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Showing 461 to 480 of 1495 Records
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2016 (6) TMI 1036
Disallowance u/s 14A - Held that:- We find the Tribunal in assessee’s own case for A.Y. 2009-10 had restricted such disallowance to ₹ 76,951/- which includes ₹ 26,951/- towards Demat charges. Since the facts of the impugned assessment year are identical to the facts decided by the Tribunal in case of the assessee for different assessment years, therefore, respectfully following the decision of the Tribunal as well as the order of the AO for A.Yrs. 2005-06 and 2006-07, we restrict such disallowance to ₹ 50,000/-. We accordingly set aside the order of the CIT(A) and direct the AO to sustain addition of ₹ 50,000/- u/s. 14A.
Taxability of interest on Non Performing Assets - whether provisions of RBI Act cannot override the provision of Sec.145 of I.T ACT? - Held that:- We find the issue of taxability of interest on Non Performing Assets has been decided in favour of the assessee by the order of the Tribunal in assessee’s own case for A.Y. 2007-08
Disallowance u/s.43B - Held that:- Disallowance u/s.43B cannot be made on account of delayed payment of Employees’ contribution to PF and ESI, if the same has been deposited before the due date of filing of the return u/s.139(1) of the I.T. Act. Since the assessee in the instant case has admittedly deposited the Employees’ contribution to PF before the due date of filing of the return u/s.139(1) of the I.T. Act, therefore, we do not find any infirmity in the order of the CIT(A) deleting the addition made by the AO
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2016 (6) TMI 1035
Penalty u/s 271(1)(c) - disallowance of expenditure under Section 40(a)(ia) - Held that:- The assessee had made a claim of deduction in the return of income. No finding has been recorded by the authorities below that the claim made by the assessee is malafide. It has been categorically recorded by the Tribunal after examining the entire material on record that the CIT(A) had rightly cancelled the penalty against the assessee. It was further recorded that the assessee made a bonafide claim of deduction of the expenditure and even though it was not acceptable to the revenue would not lead to the conclusion that the assessee had concealed the particulars of income or filed inaccurate particulars of income.
In CIT vs. Reliance Petroproducts (P) Limited, (2010 (3) TMI 80 - SUPREME COURT ) held that under section 271(1)(c) of the Act, there has to be concealment of income of the assessee or the assessee must have furnished inaccurate particulars of his income. In the present case, the claim made by the assessee has not been shown to be suffering from any of these conditions. In the absence of any finding recorded by the CIT(A) or the Tribunal with regard to the claim of the assessee that it was malafide, there is no error in cancelling the penalty imposed by the Assessing Officer. - Decided against revenue
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2016 (6) TMI 1034
Condonation of delay of 223 days in filing the appeal before the Commissioner of Service Tax (Appeals) - disallowance and demand under Rule 14 of the CENVAT Credit Rules, 2004, r/w. Section 73(1) of the Finance Act, 1994 - Held that:- Section 85 of the Finance Act, is similar to Section 128 of the Customs Act, 1962; Section 34(3) of the Arbitration and Conciliation Act, 1996; Section 125 of the Electricity Act, 2003; Section 35-G of the Central Excise Act, 1944 and the statutes referred to above, are self contained Acts and codes by themselves. The High Court or the Supreme Court, as the case may be, cannot direct the appellate authority to condone the delay, beyond the extended period of limitation. Courts have also interpreted that when the legislative intent is reflected in the provisions of the special laws, excluding the provisions of Limitation Act, then the authorities under the statute, cannot exercise powers to condone the delay. On the aspect of the Court, exercising powers under Article 226 of the Constitution of India, to condone the delay, we are of the view that the decision of this Court in Indian Coffee Worker's Co-operative Society Ltd.,'s [2002 (1) TMI 1302 - MADRAS HIGH COURT], squarely applies to the case on hand - Condonation of delay denied - Decided against the assessee.
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2016 (6) TMI 1033
Benefit of deduction contemplated under Section 80-IC - whether the deduction is available in case of a hotel which does not take steps towards ecological balance? - only reason for denying the benefits is that hotel is a stand-alone hotel and not a parcel of Ecotourism activity project - Held that:- Certainly, the mere procurement of a No Objection from the Pollution Control Board cannot be determinative of a question, whether the hotel fulfills the requirement under Section 80-IC of the Act. May be, it is not in dispute, in fact, according to Shri Pulak Raj Mullick that for all hotels of a particular type, satisfying a particular requirement, no objection is required from the Pollution Control Board. In this context, we bear in mind the argument of Shri H.M. Bhatia, that Pollution Control Board actually gives no objection consent to operate in the context of air and water Pollution. By no means, can this be the sole determinant of the question, as to whether the hotel is engaged in Ecotourism.
Therefore, necessarily the order passed by the Tribunal cannot be sustained. The receipt of the subsidy cannot be a hurdle in our taking the view, which we are taking as we are called upon to decide the actual scope of the provision in this appeal. While we do not discount the fact that subsidy may have been given the actual interpretation of the provision is a task, which we cannot abdicate.
The answer to the substantial question of law no.1 is given in favour of the revenue/appellant by holding that merely because a No Objection Certificate has been obtained from the Pollution Control Board, the conditions under Section 80-IC will not be fulfilled. - Decided against assessee
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2016 (6) TMI 1032
Bogus purchases - whether the assessee failed to establish the genuineness of the purchases from JKDPL as claimed by it? - Held that:- We have enquired of Mr.Biswas and from his submission we understand that the purchase bills of less than ₹ 20,000/- were not produced. The payments, according to him, were made all in cash. The stock register was not produced. The absence of these documents go to suggest that the purchase from JKDPL may be a bogus purchase. In any event the view taken by the assessing officer, CIT(A) and the learned Tribunal is not an impossible view. If the assessee chooses to withhold the best evidence and relies on the secondary evidence even assuming that any secondary piece of evidence was adduced then the presumption in law shall be against the assessee.
The question of any lapse on the part of the Tribunal in accepting the sales at a sum of ₹ 1,18,82,877/- did not arise because the aforesaid figure was furnished by the assessee himself. The assessee admits that the sale was for the aforesaid sum. What the assessee has done is that he tried to reduce the profit by showing artificial purchases. When the assessee was unable to show genuineness of those purchases the amount of profit is bound to be increased. - Decided against the assessee.
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2016 (6) TMI 1031
Amortization of premium on investment - Held that:- If the income of the assessee is deductible under section 80P, then whether the income has been reduced by the amortization or not becomes only a question of academic interest which does not involve any effect on the Revenue. There has been no loss of revenue. In such a case, insisting upon refusing to allow the amortization would result in insisting upon following a practice, contrary to the circular issued by the Reserve Bank of India which is not desirable.
For the aforesaid reasons, we are of the opinion that the amortization may be permitted so long as the deduction is available to the assessee under section 80P.
The question formulated at the time of admission of the appeal, is as follows :
“Whether the Income-tax Appellate Tribunal has substantially erred in law in holding that the amortization of premium on investment of ₹ 5,60,614/- is capital expenditure ?
The question is already answered by our discussion made above in favour of the assessee.
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2016 (6) TMI 1030
Interest paid to the partners disallowance - whether there is no specific provision for claiming interest paid to the partners on their capital against the income from house property? - Held that:- The question whether the business has been closed permanently or there was any intention of resumption of the business is essentially a question of fact and that has to be decided only on the basis of documentary evidence and such other evidences which may be adduced. Similarly, whether interest was authorised by the Partnership Deed is also a question, which was never considered by any of the statutory authorities.
At the same time we find some substance in the submission that the income derived by the assessee by letting out the godown may be treated as a business income. In that view of the matter, the matter is remanded to the Assessing Officer. He will consider the questions (a) whether the income can be treated as an income arising out of business; and (b) whether the payment of interest to the partners can be allowed as a permissible deduction. He will decide these questions, after taking such evidence as the assessee may adduce, in accordance with law.
The questions formulated at the time of admission of appeal have now become redundant and they need not be answered.
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2016 (6) TMI 1029
Interest on delayed payment of interest - Held that:- Considering the decision of the Honble the Supreme Court in the case of Gujarat Fluoro Chemicals (2013 (10) TMI 117 - SUPREME COURT ), the question, which is raised in the present appeals is required to be answered in favour of the revenue wherein it is held that the Legislature inserted Section 244A to the Act which provides for interest on refunds under various contingencies and that it is only that interest provided for under the statute which may be claimed by an assessee from the Revenue and no other interest on such statutory interest. - Decided against assessee
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2016 (6) TMI 1028
Reopening of assessment - non deduction of TDS - Held that:- The issue with regard to tax deducted at source was raised for the purpose of scrutiny. The assessee had replied thereto. The scrutiny order had proceeded on a basis. Therefore, in such fact scenario, it cannot be said that the assessee is guilty of not disclosing fully and truly all material facts necessary for its assessment in respect of the assessment year.
Thus the pre-condition for assumption of jurisdiction under the first proviso of Section 147 of the Income Tax Act, 1961, has not been satisfied for the purpose of issuance of a notice under Section 148 of the Income Tax Act, 1961. - Decided in favour of assessee
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2016 (6) TMI 1027
Disallowance of payment of luxury tax - CIT (A) deleted the disallowance which was upheld by the learned Tribunal - Held that:- Both the CIT(A) and the learned Tribunal were of the opinion that payment of tax made in the relevant assessment year or before the filing of return for the relevant assessment year was deductible under section 43B irrespective of the year in which the liability might have been incurred. Correctness of the aforesaid view has not been questioned in this appeal. We, as such, find no merit in the appeal, which is, accordingly, dismissed. - Decided against revenue
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2016 (6) TMI 1026
Liability of interest - principle business of the assessee - whether the Appellant is a credit institution under the provisions of Interest Tax Act and further liable to pay tax on chargeable interest earned by it ? - Held that:- Interest income in the three years is ₹ 14,97,441/-, Rs, 11,15,533 and ₹ 4,46,972/- whereas the service charges are only ₹ 5,40,132/-, ₹ 3,95,405/- and ₹ 2,95,098/-. From the balance sheet it is clear that the assessee had given ₹ 89,95,449/- towards unsecured loan. Therefore, in view of clause (v) of Section 2 (5B) of the Interest Act, the main activity of the assessee is to provide loan and main source of its income is interest. In view of all these, the questions of law framed for our consideration are required to be answered against the assessee and in favour of the department.
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2016 (6) TMI 1025
Reopening of assessment - Claim of bad debts u/s 36 (1) (vii) - Held that:- It was only after such detailed, minute scrutiny that the Assessing Officer, in the order of assessment, had made partial disallowance of the petitioner's claim of deduction of bad and doubtful debts. For all these reasons, therefore, the Assessing Officer cannot be permitted to reopen the assessment, on this very ground, since any such reopening, would be based on mere change of opinion.
Deduction of the provision of sales return claimed - Held that:- Assessing Officer was completely against the principle of taxing these receipts. The Audit Party was of the opinion that the deduction for provision of sale return was claimed for liability which had not yet arisen nor ascertained. The Assessing Officer was steadfast in his belief that the liability had accrued and it was also ascertained.
Under the circumstances, as per the settled law, Notice for reopening could not have been issued. It was not the belief of the Assessing Officer that income had escaped assessment. In fact, he was compelled to go against his own legal belief and issue notice, which was wholly impermissible under law. In fact, the spirited defence put forward by the Assessing Officer before the Audit Party gives credence to the petitioner's contention that his entire claim was minutely examined by the Assessing Officer during the original assessment proceedings. - Decided in favour of assessee
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2016 (6) TMI 1024
Additions u/s 68 - Undisclosed Cash credits - Burden of proof - Held that:- All the aforesaid 23 persons, except Shri Kailashbhai Tulsibhai Patel, from whom deposits were received are the income tax assessees. They are having PAN numbers. The amounts have been received through the banking channels. Copies of accounts of each depositor were duly filed. The assessee has duly explained in respect of each of the depositors and the circumstances under which deposits were received by the assessee. The deposited money represents the amounts towards booking received initially through M/s.Siddharth Corporation along with which the assessee has engaged in joint venture of developing the project on the land which was allotted from Surat Municipal Corporation. This is an admitted fact that the assessee has not carried out any business during the year under consideration. No evidence on record has been brought that the assessee had earned income during the year.
It is rightly found by the tribunal that the assessee has duly discharged its burden of proof. In the case of Deputy Commissioner of Income Tax v. Rohini Builders reported in [2001 (3) TMI 9 - GUJARAT High Court ], amounts were received by the assessee by account payee cheques and initial burden of proving the credits was discharged. It is held that the assessee need not prove the source of the credits and the fact that the explanation was not satisfactory would not automatically result in deeming amounts as income of the assessee - Decided in favour of assessee
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2016 (6) TMI 1023
Deduction under Section 80 HHC on export profits arrived at on the basis of the export turnover and the total turnover exclusive of Excise duty and Sales-tax - Held that:- Issue is squarely covered by the decision of the Apex Court in the case of Commissioner of Income Tax v. Lakshmi Machine Works reported in [2007 (4) TMI 202 - SUPREME Court ]
Sales-tax incentive - revenue or capital receipt - Held that:- he issues involved in these appeals are squarely covered by the decisions of this Court in Commissioner of Incometax v. Birla VXL Ltd. reported in (2013 (7) TMI 655 - GUJARAT HIGH COURT ) and in Deputy Commissioner of Income-tax v. Munjal Auto Industries Ltd. reported in (2013 (10) TMI 650 - GUJARAT HIGH COURT) wherein held it can thus be straightaway seen that the benefit, though computed in terms of the Sales Tax liability in the hands of the recipient, the same was not mean to give any benefit on day-to-day functioning of the business, or for making the industry more profitable. The principle aim of the scheme was to cover the capital outlay already made by the assessee in undertaking special modernization of its existing industry . Therefore, the questions of law posed for our consideration in these appeals are answered in favour of the assessee
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2016 (6) TMI 1022
Scheme of Amalgamation - Held that:- The present Scheme of Amalgamation is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned and the same is hereby sanctioned.
Prayers in terms of paragraph 16(a) of the Company Petitions no. 117, 118 and 119 of 2016 for the petitioner Companies are hereby granted.
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2016 (6) TMI 1021
Scheme of capital reduction of the Company - Held that:- The present petition was admitted by this Court on 28th March 2016 and the same was ordered to be advertised in “Indian Express”, English daily and “Jaihind” Gujarati daily, both Ahmedabad editions. The same direction has been complied with by the company and the notice of the petition has been duly advertised in the aforesaid newspapers 6th April 2016. The same is confirmed by affidavit dated 11th April 2016. Pursuant to the said advertisement no one has come forward to raise any objections opposing the sanction to the proposed capital reduction. The said fact has been confirmed by the additional affidavit dated 16th June 2016 placed on record today.
Having perused the Petition and more particularly the reasons given in support of the proposed reduction, in my view there is no reason not to confirm the proposed action of the Petitioner to reduce its capital. The said proposal does not prejudicially affect anyone. Accordingly the resolution dated 18th March 2016 is hereby confirmed.
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2016 (6) TMI 1020
Demand of duty on operational loss in excess of 0.5% - permissible limit - business of refining and marketing of Petroleum products - difference between physical stock and the book sock is called operational loss. - Held that:- It can be seen that there is no upper limit fixed for operational losses. In case it is higher that 0.5% or 1% the Board has to closely scrutinize the case and satisfy themselves. The department has not conducted any such scrutiny with regard to the operational losses. Again, they have no case that products were removed clandestinely. The operational losses incurred having been disclosed in RT-12 returns the department ought to have conducted periodical verification and satisfied themselves before raising a demand.
It is revealed that respondents were disclosing their operational losses in RT-12 returns. In such circumstances, it cannot be said that respondent is guilty of commission of any deliberate act/omission to evade payment of duty. The respondent being a Government of India undertaking, there cannot be any malafide intention to evade payment of duty.
The department has failed to establish that the operational loss claimed by respondent is not due to natural causes - No demand - Decided against the revenue.
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2016 (6) TMI 1019
Valuation - inclusion of the value of ECP while discharging the duty liability on RMPU - manufacture of Roof Mounted Package units (RMPU) and Electric Control Panels (ECP) for supply to the Indian Railways for air-conditioning the railway coaches - Held that:- The point for decision is whether or not to add the value of ECP in the value of RMPU for discharging duty liability. It is an admitted fact that RMPU is an air-conditioning machine falling under heading 8415 and ECP is an Electric Control Panel falling under Heading 8537. Merely because, these two items were designed for a combined working after installing them on the railway coaches does not automatically mean the value of one should be added in the other for central excise purpose. - Demand set aside - Decided in favor of assessee.
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2016 (6) TMI 1018
Valuation - Job work - Department took the view that since the goods were cleared to the work sites where the appellant had undertaken the Supply and Apply contracts, there is no sale involved in these clearances, therefore the valuations adopted should have been under Rule 11 of the said Valuation Rules. - Hence the value could be arrived by deducting the expenses incurred on application of paints (labour charges) from the contract price.
Held that:- The value adopted by the appellants under Rule 8 of the Central Excise (Determination of price of Excisable goods) Rules, 2000 was not in order and that since the application of paint contains labour costs, the assessable value is to be determined under Rule 11 only after deduction of the value of labour component from the total value for supply and apply.
With regard to the appellant’s other contention that there is a profit component for the apply portion, for reasons discussed supra, we uphold the lower authority s conclusion that since the sale of product viz- paint is linked to the application part of the paint at the customer's site, the application is in relation to the goods and therefore, except the value of the labour component for application no other component can be deductible from the sale value for arriving at assessable value.
Demand alongwith interest confirmed - penalty u.s 11AC waived - Decided partly in favor of assessee.
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2016 (6) TMI 1017
Demand of excise duty - bonafide belief that manufacture of threaded roof bolts and nuts are not liable to duty of excise - exclusion of bought out items - manufacturing of threaded roof bolts and nuts - levy of penalty - Held that:- We find that the contention of the appellant that CENVAT credit has to be allowed on inputs and that bought out items have to be excluded from the demand raised is reasonable and acceptable. The credit admissible on inputs and value of bought out items has to be computed in order to determine the duty payable by appellants.
Commissioner (Appeals) in an identical issue had held that the activity of making roof bolts did not amount to manufacture. Taking into these aspects and that the issue was an interpretational one, we hold that imposing penalty on appellants is unwarranted. Therefore the equal penalty imposed under Section 11AC of Central Excise Act, 1944 and the penalty of ₹ 10 lakhs imposed for not taking registration cannot sustain.
While confirming the demand of duty with interest, penalty set aside. - Decided partly in favor of assessee.
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