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Showing 501 to 520 of 1495 Records
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2016 (6) TMI 996
Condonation of delay in filing an appeal before the tribunal - it was submitted that the order against which appeal was preferred before the Tribunal had not been served on the appellant-assessee - The appellant was not aware of the order. - Held that:- The perusal of section 37C(1) of the Act of 1944 reveals mode of dispatch and, at the relevant time, it could have been sent through registered post but with acknowledgement due. There is nothing on record to show that after sending copy of the order through registered post, the acknowledgment due was produced. In view of above, mandate of section 37C(1) of the Act of 1944 has not been looked into by the appellate tribunal. In absence of service of copy of the order in the manner prescribed under section 37C(1) of the Act, delay cannot be attributed towards the appellant for challenge of the order. - Delay condoned. - Matter restored before the tribunal.
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2016 (6) TMI 995
Rebate / refund of duty on goods supplied to SEZ units - admissibility of refund claim of jute cess paid on goods supplied to SEZ units - period of limitation - in supersession of the earlier claim of refund, subsequently the applicant submitted revised claim of ₹ 13,36,029/- The contention of the department in this regard was that as the- applicant has submitted their initial refund claim on 04.08.2009 hence their refund claim for the period from 01.072008 to 04.08.2008 has become time barred and hence non grantable. - Held that:- That jute cess in the instant case was paid under a mistake of law, in as much as Section 7 of the SEZ Act specifically exempts payment of jute cess in respect of goods supplied from DTA to a unit in the SEZ.
Government finds that the main issue in the impugned Order-in-Appeal is the admissibility of refund under Section 11 B of the Central Excise Act read with Section 3 of the Jute Cess Act in respect of supplies made thereof. - Hence the instant case does not fall with the purview of ambit and scope of provisions contained for Section 35EE read with proviso to Section 35(B) (1) of the Central Excise Act, 1944 under which the instant revision application has been made. - Revision Application filed before Central Government in terms of Section 35 EE of Central Excise Act 1944 is beyond jurisdiction - Revision application dismissed.
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2016 (6) TMI 994
Rebate / refund claim - export goods - receipt in Indian Rupee through Vostro Account - claim rejected to the extent of remittance not received in foreign currency - The applicant submits that the order of the respondent is erroneous and legally untenable in as much as there is no condition that rebate of duty on exports would be allowed only if the export proceeds are realized in convertible foreign exchange. The applicant submits that Rule 18 or notification issued under the said rule does not prescribe any condition that the rebate is dependent on realization of export proceeds.
Held that:- Government notes that the applicant has contended that they have made inward remittance in the instant case in Indian Rupees through Vostro Account through Vostro Account with Deutche Bank. On perusal of copies of some documents, Government finds that an amount of INR has been shown in the Bank statement of M/S. Standard Chartered Bank. Applicant has given his submission before Commissioner (Appeals). However, there is no findings of Commissioner (Appeals) on this point while drawing the conclusion that applicant did not comply with provision contained in para 2-40 of the FTP. - Matter remanded back.
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2016 (6) TMI 993
Refund of un-utilized cenvat credit - rejection of refund to the extent transferred from other unit - Condonation of delay - export of Indian Mouth Freshner falling under chapter Sub-Heading No.21069020 - The Commissioner (Appeals) decided the case in favour of respondent assessee as there was no confirmed demand of ₹ 1,44,16,817/- against the respondent for violation of Rule 10 of the Cenvat Credit Rules. Now the Department has filed this Revision Application under Section 35EE of the Central Excise Act, 1944 before the Central Government on grounds mentioned in para 4 above.
Held that:- the present application has been filed within a period of three months from the relevant date even though it was sent to the wrong address due to the misdirection of the Appellate Commissioner and Committee of Commissioners. If the application had not been wrongly addressed, it would have reached the Revision Application Unit at the correct address well within time as it reached the address to which it was sent as per the postal authorities. - Government holds that the revision application has been filed within time under Section 35EE of the Central Excise Act, 1944 and question of being hit by limitation does not arise.
Government observes that under Section 35 EE of the Central Excise Act, 1944, a Revision Application against the Order of Commissioner (Appeals) passed under Section 35 A ibid lies with Government only if such orders relate to cases as mentioned in the proviso to sub-section (1) of Section 35(B) of the Act. As the issue covered in this Revision Application relates to refund of unutilized credit under Rule 5 of Cenvat Credit Rules 2004, the subject matter is not covered in the first proviso to sub-section (1) of Section 35 B of the Central Excise Act 1944. Therefore, Revision Application on this issue does not lie before Central Government under Section 35 EE of the Central Excise Act, 1944.
Further, Government observes that the Department as in the authorization to file Revision Application under Section 35EE (2) has erred in considering the issue as a case of rebate of duty. - Revision application dismissed - Decided against the revenue.
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2016 (6) TMI 992
Cenvat credit on inputs/inputs services - manufacture and clearance of sugar and molasses - part of electricity generated in their captive power plant has been sold - Held that:- the issue is squarely covered in favour of the appellant-assessee by various judgments cited supra wherein it has been consistently held that bagasse which is waste/by-product emerging during the course of crushing of sugarcane for manufacture of sugar could not be equated with exempted goods and hence, Rule 6 of Cenvat Credit Rules are not applicable - demand set aside - Decided in favor of assessee.
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2016 (6) TMI 991
100% EOU - clearance goods into Domestic Tariff Area (DTA) in excess of 50% of FOB value of exports - eligibility of concessional rate of duty for the said clearances - Held that:- DTA clearances permitted by the Development Commissioner by itself will not decide the rate of duty applicable, which the tax authorities have to determine in terms of the applicable notification.
Year-wise break-up of FOB value and DTA clearances has not been specifically recorded and a clear finding about the eligibility of the appellant arrived at. This is necessary as the appellant is claiming that whenever Development Commissioner gives permission for DTA clearance all such clearances will be entitled for concessional rate of duty when they clear the goods within the period stipulated. - Matter remanded back.
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2016 (6) TMI 990
Excisability of Spent Earth arising as a residue in the process of refining crude palm oil - Marketability of the goods - Scopeo of Section 2(d) as well as in Section 2(f) of Central Excise Act - edible refined palm oil an exempted finished product - Held that:- In view of the decision in the case of M/s Union of India and Ors vs M/s DSCL Sugar Ltd [2015 (10) TMI 566 - SUPREME COURT] and Circular dated 25-04-2016, Spent Earth arising as a residue cannot be held as excisable goods. - Decided in favor of assessee.
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2016 (6) TMI 989
Rectification of mistakes - Revenue sought ROM in the order of this Tribunal dt. 11.08.2013 - apparent mistake - Held that:- the mistakes/errors stated by the Revenue, seeking rectification, cannot be carried out without undertaking a re-analysis of the facts and evidences on record and the gamut of case laws cited, which would be definitely a long drawn process and ultimately result in review of the Order. - ROM application dismissed.
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2016 (6) TMI 988
Best judgement assessment - inclusion of turnover relating to branch office - enhancing the declared turnover of the assessee by 10% inter alia rejecting the other claims made by the assessee - Karnataka Value Added Tax Act, 2003 (KVAT) - Held that:- In the present case, we do not see any such nexus established by the authorities to the estimation made enhancing the declared turnover by 10%. It is the categorical contention of the assessee that all the accounts relating to the branch office were declared in the account books maintained by the main office and there was no suppression of turnover. In such circumstances, no attempt is made by any of the authorities or by the Tribunal to address on these arguments/contentions advanced by the assessee. Non-furnishing of the branch certificates would not suffice to enhance the declared turnover unless supported by suppression of turnover.
Demand set aside - matter remanded back - Decided in favor of assessee.
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2016 (6) TMI 987
Restriction in input tax credit - deduction of input tax in excess of 2% of the tax - KAT - returns were to be discarded and the re-assessment was to be undertaken - Held that:- It is hardly required to be stated that even if the return of the assessee is discarded resulting in a process of re-assessment, the Assessing Officer further needs to examine the permissibility of the input credit and if permitted, then to what extent. While considering the said aspects, the Assessing Officer had to also examine as to whether a claim be submitted including restricted claim, if any, deserved to be accepted or not. It is a different matter that for valid reasons, he may discard such a restricted claim too. But in any case, it was obligatory on his part to record the reasons.
Order set aside - Matter remanded back.
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2016 (6) TMI 986
Concessional rate of tax on the interstate sale of rice/broken rice - transaction not covered by ‘C’ Forms - In respect to export, the ‘H’ Forms furnished by the dealer was not supported by other documentary evidence. - Held that:- As the impugned assessment order was passed in violation of the principles of natural justice, it must be and is, accordingly, set aside. Whether he assesses the petitioner to tax under the Central Sales Tax Act or under the Telangana Value Added Tax Act, the revisonal authority shall issue a fresh show cause notice along with the information obtained by him from G.I.S, or any other information which he seeks to rely upon. In case, he is of the view that the subject goods are intra-state sales, and not inter-state sales, it is open to him to issue a show cause notice under the Act. - Matter remanded back.
In so far as ‘H’ Forms are concerned, while the assessing authority rejected the petitioner’s claim for exemption from tax, under Section 5(3) of the Act, for a turnover of ₹ 13,50,735/-, the revisional authority had denied them the benefit of exemption for an additional turnover of ₹ 4,80,000/- on the ground that the “H” Forms were not accompanied by supporting documents - . These are all matters which the revisional authority is required to consider on the basis of the document on record, or such other documents which the petitioner may choose to submit in addition thereto. - Matter remanded back. - Decided partly in favor of assessee.
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2016 (6) TMI 985
Levy of penalty - bonafide belief - matter was related to interpretation of notification - levy of local entry tax on transformer oil - Held that:- Hence, the appeals are partly allowed. The order of the Revisional Authority as well as Assessing Officer so far as it relates to payment of tax, interest is concerned, the same is maintained and not interfered with. However, the order of the Additional Commissioner and the Assessing Officer for the imposition of the penalty is set aside. The Assessing Officer is directed to issue fresh demand excluding penalty portion. - Decided partly in favor of assessee.
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2016 (6) TMI 984
Reopening of assessment - disallowance of provision for damaged goods - Held that:- The quoted portion of the Tribunal's impugned order would, however, establish that the entire issue was considered by the Assessing Officer in the original scrutiny assessment. The Tribunal records that the Assessing Officer had raised several queries in the notice issued to the assessee, in which, in query No. 16 he had sought details of liability for damaged goods of ₹ 1,00,59,941/-. The assessee had filed its reply alongwith P&L account and details of all the expenses. The assessee had also placed material pointing out that the liability had reduced from ₹ 1,62,77,457/- in the preceding assessment year to ₹ 1,00,59,941/- in the present year. The assessee had also placed notes of policy for damaged goods stating that the same was received in damaged condition in subsequent years out of those sold during the year is made in the accounts of the year corresponding to the sales on estimation basis.
Thus, full accounts, details and justifications for the claim was placed before the Assessing Officer during the original assessment proceedings. This was in response to the written query raised by the Assessing Officer. If, thereafter, in the final order of assessment, the Assessing Officer made no disallowance, it can hardly be stated that he did not form any opinion with respect to this claim of the assessee. - Decided against revenue
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2016 (6) TMI 983
Depreciation on moulds - higher rate of depreciation - @ 30% OR 15% - Held that:- We notice that subclause( vii) of clause(3) of Entry III in PartA in the New Appendix I, reads as under:
“(vii) Moulds used in rubber and plastic goods factories”
Thus for mould used in rubber and plastic factories, higher rate of depreciation of 30% is prescribed. Rate of depreciation of 15% applies to residual items. Thus if an item falls under said subclause (viii) rate of depreciation would be 30%. In the present case, admittedly, moulds were used for manufacturing of plastic goods. These goods were in the nature of electric switches and sockets. Merely because after the manufacture, the consumer may be having plastic wires and circuits installed in such plastic switches and sockets, so as to make them functional, would not take away the basic character of the appliances being plastic goods. The assessee was exclusively involved in manufacturing such goods. Factory of the assessee was therefore, plastic goods factory. The moulds used for manufacturing such goods, therefore, qualify for higher rate of depreciation under subclause( vii) of clause(3) of Entry III in PartA in the New Appendix I @ 30%. - Decided in favour of assessee
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2016 (6) TMI 982
Deduction u/s 43B - non payment of excise duty in cash - adjustment of refund from Central Excise and Customs - Held that:- Department had adjusted the refund claim of the assessee of ₹ 3.71 crores towards its excise duty liability. That being the position, it cannot be said that excise duty of ₹ 3.71 crores was not actually paid over. The claim would not be hit by section 43B of the Act. - Decided against revenue
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2016 (6) TMI 981
Reopening of assessment - higher stamp valuation - assessment in the hands of legal heir of deceased assessee - Held that:- We do not find that the Assessing Officer lacked jurisdiction to reopen the assessment. It appears that the assessee had declared the sale consideration of the land in question as ₹ 87.71 lacs where as had accepted the stamp valuation which would come to ₹ 2.12 crores considering the stamp duty of ₹ 11.92 lacs affixed on the sale deed. It was in this background, the Assessing Officer invoked section 50C of the Act treating the difference as deemed long term capital gain. When these facts were not on record, when the sale deed was not on record during the original assessment, this certainly is a case where the assessee failed to disclose truly and fully material facts necessary for assessment. - Decided against assessee.
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2016 (6) TMI 980
Undisclosed investment - Addition on the basis of documents (MoU) seized during the course of search / survey - Held that:- On the record, there is nothing to establish the factum of actual payment of purchase price at the rates as mentioned in MoUs by the assessee to the sellers for lands covered by the Agreements for Sale or the MoUs. On the contrary, the Affidavits of all the six sellers found and seized during the search, itself confirm that none of them had received any amount in excess of the amounts mentioned in the Affidavits, which were with respect to lands covered by Agreements for Sale dated 26.02.1996 and had not received any single penny towards the sale price of lands covered by MoUs and that saledeeds for lands covered by MoUs had not been executed. In the presence of the aforesaid documents evidence, the assumption or presumption arrived at by the Assessing Officer is uncalled for and bad in law. - it was absolutely illegal for the Assessing Officer to presume the factum of payment for those lands and that too at the rate mentioned in the MoUs.
The Tribunal was completely justified in deleting the addition - Decided in favour of assessee
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2016 (6) TMI 979
Eligibility of benefit of registration u/s 12A - Whether Pre-School would fall in the term ‘education’ as envisaged u/s 2(15)? - Held that:- In the case of Life Shines Educational & Charitable Trust (2015 (10) TMI 1478 - ITAT CHENNAI ) held that “pre-schooling’ shall fall within meaning and scope of the ‘education’ as used u/s 2(15). Thus, in view of the aforesaid discussion and facts of this case, we do not find any justification in the view adopted by the Ld. DIT that preschooling is not part of education activity. In our considered view pre-schooling is very much integral part of the term ‘education’ as has been envisaged u/s 2(15) of the Act and we hold so.
Whether charging of fee and retaining surplus amounts to commercial activity, disentitling an assessee from the benefit of exemption u/s 11 and 12? - Held that:- the assessee trust is carrying out the activity of education and is therefore entitled for benefit of registration u/s 12A and we direct the DIT to grant the benefit of registration u/s 12A. Accordingly, the assessee is hereby granted the benefit of u/s 12A with effect from the date when the application was filed by the assessee. The AO is at liberty under the law to examine the aspect of application of income solely for the purpose of education and also to examine that the assessee is carrying out the activity of education only and AO is also permitted to examine compliance of other provisions of the law in this regard and accordingly he may decide about the granting of benefit of exemption at the time of assessment in different years - Decided in favour of assessee
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2016 (6) TMI 977
Approval under Section 10(23C)(vi) - whether the assessee-institution can invest any part of its accumulated income or the current income on the equity of non-resident subsidiary company and claim exemption as application of income? - Held that:- The compliance of terms and conditions stipulated by the prescribed authority would be a matter of decision at the time of assessment. In the case before us, the assessee is an Indian institution investing its funds generated out of its charitable activity in India, outside the country. The Indian Income-tax Act provides for accumulation of its surplus funds to the extent of 15% and also provides the method of investment.
The assessee invested its funds in the equity shares of a company incorporated outside India. The third proviso to Section 10(23C) of the Act clearly says that the assessee cannot invest in the equity shares of any company and the investment has to be made only as per the mode prescribed under Section 11(5) of the Act. In this case, the investment was made in violation of mode prescribed under Section 11(5) of the Act. Since the investment was made in violation of statutory provision, this Tribunal is of the considered opinion that the assessee-institution violated the statutory provision at the initial stage itself. Therefore, it is not entitled for approval under Section 10(23C)(vi) of the Act. - Decided against assessee
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2016 (6) TMI 976
Disallowance of Interest Expenditure claimed under section 36(1)(iii) - CIT(A) deleted the disallowance - Held that:- No interference is called for in the impugned order of the learned CIT(A). We, therefore, sustain and confirm the decision of the learned CIT(A) in holding that since the amount advanced to VTL as share application money was done in the normal course of its business, for purposes of its business and was made on grounds of commercial expediency, the disallowance of interest claimed under section 36(1)(iii) of the Act was not warranted and in deleting the same. - Decided against revenue
Disallowance of Upfront Fee paid to Central Bank of India - Held that:- Consequent to our decision, upholding the learned CIT(A)’s view that the share application money advanced to VTL was for purposes of business of the assessee, we also uphold the finding of the learned CIT(A) the ‘upfront fee’ paid to Central Bank of India on loan taken from it is also allowable as a deduction from the assessee’s income. - Decided against revenue
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