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Showing 61 to 80 of 1558 Records

2017 (2) TMI 1503

Compliance with the directions - HELD THAT:- A detailed affidavit of the Director, CBI shall be filed in this regard informing compliance of the directions contained in the order dated 18.04.2015 as well as directions contained in the order dated 23.09.2016.
2017 (2) TMI 1502

Validity of assessment order - orders of assessment were passed by confirming the proposal in the show cause notices on the ground that the petitioner had not submitted any reply - years 2010-11 to 2015-16 - TNVAT Act - HELD THAT:- The postal acknowledgment produced by the petitioner shows that the communication sent by the petitioner was received by the office of the first respondent on 12.1.2017. If that is the case, the first respondent should have furnished documents sought for by the petitioner or at least given a reply stating as to for what reasons, the documents cannot be furnished. That apart, the assessment orders could not have been passed before the cut off date given in the show cause notices i.e 15 days from the date of receipt of the notices. Hence, this Court is of the considered view that the first respondent was not justified in completing the assessments.

This Court is not inclined to set aside the assessment orders because the assessment orders are, in fact, a verbatim reproduction of the show cause notices. Therefore, the petitioner can be directed to treat the impugned orders as show cause notices and submit their reply/objections - the writ petitions are disposed of by directing the petitioner to treat the impugned orders as show cause notices.
2017 (2) TMI 1501

Disallowance of deduction u/s 36(1)(viii) - claim was based on the belief that the main object of the assessee is to promote Housing Finance Companies - as contented deduction u/s 36(1)(viii) is available to the assessee to the extent of amount not exceeding 20% of the profits derived from eligible business - whether refinancing activities can be considered as provision of long term finance for construction and purchase of houses in India for residential purposes or not? - HELD THAT:- As our answer to this is in negative because whenever govt the legislature wanted to include refinancing activities also eligible for deduction u/s 36(1)(viii) it has amended the provisions in the similar manner in which the amendment is made by Finance (2) of the Act of 2009. As the agricultural refinance activity was not eligible for deduction u/s 36(1)(viii) prior to Finance No. (2) Act, 1971 and the eligible business inserted was “industrial or agricultural development‟ by which agricultural refinance activities were made eligible for deduction. The amendment by Finance No. (2) Act of 2009 is also the similar amendment where the eligible business is included as “development of Housing in India” from “construction or purchase of houses in India”. Therefore, it is apparent that prior to this assessee was not eligible for deduction u/s 36(1)(viii) of the Act. in view of this Ground Nos. 1 and 2 of the appeal of the assessee which are against sustenance of disallowance u/s 36(1)(viii) of the Act are dismissed.

Nature of loss - Loss of the security transaction - disallowing the loss with respect to securities - money been lost by assessee in Shri Harshad Mehta scam - revenue or capital loss - HELD THAT:- In the present case the lower authorities have viewed it as loss arising on purchase of securities but in fact there is no information about whether the securities were at all purchases by the assessee or not. if the assessee has lost sum paid by it for purchase of security i.e. advance for security and the same has been lost then it would be business loss allowable in the year in which it is incurred. It is undoubtedly this money has been lost by assessee in Shri Harshad Mehta scam. This aspect is also required to be examined with respect to the provisions of National Housing Bank Act wherein section 14 of that act provides nature of business it can carry on.

It is necessary to examine whether the assessee has incurred loss on account of securities transactions entered transaction or it is a case of loss of advances given by the assessee for purchase of securities. If the transaction of securities are backed by physical possession of security notes or securities in Demat form then only it can be considered as loss on transaction in securities. If it is advance given by the assessee for the purchase of security and lost then it may be considered as business loss provided same is incurred during the course of the business of the assessee. If the same is incurred during the course of the business of the assessee then same shall be allowable as revenue loss in the year in which it is incurred.

In the present case it is not available before us that assessee was engaged in business of trading of the securities for which money was paid to the state bank of India. As the assessee itself claims that it is managing two portfolios of securities: one as trader and another as investor then if the funds were given for purchase of securities which are to be held as stock in trade then it can be considered as allowable loss and if it is given for the purpose of purchase of securities to be held as investor it cannot be allowed as business loss - if the loss is held to be business loss then it can be allowed only in the year in which it is incurred. As the reason for the loss is Shri Harshad Mehta Scam it also needs to be examined whether the loss is allowable in the year it is detected or in the year in which it crystallized. All these issues needs to be examined afresh along with the year incurring of the loss - we set aside the whole issue to the file of ld Assessing Officer to reexamine the claim of allowability of the loss of the security transaction during the year. Appeal of the assessee is allowed with above direction.
2017 (2) TMI 1500

Disallowance of claim of Section 80P - interest on Fixed Deposits with the Bank - assessee is a co-operative society which provides credit facilities to the farmers. The assessee earned interest on fixed deposits from SBI, Agriculture Development Bank, Station Road Branch, Bellary - AO denied the claim under Section 80P in view of the decision of the Hon'ble Supreme Court in the case of Totgars Co-operative Sales Society Ltd. [2010 (2) TMI 3 - SUPREME COURT] - HELD THAT:- Hon'ble Supreme Court in the case of Totgars Co-operative Sales Society Ltd. Vs. ITO [2010 (2) TMI 3 - SUPREME COURT] and held that when the society has surplus funds which were made fixed deposit in the bank to earn interest, the same is eligible for deduction under Section 80P of the Act.

When the amount which was deposited in the bank was not an amount due to members and it was not the liability of the society to the members then the interest earned from the deposits in the bank was held to be eligible for deduction under Section 80P (1) as well as 80P(2)(a)(i) of the Act. In the case on hand, the assessees are co-operative societies providing the credit facilities to its members. The Assessing Officer has noted that the assessee has earned interest on funds which are not required for the business deposited in the fixed deposit in the bank. - Decided in favour of assessee.
2017 (2) TMI 1499

Time stipulated Under Section 13 of the Consumer Protection Act, 1986 for filing written statement - mandatory time limitation or not - any flexibility is available with the Court in the interest of justice or not - HELD THAT:- It has been brought to notice that in view of uncertainty in law, proceedings in number of cases is held up before the Consumer Fora.

It is considered appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter.

Appeal disposed off.
2017 (2) TMI 1498

Deduction u/s 80IC - profits relating to outsourced process - sale of products got manufactured from others through job work - Manufacturing of SS Flats - assessee was in the business of manufacturing stainless steel flats - gross total income declared by the assessee for the year included profit and gains from its industrial undertaking at Kala Amb,Himachal Pradesh - HELD THAT:- After considering the facts of each case, the courts ruled that it is not essential for the assessee to carry out the entire manufacturing activity itself, for the purpose of claiming deduction on the profits earned thereon and even if a part of the activity is outsourced or for that matter even if the whole manufacturing activity is outsourced, but carried on under the supervision and control of the assessee, it would still tantamount to manufacturing being carried out by the assessee itself, making it eligible to claim deduction of profits earned thereon.

Entire manufacturing activity of SS flats was under the supervision and control of the assessee itself and took place either in its own premises or was outsourced as per its own specification - it can be said without any hesitation that it was the assessee who was indulging in the manufacturing of SS flats - it is not the case of the Revenue that the assessee was buying SS flats from an outside party and then selling it. Therefore, for the aforesaid reasons, we hold that the assessee undertook the manufacturing of SS flats and was entitled to claim deduction on entire profits earned from the same.

Assessee was only required to “manufacture” SS Flats to be eligible to claim deduction u/s 80IC,which since we have already held so above,the assessee was entitled to claim deduction of entire profits earned on the same u/s 80IC of the Act. For the said reason also we are not in agreement with the contention of the Ld. DR that the profits should be apportioned to different activities involved in manufacturing of a product and deduction u/s 80IC thereafter be restricted to profits on manufacturing carried out by the assessee only

While allowing deduction on part of the profits earned by the assessee, the Revenue admits that the assessee is involved in manufacturing activity. Also admittedly the assessee has been allowed deduction of entire profits in earlier years in identical set of facts. DR has not controverted this fact contended by assessee. Therefore also there is no reason to restrict the deduction to the extent of manufacturing activity carried out by the assessee in the impugned year.

DR applied the provisions of section 80 IA(10) - For the applicability of section 80IA(10) it has to be demonstrated that there was an arrangement between the two parties which resulted in the inflation of profits in the case of the assessee. In the absence of both the conditions specified under section 80IA(10) we hold that the said provision of has been incorrectly applied by the Ld. CIT(Appeals) to the facts of the case and the addition made by applying the same is therefore grossly incorrect.

Manufacturing of SS Flats was carried out by the assessee and thus it was entitled to claim deduction of entire profits earned on the same u/s 80IC
2017 (2) TMI 1497

Capital gain in the hand of members of society - real owner - agreement with a developer for development of said property entered -whether transfer of lease hold was not covered by provisions of section 50C - HELD THAT:- The developer had made payments to the Society as well as to the members and they had offered the amounts, received by them, for taxation. In our opinion, once the members had shown the income received by them in their hands there can - not be any justification for taxing the same in the hands of society. No double taxation and no double deduction is one of the well recognised and fundamental principles of taxation. In our opinion, signing of agreement by the members or society cannot be base for taxing of income. As per the scheme of the Act, income received by any person or income accrued to him has to be taxed. In the case under consideration, income was received by the members and they had offered the same for taxation.

We also hold that Society was only the lessee and what was transferred to the developer was development rights not land or building - No authority is required to hold that terms ‘land or building’ ‘or both’ do not include development rights and that in the case before there was transfer of such rights only. In light of the above discussion and respectfully, following in the case of Raj Ratan CHS [2011 (2) TMI 96 - ITAT MUMBAI] we hold that FAA was not justified in taxing the sum in the hands of the assessee, as same was the income of the members of the society. GOA. 2 is decided in favour of the assessee.

Addition of receipt towards corpus fund - FAA held that payment by the developer to the society could not be treated as payment towards corpus of the society, that the AO had rightly held that the disputed amount was to be assessed as income from other sources - AR argued that the assessee had received only during the year, that the CIT(A) had wrongly assessed the income under the head income from other sources - HELD THAT:- We find that the FAA had held that ₹ 3. 50 crores only were to be taxed during the year under consideration, that the income was to be taxed under the head income from other sources. It is a fact that society had not given possession of land to the developer during the year under consideration. In our opinion, the money received by the assessee during the year i. e. ₹ 3. 50 crores was to be assessed under the head capital gains, as claimed by the assessee. Fourth Ground is decided in favour of the assessee.

Payment to MHADA treated as income of the assessee - HELD THAT:- There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of one's own income, which has been received and is since applied. We are of the opinion that disputed amount falls in first category. In the case before us, the obligation income was diverted before it reached the assessee. Besides, the payment is not in doubt and it is also a fact that same was made in connection with the development of the property. So, as a corollary, it has to be allowed as an allowable expenditure. - Decided in favour of assessee.

Benefit of deduction u/s 80P(2)(d) and 80P(2)(c)(ii) - AO had invoked the provisions of Sec. 80P (2) (f)and denied the society the benefits claimed by it - HELD THAT:- The sub sections of 80P deal with different claims and operate in different fields. The provisions of one sub section cannot be imported to another sub section. It is a fact that the Registrar of Co-op. Hsg. Society had not cancelled the registration of the Housing Society on the alleged violation of principle of mutuality or bye laws. In these circumstances, in our opinion the FAA has rightly held that deduction claimed by the assessee under sub-sections (d) and (c)(ii) cannot be denied the assessee. Upholding his order, we dismiss the ground raised by the AO.
2017 (2) TMI 1496

Condonation of delay in filing of the appeal - HELD THAT:- Assessee is a habitual defaulter as she has not filed the appeal in time either before the CIT(Appeals) or before the Tribunal. The appeal before the CIT(Appeals) was late by 564 days which was not duly explained. Having realized that she has filed the appeal late before the CIT(Appeals), she did not make any effort to file the appeal before the Tribunal in time. No fresh evidence is filed with regard to non-filing of appeal by the ld. Authorized Representative.

If the Authorised Representative has not discharged his duties in time, it amounts to professional misconduct, for which the assessee ought to have lodged a complaint before the Competent Authority in order to justify his act. But, nothing was done. Therefore, the story propounded by the assessee cannot be believed. Since the assessee is a habitual defaulter, she deserves no concession by the authorities.We are therefore of the view that it is a fit case where the condonation of delay in filing of the appeal can be denied. - Appeal of assessee dismissed.
2017 (2) TMI 1495

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - sick company of not - Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 - HELD THAT:- The Insolvency and Bankruptcy Code, 2016 was enacted by Parliament in 67th year of Republic of India. The objective of the Insolvency and Bankruptcy Code is to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all stakeholders, including alteration in priority of payment of government dues and to establish an Insolvency and Bankruptcy Fund, and matters connected therewith or incidental thereto. An effective legal framework for timely resolution of insolvency and bankruptcy would support development of credit markets and encourage entrepreneurship.

The present Petition/Application, (as referred under Section 10(2) and 10(3) of the IBC.2016), which has been filed by the Petitioner, has been complied with all the requirements and thus it is a fit case to admit the Petition/application - application admitted - moratorium declared.
2017 (2) TMI 1494

Penalty u/s 271D - addition invoking the provisions of section 269SS on alleged acceptance of cash deposits - CIT (Appeals) who deleted the penalty levied by holding that the assessee had not accepted any loan or deposit and, therefore, provisions of section 269SS of the Act were not applicable - HELD THAT:- The ratio laid down by the Hon'ble Apex Court in the case of Jai Laxmi Rice Mills [2015 (11) TMI 1453 - SUPREME COURT] squarely applies and with the annulling of the initial assessment order passed in the case of the assessee by the I.T.A.T., the penalty initiated therein u/s 271D also did not survive. Further in the absence of any further satisfaction for levy of penalty the said order levying penalty u/s 271D could not have been passed - Decided against revenue.
2017 (2) TMI 1493

Deduction u/s.80IA - two projects i.e. land filling and incinerator amounted to a composite project for treatment of solid waste meaning thereby that the same were not to be treated as separate projects so as to be independently considered for the purpose of granting Section 80IA deduction - HELD THAT:- It emerges that the assessee has amply demonstrated during the course of lower proceedings that two projects in question are in fact separate ones. We afforded amply opportunity to learned Departmental Representative to rebut all the above extracted evidence / pleadings to the effect that the two projects i.e. land filling and incinerator one are very much separate. The Revenue fails to quote any material against the same. We accordingly find no reason to interfere with the CIT(A)’s conclusion under challenge. This former substantive ground thus fails.

Addition collection by the assessee in the nature of non refundable receipts treated income in the course of assessment and deleted in lower appeallate proceeding - whether the assessee’s advance receipts from its customers in the nature of non refundable receipts are to be treated as income in entirety pertaining to relevant assessment year or not? - HELD THAT:- We find that hon’ble jurisdictional high court’s decision in Unique Mercantile Services Pvt. Ltd. [2015 (1) TMI 525 - GUJARAT HIGH COURT] decides a similar question pertaining to membership fee spreading over to a time span of more than one assessment year to be taxable on prorata basis. We adopt the same reasoning herein as well and direct the Assessing Officer to assess the above stated non refundable receipts by adopting similar proportionate computation formula. This Revenue’s ground is accordingly accepted for statistical purposes.

Excluding interest income and one time membership fee for incinerator plan for the purpose of computing Section 80IA deduction - HELD THAT:- It emerges that the assessee’s interest income in question arises from fixed deposits maintain with bank in order to comply with Gujarat Pollution Control Boards, norms, terms and conditions since it has to upkeep the site in question for a period of 30years of closure date - Both the learned representatives very much agree that a co-ordinate bench in assessees’ cases itself for assessment years 2002-03 to 2004-05 has already reversed similar exclusion thereby treating identical interest income as eligible profits for the purpose of Section 80IA deduction. We quote the very reasoning herein as well assessee’s former limb of the impugned disallowance pertaining to interest income.

One time membership fee for incinerator plant - There can hardly be any dispute that the assessee charges the above fee for its enrolments of members for the incinerator plant in question. We observe in these facts that the said fee is very much liable to be treated as business profits as accepted in assessee’s books as profit and gain of business and profession which have nowhere been rejected in course of the lower proceedings. We accordingly accept assessee’s arguments against this latter exclusion as well.
2017 (2) TMI 1492

Dishonor of Cheque - vicarious criminal liability of a Director or other Officer of a Company - Section 141 of the N.I. Act - HELD THAT:- In the present complaint filed before the learned S.D.J.M. and in the affidavit evidence-in-chief as per Section 145 of the N.I. Act by the complainant, it is clearly averred that accused No. 2 (Managing Director) of the accused company has the absolute controller the business of the Company and he is responsible for the day-today activities. In respect of the petitioner, it is simply averred that she is the Director of the accused-company and, therefore, all the accused persons are jointly liable for the offence.

There is no averment whether the petitioner was a Director of the accused-company on the date of issuance of the cheques in question, which were admittedly signed by accused No. 2, the Managing Director. There is no other specific allegation against the petitioner.

The question whether the accused-company committed the offence is quite distinct from the question whether the complaint against the company is maintainable or not. The questions need not be gone into in the present proceeding which has been initiated by the petitioner, a Director of the accused-company - Application disposed off.
2017 (2) TMI 1491

Characterization of income - Entertainment tax receipt - revenue receipt OR capital receipt - HELD THAT:- We find that the claim of subsidy at various Multiplexes from Serial No. 1 to 9 above have been accepted as capital receipt in earlier years. This has not been disputed by any of the lower authorities. The only dispute relates to the subsidy received from the Government of Rajasthan . It is also not in dispute that in pursuance of the terms of scheme introduced by the Government of Rajasthan to encourage construction of new cinema halls, assessee was running a cinema hall. It is also not in dispute that the assessee could receive the subsidy only after the fulfillment of the mandatory conditions. These facts have not been controverted by any of the lower authorities. Thus we direct the A.O. to treat the amount as a capital receipt.

Disallowance u/s 14A r.w.r. 8D - HELD THAT:- It is not in dispute that the assessee has not received any exempt income during the year under consideration. The disallowance has been made on finding of the fact that the assessee has made certain investments out of borrowed funds. In our considered opinion, since the assessee has not earned any exempt income, no disallowance u/s. 14A read with Rule 8D is called for. Our view is also fortified by the decision of the Hon’ble High Court of Gujarat in the case of Corrtech Energy Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT]held “that the Tribunal had recorded the finding of fact that the assessee did not make any claim for exemption of any income from payment of tax. Hence, no disallowance could be made u/s. 14A.

Deduction of amortization of value of stock options to employees - HELD THAT:- As relying on First Appellate Authority derive support from the findings of the Special Bench of the Tribunal in the case of Biocon Ltd [2013 (8) TMI 629 - ITAT BANGALORE]amount being remuneration to employees by way of Employees' Stock Option Plan debited to profit and loss account is an allowable expenditure u/s 37(1).
2017 (2) TMI 1490

Refund of SAD - denial of refunds on the ground that the respondent had not paid Value Added Tax (VAT) on this stock transfer to their DTA unit - 22/2006-CE dated 01.03.2006 - HELD THAT:- The Revenue’s appeal has no merits for the simple reason that identical issue has been settled by the Tribunal in the case of M/S MICRO INKS VERSUS CCE. & ST. DAMAN [2014 (2) TMI 207 - CESTAT AHMEDABAD] wherein the bench, after considering all the arguments made in Para 10, specifically dwelled into the entire issue of notification and exemption of sales tax and held that The inter unit clearance from EOU to DTA are not exempted from payment of sales tax by the state government by any notification and as revenue unable to bring on record any notifications issued by the state government or otherwise to indicate that inter unit transfers from EOU to DTA are exempted.

The credit taken by the respondent is correct and legal and does not require any interference - Appeal dismissed - decided against Revenue.
2017 (2) TMI 1489

Levy of Service tax - security services or not - providing security services by Police Department to various firms/organizations for commercial consideration and collected verification charges - HELD THAT:- An identical issue has come up before this Tribunal in the assessee-Appellant’s own case THE DEPUTY COMMISSIONER OF POLICE JODHPUR, SUPERINTENDENT OF POLICE VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, JAIPUR- [2016 (12) TMI 289 - CESTAT NEW DELHI] where it was held that police department, which is an agency of the State Govt., cannot be considered to be a person engaged in the business of running security services. Consequently, the activity undertaken by the police is not covered by the definition of Security Agency under Section 64(94) of the Act.

Demand cannot sustain - appeal allowed - decided in favor of appellant.
2017 (2) TMI 1488

Remission of duty - Burglary - Cigarettes - It is the contention of the appellant – assessee that since the goods have been lost on account of burglary before the clearance of the same from the factory, remission of duty should be granted under Rule 21 of the Central Excise Rules - HELD THAT:- Commissioner (A) has declined to consider the request of the appellant for grant of remission for the reason that this is not the subject matter of the proceedings before him. Further the appellant has lodged an FIR with the Police Department alleging theft in his factory. It is also likely that police by now would have concluded the investigations into the allegation of burglary and their conclusion may be available.

In the show cause notice as well as order in original the main allegation which has been considered and discussed is that the appellant has clandestinely cleared the goods and hence will be liable to pay the Central Excise duty thereon. The proper authority to consider the remission of duty in respect of goods lost in terms of Rule 21 of the Central Excise Rules will be the Jurisdictional Commissioner of Central Excise. The Commissioner (A) has concluded that from the evidence on record no case of clandestine clearance has been made out against the appellant.

It is not known whether the appellant has already approached the Jurisdictional Commissioner for grant of remission of duty under rule 21 in respect of goods which they have claimed to have been lost in burglary. Since the duty liability on the cigarettes found missing in the factory is intricately connected to the claim for remission of duty, the entire case needs to be re-examined.

Case remanded to the Jurisdictional Commissioner for a denovo decision in the matter - Appeal allowed by way of remand.
2017 (2) TMI 1487

Refund of Service Tax paid - time limitation - period for filing the refund claim in the original Notification was 60 days from the end of quarter - amendment to 6 months vide amending Notification No. 32/08 - applicability of Board’s Circular No. 112/6/2009 - discrepancies in the invoices too - HELD THAT:- As per the Board’s Circular No. 112/6/2009 dated 12.3.2009, the amended and extended period of 6 months would apply to pending refund claims.

The issue is no more res integra and stand settled by the Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, SURAT VERSUS ESSAR STEEL LTD. [2010 (9) TMI 334 - CESTAT, AHMEDABAD] laying down that extended period of limitation of six months vide notification No. 32/08 ST dated 18.11.08 has to be given effect retrospectively and would equally apply to pending refund claims - As such, inasmuch as all the refund claims stand filed within a period of six months from the end of quarter for which they have been filed, there are no merit in the Revenue’s contention.

Discrepancies in the invoices - HELD THAT:- The appellate authority has examined every invoice and has rightly observed that even if there are some discrepancies in the invoices, entire refund claim cannot be denied on that ground. He has also observed that all the substantiated conditions stand fulfilled by the respondent and has also examined the work sheet placed on record by the appellant containing all the related details. Revenue in their memo of appeal have not been able to bring out any such substantiated condition, which is leading to denial of the refund claims - there are no infirmity in the views adopted by the Commissioner (Appeals), thus requiring any interference.

Appeal of Revenue dismissed.
2017 (2) TMI 1486

Refund of Service Tax - Time limitation - authorities took a view that such refund claims were required to be filed within one year from the date of issue of invoices and as such, after following the due process of law, rejected the same on point of limitation - HELD THAT:- It is seen that during the appellate proceedings, the appellant relied on the Tribunal’s decision in the case of COMMISSIONER OF CENTRAL EXCISE, PUNE-III VERSUS M/S COMPUTER LAND UK LTD. [2016 (2) TMI 609 - CESTAT MUMBAI]. In the said decision, Tribunal has considered the same issue and has observed that unless the entire quarter is completed, the exporter cannot file his refund claim and as such, the refund claims filed within one year from the end of relevant quarter are required to be considered as having been filed well within time.

Revenue is not disputing the fact that the issue stand covered by the said decision of the Tribunal. However, the appellate authority has not followed the same but simply observed that there is nothing on record to show that the same has attained finality. It is not the Revenue’s case that the said decision has been appealed against by the Revenue and stand reversed. In the absence of any such fact on record, the law declared by the Tribunal was binding on the lower authorities and the Appellate Commissioner was under a legal obligation to follow the same.

There are no justification for taking a different view - appeal allowed - decided in favor of appellant.
2017 (2) TMI 1485

Non-payment of service tax - C&F Agency service - Reimbursement expenses - certain portion of consideration received from the client - HELD THAT:- On careful perusal of the terms of agreement and the supporting documents submitted by the appellant alongwith the relied upon case laws it is clear that the appellant shall not be liable to service tax on the amount claimed by them from their clients towards reimbursable expenditure with reference to arranging transport of cement to customers from their storage premises. This is in terms of their agreement with the client and the amounts are on actual basis. The transport documents nowhere indicates the name of the appellant. As such based on the decided cases referred to above by the appellant, it is clear that such amounts are not to be included in the assessable value to determine the tax liability under C&F Agency service.

Wherever the amounts are reimbursed on actual basis in terms of contractual agreement as supported by documentary evidence, the same is not liable to be added in the taxable value. The amount liable for exclusion are to be verified and satisfied by the jurisdictional officers - Appeal allowed by way of remand.
2017 (2) TMI 1484

Revision u/s 263 - disallowance of royalty and technical fees - AO disallowed 25% of the expenditure as capital expenditure - HELD THAT:- On this disallowance we do not agree with the order of ld CIT to hold that 75% of amount of expenditure allowed by the AO is erroneous and prejudicial to the interest of the revenue. Furthermore, the ld CIT has set aside the issue to the file of Assessing Officer to carry out the full enquiries in the matter. It is also contrary to the principal laid down by the Hon'ble Delhi High Court in CIT Vs. Jyoti Foundation [2001 (11) TMI 48 - GUJARAT HIGH COURT] and DG Housing [2012 (3) TMI 227 - DELHI HIGH COURT]. It can also be not said that there is lack of enquiry on the aspect of allowability of expenditure. The ld Assessing Officer himself raised the query with respect to the allowability of the above expenditure is revenue expenditure, considered the reply of the assessee, thereafter has reached at a conclusion that 25% of the expenditure is capital in nature. Therefore the Ld. assessing officer has examined the expenditure with reference to capital expenditure versus revenue expenditure and its allowability vis a vis quantum also. Therefore, it cannot be said that the view taken by the AO is erroneous. Furthermore, ld CIT has failed to establish what is the error committed by the Assessing Officer. He has merely stated that in the order of the ld Hon'ble High Court in Southern Switchgear [1983 (3) TMI 18 - MADRAS HIGH COURT] there are two other decisions of Hon'ble High Court were referred where 50% and 100% of the expenditure were held to be capital in nature. Therefore, it is clearly discernible that ld CIT is just questioning the estimate made by the Assessing Officer. Therefore, we are not inclined to uphold the order of ld CIT u/s 263 of the Act on this count.

Disallowance of 25% model fee holding it as capital in nature - HELD THAT:- The issue of allowability of the model fee has also been examined by the Hon’ble high court in case of the assessee wherein it has been held to be revenue in nature and fully liable to the assessee.

During the course of assessment proceedings the Ld. assessing officer has raised the adequate queries on this point which was also replied by the assessee therefore we are not inclined to hold that it is also a case of Lack of Inquiry.

Therefore for similar reasons given by us on the issue of royalty and technical guidance fees for this ground also we are not inclined to uphold the order of the Ld. CIT holding that the order of the Ld. Assessing officer is erroneous and prejudicial to the interest of revenue.

TDS u/s 195 on export commission - HELD THAT:- AO has made due enquiry in applicability of withholding tax on export commission and when the claim of the assessee is also supported by 2 circulars we do not find any infirmity in the order of the Ld. assessing officer in allowing the export commission to a foreign party when no services have been rendered in India. It is also not the case of the Ld. CIT that income of the agent is chargeable to tax in India when the recipient is resident of Japan.

CIT has incorrectly assumed jurisdiction on this issue. Further, the issue has already been decided in favour of the assessee by the coordinate bench in assessment year 2006 – 07 and 2007 – 08 allowing the claim of the assessee of export commission; therefore it cannot be said that the view taken by the Learned assessee officer was erroneous in allowing the claim of the assessee of the export commission.

CIT has also not referred to any of the judicial precedents where the export commission has been held to be royalty or fees for technical services none has been brought to our notice by the learned CIT during the course of hearing - Thus not possible to hold that the order of the Ld. assessing officer was erroneous. Therefore we quash the order of the Ld. CIT in assuming jurisdiction under section 263 of the income tax act with respect to allowance of export commission.

Double disallowance of depreciation - HELD THAT:- Claim is allowed is related to the assessee in the consequential order dated 26/10/2009 passed under section 143 (3) read with section 263 of the income tax act therefore it is unfair for Ld. CIT to assume jurisdiction under section 263 of the income tax act.

Additional depreciation on the computers - HELD THAT:- The query was raised during the course of the assessment proceedings which was replied on 01/12/2006 explaining the fulfillment of conditional for claim of additional depreciation with risk back to various assets. As claimed by the assessee that this issue has been decided in favour of the assessee by dispute resolution panel in its own case for assessment year 2006 – 07 therefore it cannot be said that the claim allowed by the ld. assessing officer is erroneous at all. In view of this we cannot sustain the order of Ld. CIT in assuming jurisdiction under section 263 of the income tax act, as it cannot be said that the order of the Ld. assessing officer in allowing additional depreciation on computers is erroneous as well as prejudicial to the interest of the revenue. - Assessee appeal allowed.