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Showing 441 to 460 of 590 Records
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2011 (10) TMI 254
Common Input - Appellants manufacturing the refined oil and hydrogenised vanaspati - By products soap stock arises - CENVAT claimed on Caustic Soda, Phosphoric Acid, Hydrogen - Soap Stock was further processed to make Acid oil and cleared under Notification No.115/75 at "NIL" rate - AO demanded reversal of credit 8% of the price of the exempted goods - Held -
In view of Priyanka Refineries Ltd (2009 - TMI - 76088 - CESTAT, BANGALORE), it was held that the acid oil manufactured out of such waste would definitely be not covered by the provisions of Rule 6(2). Decided in favour of assessee.
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2011 (10) TMI 253
Tax Deductible at Source - cable transmission - Payment made by Individuals to Contractors - assessee submitted that assessee is an individual and in the case of the assessee, the assessee is a person responsible for paying any sum to the contractor. The contractor is, therefore, payee. He has submitted that provisions of section 194 C (1) of the IT Act are applicable only in respect of contractor and the provisions of section 194 C (2) of the IT Act are applicable in respect of sub-contractor. He further submitted that the provisions of section 194 C (1) of the IT Act, as stood for the assessment year under appeal do not apply to the cases of individual. - Held That:- Where only two parties are involved than payment made by one to another cannot be refereed to be made to sub contractors and Individuals were included in purview of 194C from A/Y 06-07 only therefore no TDS is to be deducted on such payments. Decided in favour of assessee.
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2011 (10) TMI 252
Deemed Dividend - Assessee co. entered into lease agreement with Dalmiya Co. It advance Rs 3.20 crores to be adjusted against rent. - This agreement got annulled and a fresh agreement required security deposit of Rs. 3.80 crores to the assessee company. A shareholder of had 60% interest in Dalmiya Co. and 40% in assessee co. however assessee-company neither holds any share in M.L. Dalmiya & Co. Ltd. nor has any beneficial interest in the said company. AO treats Security deposits as deemed dividemd under 2(22)(e. Held - The facts are not in disputes and the AO had no objection with contention of assessee that donot halod any shares and beneficial interest. As per Asstt. Commissioner of Income Tax v. Bhaumik Colour (P.) Ltd. (2008 -TMI - 59371 - ITAT BOMBAY-E),
Deemed dividend can be assessed only in the hands of a person who is a shareholder of the lender company and not in the hands of a person other than a shareholder. Thus decided in favour of assessee.
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2011 (10) TMI 251
Credit on Services provided by GTA - Assessee on the basis of invoices of Transporter claimed the credit - Revenue contended in GTA services receipient is liable to pay tax and not the transporters - Held - Invoices/bills issued by the transporters mention some amount as service tax and also there are declarations that the service tax has been paid, no evidence in this regard, has been produced. Just on the basis of the declaration of the transporters on the consignment note/invoices /bills issued by them that the service tax has been paid, it cannot be assumed that the service tax liability had been discharged by the transporters. Decided against assessee.
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2011 (10) TMI 249
Can Joint Appeals be filed - Held - In view of Jayanti Metals & Allows Vs. Commissioner of Central Excise, Motiar Seikh Vs. Commissioner of Customs joint appeal filed by the firm and its partner can be accepted by the Tribunal. Case was remanded back to Commissioner (Appeals) to decide it on merits.
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2011 (10) TMI 243
Date of Service - Order passed on 28.09.2010 - Door locked - Affixture on 11.10.2010 - Intimation received 11.03.2010 - Held - Recordings do not disclose appellant has deliberately avoided the service of the order nor said para discloses malafide of the appellant in that regard. In absence of these two intentions, the appellant deserves to be heard by the appellate authority again as to whether discretion under section 85 (3) of the Finance Act 1994 is exercisable by him. Appeal remanded back.
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2011 (10) TMI 242
Demand - Amount paid on oral instructions of audit party - Business closed - show cause issued - Assessee contended no written communication was given to them explaining the method followed by the revenue to demand the service tax - Held - Case referred back to original adjudicating authority.
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2011 (10) TMI 240
Conversion of land into Stock in Trade - Ao is of opinion that no business of real estate development actually carried on by the assessee - Held that:- Assessee took number of steps such as passing special resolution to commence the said business - redevelopment of the land owned by the assessee company, taking such steps makes land fit for redevelopment. - we are of the view that the business of real estate development was duly carried on by the assessee and the conversion of its property by the assessee into stock in trade of the said business as per the resolution passed by the Board of Directors on 29th May, 2004 was as per the provisions of section 45(2). Computation of profit on conversion - held that:- The profit or gains arising from the transfer by way of such conversion thus was chargeable to tax as the income of the assessee under the head "Capital Gains" of the year under consideration since the said stock in trade was admittedly sold by him in that year. - AO directed to recompute the capital gain by adopting the fair market value of the said property on the date of such conversion as full value of the consideration received or accruing as a result of transfer of the capital asset.
Payment for change of user of land from Industrial to Commercial - Business Expenditure or Cost of Cost of Improvement - Since the expenditure was incurred prior to to date of conversion of land into stock in trade therefore it shall be allowed as Cost of Improvement.
Set off of unabsorbed depreciation against the income of the current year - Held - Since the business of the assessee as carried on in the earlier years had been discontinued and the same was not carried on in the current year, the claim of the assessee for set off of unabsorbed depreciation pertaining to earlier years cannot be allowed.
Interest payment by Assessee Co. to its Holding Co.- Held that:- the activity of closing down of earlier business had taken place in the earlier year and not in the year under consideration and its claim for deduction on account of interest paid to holding company, therefore, cannot be allowed in the year under consideration. - Decided against the assessee.
Loan taken from Holding Company and advancing it to group concerns - Assessee cannot be held to be in the business of finance or money lending - Net Income to be taxed under "Other Source". Set off of brought forward losses - assessee contended that he was entitled for set off of carried forward business losses against the said profit. In support of this contention, he relied on the decision of Hon'ble Supreme Court in the case of CIT v. Cocanada Radhaswami Bank Ltd. (1965 -TMI - 49308 - SUPREME Court). - held that:- the land undisputedly was the capital asset of the assessee and the profit arising from transfer of the said capital asset by conversion into stock in trade cannot be treated as in the nature of profits of business of the assessee as sought to be contended by the learned counsel for the assessee. It was only the profit arising from sale of stock in trade that could be treated as profits of the business of the assessee of real estate development to the extent of difference between the sale price and fair market value of the land on the date of conversion as already held by us and to that extent only the assessee would be entitled to claim the set off of carried forward business losses. - matter remanded back to AO with direction. Claim of interest on the ground that loan amount offered to be taxes u/s 41(2) as deemed income - held that:- disallowance made by the AO on account of interest and other expenses on the ground that the business in respect of which they had been incurred was not in existence in the year under consideration upheld.
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2011 (10) TMI 239
Income deemed to accrue or arise in India - Assessee imported software from USA - AO raised query for faliure to deduct TDS on payment - Assessee also entered into contract with Telecom department for execution of foreign agreement - Held that:- Even thougn the software was utilised in the execution of the contract by the assessee the payments made by the assessee cannot be integrated into the contract executed with the telecom Department. It was therefore held that the payments were made for supply of software which was utilised by the assessee and consequently the provisions of Section 9(1)(vi) of the Act read with the Double Taxation Avoidance Agreement between. India and USA was applicable. Decided against assessee.
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2011 (10) TMI 238
Deduction u/s 80-IB - in view of decision in the case of Liberty India v. CIT (2009 - TMI - 34471 - SUPREME COURT)- Duty draw back, cash assistance and income of the like are not eligible for deduction.
Tax Deduction at Source - nature of payment - Royalty or Technical Service - Held That:- Assessee was the manufacturer of Indian Made Foreign Liquor (IMFL) on behalf of others, as per the quality controls prescribed and supervised by them. However, the sales admittedly were effected in assessee's own name under assessee's own invoices and the sales were reflected in its Profit and Loss account as well. - None of the authorities below have verified the relevant clauses of the agreement, vis-à-vis the definition of "royalty" as given under the Act before coming to a conclusion that payments effected by the assessee to the concerned parties were indeed royalty. None of the authorities have also seen how the amounts were worked out and whether it could be considered as paid for any technical services. - The matter was set aside and was sent for fresh consideration by AO.
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2011 (10) TMI 235
Procurement of Excisable Goods at Concessional Rate of Duty - Held that:- When manufacturer could not use the subject goods for intended purpose the supplier is to bring back the goods and remove them at normal rate, it do not create any differential duty liability on supplier - Merely because the supplier has not brought back the goods to his factory to avoid transportation expenses but clears the same on payment of differential duty from the premises of the OEM themselves, it does not create an interest liability on the supplier of the goods. Decided in favour of assessee.
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2011 (10) TMI 230
TDS on Commission 94H - Assessee engaged in export - Commission reduced from Invoice value and no remittances made from India - held that:- foreign buyer is not bound to pay to the assessee the amount covered by the commission or discount at any future date. Right/Claim of the assessee in respect of the export sales was to receive only the net invoice amount and nothing more. There is nothing left over by way of balance to be treated as income accruing or arising to the assessee outside India by virtue of the impugned export sales. Decided in favour of assessee.
Dis-allowance of claim - A.O. made disallowance of 20% of the total expenses - assessee took the plea that all the books of account with papers etc. were drowned in disastrous flood that came in the city of Surat but could not produce any evidence on record. Therefore decision of CIT(A) was affirmed. - The assessee has failed to produce an iota of evidence to substantiate his claim of loss. - Decided against assesee.
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2011 (10) TMI 229
Re-assessment beyond a period of four years - assessee had made a claim of depreciation on account of an ETP system - a notice under Section 133(6) and third party clarified that – (i) No ETP was supplied at all; (ii) No invoice or bill had been issued or raised for the supply of the ETP; and (iii) No payments have been received from the assessee. - Shall be deemed to be valid ground for opening of assessment. - Decided against assessee.
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2011 (10) TMI 228
Classification of Services - Supply of labour, Decanting of Naptha, shifting of goods form one place to other places within the factory premises, assistance in maintenance job - "CARGO HANDLING" Services. - Held - Number of different activities are involved on the part of the appellants, which may fall under different heads. Case remanded back to original adjudicating authority for consideration of each and every activity separately.
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2011 (10) TMI 225
Demand - Appellant contended - Notification No. 6/2005-ST - Entitled to small scale exemption - consideration received should be treated as cum-tax value and the duty liability to be re-worked - Held - We direct the appellant to make a pre-deposit of differential Rs. 73,000/- within four weeks and report compliance thereafter the plea of the appellant will be considered.
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2011 (10) TMI 224
Waiver of Pre Depost of Duty Interest - Assessee pleaded no credit has been availed in respect of input used in manufacture of exempted goods - Held - Facts requires verification - order set aside after waiving pre-deposit of duty, interest and penalty and the matter is remanded to the adjudicating authority to decide afresh
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2011 (10) TMI 222
Service Tax Refund - Credited to Consumer Welfare Fund - Revenue contended amount has been included in the expenses and therefore the same has been passed on - appellants submitted that in this case, the appellant was receiver of service and not the provider. Therefore, the question of passing on the liability does not arise. - the amount was shown as capital work in progress (supported by CA certificate) - Held that:- one more opportunity may be given to them to show that the capital work in progress included the Service Tax amount paid by them. Case remanded back.
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2011 (10) TMI 220
Issues:
1. Stay petition dismissal due to lack of executable order requiring stay.
2. Forfeiture of re-credit facility by lower authorities.
3. Lack of Show Cause Notice and hearing by adjudicating authority.
4. Submission for fresh hearing by appellant.
5. Failure to utilize chance for producing evidence.
6. Appreciation of factual matrix regarding machinery installation and quantity manufactured.
7. Applicability of decision of Hon'ble High Court of Gujarat.
8. Remand of the matter back to original adjudicating authority for fresh decision.
Analysis:
1. The Stay Petition was dismissed as no executable order requiring stay was found. The appeal itself was taken up for disposal due to its narrow compass, as perusal of records revealed the forfeiture of re-credit facility by the lower authorities under Notification No. 39/2001. The appellant's grievance of lack of Show Cause Notice and hearing by the adjudicating authority was noted, despite the admission that the first appellate authority had provided a hearing, albeit without relevant case-law being presented.
2. The appellant expressed readiness to return to the adjudicating authority for a fresh hearing, emphasizing the need for appreciation of relevant facts. The Revenue submitted that the chance given to the appellant for producing evidence was not utilized, highlighting the issue of factual matrix regarding the installation of new machinery and the quantity manufactured from old and new machinery.
3. After careful consideration, it was observed that the main issue pertained to the appreciation of the factual matrix and the applicability of the decision of the Hon'ble High Court of Gujarat. Without expressing any opinion on the merits of the case, the Tribunal decided to remand the matter back to the original adjudicating authority for a fresh decision, emphasizing the need to follow the principles of natural justice.
4. The appeal was allowed by way of remand, with the matter being sent back to the adjudicating authority for a reevaluation of the issues at hand. The judgment concluded with the decision to remand the case for a fresh decision, ensuring that all options remained open for further consideration.
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2011 (10) TMI 218
Penalty - Assessee is a contractors for the construction of residential flats of welfare organization - Confusion arised regarding regarding the taxability on the projects involving non profit/welfare organization - assessee paid dues along with interest in due course - Held - levy of penalty cannot be justified.
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2011 (10) TMI 216
Valuation of Imported Goods - Held that:- there is no reference of contemporaneous higher prices of identical goods - importer failed to submit manufacturer's invoice or manufacturer's price cannot be held ground for enhancing the value unless the evidence to the contrary is shown.Decided in favour of assessee.
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