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Showing 461 to 480 of 1666 Records
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2017 (10) TMI 1207
Allowability of claim of deduction under section 80IAB - Held that:- We find that the issue of allowability of deduction under section 80IAB on similar set of facts and reasoning was prevalent in the assessment years 2008-09 and 2009-10, wherein the Tribunal after threadbare analysis of the provisions of the Act as well as the material placed on record, has allowed the deduction. If such deduction under section 80IAB has been allowed in initial years and there is no change in the material facts in subsequent years including the year under consideration, ostensibly then, as a matter of judicial precedence, no different view or stand can be taken. This proposition is well settled by the Hon'ble Delhi High Court in the case of CIT vs. International Tractors Limited reported in [2017 (7) TMI 822 - DELHI HIGH COURT] wherein in the context of allowability of deduction under section 80IA, the Hon'ble High Court laid down that, where assessee industrial undertaking had fulfilled the eligibility condition to claim deduction under section 80IA in the initial year, then the benefit of deduction would be extended for next 10 years irrespective of whether after initial year there was an expansion of industrial undertaking by increased investment in plant & machinery that have taken it outside ambit and scope of that provision.
Here in this case, not only in the initial assessment year but also in subsequent assessment year also, the similar issue of claim of deduction under section 80IAB has been discussed and analysed in detail and thereafter the said claim has been allowed in third and fourth year, therefore, the said deduction now cannot be disallowed on same set of facts. If the Revenue is aggrieved by the order of the Tribunal in earlier years, the right recourse would be to approach the higher judicial forum, that is, Hon’ble High Court under section 260A - Decided against revenue
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2017 (10) TMI 1206
Disallowance of amortization of premium on leasehold land - Held that:- As decided in assessee in own case for previous AY the assessee made substantial savings in monthly rent for a period of 39 years by expending these amounts. The saving in expenditure was a saving in revenue expenditure in the form of rent. Whatever substitutes for revenue expenditure should normally be considered as revenue expenditure. Moreover, assessee in the present case did not get any capital asset by spending the said amounts. The assessee, therefore, could not have claimed any depreciation. Looking to the nature of the advantage which the assessee obtained in a commercial sense, the expenditure appears to be revenue expenditure. - Decided in favour of assessee.
Disallowance u/s. 14A read with Rule 8D. - Held that:- As decided in assessee in own case for A.Y 2004-05 & 2005-06 addition need to be deleted.- Decided in favour of assessee.
Calculating the book profit under section 115JB and disallowance under section 14A - Held that:- Recently the Special Bench of Delhi Tribunal in ACIT Vs. Vireet Investment Pvt. Ltd.[2017 (6) TMI 1124 - ITAT DELHI] held that computation under Clause-(f) of Explanation-1 to section 115JB(2) of the Act is to be made without resorting to computation as contemplated u/s 14A r.w. Rule 8D of the Act. We may note that lower authority was not having the benefit of decision of Special Bench while passing the order impugned in the present appeal.
Income from Oil Bonds to be taxed as Business Income - Held that:- Considering the decision of Co-ordinate Bench in assessee’s own case wherein the similar ground of appeal was restored to the file of CIT(A), hence, keeping in view, the principle of consistency, this ground of appeal is also restored to the file of ld. CIT(A) to decide it afresh, with similar directions. In the result, this ground of appeal is allowed for statistical purpose.
Contribution to Rajiv Gandhi Institute of Petroleum Technology - Held that:- The contribution was made by assessee as per the directive of Ministry of Petroleum and Natural Gas. Rajiv Gandhi Institute of Petroleum Technology is an organization set up by Government of India for promoting quality and excellence in education and research in the area of Petroleum and Hydrocarbon. The Institute is providing education relating to the research leading to award of Bachelors, Master and Doctoral degree and Engineering Technology, Management, Science and Arts in the area of Petroleum and Hydrocarbon besides other innovative research and development for the benefit of Oil, Gas and Petrochemical Industry. The receipt of contribution placed by assessee contains the reference of certificate of exemption under section 80G, granted to Rajiv Gandhi Institute of Petroleum Technology vide letter no. 58-59/130/19/2006-07/IT/A-A-1/Luck/126/121. The assessee has already declared income for the AY under consideration, the assessee has contributed ₹ 1.55 Crore only to the said institute. We therefore direct the AO to allowed the deduction of the said contribution under section 80G
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2017 (10) TMI 1205
Unexplained unaccounted investment of the assessee - diamonds found from the possession of one, Shri Sunil Bhari at the Airport for a sum of ₹ 8,38,25,960/- treated as unexplained investment in the hands of the assessee - proceedings initiated under section 153C - Held that:- The entire diamonds found from the possession of the person cannot be assessed as undisclosed investments in the hands of the assessee. This factum of assessment order in the case of two companies passed u/s 153C clearly vitiates the stand of the Revenue and clinches the issue in favour of the assessee. Thus, we do not find any reason to sustain the addition on account of diamonds intercepted and found from the possession of the person at the Airport in the hands of the assessee. In any case, the ld. CIT (A) has discussed this issue threadbare and have come to a definite conclusion that the addition cannot be made in the hands of the assessee and such a finding of fact cannot be deviated from unless there is some other corroborative material to rebut each and every finding as have been incorporated by the ld. CIT (A) after appreciating the entire facts and material on record. Accordingly, the order of the ld. CIT (A) is confirmed and the grounds raised by the Revenue are dismissed.
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2017 (10) TMI 1204
Penalty u/s 112(a) of the CA, 1962 - DEPB Scrips obtained fraudulently - Held that: - if circumstances establish that there is high degree of probability that a prudent man ought to act on the supposition that there was design to obtain DEPB scrips without any export and such scrips sold for duty free import in contravention of the law or abetting to achieve such ill object, such act against public Revenue calls for penal consequence to curb such mischief.
The term fraud within the meaning of these penal provisions is wide enough to take into its fold any one or series of acts committed. Such act or acts when demonstrate to be reasonably proximate to the clearance of imports duty free on the basis of the DEPB scrips fraudulently obtained against false documents filed before DGFT, a trader of such scrips has to face adverse consequence of law - appellant fails to succeed in his appeal having acted malafide causing detriment to the interest of public revenue. Ill will of appellants came to record. Pre-ponderance of probability is in favour of Revenue and lends credence to its case.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1203
Interest on delayed refund - Section 27A of the Customs Act, 1962 - Held that: - the appellant/applicant herein are entitled to interest, on the amount deposited, under the provisions of Section 129E, read with 129EE of the Customs Act, 1962 @ 6% per annum, is hereby allowed, for the period from the date of filing of the appeal till the date of grant of refund - application disposed off.
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2017 (10) TMI 1202
Refund of SAD - N/N. 102/2007-CUS dtd 14.9.2007 - imported goods sold in Coil or sheet form - denial on the ground that appellant had sold the goods which are different from the goods imported - cash refund - Held that: - we could not find detailed bifurcation of the sales against ‘works contract’ and as such sale of coils or sheets, submitted earlier before lower authorities along with evidence, in support of their claim, now advanced before this forum. Therefore, to ascertain the clearance of imported coils or sheets as such against invoices, the matter needs to be remanded to the Adjudicating Authority. It is made clear that the appellant would not be entitled to refund of the 4% SAD paid, when such supplies were against works contract for installation of the roofing material made out of imported goods in the premises of the customers/buyers.
In the event the amount of SAD was paid by using DEPB scrip at the time of its import, refund could be allowed in cash.
Appeal allowed by way of remand.
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2017 (10) TMI 1201
Principles of Natural Justice - even though the second test report dated 03.01.2007 was against the appellant, however, a copy of the same was neither handed over to them nor given a chance to make their submission on the said test report, and the assessment order was passed by the adjudicating authority relying the said test report - Held that: - the second test report dated 03.01.2007 has been relied upon by the adjudicating authority in denying the benefit of the Notification observing that the ash content of the imported coal is more than 12%. Even though the said test report is in agreement with the earlier test report, however, the appellant ought to have been given a chance to advance their case on the said test report before the assessment was finalized by the adjudicating authority relying the said report.
The matter is remanded to the adjudicating authority to decide the case afresh - appeal allowed by way of remand.
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2017 (10) TMI 1200
Classification of goods - import of old and used vessels for breaking purpose - restricted item - classifiable under CTH 89 08 or otherwise? - whether the Marine Gas Oil imported inside the fuel tanks of vessels which are imported for breaking is subject to ITC restrictions? - Held that: - the issue is no longer res integra and is squarely covered by the decision of this Tribunal in the case of A.G. Enterprise [2014 (8) TMI 44 - CESTAT AHMEDABAD], where it was held that as the imports under ITC(HS) 89.08 are free without any restrictions, therefore, such MGO/HSD contained in the vessels brought in for breaking up, cannot be held as liable for confiscation - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1199
Violation of import conditions - demand on the ground that the steel slabs under Target Plus licences were diverted in the open market by the Appellant and were not used for the intended purposes i.e. further manufacturing - Held that: - even though allegation of diversion of goods has been made against the Appellant, but no investigation has been made as to where the goods were cleared or who are the buyers. None of the evidence which can show the diversion of goods has been brought on record. Though the non maintenance of job work record and transfer of payment made by Appellant to M/s AEL back to M/s MIL has been alleged, but the charges of diversion of goods cannot be substantiated on this ground alone.
At the one hand, the allegation is made that the licence was sold by the Appellant and on the other hand, it has been alleged that the goods were diverted, which shows that the allegations against Appellant are themselves contradictory. No evidence has been adduced as to how the alleged diversion of imported goods took place and how the consideration for such alleged diversion was received - in absence of any evidence of diversion of imported goods or dispute regarding the identity of finished goods manufactured from such imported goods, the demand against the Appellant cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1198
Sale of liquor - Duty free shop - public notice no. 5/2006 - it was alleged that appellant have made sales of liquor from the stock of duty free imports in contravention of various conditions which are required to be adhered to by M/s. Alpha as a duty free shop. Such goods are to be considered as cleared from the bonded warehouse in contravention of the conditions in which goods were allowed to be stored in the bonded warehouse - section 72 (1)(a) of the Customs Act - confiscation - redemption fine - penalty.
Held that: - The decision of the Hon’ble High Court of Karnataka in the case of Flemingo Duty Free Shops Pvt. Ltd. [2009 (7) TMI 161 - HIGH COURT OF KARNATAKA AT BANGALORE], discussed by the Adjudicating Authority has settled the issue that duty free shops are to be considered as bonded warehouses within the meaning of section 28 of the Customs Act as it is distinguishable.
M/s. Alpha were issued customs bonded warehouse license and permitted to operate duty free shops in various areas of the IGI airport New Delhi. The customs department has thoroughly investigated into the facts of M/s. Alpha in terms of the bond executed for the PBWL as well as conditions for grant of permission of running the DFS, which has been made with the strict condition that import of goods such as liquor, tobacco etc. were allowed duty free only for the purpose of selling the same to international passengers. They were also required to maintain detailed documentation by which the customs authorities could verify and ascertain whether the strict conditions prescribed for DFS / PBWL have been complied by M/s. Alpha. The scrutiny of the documents relating to DFS and PBWL have revealed that the appellant have completely disregarded the conditions under which licenses were granted to them. Bills were found to have been issued without mentioning required details like name, passport number, flight number, etc. of the passenger to whom liquor has been sold. The scrutiny has further revealed that the employees of the appellant have fraudulently recorded false details pertaining to the passenger to whom liquor has been sold. Fake passport numbers and wrong names were found to have been routinely recorded. Many of the passport numbers, upon verification with regional passport office, were found to be bogus. The names of passengers recorded were found to have never travelled in international flights.
The statements recorded from various functionaries of M/s. Alpha have categorically established that such falsification of record was systematically carried out for diverting duty free imported liquor to domestic passengers in complete disregard of the conditions under which PBWL as well as DFS licenses were issued to M/s. Alpha. The well designed fraud committed against Revenue came to light only with the detailed investigations undertaken.
M/s. Alpha were granted PBWL as well as permission to operate DFS. The investigation has revealed that through the action of the employees of M/s. Alpha, liquor has been sold to unauthorised passengers in clear violation of the terms of the bond executed. The acts of the employees have been done in their official capacity and are binding on the employer who cannot escape the vicarious responsibility. The duty free imported liquor, which had been warehoused, was found to be removed in contravention of the warehousing bonds. Consequently, the customs duty is required to be paid in terms of section 72 (1)(a). The goods cleared are also liable for confiscation. But, since the goods were not seized by the department no redemption fine can be imposed. However, the appellant will be liable for levy of penalties. The various employees of M/s. Alpha are also liable for penalty u/s 117.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1197
Confiscation of scrap - redemption fine - penalty - Held that: - The appellant have not challenged the fact of presence of prime HR sheets in the scrap. Neither have they felt aggrieved with the classification of the prime quality of sheets adopted by the lower authorities nor the higher valuation of the same. This leads to the inevitable fact that the prime sheets were sought to be imported in the guise of re-rollable scrap and there was mis-declaration, thus making the goods confiscable. As such, the confiscability of the goods in question is required to be upheld.
Redemption fine - penalty - Held that: - the appellant have contested the quantum of redemption fine on the ground that there was nothing to suggest that the said prime quality of sheets were sent by the foreign supplier was at their request. Appreciating the fact that no evidence stands placed by the Revenue to show that such presence of sheets was at the appellant's behest, redemption fine reduced to ₹ 35,000/- - Similarly, the penalty of ₹ 15,000/-, in the absence of any evidence to show the direct involvement of the appellant, is reduced to ₹ 7,500/-
Appeal allowed in part.
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2017 (10) TMI 1196
Removal of an auditor prior to expiry of his term - maintainability of the application filed by respondent no.2 before the RD on the ground of limitation - Held that:- It is the petitioner’s case that the extraordinary General Body meeting was called on 01.10.2015 and the General Body meeting was held on 26.10.2015, wherein a special resolution was passed to remove the petitioner as the auditor. However, the application in Form ADT-2 was made on 14.11.2015. This Court is of the view that the aforesaid controversy need not delay the matter and thus, it is directed that it would be open for the respondent no.2 company to file a fresh application notwithstanding the application filed earlier which is pending for consideration. The respondent no.2 may thereafter hold a General Body meeting for removal of petitioner, if the permission to do so is granted by the Central Government (the RD).
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2017 (10) TMI 1195
Scheme of amalgamation - whether a registered partnership firm, being a body corporate, can be treated as a “company” for the purpose of Sections 230-232 of the Companies Act, 2013? - Held that:- Here it is necessary to refer to Section 394(4)(b) of the Companies Act, 1956. The said Act specifically says that a “transferee company” does not include any company other than a company within the meaning of the said Act, but a “transferor company” includes any body corporate, whether a company within the meaning of the Act or not. Therefore, as per the said proviso, even in the old Act, a transferee company must be a company registered under the Companies Act, but a transferor company includes any body corporate. In view of the said proviso in the old Act, a transferor company need not be a company registered under the Companies Act, 1956. It is sufficient if it is a body corporate. There is no dispute about the fact that a partnership firm is a body corporate. Therefore, in view of Section 394(4)(b) of the Companies Act, 1956, there can be a scheme of amalgamation between a transferor company registered as a partnership firm and a transferee company registered under the Companies Act, 1956 but not vice-versa.
Applicant, being a registered partnership firm and a body corporate, is not a company within the meaning of the Companies Act, 2013 and, therefore, it cannot participate in the amalgamation proceedings that are initiated under the provisions of sections 230 to 232 of the Companies Act, 2013
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2017 (10) TMI 1194
FIR for offences punishable under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code - exercise of the jurisdiction under Section 482 to quash the FIR - Held that:- High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction.
The High Court has adverted to two significant circumstances. The first is that the appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. The second is that the appellants have criminal antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that the High Court observed that in a case involving extortion, forgery and conspiracy where all the appellants were acting as a team, it was not in the interest of society to quash the FIR on the ground that a settlement had been arrived at with the complainant.
We agree with the view of the High Court. The present case, as the allegations in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code.
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2017 (10) TMI 1193
Tax clearance certificate - petitioner was granted a national permit for a goods vehicle - Held that:- The petitioner has not sought for surrender of the national permit, since the permit itself had lapsed on and after 08.01.2017. Therefore, all that is required to be given to the petitioner is a tax clearance certificate.
Accordingly, this Writ Petition is allowed, the impugned order is set aside with the direction to the respondent to consider the petitioner's application for the issue of tax clearance certificate and pass appropriate orders in this regard within a period of eight weeks from the date of receipt of a copy of this order.
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2017 (10) TMI 1192
Repairs and maintenance of software - levy of service tax - whether classifiable under repairs and maintenance of goods or otherwise? - CBEC circular no. 70/19/03-ST dated 17.12.2003 - Held that: - even CBEC was not sure about the liability of service tax on the said services during the period 09.07.2004 to 06.10.2005. The first circular approving the liability of service tax on the said activity was issued on 07.10.2005 and the circular prior to that clearly held that the said service is not taxable. In these circumstances, it cannot be said that the appellants could not have had a bonafide belief that the said service was not taxable.
Extended period of limitation - penalty - Held that: - The show-cause notice and impugned order does not give any specific grounds as to why extended period can be invoked in such circumstances. In these circumstances, the extended period of limitation cannot be invoked and consequently the demand of duty and penalty cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1191
Enhancement of penalties - section u/s 77 and 78 of FA - Held that: - the argument put forth by the ld. Commissioner (Appeals) as regards the penalty which has also been enhanced by Section 78 seems to be no ground as there is enough reasoning given by the first appellate authority. Accordingly, the enhancement of penalty to ₹ 2000/- under section 78 seems to be in consonance with the law.
As regards the penalty imposed under Section 77(1) of the Finance Act, 1994, it is undisputed fact that the entire service tax demand which has arisen in the Appeal is ₹ 3604/- during the relevant period - the first appellate authority in the case in hand has not considered the provision as it was on the day of adjudication, order was passed. Be that as it may, I find that imposition of penalty of ₹ 2,49,400/- under the provision of Section 77 from the demand of ₹ 3604/- will be irrational and unacceptable.
Appeal allowed in part.
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2017 (10) TMI 1190
Renting of immovable property service - Revenue is of the view that as the appellants have collectively and jointly let out the property and total rent received on the property is more than the threshold limit as per the N/N. 06/2005-ST dt. 01.03.2005, therefore, the appellants are liable to pay Service Tax under the category of Renting of Immovable Property Services.
Held that: - an identical issue came up before this Tribunal in the case of Anil Saini and Others Vs. CCE, Chandigarh-I [2017 (1) TMI 101 - CESTAT CHANDIGARH], where it was held that co-owners of the property cannot be considered as liable to pay Service Tax (jointly or severally) as the Revenue has identified the services provider and the service recipients for imposing the Service Tax liability which are individuals. Therefore, the Service Tax liability is not sustainable.
The demand of Service Tax against the appellants is not sustainable as the appellants are entitled to benefit of N/N. 06/2005-ST dt. 01.03.2005 - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1189
Management Consultant Service - non-payment of service tax - Held that: - it is difficult to appreciate that preparation of statistical report by the appellant could be construed as providing any service in connection with the management of the company, hence, would come under the scope of aforesaid definition of management consultant. Since, on merit the levy of service tax on the services provided by the Appellant cannot be sustainable, therefore, ancillary issues, namely, imposition of penalty, limitation etc., become move of academic, accordingly not dealt with - appeal allowed.
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2017 (10) TMI 1188
Levy of service tax - construction of drive way at the petrol pump constructed by them - Held that: - construction of drive way in the petrol pump is not taxable in view of the C.B.E.C. clarification dated 27/07/2005, wherein clarified that the benefit of drive way in commercial complex is to be allowed if the activity is recognized separately in the contract - the appellant is not liable to pay service tax for the construction of drive way.
Quantification of service tax - there has been error in calculation of the tax and the figures supplied by IOCL - Held that: - for the limited purpose of calculation of the gross amount taxable and the tax payable, the matter remanded to the adjudicating authority who shall hear the appellant and after perusing the evidence led before him and obtaining any information required as fit, will pass the reasoned order in accordance with law.
Appeal allowed in part and part matter on remand.
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