05/2007, Rs.1 lac on 6/09/2007, Rs.2 lacs on 25/10/2007, then Rs.70,000/- and Rs.1 lac in the month of December-2007. If those withdrawals have not been found utilized by the assessee towards investments, then naturally those were available with the assessee to be used or redeposited in the bank as per his desire/sweet will. The AO conclusion that it was not humanly possible and against the human tendency was merely a supposition and such a presumption has no cogent legal basis. If the Revenue Department has not established that the cash available with the assessee was not utilized elsewhere, then on the basis of the preponderance of probabilities, it can be assumed that that very cash was redeposited in the bank - in favour of the assessee that the cash to the extent of Rs.17,17,794/- available as on 31/03/2008 was redeposited. But still, there was a slight gap in the cash deposit made during the financial year 2008-09 to the extent of Rs.18,85,945/- That gap of Rs.1,68,151/- remained unexplained.
Addition as income from undisclosed sources - Long term capital gain on sale of jewellery - Held that:- Statement of wealth relevant for AY 1988-89 wherein there was a disclosure of jewellery and ornaments as per Valuer's Report of Rs.1,01,275/-. Further, there was a disclosure of ornament of 298 grams and the value of the same at that assessment year was disclosed at Rs.88,893/-. The mention of the gold ornaments was also made in the balance-sheets furnished before the Revenue Authorities as evidenced by few letters placed on record. Thus if the AO has disbelieved the explanation of the assessee, then he should have made enquiries with the said jeweller instead of presuming that the sales bills were simply arranged by the assessee. The AO has also not denied the fact that in the past the jewellery was actually disclosed in the wealth tax return, thus hereby direct to compute the capital gain on sale of gold ornaments and tax in the hands of the assessee - in favour of assessee.
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2013 (6) TMI 521
Re opening of assessment - survey u/s.133A - Held that:- As during the course of assessment proceeding for A.Y. 2003-04 and 2004- 05 one of the tenant Shri Rashikbhai Chotabhai Patel of the project developed by M/s.Vastu Construction, had confronted with the impounded material and admitted that he has made the payments over and above the documented price totalling to Rs.22 lacs through cheque and cash. This confession leads to confirmation of payment of on money by Shri Rashikbhai Chotabhai Patel.
On verification of return of income for A.Y. 2003-04 & 2004-05 the assessee has shown Rs.78713/- and Rs.46719/- as his total income for both the years. Therefore, the source of on money payment made by the assessee is required to be verified and needs further investigation. The document which was found from the brief case of one Shri Bankim D.Patel, C/o.Vastu Construction has indicated that in respect of Building No.7, the total area was 3020.87 sq.ft. for which the cost of plot was Rs.8,71,200/- and the cost of construction was Rs.13,59,000/-, thus totalling to (approximately) Rs.24,16,000/-. Thus Revenue Department had enough information in its possession, therefore fully empowered to reopen the assessment or otherwise assess this assessee specially within four years as it has happened in the present case - Against assessee.
Addition u/s.69 on the basis if said statement - Held that:- This is not a case where merely on the basis of a statement the impugned addition was made. This is a case where the statement was recorded on the basis of an incriminating material recovered during the course of survey operation. On merits the AO has examined the sources of investment to the extent of Rs.11,28,000/- out of the total investment in the said property of Rs.22,16,196/-, hence only the difference amount of Rs.10,88,196/- was taxed in the hands of the assessee. The assessee has not made any attempt to explain the balance unexplained investment. Thus there was no fallacy in the findings on facts as also on law by the Revenue Authorities, hence the said addition is hereby confirmed. Against assessee.
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2013 (6) TMI 520
Penalty u/s. 271(1)(c) - Disallowance of Depreciation on factory Building & Technical Fees Written off - Held that:- The undisputed facts in this case are that the assessee has claimed depreciation of the portion of building let out and had claimed write off of expenditure incurred on technical know-how fee. The fact of claiming of deduction was disclosed in the profit and loss account and also in the return of income. This bona fide belief of the assessee has not been controverted by Revenue by bringing any tangible material on record.
As seen in the light of the decision of Price Waterhouse Coopers Pvt. Ltd. (2012 (9) TMI 775 - SUPREME COURT) and Zoom Communication P. Ltd. (2010 (5) TMI 34 - DELHI HIGH COURT) wherein held that absence of due care does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income, thus concluded that since all the necessary facts with respect to the claim of disallowance and deductions were furnished in the return income the fact that the disallowance has been made does not call for levy of penalty us/ 271(1)(c). Thus penalty levied by the AO cancelled. In favour of assessee.
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2013 (6) TMI 519
Deduction under section 10(10C) disallowed - assessee under the VRS Scheme of State Bank of India received sum on account of ex-gratia payments - Held that:- The issue is covered by the ratio laid down in Shri Bikram Jit Passi v. DCIT [2012 (11) TMI 214 - ITAT, CHANDIGARH] wherein similar claim in the hands of another ex-employee of State Bank of India was allowed - in favour of assessee.
Claim of exemption under section 10(5) - leave travel package covered Singapore and Malaysia - Held that:- Reading of section 10(5) and Rule 2B of the Rules in conjunction lays down the guidelines for claiming exemption in relations to the travel concession received by an employee from his employer or former employer, for proceeding on leave to any place in India. The person is to undertake the journey to any place in India and thereafter return to the place of employment and is entitled to reimbursement of expenditure on such travel between the place of employment and destination in India. Rule 2B of the Rules further lays down the conditions that the amount to be allowed as concession is not to exceed the air economy fair of the National Carrier by the shortest route to the destination in India. The said condition in no way provides that the assessee is at liberty to claim exemption out of his total ticket package spent on his overseas travel and part of the journey being within India. No merit in the claim of the assessee in the present case - Against assessee.
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2013 (6) TMI 518
Re opening of assessment - addition of treatment under the income of other source by the AD as against income from house property as offer by assessee - Held that:- AO reopened the assessment and issued notice u/s 148 on the same material which was placed before him during the original assessment u/s 143(3). AO raised specific queries pertaining to the amounts received from PVR Ltd. and its treatment by assessee as income from house property. The AO concluded the original assessment by considering the same as income form house property. Subsequently, on the same material the AO recorded satisfaction u/s 147 and issued notice u/s 148 which is clearly a change of opinion and hence, CIT(A) rightly held that issuance of notice u/s 148 is bad in law. Against revenue.
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2013 (6) TMI 517
Introductory Commission & Professional fees - disallowance of claim - Held that:- The assessee-company has failed to furnish an iota of evidence qua services, (even the nature & scope of which remains indeterminate), and which it is required to reasonably prove, i.e., beyond reasonable doubt, to press for a valid claim u/s.37(1) - exhibit the assessee to be hand-in-glove with Shri Sandeep Sitani in executing these paper transactions who admitted that no real business was being conducted in the said companies, and that they were only issuing bills for a commission of 0.25%. The payments received were paid back to the beneficiaries after retaining commission, and in most cases through the brokers. At times, even signed cheque books were left with the brokers/agents to facilitate the work, so that the same could be used by them at their convenience, and the tedium involved in withdrawing cash and remitting it back to the beneficiary company, saved. The directors in these companies, as Shri Pradeep Prajapati and Shri Dinanath Yadav were in fact paid employees with nominal salaries, acting on his instructions. They were men of no means without any technical qualifications; rather, hardly literate. Their separate statements were also recorded independently on oath, whereat they confirmed what had been stated by Shri Sandeep Sitani, also admitting to knowing nothing about the business activities of the firms in which they were directors/proprietors.
Agreeing with the finding of the Revenue of the impugned transactions as being not genuine and representing bogus claims of expenditure. Further, the assessee's reliance on a comparative chart, showing its gross profit for the year to be comparable and, rather, better than for the other years, is of no consequence inasmuch as what is being impugned is the disallowance of expenditure u/s.37(1).
The impugned disallowance is not based primarily on the basis of statement of Shri Sandeep Sitani, but on a consideration of the entirety of the facts and circumstances of the case. There has been rather a complete failure on the part of the assessee to prove the transactions. In fact, the assessee has not even led primary materials in the form of agreements, project reports and confirmations from the clients introduced, etc. It has not shown in any manner as to how the statement of Shri Sandeep Sitani, which is corroborated by the surrounding facts and circumstances of the case, is not correct. The said reliance is, therefore, again misplaced - the assessee's appeal is dismissed.
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2013 (6) TMI 516
Levy of FBT towards Tata brand equity contribution - assessee argued that the payment made to Tata Sons Ltd. is towards subscription fees not covered under sales promotion and publicity - Held that:- As per the Tata brand equity and business promotion agreement between Tata Sons Ltd., and the assessee, the assessee is under contractual obligations to make payment towards the subscription fees. In consideration of this subscription fees, Tata Sons Ltd., is, inter alia, responsible for organising corporate identity and brand promotional activities and campaigns, engage professional consultants, make available a pool of sharable resources of the Tata group to the company and provide assistance in accessing the network of domestic and international business contacts and also permit the company to use the business name.
Considering the circular No. 8 of 2005 dated August 29, 2005 employer/employee relationship is a pre-requisite for the levy of fringe benefit tax. Thus no such thing present on the facts of the present case. The subscription amount has been paid as per contractual agreement between the assessee and M/s. Tata Sons Ltd. The invoice raised by M/s. Tata Sons Ltd. is for the services provided for it. As no employer-employee relationship exists between the assessee and M/s. Tata Sons Ltd. subscription payment deserves to be kept out side the purview of FBT. In favour of assessee.
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2013 (6) TMI 515
Addition of commission received - Held that:- As there is no dispute that since the commission was already included in the income certified in Form No16 issued by M/s. Rititka Limited and the assessee himself has shown the same under the head “salary”. Therefore no justification on the part of the AO to add the same again under the head “commission’. In favour of assessee.
Income on sale of shares and units of mutual funds - capital gain v/s business income - as per AO in view of the CBDT Instruction No.1827 dated 31.08.1989 the profits from transactions and shares and units of the assessee are treated as business profits - Held that:- Keeping in view of the fact that the assessee invested in shares, securities & units in the past years as well investments were made out of own funds. From the Balance Sheet as of 31st March 2002 & 2003 the assessee’s investments from own funds were Rs.93,30,065/- & Rs.1,39,92,543/- and in the assessments for the relevant period assessee was not regarded as dealer in shares. In the assessment years 2002-03 & 2003-04 the assessee earned dividend and capital losses on transfer of shares & units. In the Income Tax assessments for assessment years 2002-03 & 2003-04, the gains received on transfer of shares & units were assessed as capital gains and not as profits & gains of business. Thus AO is not justified in treating the assessee as dealer in shares and securities. In favour of assessee.
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2013 (6) TMI 514
Issues: Non-compliance with pre-deposit orders, dismissal of appeals for non-compliance with Section 35F of the Central Excise Act.
Non-compliance with pre-deposit orders:
The judgment by the Appellate Tribunal CESTAT Bangalore pertains to the non-compliance with pre-deposit orders issued to the appellants. The Tribunal had directed the appellants to pre-deposit Rs.60 lakhs each within a specified period and report compliance, as stated in the stay order. The appellants had filed writ petitions against the stay order, which were dismissed by the High Court. Although the High Court granted additional time for pre-depositing the amounts, the appellants failed to comply within the extended period. The Superintendent (AR) contested the submission made by the counsel for the appellants regarding the expiry of the granted time. The Tribunal noted the absence of compliance with the stay order within the extended time granted by the High Court and the lack of any stay order from the apex court against the High Court's judgment.
Dismissal of appeals for non-compliance with Section 35F:
The judgment further highlighted that as of the date of the Tribunal's assessment, there was no compliance with the stay order within the time frame granted by the High Court. Upon reviewing the records, it was confirmed that the time extension provided by the High Court had lapsed. Additionally, none of the appellants had produced a stay order from the apex court in opposition to the High Court's decision. Consequently, the Tribunal dismissed both appeals due to the appellants' failure to adhere to the requirements of Section 35F of the Central Excise Act, which is applicable to service tax appeals. The decision to dismiss the appeals was made based on the non-compliance with the statutory provisions, leading to the unfavorable outcome for the appellants.
This judgment underscores the significance of complying with pre-deposit orders and statutory provisions, emphasizing the legal obligations imposed on appellants in matters related to Central Excise Act and service tax appeals. The dismissal of the appeals due to non-compliance serves as a cautionary tale for parties involved in similar legal proceedings, highlighting the repercussions of failing to meet the specified requirements set forth by the competent authorities.
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2013 (6) TMI 513
Condonation of delay - delay of 134 days - it was submitted that file of the present matter was misplaced in the office of the counsel of the appellant due to the mistake on the part of the clerk. - Held that:- it is seen that the applicant did not mention the name of the counsel to whom it was handed over for preparation of the appeal. Further, it is not mentioned when the appeal papers were handed over to the learned counsel. In any event, we find that on the identical facts the Tribunal in the case of Magic Fasteners (P) Ltd. (2009 (5) TMI 633 - CESTAT, NEW DELHI) rejected the condonation of delay application. - Against the assessee.
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2013 (6) TMI 512
Demand of service tax - stay - commissioner (appeals) dismissed the appeal for non compliance of order of pre-deposit - Held that:- Keeping in mind the facts and circumstances of the case, we direct the appellant to deposit an amount of Rs.5 lakhs (Rupees Five Lakhs only) within a period of eight weeks from today and report compliance before the first appellate authority on 25.02.2013. The first appellate authority will ascertain that the appellant has pre-deposited the amount and on such ascertainment, will restore the appeal to its original number in his records and come to conclusion on the merits of the case, after following the principles of natural justice.
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2013 (6) TMI 511
Rectification of mistake - Refund - export of services - Notification No.41/2007-ST - Held that:- It is the submission of the Revenue that the decision of the Tribunal was based on incorrect facts and if the Tribunal was aware about the department having accepted the Order-in-Appeal dated 27/02/2011 which had upheld sanction of refund by Assistant Commissioner, the decision would have been different. It is settled law that for consideration of application for rectification of mistake, error has to be apparent from the record and should not require any detailed discussion. The very fact that the whole history of the case involved in two rounds of litigation up to the level of Commissioner (A) and one round before this Tribunal has to be reproduced and finally it had to be submitted that if the Tribunal was aware of the acceptance of the Order-in-Appeal by Revenue decision would have been different itself and would know their own error apparent from the order or record in this case.
It cannot be a mistake on the part of the Tribunal having not been aware of acceptance of Order-in-Appeal, but in fact, the mistake on the part of the Revenue to have accepted the order-in-original without thinking of the consequences. - application for rectification rejected.
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2013 (6) TMI 510
Cenvat Credit - suo moto credit - Taxable service - painting activities in respect of commercial and non-commercial buildings. - Rule 6(3)(c) of the CENVAT Credit Rules, 2004 - Held that:- order of predeposit of the amounts for a technical violation in taking the suo motu credit by the appellants after depositing the cash amount in view of the credit utilized earlier will be harsh. - stay granted.
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2013 (6) TMI 509
Refund - price revision clause - valuation - Excess payment of duty - supply of LPG Cylinders to IOC Ltd. and HPC Ltd. - Unjust enrichment - Held that:- refund can be granted in such cases as may be seen from the decision in the case of Universal Cylinders (2004 (5) TMI 218 - CESTAT, NEW DELHI) which was affirmed by the Apex Court by dismissing the appeal. So this issue is already decided in favour of the appellant to the extent it relates to claim which is not time-barred.
Unjust enrichment - collection of money from the buyer - Held that:- Revenue is relying on the decision of the Apex Court dismissing the appeal against the decision in the case of Sangam Processors (Bhilwara) Ltd. (1993 (2) TMI 211 - CEGAT, NEW DELHI). This was not a case of goods cleared under a price variation clause but was in the context of a Notification issued under Section 11C of Central Excise Act. The decision in the case Grasim Industries [2011 (8) TMI 689 - SUPREME COURT OF INDIA] relies on the decision in the case of Sangam Processors (Bhilwara) Ltd. Since the matter in relation to contracts involving price variation clause and where the buyer adjusted the excess price paid on certain clearances in the price of later clearance has been specifically examined in the case of Universal Cylinders and held in favour of assessee and affirmed by Supreme Court this decision has to be adopted in this case. - Decided in favor of assessee.
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2013 (6) TMI 508
Cenvat Credit - goods supplied to SEZ without payment of duty - Rule 6 of Cenvat Credit Rules. - Held that:- Supplies to SEZ developers/units in the SEZ are deemed exports. Therefore, the appellant is entitled to avail Cenvat credit on inputs/input services used in or in relation to the manufacture of final products supplied to SEZ developers/units. This issue has been considered by this Tribunal in the various decisions - credit allowed - decided in favor of assessee.
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2013 (6) TMI 507
Clandestine removal - stay - Held that:- no prima facie case on merits. - The clandestine removal of the goods using parallel invoices is admitted and it is clearly corroborated by seizure of MS Ingots in two trucks with parallel invoices. There were more than one unused blank book without having serial number. In a few cases it is admitted by the authorized signatory that the goods have been cleared using parallel invoices. - stay granted partly.
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2013 (6) TMI 506
Cenvat Credit - duty payment documents - photocopies or extra copies - stay - Held that:- in respect of these appeals, this is the second round of litigation and in first round of litigation when the matter had come up to the Tribunal, the Tribunal while remanding the matter had directed the appellant to deposit the amounts of Rs. 2,01,711/- and Rs. 67,327/- which had been deposited and are still with the department. In view of this, so far as these appeals are concerned, there is no necessity to require the pre-deposit of any further amount. As regards, the stay application No. E/S/1494/2012 in appeal No. E/1182/2012, prima facie it cannot be said that the appellant have a prima facie case as admittedly the verification regarding receipt of the goods covered by the invoices, on the basis of Cenvat credit had been taken, had not been done. - appellant directed to make pre deposit of 50%.
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2013 (6) TMI 505
Clandestine removal - issue of mis-classification and clearance of goods by availing wrong exemption is the matter involved in separate proceedings - manufacture of Garoil-A, B, C, D, E, F and L - Held that:- Even if the goods were wrongly classified, if they have been accounted for in RG-1 register, whether they can be seized on the presumption that they would also be cleared without payment of duty, may not be correct. Further, sample of goods was sent for testing and whether the dispute in technical in nature or there was a deliberate intention to evade duty, has to be considered. Under these circumstances and in view of the submission that the goods have been used for manufacture of other goods which were cleared on payment of duty, they have been entered in to RG-1 register in the first place, pre deposit waived - full stay granted.
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2013 (6) TMI 504
Levy of tax on opium - according to the assessee, cultivators are handing over the opium exclusively to the assessee i.e. Narcotic Department. So, there is no question of sale or levy of the tax, but the trade tax department has levied the tax as well as charged the interest. - held that:- Hon'ble Supreme Court has observed that the opium grown by the cultivators is taxable item to trade tax. - Decided against the assessee.
The opium is taxable item under the U.P. Trade Tax Act. Therefore, the impugned orders passed by the Tribunal are hereby set aside and the orders passed by the A.O. are hereby restored in the revisions in the question. Thus, the revisions filed by the department are allowed. - Decided in favor of assessee.
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2013 (6) TMI 503
Application for grant of registration u/s 12AA & exemption under Section 80G(5) denied - Held that:- CIT did not provide reasonable opportunity of hearing in this regard. The ITO (Tech.) has called the details from the assessee. The CIT examined these details only on 07.08.2012 and the order passed at Kanpur which itself appears that the assessee was not provided sufficient opportunity of hearing. The proviso of Section 12AA(1) provides that no order shall be passed unless the society has been given a reasonable opportunity of hearing.
Thus send back the issue before CIT to decide denovo, in accordance with law, after providing reasonable opportunity of hearing to the assessee - appeals of the assessee allowed for statistical purposes.
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