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Showing 501 to 520 of 1051 Records
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2013 (1) TMI 559
Writ Of Certiorari - Petitioner challenges the Circular No.967/01/2013-CX dated 01.01.2013 and the consequential notice for recovery dated 09.01.2013 - Held that:- An appeal has been filed to the third respondent, the Commissioner of Customs (Appeals) on 22.12.2011 along with the stay application and no hearing has been granted so far. In the meanwhile, recovery notice has been issued on 09.01.2013 based on the impugned Circular dated 01.01.2013. despite filing of the stay application, the direction for recovery makes it mandatory for the authority to recover the amount within a period of 30 days after the filing of the appeal even if there is a stay application pending and has not been disposed of. The plea taken is that the proviso to section 129-E of the Customs Act does not specify any time limit. In such view of the matter, it is pleaded that the circular overreaches the provisions.
Direction to post the matter on 31.01.2013 & there will be an order of interim stay till then.
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2013 (1) TMI 558
Abatement of duty in case of non-production of goods - Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty), Rules, 2008 – Whether continuous non-production of excisable goods for 15 days should be during a calendar month - Assessee is engaged in manufacture of Gutkha - Duty on the basis of packing machine - Excisable item, under Chapter 24 - Department argued that 15 days continuous period of non-production which entitle the assessee to abatement has to be in a given calendar month
Held that:- The plea taken by department misconceived and is based on incorrect reading of Rule 10. Bare reading of the Rule shows, an assessee is entitled to abatement provided there has been no production in the factory for a continuous period of 15 days. The rule nowhere provides that continuous non-production of excisable goods should be during a given calendar month.
There was no production in the factory of the assessee for a continuous period of 36 days. Therefore, claim of the assessee for abatement is fully justified. In favour of assessee
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2013 (1) TMI 557
Waiver of Pre-deposit – Stay Petition - SSI exemption – Brand name of another - Notification No. 8/2003-C.E., dated 1-3-2003 – Trade and Merchandise Marks Act, 1958 - Trade Marks Act, 1999 - Trade mark was registered in the name of M/s. Mankoo International Industries in the year 2004 - Whereas the appellants have using this trade mark which belonged to their family since 1981 onwards
Held that:- Following the decision in case of BHALLA ENTERPRISES (2004 (9) TMI 109 - SUPREME COURT OF INDIA) that if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name.
As per Sections 33 and 34 of Trade and Merchandise Marks Act, 1958 and Sections 33 to 35 of Trade Marks Act, 1999 that registration of trade mark by someone would not entitle to that person to interfere with or restrain the use of identical trade mark by any person or provided the said person or his predecessor has continuously used their trade mark from a date prior to the registration of trade mark by the third party. The appellant has been using the trade mark ‘Mankoo’ continuously since 1981. Therefore, registration of trade mark ‘Mankoo’ in favour of M/s. Mankoo International Industries prima facie would not affect the right already vested in the appellant. Therefore appellant has been able to make a strong prima facie case. Waiver of condition of pre-deposit. Stay Granted.
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2013 (1) TMI 555
Denial of Cenvat credit - Capital goods as per Rule 2(a) of the Cenvat Credit Rules, 2004 - Non-Alloy Steel Bars - H.R.S.S. Plates - S.S. Plates - Steel doors Corrugated Roof Sheets – Used in their factory workshop for repair of machinery – Expended period of limitation – Penalty u/s 11AC
Held that:- Following the decision in case of HINDUSTAN ZINC LTD. (2006 (5) TMI 44 - HIGH COURT RAJASTHAN) that the appellants are entitled to avail Cenvat credit on Non-Alloy Steel Bars, H.R.S.S. Plates and S.S. Plates, which are being used for repair of machinery in their workshop. As these items were not used for constructing support structures, therefore CENVAT credit allowed in respect of these items. In favour of assessee
As regards Steel Doors and Corrugated Roof Sheets, the appellants failed to produce any supporting documents to prove that these items are being used in the workshop for repair of their machinery. As these items were not used for constructing support structures therefore, CENVAT credit on these items is denied. In favour of revenue
As this is an issue of interpretation as to whether the assessee are entitled to credit or not, therefore, extended period of limitation is not invokable. Therefore, demand is restricted to the normal period of limitation. As this is an issue of interpretation, no penalties were also warranted, therefore, penalty u/s 11AC is waived
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2013 (1) TMI 554
CENVAT Credit on the paint used on the floor of production hall to make it dust free and fire retardant - Held that:- The definition of input clearly includes "goods used as paint". The findings, that the paint used on the floor of production hall to make it dust free and fire retardant, is used for manufacture of the final product. The sensitivity and sophistication of the product i.e., Color Picture Tube (CPT) required dust free environment for its manufacture.
The finding, therefore, that the use of paint on the floor of production hall, is a finding of fact, which does not call for any interference - CENVAT claim allowed - in favour of assessee.
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2013 (1) TMI 553
Deduction u/s 80P(2)(a)(i) - respondent - assessee is a Cooperative Bank - Held that:- Reserve Bank of India had permitted the assessee - opposite party to continue to operate its banking activities. Thus, for all practical purposes, the assessee is entitled to claim deduction under Section 80P(2)(a)(i).
The banking activities carried out by the respondent - assessee cannot be termed to be illegal, contrary or in violation of any statutory provisions - in favour of assessee.
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2013 (1) TMI 552
Deduction u/s 80P(2)(a)(i) - respondent - assessee is a Cooperative Bank - Held that:- Reserve Bank of India had permitted the assessee - opposite party to continue to operate its banking activities. Thus, for all practical purposes, the assessee is entitled to claim deduction under Section 80P(2)(a)(i).
The banking activities carried out by the respondent - assessee cannot be termed to be illegal, contrary or in violation of any statutory provisions - in favour of assessee.
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2013 (1) TMI 551
Manufactur and sell of “kathha” and catechu - basic raw material “khair wood” is procured through auction purchase - the petitioner was enjoying the benefit of Section 4B of the U.P. Trade Tax Act - after 9.11.2000 the territory from which the “kathha” was being procured by the petitioner became the part of Uttarakhand - benefit of notification issued by the State of Uttarakhand on 26.12.2000 - Held that:- Notification dated 26.12.2000 states that such dealers who were getting the benefit under Section 4-B, now under U.P. Reorganisation Act, they would continue to get the concession against Form–C of Central Sales Tax Act, 1956, as the said sale will now be an inter-state sale.
Disallowance of concessional rate against Form-C as the purchase made by the petitioner is in an “open auction” which cannot be considered as an “inter-state” sale is not a factum of the sale which would define it as an inter-state sale but in order to bring a particular sale under the definition of inter-state sale is both a question of fact as well as law and what the Court has to see is the totality of circumstances and the fact that the goods which have been purchased in State “A” are actually being transported to State “B” which would make it an inter-state sale.
The ruling of the State of Bihar and another v. Tata Engineering & Locomotive Co. Ltd. (1970 (11) TMI 73 - SUPREME COURT OF INDIA) gives a wide meaning to the definition of inter-state sale. In this petition the petitioner in order to strengthen his argument has also annexed invoice bills which show that the Forest Development Corporation itself, from whom the “khair wood” was purchased, has prepared the invoice on the strength of which the goods were being transported to Uttar Pradesh and there was enough evidence to consider that it was an inter-state sale - writ petition succeeds. The petitioner is entitled to get the benefit of notification dated 26.12.2000 provided he gives enough evidence before the said authorities that the goods which he has purchased are to be consumed at its factory at Kotwali Road, Najibabad, District Bijnor (U.P.), which would make it an inter-state sale - in favour of assessee.
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2013 (1) TMI 550
Period of limitation - Presumption of service of Order - Delivery of the order - Receipt of order - Registered Post A.D.(RPAD) - Acknowledging the receipt of order - Evasion of duty - Assessee contended that dispatch of a document through Registered Post A.D. and purported service thereof by the postal authority with supporting document acknowledging the receipt, a presumption would arise of proper service of such document and such presumption would be rebuttable - Held that:- Entire issue is based on disputed questions of fact. Commissioner (Appeals) as well as the Tribunal held that the service of the order was complete. - Appeal dismissed.
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2013 (1) TMI 549
Writ Petition - Whether the CAG of India, has power and/or authority and/or jurisdiction to audit the accounts, service tax records or other documents of the petitioner company, which is not an undertaking of the Central Government or any State Government - Whether Rule 173(6)(c) of Central Excise Rules, 1944, which provides that Commissioner or the Comptroller and Auditor General of India would be entitled to undertake the audit of records of any assessee - The word “or” has to be read conjunctively or disjunctively in Rule 173(6)(c) - Special audit u/s 72A of the Finance Act 1994 – Ultra Virus of Rule 5A of the Service Tax Rules
Held that:- In view of Single member bench notice cannot be sustained and the same is liable to be set aside. But in view of judgment rendered in case of Berger Paints India Limited in the context of Rule 173-G(6)(c) which is in para materia with Rule 5A of the Service Tax Rules, this Court is of the view that judicial propriety demands that this writ application be referred to a Division Bench for adjudication - Referred to divisional bench
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2013 (1) TMI 548
Pre-deposit - Dismissal of appeal by Tribunal for non-compliance of condition of Pre-deposit - Opportunity of being heard - Commissioner (Appeals) order to deposit 10% of the total amount i.e. Rs. 4.5 lacs - Appellants could not deposit the amount, the Tribunal in the order dated 27.12.11 enhanced the pre-deposit requirement to Rs.10 lacs within six weeks time - Advocate who was representing the appellants before the Tribunal had expired on 28.7.2011 - The Tribunal's order insisting on certain pre-deposit was passed without any representation from the appellant - Held that:- The appellants deserve a chance to argue their appeals on merits. Tribunal, ought not to have enhanced the pre-deposit requirement to more than double the amount which the Commissioner has imposed. Place these appeals before the Commissioner (Appeals) for consideration on merit. Remand back to Commissioner
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2013 (1) TMI 547
Survey and Map Making Service - Rendered the said service to related firm – Assessee did not pay the service tax on the ground that the main contractor, namely, M/s Monarch Surveyors and Engineering Contractors Pvt. Ltd., have discharged the service tax liability on the value inclusive of the service charges received by the appellant - Held that:- Board on a number of occasions had clarified that if the main service provider is discharging service tax liability then the sub-contractors to the main service provider need not pay service tax on the same activity. Only after the extension of CENVAT credit scheme to the service tax sector, this position changed and the Board again clarified the matter vide Circular dated 23/08/2007. Therefore, it cannot be alleged that the sub-contractor was not discharging service tax liability deliberately with an intention to evade service tax.
That was the reason why the lower appellate authority has dropped the penalty proceedings against the appellant subject to their payment of service tax along with interest thereon by invoking the powers u/s 80. I do not find any infirmity in the lower appellate authority's order. In favour of assessee
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2013 (1) TMI 546
Relinquished of ownership rights in Plot sold - Memorandum of Understanding (MoU) with two developers for the purchase of 500 sq mtrs. of land or a residential flat not exceeding 300 sq mtrs paying a sum of Rs. 68,00,000 when MOU entered and the balance in two installments - supplementary MoU by which plot no. A-1 measuring 500 sq mtrs was allotted to the Petitioner - reopening of assessment - Long term capital gain v/s Short term capital gain - Held that:- It is clear from the record that by way of first agreement which was entered in the year 1990, the assessee had acquired right in the property and this right he has relinquished in favour of new vendee in 1995. Thus, in considered opinion that the assessee is liable to long-term capital gain and not to short term capital gain. Under these circumstances, no infirmity in the impugned order passed by the Tribunal and since it is a finding of fact given by the Tribunal that the assessee acquired right in the property at the time of execution of first agreement in the year 1990 and had relinquished his rights in favour of new vendee in 1995, no substantial question of law arises for our consideration.
This Court is in agreement with the above reasoning as in the present case, the Petitioner had acquired right to a specific plot, furthermore, the interest was in the nature of an actionable claim, which could be asserted in a legal proceeding. The tax authorities had issued a no objection certificate in respect of the transaction. In these circumstances, the reporting of the amount received as capital gains was correct. Moreover, Calcutta Discount Ltd. vs. ITO, (1960 (11) TMI 8 - SUPREME COURT) is an authority for the proposition that as long as the assessee makes a full and true disclosure of the income, the fact that it might claim that as falling under one head which is ultimately not accepted, would not make it a wrong disclosure, or suppression. The question as to the proper assessability of any amount, to income tax falls within the domain of the tax adjudicator - writ petition is entitled to succeed & the reassessment proceedings are hereby quashed - in favour of assessee.
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2013 (1) TMI 545
Entitlement to exemption u/s 54B - Appellant had 1/4th share in 1.10 acres of land in Ayyanthole Village sold for Rs.44 lakhs on 14.11.2004 - Whether the subsequent purchase of land (at Koothattukulam) in which a farm house is situated satisfied the requirements of Section 54F and/or Section 54B and thus there was no liability to pay any long term capital gains tax on the sale of land at Ayyanthole, in the AY 2005-06 ? - Held that:- Section 54F is intended to encourage construction of or acquisition of residential house with the aid of the proceeds from the transfer of any long term capital asset, which is not a residencial house. The provision contemplates computing the cost of the residential building, but the value of the plot on which the farm house stands and the land appurtenant could also be considered.
The tribunal has categorically found that the appellant has not produced material to show that the entire area of 1.92 acres should be considered as land appurtenant to it. It is in such circumstances, the tribunal made an estimation and directed that the value of the plot on which the farm house is located and the land appurtenant be fixed as Rs. 2 lakhs. Thus unable to accept the contention of the appellant that the value of the entire land must be considered in arriving at the value of the residential building. No illegality committed by the tribunal. It is not open to the appellant to invoke Section 54B of the Act in regard to the rest of the land at Koothattukulam.
This is for the reason that the appellant has not been able to satisfy the requirements of Section 54B with regard to the land at Ayyanthole as the appellant's late father had applied for sanction for construction of a compound wall before the Thrissur Urban Development Authority. The appellant had claimed in the return, exemption on the basis of Section 54F of the Act. But, during the assessment proceedings, the appellant relied on Section 54B of the Act. In other words, initially the appellant even did not have a case that the land at Ayyanthole was used for agricultural purposes. Therefore, at any rate, there can be no basis for invoking Section 54B for deducting the value of the land purchased at Koothattukulam - against assessee.
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2013 (1) TMI 544
Reopening of Assessment - about 90 companies were floated for the purpose of providing accommodation entries - all the companies are "bogus" - Held that:- Persuading a letter circulated by the ACIT (Respondent No.2) to all the assessing officers of Range-14, which includes the assessing officer of the present petitioner dated 24.08.2009 a list of beneficiaries mentioned for the AY 2007-08 was found with the serial No.19 shows the petitioner as a beneficiary - the petitioner furnished a reply to the earlier questionnaire which had been issued on 18.02.2009 giving details of share capital raised by the petitioner. Those details included the sums received from the aforesaid alleged accommodation entry providers. Alongwith the said reply dated 09.11.2009, confirmations from the said parties were also furnished.A similar reply was again furnished on 27.11.2009.
Despite the furnishing of these details, AO further issued notices under section 133(6) to the said companies directly, on 27-30.11.2009 which the said five parties responded, thus in the backdrop of these facts, it is difficult to believe the plea taken that the said information was “neither available with the department nor did the assessee disclose the same at the time of assessment proceedings”. There is nothing to show that the assessing officer did not receive the said information as it is apparently because he was mindful of the said information that he issued notices under section 133(6) directly to the parties to confirm the factum of application of shares and the source of funds of such shares - in favour of assessee.
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2013 (1) TMI 543
Entitlement to benefit of section 158BB (1) (b) - assessee having filed the return under Section 139 sufficiently after action u/s 132A was invoked - Held that:- As evident from the perusal of sub clause (b) of Sub-section (1) of Section 158BB, that the AO is required to reduce the income disclosed in the return filed by the assessee under Section 139 or Section 147 but the assessments had not been finalised till the date of search or the requisition while computing the income for the block period.
In the present case, the cash was seized by the police on 15.9.1998 and action u/s 132A was initiated on 5.10.1998. The warrant of requisition was executed on 9.8.2001 when the money was paid by the police to the Income Tax department and notice u/s 158BC was issued to the assessee on 7.4.2003 in respect of block assessment for the period 1.4.1988 to 5.10.1998. The assessee filed return in Form 2B on 5.8.2003 and the block assessment was framed on 29.8.2003. It may, however, be noticed that prior thereto for the assessment year 1999- 2000, the assessee had filed return on 10.3.2000 in which the cash of Rs. 7 lacs was not disclosed but the same was disclosed by the assessee while filing the revised return on 5.6.2000. This return was processed u/s 143(1) on 31.3.2001. In the present facts and circumstances, the CIT(A) and the Tribunal held that the benefit of the amount of Rs. 7 lacs which was disclosed in the return filed by the assessee under Section 139 was admissible to the assessee while computing his undisclosed income & the revenue was unable to demonstrate that the aforesaid view was not in accordance with law - in favour of the assessee.
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2013 (1) TMI 542
Entitlement for exemption u/s 11(2) - ITAT denied the claim - appellant is a charitable institution registered under Section 12A - Held that:- Following the decision of Nagpur Hotel Owners's Association's case [2000 (12) TMI 99 - SUPREME COURT] it is mandatory under the provisions of the Act and the Rules to give intimation to the assessing authority in Form 10 as required under Rule 17 of the Rules to claim benefit of Section 11. This information in Form 10 is required to be furnished at any time before the finalisation of the assessment proceedings.
Thus the assessee having failed to furnish Form No.10 before the completion of the assessment, the benefit under the provisions of Section 11 for accumulation of profits had been rightly denied by the authorities below - against the assessee.
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2013 (1) TMI 541
Delay in filing advance tax - interest u/s 234B or section 234C - assessee claimed to be exempt as per circular dated 23.5.1996 - Held that:- Ground taken by the assessee for payment of advance tax belatedly is that he suffered financial losses in his publication business. However, such a ground does not exist in the circular dated 23.5.1996 in order to grant exemption to the petitioner for payment of interest of late advance tax.
Therefore, the revenue authority has rightly come to the conclusion that such waiver cannot be granted to the petitioner. Since this is a fiscal matter and has to be construed strictly, this Court after perusing the circular dated 23.5.1996 comes to a conclusion that the findings of the revenue authority on this aspect are indeed correct. Since the petitioner does not fall under the exemption category such exemption cannot be given to the petitioner - against assessee.
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2013 (1) TMI 540
Deduction u/s.10B - disallowed the claim for the Chennai Unit as section 10B requires that the industrial unit should not be formed by the transfer of previously used machinery - Held that:- The start point of the limitation for claiming the benefit flowing from section 10B would commence from the year of manufacture or production of the undertaking. If the conditions prescribed in the section are not satisfied in the year of commencement of production, it would not be able to claim such deduction in the subsequent years, unless the said initial test on the date of the starting point has been satisfied. Section 10B therefore do not give any indication that in each year of claim it’s eligibility should be newly established, because the relevance of the phrase “newly established undertaking” is only to identify initial year of period for which assessee is eligible for claim of exemption u/s.10B.
Thus on examination of the facts recorded by the AO, it was noticed that the Chennai Unit was established/ acquired in the year 2000-01. Due to this reason, reliance can be placed on Saurashtra Cement & Chemical Industries(1979 (2) TMI 21 - GUJARAT HIGH COURT) and thus to hold that in the absence of any disturbance in respect of relief granted in initial year, there was no legal justification to disturb the continuous deduction of section 10B in any of the subsequent assessment year. Although it is possible, as in the present case, that in any of the subsequent years the assessee had acquired new plant & machinery, may be of substantial value, as also may be increase the turnover or efficiency, nonetheless the act subscribes that the undertaking must not be formed by the splitting up or the reconstruction of a business already in existence. Therefore, the initial year is the year to establish the eligibility of the claim - it was not evident from the records that the transaction relating to the machinery constituted outright sale thus hereby hold that the AO has wrongly presumed that the transaction in question was a purchase of machinery by Chennai Unit - rejection of deduction u/s.10B was bad in law - in favour of assessee.
Deduction u/s.10B - CIT(A) allowed claim observing the activities carried on by the assessee were manufacturing - revenue contested against as it was engaged in polishing the valves - Held that:- The petitioner has shown various manufacturing steps which the raw castings have to undergo [viz.Turning, boring, milling, radial drillings and boring, deburning, etc.]. He purchased raw valves and thereafter put them under the aforesaid process. Therefore, after processing that raw valves, that becomes altogether a new product, which is distinct from raw casting and is commercially marketable, and that comes under the manufacturing activity. See CIT v/s. Perfect Liners [1979 (1) TMI 4 - MADRAS HIGH COURT] - As decided in CIT v. M.R. Gopal [1965 (7) TMI 40 - Madras High Court] the word “manufacture” has to be understood in a wide sense - in favour of assessee.
Computation of deduction u/s.80HHC - addition of interest on deposit with banks - Held that:- interest only constitutes income and it can never be part or equivalent to turnover. Further it is assessable under the head income from other sources and in no case it will form part of computation mechanism as provided under section 80HHC unless it is held as business income and if it is so then 90% thereof would be required to be excluded. See CIT vs. Delhi Brass & Metal Works [2008 (11) TMI 42 - HIGH COURT DELHI] - in favour of assessee.
Addition of Bogus payment - disalloance of Commission payment - Held that:- As the payments were made to independent unrelated parties made to procure the business as supported by details of the commission agents and the details of the TDS payments no bogus payment is to be concluded - AO had not examined the commission agents as certain basic information about the payment of commission was very much part of the record as also had been enquired by the Auditor, hence very much part of the assessment record. Without any investigation AO has wrongly disallowed claim - in favour of assessee.
Ad-hoc disallowance - Held that:- Since most of these expenses are incurred on cash basis and incurred for snacks, food and hotel expenses etc. Various gift items were also purchased for different persons including guest. Since the business purpose of these expenses cannot be fully verifiable part disallowance is justified. However looking to the quantum of expense 10% disallowance is on higher side. I restrict the same to ₹ 1 lac. The balance disallowance of ₹ 5,70,800/- is deleted - partly in favour of assessee.
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2013 (1) TMI 539
Non deduction of TDS on Ground Rent - Whether the payments towards rent of the ground along with other facilities requiring deduction of tax at source u/s 194I or the payments are for works contract as per section 194C? - Held that:- Before coming to a definite conclusion on this issue, it is very much necessary to ascertain the exact nature of payment and the services rendered or facilities provided for which such payment was made. As find from the order of the AO that he has not made any endeavour to ascertain the correct fact by taking necessary enquiry either with the BCCI or HCA for finding out the true character of the payment made. At the same time, the CIT (A) was also not justified in presuming the payments to be in the nature of work contract falling u/s 194C when she herself has observed that the claim of the assessee cannot be accepted since the payment could not have been just on the basis of debit note and there might have been an agreement either oral or written for providing the particular services.
Thus the CIT (A) was not justified in directing the AO to consider the payment u/s 194C and accordingly calculate tax and interest u/s 201(1)& 201(1A). The order of the CIT (A) is modified to this extent only. However, it is proper to remit the matter to the file of the AO for determining the issue afresh after conducting necessary enquiry affording a reasonable opportunity of being heard to the assessee - in favour of assessee for statistical purposes.
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