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Showing 461 to 480 of 770 Records
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2012 (4) TMI 368 - CESTAT, AHMEDABAD
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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2012 (4) TMI 367 - CESTAT, AHMEDABAD
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 366 - CESTAT, AHMEDABAD
Claiming free import of old and used tyres classified under SH 4012 2090 - Department examined the consignment stating approximately 35% to 45% can be used as such on Indian roads and remaining cannot be used as such - SCN issued for reclassification and imposition of fine and penalty - first appellate authority, uphold the reclassification of the goods imported by the appellant under CH 4012 2010/20 Held that:- 100% examination revealed that the number of tyres that can be used as such, merits the classification under CSH No.4012.2010/20 as correctly upheld by first appellate authority - the lower authorities classification that the entire consignment under CSH No.4012.2010/20 is incorrect - balance number of tyres in both the appeals which can be used as such, they have to be classified under CSH 4012 2090, as has been declared by the assessee - remanded the matter only for the purpose of valuation and for re-visit of the imposition of penalty and redemption fine.
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2012 (4) TMI 365 - CESTAT, AHMEDABAD
Clearance of finished goods without payment of duty to SEZ developers Revenue held that as per Rule 6 of CCR, 2004, the appellant is required to maintain separate accounts for the common inputs used for the manufacturing of finished goods cleared on payment of duty and cleared by availing exemption - the clearances made by the appellant to SEZ developers without payment of duty is clearance of exempted goods and is not covered by the exclusion clause 6 of CCR, 2004 - Held that:- issue stand settled by the decision of co-ordinate bench of the Tribunal in the case of Sujana Metal Products Pvt.Ltd. Vs. CCE Hyderabad (2011 - TMI - 208174 - CESTAT, BANGALORE) assessee has cleared their finished product to SEZ developers under LUT duly accepted by the Revenue and once a LUT is executed, the appellant need not pay duty - the supplies made to SEZ are held to be "export", the application of provisions of Cenvat Credit Rules for recovery of amounts on goods supplied to SEZ units in terms of Rule 6 of CCR, 2002 / CCR, 2004 does not arise - against revenue.
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2012 (4) TMI 364 - CESTAT, AHMEDABAD
Stay Petitions AO stated that the appellant company has cleared the duty paid raw materials from their factory premises clandestinely without utilizing it for manufacture of their final product Held that:- out of the demand of approx. Rs.55.90 lakhs, the appellant has already deposited an amount of Rs.20.75 lakhs during the investigation - considering the amount deposited by the appellant as enough deposit waiver to pre-deposit of balance - AO arrived at the shortage of MS/SS coils has considered the shortages of stainless steel coils only - AO has not considered the quantity of 17,100 kgs of SS coils which was an issue in another litigation and has attained finality and hence that quantity should also be considered for deduction for arriving at the shortage of input and fixing liability on the appellant - remit the matter back to adjudicating authority to decide afresh.
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2012 (4) TMI 363 - CESTAT, AHMEDABAD
Availment of CENVAT Credit on the inputs utilized in the manufacture of diesel engines cleared for export - Department objected that claim of rebate of the duty paid by them on debit of the amount by the job workers - first appellate authority dismissed the appeals on the ground of non-compliance of pre-deposit ordered Held that:- no dispute regarding the export of the finished goods by the appellant or on clearance from the job workers premises as that there cannot be any demand of CENVAT Credit on the inputs which have been consumed - set aside the impugned order and remit the matter back to first appellate authority to hear and dispose the appeals without insisting upon any pre-deposit.
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2012 (4) TMI 362 - CESTAT, MUMBAI
CENVAT credit for cellular telephone service - Meaning and scope of the term capital goods - (i) antenna, (ii) tower and parts thereof and (iii) green shelter (same as PFB) - held that:- if the signal transmitting antenna is installed on a tower, the signal receiving antenna could be installed on a high-rise building or flyover, and vice versa. If the tower is held to be an accessory of the antenna erected thereon, a high-rise building or a flyover with an antenna erected thereon will also have to be considered as accessory of such antenna. To our common sense, a huge immovable structure like tower cannot be termed 'accessory' of any goods. A supplementary, subordinate, additional or extra thing which is added to make something more useful, effective, convenient etc. is understood as an accessory as per the cited dictionaries. It will be absurd to hold a gigantic immovable structure to be an 'accessory' of a small equipment placed on its top. All the three terms --- 'components', 'spares' and 'accessories' -- used in sub-clause (A)(iii) of clause (a) of Rule 2 should be understood as standing for movables only. - Not eligible as Capital goods for the purpose of cenvat credit.
Alternative plea - If the towers and parts thereof are not capital goods falling under Rule 2(a)(A) of the CENVAT Credit Rules, 2004, it is argued, they are liable to be recognized as 'inputs' under Rule 2(k). - held that:- it has to be, firstly, "goods" and, secondly, "used for providing any output service". The first requirement in this case is not met by the towers which are admittedly immovable structures and ipso facto non-marketable and non-excisable.
Cenvat Credit on PFBs which were used as protective shelter for transmission equipments - office chairs - held that:- They are not components or accessories of any goods specified in that sub-clause either. Thus PFBs have no place in sub-clause (iii) also. Hence CENVAT credit cannot be claimed on PFBs as capital goods. The same conclusion can also be reached in respect of office chairs which are goods of Chapter 94. Further the chairs cannot be held to have been used for providing telecom service, in the absence of evidence.
CENVAT credit on printers which are office equipments - there is no direct nexus between this item and the output service provided by the appellant. The appellant has not established sufficient nexus between printers and their output service. - Credit denied.
Extended period of limitation - held that:- the learned Commissioner did not consider this plea at all. Therefore, in both the cases, the limitation issue requires to be remanded to the learned Commissioner for careful consideration and speaking order.
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2012 (4) TMI 361 - ITAT AGRA
Addition u/s 69 - Assessing Officer noticed that as per Annexure-B of audit report fresh loan of Rs. 58,42,320/- has been shown which included loan from Sona Traders Rs. 18,24,950 - the bank account and other details were not furnished, the Assessing Officer made addition of Rs. 18,24,950/-as unexplained cash credit under section 68 of the Act - The admitted facts of the issue is that there was opening balance in the account of Sona Traders for a credit balance as evident from the copies of account reproduced by the Assessing Officer in his order - Held that: there is no contrary material or facts available on record nor the Ld. Departmental Representative pointed out any such contrary material to the finding of the CIT(A), in the light of the facts, order of the CIT(A) is confirmed - Appeal is dismissed Regarding addition of Rs. 15,40,000/- made under section 68 - Assessing Officer was of the view that under the circumstances the amount of Rs. 15,40,000/- could not be treated as explained credit entry - In the case under consideration the issue is in respect of gift of Rs. 15,40,000/- from younger sister of the assessee - It appears from reading of section 68 of the Act that whenever a sum is found credited in the books of account of the assessee then, irrespective of the colour or the nature of the sum received which is sought to be given by the assessee, the Income-tax Officer has the jurisdiction to enquire from the assessee the nature and source of the said amount - Held that: The assessee has also failed to furnish the complete circle of all these transactions that wherefrom original money came to the account of Smt. Anjali Consul which was invested in units as well as in banks in the form of fixed deposits and others - Decided against the assessee
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2012 (4) TMI 360 - ITAT DELHI
Additions made by the AO u/s 10A and 80HHE - Penalty of ₹ 10,00,000/- in the AY 2003-04 & ₹ 1,05,00,000/- in the AY 2004-05 levied by the AO u/s 271(1)(c) - During the course of assessment proceedings, the Assessing Officer noticed that the assessee, inter alia, did not receive or bring in convertible foreign exchange into India within the stipulated time on account of exports made by it to the extent of ₹ 13,16,087/- in Leela Unit & ₹ 25,08,077/- in GNR unit - the assessee claimed deduction on the basis of report dated 27.11.2003 of the CA in form no. 56 F & 10CCAF - assessee, in the instant case, merely made a bona fide claim for the deduction in terms of the said certificate while pointing out that the aforesaid amounts towards exports were not realized within the stipulated period. Not even a whisper has been made in the penalty order as to which specific particulars were furnished inaccurate or were concealed - The assessee, in the instant case, merely made a bona fide claim for the deduction in terms of the said certificate while pointing out that the aforesaid amounts towards exports were not realized within the stipulated period A mere rejection of the claim of the assessee by relying on different interpretations does not amount to concealment of the particulars of income or furnishing inaccurate particulars thereof by the assessee - Held that: the disallowance of claim for deductions u/s 10A & 80HHE in relation to unrealised exports or disallowance of an estimated amount, having recourse to provisions of sec.14A the Act cannot be considered as concealment of income or furnishing inaccurate particulars thereof, especially when all the relevant particulars were disclosed before the AO - Mere erroneous claim in the absence of any concealment or furnishing of inaccurate particulars, is no ground for levying penalty, especially when there is nothing on record to show that the explanation offered by the assessee was not bona fide or any material particulars were concealed or furnished inaccurate - Appeals are dismissed
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2012 (4) TMI 359 - ITAT BANGALORE
Grievance of the assessee relates to the adjustment of ₹ 1,76,56,164 to the ALP of the international transactions between the assessee and its Associated Enterprises (AEs). The TPO passed an order u/s. 92CA of the Act on 28.10.2009 proposing adjustments of ₹ 2,29,86,949 - The ld. counsel for the assessee submitted that the assessee purchased raw material for ₹ 21.09 crores and adopted TNMM method - It was submitted that as per proviso to section 92C(2) of the Act, an option was available to the assessee for adjustment of +/- 5% variation for the purposes of computing ALP - In the present case, the assessee has not disputed the adjustments u/s. 92CA of the Act, but challenging the working of ALP without giving benefit of the option available under the erstwhile proviso to section 92C(2) of the Act, so it becomes relevant to discuss the provisions contained in the erstwhile proviso to section 92C(2) of the Act, which was inserted by Finance Act, 2002 w.e.f. 1-4-2002 - It is clear that the option is available to the assessee for adjustment of +/- 5% variation for the purposes of computing ALP. - In the present case, it appears that the benefit of +/- 5% adjustment has not been given to the assessee for the reason (as mentioned by the TPO) that sales made by the assessee to third parties were higher in comparison to the rates of sale by AEs to the assessee - Held that: the benefit of +/- 5% intended by the erstwhile proviso to section 92C(2) of the Act was not available to the assessee.
Regarding the applicability of the amended provisions in proviso to section 92C(2) - the withdrawal of the interpretation placed in circular No 5 /2010 (supra) on the applicability of the amended proviso is sought to be done away by the Corrigendum dated 30.9.2010 and, therefore, such withdrawal shall be effective only after 30.9.2010, even if such Corrigendum is accepted as valid - Held that: the circulars which are in force during the relevant period are to be applied and the subsequent circulars either withdrawing or modifying the earlier circulars have no application. Held that: no justification in the action of the lower authorities in disentitling the assessee from its claim for the benefit of +/-5% to compute ALP in terms of the erstwhile proviso to section 92C(2) of the Act Appeal is partly allowed
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2012 (4) TMI 358 - GUJARAT HIGH COURT
Appeal against Order of Tribunal - addition in respect of the gift received as unexplained cash credits as well as non-genuine - AO required details of the donor and creditworthiness of power of attorney holder of donor to give confirmation with regard to such gift - opinion that details of business activities of Donor prior to 1999 was not provided submitted by the assessee money had been transferred through banking channel and it has also come from the NRE account of the donor- Held that:- relationship of the Donor with the present appellant had not been established, so much so that for love and affection or for being an acquaintance also, not an iota of evidence was furnished - It doubted the very source of the gift and since the onus is on the appellant to prove the genuineness of the gift the issue merits no acceptance.
Dis- allowance of set off of short-term capital loss on cancellation of the agreement to sell (banakhat) Held that:- no capital loss would be allowed if it is more than the cost of an asset - there could be transfer of the asset by the assessee and in the entire transaction of forfeiture of advances, no assets are owned by the assessee and nothing is transferred - there was no question of invoking any of the provisions of the Income-tax Act to allow capital loss - a colourable device was designed so as to get set off against the capital gains earned by the assessee on sale of jewellery declared under the VDIS - tax appeals dismissed.
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2012 (4) TMI 357 - ITAT COCHIN
Reopening - Deduction u/d 80HHC - assessee, an individual, is in the business of cashew exports as well as running a hotel - whether the processing charges has to be excluded in arriving at the figure of 'total turnover' while computing the export profit u/s. 80HHC(3) - In fact, not only is the said case of a cashew exporter, i.e. as the assessee, as it would appear, the same is only in the assessee's own case (for A.Y. 1993-94) in-as-much as the apex court thereby decided the Revenue's appeal against the decision by the Hon'ble Kerala High Court in the case of CIT v. K. Rajendranathan Nair [2007 -TMI - 2378 - Supreme Court of India] - The apex court per the same has abundantly clarified that the 'processing charges' is an 'independent income' like brokerage, commission, rent, charges, etc. forming part of the gross total income (GTI), being business profit, though having no nexus with the export and, accordingly, is to be deducted at 90% thereof The assessee has, however, raised an alternative plea, claiming that even if so, it is only the income from the processing charges, and not the gross receipt by way of processing charges, that has to be excluded under Explanation (baa) - once 'processing charges' has been held to be an 'independent income', i.e., as rent, commission, brokerage, etc., like treatment in its respect would follow - Held that: The onus, however, to establish the said profit included in the GTI would only be on the assessee, so that in its absence, the statutory prescription in its respect would follow. The matter is accordingly restored back to the file of the AO - Appeal is partly allowed
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2012 (4) TMI 356 - ITAT DELHI
Arm's length price - Reference to TPO - TPO passed the order on 16.10.2008, in which upward revision of Rs. 2,95,42,104/- was suggested for bringing the value of the transactions in line with the ALP - AO adopted CUP method, which has been accepted by the assessee - it is mentioned that the assessee did not file form no. 3CEB either with the return of income or in the course of the determination of the ALP - ld. CIT(A) made adjustment of 7.40% on account of increase in the rate of copper in the months of January, February and March, 2005 - The contracts with unrelated parties were fixed-price contracts. The AO adopted ALP on the basis of rate charged from unrelated parties - It appears from the conduct of the parties that the contracts were valid till the end of the last quarter of financial year 2004-05, as sales to them at the fixed rate have been made in January and February, 2005 - the facts show that the fixed price-contracts with unrelated parties took into account the probable increase in prices in copper during the period in which they were entitled to buy the goods - it is held that the assessee is not entitled to get any deductions on account of increase in price quoted at LME Regarding deduction of expenditure incurred in opening the LC, granted by the ld. CIT(A) at 0.35% - e ALP shall be taken to be the arithmetical mean prices, or, at the option of the assessee, a price which may vary from arithmetical mean by an amount not exceeding 5% of such arithmetical mean - where there is only one price say in case of gold, copper, zinc etc., there is no possibility of different prices once purity is same - Decided in favor of the assessee
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2012 (4) TMI 355 - ITAT MUMBAI
Additional Evidence - Rule 46A - right of the assessee - held that:- The assessee has explained that because the Assessing Officer has not specifically called for the evidence, therefore the assessee did not file the same before the Assessing Officer. - It is pertinent to note that the Assessing Officer has raised a specific query whereby the assessee was asked to explain such valuation and subsequent loss. - The assessee filed its reply vide letter dated 7.10.2009. Therefore, the assessee was given sufficient opportunities to explain and substantiate its claim of revaluation of closing stock. - As regard sub rule (4) of Rule 46A that is a discretionary power of the CIT(A) to direct the production of any document, or the examination of any witness for proper adjudication of the case. - the assessee cannot claim any right under sub rule (4) of Rule 46A for producing of any document which otherwise cannot be produced under sub Rule (1) of Rule 46A.
Valuation of Closing Stock - deduction in respect of cost of production of feature film as per Rule 9A - held that:- once the expenditure on the production of the film is allowable as deduction as per the provisions of Rule 9A, then no deduction is permissible de-hors the provisions of Rule 9A.
Allowance of cost of the feature film as business loss - abandoned project - held that:- the assessee's case is not for the claim of abandoned project or covered under Rule 9(4). Therefore, the case relied upon by the assessee are not applicable in the facts of the present case. Further, the alternative plea of the assessee is pertaining to the issue of allowing the business loss in the assessment year other than the year under consideration, which cannot be adjudicated in the proceedings of this year.
Business loss as per Rule 9A(4) - held that:- The deduction shall be allowed in accordance with the provisions of sub rule (2) to sub rule (4) of Rule 9A of I T Rules 1962. Therefore, sub rule (2) to (4) expresses various circumstances and procedures to allow the deduction. Whereas sub rule (5) of Rule 9A stipulates the conditions which are required to be fulfilled for such deduction is allowed. - when the assessee has neither himself exhibits feature film on commercial basis nor sold the rights of exhibits of the feature film nor transfer the rights of exhibits of feature film, then the claim of deduction is hit by sub rule (5) of Rule 9A of the I T Rules and cannot be allowed.
Valuation of opening stock of the next year - held that:- in view of the decision of the Hon'ble jurisdictional High Court in the case of CIT v. Mahalaxmi Glass (2009 -TMI - 35481 - BOMBAY HIGH COURT), opening stock of the next year should be valid at the figure which has been taken by the Assessing Officer for the closing stock of this year.
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2012 (4) TMI 354 - ITAT AHMEDABAD
Treating the Appellant's wholly owned subsidiary in UAE as its proprietary concern and treating income earned by the said wholly owned subsidiary as that earned by the Appellant A.O stated since the assessee is the only shareholder and holding 100% shares of Vega UAE, it is not a valid company as two shareholders are required - Held that:- Article (1) of the said Memorandum of Incorporation states that this entity is established with corporate entity and independent and separate financial liability from those of its owner and the only situation where the owner will be treated as personally responsible is regarding omission of some specified information that the entity FZE - this is a situation where it specifies that corporate veil may be lifted therefore, because of this restriction alone, it cannot be said that Vega UAE is not a separate legal entity - as per these provisions of Section 2(17) UAE is definitely not an Indian company - As per this Amiri Decree No. (2) of 1996 promulgated by His Highness the Ruler of Emirates of Ajman, Free Zone Establishment can be established with limited liability and shall have the body corporate capacity and it shall belong either to one natural person or one judicial person - in favour of assesee.
TP adjustment made by the A.O in respect of sales made to Vega UAE and commission payment considering the controlled transactions of the assessee as comparable for benchmarking the international transaction Held that:- Vega UAE is carrying both the inventory risk as well as credit risk and therefore is not a marketing service provider but a distributor of the assessee company - ALP has to be determined on the basis of profit on sale of goods by the assessee company as compared to the comparable companies - If the operating cost is higher in Vega US, it cannot be said that the profit margin of other Vega Entities should be at par with the profit margin of Vega US and hence, TP adjustment proposed by TPO and confirmed by DRP on the basis of operating cost/operating profit of Vega US is not sustainable in favour of assessee.
Disallowance u/s 14A of the Income tax Act, 1961 - Held that:- the assessee working regarding interest expenditure and indirect expenditure accepted without any mistake - confirm the disallowance u/s 14A to the extent ₹ 11,48,609/- and delete the balance disallowance made by the A.O - appeal assessee is partly allowed.
Disallowance u/s 40a(ia) for non deduction of tax on commission paid on non residents for the services rendered outside India - Held that:- nothing has been brought on record by the revenue to show that the foreign agent to whom commission was paid, had any operation carried out in India as per the provisions of Section 9(1)(i) of Income tax Act,1961- the provisions of Section 40a(ia) are not applicable in favour of assessee.
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2012 (4) TMI 353 - ITAT MUMBAI
Unsigned assessment order u/s 143(3) - valid or not - revenue contested that since the tax has been determined and demand notice issued and served if the assessment order remained to be unsigned it is merely a procedural irregularity curable under the provisions of section 292B, it is the service of demand notice which is crucial and such failure would invalidate proceedings - Held that:- Provisions of Sec.143(3) of the Act contemplates that the AO shall pass an order of assessment in writing. The requirement of signature of the AO is therefore a legal requirement. The omission to sign the order of assessment cannot be explained by relying on the provisions of Sec.292B of the Act in favour of assessee.
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2012 (4) TMI 352 - ITAT DELHI
Deletion of penalty by CIT(A) imposed u/s 271(1)(c) by the AO ignoring that the assessee has not discharged its onus of proving that there was no intention of concealment on its part and the mistake was bonafide - A.O. noticed that the assessee claimed deduction for expenses on account of fines and penalties - assessee debited an amount of Rs. 1,90,338/- under the head bad debts written off - Held that :- the assessee produces no fresh evidence or presents any additional or fresh circumstance in penalty proceedings, he would be deemed to have failed to discharge the onus placed on him and the levy of penalty could be justified - the explanations appended to section 271(1)(c) of the Act entirely indicate the element of strict liability on the assessee for concealment or for giving inaccurate particulars while filing return - Even if there is no concealment of income or furnishing of inaccurate particulars, but on the basis thereof the claim which is made is ex facie bogus, it may still attract penalty provision fair and appropriate to vacate the findings of the ld. CIT(A) and restore the matter to his file with the directions to readjudicate the levy of penalty - against assessee.
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2012 (4) TMI 351 - AUTHORITY FOR ADVANCE RULINGS
Payments made for managerial services in terms of paragraph 4 of Article 13 of the DTAC between India and France - Applicant is a 100% subsidiary of a French company service agreement on an automatic renewal of its terms for one year at a stretch assessee contested that managerial services were not included in the concept of included services under the IndiaUS Convention and the payments could be understood only as the business income of the French company and the payments to it could not be taxed in India in the absence of that company having a permanent establishment in this country Held that:- managerial services, within the meaning of paragraph 13 of India- France DTAC, are provided by the French Company to the applicant for a consideration equivalent to the cost incurred by the French Company plus 5% thereof as mark up - services rendered on marketing, on strategy and the training provided to optimize sales techniques all would come within the purview of consultancy services The services are enduring and they help in promoting the business of the applicant, knowledge and know-how are made available to the applicant. Hence the services agreement are held to be consultancy services are made available to the applicant - in terms of paragraph 2 of Article 13, the tax charged is not to exceed 10% of the gross amount of the fees and the deduction under section 195(1) of the I.T. Act has to be on that basis - contention of assessee on existence of a permanent establishment does not arise in view of the finding that the payments are liable to be taxed as fees for technical services - applicant is required to deduct tax at source under section 195(1) of the Income Tax Act - against assessee.
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2012 (4) TMI 349 - ITAT MUMBAI
Disallowance u/s.40 (a)(ia) on payments made to subcontractors Held that:- Amendment to the provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 is retrospective from 1.4.2005. - If tax was deductible and was so deducted during the first eleven months of the previous year, that is, up to February, 2005, the disallowance was to be made if the assessee failed to pay it before 31st March, 2005 - provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 is retrospective from 1.4.2005 - assessee had deposited the tax deducted at source on or before the due date for filing return of income u/s.139(1) of the Act and therefore the impugned disallowance deserves to be deleted - in favour of assesee.
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2012 (4) TMI 348 - BOMBAY HIGH COURT
Waiver/ Refund of interest u/s 234A and 234B - Advance Tax - revenue denied the waiver - power u/s 119 - held that:- The first respondent has arrived at a conclusion that the assessee could have fairly and accurately anticipated the income pertaining to financial year 2007-08. The Commissioner has arrived at a conclusion that the majority of expenditure, as mentioned in the tabular chart below paragraph 5, is definite and ascertainable. The said expenditure has actually been incurred within the same year. The assessee maintains computerized books of accounts and they could have made provisions for anticipated expenditure in accordance with the accepted accounting principles. In these circumstances, and when the ultimate conclusion in paragraphs 7 and 8 of the impugned order cannot be said to be either irrational or arbitrary or vitiated to such an extent that no reasonable person would arrive at the same in the given facts and circumstances, that we are unable to interfere with the impugned order in writ jurisdiction. - Decided against the assessee.
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