TMI Tax Updates - e-Newsletter
May 30, 2015
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
FEMA
Service Tax
Central Excise
CST, VAT & Sales Tax
TMI SMS
Highlights / Catch Notes
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Income Tax:
Re-assessment - when reasons are recorded for bringing to tax ‘X’ income and no assessment is made on the ‘X’ income, the AO does not possess the jurisdiction to tax any other income in the reassessment order - AT
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Income Tax:
Exemption u/s. 10(38) of long term capital gain - genuineness of transaction in shares - transaction of sale of shares were real, genuine and for valuable consideration and were within the framework of law. Consequently, exemption u/s. 10(38) of the Act had to be allowed. - AT
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Income Tax:
Exemption u/s.54F - investment in second residential house - previous residential property gifted to her husband - There is no stipulation in law with regard to the ownership pattern, or its quantification, i.e., of the assessee’s other family members, including spouse, or even of the transferee/s - exemption allowed - AT
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Income Tax:
Treatment of the loss on share trading - the specified income under Explanation to section 73 - the said loss is a loss from a speculation business in terms of Explanation to section 73, and is to be treated as such. - AT
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Customs:
Valuation of goods - Rule 10A of the Customs Valuation Rules 1988 - higher price at which same goods were imported by contemporaries in the same vessel, was justified for payment of duty and transaction value has been correctly rejected. - AT
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Customs:
Benefit of project import assessment under Heading 98.01 of CTA,1975 - n terms of Regulation No.(4) of the PIR, 1986, the contract should be registered prior to clearance of the goods and not at the time of warehousing of the goods - Benefit of exemption allowed - AT
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FEMA:
Drawal limit of USD 125000 increased to USD 250,000 per financial year Foreign Exchange Management (Permissible Capital Account Transactions) (Third Amendment) Regulations, 2015 - Notification
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FEMA:
Facilities of drawal of foreign exchange for transactions for Individuals and Other person - conditions modified - Foreign Exchange Management (Current Account Transactions) Amendment Rules, 2015 - Notification
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Service Tax:
CENVAT Credit - Whether, the service tax paid on mobile phones used by employees/staff of a manufacturing company would be eligible for cenvat credit under the Cenvat Credit Rules, 2004 - Held Yes - HC
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Service Tax:
Consulting Engineer Service - a lay man making a blue print or typing the project report would not qualify to be called a consulting engineer. - AT
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Central Excise:
Request for quashing of criminal complaint - Revenue could not refute that with the basis for the criminal complaint having been actually removed, with the Apex Court having held that the goods manufactured by the firm of the petitioners are not exigible to Central Excise, the criminal complaint would no longer be maintainable. - HC
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VAT:
Claim of interest on refund - Refund claim was adjusted towards penalty imposed - claim of interest allowed - HC
Articles
Notifications
News
Case Laws:
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Income Tax
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2015 (5) TMI 906
Penalty u/s 271(1)(c) - interest income received from fixed deposits was shown as business income - Held that:- Revenue have not brought out any fact or allegation on record that the information given by the assessee in its return of income was either bogus or incorrect and hence the same is prescribed as correct which was not disputed by the AO. The CIT(A) also observed that the interest income received from fixed deposits was shown as business income on the basis of earlier years assessment orders under the bonafide belief that such income is assessable as business income which was treated by the AO as income from other sources instead of business income during the quantum proceedings. In this situation, the addition was based on difference of opinion and when two views are possible the penalty u/s 271(1)(c) of the Act cannot be levied. Consultancy fee payment - The CIT(A) rightly accepted the explanation of the assessee that it has engaged a consultant to advise the assessee in business matters and also to advise about the sale of shares to a foreign entity or party. Therefore, the impugned amount of consultancy fee was debited under the head of legal and professional expenses which was claimed as business expenditure under a bonafide belief that the expenditure was incurred for business and the same was allowable against the business income. However, during the quantum proceedings, the claim of consultancy fee was allowed against the income of capital gains instead of income from business. In this situation, we safely observed that the claim of the assessee was not disallowed and the same was allowed against the income of capital gains instead of business income and thus, it cannot be held that either assessee has furnished inaccurate particulars of income or had concealed particulars of its taxable income with an intention to evade tax. Thus respectfully follow the decision of CIT vs. Reliance Petro Products (2010 (3) TMI 80 - SUPREME COURT ), wherein held that merely because the assessee had claimed the expenditure which claim was not accepted or was not acceptable to the Revenue, that, by itself, would not attract penalty u/s 271(1)(c). However, in the present case, the claim of the assessee on both the counts was not dismissed at the threshold but both the claims of the assessee was allowed in a different head of income instead of the head of income adopted by the assessee in its return of income. Thus penalty deleted - Decided in favour of assesse.
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2015 (5) TMI 905
Difference between the income declared - Disallowance u/s 40A(3) OR Section 37(1) - assessee has also challenged the jurisdiction invoked under Section 153C - Held that:- it would be in the interest of justice and equity if the matter of assessment is restored to the file of the Assessing Officer, who shall consider the aforesaid issues afresh and pass orders in accordance with law after affording the assessee adequate opportunity of being heard and to file details and submissions required. We make it absolutely clear that the assessee is at liberty to urge all contentions before the Assessing Officer including the validity of assumption of jurisdiction under Section 153C of the Act by the Assessing Officer and similarly the Assessing Officer is also at liberty to cause such enquiry to be made as is required to arrive at the proper determination of income on the facts and circumstances of the case. The Assessing Officer shall, thereafter, pass the order of assessment afresh being uninfluenced by any of the earlier orders and shall conclude the proceedings in accordance with law. It is ordered accordingly. - Decided both in favour of assesse and revenue for statistical purposes.
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2015 (5) TMI 904
Disallowance u/s 40A(3) - Held that:- Similar disallowance made by the A.O. in another group company namely Westland Developments Pvt. Ltd was deleted by Tribunal and hold the fact that the additional payments were warranted in order to avoid potential disputes amongst the claimants of the land holding which have been passed through to the land holders from generation to generation wherein there may be informal arrangements of ownership and or the payments were for commercial expediency to facilitate peaceful possession and registration of the land holding; where by the time Registry was made the landholders felt a higher payment was necessitated due to increase in value are issues which are not required to be adduced in the present proceedings. The assessee had not routed the additional payment through P & L account and the facts and circumstances in the present case are similar. Therefore respectfully following the above tribunal order issue herein is decided in favour of the assesse. Reimbursement of expenses - whether cannot be treated to be a Revenue receipt? - Held that:- The assessee had made payment on behalf of country vide developers which was reimbursed to the assessee and it had not claimed any expenditure for these payments - Decided in favour of assesse. Disallowance of interest on PDCS - CIT(A) deleted the disallowance - Held that:- After examining the loose papers seized at the time of search at the assessee's premises, it was noticed that Interest Is paid on the PDCs only during the period of extension of PDCs and, therefore, he directed the Assessing Officer to recompute the interest on PDCs at the time of extension of the PDCs. He has further observed that if it is not possible to work out the extension of PDCs In each case, then the Assessing Officer is directed to recompute interest on PDCs after six months from the date of Issue of the PDCs. Therefore, the ground of appeal of the Revenue that the CIT(A) deleted the addition of ₹ 5,06.625/- made by the Assessing Officer on account of Interest on PDCs is factually incorrect and contrary to the order of the CIT(A). - Decided against revenue.
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2015 (5) TMI 903
Rejection of the books results u/s 145(3) - fall in Gross Profit / difference in sales - CIT(A) deleted the addition - Held that:- CIT(A), while deleting the addition, has given a finding that the amount of loss of ₹ 15,15,785/- represented loss of 43,555 Kgs of Ispaghula Seeds which have been duly accounted for in the audited accounts of the assessee and the assessee had also submitted the proper reconciliation and reasons for the fall in Gross Profit. Before us, the Revenue has not brought any material on record to controvert the findings of the ld. CIT(A). We, therefore, find no reason to interfere with the order of the CIT(A). Hence, this ground of appeal of the Revenue is dismissed - Decided against revenue. Disallowance on account of interest expenses - CIT(A) deleted the addition - Held that:- It is undisputed fact that during the year under consideration, the assessee has earned net interest income of ₹ 11,81,410/-. Before us, the ld. Authorized Representative also pointed out to the cost of fund, the rate at which it has lent and from the statement submitted by the ld. AR, it is seen that the amount which has been lent to M/s. Swati Autolink Pvt Ltd is at a higher rate than the weighted average cost of funds. Before us, it is also the assessee’s submission that the amounts were advanced in earlier years also and no disallowance was made in the earlier years, for which reliance was placed on judgment of Sridev Enterprises (1991 (1) TMI 52 - KARNATAKA High Court). Before us, the Revenue has not brought any material on record to controvert the above submissions made by the assessee nor has brought any contrary binding decisions in its support nor could point out any distinguishable features of the decisions cited by ld. AR. In view of the above facts, we are of the view that no disallowance on account of interest could be made in the present case. - Decided in favour of assesse.
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2015 (5) TMI 902
Penalty u/s 271(1)(c) - as no documents in support of any meetings set up with the M/s Mavel Manufacturing Inc. was placed on record the CIT(A) confirmed the penalty order - Held that:- CIT(A) has not even cared to address the fact that M/s Mavel Manufacturing Incorporation was a customer of the assessee and not a supplier. It is further seen that the export sales of the assessee have increased over the years which to some extent can be said to be on account of continued customer satisfaction and the rationale though not being good enough for quantum proceedings can be a relevant argument in the penalty proceedings in the peculiar nature of assessee's business. We note that no doubt the claim put forth by the assessee was not allowed however it cannot be said considering the judicial precedent cited that there was any filing of inaccurate particulars or non-disclosure on the part of the assessee. It is merely a case of claim not allowed. It is also seen that in the peculiar facts and circumstances of the case, the penalty has been imposed and upheld purely on account of the findings arrived at in the quantum proceedings which is not the mandate of law. The explanation offered by the assessee in the penalty proceedings has to be considered independently and judiciously and only thereafter a finding has to be recorded. This exercise is found missing both in the penalty order as well as the impugned order. Thus impugned order is set aside and by allowing the appeal of the assessee, the penalty order is quashed. - Decided in favour of assesse.
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2015 (5) TMI 901
Reopening of assessment - denial of deduction u/s 54/54F in respect on new residential property bought against sale of commercial property as alleged by the Learned Assessing Officer - Held that:- It is clear that the ld. CIT(A) justified the reopening for only on this basis that the notice issued u/s 148 of the Act was within the time limit laid down u/s 149 of the Act and that the AO recorded the reason on the basis of information received from the Directorate of Investigation, Gurgaon, however, he neither discussed the submissions of the assessee nor gave the reasons for rejecting the same. In our opinion the order of the ld. CIT(A) while rejecting the ground raised by the assessee against reopening of assessment u/s 147 of the Act is a non-speaking order particularly when he has not discussed the submissions of the assessee and also did not give the reason in support of his conclusion. As regards to the issue relating to the admission of the legal grounds, it is noticed that the ld. CIT(A) without considering this fact that those grounds raised were purely legal in nature and go to the root of the matter, dismissed the same by stating that there was no reasonable cause for adding the additional grounds of appeal at stage of Appellate Proceedings. In our opinion the ld. CIT(A) ought to have admitted the additional grounds and thereafter he should have decided the same by considering the submissions of the assessee. We, therefore, considering the totality of the facts of the present case, deem it appropriate to set aside this case back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee. He should pass a speaking order on the additional grounds raised before him as well as the grounds agitated for reopening u/s 147 of the Act. - Decided in favour of assesse.
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2015 (5) TMI 900
TP addition - Dispute Resolution Panel deleting the addition of TP regarding super normal profit of one comparable company having variation in PLI ranging from (-) 13.55% to 113.49% and in TNNM - whether AO erred in filing an appeal against the directions of DRP passed under section 144C(5)? - Held that:- There is no dispute that the objections against the draft order of the Assessing Officer were filed by the assessee on 23.12.2010 which were rejected by the DRP in-liminie on a technical ground that the same were not signed by the Managing Director of the assessee. On further appeal, the Tribunal restored the matter to the record of the DRP for deciding the objections on merits. Therefore, it is not a case of filing of fresh objection before the DRP but the matter was restored by the Tribunal to the record of the DRP for consideration of the objections filed by the assessee on 23.12.2010 on merits. In the case in hand, the objections were filed on 23.12.2010, therefore, the directions passed by the DRP on the objections filed by the assessee are binding on the Assessing Officer. The order of this Tribunal restoring the matter to the record of the DRP for deciding the objections filed by the assessee on merits would not change the factum of filing the objections by the assessee on 23.12.2010 and therefore the direction of the DRP dated 11.03.2014 are in respect of the objections dated 23.12.2010 can’t be challenged by the Assessing Officer. The appeal filed by the Assessing Officer is not maintainable as the Assessing Officer is not permitted to file the appeal against the directions of the DRP in respect of the objections filed by the assessee dated 23.12.2010 which is prior to 01.07.2012 - Decided against revenue.
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2015 (5) TMI 899
Re-opening of assessment - Technical know-how fees - CIT(A) deleted the addition holding that because at the time of initiation of proceeding u/s 147 the AO had not recorded reason towards claim of incorrect technical knowhow fees, the addition made on this ground subsequently in the assessment order could not survive - Held that:- The above issue for our consideration is no longer res integra, since in the case of Ranbaxy Laboratories Ltd. vs. CIT (2011 (6) TMI 4 - DELHI HIGH COURT) wherein held that when reasons are recorded for bringing to tax ‘X’ income and no assessment is made on the ‘X’ income, the AO does not possess the jurisdiction to tax any other income in the reassessment order. Thus the CIT (A) is justified in quashing the reassessment proceedings - Decided in favour of assesse.
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2015 (5) TMI 898
Capital gains computation - adopting the circle rate u/s 50C or documented price in sale deed - Held that:- In the instant case, the assessee had raised a plea that the fair market value of the impugned property is below the circle rate. Moreover, we find that the assessee had taken up a specific ground before the CIT (A) that the impugned property sold ought to have been referred for valuation since the fair market value was less than the circle rate. In the instant case, since specific claim was raised by the assessee as regards fair market value being less than the circle rate, going by the dictum laid down by the Tribunal in the case of Sarwan Kumar vs. ITO (2014 (1) TMI 1625 - ITAT DELHI), the Assessing Officer ought to have referred the matter to the DVO for valuation of the impugned property. Therefore, this issue is restored to Assessing Officer for the purpose of referring the impugned property for valuation u/s 50C(2) of the Act and thereafter proceed to determine the capital gains on the property in question - Decided in favour of assesse for statistical purposes.
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2015 (5) TMI 897
Claim of deduction u/s.10A - Held that:- this matter requires re-examination by the AO. It is stated that assessee was claiming 10A deduction in earlier years and as per the provisions, assessee is eligible for continuation of claim for a period of ten years. Therefore, it is necessary that the eligibility of assessee should be examined. As seen from the assessment order, the AO seems to have been carried away by the amount of claim made against export turnover and no other conditions/details seems to have been examined. Before us, Ld. Counsel filed a copy of form 56F which is stated to have been filed before the authorities but not acknowledged. Therefore, in the interest of justice and noting that assessee's claim was made in earlier years, we are of the opinion that matter requires re-examination by the AO. AO also should examine the eligibility of the claim and the amount claimed towards deduction, keeping in view the eligible unit and its profits as per the provisions of the Act. - Decided in favour of assesse for staitsical purposes. Claim of capital work in progress - held that:- First of all, the entire amount of ₹ 6,75,96,165/- was disallowed by the AO, therefore question of enhancing the amount does not arise. The issue whether capital work in progress can be reduced or not was not an issue before the AO and this aspect was not examined at all. Since the AO put it to CIT(A), with reference to claim of ₹ 1,96,28,459/- and capital work in progress reduced in the computation, which the Ld. CIT(A) directed to be enhanced by an amount of ₹ 6,75,96,165/- , that too without giving opportunity to assessee as contended, we are of the opinion that this capital work in progress issue also requires re-examination. - Decided in favour of assesse for staitsical purposes. Investment written-off disallowed - AO noted that investment written-off cannot be treated as an allowable deduction as it is not a revenue expenditure - Held that:- This claim also requires re-examination. Assessee's claim that amounts are originally offered as income, subsequently converted to equity of the subsidiary and written-off on the basis of the circulars of RBI requires examination by AO, as none of the figures are comparable on the basis of the annual reports filed before us. In order to examine the issue and to give one more opportunity to assessee to substantiate the claim, matter is restored to the file of AO with a direction to examine the factual aspect of the contentions of assessee and then decide whether the amount can be allowed as revenue expenditure or not as per the provisions of Act.- Decided in favour of assesse for staitsical purposes. Software purchases - revenue v/s capital expenditure - Held that:- As seen from the assessment order, the issue raised by AO is only with reference to non-furnishing of vouchers with respect of purchases claimed in the P&L A/c. There is no dispute before the AO as the software purchases are on revenue account. Only for lack of proof of software purchase, AO disallowed the amount. The said proof was furnished before the Ld. CIT(A) which was also sent on Remand Report to the AO. We are surprised to see that Ld. CIT(A) directing the AO to treat as capital purchase which issue not all raised by AO nor by assessee. In view of this, we modify the order of CIT(A) and direct the AO to allow the amount as revenue expenditure..- Decided in favour of assesse. Non deduction of TDS on audit fee - Held that:- Invoking the provisions of Section 40(a)(ia) entire amount of ₹ 1 Lakh was disallowed. Before the Ld. CIT(A), assessee submitted that amount of TDS paid of ₹ 87,857/- on 27-08-2008 involves TDS on audit of fee of ₹ 1 Lakh. Ld. CIT(A) directed the AO to verify and allow the amount. Since the CIT(A)'s direction is only with reference to direction given to the AO, we reiterate the same direction. - Decided against revenue. Salary paid to overseas employees disallowed - Held that:- Before the Ld. CIT(A), assessee made detailed submissions and furnished various details including various contracts and man power employed organization-wise. This information was also sent to AO in the Remand Report. In view of this, CIT(A) was correctly of the opinion that the disallowance made by the AO is not warranted and accordingly deleted. - Decided against revenue.
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2015 (5) TMI 896
Unexplained credits - jurisdiction of provisions of section 153C r.w.s. 153A - CIT(A) deleted addition - Held that:- CIT(A) has deleted the addition in dispute contrary to the principle of natural justice. It is very clear from the submission of the assessee that the AO has made the addition on the basis of statement given by SK Gupta. It is also admitted position that the AO has neither provided the statement of Sh. SK Gupta not provided an opportunity of cross examination to the assessee. Ld. CIT(A) has wrongly deleted the addition, in dispute. He should have called the Remand Report from the AO. We know that Ld. CIT(A) has no power to set aside the issue in dispute to the AO, but the deletion of the addition is also not permissible, in view of the facts and circumstances of the case, as explained in the impugned order. In the interest of justice, we are setting aside the issue in dispute to the file of the AO with the direction to provide the copy of the statement given by Sh.SK Gupta to the assessee and also provide an opportunity for cross examining him and decide the issue in dispute, afresh under the law, after giving adequate opportunity of being heard to the assessee for substantiating its claim before the AO. - Decided in favour of revenue for statistical purposes.
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2015 (5) TMI 895
Disallowance on account of retention money - money retained by the various Government contractees out of the contract value till the establishment of specific performances as specified and issuance of taking over certificate - CIT(A) deleted the addition - Held that:- The issue involved is duly covered by the decision CIT -vs.- Simplex Concrete piles (India) Pvt. Ltd. [1988 (12) TMI 52 - CALCUTTA High Court] wherein held that the payment of retention money is d eferred and is contingent on satisfactory completion of the work and removal of defects and payment of damages, if any. Till then, there is no admission of liability and right to receive any part of the retention money accrues to the assesse - Decided against revenue. Disallowance of interest accrued upto end of the previous year on Government Bonds - CIT(A) deleted the addition admitting fresh evidences without giving the Assessing Officer an opportunity to examine the same - Held that:- The issue in this appeal is duly covered by the decision of Canara Bank [1991 (7) TMI 38 - KARNATAKA High Court] in which it was held that the interest ac crues or arises only on the record date or on the maturity date for the purpose of taxability. In the case of the assessee the interest on Bonds were payable on 31s t day of December and 30th day of June and, therefore, the interest for the period ended on 31s t March has not accrued and due to the assessee. In view of this fact, we do not find any infirmity or illegality in the order of the ld. CIT(Appeals).- Decided against revenue. disallowance invoking Rule 8D read with section 14A - CIT(Appeals) in rest ricting the disallowance to 1% of the dividend income - Held that:- Rule 8D has been inserted by the Income Tax (5t h Amendment ) Rules, 2008 w.e.f. 24th March, 2008. Hon’ble Mumbai High Court in the caes of Godrej & Boyce Mfg. Co. Ltd. -vs.- DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] has clearly held that Rule 8D is not ret retrospective but prospective. The impugned assessment is the assessment year 2007-08 while Rule 8D has been inserted w.e. f. 24th March, 2008. Therefore, the Assessing Officer, in our opinion, is not correct in law in allowing the disallowance by applying Rule 8D. We further noted that in the case of Sanjiv Jajodia -vs. - DCIT [2010 (9) TMI 1026 - ITAT KOLKATA] has taken the view that the disallowance under sec tion 14A out of the expenses should be rest ricted only to 1% of the dividend income. Ld. CIT(Appeals) respec tfully following the said decision has rest ricted the disallowance to ₹ 1,36,794/-. In view of this fact, in our opinion, no interference is called for in the order of the ld. CIT(Appeals) in rest ricting the disallowance to 1% of the dividend income - Decided against revenue. Discrepancies found in the figures of sale disclosed in the return - CIT(A) deleted part addition - Held that:- CIT(Appeals) has duly examined the reconciliation made by the assessee along wi th the supporting documents and came to the conclusion that in respect of three parties, namely Steel Products Limited, Rukmani Elect ricals, and Unique St ructure amounting to ₹ 43,202/-, ₹ 21/-, ₹ 54,771/- respectively, documents are unreconciled. He, therefore, sustained the addition to that extent.D.R. before us even though vehemently relied on the order of the Assessing officer but could not brought to our knowledge how there is a mistake in the reconciliation as has been examined by the ld. CIT(Appeals), thus in our opinion, ld. CIT(Appeals) was justified in sustaining the addition as made by the Assessing Officer. - Decided against revenue. Disallowance on account of the insurance expenses - Held that:- when we asked the copy of the bill to prove that the deductions have been made towards the insurance expenses, the ld. A.R. expressed his inability to produce the same. In our opinion, when the assessee claims the expendi ture, the onus lies on the assessee to prove the genuinity of the expenses. In view of this fact, we do not find any infirmity or illegality in the order of the ld. CIT(Appeals) sustaining the addition - Decided against assesse. Disallowance of the commission payment - Held that:- Ld. A.R. even though vehemently contended that the commission paid by the assessee in the subsequent year has been allowed by the Assessing officer while determining the taxable income of the assessee, but he could not adduce any cogent material or evidence before us, which may prove that the commission has been paid by the assessee to the same very person. Even ld. A.R. could not adduce any evidence which may prove that the assessee has paid the commission to M/s. Kidar Sons Industries (P) Ltd. in respect of the services rendered by him. - Decided against assesse.
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2015 (5) TMI 894
Unaccounted cash - search and seizure procedings - Held that:- As during search statement of assessee’s mother Smt. Jashodaben Ravji Majethia from whose possession cash was found, was recorded. In the statement Smt. Jashodaben Ravji Majethia stated the source of cash of ₹ 8,50,000/- out of savings for a period of over 25 years. Since the daughter of Smt. Jashodaben Ravji Majethia Miss Banuben Ravji Majethia, aged 50 years was un-married, money was saved keeping in mind for her future of un-married daughter. As per the statement, husband of the assessee is also aged 85-87 years and therefore looking to the old age and her daughter’s condition being un-married, the amount was saved for a period of last 20-25 years from her husband as well as from son’s income. The explanation given by Smt. Jashodaben Ravji Majethia during the course of search was not found to be in-correct. Accordingly we do not find any merit in the additions made in the hands of the assessee. - Decided in favour of assesse. Unaccounted jewellery - Held that:- The jewellery was found in the cupboard of the mother kept in her room. During the course of preliminary statement itself the mother and sister of the assessee had owned the jewellery and explained the source of the same. The jewellery found is ladies jewellery and hence it cannot belong to the assessee. Further the assessee is a bachelor and hence no addition can be made in the hands of the assessee. Also the statement of Mrs. Jashodaben Ravji Majethia was recorded during the course of search which shows that the jewellery is only out of gifts and never purchased - Decided in favour of assesse Unaccounted cash credit - Held that:- Similar addition made on account of creditors in the A.Y. 2008-09 were deleted by the ld. CIT(A) as relying on CIT vs. Computer Force [2010 (7) TMI 831 - ITAT AHMEDABAD] wherein held that if the receipt and repayment of the loan is corroborated by the ledger accounts and bank entries, additions in respect of such credits cannot be made. Following the same reasoning given above in the A.Y. 2009-10, we do not find any reason to interfere in the order of ld. CIT(A) deleting the addition made on account of creditors.- Decided in favour of assesse.
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2015 (5) TMI 893
Penalty under Section 271(1)(c) - validity of the notice issued under Section 274 rws 271 of the Act dt.20.10.2010 for initiating penalty proceedings under Section 271(1)(c) - Held that:- A perusal of the notice issued under Section 274 r.w.s. 271 of the Act dt.20.10.2010, reveals that the Assessing Officer has not deleted the inappropriate words and parts of the notice, whereby it is not clear as to the default committed by the assessee; i.e. whether it is the concealment of particulars of income or furnishing of inaccurate particulars of income that the penalty under Section 271(1)(c) of the Act is sought to be levied. We find that the Hon'ble High Court of Karnataka in its order in the case of M/s. Manjunatha Cotton & Ginning Factory in [2013 (7) TMI 620 - KARNATAKA HIGH COURT] has held that such a notice, as has also been issued in the case on hand, is invalid and the consequential penalty proceedings are also not valid. - Decided in favour of assesse.
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2015 (5) TMI 892
Reopening of assessememt - valuation of closing stock of property - Held that:- The assessee during the year under consideration purchased one property situated at Panjagutta, Hyderabad for ₹ 13.13 cores and sold a portion of the said property, i.e. ground floor for consideration of ₹ 11 crores. The cost of the portion of the said property sold during the year under consideration was taken by the assessee as ₹ 7.6 crores, on the basis of a valuation report and the balance amount of ₹ 5.53 crores being cost of the remaining portion of the property continued to be held by the assessee was shown as closing stock. During the course of original assessment proceedings under S.143(3), the relevant details and documents relating to these transactions were called for by the Assessing Officer, as is evident from the relevant order sheet entries, and since the issue relating to the valuation of closing stock adopted by the assessee was directly linked with these transactions, we find it difficult to accept the contention of the Learned Departmental Representative that the same was not examined by the Assessing Officer during the course of original proceedings Moreover, the Assessing Officer himself in the letters written to the audit team as well as to the concerned Addl.CIT had stated in very clear terms that the issue relating to the valuation of closing stock was duly examined during the course of original assessment proceedings. Thus find ourselves in agreement with the learned CIT(A) that the issue relating to the valuation of closing stock having been examined by the Assessing Officer during the course of original assessment proceedings under S.143(3), the reopening of the assessment on the same issue was based on a mere change of opinion, which is not permissible in law, as held inter alia in the case of Kelivinator India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA ). We therefore, find no infirmity in the impugned order of the learned CIT(A) holding the assessment made by the Assessing Officer under S.143(3) read with S.147 as invalid and upholding the same, we dismiss the appeal filed by the Revenue. - Decided in favour of assesse.
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2015 (5) TMI 891
Penalty u/s. 271(1)(c) - claim of deduction u/s. 10A - Held that:- It can be safely concluded that when the assessee has filed the return for the year under consideration, it was well aware of the view taken by the department in earlier assessment years, in so far as the allocation of expenses is concerned, yet the assessee did not allocate the expenses in the manner in which they were allocated in the earlier assessment years by the AO. The claim of the assessee that it received the appellate order for A.Y. 2006-07 after filing the return is not acceptable for the simple reason that the assessee was well aware of the contentious issue of earlier assessment year just because the AO did not levy penalty in earlier assessment year does not exonerate the assessee from the levy of penalty for the year under consideration. This is the third year of allocation of expenses therefore it cannot be said that the assessee was not aware of the allocation of expenses, the basis of which was taken as turnover of the respective unit. Taking the liberty for the third time on the same set of facts is nothing but filing of inaccurate particulars by concealment of income by increasing the expenses of non STP unit vis-ŕ-vis STP units. The assessee has deliberately inflated the expenses of taxable units keeping in mind that this issue was not accepted in earlier assessment years yet the assessee took a chance because it was well aware that hardly 2-3% of the returns are selected for scrutiny assessment, which means that such persons can make irregular and excessive claim of the nature of the case in hand and would get away without paying the tax legally payable by them, if their cases are not picked up for scrutiny, thereby discriminating with the good taxpayers and law abiding tax payers. Such inequity takes away deterrent effect from the penal provisions which have been enacted in the Act. As decided in Reliance Petroproducts (2010 (3) TMI 80 - SUPREME COURT ) has held that everything would depend upon the return filed because that is the only document, where the appellant can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability of penalty u/s. 271(1)(c) would arise. In the instant case, the assessee has repeatedly claimed the skewed allocation of common expenses between the STP unit and the non STP unit so as to artificially inflate the claim of deduction u/s. 10A of the Act. - penalty confirmed - Decided against assesse.
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2015 (5) TMI 890
Exemption u/s. 10(38) of long term capital gain - genuineness of transaction in shares - CIT(A) allowed the claim - Held that:- Issue raised by the AO in the order of assessment has already been decided in the case of Bhoruka Engineering Industries Ltd. (2013 (7) TMI 543 - KARNATAKA HIGH COURT). The Hon’ble ITAT in the case of Bhoruka Engineering Industries Ltd. [2013 (7) TMI 646 - ITAT BANGALORE] had upheld the order of the AO holding that the sale of shares by the various entities of Bhoruka group was a colorable device to evade tax and the capital gain on sale of shares was to be regarded as short term capital gain and exemption u/s.10(38) of the Act was not to be allowed. The assessee had carried the matter to the Hon’ble High Court of Karnataka. The Hon’ble High Court of Karnataka was pleased to set aside the order of the Tribunal and held that the transaction of sale of shares were real, genuine and for valuable consideration and were within the framework of law. Consequently, exemption u/s. 10(38) of the Act had to be allowed. It is not in dispute that the facts in the case of assessee are identical with that of the case of Bhoruka Engineering Industries Ltd., (supra) and therefore the decision of the Hon’ble High Court of Karnataka will squarely apply to the facts of the present case. We are therefore of the view that the order of the CIT(Appeals) has to be upheld and the claim of the assessee for exemption u/s. 10(38) of the Act has to be allowed. - Decided in favour of assesse.
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2015 (5) TMI 889
Unaccounted Opening cash - Held that:- The entries made at cash book are not supported by the credit card statement and therefore the claim of the assessee that the cash withdrawals using credit card were repaid by cheque issued from the assessee’s bank account and therefore cash withdrawn using credit card should be considered as being available to the assessee to explain the cash deposit of ₹ 16.15 lakhs in his bank account cannot be accepted. The request of the ld. counsel for the assessee for a remand to the AO can also not be accepted because the CIT(A) had rejected the claim of assessee for absence of credit card statement and even before the Tribunal, the assessee did not make any attempts to file the same as additional evidence. In these circumstances, we uphold the order of the CIT(Appeals) on this issue. - Decided against assesse. Reimbursement of foreign tour expense disallowed - Held that:- the credit card statement evidences purchase of air tickets from Indian Airlines on 20.11.2008, 23.12.2008 and 26.4.2008. As to how these purchases of air ticket is linked with the visits of the assessee to Sri Lanka, China, Hongkong and Bangladesh is not clear. There is no evidence filed by the assessee to show that these expenses were reimbursed by the employer. In these circumstances, we are of the view that the claim made by the assessee was rightly rejected by the CIT(A). - Decided against assesse. Gift from mother of ₹ 1 lakh disallowed - Held that:- As that there was no evidence to show how the assessee’s mother came into possession of the RD maturity proceeds which stood in the name of Shri Sanjeevarayudu. The CIT(A) held that even if the maturity proceeds are accepted as belonging to the assessee’s mother, it was improbable to believe that the RD maturity proceeds which were received on 30.3.2005 would have been retained by the assessee’s mother and given as gift to the assessee in the F.Y. 2008-09. The CIT(A) was of the view that it was highly improbable that the assessee’s mother would have retained cash with her for 3 years and given it as gift to the assessee. - Decided against assessee.
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2015 (5) TMI 888
Exemption u/s.54F - investment in second residential house - previous residential property gifted to her husband - Held that:- We find no provision in law for the assessee to continue to be regarded as the owner or even a part owner of the property (the Sion residential flat) gifted by her to her husband on 03.10.2008. Even if the same is for the purpose of enabling availing benefit under section 54F, we cannot by any score treat as not valid in the eyes of law. The gift deed, duly registered, has to be given its full legal effect, which is of a change in its ownership from the assessee to her husband, Shri Ashok Vishindas Ajwani. Pinning on some altruistic notion, as we observe the Revenue to, cannot entitle it to the read the law except in terms of its clear and unambiguous language, so that only what stands specifically provided is to be excluded. There is no stipulation in law with regard to the ownership pattern, or its quantification, i.e., of the assessee’s other family members, including spouse, or even of the transferee/s. The same clearly provides for consideration of the ownership of residential house/s only of the assessee, and on a particular date. Thus no warrant in law and, accordingly, no merit in the Revenue’s case for disregarding the gift of a house property by the assessee to her spouse prior to the transfer date (of the original asset) for the purpose of reckoning eligibility to exemption u/s.54F of the Act. We decide accordingly. - Decided in favour of assesse.
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2015 (5) TMI 887
Treatment of the loss on share trading - the specified income under Explanation to section 73 Held that:- In the admitted facts of the case, the assessee has income from advisory charges and brokerage at ₹ 121.81 lacs and ₹ 14.93 lacs respectively. Its other incomes are rent; dividend; and capital gains (long-term), at ₹ 6.39 lacs, ₹ 3.41 lacs and ₹ 19.68 lacs respectively. Quite plainly, the assessee's GTI, whichever way one may reckon it, cannot be considered as consisting mainly of the incomes under the heads specified under Explanation to section 73, viz. 'income from house property', 'capital gains' and 'income from other sources'. Even though we do not subscribe thereto, and is also not consistent with the forgoing discussion, the difference is so huge and apparent, that even the set off of loss on trading in shares, again a business income, incurred at ₹ 44.16 lacs, would not alter this position and the assessee's principal source of income would be business income. Accordingly, the said loss is a loss from a speculation business in terms of Explanation to section 73, and is to be treated as such. We, thus, find no infirmity in the treatment of the same as a speculative loss by the Revenue. Decided against assessee. Allocation of the expenditure - Held that:- A reading of the orders by the authorities below, show the A.O. to have made the allocation of the expenditure at para 2.2 of his order, so that the basis of the allocation of the commission expenditure by the A.O. has been clarified. No infirmity therein, which found confirmation with the ld. CIT(A), was brought to our notice during hearing, so that we have no reason to disturb the same. We decide accordingly. We may also clarify that in finally computing the loss on speculation business, the A.O. has also considered the said expenses as well as the dividend relatable to the speculation business, and which aspects have not been impugned by the assessee. We decide accordingly. - Decided against assesse. Assessment of the rental income as 'income from other sources' - Held that:-This matter stands covered against the assessee by the order by the tribunal in the assessee's own case for the immediately preceding year, i.e., A.Y. 2003- 04, with the ld. CIT(A). - Decided against assesse.
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Customs
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2015 (5) TMI 910
Valuation of goods - whether the transaction value can be rejected under Rule 10A of the Customs Valuation Rules 1988 - Held that:- During the months of July and August, 2004 there was volatility in the international price of Phenol. It is evident from the information available in international journal ICIS LOR for spot prices of Phenol on different dates - The appellant did not produce any evidence to show the international price consistent with the invoice presented by them along with the imported goods. They have also not produced any evidence to show that lesser price was charged from them by the same supplier on any commercial consideration such as quantity, quality or negotiation. - From the facts recorded by the first appellate authority international prices of PHENOL were increased after 30.07.2004 and were ranging between US $ 1256 PMT to 1322 PMT FOB. The contract entered between the appellants and the supplier is after 30.07.2004, therefore, higher price of US $ 1350 PMT CIF, at which same goods were imported by contemporaries in the same vessel, was justified for payment of duty and transaction value has been correctly rejected. - proceedings there is sufficient reasons to reject the transaction value under Rule 10A of the Customs Valuation Rules 1988 - Decided against assessee.
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2015 (5) TMI 909
Benefit of project import assessment under Heading 98.01 of CTA,1975 - consignments were imported prior to the registration of the contract - Non fulfillment of mandatory conditions of Regulations (4) &(5) of Project Import Regulations, 1986 - once the classification of the goods imported had been declared at the time of warehousing, by filing into-bond bills of entry, later, at the time of filing the ex-bond bills of entry for home clearance, the classification cannot be altered - Held that:- Registration of contract should have been obtained, before the Order granting permission for clearance of the goods was passed. We notice that after laying down the conditions, their Lordships analyzing the facts, have categorically held that in the said cases, the contracts were not registered at all before the Order of clearance was passed. In other words, the aspect of clearance of goods was put on the forefront so as to ascertain the fulfillment of the condition of Registration of Contract. We agree with the contention of the ld. Advocate that even though the judgment laid down in Mihir Textiles case (1997 (4) TMI 75 - SUPREME COURT OF INDIA) passed under the old regulations, however the Hon’ble Supreme Court has categorically held that the contract need to be registered prior to the Order of Clearance was passed. - in terms of Regulation No.(4) of the PIR, 1986, the contract should be registered prior to clearance of the goods and not at the time of warehousing of the goods. In the present case the project contract has been registered prior to clearance of the goods for home consumption, hence eligible to the benefit of project import benefit. - Decided in favour of appellant.
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Corporate Laws
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2015 (5) TMI 908
Application for Scheme of Amalgamation under Sections 391(1) to 394 read with Section 100 of the Companies Act, 1956 - Regional Director's observation regarding Appointment date duly addressed - Held that:- Although no objection has been raised by the Regional Director, Northern Region, but in para 12 of his report, he has submitted that the Scheme has provided the appointed date as 01.04.2013, whereas the petitioners have filed the balance sheet for the year 2014 and as such in order to avoid the revision of balance sheet, the petitioner companies may be asked to shift the appointed date as at 01.04.2014. In response to the aforesaid, learned counsel for the petitioners submitted that they are not inclined to change the appointed date and that the appropriate revised balance sheets with effect from the appointed date of 01.04.2013 shall be appropriately drawn up and filed. So far as the question with regard to fixing of appointed date of the Scheme is concerned, it has been held in numerous judgments passed by this Court and other High Courts that it is in the prerogative of the petitioners to fix any date as the appointed date of the Scheme and the Courts need not require alteration of the said date unless it is deemed necessary to do so, inter alia, for the reasons that either the petitioners have used the appointed date as a colourable device to evade taxes or it is in the interest of all stakeholders of the companies concerned to change the appointed date. In the present case, the only reason given by the Regional Director for change in the appointed date is that the petitioners have filed their balance sheets as at 31st March, 2014 and thus the appointed date may also be fixed as at 01.04.2014. However, no malafide is alleged in fixing the appointed date as at 01.04.2013. Learned counsel for the petitioners have submitted that the balance sheets of the petitioner companies shall be drawn up and filed with effect from the appointed date i.e. 01.04.2013. In view of the aforesaid, the observation raised by the Regional Director is suitably addressed. Considering the approval accorded by the equity shareholders and creditors of the petitioner companies to the proposed Scheme of Amalgamation and the affidavits filed by the Regional Director, Northern Region, and the Official Liquidator not raising any objection to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 and 394 of the Companies Act, 1956. - Application for Scheme of Amalgamation approved.
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FEMA
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2015 (5) TMI 907
Violation of the provisions of Section 9 (1)(b) and 9(1)(d) of FERA - Receipt and distribution of money - Receipt of commission - Validity of assessment proceedings - inordinate delay in conclusion of the proceedings - Held that:- Frivolous proceedings or proceedings taken out to merely delay the day of reckoning cannot be treated as proceedings taken in good faith, and that, mere fact on an application or petition, a stay is granted by a superior court is no ground to construe that the proceedings are not frivolous as very often such orders are obtained on exparte representation. In effect, it was observed by the court that while it may not be advisable or practicable to fix time limit for trial of offences, the courts while ascertaining whether undue delay has occurred must have regard to all attendant circumstances including the nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions, i.e., that which is termed as “systemic delays”. In sum, the guideline formulated is to balance and weigh all relevant factors. Respondents from very inception have procrastinated in prosecuting the case unmindful of the detriment that it would cause to the petitioner. - petitioner, was entitled in law to seek copies of the relied upon documents. The fact that respondents admittedly kept them back till March 2004 clearly shows that either they lacked, for whatever reasons, the interest to prosecute the petitioner or, they had no actionable case against the petitioner. Despite, repeated requests made on behalf of the petitioner to summon panch witnesses, the said request was declined by the respondents. This request attains significance as SCN proceeds on the basis as if the petitioner was the owner of the Minto Road premises. The premises, (since then demolished) was, concededly, a Government accommodation. The reason why the petitioner happened to visit the Minto Road premises would have, perhaps, come to light if, an opportunity was given to the petitioner to cross-examine the panch witnesses, who accompanied the official witnesses at the time of search. - Similarly, the production of co-noticees who allegedly received moneys distributed by the petitioner was equally important from the point of view of the petitioner. These persons have not been produced for cross-examination at least since 2004; despite a categorical request made in this behalf in the communication dated 27.07.2004 addressed by the petitioner’s counsel to the respondents. There were no answers forthcoming on behalf of the respondents on these aspects of the matter. There are no answers supplied in the counter affidavit as well. The reason for the same perhaps is, that these witnesses have either died or are not traceable. Either way, the dis-appearance of evidence which could be crucial to the petitioner’s case has occurred on account of the delay on the part of the respondents in concluding the adjudicatory process with due expedition. - adjudication cannot proceed any further on account of undue and unexplained delay in concluding the proceedings. Accordingly, the adjudication proceedings, which commenced vide memorandum dated 14.11.1995, are quashed. - Decided in favour of appellant.
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Service Tax
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2015 (5) TMI 918
Denial of CENVAT Credit - Whether, the service tax paid on mobile phones used by employees/staff of a manufacturing company would be eligible for cenvat credit under the Cenvat Credit Rules, 2004 - Held that:- Rules of 2002 and any other circular as in force before coming into force of Rules 2004 and the commencement of the said Rules would be construed as reference to the Cenvat Credit Rules of 2004 and any corresponding provisions thereof. The said Rules also provide that such Rules or any circulars should be relevant and should be consistent with Rules of 2004 - the word "Input Services" were not defined in the Rules of 2002. In such circumstances it cannot be said that there is any corresponding Rule in Rules of 2004 which can be said to have been saved. - Commissioner (Appeals) has rightly come to the conclusion that Rules 2002 would not be applicable to the facts of the present case. Such finding has been confirmed by the Appellate Tribunal by holding that circular of 2003 would not be applicable to defeat the credit availed of by the respondent. - expenses of mobile phones are in connection with manufacturing process of the respondent. In such circumstances, we find that both the substantial questions of law framed by this Court are to be answered against the appellant. - Decided against Revenue.
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2015 (5) TMI 917
Condonation of delay - Delay of 111 days - Advocate could not prepare the appeal and also did not inform the appellant about not preparing the appeal - Held that:- There is delay of 111 days in filling the appeal, the same needs to be condoned more specifically due to the reason that an assessee should not be made to suffer due to the lackadaisical attitude of the Counsel engaged and represented them before the first appellate authority. - Delay condoned conditionally.
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2015 (5) TMI 916
Consulting Engineer Service - appellants had provided vaastu advice, blue print and project report typing and binding services - Held that:- It is evident that service to be covered under the consulting engineer service. Shri Neeraj Sharma will have to-be shown to be a professionally qualified engineer and should have rendered advice, consultancy or technical assistance in one or more disciplines of engineering. It is nowhere brought out in the order in appeal or in the order in original that Shri Neeraj Sharma is a professionally qualified engineer. Further it is also not brought out as to in which discipline(s) of engineering the service has been rendered. Making blue print, typing, project report done by the appellants will have to be shown to be relating to one or more disciplines of engineering. For example a lay man making a blue print or typing the project report would not qualify to be called a consulting engineer. Thus, we find that Revenue has not been able to discharge its obligation/onus to show that the appellant was professionally qualified engineer and also rendered any advice in relation to any particular branch of engineering - Decided in favour of assessee.
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Central Excise
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2015 (5) TMI 912
Request for quashing of criminal complaint - Carrying on the business without obtaining central excise registration - manufacturing of liner fabric/nylon duck of polyprolene/nylone/polyster fabrics - Held that:- unless there is an actual evasion of excise duty, there is no offence attracting the aforesaid provisions made out against any person and as such, obviously not by the petitioners also as per the law laid down, in the Simplex-II case [2005 (3) TMI 117 - SUPREME COURT OF INDIA] - Of course, if registration is compulsory under any Rule, not brought to the notice of this Court even where the goods manufactured/produced/dealt in by a person are not subject to excise duty, then, at best, non-registration can be termed an irregularity, which fact has also not been pointed out by the learned counsel for the respondent, who was assisted by the 2nd respondent herself, as she had been summoned to Court, vide order dated 02.05.2014. - Obviously, if at all there is such an irregularity, and there is any fine imponable for the same, the respondents would be at liberty to impose the same, after following due procedure. Revenue could not refute that with the basis for the criminal complaint having been actually removed, with the Apex Court having held that the goods manufactured by the firm of the petitioners are not exigible to Central Excise, the criminal complaint would no longer be maintainable. - complaint filed by the respondent before the learned Chief Judicial Magistrate, Amritsar, is quashed, along with all proceedings arising therefrom, including the orders of the learned trial Court, impugned in the present petition - Decided in favour of appellant.
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2015 (5) TMI 911
Debarment orders - Utilization of wrongful credit - Imposition of penalty - Held that:- Appellant did not dispute before the CESTAT that their were defaults in payment of duty in respect of several fortnights and also did not dispute that they utilised credit in violation of debarment orders issued under the Central Excise Rules, namely, orders dated 31.01.2002 and 24.09.2002. Despite these admitted infractions and consequent violation of the rules, the Tribunal was charitable enough to allow credit to be adjusted towards duty at the time of clearance of final products on the premise that it would otherwise lead to the payment of double duty by the appellant. - Tribunal has even otherwise reduced the penalty to only ₹ 1 lac - Decided against assessee.
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CST, VAT & Sales Tax
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2015 (5) TMI 915
Claim of interest on refund - Refund claim was adjusted towards penalty imposed - Penalty for charging tax at higher rate - Held that:- On an order being made by the First Appellate Authority on 04.10.1988 that a decision was taken by the Assessing Authority on 16.05.1989 to the effect that the money cannot be returned in view of Section 29 (3) of the Sales Tax Act. The issue of refusal to refund the money due under Section 29(3), in our opinion, would only arise when something becomes payable to the assessee under orders of the competent authority which in the facts of the case would be the order of the First Appellate Authority dated 04.10.1988. - under Section 29(1) proviso of the Sales Tax Act, a power has been conferred upon the taxing authority to adjust any amount which is refundable against any other outstanding of the assessee. It is with reference to this power that the amount of excess tax which was paid by the assessee had been adjusted by the department against the amount of penalty which was levied under Section 15-A(1)(QQ). It is also relevant to note that Explanation II to Section 29 provides that the refund would include any adjustment under sub-section 1 of Section 29 of the Act. In the facts of case, the order for refund of the money adjusted against penalty was directed to be returned to the assessee under the order dated 04.10.1988 which order stands affirmed up to the High Court. Therefore, the liability to make payment of interest under sub Section 29(2) would accrue from the date the order of the First Appellate Authority was received by the department. - it is a fit case to issue a writ of mandamus directing the Assessing Authority to re-calculate and pay the interest for the period commencing from the date the Assessing Authority had received the order of the First Appellate Authority dated 04.10.1988 till 27.12.2002 at the rates as were applicable from time to time to the assessee. - Decided in favour of assessee.
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2015 (5) TMI 914
Stay application - Penalty imposed under Section 9(2) of the Central Sales Tax Act, 1956 - Held that:- A perusal of the recovery notice under the Land Recovery Act dated 24.11.2014 would go on to show that recovery was only made regarding the bank guarantee which has already been done. In such circumstances, once the petitioner himself has given his consent for the recovery of the tax amount along with interest, in view of being unsuccessful in appeal, we are of the opinion that subsequently, the petitioner had a change of heart and has approached this Court on the ground that since he had filed the appeal thereafter, the amount should be refunded to him and it was wrongly encashed, without giving him prior notice. - petitioner has submitted that the petitioner shall furnish adequate security, to the satisfaction of the Assessing Authority, in the manner prescribed under Section 33(5) of the VAT Act. - petitioner is granted the benefit of protection of recovery of the amount in dispute, during the pendency of the appeal, subject to the Assessing Authority being satisfied regarding the furnishing of adequate security, as prescribed under Section 33(5) of the VAT Act, within a period of 4 weeks - Conditional stay granted.
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2015 (5) TMI 913
Levy of entertainment tax - Subscriber - Section 4AA of the Rajasthan Entertainment and Advertisement Act, 1957 - Applicability of the case of Purvi Communication [2005 (3) TMI 438 - SUPREME COURT OF INDIA] - Held that:- M/s Bhaskar Multinet (Private) Ltd. is also an MSO as its claim before the AO, DC(A) and so also the Tax Board has been that it is an MSO. The DC(A) so also the Tax Board in para 7 & 8 of the impugned order has reproduced the contention of M/s Bhaskar Multinet (Private) Ltd. where it has been categorically admitted that it is MSO - Therefore, once it is an admitted fact, then in the case of M/s Bhaskar Multinet (Private) Ltd. as well, the aforesaid judgments hold good. - Judgment of the Hon'ble Apex Cort in the case of Purvi Communication P. Ltd. (supra) has rightly been applied by the Tax Board in the case of M/s. Radiant Satellite Private Ltd. and by this Court in the case of M/s Sky Media (P) Ltd. (2015 (4) TMI 424 - RAJASTHAN HIGH COURT) and thus the judgment in the case of Purvi Communication P. Ltd. (supra), holds the field and I do not find any distinguishing features in between the facts in the instant cases viz-a-viz the facts in the case of Purvi Communication P. Ltd. (supra) - Decided in favour of Revenue.
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