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Showing 441 to 460 of 769 Records

• 2012 (4) TMI 387
  

  Polymer Modified Bitumen (PMB) and Crumbled Rubber Modified Bitumen (CRMB) cannot be treated as Bituminous mixtures falling under Chapter sub-heading No.27150090 and shall continue to be classified under Chapter sub-heading No. 27132000 – as decided by Hon'ble Supreme Court favoring the order of the Tribunal in appellant s own case – Held that:- the Revenue is in appeal against the Order-in-Appeal wherein the first appellate authority the judgment of the Tribunal in appellant's own case - since the Apex Court has upheld the order of the Tribunal in respect of very same assessee, no merit in the appeal filed by the Revenue - against revenue.

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• 2012 (4) TMI 386
  

  Whether the appellant is liable to discharge the Service Tax liability on the commission paid to the commission agents situated abroad for procurement of sales orders under reverse charge mechanism from 09.07.04 to 15.06.05 – Held that:- As the provisions of Section 66A of Finance Act, 1994 were brought into play w.e.f. 18.04.2006 no liability arises of payment of service tax - issue is decided by Hon'ble Supreme Court in the case of Indian National Shipowners Association Vs UoI (2010 - TMI - 78723 - Supreme Court of India) – in favour of assessee.

  Demand of CENVAT Credit on Service Tax on the outward transportation – Held that:- The judgment of Larger Bench of the Tribunal in the case of ABB Ltd Vs CCE (2010 - TMI - 202803 - CESTAT, BANGALORE) held that the CENVAT Credit on the Service Tax paid on outward transportation is related to the business and is covered under the definition of input services under Rule 2(l) of CENVAT Credit Rules, 2004 ,thus squarely cover the issue in their favour of assessee.

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• 2012 (4) TMI 385
  

  Claim of interest on refund as Rule 5 of CCR, 2002 - exported Copper Cathode and Copper Rods without payment of duty but under Letter of Undertaking in place of bond for period May 2002 to December 2002 and April 2001 to August 2001 - the assessee bought raw material Copper Anode from their sister concern - assessee claimed interest to be paid on the refund claim filed by them on 29.09.01 and 31.01.03 – Held that:- The refund has been ordered under Rule 5 of the Rules and there was a delay in sanctioning the refund the provisions of Section 11BB of the Act would clearly be attracted as rightly held by the Tribunal - entitlement to interest on delayed refund of Cenvat Credit arises - interest at the appropriate rate as provided under the law under Section 11BB will be payable to the appellant from and after 3 months of the date of refund claim filed by them and on the amount calculated on the reduced balances – against revenue

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• 2012 (4) TMI 384
  

  Stay Petition for the waiver of pre-deposit of duty, interest and penalty confirmed by the adjudicating authority and upheld by the first appellant - the applicant didn't appeared - Held that:- An identical issue decided by this Bench in the case of Shri Manohar Mali Vs. CCE Surat - impugned order set aside and matter is remanded back to adjudicating authority to reconsider.

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• 2012 (4) TMI 383
  

  Stay Petition - adjudicating authority as well as the first appellate authority has confirmed the demand against the appellant as appellant has availed CENVAT Credit on ineligible inputs - Held that:- The issue is squarely covered by the judgment of the Larger Bench of the Tribunal in the case of Vandana Globals Vs. CCE Raipur (2010 - TMI - 76147 - CESTAT, NEW DELHI (LB) allowing the appeal of the Revenue against the assessee - Goods like cement and steel items used for laying 'foundation' and for building 'supporting structures' cannot be treated either as inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the CENVAT Credit Rules for the impugned period – against assessee.

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• 2012 (4) TMI 382
  

  Confirmation of the demand of duty, interest and equivalent amount of penalty with imposed penalty on the director of the company – clandestine removal - Held that:- Assessee was denied grant of the copies of relied upon documents for upholding the charge against him - the adjudicating authority passed an ex-parte order upheld by first appellate authority without considering their grounds of appeal – though assessee did not have any documents with them when they filed the appeal before the first appellate authority and had proceeded only on the basis of Show Cause Notice and the Order-in-Original the adjudicating authority has erred in confirming the demand without following the principles of natural justice - remanded matter back to adjudicating authority to reconsider it afresh - against revenue

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• 2012 (4) TMI 381
  

  Stay Petition for waiver of Service Tax demand,interest thereof and equivalent amount of penalty - Service Tax liability on the ground that they have been providing Business Auxiliary Service – assessee submitted produced a Chartered Accountant’s certificate giving various details before lower authorities to indicate that the entire amount as indicated in the balance sheet as an income has not come from the services rendered by them but could be loan and other income – Held that:- the adjudicating authority should have given a finding on records and the documents supplied by the assessee, the entire issue needs to be re-considered by lower authority - set aside the impugned order and remit the matter back to re-consider it afresh

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• 2012 (4) TMI 380
  

  Addition to income u/s 50C – Assessee booked under-constructed flat - ₹ 50, 000/- payable at the time of booking and the balance payable in installments all before taking possession– cancelation of the booking due to non delivery - tri party registered sales deed executed between the appellant, the builder and the new buyer – Held that:- triparty registered sale agreement for transfer of the said flat wherein the appellant as the vendor was to transfer all his rights, title and interest in the said flat to the buyer and the was to give the possession of the said flat which was originally agreed to be allotted to the appellant - provisions of section 50C of the I. T. Act are applicable in the case of an assessee when he transfers a capital asset – upheld conclusion arrived at by CIT (A) – against revenue.

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• 2012 (4) TMI 379
  

  Return filed u/s 139(1) - notice issued u/s 143(2)/115WE(2) - assessee pleaded as per amended proviso to Section 143(2) no notice under Section 143(2)(ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished - Writ petition – Held that:- if there are two interpretations then the interpretation favorable to assessee will have to be adopted as per the ratio laid down in the case of CIT vs. Shaan Finance (P) Ltd (1998 -TMI - 5659 - SUPREME Court ) - Though the subject of the charge is the income of the previous year, the law to be applied is that in force in the assessment year – twelve moths' period from the end of the month in which the return was filed, expires in 31st July, 2008, so a notice was supposed to be served maximum on/or before 1st August, 2008, but it was given on 26.09.2008 - in favour of assessee.

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• 2012 (4) TMI 378
  

  Tribunal held that the re-assessment was bad in law and beyond the time for the assessment years 1988-89 to 1990-91 - Held that: - the returns filed for the assessment years were in accordance with the provisions of the Act and the technical knowhow fees were also clearly disclosed while arriving at the net profits under the Companies Act as well as in its computation of income filed along with the returns of income-in the absence of any material to revise the assessment by taking recourse to Section 147, the reopening of the assessment was bad in law – no ground warranting reopening and there are no materials placed before this Court to disturb the findings of the Tribunal - against revenue

  Relief under Section 35AB – Held that: - Definition of "paid" as appearing under Section 43(2) as referring to amount actually paid or "payable" according to the method of accounting upon the basis on which the profits and gains are computed under the head of profits and gains in business or profession, the assessee having the account on mercantile basis and hence, allowed the claim on merits - the assessee admittedly maintaining its account on mercantile basis the contention of the assessee on the applicability of the definition of "paid", as appearing in Section 43(2) is accepted – against revenue.

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• 2012 (4) TMI 377
  

  Depreciation claim - company incorporated to carry on the business of Aqua Farms and Shrimp Farming -name changed and the assessee entered the business of handling transportation – return filed declaring loss – AO disallowed and added back the depreciation claim on ponds and plant & machinery discontinued long back - assessment reopened u/s 147 - disallowing the depreciation observing that for claiming depreciation, the assessee should not only own the assets, but also the assets should be put to use in the relevant assessment year – Held that:- As long as an asset forms part of the block of assets and the block continues to exist, provisions of S.50 do not come into play and depreciation has to be allowed on that portion of the WDV of the assets which have been scrapped, after reducing the scrap value from the block of assets - 'block assets' depreciation on ponds and plant & machinery which are forming part of the block of assets has to be allowed as deduction – in favour of assessee.

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• 2012 (4) TMI 376
  

  Review of the orders passed by the Division Bench - invoking sub-section (7) of Section 260A – Held that:- There is distinction between substantive review and procedural review. Substantive review must be conferred whereas procedural review is inherent in every court or Tribunal - since the power of substantive review having not been conferred under the Income-tax Act, the review as filed is not maintainable - Division Bench Judgment of this Court in the case of Commissioner of Income Tax-1 v. M/s. The West Coast Paper Mills Ltd (2009 - TMI - 75400 - BOMBAY HIGH COURT) stated that sub-section (7) of Section 260A makes the procedure pertaining to an Appeal, as set out in the Code of Civil Procedure, 1908 and these provisions will not enable the Court to review its own order or exercise the power of review in terms of Section 114 - the power of review has to be specifically conferred and it cannot be assumed by the Court – against revenue.

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• 2012 (4) TMI 375
  

  Rejection of assessee’s claim for registration under section 12AA and approval under section 80G – assessee’s is running an institution called 'Preston International College' as Trust – Held that:- Conducting courses and programme of the Distance Learning courses and running study centers for and on behalf of the University and sharing the fees collected from the students are in the nature of commercial activities and cannot be considered as charitable in nature - assessee's college is functioning as a coaching institute run on commercial lines – Rendering education and medical care to a millionaire is not charity. Charity reflects the concern of a society in the upliftment - against assessee.

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• 2012 (4) TMI 374
  

  Plant and machinery (not in use) acquired - Tribunal treated it as long term capital assets for the assessment year 2006-07 as it was sold in the financial year 2005-06 – revenue appeal that plant and machinery (not in use) would be covered by the expression 'block of assets' - Held that:- the assessee has shown two block of assets separately i.e. one on which depreciation was claimed @ 25% and the other on which no depreciation was claimed in any of the previous years, the two assets are different from each other - the assessee having not claimed any depreciation on the same cannot be burdened with the provisions of Section 50 - in the absence of any depreciation being allowed to the assessee in any of the previous years on the said plant and machinery (not in use),the gain arising on the transfer of the said asset is to be treated as long term capital gain – directed in adopting the indexed cost of acquisition in determining the income from long term capital gain on sale of plant and machinery (not in use) – against revenue.

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• 2012 (4) TMI 373
  

  Depreciation - Reclassification of 'Plant & Machinery' as Furniture - the assessee submitted that the assessee engaged in the manufacture of the chemicals and vaccines and for this, the assessee has laboratories - High Court's judgment in the case of CIT v. Park Devis (India) Ltd. (1994 -TMI - 19344 - BOMBAY High Court), is clear on the issue that the 'functional test' has to be applied in deciding if a particular tool constitutes plant and machinery or the furniture - if the Stools, Tables, Stainless Steel racks, SS cupboards, SS trolleys, SS trays etc are required for the laboratory purpose i.e. for the purpose of production or processing of the chemical tests in the laboratory premises leading to the production of the stocks, they must be categorized as plant and machinery - Held that: the revenue authorities have carried away more by the nomenclature rather than the functions of the impugned items - Decided in favor of the assessee

  Regarding depreciation on 'intangible Asset' being non-compete fee - the assessee's submissions in nutshell are that (i) it is the decision of the revenue to treat the said 'non-compete fee' as the 'capital expenditure' and to grant 'depreciation' on the same for the AY 2000-01 and in effect it already entered the 'block of assets' in the AY 2000-01 by virtue of the thrusting by the AO - if the capital expenditure by way of 'non compete fee' in question is an 'intangible asset' and if the same is depreciable asset for the benefits u/s 32 of the Act - ITAT in the case of Asstt. CIT v. Real Image Tech (P) Ltd [2008 -TMI - 69913 - ITAT MADRAS-B] - Decided in favor of the assessee.

  Reduction of Sales tax refund from business profits while computing deduction U/s. 80HHC - held that:- AO shall grant relief in this regard

  Reducing interest income from business profits while computing deduction u/s.80HHC - held that:- matter remanded to AO for fresh decision.

  Regarding deduction u/s. 80HHC - the profit of the EOU unit u/s. 10B forms part of the 'profits of the business' as defined in Explanation (baa) to section 80HHC of the Act for the purpose of determining the allowable deduction under the said section and consequently, the export and total turnover of the said EOU unit are required to be included in the export turnover and total turnover of the assessee as well - the assessee did not include the profit of the EOU unit, Export and Total turnovers in the numerator and denominator of the formula devised for computation of deduction u/s 80HHC and the assessment was completed accordingly - the assessee is of the view that the Tribunal has confirmed the principle of inclusion of the Export turnover in the Denominator of the formula devised for computation of allowable deduction u/s 80HHC.

  Considering the 'principle of parity', once a constituent is added to the total turnover, the denominator, the same has to be included to the 'export turnover', the numerator - Inclusion in profits of business is a wasteful exercise in this case hence, it does not make any difference since the special deductions quantitatively exceeds the available profits and gains of the business of the assessee - Decided in favor of the assessee by way of direction to AO to recompute the deduction u/s 80HHC

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• 2012 (4) TMI 372
  

  Determination of monetary limit for filing appeal before tribunal - Whether the Appellate Tribunal is right in law and on facts in dismissing the Appeal of the revenue on the ground of low tax when the tax effect was Rs. 18,83,616 (Notional), which exceeded the monetary limit prescribed by the Board - if the difference of opinion between the Assessing Officer and the CIT (Appeals) in terms of quantum of loss is considerable, whether the Revenue's appeal would be shut out as not maintainable simply because in any case the assessee's income is negative for a particular assessment year - It is for this reason that Section 80 of the Act provides that no loss which has not been determined in pursuance of a return filed in accordance with the provisions contained in sub-Section (3) of Section 139, shall be carried forward or set off under Sections 72(1) or 73(2) or 74(1) or (3) or under Section 74(3) of the Act - From the above statutory provisions, it can be seen that merely on the ground that even if the Assessing Officer's order is restored, the net result would be a negative income, the issue cannot be treated to be one of academic interest - It is, however, clarified that the notional tax effect would have to be above the limits prescribed by the Board from time to time for presentation of such appeals. In all these cases since it is stated that the notional tax effect would be higher than the limits prescribed by the Board in different circulars, we are of the view that the Tribunal committed an error in dismissing the Revenue's appeals as being not maintainable - Appeal is allowed by way of remand to Tribunal

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• 2012 (4) TMI 371
  

  Deduction u/s 10A/10B - Tribunal not allowed the deduction under sections 10A/10B on Rs. 14,31,96,372/- representing the amount of depreciation, which was not claimed but allowed by the AO while computing deduction - held that:- all expenses and allowances, deductible or not deductible, covered under these sections starting from 30 and ending with 43D have to be necessarily given full effect to for the purposes of computing income from business under section 28. The income so determined, in the absence of any definition of profits of business given in section 10A, shall constitute 'profits of the business'. As section 32 granting depreciation is included in sections 30 to 43D, there is no reason for excluding it for the purposes of computing the profits of the business of the undertaking.

  Assessee contended that the judgment of Indian Rayon Corpn. Ltd. (2003 -TMI - 11904 - BOMBAY High Court) should not be applied to section 10A because that judgment deals with deduction u/s 80HHC - held that:- The contention of the assessee would have merited acceptance if cognizance of the judgment in Indian Rayon Corpn. Ltd.'s (2003 -TMI - 11904 - BOMBAY High Court) had been taken while interpreting section 80HHC. Since we are concerned with sections 10A/10B having no definition of the expression "profits of the business", there is no scope for arguing that the judgment in the case of Indian Rayon Corpn. Ltd. (supra) is not applicable which, in fact, has interpreted the expression "profits of the business" in the context of section 80HH without there being any specific definition of it.

  Clause (i) of sub-section (6) makes it clear that in computing the total income of the assessee for the eleventh year (i.e. after the expiry of the benefit u/s 10A for the first ten assessment years), depreciation u/s.32 shall be computed on the written down value of the fixed assets as reduced by the full amount of depreciation allowable for the ten relevant assessment years from the actual cost of the assets. Further, clause (iv) makes it clear that the written down value of any asset used for the business of the undertaking in the eleventh year shall be computed as if the assessee had claimed and had been actually allowed the deduction in respect of depreciation for each of the relevant assessment years. We are unable to either expressly find or infer from the language of subsection (6) that in the first ten relevant assessment years, the assessee has a choice to claim or skip depreciation and if he chooses to dispense with the depreciation, then to compute the profits of business and the resultant deduction on the amount of profit before depreciation.

  The profits of the business for all the years in the first block need to be computed by considering that any expenditure or allowance which contributed to the earning of income and is permissible u/ss 28 to 43D, must be allowed. If that is the position, then it is difficult to accept that the assessee should be allowed to compute profits of business during the currency of the years of deduction u/s 10A without reducing the amount of depreciation. - the ld. CIT(A) has taken an unimpeachable view in echoing the action of the AO in deducting depreciation of Rs. 14.31 crore and odd from the profits of business for the purposes of computing deduction under sections 10A/10B. - Decided against the assessee.

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• 2012 (4) TMI 370
  

  Levy of interest under Sections 234A, 234B and 234C – assessee contested that as the payee being a non-resident tax ought to have been deducted u/s.195 of the IT Act - AO charged interest after considering the actual amount of tax deducted at source – Held that:- the interest under section 234A is not levied for any default of payment of any advance tax, but is levied for default in furnishing return of income within the specified time - the interest under section 234A is to be computed by excluding the amount of tax actually deducted from the assessee during the relevant previous year and interest under section 234B and 234C are to be charged by excluding the tax, which was deductible from the assessee as per provisions of Chapter XVII of the Act - set aside the Order and direct the AO to recompute the interest - Appeal of assessee partly allowed.

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• 2012 (4) TMI 369
  

  Whether the Modvat/Cenvat credit on the inputs in process and in finished products is liable to be reversed/paid back when the final product becomes exempt from payment of duty - Appellants took cenvat credit on inputs procured prior to 10.1.2005 and out of the inputs procured some stock were lying with them – AO stated that assessee with respect to these inputs did not reverse the proportionate cenvat credit since at the time when these inputs were procured, cenvat credit was validly taken and utilized – Held that:- Since the language of Rule 9(2) of the Cenvat Rules is identical to that of Rule 57H(5) of the Excise Rules, the interpretation given by the Apex Court has to apply in the present case stating that though the final product may be exempt from payment of excise, the assessee cannot be asked to reverse the Modvat credit already taken by it – on the date when they paid the tax on the raw materials or the inputs, that right would continue until the facility available thereto gets worked out or until those goods existed - decided in case Collector of Central Excise, Pune and others vs. Dai Karkaria Ltd. and others (1999 - TMI - 94220 - CEGAT, NEW DELHI) – in favour of assessee.

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• 2012 (4) TMI 368
  

  Stay Petition for waiver of pre-deposit on differential duty on the goods imported - department foregone the duty liability as appellant has not reported the export obligation and has not used the said goods in the manufacturing of the goods - claim of the appellant was verified by the Revenue which indicates that the appellant had exported the goods either through the merchant exporter or through another 100% EOU – Held that:- The issue of non-fulfillment of export obligations has to be considered from the factual matrix of the export, hence the issue needs to be re-considered by the adjudicating authority in its proper perspective - set aside order and to re-consider the issue afresh.

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