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Showing 81 to 100 of 2056 Records
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2019 (7) TMI 1977
Classification of goods - Mixed Fuel Oil manufactured by the appellant - classifiable under 2710 1119 as claimed by the department or under 2710 1990 as claimed by the appellant? - HELD THAT:- The issue that whether the Mixed fuel oil manufactured by the appellant M/s Gail India Ltd. is classifiable under 2710 1119 or 2710 1990 has been settled by this Tribunal in the appellant’s own case GAIL (INDIA) LTD. VERSUS C.C.E, & S.T. - VADODARA-II [2019 (5) TMI 574 - CESTAT AHMEDABAD] where reliance was placed in in the case of M/S GAIL (INDIA) LTD. VERSUS C.C.E & S.T. VADODARA-II (VICE-VERSA) [2019 (1) TMI 174 - CESTAT AHMEDABAD] where it was held that Revenue has not produced the necessary evidence to classify the product as motor spirit falling under heading 2710.99 (prior to 31.03.2005) and under tariff Heading 2710 19 90 (after 31.03.2005).
The impugned order is set aside, appeal is allowed.
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2019 (7) TMI 1976
Disallowance of depreciation on the cost of know-how and intangibles acquired from ORG of their division of Adex Business purchased along with all assets and liabilities the compendious heading of Goodwill - HELD THAT:- As gone through the order of the Tribunal and noticed that this issue was not adjudicated. Assessee stated that he is only interested in recalling of the ground.
We are of the view that the issue raised by assessee has not been adjudicated. Hence, the same requires adjudication. Hence, qua ground No. 3 only, the appeal of assessee is recalled.
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2019 (7) TMI 1975
Exemption to SEZ unit - authorised operations in a SEZ - Validity of conditions imposed - Board of approval refused to issue of Forms A1 and A2 on the ground that these forms cannot be issued with retrospective effect - it was held by High Court that the fifth respondent does not dispute the fact that the petitioners have fulfilled the terms and conditions stipulated in rule 22 of the SEZ Rules, 2006 and that if those Rules are considered on a stand alone basis, the petitioners would be entitled to the exemptions.
HELD THAT:- There are no reason to interfere with the impugned judgment and order of the High Court.
SLP dismissed.
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2019 (7) TMI 1974
Jurisdiction - power of DRAT to pass an order of complete waiver - whether it is mandatory either to ask for deposit 50% of the debts due or it may be reduced to 25% after recording reasons? - whether the appeal having been filed before the commencement of the amendment and the order has been passed after the amendment has come then in such circumstances whether the appellate authority was obliged to look into the amended provision of law?
HELD THAT:- Whenever amendment has come in Section 21 during the pendency of the application which was decided after the amendment then the amended provision of the Act would apply because unamended provision would go in oblivion and would not be applicable. In view thereof, there was hardly any power vested with the DRAT to have passed an order ignoring the amended provisions for the purpose of giving a complete waiver to the petitioner in the first petition which has been challenged by the petitioner in the second petition.
Once it is held that the DRAT had no jurisdiction at all to have waived the amount of pre-deposit of 50% or at the most even 25%, therefore, the order dated 26.12.2016 to entertain the appeal, filed by the petitioner in the first petition is bad in law. Even otherwise, the DRAT had no jurisdiction to observe that since the auction purchaser has already deposited the aforesaid entire auction money, therefore, in that circumstances, the guarantor was not liable to pay the pre-deposit amount. This finding is patently erroneous and illegal and therefore, the second petition is allowed, order dated 26.12.2016 is hereby set aside and the first petition is hereby dismissed as having been rendered infructuous as the order dated 13.04.2017 has become meaningless.
Petition dismissed.
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2019 (7) TMI 1973
Deduction u/s 36(1)(viia) for provision of standard assets as per the circular of RBI - whether this provision being as per law may be allowed? - HELD THAT:- As decided in case of Nawanshahr Central Co-op. Bank Ltd. [2018 (1) TMI 1683 - ITAT AMRITSAR] though section 36(1) (vii) states that deduction for provision is allowable in respect of provision for bad and doubtful debts, the computation of such deduction is made with reference to total income of the specified Banks based upon quantum of average advances. The deduction of the provisions is neither limited to the quantum of bad debts in the books nor is computed with reference to the quantum of standard assets. The deduction in this clause refers to allowable provisions of anticipated default on the loans and advances made in respect of total assets including standard assets and the claim of the assessee does not fall into the proviso to section 36(1) (viia) as the proviso deals with further deduction for provisions on bad and doubtful debts. The claim of the assessee is covered in the main provisions of section 36(1)(viia) .
In Vellore District Central Co-operative Bank Ltd. [2016 (2) TMI 158 - ITAT CHENNAI] held by the Tribunal that doubtful debts may be under different nomenclature and this will not disentitle the assessee for claiming deduction under the provisions of section 36(1)(viia) - thus delete the disallowance made by the AO. Decided in favour of assessee.
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2019 (7) TMI 1972
Disallowance of proportionate interest on borrowed funds @ 12% - assessee has not been able to establish that the funds were transferred to its sister company for the purpose of business - as per AO assessee is taking two different stands i.e. initially it was stated that the advance was given for the purpose of construction of a hospital and subsequently, it was stated that the advance was given with an intention to acquire shares in demerged company - HELD THAT:- On perusal of MoU between the assessee and USAIPL, we find that there is a clause that the assessee shall acquire the shares of the demerged company.
Assessee stated that the assessee could not acquire the equity shares initially because at that point of time the demerger of the said company has not yet taken place and on demerger, assessee had acquired the shares of the company, for which, he filed copies of the documents showing shareholding of the Kamineni Health Services Pvt. Ltd.
We find that the documents filed before us by the assessee, as additional evidence, go to the root of the matter and in the interest of justice, we admit the same and remit the issue to the file of the AO for de-novo consideration. Needless to say that the assessee shall be given fair opportunity of hearing in the matter. Appeal of the assessee is treated as allowed for statistical purposes.
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2019 (7) TMI 1971
Income deemed to accrue or arise in India - Treating salary and other related costs reimbursed to the appellant as Fees for Technical Services - taxing the amount received as reimbursement of the salary and other related costs as 'fees for technical services' in terms of section 9(1)(vii) of the Income-tax Act, 1961 as well as under Article 12 of India-Canada DTAA") - HELD THAT:- We find substance in the submissions made by Ld. Sr. Counsel since the perusal of documents on record reveal that the assessee has entered into employee secondment agreement with the Indian entity. Pursuant to Clause (6) of the agreement, the assessee was to be reimbursed with direct wages and benefit costs. The role and responsibilities of Mr. Anindya Ghosh, has been remunerated in the submissions dated 29/03/2016. The perusal of Form 16 & 12BA, as placed on record, would reveal that the Indian Entity has deducted due taxes against the aforesaid payments.
The matter would go back to Ld. AO for re-appreciation of correct facts and re-adjudication of the matter in the light of submissions made by Ld. Sr. Counsel. Needless to add hat adequate opportunity of being heard shall be granted to the assessee to substantiate its stand. Appeal stands allowed for statistical purposes.
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2019 (7) TMI 1970
Valuation of imported goods - Aluminum foil scrap - enhancement of value - rejection of transaction value of relying on guidelines and LME prices - HELD THAT:- It is seen that the value declared by the appellant is to the range of 30% to the value of the contemporaneous import. It is seen that sub-rule 2 of rule 4 clearly prescribes the exception when the sale involves any abnormal discount or revision from ordinary competitive price. In the instant case it is seen that the sale involves almost 70% discount from the ordinary competitive price of contemporaneous imports. In view of above, there was a jurisdiction in rejection of the declared invoice value.
It is however found that the original assessment in the case of bill of entry no. 105345 dated 15.05.2006 was done at USD 1500 PMT but after issuance of SCN the same was revised upwards to USD 1780 PMT. Both these orders were passed by the Deputy Commissioner of Customs, it is not found permissible.
The value in bill of entry No. 105345 dated 15.05.2006 is fixed at 1500 USD PMT as was done in the original assessment - Revenue has produced contemporaneous import data. Revenue has chosen to rely on value of the contemporaneous import and thus fixing of the assessable value at 1780 PMT in respect of bill of entry no. 105750 and 105752. Revision of value in these cases is upheld.
Appeal allowed in part.
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2019 (7) TMI 1969
Suo motu proceedings for revision - time limitation - interpretation of statute - Section 23(4)(a) of O.S.T.Act read with Rule 80 of the O.S.T.Rules - HELD THAT:- The case of the petitioner will be governed by the decision of this Court in the case of M/S. SAGARMAL AGARWALLA VERSUS COMMISSIONER OF SALES TAX, ORISSA, CUTTACK AND 2 OTHERS [2018 (1) TMI 868 - ORISSA HIGH COURT] where it was held that we are of the opinion that passing of the order dated 05.09.1996 in Annexure-3 which was beyond the period of three years from the date of the order sought to be revised, is liable to be quashed as also the order of the Commissioner dated 05.06.1999 in Annexure-4.
Petition allowed.
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2019 (7) TMI 1968
Unsecured loan - CIT(A) also confirmed the action of the AO as the assessee failed to comply with the direction of the Tribunal to produce all the loan creditor - HELD THAT:- At the time of hearing, when asked by the Bench, why the direction of the Tribunal was not complied with by the assessee, assessee did not give any satisfactory reply.
We find that in the first round of proceedings, Tribunal has directed the assessee to produce all the creditors before the AO to confirm with the evidences that the amount has been repaid. Assessee has failed to produce all the creditors before the AO, therefore, the addition was again confirmed and was upheld by the CIT(A). We see no reason to interfere with the order of the CIT(A) and dismiss the ground of appeal of the assessee.
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2019 (7) TMI 1967
Validity of notification dated 13th December 2018 issued by the Commissioner of Value Added Tax (CVAT) under Rule 5 (13) of the Central Sales Tax (Delhi) Rules, 2005 - “C‟ Form issued by M/s. Mahaveer Traders in favour of the present Petitioner, declared obsolete and invalid for all purposes, with effect from the date of issuance of such forms.
Whether there was any justification for the CVAT in New Delhi to retrospectively declare the “C‟ Form which had already been acted upon by the authority in Jammu and Kashmir as “obsolete”?
HELD THAT:- A collective reading of sub-rules 5 (13) and 5 (14) of the CST Delhi Rules makes it clear that once the form that has been issued is utilized, the question of subsequently declaring such used forms as obsolete would not arise. Rule 5 (14) makes the requirement of surrender of the “unused forms‟ of the series design or colour that have been rendered obsolete clear and provides that only for such unused forms would new forms be issued. It is, therefore, plain that the rules do not permit the CVAT to declare forms that have already been issued and acted upon as obsolete.
The impugned notification 13th December, 2018 issued by the CVAT is hereby quashed - Petition allowed.
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2019 (7) TMI 1966
Absolute Confiscation - Seeking immediate release of seized Diamonds - levy of penalty under Section 112(b) of Customs Act - HELD THAT:- A Co-ordinate Bench of this Court, vide order dated 8.5.2019 [2019 (5) TMI 984 - GUJARAT HIGH COURT], disposed of the Civil Application preferred by the Commissioner of Customs with directions.
Pursuant to the order passed by this Court referred to above, the bank guarantee, as well as 10% redemption fine has also been deposited along with 1% penalty. The applicant has discharged all the obligations as imposed by this Court in the order. However, till this date the seized diamonds have not been returned to the applicant. Prima facie, the concerned authority is in contempt.
Let Notice be issued to the respondent, returnable on 1.8.2019.
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2019 (7) TMI 1965
TP Adjustment - comparable selection - Accentia Technologies Ltd inclusion/inclusion - HELD THAT:- Regarding the business model, while the assessee company is in HMT model, the comparable in question depends mostly on outsourcing of business processes. The audit report clearly mentions that no segmental data has been prepared and company has only one segment of activity which is HRCM segment. Hence, keeping in view the factors viz. dissimilar business model, non-comparable turnover, extraordinary events of merger and acquisitions leading to higher profits and non-availability of the segmental data and considering the order of the Tribunal in the assessee’s own case for the assessment year 2009-10, we hereby hold that the ld. CIT(A) has rightly excluded the company “Accentia Technologies Ltd.” from the final list of comparables.
Consider foreign exchange gain/loss as non-operative while calculating the operating profit margin of the Assessee and the comparable companies - HELD THAT:- The foreign exchange emanating from international transaction is a part of business receipt and hence any loss or gain on foreign exchange fluctuation invariably is a part of operational income. Further, owing to the judgments of FISERV India Pvt. Ltd. [2016 (1) TMI 1276 - DELHI HIGH COURT] and in the case of PCIT Vs BC Management Services Pvt. Ltd. [2017 (12) TMI 255 - DELHI HIGH COURT] wherein it was held that even the Safe Harbor Rules come into force from 2013 and hence is not applicable to the instant year, we hereby direct the Revenue to treat the foreign exchange gains or losses under operating revenues.
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2019 (7) TMI 1964
Deduction u/s 80P(2)(i) - AO disallowed deduction as held that (i) the assessee is a Co-operative Bank other than a primary agricultural credit society or a primary cooperative agricultural and rural development bank, (ii) the assessee fulfils the condition laid down in section 56(c)(ccv) of Part V of the Banking Regulation Act, 1949 for being a Co-operative Bank - HELD THAT:- As decided in assessee own case [2014 (10) TMI 1063 - ITAT MUMBAI] as held we cannot entertain the Revenue’s contention that section 80P(4) would exclude not only the co-operative banks other than those fulfilling the description contained therein but also credit societies, which are not co-operative banks. In the present case, respondent assessee is admittedly not a credit co-operative bank but a credit co-operative society. Exclusion clause of sub-section (4) of section 80P, therefore, would not apply. In the result, Tax Appeals are dismissed.’
Similar view is taken by the Tribunal’s Mumbai Bench in the case of M/s. Mumbai Teleworkers Co-op. Credit Society Ltd. [2014 (7) TMI 1057 - ITAT MUMBAI] and in the case of M/s. Kulswami Co-op. Credit Society Ltd. [2014 (4) TMI 355 - ITAT MUMBAI] - Decided against revenue.
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2019 (7) TMI 1963
TP Adjustment - International transactions/activities in respect of one of the services rendered to its associated enterprises i.e. (AE) - Assessee was engaged in knowledge management systems - Whether ITAT erred in concluding that for the AYs in question, the Assessee had rendered Knowledge Process Outsourcing (KPO) services to its Associated Enterprises which according to the Assessee was contrary to the documents on record? - Revenue on the other hand points out that for these very AYs, on the question of exclusion of comparables, the Revenue's appeals against the impugned order of the ITAT have been dismissed by this Court - HELD THAT:- In view of the above submission, it is considered appropriate to direct that the impugned order of the ITAT returning the above finding qua the activity of the Assessee for the AYs in question will not constitute a precedent if such issue were to arise in future in the Assessee's cases.
In other words, the question framed by the Court for consideration in these appeals is left open for decision in an appropriate case.
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2019 (7) TMI 1962
Directing the petitioner to vacate the premises - statutory license expired - HELD THAT:- In this case, it is to be seen that the relationship between the petitioner and the 1st respondent is purely licensee and licensor and the obligations are arise under the agreement entered between the petitioner and the 1st respondent and admittedly the said agreement provides for arbitration and the reasons cited for the non-renewal is due to extension of activity of the 1st respondent, they are not in a position to grant renewal.
This Court is of the opinion that it is not a fit case to grant interim orders when the petitioner's license fee admittedly expired In view of the same I have not find any reason to grant any interim order - Application dismissed.
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2019 (7) TMI 1961
Capital gain - valuation of FMV as on 01.04.1981 - CIT rejecting Government Approved Valuer report for computing fair market value as on 01.04.1981 @ 250 per sq. meter for the land situated at Village Karadva and @ 200 for the land situated at Sania Kande Surat by adopting rim Reverse Index Method and by adopting against the same the fair market value @ 30 per sq. meter for both lands - HELD THAT:- We find that the Government Registered Valuer has considered the rate of land at village Karadva @250 per sq. meter and for land at village Sania Kande @200 per sq. meter as against which the DVO has adopted the rate @ 14.18 and 5.59 per sq. meter respectively. Whereas Ld. CIT (A) has considered the rate for both land @ 30 per sq. meter.
Considering, the variation in three authorities, and considering the facts of the case, we are of the considered opinion that it would be fair, reasonable and logic if the average rate of adopted by the Government Registered Valuer of the assessee and DVO and Ld. CIT (A) is considered for average valuation of FMV as on 01.04.1981 considering the ratio laid down in the case of the case Vijay Kumar M Shah [2009 (2) TMI 501 - ITAT MUMBAI] as cited both Ld. CIT (A) as well as the learned counsel for the assessee. Accordingly, the arriving rate comes to Rs.99.95 rounded to Rs. 100 per sq. meter i.e. [250+200+30] for both land under consideration. Accordingly, the AO is directed to worked out long-term capital gain by taking arrive rate @ 100 as FMV as on 01.04.1981 for both impugned the land under consideration. In view of this matter, Ground No. 1 to 4 of the appeal are therefore, partly allowed.
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2019 (7) TMI 1960
Validity of reopening of assessment u/s 147 - as argued notice u/s 143(2) of the Act was issued beyond the prescribed time - Whether it is compulsory to make an application in writing to invoke the provisions of rule 27 of ITAT rules? - HELD THAT:- We note that the dispute regarding the non-issuance of notice under section 143(2) of the Act was very much in the notice of the Ld. DR as evident from the order sheet entries maintained by the registry office of the ITAT who sought times to revert on the issue raised under rule 27 of ITAT Rules on the reasoning that he will take the report from the office of the AO. Therefore, there remains no ambiguity that the affected party was duly given the opportunity - we are of the view the issue raised under rule 27 of ITAT rules was very much in the knowledge of the Ld. DR. As such the case was fixed for hearing on several occasions as part heard, meaning thereby the Ld. DR was very familiar with the issue as discussed above.
We also note that the assessee has also made an application under rule 27 of ITAT rules vide letter dated 13-03-2019. The relevant extract of the application has already been extracted in the preceding paragraph.
The above application was also supplied to the Ld. DR as well and the matter was heard up to 30th April 2019. Therefore it is clear that the other party was well-informed about the invocation of the issue under the rule 27 of ITAT Rules. Therefore we conclude that the Ld. AR has rightly invoked the provisions of rule 27 of ITAT rules.
Non-adjudication of the issue by CIT - Notice issued u/s 143(2) was time-barred - whether the non-adjudication of the issue raised by the assessee before the Ld. CIT (A) amounts to deemed rejection the ground of appeal of the assessee? - HELD THAT:- CIT (A) decided the technical issue in favor of the assessee on other reasons except for the issue on hand, i.e., nonissuance of the statutory notice. Thus the question arises whether the assessee was aggrieved because of non-adjudication of the ground of appeal by the Ld. CIT(A). The answer is certainly in affirmative. But the assessee chose not to appeal as it succeeded on other reasons/ contentions raised before the ld. CIT(A). Accordingly, the Revenue filed an appeal before us on those points which were decided by the Ld. CIT (A) in favor of the assessee. Now the controversy arises whether the assessee can raise the issue not decided by the Ld.CIT (A) under rule 27 of ITAT rules before us. In our considered view, the assessee was very much entitled to raise the issue under rule 27 of ITAT Rules which was not decided by the Ld. CIT (A) as the point of contention of the assessee relates to the same issue raised by the Revenue.
Non-issuance of notice u/s 143(2) - We conclude that there was not issued the statutory notice under section 143(2) of the Act within the prescribed time. Thus in the absence of the statutory notice, the assessment framed under section 143(3)/147 of the Act is not sustainable. Hence the ground raised by the assessee in the application under rule 27 is allowed.
Reopening based on revenue audit objection - CIT(A) has passed a speaking order, which is self-explanatory and reproduced herein above. Thus,we are in agreement with the finding of the ld. CIT-A that the reopening of the assessment under section 147 of Act based on revenue audit objection is not permissible. Therefore we concur with the finding of the learned CIT(A) after placing the reliance on the judgment in the case of CIT Vs. K.Y. Pilliah And Sons [1966 (10) TMI 35 - SUPREME COURT] - Decided against revenue.
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2019 (7) TMI 1959
Maintainability of petition - availability of alternative remedy - Arbitrable dispute or not - clause 13A of conditions of contract - forfeiture of earnest money deposited - Article 226 of the Constitution of India - HELD THAT:- Clause 13A of conditions of contract provides settlement of disputes through arbitration under the provisions of the Act of 1996 as amended by the Act of 2015. Undoubtedly, the dispute is arbitrable and the petitioner has remedy of arbitration under the Act of 1996.
It is well settled that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of alternative remedy, this Court may still exercise its writ jurisdiction at least in three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged - the writ petition is entertained to the extent of examining and finding out as to whether forfeiture of earnest money to the tune of ₹ 50,00,000/- is legal and proper or it suffers from vice of arbitrariness leaving rest of dispute with regard to cancellation of contract, blacklisting and fresh tender for the said work and risk and cost to be raised by the petitioner by way of arbitration as provided in clause 13A of the conditions of contract, as such, the writ petition is entertained only to that extent indicated hereinabove leaving rest of the dispute to be adjudicated by way of arbitration, if any, to be invoked by the petitioner or avail any other remedy available to him under the law.
Since the Letter of Intent has been cancelled and consequently, earnest money deposit has been forfeited and that being realm of contract, writ petition under Article 226 of the Constitution of India is not maintainable? - HELD THAT:- It is quite well settled law that where the State or State authorities which is State within the meaning of Article 12 of the Constitution of India behaves arbitrarily, even in the realm of contract, this Court can interfere under Article 226 of the Constitution of India. Admittedly, the respondent-SECL comes under “other authorities” within the meaning of Article 12 of the Constitution of India and therefore, it has an obligation to act fairly not arbitrarily even in contractual matter.
It is the case of the petitioner that on 11.6.2018, 19.6.2018 and 20.6.2018 the petitioner demanded possession of subject land to commence the work as even in inspection carried out by the team of CMPDI, hindrance was caused by the villagers and inspection of work could not be completed. The respondents in para-8 of their return have also admitted that though the subject land on which work was to be executed was under their possession, but there was some obstruction by villagers agitation due to which there was little delay in handing over the site, but the fact remains that no document has been brought on record by the respondent-SECL that after vesting of land under Section 11 of the Act of 1957, possession of subject land was handed over to SECL before issuance of Letter of Intent and SECL, in turn, has placed the petitioner in possession to initiate the work awarded to him by Letter of Intent dated 2.5.2018.
The petitioner/contractor had reasonable cause or valid reason in not commencing the execution of work within the stipulated time in terms of clause 6.1 of conditions of contract and therefore, forfeiture of earnest money deposit on account of non-execution work within the stipulated time and consequently, forfeiture of earnest money deposit to the extent of ₹ 50,00,000/- suffers from vice of arbitrariness and smacks total non-application of mind, which is violative of Article 14 of the Constitution of India and consequently, the impugned order to that extent deserves to be struck down.
The impugned order dated 26.2.2019 (Annexure P/1) passed by respondent No.3 to the extent of forfeiture of earnest money deposit i.e. ₹ 50,00,000/- is set aside - The respondents are directed to make payment of the aforesaid amount to the petitioner within a period of four weeks from today. However, with regard to cancellation of subject work and other related disputes, parties are left to invoke clause 13 and clause 13A of conditions of contract relating to settlement of dispute by way of arbitration, if any.
The writ petition is allowed.
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2019 (7) TMI 1958
Assessment of trust - SCN calling upon the petitioner to show cause as to why the registration u/s 12(A)(a) of the Income Tax Act, 1961, should not be canceled - HELD THAT:- As in the instant case, though the petitioner has sought for information way back in the year 2008, such a representation was not considered till the year 2010, which had prompted the petitioner to file the present writ petition. As such, it would be justifiable for this Court to interfere into the Show Cause Notice and grant further time for the respondent to act on such a request made by the petitioner pursuant to the Show Cause notice.
Respondent submitted that if the details and information sought for by the petitioner touches upon confidential matters of investigation or the like, it may not be permissible under law for them to furnish such documents. Nevertheless, such information and documents which are permissible in law will be considered, if the petitioner approaches the respondent.
The petitioner is granted liberty to file an additional reply to the Show Cause Notice dated 21.07.2008, seeking for details and information required by them and on receipt of such an information, the respondent shall consider the same on its own merits and take necessary action.
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