|
Advanced Search Options
Case Laws
Showing 301 to 320 of 994 Records
-
2013 (4) TMI 700
Transfer pricing adjustment - Computation of arm's length price in relation to international transactions - Disallowance of employees contribution to provident fund paid after due date - Treatment of telecommunication charges from export turnover while computing deduction under section 10B of the Act - Held that:- The first ground is with respect to exclusion of telecommunication charges from export turnover while computing deduction under section 10B of the Act. The assessee has claimed an amount of ₹ 6,46,123 towards telecommunication charges. The assessee had excluded the said amount from export turnover in computation of deduction under section 10B of the Act. The assessee has conceded before the Commissioner of Income-tax (Appeals) that it is not in a position to furnish break-up of expenses incurred for domestic and exports. The Commissioner of Income- tax (Appeals) made estimation of telecommunication charges to the tune of ₹ 5 lakhs as attributable towards export of software. It is an admitted fact that the assessee is in the business of export of design, development and testing of hardware and software and it was also maintaining the smart card and bio-metric products developed by the third parties. Therefore, it must have incurred a substantial amount of expenditure towards telecommunication and internet charges. The Commissioner of Income-tax (Appeals) has made fair estimation of the same. Since the Revenue has not been able to produce any cogent evidence to controvert the findings of the Commissioner of Income-tax (Appeals), we do not deem it appropriate to interfere with the same.
The Revenue has also assailed the order of the Commissioner of Income-tax (Appeals) with regard to exclusion of the telecommunication charges from the export turnover as well as total turnover. We find that the Special Bench of the Tribunal in the case of Sak Soft Ltd. [2009 (3) TMI 243 - ITAT MADRAS-D] has held that while applying the formula prescribed under section 10B(4) of the Act, where the freight, telecommunication charges or insurance attributable to the delivery of articles or things or computer software outside India, the expenses that are to be excluded from the export turnover, should also be excluded from the total turnover as well. In view of the well-settled law, this ground of appeal of the Revenue is dismissed.
The second ground of appeal of the Revenue relates to disallowance of employees contribution towards provident fund beyond due date. It is an admitted fact that the assessee has made contribution towards employees provident fund beyond the due date prescribed under the Provident Fund Act, but the same has been made before the due date for filing of the tax return. The Tribunal in the case of Atlas Cycles (Haryana) Ltd. [2010 (2) TMI 879 - ITAT, New Delhi] has held that employee's contribution which has been remitted belatedly beyond the due date prescribed in the Provident Fund Act but before the due date for filing of tax return of income is allowable as deduction. Respectfully following the decision of the Tribunal, this ground of appeal of the Revenue is dismissed.
The third and the last ground of appeal of the Revenue relates to transfer pricing adjustment.The objection of the Departmental representative is with regard to the method adopted by the assessee in determining the arm's length price. We are of the considered opinion that the Transfer Pricing Officer has not conducted the pricing study as required under the statute. The Transfer Pricing Officer has not independently determined the arm's length price by taking candid transactions of unrelated parties. The Transfer Pricing Officer has erred in simply accepting the percentage of profit indicated in the service agreement between the assessee and the permanent establishment. The Transfer Pricing Officer ought to have conducted detailed study for determining the arm's length price between unrelated enterprises by applying the most appropriate method as provided under section 92C of the Act. Matter remitted back to the Transfer Pricing Officer. - In the result, the appeal of the Revenue is partly allowed for statistical purposes and the cross-objection of the assessee is allowed for statistical purposes.
-
2013 (4) TMI 699
Transfer pricing adjustment - advertisement, marketing and sales promotion expenses - Held that:- In view of the majority decision of the Special Bench in L. G. Electronics India P. Ltd. v. Asst. CIT reported in [2013 (6) TMI 217 - ITAT DELHI] we hold that the transaction in question is an international transaction which is liable to be considered under the provisions of section 92B of the Act and the Assessing Officer was justified in treating the transaction of brand building as an international transaction in the facts and circumstances of the case. Transfer pricing adjustment in relation to advertisement, marketing and sales promotion expenses incurred by the assessee for creating or improving the marketing intangible for and on behalf of the foreign AE is permissible - set aside the present issue for adoption of the prescribed method for determining arm' s length price in relation to the advertisement, marketing and sales promotion expenditure to the file of the Transfer Pricing Officer. - Decided in favour of assessee for statistical purposes.
Expenditure relating to market research service - whether charges paid to selling agents and discount on sales are to be excluded from the alleged advertisement, marketing and sales promotion expenditure as being not relatable to advertisement and marketing expenditure? - Held that:- We find that the Special Bench of the Tribunal (majority view) in L. G. Electronics India P. Ltd. v. Asst. CIT reported in [2013 (6) TMI 217 - ITAT DELHI] held that the expenses in connection with the sales do not lead to brand promotion and thus cannot be brought within the ambit of advertisement, marketing and promotion expenses for determining the cost/value of the international transaction. In view thereof, we direct the Assessing Officer to exclude the expenses incurred by the assessee in connection with the sales totalling ₹ 5,500.86 lakhs as the same do not fall within the ambit of advertisement, marketing and sales promotion expenses and hence not to be considered for computing the cost/value of international transaction. In view of our decision in allowing the claim of the assessee being relatable to sales promotion expenses, this ground of appeal is thus allowed - Decided in favour of assessee.
Selection of comparable companies for benchmarking the advertisement and publicity expenses - Held that:- As the issue of determining the transfer pricing adjustment in relation to advertisement, marketing and sales promotion expenses incurred by the assessee being set aside to the file of Transfer Pricing Officer for redetermining the arm' s length price of international transaction after considering the comparables companies, we direct the Transfer Pricing Officer to consider the aspect raised by the assessee in this regard and redetermine the value of arm' s length price in relation to the advertisement, marketing and sales promotion expenditure incurred by the assessee for the brand promotion of the foreign brand and also following the directions given by the Special Bench of the Tribunal (majority view) in L. G. Electronics India P. Ltd. v. Asst. CIT [supra] - Decided in favour of assessee for statistical purposes.
No adjustment is required to be made in respect of the advertisement expenses attributed to the promotion of domestic brand owned by the assessee - Decided in favour of assessee.
Disallowance under section 43B - excess payment made on account of excise duty - Held that:- In view of the above said ratio laid down by the hon'ble Delhi High Court in CIT v. Maruti Suzuki India Ltd. [2012 (12) TMI 671 - DELHI HIGH COURT] relied upon the ratio laid down by the hon'ble Supreme Court in CIT v. Shri Ram Honda Power Equipment Ltd. [2012 (10) TMI 150 - Supreme Court] wherein it has been laid down that the PLA credit was excise duty paid. The said observation was made where the assessee was following net method of valuation of closing stock. Also see CIT v. Modipon Ltd. (2011 (1) TMI 323 - Delhi High Court), Raj and San Deeps Ltd. [2007 (2) TMI 198 - PUNJAB AND HARYANA High Court ] and also the Special Bench of the Tribunal in the assessee' s own case, we direct the Assessing Officer to allow the claim of expenditure of ₹ 36,87,481 claimed under the provisions of section 43B of the Act. - Decided in favour of assessee.
Disallowance of the provisions made for post retirement medical benefits to the employees - Held that:- In the facts of the present case before us the assessee had recognised and accounted for the post retirement benefit due to its employees, in terms of the scheme of employment and also in terms of the revised/ change in Accounting Standard-15 issued by ICAI which was to be followed during the year, is an allowable deduction in the hands of the assessee. The said claim being based on the valuation of the actuary is both scientific and one of the recognised method of accounting and quantifying the said post retiremental medical benefits. In such cases though actual and exact quantification may not be possible, however, the liability so recognised by the assessee could not be said to be unascertained and contingent. The assessee having followed the mercantile system of accounting was compulsorily required to account for the said post retirement medical benefits as the same was quantified and had accrued during the year. The claim of the assessee was thus allowable irrespective of the fact that the assessee had made a provision in the books of account but had claimed the said deduction in the computation of income. It is well settled proposition that the way in which entries are made by the assessee in its books of account is not determinative of the question whether the assessee had earned any profit or suffered any loss as held by the hon' ble apex court in Sutlej Cotton Mills Ltd. v. CIT [1978 (9) TMI 1 - SUPREME Court] - Decided in favour of assessee.
-
2013 (4) TMI 698
Validity of assessment order passed - Bar of limitation in passing block assessment - Held that:- Wherever the limitation starts from the date of receipt of the judgment/order by the appellant/respondent, the Legislature has made a specific provision in the concerned Act. In the Income-tax Act/ Rules specific provisions are made to clarify that the period of limitation always starts from the date of receipt of order by the appellant/respondent. But such type of clarification has not been given either in the High Court Rules or the General Clauses Act or any other civil laws. The writ petitions are filed as per the High Court Rules or the General Clauses Act where the limitation always starts from the date of pronouncement of the order/judgment. Therefore, once the stay is vacated, the assessee has to revert back to its position as on February 12, 2004 and the balance time available for framing the assessment was only up to April 15, 2010. Since the assessment order was passed on June 22, 2010, it is certainly barred by limitation. - assessment framed by the Assessing Officer is barred by limitation. Accordingly, we do not find any infirmity in the order of the learned Commissioner of Income- tax (Appeals) who has rightly annulled the assessment being barred by limitation - Decided against Revenue.
-
2013 (4) TMI 697
Penalty u/s 271(1)(c) - Depreciation claim - Held that:- there is no doubt the claim of depreciation by the assessee was wrong but the assessee has filed complete particulars qua these assets and also in the claim of depreciation in audit report and in the return of income and nothing was concealed from the Department. In such circumstances, respectfully following the decision in the case of Usha Martin Ventures Ltd. [2011 (5) TMI 895 - CALCUTTA HIGH COURT], we are of the view that penalty levied by the Assessing Officer has rightly been deleted by the Commissioner of Income-tax (Appeals). - Decided against Revenue.
-
2013 (4) TMI 696
Disallowance of the employer's contribution to provident fund - Held that:- Supreme Court in the case of CIT v. Alom Extrusions Ltd. [2009 (11) TMI 27 - SUPREME COURT] has held that the amendment to the first proviso and omission of the second proviso to section 43B by the Finance Act, 2003 is retrospective. The hon'ble Delhi High Court in the case of CIT v. Aimil Ltd. [2009 (12) TMI 38 - DELHI HIGH COURT] has allowed deduction in respect of employees' share when the amount was paid before the due date. When we consider these two judgments, it becomes clear that both the employer's and employees' contribution are allowable as deduction if the amount of provident fund, etc., though belatedly, but is paid before the due date of filing of return under section 139(1) of the Act. Per contra, if the amounts are not paid before the due date, then the amount cannot be allowed as deduction in the relevant year. However the deduction would be available in the year of payment. Since these two amounts were disallowed in the preceding year on the ground that these were not paid before due date of filing the return for the assessment year 2006-07, naturally the deduction would be available on payment of such amounts falling within the previous year relevant to the assessment year under consideration. We, therefore, overturn the impugned order on this issue and order for the deletion of both additions. - Decided in favour of assessee.
-
2013 (4) TMI 695
Revision of assessment under section 27(3) of the VAT Act - whether is without any jurisdiction and against the statute? - Held that:- In the present case, the petitioner was called upon to file objections to the impugned revision notice. Without filing objections, the petitioner has filed the present writ petition on the ground that the notice is contrary to the earlier assessment. The petitioner ought to have filed objections and thereafter, if any final order is passed, the petitioner can work out his remedy before the appropriate forum in the manner known to law. Now, it is too premature to invoke the jurisdiction of this court under article 226 of the Constitution of India.
Writ petition disposed of with a direction to the petitioner to file its objections within two weeks from the date of receipt of a copy of this order
-
2013 (4) TMI 694
... ...
... ... ..... t proviso to Sub Section 2 of Section 21 or Sub Section 4 of Section 21 would not be attracted in the present case, both for passing a fresh order of sanction and reassessment. 8. In the result, the writ petition succeeds and is allowed. The impugned order dated 10.10.2008 granting approval as also the notice issued for reassessment, are hereby set aside. The matter is remanded back to respondent no. 2 to decide the matter afresh, keeping in view the objection raised by the petitioner. 9. Since the matter is an old one, the petitioner is directed to file a certified copy of this judgment before respondent no. 2 within 15 days from today. Thereafter, respondent no. 2 shall fix a date for hearing and take appropriate decision, in accordance with law, preferably within a period of one month. 10. It is made clear that if the petitioner fails to file a certified copy of this order before respondent no. 2 within the period stipulated above, the writ petition shall stand dismissed.
-
2013 (4) TMI 693
... ...
... ... ..... etitioner on September 20, 2007. 8. In view of section 29 of the U. P. Trade Tax Act, the petitioner is clearly entitled to get interest at the rate of 18 per cent. per annum on a sum of ₹ 1,67,353 from September 20, 2007 to February 11, 2008. Interest shall be paid within one month from the date of production of the certified copy of this order before respondent No. 1. It is made clear that if the respon dent fails to pay the interest as directed above within the stipulated time, they will also be liable to pay interest upon interest at 10 per cent. per annum from the date of production of certified copy of this order till the date of actual payment. 9. It is a case where the respondents have failed to discharge their statutory obligation, therefore, the respondents shall pay a sum of ₹ 10,000 as cost to the petitioner. The said amount shall also be paid by the respondents to the petitioner within the aforesaid period of one month. 10. The petition is allowed.
-
2013 (4) TMI 692
Limitation for making the assessment order - delay in issuing recovery notices - Held that:- Undisputed facts are that the different orders pertaining to the tax under the JVAT and the CST were passed and it is mentioned in the margin of the order sheets that the notices were despatched on the date when the orders were passed or a few days thereafter only. Admittedly, these notices were not served upon the petitioner for about minimum one year four months and maximum three years four months. There is no explanation by the Revenue as to how these notices were kept by the Department itself for such a long period and that too in a matter of recovery of the tax amount.
It will be further relevant to mention here that it is not the case of the Revenue that the notices purported to have been issued forthwith after the order of issuance and they returned back and fresh notices were issued which were served upon the petitioner-assessee and it is also not the case of the Revenue that the petitioner avoided the service. Plea of the respondents cannot be believed that, notices duly issued and entered into the despatch register were kept in the office for one year four months to three years four months and they were used for serving upon the petitioner after such a delay. W.P. allowed.
-
2013 (4) TMI 691
... ...
... ... ..... A circular was also issued on 10/6/2008 in this regard. Hence, the case of the petitioner was reopened, notice was issued and tax to the tune of ₹ 34,86,955/- has been imposed upon him vide impugned order Annexure P/1. Learned counsel for the petitioner admitted the fact that the validity of the amendment in section 8(5) of the Central Sales Tax has been upheld hence, the petitioner is liable to pay the tax, but the aforesaid tax has to be set off against the liability of the petitioner in view of the exemption granted to him. This question has not been considered by the Revisional Authority in the impugned order Annexure P/1. Hence, the petition is disposed of with the following direction The impugned order dated 21st December,2010 is hereby quashed. The Revisional Authority is directed to consider the eligibility of the petitioner for set off in accordance with the exemption granted to the petitioner vide Annexure P/3. The petition is disposed of with the aforesaid.
-
2013 (4) TMI 690
... ...
... ... ..... STC 422 (SC); 1994 4 SCC 276, the Supreme Court has held that the assessee is not liable to pay interest on the additional sales tax on the date original return was filed, but interest has to be paid only for the period subsequent to determination of the sales tax under the final assessment while overruling the judgment of the Supreme Court in Associated Cement Co. Ltd. case 1981 48 STC 466 (SC); 1981 4 SCC 578. Since the liability to pay interest has attained finality with the order of the revisional authority on July 7, 1993, the interest would be payable not from the date of assessment order, but from the date of the such imposition. Consequently, while quashing the levy of interest vide order dated July 7, 1993 imposed as the amount payable at the time of filing of the returns, the present writ petition is disposed of with the observation that the petitioner shall be liable to pay interest on the amount assessed from the date the revisional authority has passed an order.
-
2013 (4) TMI 689
... ...
... ... ..... s that as per the scrutiny report, the seizure No. 6 was changed and at its place, diary and some loose papers of seizure Nos. 8 and 9 were enclosed and on these changed papers and diary the appellant and 2 witnesses have signed, which was admitted by them in their statement before the Assistant Commissioner. We have perused the record and we are of the considered opinion that in the facts of the present case, no error has been committed by the assessing authority in doing the best judgment assessment specially when the accounts were not verified by the appellant from the regular books of account and the manipulation in the seized documents was done. In view of the detailed analysis by the Board and the conclusion arrived at by the Board, we find that the present appeals do not involve any substantial question of law. The appeals are accordingly dismissed. Signed order be kept in the file of VATA No. 27 of 2012 and a copy thereof be placed in the file of VATA No. 28 of 2012.
-
2013 (4) TMI 688
... ...
... ... ..... , it is not disputed by learned counsel for the petitioners that the matter is covered against the petitioner by the judgment of honourable Supreme Court in Hotel Balaji v. State of Andhra Pradesh 1993 88 STC 98 (SC); AIR 1993 SC 1048. Only contention which has been pressed is about levy of interest for the period prior to the assessment. On this aspect the matter is covered in favour of the petitioner by the judgment of the honourable Supreme Court in J.K. Synthetics Ltd.'s case 1994 94 STC 422 (SC); AIR 1994 SC 2393 and learned counsel for the State has not been able to distinguish the applicability of the judgment. Accordingly, we allow these writ petition to the extent of levy of interest for the period prior to passing of the order of assessment. The Assessing Authority may issue fresh notice of demand accordingly by modifying the interest component in accordance with the principles laid down in J.K. Synthetics Ltd.'s case 1994 94 STC 422 (SC); AIR 1994 SC 2393.
-
2013 (4) TMI 687
... ...
... ... ..... the same does not exempt the goods sold in the course of inter-State trade by dealers other than those who hold valid exemption certificate granted under rule 28A of the Rules. If the State Government wanted to extend the benefit of exemption from payment of tax under the Central Act to the sale of goods effected by a dealer in the course of inter-State trade irrespective of the fact that such dealer does not hold exemption certificate under rule 28A of the Rules, then it would have incorporated the language of rule 28A(4)(c) in the notification and would not have put the rider that such dealer should not have charged tax under the Central Act on the sale of goods manufactured by it." Since this court has categorically held that inter-State sales are not exempted within the scope of rule 28A(4)(c), therefore, for the reasons recorded therein, we do not find that any substantial question of law arises for consideration by this court. The appeal is dismissed accordingly.
-
2013 (4) TMI 686
... ...
... ... ..... is not disputed by learned counsel for the petitioners that the matter is covered against the petitioner by the judgment of the honourable Supreme Court in Hotel Balaji v. State of Andhra Pradesh 1993 88 STC 98 (SC); AIR 1993 SC 1048. Only contention which has been pressed is about levy of interest for the period prior to the assessment. On this aspect the matter is covered in favour of the petitioner by the judgment of the honourable Supreme Court in J.K. Synthetics Ltd.'s case 1994 94 STC 422 (SC); AIR 1994 SC 2393 and learned counsel for the State has not been able to distinguish the applicability of the judgment. Accordingly, we allow these writ petition to the extent of levy of interest for the period prior to passing of the order of assessment. The Assessing Authority may issue fresh notice of demand accordingly by modifying the interest component in accordance with the principles laid down in J.K. Synthetics Ltd.'s case 1994 94 STC 422 (SC); AIR 1994 SC 2393.
-
2013 (4) TMI 685
... ...
... ... ..... the fact that no tax has been levied during the assessment proceedings. The learned counsel for respondents has submitted that no such prayer was made by the petitioner before the concerned authorities. Considering the fact that in the writ petition which is duly supported by the affidavit of the petitioner, a specific averment has been made that 25 per cent advance tax was deposited by the petitioner which has not been refunded, we remand the matter to the appellate authority, Deputy Commissioner, Commercial Tax, Indore Division I, for the limited purpose that if the petitioner has deposited 25 per cent advance tax and if he is entitled for refund of the said advance tax deposited in accordance with law, then the appellate authority will consider the plea of the petitioner and pass an appropriate order in this regard. Let the needful be done within a period of six months from the date of receipt of certified copy of this order. The writ petition is accordingly disposed of.
-
2013 (4) TMI 684
... ...
... ... ..... e 30, 2009. The said certificate has already been considered by the Appellate Board. It is also worth noting that the first appeal remained pending before the appellate authority for about an year but the appellant had failed to produce any material in support of his case. Even during the pendency of the appeal before the Appellate Board no cogent material was produced by the appellant, therefore, the submission of the appellant at this stage that he was not given proper opportunity of hearing, cannot be accepted. The record also indicates that the orders passed by the assessing authority, the first appellate authority as well as the Appellate Board are well reasoned orders. In these circumstances we are of the opinion that no question of law arises for consideration of this court. The appeals are accordingly dismissed. Signed order be kept in the file of VAT Appeal No. 6 of 2012 and a copy whereof be kept in the file of VAT Appeal No. 7 of 2012 and VAT Appeal No. 8 of 2012.
-
2013 (4) TMI 683
... ...
... ... ..... filed or due to be filed by the end of the financial year but after permission of Commissioner in writing. Therefore, the respondents have a right to complete the assessment even at this stage subject to fulfilment of the condition mentioned in the statute. We have heard learned counsel for the parties and find that as on today there is no permission of the Commissioner in writing to frame the assessment within six years from the end of financial year in which the return was required to be filed. Therefore, in the absence of such permission, the VAT return for the year 2007-08 filed by the petitioner cannot be subjectmatter of further assessment. Consequently, we allow the present writ petition and quash the notice dated April 29, 2011 (P5) and notice dated September 5, 2012 (P8) to the extent it relate to assessment year 2007-08 subject to an order, if any, by the Commissioner to frame the assessment within extended period of limitation in terms of section 29(4) of the Act.
-
2013 (4) TMI 682
IPOL cylinder oil - Whether liable to tax under sub-section (1) of section 3 of the Act? - Levy of tax, penalty and interest - Held that:- The revisional authority has proceeded on the ground that the assessee has purchased the lubricating oil and thereafter is upgrading it. That is the factual error on the part of the revisional authority. What is purchased is "IPOL cylinder oil" and not the lubricating oil. After purchasing the "IPOL cylinder oil" certain processes are conducted to convert it into a grease which is used for industrial purposes.
Under these circumstances, when the "IPOL cylinder oil" is not one of the petroleum products included in entry 67 for the purpose of levying tax under section 3(1) of the Act, the same does not find place in the notification issued under the said provisions. The order passed by the first appellate authority setting aside the order passed by the assessing authority was legal and valid. The revisional authority committed a serious error in interfering with such an order without reading the invoice properly. Thus, the impugned order is liable to be set aside. Appeal allowed.
-
2013 (4) TMI 681
Rejection of set of four F forms filed - Held that:- Bare perusal of F forms and its annexures shows that the authorities of Maharashtra had committed a bona fide mistake that had not added the total amount, which is mentioned in few pages in all these four forms. Once it is brought to the notice being convinced about the mistakes they have committed, which is rectified by making necessary corrections, the authority which was under obligation to communicate of its counterpart to verify the corrections, has neither written a letter nor applied its mind to the F forms and blindly rejected the said forms as invalid.
The impugned order dated January 17, 2013, is clear that the authorities are over-emphasized to collect the tax as possible before the end of financial year and have passed these orders and ex facie orders are illegal. In fact, now the assessee has also obtained a certificate from the Maharashtra sales tax authority stating that the corrections in the values of F forms, are done by the authorities of sale tax and they are genuine. Appeal allowed.
............
|
