TMI Tax Updates - e-Newsletter
October 17, 2016
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Central Excise
Indian Laws
TMI SMS
Highlights / Catch Notes
Income Tax
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MAT applicability - if either the loss brought forward or unabsorbed depreciation is nil, then the assessee is not allowable any deduction under this clause for computing the book profit u/s 115JB - AT
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DIT has no jurisdiction to cancel registration of a charitable institution on the ground that it is carrying on commercial activities which are in breach of the amended definition of “charitable purpose” in section 2(15) - AT
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Undisclosed income - amount of cash ‘on-money’ with respect to all the unsold stocks - the cash ‘on-money’ was in-fact being received by the assessee in the previous year relevant to the impugned assessment year, hence, we uphold/sustain the additions - AT
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Addition of principal amount of loan waived by the lender on account of one time settlement of loan - AO was not correct in taxing the aforesaid waiver of loan by treating the same as revenue receipt - AT
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Computation of Long term capital gains - the objections raised by the Department in disallowing the entire payment made to encroachers for vacating the land are not justified. - AT
Customs
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Provisional release of goods - Aluminium Dross - Aluminium Ingots - o CVD is prima facie leviable when no Excise Duty is leviable on Aluminium Dross. - AT
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Valuation - The rejection of transaction value only on the basis of the prices circulated by the Directorate of Valuation/NIDB data, is not correct - AT
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Valuation - enhancement of the declared value - The value of imported goods cannot be enhanced on the basis of DRI alert and the basis of assessed bill of entry - AT
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It has not been the intention of the Foreign Trade Policy 2009-2014, for the reimbursement of the Central Sales Tax paid on the goods supplied from one Export Oriented Unit to another Export Oriented unit. - HC
Indian Laws
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Dishonoring of cheques - once the cheque has been issued and the signatures thereon has been admitted by the accused, then it is not available to the accused to take the defence that the cheque was not issued by him. - HC
Central Excise
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Classification of the side trimmings of laminated, impregnated and coated fabrics - these products cannot be classified as laminated textile fabrics. - AT
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Benefit of SSI Notification denied - denial of claim for period of 26 days i.e., during 1.4.2002 to 26.4.2002 - the policy of the Government of exempting the subject item from duty has been consistent, which becomes clear from the wordings of the clarificatory Notification No.26/2002-CX - AT
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Valuation - whether in the case where the footwear supplied to industries would be valued under Section 4 or Section 4A of Central Excise Act, 1944 when the package of footwear bearing of MRP? - Even if footwear are supplied in bulk, valuation is to be done on MRP basis u/s 4A - AT
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CENVAT credit - supplier was not required to pay duty on such products - Credit cannot be denied at the receivers end, when the supplier has paid duty and issued valid invoices. - AT
Circulars / Instructions / Orders
News
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Change in tariff value of Crude Palm Oil, RBD Palm Oil, others – Palm Oil, Crude Palmolein, RBD Palmolein, others – Palmolein, Crude Soyabean Oil, Brass Scrap (All Grades), Poppy Seeds, Areca Nuts, Gold and Silver Notified
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BRICS Finance Ministers and Central Bank Governors’ Meeting in Goa discusses strategies on enhancing global growth, key issues of co-operation under the G-20 agenda, international financial architecture and regulatory reforms and the way forward on new areas of co-operation
Case Laws:
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Income Tax
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2016 (10) TMI 540
MAT applicability - book profit - computation of tax liability under section MAT - deduction for unabsorbed depreciation of earlier years while computing the book profit for the Assessment Year 2008-09 disallowed - Held that:- We find that the Assessing Officer in the assessment order has observed that profit as per profit & loss account was ₹ 1,59,28,201/-. According to the Assessing Officer as per his letter dated 28/07/2016, as per provision of clause (iii) of Explanation-1 to section 115JB, no business loss or unabsorbed depreciation is to be reduced from net profit to arrive at book profit for Assessment Years other than 2003-04, which already been adjusted at ₹ 71,12,338/-. Therefore, he reduced ₹71,12,338/- from ₹ 1,5928,201/- and arrived at book profit of ₹88,15,863/-. Thereafter, the Assessing Officer stated that from Assessment Year 2004-05 to 2008-09, Explanation (b) to clause (iii) comes into picture and according to which the loss shall not include depreciation and that the provisions of this clause shall not apply if either the amount of loss brought forward or unabsorbed depreciation is NIL. Therefore, he did not allow any deduction for unabsorbed depreciation of earlier years while computing the book profit for the Assessment Year 2008-09. From the reading of the explanations before amendment and after amendment goes to show that if either the loss brought forward or unabsorbed depreciation is nil, then the assessee is not allowable any deduction under this clause for computing the book profit under section 115JB. Hence, we find no infirmity in the orders of the lower authorities. Accordingly the order of the Commissioner of Income Tax (Appeals) is confirmed and the ground of appeal of the assessee is dismissed.
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2016 (10) TMI 539
Validity of order of the Commissioner of Income Tax (Appeals) passed after fourteen months of hearing - TPA - Held that:- The ld. Commissioner of Income Tax (Appeals) has passed order overlooking voluminous information filed in the appellate proceedings against the order passed by the ld. Assessing Officer. The Commissioner of Income Tax (Appeals) has to consider every point of dispute of assessee and pass a speaking order. But, the order passed by the Commissioner of Income Tax (Appeals) is cryptic and was not properly adjudicated. Therefore, we are not in a position to uphold the order of the Commissioner of Income Tax (Appeals) being inconsistent with Transfer Pricing Provisions. We rely on the decision of Supreme Court in the case of Sahara India vs. CIT & Anr. (2008 (4) TMI 4 - Supreme Court ) were held that "an administrative order has to be consistent with the rules of natural justice" and similar view was considered by the Delhi Bench of the Tribunal in the case of GAP International Sourcing India (P) Ltd. vs. DCIT (2010 (12) TMI 94 - ITAT, NEWDELHI ) and M/s. Adobe Systems India Private Ltd. v. Addl. CIT [2011 (1) TMI 933 - ITAT NEW DELHI ], the order passed by the Commissioner of Income Tax (Appeals) is without going into the details of the submissions and should be decided afresh. Considering apparent facts, material evidence and judicial decisions, we are inclined to the remit the disputed issues back to the file of Commissioner of Income Tax (Appeals) to pass a speaking order on merits and assessee shall be provided with adequate opportunity of being heard before passing the order. Since we remitted the disputed issue to the file of Commissioner of Income Tax (Appeals), we are not adjudicating ground nos. 3 to 11 of grounds of appeal filed by the assessee and the appeal of the assessee is allowed for statistical purpose.
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2016 (10) TMI 538
Restricting addition of commission earned by assessee @1% by Tribunal as against 5% determined by CIT(A) - assessee was facilitating cash deposits and issuing DD/pay orders etc. - Held that:- CIT(Appeals) came to the conclusion that cash did not belong to the assessee but he was merely a commission agent. Since this issue became final, the sole question before the Tribunal was what would be the appropriate rate of commission to be taxed in the hands of the assessee. It is true that the Tribunal has given rather brief reasons for reducing the rate of commission from 5% to 1%. However, in facts of the case, we would not remand the proceedings for insisting on proper reasons to be recorded by the Tribunal. When the question of judging possible commission that the assessee would have earned out of such activity, element of estimation always creeps in. No question of law therefore, arises.
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2016 (10) TMI 537
Registration u/s section 12AA denied - non charitable activities - CIT (E) has invoked the proviso to section 2(15) of the I.T. Act only on the ground that the assessee is collecting sums under the heads of corporate fees, in-stadia advertisement, sale of corporate boxes etc - Held that:- To be eligible for exemption u/s 11 of the Act, the assessee has to be carrying on charitable activities and has to prove that it has applied its income for charitable purposes and there is no limitation that the assessee shall not make any profit out of its activities. U/s 11, the thrust is on application of income. The definition of charitable activity has not undergone a change except for raising the limit of turnover by which the income from commercial activities would become taxable. In the case of Tamil Nadu Cricket Association [2013 (12) TMI 833 - MADRAS HIGH COURT] has considered the CBDT circular 1 of 2011 and also the Hon'ble Supreme Court’s decision in the case of CIT vs. Andhra Chamber Of Commerce, reported in (1964 (10) TMI 19 - SUPREME Court ) to hold that if the primary or dominant purpose of the Trust or Institution is charitable, another object which by itself may not be charitable, but which is merely ancillary or incidental to the primary or dominant purpose would not prevent the Trust or Institution from being a valid charity. DIT has no jurisdiction to cancel registration of a charitable institution on the ground that it is carrying on commercial activities which are in breach of the amended definition of “charitable purpose” in section 2(15) and that registration can be cancelled only if the activities of the trust are not genuine or are not being carried out in accordance with its objects and further that this is clarified by Circular No.21 of 2016. Thus, it can be seen that the registration withdrawn u/s 12AA(3) of the Act is not sustainable in the case of the assessee before us. Thus, it can be seen that the alleged commercial activities carried on by the assessee were also carried on by the Tamil Nadu Cricket Association and the above judgment is clearly applicable to the facts of the case before us. Therefore, on this ground, registration could not have been invoked u/s 12AA(3) of the Act. As regards the other grounds i.e. holding of a cricket match for women in violation of the object No.(xxviii), we find that the main object of the assessee is to promote the game of cricket and particularly for men only as there is a separate cricketing body for women. The reason given by the assessee for holding women’s cricket match is that it was held at the instance of the BCCI particularly since the women cricket association was not functioning. We find that this activity cannot be said to be exactly in contravention of the objects of the assessee society. Even if it is to be considered to be in violation of the object, it is a solitary deviation and the AO might consider disallowing the income derived by the assessee from conducting of such a match while computing the exempt income u/s 11 of the I.T. Act. Further, as regards the expenditure which is not supported by bills and vouchers also, we are of the opinion that it can only lead to disallowance and not for withdrawal of registration u/s 12AA(3) of the Act. In view of the above, we set aside the order of the DIT (E) and assessee’s appeal is accordingly allowed. Since we have already set aside withdrawal of the registration u/s 12AA(3) of the Act, we see no reason to adjudicate the other ground of appeal i.e. the date from which the registration shall be withdrawn or cancelled. - Decided in favour of assessee.
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2016 (10) TMI 536
Penalty under section 271(1)(c) - Non deduction of tds u/s 195 - Held that:- The explanation furnished by the assessee in support of its claim of non-deduction of tax at source, though, has not been found correct, however, same was not malafide. According to the assessee, the payment of ₹ 4,43,363/- paid to an entity M/s. Coperion Werner & Pfleiderer was covered under Article-7 of the DTAA with Germany whereas the Tribunal has held that the Article-7 was not applicable in the case of the assessee. Similarly, in respect of payment of ₹ 4,44,690/- to Dr. UK Thiele, the assessee claimed that the payment was towards independent scientific activity which fall under Article 14 of DTAA with Germany, whereas the Tribunal held that the assessee failed to demonstrate that the services rendered by Dr UK Thiele are independent scientific services. The Assessing Officer has nowhere stated that the assessee has furnished false and fabricated bills or claimed expenditure which was not related to the business of the assessee. The Hon’ble Supreme Court in the case of CIT Vs. Reliance Petroproducts Private Limited [2010 (3) TMI 80 - SUPREME COURT] has observed that making an incorrect claim in law cannot tantamount to furnishing of inaccurate particulars. The assessee has given an explanation which is found to be bonafide, thus, in our opinion the Explanation -1 to the section 271(1)(c) of the Act is not attracted in the case of the assessee and, therefore, no penalty is leviable. Disallowance of long-term capital gain - Authorized Representative submitted that the long-term capital gain (LTCG) was claimed as exempt by the assessee at the time of filing the return, inasmuch as, the assessee was of bonafide view that STT would be paid in the due course once the BSE would get the issue clarified from the CBDT - Held that:- Since the assessee failed to get the same clarified until the last date of revision of return of income i.e. 31/03/2008, the assessee during the course of assessment proceeding, without any show cause notice issued by the Assessing Officer, offered the long-term capital gain (LTCG) for taxation which was accepted by the Assessing Officer and he adjusted long-term capital loss (LTCL) from the long-term capital gain (LTCG) so offered. This explanation offered by the assessee has not been found false by the Assessing Officer. Further, the assessee substantiated the explanation with necessary evidence and explanation filed is bonafide and all the facts relating to the explanation and material to the computation of income on the issue have been disclosed by the assessee. In view of these facts, the Explanation-1 to the section 271(1)(c) of the Act is not attracted in the case of the assessee. We may like to repeat the findings of the Hon’ble Supreme Court in the case of Reliance Petroproducts Pvt. Ltd. (supra) that making an incorrect claim in law cannot tantamount to furnish of inaccurate particulars. Thus, in our opinion, in such circumstances no penalty under section 271(1)(c) of the Act is leviable on the issue in dispute. Revenue appeal dismissed.
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2016 (10) TMI 535
Set off of business loss / depreciation of the other units for computing deduction under Section 10A - Held that:- Eligibility of exemption under Section 10A of the Act has to be considered independently and the losses of other units cannot be set off. In fact, the order of this Tribunal in Amnet Systems was brought to the notice of the Assessing Officer. The Assessing Officer found that the Department had preferred appeal before the High Court, therefore, to keep the matter alive, he rejected the claim of the assessee. This Tribunal is of the considered opinion that when the matter is pending before the High Court, that cannot be a ground for not following the order of this Tribunal. Thus delete the addition. Claim of the assessee under Section 10A - Held that:- Section 10A of the Act provides for deduction for ten assessment years out of 15 assessment years. An option was given to the assessee to select the assessment year in which the deduction is to be allowed. When the assessee has not claimed any deduction for earlier assessment years and selected the assessment year 2006-07, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly allowed the claim of the assessee. For the assessment year 2005-06, XIUS India Ltd. suffered a loss. The loss suffered in the assessment year 2005-06 was carried over to set off against the income of the assessment year 2006-07. When the assessee selected the initial assessment year 2006-07, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly allowed the claim of the assessee. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. MAT applicability on bad debt - Held that:- It is not in dispute that what was claimed as bad debt is the amount receivable by the assessee and not payable by the assessee. Therefore, Explanation 1 to Section 115JB of the Act may not be applicable. The debt payable by the assessee was reflected in the asset side in the balance sheet which is not in dispute before the authorities below. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. Transfer pricing adjustment on corporate guarantee - Held that:- Corporate guarantee given by the assessee does not have bearing on profits, income or assets of the assessee. Therefore, there is no any arm's length price adjustment.
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2016 (10) TMI 534
Disallowance of Club Membership Fees - Held that:- . On going through the order of the Ld. CIT(A), it is very clear that the expenses/club membership fee paid by the assessee cannot be allowed as business expenditure as it was not incurred wholly and exclusively for the purpose of business. The assessee could not prove with evidences that the amounts paid for club membership fee was incurred for the purpose of the business. None of the findings of the Ld. CIT(A) have been rebutted with evidences and therefore there is no valid reason to interfere with the findings/decision of the Ld. CIT(A) in upholding the disallowance made by the Assessing Officer. - Decided against assessee
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2016 (10) TMI 533
Eligibility to exemption u/s 54EC(1) - Held that:- Respectfully following the decision of the Hon’ble Madras High Court in the case of CIT v. C. Jaichandar (2014 (11) TMI 54 - MADRAS HIGH COURT ) we hold that the language of the provisions of section 54EC(1) of the Act clearly and unambiguously mandate that the assessee can make the investments in two different financial years, provided the investment in a financial year does not exceed ₹ 50.00 lakhs. In the factual and legal matrix of the case on hand, we, therefore, reverse the findings of authorities below and direct the Assessing Officer to allow the assessee exemption of ₹ 1.00 crore under section 54EC(1) of the Act in respect of the investment of ₹ 50.00 lakhs each made by it in specified bonds on 30/9/2008 and 9/4/2009 i.e. in two separate financial years, pursuant to compensation received from CIDCO in respect of certain properties on 28/4/2008 and 14/10/2008.
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2016 (10) TMI 532
Addition on property income - estimation of ALV - Held that:- CIT(A) has passed a detailed order thereby mentioned that the assessee had relied only on the Municipal taxes paid as basis for estimation of rental value and since the payment of Municipal taxes is not a measure to estimate the ALV of the property therefore the CIT(A) has held that it is not on record as to what had been submitted by the assessee to the Municipal authorities for property tax valuation. Since the assessee had not supplied any documentary proof therefore the CIT(A) in the absence of such factual information has held that the ALV estimated by assessing officer cannot be disturbed. No new circumstance has been brought on record before us by the learned DR in order to controvert or rebut the findings recorded by the learned CIT (A) on the basis of the remand report. Moreover, there is no reason for us to deviate from the findings recorded by the learned CIT (A). Therefore, we are of the considered view that the findings recoded by the learned CIT (A) are judicious and are well reasoned. Accordingly, we uphold the same. Resultantly, this ground raised by the assessee stands dismissed. Estimation of income from the guest house - Held that:- CIT(A) has passed a detailed order thereby observed that the assessing officer has resorted to the estimation of income from the guest house as the assessee could not provide any evidence such as account books, registers etc or photograph of the guest house. The CIT(A) has rightly held that in the absence of this the AO should have carried out certain local enquiries before arriving at the amount of addition. Therefore after discussing the entire case, the CIT(A) has rightly come to the conclusion by taking occupancy rate at 50% per annum and charges per day per person per room by taking @ ₹ 150 per day and has worked out the amount in question which comes to ₹ 1,57,500 (150 x 6x 175) as detailed above. No new circumstance has been brought on record before us by the learned DR in order to controvert or rebut the findings recorded by the learned CIT (A) on the basis of the remand report. Moreover, there is no reason for us to deviate from the findings recorded by the learned CIT (A). Therefore, we are of the considered view that the findings recorded by the learned CIT (A) are judicious and are well reasoned. Addition us/ 14A - Held that:- CIT(A) has passed the detailed order after taking into consideration the arguments raised by the both the parties. Ld. CIT(A) after detail discussion has rightly observed from the computation of total income that the AO has wrongly disallowed the interest claimed by the assessee and also the disallowance made u/s 14A. Therefore ld. CIT(A) made correct claim of the assessee and directed the same to be added to total income of the assessee. No reason to deviate or interfere into the findings recorded by the CIT(A)
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2016 (10) TMI 531
Undisclosed income - amount of cash ‘on-money’ with respect to all the unsold stocks - Held that:- There will always be some estimation and guess work while computing the undisclosed income of the assessee as the same had been kept hidden by the assessee from the Revenue which is within the special knowledge of the assesssee and may not be brought out completely before the authorities , thus, exact precision can never be reached in estimating undisclosed income, the safe guard should be to ensure that guess work in estimating undisclosed income should not be arbitrary. In our considered view, the ld. CIT(A) has taken a correct stand confirming and sustaining the assessment order passed by the AO vide his appellate orders dated 08-11-2011, as also we agree with the stand taken by the learned CIT(A) in his appellate order dated 08-11-2011 whereby he directed the AO that amount of cash ‘on-money’ with respect to all the unsold stocks as at 31-03-2007 held by the assessee which the AO added in the undisclosed income of the assessee have to be eliminated from the chargeability to tax and the rest amount is to be brought to tax as undisclosed income of the assessee. We find no infirmity in the orders of the ld. CIT(A) whereby ld CIT(A) has upheld the assessment orders of the AO by confirming that the cash ‘on-money’ was in-fact being received by the assessee in the previous year relevant to the impugned assessment year, hence, we uphold/sustain the appellate order dated 08-11-2011 passed by the ld. CIT(A) by dismissing the appeal of the assessee Unrecorded sales - Held that:- As with respect to the sales recorded during the instant assessment year excluding sales which were of the unsold inventory of the last year which we have directed to include ‘on money’ based on page 18 and back of page 18/annexure A-3, the additions shall be made on same proportion as were made in the assessment year 2007-08 in the ratio of sale to undisclosed income brought to tax as the conduct of the assessee is continuing as brought on record since 2005 meeting till the recording of statement on 14-03-2008 as set out above whereby conduct of the assessee based on preponderance of human probabilities points to the receipt of ‘on money’ regularly by the assessee during the instant assessment year backed with booming real estate sector which itself is admitted by the assessee and quantification need to be done based on the empirical data of the immediately preceding year as the real estate boom continued during this instant assessment year . Keeping in view that the assessee has surrendered ₹ 1.25 crores during the search proceedings vide statement dated 14-03-2008, whichever figure as arrived at as per our above directions or surrendered amount of ₹ 1.25 crores whichever is higher of the two needs to be added as un-disclosed income as in our considered view the estimate of the undisclosed income has to be made which definitely need some guess work which of course should not be arbitrary while on the other hand the details of surrender amount of ₹ 1.25 crores is within the special knowledge of the assessee which details are not brought out by the assessee. The Revenue has made addition @ 20% on extrapolation which is also not sustainable in the instant case by reading in isolation in divorce to the total surrender of ₹ 1.25 crores as the addition has been made on the basis of the statement of partner dated 14-03-2008 which categorically stated that the surrender was to the extent of ₹ 1.25 crores and secondly revenue has not made any enquiry to bring on record cogent tangible incriminating material to prove that the assessee received 20% cash on all sales while empirical data of preceding year which led to the framing of the assessment order of the preceding year as confirmed by the learned CIT(A) which order of the learned CIT(A) we confirmed does not suggest that addition to the tune of 20% on the sales value were made by the Revenue as sustained by learned CIT(A) in immediately preceding assessment year 2007-08. Hence addition are to be sustained in the manner laid down by us in our above decision. We have considered the case laws relied upon by both the parties while arriving at the conclusions as set out above. We order accordingly.
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2016 (10) TMI 530
Addition of principal amount of loan waived by the lender on account of one time settlement of loan - Held that:- CIT (A) has considered the depth of the stand taken by the assessee and the facts of the case and has rightly come to the conclusion that the said loan was taken for the purpose of long term investments and the learned CIT (A) has also taken note of the decisions of the Hon’ble jurisdictional High Court rendered in the case of (i) Solid Containers Ltd. Vs. DCIT [2008 (8) TMI 156 - BOMBAY HIGH COURT ] and (ii) Mahindra & Mahindra Ltd. Vs. CIT [2003 (1) TMI 71 - BOMBAY High Court ] and the learned CIT (A) after considering the submissions recorded from Para 4.1 to 4.12 of his order has rightly come to the conclusion that the AO was not correct in taxing the aforesaid waiver of loan by treating the same as revenue receipt. No new material has been brought on record by the revenue to rebut/controvert the findings of the learned CIT (A). Disallowance of interest - Held that:- In the absence of any valid explanation/evidence supporting the assessee’s claim, the learned CIT (A) has rightly confirmed the action of the AO The learned CIT (A) while reaching to this conclusion has also appreciated the detailed submission of the assessee wherein it has been specifically recorded that the loan amount has been advanced to the assessee’s sister concerns can be treated as investment made with deposit with the sister concerns. Since, it is not the business activity of the assessee Company as can be seen from the records that this can be invested in the market. It has also been noted by the learned CIT (A) that the assessee was not in a position to adduce any evidence to prove that the business prospect of the assessee are inseparably linked with its sister concerns. Therefore, while rightly appreciating the order of the AO, the learned CIT (A) has confirmed the action of the AO in disallowing the interest expenses because the assessee has advanced interest-free loans to its subsidiaries without showing that there was any business exigency for the same. In view of this, we find no reason to interfere with the findings of the learned CIT (A).
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2016 (10) TMI 529
Capital gains brought to tax on sale of certain lands claimed to be agricultural lands - Held that:- The contention of AO that he has received full amount cannot be accepted. Even the sale deed indicate separate payments. Therefore, considering the entire amount may not be correct. However, these aspects can again be examined since the nature of ownership itself requires examination. In case assessee has not purchased lands but acquired certain rights by way of AGPA, then whether the transaction result in ‘adventure in nature of trade’ also require further examinations. The issue whether the gain if any is to be assessed as Short Term Capital Gains or Business can be considered on examination of facts. In order to examine the above aspects, we hereby set aside the orders of AO and CIT(A) and restore the entire issue to the file of AO, who should examine all aspects and re-do the assessment based on facts and law. Needless to state that assessee should be given due opportunity in the proceedings.
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2016 (10) TMI 528
Sale of land - nature of land - agricultural land - jurisdiction of municipality - Held that:- From the record we found that the land so sold by assessee was not within the jurisdiction of any of the municipality and further the agricultural lands sold are not situated within 8 Km from any of the municipality i.e. Vasai Municipal Council, Navgarh Manikpur Municipal Council, Nalasopara Municipal Council and virar Municipal council. 53 villages were only proposed for notification and the out of these 53 villages only 24 of them came to be notified on from 31st May 2011. Hence the agricultural land situated in village Juchandr remained as a rural area and became an Urban Land only on from 31st May 2011. Vasai Virar Mahanagar Council (VVMC) had finally came into existence vide Final notice dated 31st May 2011 i.e. A.Y. 2012-13. This is further fortified by the fact that the VVMC started collecting taxes in its name only on from the financial year 2011-12 i.e. A.Y. 2012-13. Further as per the revenue records the Juchandra Village is shown as a separate entity till 31.05.2011.It is therefore clear that the impugned agricultural land was not situate within jurisdiction of VVMC during the impugned assessment year. We also find that VVMC was also not a notified municipality during the impugned assessment year, as per last available notification no. 8010(E) dated 6th 1994 as amended by notification no. SO 1302 dated 28th Dec 1999. In fact the Vasai Virar Municipal Corporation is still not notified under Income Tax Act, even as on date since it is not in the list of Municipalities as per last available notification no. 8010(E) dated 6th 1994 as amended by notification no. S.O. 1302 dated 28th Dec 1999, under Income Tax Act. There is no dispute to the fact that at the time of Sale the subject agricultural land is situated in the village Juchandra of Taluka Vasai, the population of which was 5,912 as per the census, so is less than 10,000. We had also gone through the 1st , 2nd , 3rd draft notification dt. 14/09/2006, 03/07/2009 and 05/04/2010 respectively proposing that the Municipal Council of Vasai Virar Mahanagar Palika be constituted. However vide final notification dt. 31/05/2011 the City of Vasai Virar Mahanagar Palika came to be constituted. Since the sale deed pertaining to the subject Agricultural land were executed by assessee between 19/04/2010 to 04/01/2011, the same cannot be said to be non agricultural land during the relevant period. We also found that Vasai-Virar Municipal corporation has started collecting LBT (local body tax) with effect from 1st April, 2011. Even as per the ready reckoner rate for valuation purpose of registration of lands situate in Juchandra village for the years 2008-09, 2010-11 2011-12, we found that the ready reckoners demonstrate that Juchandra was a village having a separate and independent status on and from 2011-12 and is shown as Vasai Virar Mahanagar Palika. The Agricultural land sold were on AS is where IS basis and were forming part of Junchandra village at the time of sale and was not part of Vasai Virar mahanagar Palika as sought to be made out by the AO. In view of the above we do not find any justification in the order of lower authorities for not treating the land sold as Agricultural land thus the AO and CIT(A) was not justified in considering Agricultural land as capital asset under section 2(14) of the Act.
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2016 (10) TMI 527
Benefit of section 11 & 12 - whether CIT(A) has erred in allowing benefit of section 11 & 12 when no registration was granted under section 12AA and failed to appreciate the fact that filing of application does not amount to deemed granting of registration? - Held that:- The ld. CIT(A) has taken due note of the fact correctly that if such application does not stand rejected or accepted within six months of filing thereof, it shall be considered as accepted. - Decided against revenue
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2016 (10) TMI 526
Stay orders - recovery orders - Held that:- In this case, the assessee has paid substantial amount of ₹ 50 lakhs out of ₹ 1,38,79,161/-, which consisted of ₹ 98,35,011/- and ₹ 40,44,150/- towards tax and interest levied u/s.234A, 234B & 234C of the Act respectively. In view of this, we are inclined to grant conditional stay that the assessee shall pay ₹ 10 lakhs on or before 10.5.2016. Accordingly, recovery of balance amount is stayed for a period not exceeding 180 days from the date of this order or till the disposal of the appeal by the Tribunal, whichever is earlier. Further, we make it clear that the assessee shall not seek any unnecessary adjournment on the date of hearing. If the assessee wants to file any paper book, the same should be filed on or before 10.5.2016. Accordingly, the Stay Petition is disposed of with the above observations.
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2016 (10) TMI 525
Penalty under section 271(1)(c) - validity of notice - Concealment of income - Held that:- Respectfully following the decision of the Hon’ble Karnataka High Court in the case of Manjunatha Cotton and Ginning Factory (2013 (7) TMI 620 - KARNATAKA HIGH COURT), we hold that the notice issued u/s. 274 r.w.s. 271(1)(c) of the Act dated 8/3/2013 for assessment year 2010-11 for initiating penalty proceedings under section 271(1)(c) of the Act in the case on hand is invalid and consequently, the penalty proceedings and levy of penalty thereunder are also invalid. In this view of the matter, the additional ground raised by the assessee is allowed.
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2016 (10) TMI 524
Computation of Long term capital gains (LTCG) - Disallowance of payment made to hutment dwellers for vacating the land - Held that:- These unauthorized occupants do not have permanent place of stay and they move from one place to another till the time they get place to settle down. Moreover, the dwellers were not personally known to the assessee. In such circumstances it is not prudent to expect from the assessee to produce the illegal occupants of land to whom payments were made. In so far as second objection is concerned the assessee has furnished a copy of title of civil suit filed in the Civil Court, Jalgaon. A perusal of same shows that the suit was filed against 19 defendants, if the assessee has included the name of some more persons in the list of unauthorized occupants to whom the payments have allegedly been made and the same are not verifiable, the Assessing Officer could have made reasonable disallowance rather than rejecting the claim of assessee in toto. The third objection is that there is no formal agreement with the slum dwellers. The Assessing Officer has observed that the receipts produced by the assessee are cyclostyled bearing only name and amount. We are of the considered view that when payments are made to encroachers/illegal occupants for vacating the land no formal agreement is required to be executed. The prime object of the owner of land is to seek the possession of land and ensure that land is free from encumbrances and encroachments. The assessee has produced receipts signed by some of the persons to whom payments have been made. The objection of the Department that receipts are on cyclostyled paper and lacks information is unwarranted. When the possession of land is retrieved from unauthorized occupants especially when they are hutment dwellers against some payment the details such as area occupied by each one of them is not relevant. Thus, the objections raised by the Department in disallowing the entire payment made to encroachers for vacating the land are not justified. The assessee had jointly purchased the land with Shri Narayan S. Khadake, though the assessee had major share in the land. As per assessee own admission, the assessee has paid ₹ 7.80 lakhs out of ₹ 10.00 lakhs paid to encroachers. The remaining sum of ₹ 2.20 lakhs was contributed by Shri Narayan S. Khadake. Taking into consideration the entirety of facts we are of considered opinion that no disallowance on account of payment of compensation is called for. Accordingly, ground assessee is allowed. Treating the profit from sale of land - Long Term Capital Gain or business income - Held that:- The documents on record show that the assessee has not indulged in sale-purchase of land/property. The assessee has purchased some properties over period of time starting from 1985 onwards. Except from the land in question the Revenue has not been able to show that the assessee has sold any other property or was dealing in land/property. The ld. DR has not been able to controvert the findings of the first appellate authority. In our opinion the findings of Commissioner of Income Tax (Appeals) are well reasoned and justified. We concur with the same. No other issue has been raised by the Department in appeal. Accordingly, the appeal of the Revenue is dismissed.
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2016 (10) TMI 523
Deduction u/s.80IA eligibility - Concept of mutuality – taxability of excess of income over expenditure - Held that:- The activities of the assessee are identical to the activities undertaken by Common Effluent Treatment Plant (Thane-Belapur Association [2010 (6) TMI 52 - BOMBAY HIGH COURT ] wherein held that the income of the assessee is contributed by its members. The assessee has been formed specifically with the object of providing a common effluent facility to its members. The income is not generated out of dealings with any third party. The entire contribution originates in its members and is expended only in furtherance of the objects of the association, for the benefit of the members. On these facts, both the Commissioner (Appeals) and the Tribunal were justified in coming to the conclusion that the surplus so generated falls within the purview of the doctrine of mutuality and was not exigible to tax.”. - Decided in favour of the assessee and against the Revenue
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2016 (10) TMI 522
Transfer pricing adjustment - downward adjustments made by the ld. TPO considering comparative statements - Held that:- We on perusing the comparative statement showing computation of royalty, find the Arms Length Price (ALP) at 4.6% as against Royalty on sales @1.14% and there is also a variation of percentage on sales admitted by the assessee. Considering the apparent facts and material, we are of the opinion that the matter has to be relooked as the percentage computed by the ld.TPO is 1.14% in comparison with the Arms Length Price margin being 4.60%. Therefore, we remit the disputed issue for recalculation to the file of ld. TPO to consider Royalty payment on brought out components based on technical specifications. The ground of the assessee is allowed for statistical purpose. Disallowance of expenditure incurred on Corporate Social Responsibility u/s 37(1) - Held that:- The expenditure incurred towards corporate social responsibility by the assessee company is Revenue in nature and the objects for which it is offered is for social cause and amendment to Sec. 37(1) of the Act inserted with Finance Act, 2014 is subsequent to assessment year. Therefore, the same is not applicable and assessee company relied the judicial decision of CIT vs. Madras Refineries Ltd [2008 (9) TMI 309 - SUPREME COURT ]. Considering the apparent facts, we are of the opinion that the expenditure is for a specific cause for the benefit of society was not disputed by the Revenue on genuineness. So, we direct the ld. Assessing Officer to delete the addition and the ground of the assessee is allowed. Addition of subsidiary received from Andhra Pradesh Government - revenue or capital receipt - Held that:- We perused the Industrial Investment Promotion Policy which considered the incentives and subsidy provided to the units according to their investments criteria. Further, the facts that VAT subsidy is as per the order issued by the Government and further due to amendment to Sec. 2(24) (xviii) w.e.f. 01.04.2015 subsidy or a grant defined was made taxable under Income Tax. So, considering the apparent facts, provisions of law, industrial policy regulations direct the ld. Assessing Officer to delete the addition of VAT subsidy as being in the nature of Capital Receipt and it is to be treated accordingly and allow the ground of the assessee. Disallowance of provisions for operation, maintenance and warranty - Held that:- Authorised Representative contention that the difference in the value between the provisions made by the assessee and the Chartered Engineer certificate is disallowed but there is no necessity as tax rate for both assessment years are same. The differential sum alternatively if not allowed it needs to be considered in the year of reversal being next year. Further, this provisions are reversed in the next assessment year. We are of the opinion that the ld. Assessing Officer shall allow the claim on verification that the said provisions are reversed on the first day of next financial year and entries are passed in the Books and therefore, we remit the disputed issue for limited purpose to the file of the ld. Assessing Officer for verification and examination and assessee should be provided adequate opportunity of being heard before deciding the issue on merits. The ground of the assessee is allowed for statistical purpose. Non grant of TDS credit - Held that:- We considering the apparent facts and the TDS credit available with the assessee, direct the ld. Assessing Officer to verify the form 16A and Income Tax website disclosing credit of tax amount in 26AS and obtain confirmation of credit from M/s. Regen Infra (P) Ltd. and the ld. Assessing Officer is directed to allow the tax credit. The ground of the assessee is allowed for statistical purpose. Addition u/s 14A - Held that:- We remit the disputed issue to the file of the ld. Assessing Officer to verify and exclude the investments in subsidiary companies for the purposes of calculation of disallowance under Rule 8D(2) and the assessee should be provided adequate opportunity of being heard before passing the order on merits. The ground of the Department is allowed for statistical purpose.
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2016 (10) TMI 521
Penalty proceedings under section 271(1)(c) - disallowance of deduction claimed u/s 80IB(10) - Held that:- For mere making of claim which is not acceptable to the revenue, the penalty u/s 271(1)( c) cannot be levied. In the present case, the assessee has made claim which the deduction u/s 80IB (10) of the Act for the first time was allowed by the revenue whereas in the second assessment disallowed and rejected the same and therefore, this is not a fit case for levy of penalty. - Decided in favour of assessee
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Customs
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2016 (10) TMI 520
Reimbursement of the Central Sales Tax paid on goods supplied from one Export Oriented Unit to another Export Oriented Unit - intention of the Foreign Trade Policy - Held that:- A clarification has been issued by the Under Secretary, Ministry of Commerce and Industry, Department of Commerce, EOU Section, dated 11.4.2014, by way of an Office Memorandum. In the said office memorandum, it has been stated that paragraph 6.11 and paragraph 9.21 of the Foreign Trade Policy, read with Appendix 14-I-I, does not provide for the reimbursement of the Central Sales Tax paid on goods supplied from one Export Oriented Unit to another Export Oriented Unit. It has also been suggested that the Directorate General of Foreign Trade may consider a suitable amendment, in the Foreign Trade Policy, as deemed fit, in order to include a clause, providing for the reimbursement of the Central Sales Tax, for the goods supplied from one Export Oriented Unit to another Export Oriented Unit. The above facts make it clear that it has not been the intention of the Foreign Trade Policy 2009-2014, for the reimbursement of the Central Sales Tax paid on the goods supplied from one Export Oriented Unit to another Export Oriented unit. In such circumstances, this Court is of the considered view that the reliefs prayed for by the petitioner, in the above writ petitions, cannot be granted. Hence, both writ petitions stand dismissed. No costs. However, it goes without saying that it may be open to the petitioner to challenge the Office Memorandum, issued by the Ministry of Commerce and Industry, Department of Commerce, EOU Section, dated 11.4.2014, and the communication, dated 15.06.2015, issued by the Assistant Development Commissioner, Government of India, Ministry of Commerce and Industry, if so advised, in the manner known to law. Unless the said communications, clarifying the position relating to the Foreign Trade Policy 2009-14 and the Foreign Trade Policy 2015-20, are challenged and set aside, such clarifications would hold the field, with regard to the claims made by the petitioner, for the reimbursement of the Central Sales Tax, paid in respect of the goods supplied from one Export Oriented Unit to another Export Oriented Unit, relating to the financial years 2013-14 and 2014-15.
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2016 (10) TMI 519
Provisional release of goods - Aluminium Dross - Aluminium Ingots - Aluminium content declared of about 21% - test of samples - samples in the form of grayish porous metallic lumps of irregular shapes and sizes having oxidized surfaces - recovery of aluminium content of about 54% - enhancement in declared value on the basis of aluminium content - Held that: - no CVD is prima facie leviable when no Excise Duty is leviable on Aluminium Dross. Provisional release of goods allowed - modification in the provisional release order - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 518
Valuation - rejection of transaction value - demand of duty with penalty - cloves - import from Singapore and Dubai - country of origin of the goods was shown as Madagascar/ Indonesia/Tanzania - is the rejection of value of cloves on the basis of NIDB data is justified? - Held that: - In the circular, it is not mentioned about the grade of clove. The appellants has produced International Trade Centre bulletin which shows that there is a popular quality known as CG3 and the origin of same is from Madagascar, the Comoros and Zanzibar, and the same is frequently available in the market. The decision in the case of M/s Umrao Singh Pawan Kumar vs CCEI Delhi-IV [2015 (3) TMI 1142 - CESTAT NEW DELHI] relied upon where it is held that the adjudicating authority has mis-guided himself into believing that there was no CG-3 grade cloves. The rejection of transaction value only on the basis of the prices circulated by the Directorate of Valuation/NIDB data, is not correct - demand and penalty withheld - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 517
Valuation - enhancement of the declared value on the basis of assessed bill of entry of the imported goods and on the basis of DRI alert - polyester knitted fabrics - whether the enhancement of the value justified? - Held that: - The Customs Valuation Rules deals with situation as to how to enhance the value of the imported goods. DRI alert cannot be the reason for enhancement of the value without rejecting the transaction value - declared value cannot be enhanced on the basis of DRI alert. Rule 5 of the Valuation Rules provide for enchanement of the value which is to be done as per said rules. Moreover, the declared vague is found less than the assessed value which cannot be the basis to enhance the value. In this case, the department has assessed identical goods at the rate of 2.85 US$ per kg whereas the value declared by the appellant ranges between 2.00 US$ to 2.63 US$ per kg. The price which has been adopted to be assessed is not the declared vague. In fact, the same is the assessed value. Therefore, the said value cannot be said as the value of contemporaneous import. The value of imported goods cannot be enhanced on the basis of DRI alert and the basis of assessed bill of entry - appeal allowed - decided in favor of appellant.
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Corporate Laws
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2016 (10) TMI 516
Scheme of arrangement of demerger - Held that:- Considering all the facts and circumstances and taking into account all the contentions raised by the affidavits and reply affidavits, and the submissions during the course of hearing, as satisfied that the observations made by the Regional Director, Ministry of Corporate Affairs, have been redressed satisfactorily. The prayer for amendment made in Company Application as also the amendments sought by the petitioner companies are hereby granted. As come to the conclusion that the present scheme of arrangement in its Modified Form, is in the interest of the shareholders and creditors of all the companies as well as in the public interest and the same deserves to be sanctioned. The modification sought for amending the scheme with regard to clause 1.3 referring to the Appointed Date as 1st July 2016 and Clause 34.1 are specifically granted and the Modified Scheme, as placed on record with the amendment application is hereby sanctioned. Prayers in terms of paragraph 18(a), (b) and (c) of the Company Petition are hereby granted. The restructure of Capital of Aura in form of the utilization of securities Premium as well as Reduction of Issued, Subscribed and Paid Up Equity Share Capital is specifically sanctioned. The minute under Sec. 103 is hereby approved. Prayers in terms of paragraph 15 (a) of the Company Petition paragraph 16(a) in case of Company Petition No. 277 and 278 of 2016 are hereby granted.
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Central Excise
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2016 (10) TMI 514
Classification of the side trimmings of laminated, impregnated and coated fabrics - under heading 59.03 or otherwise - clearance by the appellant as waste describing them as foam patti - damaged or sub-standard textile fabrics. - Held that:- We find that the first appellate authority has relied upon the Deputy Chief Chemist s report to hold that these items are classifiable under chapter 59.03. We find that the Chemical Examiner s report is totally inconclusive and in fact in any way supports the contentions of the appellant inasmuch, the Chemical Examiner has held that the sample is in the form of strips of non-uniform width (ranging from 6 mm to 1 cm). If this is the description of the sample sent to the Chemical Examiner, then it is very clear that these products cannot be classified as laminated textile fabrics. In view of the foregoing, we hold that the demands confirmed by the lower authorities in the case in hand are unsustainable and liable to be set aside and we do so.
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2016 (10) TMI 513
Benefit of SSI Notification denied - denial of claim for period of 26 days i.e., during 1.4.2002 to 26.4.2002 - Held that:- After going through the wordings of the Notification No.8/2002-CX dated 1.3.2002, which was amended by the Notification No.26/2002-CX it is clear that the legislature had no intention to charge duty on the subject item viz., granite slab falling under Chapter Heading No.6807 during the relevant period i.e., during 1st April 2002 to 26th April 2002. There is no liability of payment of duty for the subject item for the period of 26 days as the policy of the Government of exempting the subject item from duty has been consistent, which becomes clear from the wordings of the clarificatory Notification No.26/2002-CX and this Notification No.26/2002 made the position explicit which was earlier implicit. Consequently this appeal deserves to be allowed on merits.
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2016 (10) TMI 512
Valuation - whether in the case where the footwear supplied to industries would be valued under Section 4 or Section 4A of Central Excise Act, 1944 when the package of footwear bearing of MRP? - Held that:- We find that there is no dispute in case that footwear supply in packages to the industries is not eligible for exemption provided under Rule 34 of The Standards of Weights & Measures (Packaged Commodities) Rule, 1977. If this is so, then the supplier is required to affix the MRP statutory on each package of product. When the requirement to affix the MRP on packaged goods is made under Section 4A of Central Excise Act, 1944 the valuation of the said goods shall be covered by Section 4. It is also fact that the footwear supplier affixing the MRP on each package of each footwear, the respondent supplied to their industrial buyer. We are of the opinion that the footwear, even though the supply in bulk but in absence of exemption provided under Rule 34 of The Standards of Weights & Measures (Packaged Commodities) Rule, 1977. The valuation of footwear shall be correctly made under Section 4A and not under Section 4 of the Central Excise Act, 1944.
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2016 (10) TMI 511
Eligibility of refund - unjust enrichment - raising credit notes - Held that:- We are of the opinion that if the present assessee relies on the credit notes raised on the dealer, then, an opportunity should be given to it to establish and prove that in pursuance thereof the duty burden which was passed on to the buyer has not eventually fallen on the said buyer on account of this arrangement. Thus, if the dealer has been found to be recovering the amounts or having given credit to the buyer, then, whether the raising of the credit notes would negate the presumption raised in Section 12B of the Act or not is an issue or matter required to be examined by the Tribunal. The appeal of the assessee is restored to the file of the Tribunal only for examining the issue highlighted above and in accordance with law.
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2016 (10) TMI 510
Denial of CENVAT credit - Photograph Services - Outdoor Catering - Research & Development Services - nexus between the input services and the manufacturing activity - Held that: - there appears integral connection between the input services and the manufacturing activity - CENVAT credit allowed. Condonation of delay of seven days in filing appeal - Held that: - There appears no deliberate intention on the part of the appellant to come to the Tribunal - delay condoned. Appeal allowed - decided in favor of appellant.
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2016 (10) TMI 509
Demand of custom duty along with interest and penalty - 100% EOU - import of Copper Cable Scrap - export of Recycled Mixed Copper Scrap - whether the process undertaken by the appellant can be termed as recycled scrap so as to avoid levy of duty, interest and penalty? - Held that: - CBEC vide Circular No.314/30/97-CX, dated 06.05.1997 in the context of manufacture in Notification No.1/95-CE in respect of galvanisation of black MS pipes by 100% EOUs clarified that a broader view is called for in respect of the interpretation of the provisions of Notification No.1/95-CE and the exemption may not be restricted only to cases where manufacture under section 2(f) of the Central Excise Act is involved. It is clarified that the exemption under Notification No.1/95-CE will also be applicable to a 100% EOU engaged in galvanising of black MS pipes. The definition of manufacture in the policy which has a wide range - the process can be termed as recycled scrap - demand of duty, interest and penalty not justified - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 508
CENVAT credit - outward transportation of finished goods from factory to the premises of the buyer - extended period of limitation - place of removal - conditions to be complied with as set out by the CBEC Circular when the manufacturer claims that the sale has taken place at the destination point in terms of the sale agreement, so as to conclude that CENVAT credit admissible, namely (i) the ownership of goods and the property in goods remained with the seller of the goods till the delivery of goods, (ii) the seller bore the risk of loss or damage to the goods during transit to the destination, (iii) the freight charges were an integral part of the price of goods - Held that: - all the conditions satisfied to claim CENVAT credit - the freight charges is included in the assessable value - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 507
Denial of CENVAT credit - manufacturers of Bulk drugs - input ethanol - product contained alcohol and was not classifiable under Chapter 29 of CETA - wheteher CENVAT credit can be denied on the ground that supplier is not required to pay duty on such products? - Held that: - similar issue decided in the case of Commissioner Versus Neuland Laboratories Ltd. [2015 (10) TMI 669 - ANDHRA PRADESH HIGH COURT]. Credit cannot be denied at the receivers end, when the supplier has paid duty and issued valid invoices. Ethyl alcohol is an excisable commodity and CENVAT credit admissible - appeal allowed - decided in favor of appellant.
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Indian Laws
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2016 (10) TMI 515
Dishonoring of cheques - Negotiable Instruments Act, 1881 - Held that:- Section 139 of the N.I. Act provides for raising of presumption to the effect that the holder of the cheque has received it in discharge of liability. The Hon’ble Apex Court in the case of Vijay v. Laxman and Anr. (2013 (5) TMI 40 - SUPREME COURT OF INDIA) has observed that once the cheque has been issued and the signatures thereon has been admitted by the accused, then it is not available to the accused to take the defence that the cheque was not issued by him. The present revision petition has been filed assailing the judgments/orders passed by the Courts below. After going through the record and the submissions made by the parties, this Court is of the considered opinion that there is no apparent illegality or infirmity in the judgments/orders passed by the Courts below. This Court is not sitting in appeal and is dealing with the revision petition. It is a settled law that while exercising the revisional jurisdiction the Court cannot re-appreciate the evidence. Even otherwise, there are concurrent findings of fact by the Trial Court as well as by the appellate Court. In view of the above mentioned facts and circumstances, this Court does not find any irregularity, illegality or impropriety in the judgments/orders passed by the Courts below. Consequently, the present revision petition is dismissed. Application, if any, is also disposed of.
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