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Showing 481 to 500 of 782 Records
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2009 (2) TMI 422
Penalty- whether the Tribunal was justified in sustaining the penalty levied under section 271(1)(c) and confirmed in first appeal. Held that- the Tribunal was justified in sustaining the penalty levied on the ground that only a minimum amount was levied as penalty.
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2009 (2) TMI 420
Business Expenditure- The appellant-company is a manufacturer of Indian made foreign liquor. According to them, they are depending to a large extent on orders from the military canteen for the sale of its products. The company a liquor manufacturer, is banned from direct media and television advertising of its products. The military authorities on the other hand are debarred from directly accepting any free samples from a liquor manufacturer. As per the Canteen Stores Department Rules, the liquor required for any function are to be procured from the canteens only against actual payments. The company from the point of commercial expediency offers samples of its products at various military functions so that the personnel develop a taste for it and the company secures bigger orders from the Canteen Stores Department. The assessing officer disallow the sale promotion expenses on account of liquor supplied at the time of the Canteen stores department parties on the ground that it was clear entertainment of the customers. This was upheld by Commissioner (Appeals) and Tribunal. Held that- the amount spent by the unit towards purchase of that liquor was reimbursed by the assessee not to any individual but to the Army Unit itself which went into the coffer of the Government. There was no bar in taking such reimbursement as evidenced by receipt. Thus the amount spent by way of commercial expediency for promoting the assessee’s product. It was deductible. Thus allow the appeal.
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2009 (2) TMI 417
Exemption- whether the additional conveyance allowance granted by the LIC to Development Officers is exempt from tax under section 10(14) of the Income-tax Act, 1961? Held that- the respondent was eligible for exemption. However the Department was at liberty to establish and disallow exemption in case where the employer did not prove that the additional conveyance allowance was reimbursement of actual expenditure and it was not a perquisite which was outside the scope of section 10(14) of Act.
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2009 (2) TMI 412
Export-Special Deduction- The assessee was an exporter of silk and claimed special deduction under section 80HHC of the Act inter alia in respect of interest. The Tribunal held that the interest earned by the assessee on loans, interest from bank and the income on booking of cars and other income, the details of which were mentioned in the account was interest earned by assessee by investing the surplus funds and arose on account of business carried on by the assesseee and the business was authorized by clause 18 of the object clause of the memorandum and article of association of the assessee. Held that- there is no substantial question of law raised, thus appeal has dismissed.
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2009 (2) TMI 411
Exemption- The assessee was getting rent for the cashew factory building leased out to a firm of which the assessee was a partner. The question to be considered was whether leasing out of the factory buildings to a firm of which the assessee was a partner could be treated as occupation of building for the purpose of any business or profession carried out by such assessee. Held that- the building ceased to be eligible for exemption at the hands of the assessee when it was leased out on rent. Therefore, the assessee was not entitled to exemption for the leased factory building u/s 2(ea)(i)(3) of the Act.
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2009 (2) TMI 410
Refund - The return for the year 2005-06 filed by the petitioner declared total income of Rs. 46,41,070 while the assessment order in respect of the year assessed the income at Rs. 1,67,02,35,990 which was almost 350 times the returned income. On a writ petition stating that the order dated January 7, 2009, by the Commissioner directing the deposits of 50 percent. of the outstanding demand as per schedule laid down in the order was contrary to the circulars of the Department. Held that- CBDT Instruction No. 1222 specifically higher than the returned income, that is, twice the latter amount or more, then the collection of tax in dispute should be held in abeyance till the decision on appeal is taken. It was held in Soul v. Deputy CIT [2008 -TMI - 76546 - DELHI HIGH COURT) consequently, the operation of the order was to be stayed till the disposal of the writ petition. The natural consequence would be that any attachment order issued in pursuance of the order would not have any effect.
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2009 (2) TMI 406
Gift Tax- In this case father in law give the ornaments to his daughter in law. he submitted that transfer of ornaments was neither voluntary nor without consideration. Thus it is not gift and not liable to tax. Held that- in the light of the views taken by the Madhya Pradesh High Court is correct and the gift was made to the younger daughter in law of the assessee which had not been included in the category of taxable value. it was a voluntary transfer by the assessee to another person which would definitely fall within the definition of ‘gift’ as provided u/s 2(xii) of the Gift tax Act, 1958. Accordingly reference in favour of the Revenue and against the assessee.
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2009 (2) TMI 403
Production capacity based duty- M/s Jai Ambe Textiles were engaged in the processing of textile fabrics with the aid of power operated machinery including Hot Air Stenter. The Government of India introduced levy of Central Excise duty on the basis of Annual Production Capacity and appellants were covered by the scheme. A show cause notice proposing to include the length of the drying cylinders for the purpose of fixation of APC for the period from 16-12-1998 to 30-4-1999 and confiscation of seized fabric during the visit and penalties etc. Held that- We uphold the APC fixed for the year 1999-2000 by the Commissioner in the impugned order. The revision of APC fixed for the year 1998-1999 is set aside. Penalty of Rs.3,97,894/- and Rs.10,000/- imposed under Rule 96ZQ are also set aside in view of the fact that revision of APC has been set aside. The confiscation of 50,401 linear metres of processed manmade fabrics valid at Rs.7,56,015/- under sub rule 6 of Rules 96ZQ is upheld and the fine in lieu of confiscation of Rs.1,00,000/- imposed by Commissioner is also upheld. - Confiscation of land, building, plant and machinery is set aside. The appeal filed by the Revenue is allowed and the impugned order of the Commissioner (Appeals) dated 12-9-2003 is set aside and the matter is remanded to the Original Adjudicating Authority for a fresh decision in the light of our observations.
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2009 (2) TMI 400
Depreciation- The assessee is a registered firm engaged in purchase and sale of lime stone and transportation work on behalf of Kota Thermal Power Project The assessee-firm owned two trucks and claimed depreciation at the rate of 40 per cent. The Income Tax officer was of the view that the assessee was not engaged in the transportation business and, therefore, not entitled for higher rate of depreciation. The Assistant Commissioner allowed the assessee’s claim which was confirmed by the Tribunal. Held that- the Tribunal was not right in holding that the assessee was entitled to depreciation on truck at 40 percent, as against 30percent allowed by the Income Tax Officer.
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2009 (2) TMI 399
Business Expenditure- the assessee has claimed deduction of finance commission which was charged as expenditure in the profit and loss account of the assessee. The aforesaid deduction was claimed in the same year in which the hire purchase agreement was entered into by the assessee irrespective of the fact that actual payment was made even in the following years. The assessee had purchased trucks, trolleys, etc., under an agreement with the finance companies and, as per the agreement for hire purchase, the assessee was to make payment of the hire purchase amount and finance commission in instalments. As per the accounting system adopted by the assessee, the entire amount payable towards finance commission as per the hire purchase agreement was claimed in the assessment year in which such hire purchase agreement was entered into irrespective of the fact that the actual payment was even made in the following years. The issue raised by the Revenue is as to whether the entire amount towards finance commission can be deducted or can be claimed in the assessment year in which hire purchase agreement was entered into or the part of finance commission has to be shown for subsequent years in which actual payment was made. Held that- the department having permitted the assessee to claim the benefit of finance commission in the year in which hire purchase agreement was entered into, the same system was required to be continued for the assessment year 1981-82, and this agreement was allowed looking to the peculiar facts and circumstances of the case and the fact that the amount so claimed was not much higher. The assessee was entitled to deduction of the finance commission.
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2009 (2) TMI 394
Penalties- Assessee had filed an appeal before Commissioner (Appeals) after delay of 49 days beyond period of 90 days allowed in terms of proviso to section 85. in support of cause of delay, an affidavit of an employee of assessee was filed wherein said employee stated that due to some urgent personal work he could not attend office and during rearrangement of files, he found that order in original was not attended and, therefore said appeal was not filed within time. Commissioner (Appeals) dismissed appeal on the ground that assessee had not justified delay in filing appeal. whether Commissioner (Appeals) ought to have condoned delay of 49 days in filing appeal and disposed of appeals on merits as reason given in affidavit was convincing. Held-yes.
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2009 (2) TMI 391
Sub-Contractor- the appellant is a sub-contractor and the service tax for the services rendered by the appellant has already been paid by the main contractor. However, he submits that the Commissioner (Appeals) has rejected the appeal for their failure to make a pre-deposit of entire dues as per the stay order and their modification application has also been rejected. Held that- the Commissioner (Appeals) has not decided the case on merit, we remand the matter to the Commissioner (Appeals) to decide the case on merit, without insisting on any pre-deposit.
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2009 (2) TMI 390
Reassessment- Capital gains- An item of property belonging to the assessee was notified for acquisition on June 31, 1986. Possession was taken over on October 24, 1987, and the initial compensation was paid to the assessee on January 17, 1989. Even though the assessee filed income-tax return for the year 1988-89 the assessee did not include any income from capital gain. The Assessing Officer issued notice under section 147 and completed the assessment for the assessment year 1989-90. The assessee filed appeal against the assessment which was allowed by the commissioner of Income-tax (Appeals) holding that the amendment of the statute will not justify reopening of assessment under section 147. This order is confirmed by the Tribunal. Held that-(i) that the property transferred was not agricultural land thus claiming exemption on the ground that the property taken over was agricultural land and hence there was no liability for tax on capital gains.(ii) That section 147 was not controlled by the amendment that was applicable in the case. Since the assessee did not concede the income on capital gain either under the unamended provision or under the amended provision the recourse open to the Department was to bring to tax income escaping assessment u/s 147 which was not time barred to follow the law in force as on the date of initiation of proceeding.
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2009 (2) TMI 389
Special Deduction- The assessee is a co-operative society running a sugar factory. For the assessment year 1988-89, the assessee claimed expenditure including replacement of complete centrifugal machine unit, ECT crane unit and cane carrier including erection charges as maintenance expenditure. For the assessment years 1988-89, 1989-90 and 1990-91 the assessee claimed the benefit of section 80P(2) on interest earned from its members on advances/credit facilities. The Assessing Officer disallowed the above claims. The Commissioner of Income-tax (Appeals), upheld the Assessing Officer’s orders on both the issues. The Tribunal held that the interest earned from members of the assessee co-operative society on advances/credit facilities provided to them would be eligible for deduction under section 80P(2) (a) (i). The Tribunal further held that where the earlier centrifugal machine unit was demolished and a new unit installed in its place, and the ECT crane was brought in as a substitute of earlier manual machines, it is clearly a case of replacement, and accordingly allowed the appeal. held that- (i) the requisite details in order to claim exemption and the necessary proof that the co-operative society was engaged in carrying on any of the several businesses referred to in sub-section (2) of section 80P was not forthcoming. The matter was remanded to the Tribunal for reconsideration. (ii) that there was no material proof of any increase in the manufacturing capacity, the details regarding the production capacity remaining constant even after replacement of the machine unit. Thus, the matter was remanded to the Commissioner (Appeals) for reconsideration.
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2009 (2) TMI 382
Penalty- The appellant in this case has prayed for waiver of penalty submitting that tax due and interest, has been paid. In the grounds of appeal the appellant has also averred that burden of tax has been borne by the appellant. Ld. Commissioner (Appeals) has granted partial relief to the appellant in first appeal. Held that- the appellant has prayed for leniency submitting that the tax has been paid. Accordingly we allow the appeal waiving the penalty subject to verification of payment of tax.
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2009 (2) TMI 379
Refund of service tax- the issue arose in respect of cancelled tickets by the travel agent. The appellant was to get back the refund of Service Tax on the cancelled tickets. The ld. Commissioner (Appeals) was not able to examine the claim without evidence being adduced by the appellant before him. Therefore, the demand of Rs. 55,529 was confirmed. Held that- Representative engaged has not paid proper stamp duty on the authorisation. He is directed to deposit the same in the course of day before Registry. The order passed aforesaid shall only be operative upon deposit of court fee before the Registry, otherwise appeal shall stand dismissed and so also the stay application.
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2009 (2) TMI 376
Exemption- There was a piece of land belonging to the petitioner-school-asses see at village Dhorka which was sold to a private builder on the plea that it would be hit by industrial zone. However, the builder has built flats on that area. Held that- for the grant of exemption/approval under section 10(23C)(vi) of the Income Tax Act, 1961, the basic requirement of sub-clause (vi) of clause (23C) of section 10 is that the educational institution seeking exemption should be existing solely for the purpose of education and not for the purpose of profit. Here the emphasis is laid on the word “solely”. On the facts it could not be said that the petitioner society and the educational institution run by it were existing solely for the purpose of education and not for the purpose of profit. Thus the application of the petitioner is liable to be rejected.
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2009 (2) TMI 375
Demand and Penalty- The original authority had confirm the demand of service tax along with interest and penalties on the assessee on the ground there was short payment of service tax and education cess. He further held that so far as the assessee’s contention was concerned that there had been excess payment of service tax during April 2005 to September, 2005 and in October, 2005 and that the said excess payment was adjusted against the service tax payable from November, 2005 to March, 2006, the assessee had not made any claim in that regard to the department and it was only after the issue of the notice, that the above reason was given as defence for adjustment of the short payment. The Commissioner (Appeals) directed for pre-deposits of the entire service tax demand and 50 percent of the penalties imposed. In the light of the decision of A.C. Nielsen ORG. Marg (P.) Ltd. v. CCE, in which the tribunal held a contrary view. The rule 6(3) of the Service Tax Rules, 1994 provides for adjustment of tax paid in respect of taxable service not provided by an assessee towards its subsequent tax liability on returning the tax collected to the clients. However, in view of divergent views held in different decision of the Tribunal cited by the parties. It was appropriate and necessary that the Commissioner (Appeals) without insisting on any pre-deposits of the dues adjusted against the assessee.
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2009 (2) TMI 370
Re- view of the Order-in-Original- in this case the Commissioner directed filing an appeal before the lower Appellate Authority pursuant to re- view of the Order-in-Original. Held that-it is a wrong course of action and the lower Appellate Authority has correctly rejected the Appeal filed before him. As such, the impugned Order does not require any interference. Consequently, the Department’s Appeal is dismissed.
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2009 (2) TMI 369
Provide vehicle- the issue relates to levy of Service Tax on the amounts received for providing vehicles to various parties for their use. Held that- adjudicating authority has decided the issue without giving them a personal hearing. In view of this, we remand the matter to the original Authority for deciding the issue.
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9911796707
