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Showing 221 to 240 of 545 Records
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2012 (2) TMI 506
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... ... ..... g authority. 5. We have carefully considered the rival submissions. After listening to the argument, we are of the view that the appeal itself can be disposed of at this stage. Therefore after granting stay, we take up the appeal for consideration. 6. We find that this Tribunal in the case of Kinetic Engg and Ors. (supra) considered an identical issue and held that, where an incentive is provided by the State Government in the form of retention of sales tax by the manufacturer or where such deferred payment of sales tax was discharged by paying the net present value as per the sales tax incentive scheme, such sales tax incentive received under the scheme declared by the State Government cannot be included in the assessable value of the goods cleared for the purpose of levy of Central Excise duty. The said judgment applies squarely to the facts of the present case. Accordingly, we allow the appeal. The stay application is also disposed of. (Operative part pronounced in Court)
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2012 (2) TMI 505
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... ... ..... ule). The learned counsel further points out that two appellate Commissioners passed orders in favour of similar assessees vide order-in-appeal No. 6/2008 dated 29-8-2008 passed by the Commissioner (Appeals), Hyderabad and order-in-appeal No. 169/2010, dated 12-5-2010 passed by the Commissioner (Appeals) Mangalore. The Superintendent (AR) is not able to say that the cited orders-in-appeal were reviewed in the department. A perusal of these orders-in-appeals shows that the present appellant can resist the demand of service tax on the ground of ‘manufacture’ based on the tariff entry. Hence, there will be waiver of pre-deposit and stay of recovery in respect of the adjudged dues. (Pronounced and dictated in open Court)
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2012 (2) TMI 504
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... ... ..... time of realization of consideration shall be applicable to computerize the liability. 3. We have held last week in some of the cases stating that the tax rate in force on the date of realization of the consideration for taxable service provided not being mandate of the statute, appeal of revenue has no merit to succeed for which that is dismissed. 4. In the result, both stay application and appeal are disposed of in the above manner. (Dictated and pronounced in the open Court)
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2012 (2) TMI 503
Whether the existence of an arbitration agreement between the parties is a bar to the maintainability of the information and the proceedings arising therefrom before the Commission? - whether the petitioner is an 'enterprise' within the meaning of the expression as defined in Section 2(h) of the Act? - Held that:- An enterprise may perform some sovereign functions, while other functions performed by it, and the activities undertaken by it, may not refer to sovereign functions. The exemption under Section 54 could be granted in relation to the activities relatable to sovereign functions of the Government, and not in relation to all the activities of such an enterprise. Pertinently, there is no notification issued under Section 54 either under Clause (c), or under the proviso. This clearly shows that the Central Government does not consider any of the activities of the petitioner as relatable to sovereign functions.
The petitioner has entered into a Concession Agreement under its PPP policy. It is, therefore, clear that respondent No. 2 is performing a commercial activity and rendering services for a charge, which, prior to the entering into the aforesaid agreement with the petitioner, was being performed by the petitioner. The petitioner is also carrying out an activity, viz. running the railways, which also has a commercial angle and is capable of being carried out by entities other than the State, as is the case in various other developed countries. It is, therefore, not an inalienable function of the State. Therefore, the submission of the petitioner that it is not covered by the definition of 'enterprise', has no merit and is rejected.
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2012 (2) TMI 502
Clearance from DTA to SEZ - exempt goods - whether the assessees were liable to consider, during the material period, their clearances to SEZ developers to be clearances of exempted goods? - Held that: - decision in the case of Sujana Metal Products Ltd. vs. CCE, Hyderabad [2011 (9) TMI 724 - CESTAT, BANGALORE], squarely covers the issue where it was held that the definition of the term “export” under the SEZ Act shall prevail over the definition of term “export” under the Customs Act. Therefore, supplies made to SEZ from DTA units shall be treated as export.supplies made to SEZ are held to be “export” provisions of Rule 6 of CCR does not arise at all - appeal disposed off - decided in favor of assessee.
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2012 (2) TMI 501
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... ... ..... assessment on the ground of lack of enquiry/investigation on the part of the AO. The ld. CIT totally ignored the aforesaid reply dated 16.10.2008 filed by the assessee before the AO. Mere change of opinion or view would not enable the CIT to exercise jurisdiction u/s 263 of the Act more so, when the AO had considered the details and the explanation offered by the assessee. Change of opinion by reappraising the evidence is not within the parameters of revisional jurisdiction of the Commissioner under section 263 of the Act. In view thereof, we set aside the impugned order u/s 263 of the Act and quash the same. Therefore, ground nos. 1 to 2.3 in the appeal are allowed. As a corollary, alternative ground no. 3 does not survive for our adjudication . 7.. No additional ground having been raised before us in terms of residuary ground in the appeal , accordingly, this ground is dismissed. 8. . No other submission or argument was made before us. 9. In the result , appeal is allowed.
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2012 (2) TMI 500
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... ... ..... int Commissioner of Income Tax vs. Mandideep Eng. and Pkg. Ind. P.Ltd. (2007) 292 ITR 1 (SC) has upheld the decision of the Madhya Pradesh High Court in the J.P.Tobacco Products P.Ltd. (supra). That being the position and even otherwise in view of the provisions of Section 80A of the Act deductions could be claimed both under Sectons 80HH and 80-I on the gross income of the assessee and not after allowing the deduction under Section 80HH of the Act. So far as the second question is concerned the Hon'ble Supreme Court in the case of Vujay Ship Breaking Corporation and others vs. Commissioner of Income Tax (2009) 314 ITR 309 has held that ship breaking activity results into the production of a distinct and different article and the assessee was entitled to allowance of deductions under Sections 80HH and 80-I of the Act. Respectfully following the aforesaid decisions we answer the question in favour of the assessee and against the Revenue. The appeal fails and is dismissed.
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2012 (2) TMI 499
Refund claim - Interest - Unjust enrichment - Duty paid under protest - dutiability of pan masala - Bar of limitation.
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2012 (2) TMI 498
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... ... ..... /10, the impugned goods were used in the captive power plant; electricity produced from it was entirely used within the factory of the appellant for production of dutiable goods. He fairly states that out of the impugned goods in respect of which credit has been taken was ₹ 36.60 lakhs relate to duty credit in respect of structural and he volunteers to pre-deposit the entire amount. He states that the appellants are eligible for taking credit in respect of other goods used as inputs for producing electricity which is in turn as stated earlier used in the production of dutiable goods in their own factory. 4. Keeping in view the submissions made, we direct the appellants to pre-deposit of an amount of ₹ 36.60 lakhs, within four weeks from today and to report compliance on 08.03.12. Subject to compliance with the above direction, pre-deposit of the balance amount shall remain waived during the pendency of the appeal. (Order dictated and pronounced in the open Court)
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2012 (2) TMI 497
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... ... ..... icate dated 21.1.2012 that it has filed Income Tax Returns for 2008-09 and 2009-10 on taxable income which includes transportation charges charged from the customers of Agra and Firozabad region, and that in Commissioner of Income Tax (TDS) v. Krishak Bharati Cooperative Limited a case decided by the High Court of Gujarat at Ahmedabad, it was held that the assessee is not required to deduct the TDS under Section 194-C on gas transportation charges as it is a contract for sale of goods. Shri Ravi Kant further submits that payment of royalty is not attracted on natural gas and that the provisions of Section 194-C of the Act are not attracted. The petitioner has not submitted a reply to the notice and filed the writ petition on the grounds, which can be taken up in the reply to the notice to be considered by the Income Tax Authorities. The opinion of the Gujarat High Court arose out of an order of the Tribunal. The writ petition is dismissed on the ground of alternative remedy.
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2012 (2) TMI 496
Whether failure on the part of the Detaining Authority to consider the representation of the detenu vitiates the entire order?
Whether all the incidents mentioned in the grounds of detention clearly substantiate the subjective satisfaction arrived at by the Detaining Authority as to how the acts of the detenu were prejudicial to the maintenance of public order?
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2012 (2) TMI 495
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... ... ..... supports the case of the assessee. To claim exemption u/s 54, the construction/acquisition of the new asset should be within two years after transfer/sale of the existing house. Hon'ble Allahabad High Court even went a step further by holding that exemption of capital gains could not be refused to the assessee simply on the ground that the construction of the new house had began before the sale of the old house (CIT v. H.K. Kapoor - 150 CTR (All) 128. In the present appeal, substantial investment was made by the assessee out of the sale proceeds of the old asset (approximately 90 ), therefore, the claimed exemption cannot be denied to the assessee, consequently we find no infirmity in the stand of the learned Commissioner of Income Tax (Appeals) and confirm the same. Finally, the appeal of the Revenue stands dismissed. This order was pronounced in the open Court in the presence of learned representatives from both the sides at the conclusion of the hearing on 17.2.2012.
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2012 (2) TMI 494
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... ... ..... the first appellate authority held in its favour. Factual matrix suggest that margin of profit is not taxable under Finance Act, 1994 whereas gross value of taxable service is taxable under that law. Therefore, it is not possible to uphold the appellate order. Consequently, the assessee succeeds and the appeal is allowed. 3. In view of the above decision, stay petition also gets disposed of. (Dictated and pronounced in the open Court)
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2012 (2) TMI 493
Addition of provision for warranty for the purposes of computation of income - Whether provision for future warranty expenses is contingent liability or allowable under section 37 - ITAT directing the AO to exclude the ?provision for warranty while computing book profits under section 115 JB - Decided in favour of assessee
Foreign exchange fluctuation loss - ITAT deleting the addition on account of enhanced WDV of fixed assets as a result of foreign exchange fluctuation - Decided in favour of assessee
Section 234D is applicable with effect from the assessment year 2004-05 and not applicable to the earlier assessment years.
Advertisement and sales promotion expenses allowed
Claim of deduction on account of advertisement and publicity expenses in all the three assessment years allowed
Including the foreign exchange gain in the profits eligible for deduction under section 10A/10B
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2012 (2) TMI 492
Whether the appellants are entitled for credit to the extent of input/input service used in the production of electricity which was not captively consumed for manufacture of final product or for other purpose within the factory but was sold to other different legal entity out of the factory production of appellants as held by the Adjudicatory Authority - Held that: - We find finding of fact recorded by the Adjudicatory Authority to be prima facie appropriate. No ground for interference in the impugned order is made out - Petition dismissed.
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2012 (2) TMI 491
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... ... ..... operation of the petitioner(s) in the proceedings; (iv) that petitioner(s) shall be at liberty to claim the adjustment/refund, if any, of the amount so deposited in accordance with the final verdict of the Hon'ble Apex Court in the above-mentioned SLPs; (v) that the petitioner(s) shall be at liberty to avail statutory remedy available to them for the redressal of their grievances within a period of six weeks and the authority concerned shall decide the same on merit, in case they so avail within a period of six weeks thereafter and without raising any plea of limitation subject to cooperation of the petitioner(s) in the proceedings; (vi) that in violation of any of the above-mentioned directions, the department shall be at liberty to take steps to recover the dues in accordance with law and, (vii) that in view of above the interim order granted in writ petition(s) earlier shall stand vacated. With the aforesaid directions/observations, the writ petitions are disposed of.
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2012 (2) TMI 490
Cultivating expenses incurred - nature of expenditure - allowable business expenditure - Held that:- In the instant case, material on record disclose, the Assessee is in the business of manufacture and export of standardized herbal extracts as well as in the manufacture of fine chemicals. In order to carry on their business they were in need of herbal coleus plants, they thought of roping the farmers for growing said herbal plant.
They provided seeding, fertilizer and financial assistance to the farmers with an agreement to deduct the expenses out of the cost of the plant sold by the farmers. But, even the farmers could not grow the said herbal plant. Consequently they sustained loss and in turn the assessee sustained loss. The said cultivation expenses was ₹ 90.64 Lakhs. Therefore the assessee claimed the said amount as revenue expenditure as the said expenditure was incurred to facilitate its business and due commercial expediency. As such the loss are primarily attributable to the business which the Assessee is carrying on and the said expenses are wholly and exclusively for the purpose of business. The said cultivation expenses incurred by the Assessee is in the nature of revenue expenditure in the course of business and the Assess is entitled to deduction of the same as business expenditure. Therefore the Tribunal is justified in uploading such claim granting relief to the assessee.
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2012 (2) TMI 489
Whether the EVMs were illegally removed?
Whether any election offence of booth capturing and criminal intimidation was committed?
Whether the election was liable to be declared void under Section 100 of the Representation of the People Act, 1951?
Whether the first respondent was entitled to be declared as duly elected?
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2012 (2) TMI 488
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... ... ..... m stay is made out. Accordingly, the stay application is dismissed.
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2012 (2) TMI 487
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... ... ..... factual and do not merit and require interference. No substantial question of law arises from the aforesaid factual findings. 4. Learned counsel for the appellant, at this stage, submits that the appellant had contested the order in original on merits and not solely on the ground that the appellant was not involved and in fact his father-in- law Sita Ram Aggarwal was the only person involved. The impugned order dated 3rd June, 2011 does not show that the appellant had contested the order in original on merits and other aspects as suggested. In these circumstances, we are not inclined to examine the contentions raised by the learned counsel for the appellant on merits. In case the appellant had urged and pressed the grounds on merits, it will be open to the appellant to file an appropriate application before the tribunal. If any such application is filed, the same will be dealt with in accordance with law. 5. With the aforesaid observation, the appeal is dismissed. No costs.
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