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Showing 61 to 80 of 1271 Records
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2015 (6) TMI 1220
Refund of CENVAT Credit in cash - credit already utilized for payment of Central Excise duty - HELD THAT:- Cenvat credit originally used by them for payment of duty is liable to be restored in their Cenvat account, once the appellant has subsequently paid the duty in cash. The accumulated Cenvat credit cannot be allowed to a manufacturer, on the closure of their factory inasmuch as there is no provision for refund of such unutilized accumulated credit, in the Cenvat credit Rules. Accumulative reading of the said rules leads to conclude that the credit so availed by an assessee can be used for payment of duty or the final product. It is not a case where such credit was available to the appellant for utilization.
As such in the absence of any provision for refund of such accumulated credit, the refund of such credit cannot be allowed in cash - Appeal dismissed - decided against appellant.
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2015 (6) TMI 1219
CENVAT Credit - all points raised by appellants were not considered by by first appellate authority - principles of natural justice - HELD THAT:- It is to be seen that the first appellate authority has not considered any of the points raised by the appellants in its correct perspective and has not recorded any findings in the impugned order.
These appeals need reconsideration in the hands of the first appellate authority - the appeals are allowed by way of remand to the first appellate authority, with a direction to restore the appeals to their original number and dispose them of by a reasoned order, after following the principles of natural Justice.
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2015 (6) TMI 1218
Penalty u/r 27 of CER - non-renewal of letter of undertaking - allegation that the requirements under Notification No. 42/2001-C.E.(N.T.) dated 26.06.2001 not complied with - scope of SCN - HELD THAT:- Undisputedly the Notification No. 42/2001-CE(NT) dated 26.06.2001 does not state that the LUT has to be renewed every twelve months. The notification says that “the manufacturer-exporter may furnish a letter of undertaking in the form specified in Annexure II in lieu of a bond”. In para 3.4 of Chapter 7 of CBEC’s Central Excise Manual of Supplementary Instructions, 2005 it is seen stated that the “Letter of undertaking shall be valid only for a period of twelve months”. Needless to say that instructions are issued by the Board to bring uniformity in administration of law.
The appellant here in has submitted the triplicate and quadruplicate copies of the relevant ARE-I. In such circumstances when proof of export is on record the failure if any, to comply with such instruction which is not in accordance with the Notification No. 42/2001-CE(NT) dated 26.06.2001 cannot be held to be procedural lapse. The purpose sought to be achieved by such instruction is to establish the genuineness of export of goods. When the proof of export is on record otherwise, to give undue reliance upon the instruction is not called for.
The imposition of penalty is otherwise also unwarranted for the reason that the show cause notice does not mention of levy of penalty under Rule 27 of Central Excise Rules, 2002 - Appeal allowed - decided in favor of appellant.
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2015 (6) TMI 1217
Reopening of assessment u/s 147 - partnership firm Citi Plaza, in which the assessee had 25% share, had issued three post dated cheques and made bank payments towards principal and towards interest, whereas the above “payments were much more than the income declared by the assessee” - HELD THAT:- Here is a case in which the very reasons on account of which the CIT(A) has deleted the quantum additions were also good enough to hold that the initiation of reassessment proceedings is bad in law and yet the CIT(A) was fighting shy of the logical conclusions thereto and natural corollaries to these findings.
The relief so granted by the CIT(A), on the basis of which the additions in respect of the reasons recorded for reopening the assessment were deleted and which were, in our considered view, good enough to quash the reassessment itself, is not even challenged in further appeal. These findings of the CIT(A) have thus reached finality. and are not even in dispute before us. If such be the facts, there can be no justification for taking these findings to its logical conclusions and, based on these uncontroverted findings, quash the reassessment itself. What held good for deleting the additions on the basis of the reasons recorded the assessment, on the fact of this case and in our humble understanding, was good enough to hold the reasons for reopening the assessment to be incorrect as well. We are unable to see any legally sustainable reasons to come to different conclusions. In our considered view, therefore, the CIT(A) ought to have quashed the reassessment as well.
Bearing in mind entirety of the case, we hold that the CIT(A) ought to have, on the peculiar facts and circumstances of the case, quashed the reassessment proceedings as well. We, therefore, quash the reassessment proceedings. As reassessment itself is quashed as above, nothing else survives for adjudication.
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2015 (6) TMI 1216
Fraudulent IPO - Screen based trading with manipulative or fraudulent intent - Restraint orders - preferential allotment of the shares of Eco, Esteem, CNE and HPC, and, thereafter getting those shares listed on the stock exchange so as to avail exemption on LTCG tax gains - HELD THAT:- The transactions in the said scrips were with a premeditated understanding, plan, device or artifice. In the present matter, once the shares of these companies got listed in SME segment of BSE, the Trading Group entities manipulated the price/volume of the scrips and then provided profitable exit to preferential allottees and Pre IPO transferees. Moreover, in any market, a sudden supply if not matched by similar demand leads to price fall. Considering the same, any rational investor would not have dumped a large number of shares without facing the risk of a significant price fall until and unless he was sure of the demand side absorbing the supply. In this case, the entities of Trading Group created the demand against the supply from the preferential allottees/pre IPO transferees. In the whole process, the principle of price discovery was kept aside and the market lost its purpose. It is evident from the above analysis that the Trading Group entities provided a hugely profitable exit to the preferential allottees and pre IPO transferees.
Preferential allottees, pre IPO transferees acting in concert with Funding Group and Trading Group have used the stock exchange system to artificially increase volume and price of the scrip for making illegal gains and to convert ill-gotten gains into genuine one. However, the whole scheme could not have been possible without the involvement/ connivance of companies and their promoters and directors.
The acts and omissions were prima facie for generating fictitious LTCG so as to convert unaccounted income of preferential allottees and pre-IPO transferees into accounted one with no payment of taxes as LTCG is tax exempt under section 10(38) of Income Tax Act, 1961. I prima facie find that the above modus operandi helped the concerned entities to not pay income tax on account of LTCG and helped them to show the source of this income to be from legitimate source i.e. stock market.
The manipulation in the traded volume and price of the scrip by a group of connected entities in this case, has not only resulted in enabling illegal benefit to a group of entities but also has the potential to induce gullible and genuine investors to trade in the scrip and harm them. As such the acts and omissions of companies, Funding Group, Trading Group entities, preferential allottees and pre-IPO transferees are “fraudulent’ as defined under regulation 2(1)(c) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (“PFUTP Regulations‟) and are in contravention of the provisions of Regulations 3(a), (b), (c) and (d) and 4(1), 4(2)(a), (b), (c), (d), (e) and (g) thereof and section 12A(a), (b) and (c) of the Securities and Exchange Board of India Act, 1992.
Certain market manipulations are taking place in the scrips of Eco, Esteem, CNE and HPC. I note that currently major portion of the shareholding (around 35.43% in Eco, 41.10% in Esteem, 41.01% in CNE and 56.22% in HPC) is lying with the preferential allottees, pre IPO transferees, Funding Group, Trading Group and the promoters/directors of these companies. It is also pertinent to mention that Eco and Esteem have already obtained approval of shareholders for migrating from SME platform to Main Board of BSE. If these companies are allowed to shift to Main Board of BSE, the minimum Bid Size of ₹ 1 Lakh, which is currently present in SME segment of the exchange, will not be applicable in the Main Board. Consequently, it will increase the liquidity in the scrips as well as very small investors, who are kept away from SME segment through Minimum Bid Size, may also be induced to invest in these companies.
Unless prevented they may use the stock exchange mechanism in the same manner as discussed hereinabove for the purposes of their dubious plans as prima facie found in this case. In my view, the stock exchange system cannot be permitted to be used to achieve unlawful benefits whether tax related or otherwise. Considering these facts and the indulgence of a listed company in such a fraudulent scheme, plan, device and artifice as prima facie found in this case, I am convinced that this is a fit case where, pending investigation, effective and expeditious preventive and remedial action is required to be taken by way of ad interim ex -parte in order to protect the interests of investors and preserve the safety and integrity of the market.
In order to protect the interest of the investors and the integrity of the securities market in exercise of the powers conferred upon in terms of section 19 read with section 11(1), section 11 (4) and section 11B of SEBI Act, 1992, pending inquiry/investigation and passing of final order in the matter, hereby restrain the concerned persons/entities from accessing the securities market and buying, selling or dealing in securities, either directly or indirectly, in any manner. The stock exchanges and the Depositories are directed to ensure that all the above directions are strictly enforced.
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2015 (6) TMI 1215
Review application - error apparent on the face of record or not - alleged failure and/or refusal of the Judgment-debtor, to clear the bills raised by the applicant respondent No. 1 on the Judgment-debtor - whether the movable properties of the Judgment debtor could have been sold to the appellant, Amrit Fresh Private Ltd. under the provisions of the SARFAESI Act? - HELD THAT:- An application for review on the ground of discovery of fresh evidence is also to be refused, unless it can be shown that such evidence could not have been produced at the time of hearing, in spite of diligence. It is well-settled that an apparent error on the face of the record may be a ground for review. However, it is to be shown that the error is so manifest and clear that no Court would permit such an error to remain on record. It is true that the error is not limited only to facts but may also include errors of law, but the law must be definite and capable of ascertainment. An erroneous view of the law on a debatable point or a wrong exposition of law or a wrong application of the law or a failure to apply the proper law cannot be considered a mistake or error apparent on the face of the record.
Thus, an order may be reviewed where the Court has failed to consider important facts on record, or provisions of law, which go to the root of the jurisdiction of the Court, or where the Court fails to consider an important plea or issue, or where the case is an exceptional one, as the point involved is one of general importance.
The seller, that is, Indian Bank, would not accept any claim or responsibility on this account, and would not be held accountable or be asked to reimburse any amount in this regard. Clause 13 covers claims, disputes or litigation relating to the property and not money claims against the owner of the property. The contention that the appellant, Amrit Fresh Pvt. Ltd. was liable to satisfy the dues of the Judgment-debtor in terms of the award, cannot therefore be sustained. The sale may have been made on "as is where is and as is what is basis" as observed by the learned Single Bench. However, the Hon'ble Appeal Court very rightly found that there was no basis for the finding of the Single Bench that the properties of the Judgment-debtor purchased by the appellant Amrit Fresh Pvt. Ltd. under the SARFAESI Act were encumbered. The Hon'ble Appeal Court rightly held that the appellant, Amrit Fresh Pvt. Ltd., the purchaser in an auction sale, for valuable consideration had no liability to discharge the debts of the Judgment-debtor.
The application for review is dismissed.
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2015 (6) TMI 1214
Penalty u/s 271(1)(c) - estimation of income - bogus purchases - HELD THAT:- There is merit in the contentions of the assessee. Admittedly, the AO has disallowed 20% of purchases only on presumptions without establishing fully that the assessee has made purchases from grey market. Even, if it is assumed for a moment that the assessee might have purchased goods from grey market, it was not established that the amount of purchases was less than that recorded in the books of account. Under these set of facts, it has to be held that the impugned addition has been made only on estimated basis that too on presumptions only. Hence, by following the decision rendered by the Tribunal in the assessee’s sister concern’s case [2015 (1) TMI 521 - ITAT MUMBAI] we hold that the impugned penalty is liable to deleted. Accordingly, we set aside the order of Ld CIT(A) and direct the AO to delete the penalty levied u/s 271(1)(c) of the Act. Appeal filed by the assessee is allowed.
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2015 (6) TMI 1213
Characterization of income - income from sale of tender documents - Addition under the head “income from other sources” - CIT-A Treated the receipt as capital receipt - HELD THAT:- We find that undisputedly the assessee has earned income from sale of tender documents during the course of setting up of plant. Since the assessee has earned income before commencement of the business of the assessee, it was to be capitalized and the assessee accordingly treated the receipt as capital receipt and adjusted against expenses reducing the cost of the project.
CIT(A) examined this issue in the light of various judicial pronouncements and thereafter treated the receipt as capital receipt. Since no infirmity has been pointed out in the order of the ld. CIT(A) during the course of hearing, we find no justification to interfere with his order. We accordingly confirm the order of the ld. CIT(A) in both the assessment years. - Decided against revenue.
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2015 (6) TMI 1212
Maintainability of appeal - Territorial Jurisdiction - HELD THAT:- The appellant assessee has its manufacturing Unit located within the Union Territory of Daman. In view of clause (b) of Section 36 of the Central Excise Act, 1944, which contains definition of the term “High Court” in relation to Union Territory of Daman & Diu and Dadra & Nagar Haveli, the jurisdiction would be of High Court of Bombay. In that view of the matter, this Tax Appeal is not maintainable before the Gujarat High Court and Gujarat High Court does not have any territorial jurisdiction over the matters decided with regard to Union Territory of Daman & Diu and Dadra & Nagar Haveli irrespective of the fact that the Tribunal is situated at Gujarat.
This Tax Appeal is dismissed for want of territorial jurisdiction with a liberty to the appellant to seek his remedy in appropriate forum.
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2015 (6) TMI 1211
Taxability in India - whether SAS BV (IGN BV) was not a conduit for the assessee or a sham entity - as per AO no commercial expediency in setting up via media companies and the only aim of this arrangement was to avoid assessee's direct taxability in India - HELD THAT:- In the present appeal, the revenue is seeking to tax the very same income which has already been subjected to tax in the hands of SAS BV (IGN BV). This, even after the Tribunal by order [2010 (5) TMI 894 - ITAT MUMBAI] has already held that SAS BV (IGN BV) is not a conduit or a sham entity and they are chargeable to tax on the income earned on account of their advertisement activity. In the above view, the impugned order holds that there can be no occasion to tax the same income in the hands of the respondent-assessee when the same has been subjected to tax in the hands of M/s.SAS BV (IGN BV).
So, bearing in mind that the revenue has accepted the order of the Tribunal in case of SAS BV (IGN BV). It is relevant to note that, for the Assessment Year 2000-01 and 2002-03 on the same issue in respect of SAS BV (IGN BV), the revenue had challenged in this Court the order of the Tribunal holding that SAS BV (IGN BV) is not a conduit of Star Limited, the respondent-assessee herein [2013 (3) TMI 847 - BOMBAY HIGH COURT].This Court on 13 March 2013 dismissed the revenue's appeal for the Assessment Years 2000-01 and 2003-03. No substantial question of law
Accrual of income - advertisement revenues - cash system of accounting as adopted by the assessee - HELD THAT:- This issue stands concluded in favour of the assessee by the decision by this Court in the case of Pfizer Corporation v/s C.I.T. [2002 (11) TMI 80 - BOMBAY HIGH COURT] wherein it is held that a non-resident has an option to follow either the cash system or mercantile system of accounting. It is contended on behalf of the revenue that, in view of the decision of the Supreme Court in Standard Motors v/s C.I.T., [1993 (2) TMI 9 - SUPREME COURT] it is not open to the non-resident to follow the cash system of accounting. We find that the Apex Court has in fact not touched upon this aspect and has observed that the method of accounting adopted in the facts of the case are irrelevant and thus there is no occasion to examine the same. No fault can be found with the impugned order. Accordingly, question No.2 cannot be entertained as it does not give rise to a substantial question of law.
Interest under Section 234A - Tribunal held that as no income has accrued or arisen to the assessee, interest under Section 234A was not chargeable to assessee - HELD THAT:- . The aforesaid finding of the Tribunal is based on having held that the income arising on account of adversement sales is taxable in the hands of SAS BV (IGN BV) for the reasons indicated while considering question No.1. This finding of fact is not shown to be perverse. Thus, no substantial question of law arises with regard to question No.3. Accordingly, question No.3 cannot be entertained.
Interest under Section 234C not chargeable - HELD THAT:- We find that the impugned order of the Tribunal has merely followed the decision of this court in D.I.T. v/s NGC Network Asia, [2009 (1) TMI 174 - BOMBAY HIGH COURT]. Moreover, once it is held that no income has arisen or accrued in the hands of respondent assessee, the question of payment of any interest does not arise. Accordingly question No.4 does not raise any substantial question of law. Thus not entertained.
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2015 (6) TMI 1210
Restraint on respondent from terminating the SAP Software End-User License - Whether in view of the order dated April 30, 2015 the petition under Section 9 of the Act, seeking relief of injunction against notice dated December 30, 2014 has become infructuous? - Whether in the facts of this case, the agreement in its very nature determinable and no injunction of termination notice dated April 30, 2015 can be granted? - Whether in the facts of this case, in view of the Explanation (ii)(a) to Section 10 of the Specific Relief Act, 1963, the relief for specific performance can be granted? - Whether, in view of the agreement having been terminated, an injunction can be granted to the termination notice dated April 30, 2015? - HELD THAT:- Clause 2.1 of the MOU stipulated that the MOU shall come into force on the date of execution of the MOU and shall be valid for a term of 240 days from the date of execution of the MOU unless mutually extended or till the execution of definitive agreements, whichever is earlier. It is clarified that the MOU shall be superseded by the definitive agreements - Clause 5.1 of the MOU stipulated that the NTCL shall have the right to terminate the MOU forthwith upon serving written notice on the strategic partner in the event the definitive agreements are not executed to the full satisfaction of NTCL within 240 days of the date of execution of the MOU. Clause 5.2 of the MOU stipulated that either party shall have the right to terminate the MOU upon the happening of the following events by giving the other party 30 days‟ prior notice in writing; (i) should the other party become insolvent or a Receiver is appointed in respect of its properties (ii) should the other party commit a breach of any of the provisions of the MOU which is not remedied with 30 days of the receipt of written notice in this respect from the non-defaulting party.
The reasons for terminating the MOU were, that in terms of clauses 2.1 and 5.1 of the MOU as the definitive agreements were not executed by KSL (Petitioner) NTCL had the right to terminate the MOU. Similarly, the MOUs entered into by the other two petitioners were also terminated by NTCL.
Since we are concerned with (ii) of clause 5.1 (akin to clause 27) which contemplates 30 days notice by the respondent to the licensee i.e. the petitioner herein, of material breach of any provision of the agreement including more than 30 days delinquency in licensee‟s payment of any money due under the agreement unless the licensee, the petitioner herein, has cured such breach during such 30 days‟ period.
The learned Single Judge dismissed the appellant‟s application on the ground that injunction prayed for was statutorily prohibited on conjoint reading of Section 41 and Section 14(1)(c) of the Specific Relief Act, 1963 since the contract in question was determinable in nature. The appellant‟s case was that the contract was not determinable in nature as contemplated by Section 14(1)(c) of the Specific Relief Act, 1963 since there is no clause in the agreement, which permits the respondent to terminate the agreement by giving a notice of a few days. This Court has held, although the clause does not add the word "by the parties or by the defendant" yet that is the sense in which, it ought to be understood - The Court went on to hold that all revocable deeds and voidable contracts may fall within "determinable" contracts and the principles on which specific performance of such an agreement would not be granted is that, the Court will not go through the idle ceremony of ordering the execution of a deed or instrument which is revocable at will of the executants.
No relief can be granted to the petitioner and the petition is dismissed.
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2015 (6) TMI 1209
Revision u/s. 263 - revision ordered for short deduction of TDS - HELD THAT:- This is merely a case of short deduction of TDS. Admittedly, the assessee has made labour payment or debited labour payment in the P&L Account and deducted TDS i.e. @ 1%. At best this can be a case for short deduction.
Short deduction no disallowance can be made by invoking the provisions of section 40(a)(ia). This view of ours is fortified by the decision in the case of CIT Vs. M/s. S. K. Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT] wherein held Sec 40(a)(ia) can be invoked only when the two conditions, namely, that tax is deductible at source and such tax has not been deducted is satisfied. Where tax is deducted by the assessee under a wrong provisions of TDS and there is a shortfall, u/s 40(a)(ia) disallowance cannot be made.
As the issue of short deduction is settled revision proceedings initiated by CIT u/s. 263 are invalid and hence, quashed. - Appeal of assessee is allowed.
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2015 (6) TMI 1208
Non prosecution of appeal by assessee - HELD THAT:- As on the date of hearing i.e. 29.06.2015 none appeared on behalf of assessee nor filed any adjournment petition. This shows that assessee is not interested in prosecuting this Appeal.
It is clear that the assessee is not interested in prosecuting these appeals, and accordingly, following the decision of the Multiplan (India) (P) Ltd., [1991 (5) TMI 120 - ITAT DELHI-D] we dismiss this appeal filed by assessee for want of prosecution.
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2015 (6) TMI 1207
Interest expenditure incurred allowable - Addition u/s 36(1)(iii) or u/s 14A - HELD THAT:- Assessee company is engaged in the business of finance and investment in equity shares. The borrowed capital was used for acquiring the equity shares of the subsidiary to have controlling interest. The proposition of law laid down in the case of “Phil Corpn. Ltd.” [2011 (6) TMI 912 - BOMBAY HIGH COURT] is squarely applicable to the case of the assessee.
In the case of “Eicher Goodearth Ltd. vs. CIT” [2015 (5) TMI 685 - DELHI HIGH COURT] has held that if the expenditure is incurred for the purpose of promotion of business more specifically to retain control or as part of the strategic investment of the assessee company, such expenses by way of interest out go would have to be treated as allowable under section 36(1)(iii) . The above decision of the Hon’ble Delhi High Court is also squarely applicable to the facts of the case of the assessee.
Since the interest expenditure incurred by the assessee is allowable under section 36(1)(iii) as business expenses, there is no question of disallowance of the same u/s 14A of the Act on account of investments made in relation to earning of exempt income. The facts on the file clearly reveal that the investment in the shares of the subsidiary company was not made for the purpose of earning of any exempt income rather it was made for gaining controlling interest over the subsidiary which as per the law laid down in the case of “CIT, Panaji, Goa vs. Phil Corpn. Ltd.” [2011 (6) TMI 912 - BOMBAY HIGH COURT] and “Eicher Goodearth Ltd. vs. CIT” [2015 (5) TMI 685 - DELHI HIGH COURT] is held to be for the purpose of promotion of the business of the assessee.
Even it is also an admitted fact that the assessee during the year had not earned any exempt income. The AO had made the disallowance under section 14A relying upon the decision of the special bench of the Tribunal in the case of “Chem. Investments vs. ITO” [2009 (8) TMI 126 - ITAT DELHI-B]. However, we find that the said special bench decision of the Tribunal has been overruled by the Hon’ble Delhi High Court in the case of “Chem. Investments [2015 (9) TMI 238 - DELHI HIGH COURT] wherein the Hon’ble Delhi High Court has held that the section 14A will not apply if no exempt income is received or receivable during the relevant previous year.
Even otherwise, no disallowance is warranted under section 14A of the Act also, in the case of the assessee.
Neither any interest disallowance is warranted in this case under section 36(1)(iii) of the Act nor under section 14A of the Act. Appeal of the assessee is hereby allowed.
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2015 (6) TMI 1206
Deduction u/s 80IA(4)(i) - Whether widening of existing roads constitute creation of new infrastructure facility for the purpose of section 80IA(4) - HELD THAT:- Section 80IA mainly speaks of development of infrastructure facility; whether widening of roads would amount to development of infrastructure facility has been clarified by the CBDT and the same is binding on the Revenue. In the light of the circular issued by CBDT and also the decision in the case of Rohan & Rajdeep Infrastructure [2013 (4) TMI 758 - ITAT PUNE] wherein circular No. 4/2010 was applied by the Tribunal to hold that widening of roads would amount to new infrastructure facility falling within the purview of section 80IA of the Act - the expression development of infrastructure facility includes widening of roads. Under these circumstances we do not find any infirmity in the order passed by the CIT(A). Appeal filed by the Revenue is dismissed.
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2015 (6) TMI 1205
TDS u/s 195 - remittances towards the cost of the software products imported from foreign suppliers - addition u/s 40(a)(ia) - Whether it is not royalty? - HELD THAT:- In view of the judgment of this Court in Samsung Electronics Pvt Ltd [2011 (10) TMI 195 - KARNATAKA HIGH COURT]as already the earlier order of the Tribunal is set aside by this Court, the impugned order passed, which is running counter to the said judgment, requires to be set aside and therefore, the appeal is allowed and the substantial question of law is answered in favour of the Revenue and against the assessee.
However, in the event the assessee succeeds before the Apex Court, it is clear that this order also cannot come into effect. The assessing authority shall therefore, pass an order under S.260(1A) of the Act, based on the outcome of the assessee’s appeal before the Apex Court. If the assessee loses his battle before the Apex Court, then before giving effect to this order, the assessing authority shall consider the application of Art.24(4) of the DTAA between India and the Netherlands.
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2015 (6) TMI 1204
Allowability of provision for gratuity debited to the Profit & Loss Account - applicability of provisions of section 43B and 40A(7) - HELD THAT:- We find that the issue adjudicated by the Tribunal for the assessment year 2007-08 [2014 (12) TMI 1356 - ITAT CHENNAI] is identical in principle to the one raised in this appeal. It is the decision of the Tribunal that provisions of section 40A(7) take precedence over the provisions of section 43B of the Act. Therefore, respectfully following the said decision of the Tribunal, we find that the order of the CIT(A) is fair and reasonable and it does not call for any interference. - Decided against revenue.
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2015 (6) TMI 1203
Rectification of mistake u/s 254 - scope and ambit of application u/s 254(2) - Wrong or erroneous recording and consideration of facts, Non-adjudication/Non-consideration of claim/ argument / submission of the assessee and All case laws cited and relied by assessee were not considered and discussed by the Tribunal in its order - HELD THAT:- It is not the case that the main appeal of the assessees were disposed off without granting opportunity to the assessee, rather the order has been passed by the Tribunal by objectively considering the facts and material available on record and that too after hearing both the parties. Through these miscellaneous applications, in our humble opinion, the assessee is trying to get the order reviewed, which is not permissible u/s 254(2) of the Act. The expression ‘mistake apparent on record’ , it is well settled, means a mistake either clerical, grammatical, arithmetical or of like nature, which can be detected without there being any necessity to reargue the matter or to reappraise the facts as appearing from the record can only be rectified. Likewise, the possibility of forming of a different opinion then the one expressed in the order passed u/s 254(1) cannot be treated as ground for entertaining the application u/s 254(2) of the Act.
We find that under the facts and circumstances available on record, possibly, the order was passed by the Tribunal after considering the arguments from both sides. Once the possible view has been taken, on the basis of material available on record, it cannot be said there is apparent mistake in the order which can be rectified u/s 254(2). See ANAMIKA BUILDERS PVT. LTD. [2001 (5) TMI 39 - CALCUTTA HIGH COURT] and POPULAR ENGINEERING CO. [2001 (1) TMI 76 - PUNJAB AND HARYANA HIGH COURT]
Totality of facts clearly indicates that there is no mistake apparent from record in the order of the Tribunal. Even otherwise, the order was passed by the Tribunal after considering the arguments advanced from both sides with high sense of responsibility and as mentioned earlier through these applications, the assessee is merely trying to get the orders reviewed/recalled, which is not permissible u/s 254(2) - Miscellaneous Applications, filed by the assessees, are dismissed.
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2015 (6) TMI 1202
Compounding of offence - release of detained goods alongwith vehicle - case of petitioner is that the second respondent has no jurisdiction or authority, as he is not the assessing authority to compound the offence on receiving the amount - Circular No.33/2014 Q4/7752/2014 dated 17.7.2014 - HELD THAT:- Mere reading of Rule 15(1) & 15(4) of the TNVAT Rules says that the officers of Commercial Taxes Department not below the rank of Deputy Commercial Tax Officer shall be the officer prescribed for the purposes of Sections 65, 66, 67, 68 and 69. Although this may be so, the Circular No.33/2014 Q4/7752/2014 dated 17.7.2014 issued by the Principal Secretary/Commissioner of Commercial Taxes, Chennai clearly shows that the movement of goods, if accompanied with a valid invoice, would satisfy the provisions of Section 68 of the TNVAT Act, hence, there is no offence falling under Section 71(5)(a) of the TNVAT Act. Further, when Rule 15(1) totally excludes the operation of Section 72(1)(a) of the TNVAT Act and also for the reason that the movement of goods were accompanied with valid invoices as per Section 68 of the TNVAT Act, the impugned goods detention notices issued by the second respondent in both the writ petitions are liable to be set aside.
The impugned orders are set aside and the respondents are directed to release the goods forthwith to the petitioners on production of a copy of this order - Petition allowed.
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2015 (6) TMI 1201
Reversal of ITC - the registration certificates of the sellers have been cancelled - TNVAT Act - HELD THAT:- When the purchases of goods from the these dealers were duly entered and reflected in the accounts and monthly returns filed, giving details of purchasers including the registration particulars, commodity code, value, rate of tax, amount of VAT and category of goods in the Annexure I of the said returns, the respondent, in the impugned orders, have not mentioned anywhere that the purchases of goods from the above dealers are doubtful or incorrect. That apart, the foundation upon which the respondent has passed the impugned orders clearly shows the reason that the certificates of registration of the dealers have been cancelled, reversal of ITC has to be effected against the petitioner.
The said approach adopted by the Assessing Officer is contrary to the settled legal position - the impugned orders are liable to be set aside and accordingly, the same are set aside.
Petition allowed.
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9911796707
