TMI Tax Updates - e-Newsletter
June 16, 2016
Case Laws in this Newsletter:
Income Tax
Corporate Laws
Central Excise
Indian Laws
TMI SMS
Highlights / Catch Notes
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Income Tax:
India-Mauritius Double Taxation Avoidance Agreement and related issues - Working Group to examine consequential issues arising out of amendment - Circular
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Income Tax:
Mesne profits - capital or revenue receipt - Once the Special Bench order of the Tribunal in Narang Overseas Pvt. Ltd., [2008 (2) TMI 817 - ITAT MUMBAI] has taken a view on the character of mesne profits, then unless the Revenue challenges the order of the Special Bench of the Tribunal it would be unfair of the Revenue to pick and choose assessees where it would follow the decision of the Special Bench of the Tribunal- HC
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Income Tax:
Levy of penalty u/s 158BFA(2) - penalty has been levied on the amount of undisclosed income without providing any working of maximum and minimum penalty leviable - No penalty - AT
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Income Tax:
Merely because the receipt for demolition expenses for demolishing the illegal structure on the same piece of land is in the name of the architect, the same cannot be held to be non-business expenses and disallowed by the Revenue - AT
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Income Tax:
Priority of Adjustment of business loss against the Long Term Capital Gains and interest income - Section 71 does not states that the business loss has to be adjusted first with particular head of income. - AT
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Income Tax:
The parties from whom the assessee has claimed to have purchased goods have admitted before the sales tax authorities that they have given only accommodation bills without actually supplying goods. In our view, this information received by the AO was sufficient to form belief that there was escapement of income - AT
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Income Tax:
AO of the searched person has merely intimated the details of search proceedings to the AO of the assessee and the same, in our considered view, shall not constitute “satisfaction” about “undisclosed income” as contemplated u/s 158BD - AT
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Income Tax:
Long Term Capital Gains - sale of mutual fund units of HSBC - options to pay tax on LTCG @20% or 10% with or without indexation - Merely because the assessee has not filed the details of long term capital gain in the return of income, the assessee cannot be denied the benefit of provisions of Section 112(1)(a) - AT
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Income Tax:
Rate of commission on accommodation entries - CIT(A) has applied correct estimate of rate of commission income @2% which is reasonable and appropriate - AT
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Income Tax:
Sale and purchase of agriculture land - adventure in trade - Merely because of the fact that the land was sold for profit, it cannot be held that income arising from the sale of land was taxable as profit arising from the adventure in the nature of trade. The period of holding should not suggest that the activity was an adventure in the nature of trade. - AT
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Income Tax:
Exemption u/s 11 - Investment in shares in a Private Limited Company - The members of the assessee society were the directors only in the representative capacity in the company. Therefore, in the instant case benefit under section 11 of the Act cannot be denied - AT
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Central Excise:
Levy of excise duty on readymade garments and made articles of textiles bearing a brand name or sold under a brand name and having a retail sale price of ₹ 1000 or more - Circular
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Central Excise:
Cenvat Credit - sending inputs for job work - As the lower Authorities did not adhere to the remand direction by the Tribunal to the full extent which is basically to find out the correct facts of the case. Any further remand will not serve any purpose. - demand set aside - AT
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Central Excise:
Extended period of limitation - Clearance of goods to sister establishment - Non reversal of credit on such goods before clearance - it has not been established as to which entry in ER-1 were wrong or erroneous - there is no requirement of the law to submit the Invoices with the department - allegation of suppression of facts cannot sustain - AT
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Central Excise:
Admissibility of refund under Rule 5 of the Cenvat Credit Rules, 2004 against the supply of final product to SEZ - lower authority rejected the refund claim of the accumulated Cenvat Credit under Rule 5 on the ground that supplies made to SEZ is a deemed export, not a physical export - Refund allowed - AT
Articles
Notifications
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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Border trade crucial for India’s ‘Act East’ policy says Commerce Secretary Rita Teaotia, as India focuses on Myanmar
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Cabinet approves Memorandum of Understanding with Taiwan for cooperation in the field of Agriculture and Allied Sector
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Cabinet approves disinvestment of 10% paid up equity of Housing and Urban Development Corporation Ltd. (HUDCO)
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Comments and suggestions of stakeholders invited on relevant issues arising out of amendment to India-Mauritius Double Taxation Avoidance Convention for consideration by the Working Group constituted for the purpose
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RBI Reference Rate for US $
Case Laws:
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Income Tax
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2016 (6) TMI 536
Exemption to the educational institutions (assessees herein) under Section 10(23C) of the Income Tax Act - Held that:- The issue involved in these appeals is squarely covered by the judgment of this Court in Queen's Educational Society vs. Commissioner of Income Tax [2015 (3) TMI 619 - SUPREME COURT ] wherein held that the correct tests which have been culled out in the three Supreme Court judgments stated above, namely, Surat Art Silk Cloth[1979 (11) TMI 1 - SUPREME Court], Aditanar [1997 (2) TMI 3 - SUPREME Court], and American Hotel and Lodging [2008 (5) TMI 17 - SUPREME COURT OF INDIA], would all apply to determine whether an educational institution exists solely for educational purposes and not for purposes of profit. Also to add that the 13th proviso to Section 10(23C) is of great importance in that assessing authorities must continuously monitor from assessment year to assessment year whether such institutions continue to apply their income and invest or deposit their funds in accordance with the law laid down. Further, it is of great importance that the activities of such institutions be looked at carefully. If they are not genuine, or are not being carried out in accordance with all or any of the conditions subject to which approval has been given, such approval and exemption must forthwith be withdrawn. All these cases are disposed of making it clear that revenue is at liberty to pass fresh orders if such necessity is felt after taking into consideration the various provisions of law contained in Section 10(23C) read with Section 11 of the Income Tax Act. - Decided in favour of assessee.
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2016 (6) TMI 535
Refund of tax paid due to loss brought forward - losses for the earlier year could be decided only after final decision by the tribunal that Royalty was not taxable - Held that:- The assessee agreed to said royalty income being substantially taxed in the assessment year 1996-1997. This communication dated 21.4.2002 was made by the assessee after the Commissioner(Appeals) dismissed the appeal and confirmed the addition made by the Assessing Officer. The department acted on such request of the assessee, deleted the protective assessment for the year 1997-1998 and adjusted the refund for the assessment years 1997-1998 and 1998-1999 against the tax demand of ₹ 3,76,74,095/-. Under no circumstances, the assessee can resile from such position and now claim that the entire amount of ₹ 4,94,20,595/- should be deleted from the income also for the assessment year 1996-1997. Quite apart from the principle of estoppal acting against the petitioner, one must realise that the petitioner is in a writ petition which is entirely a discretionary remedy. When we find from the facts that the petitioner has no basis for contending that the income of ₹ 4,94,20,595/- of royalty cannot be in law taxed for the assessment year 1996-1997, merely because the Assistant Commissioner of Rajkot passed an order which in plain terms baffles us and on closer scrutiny is not what the Tribunal ever directed, we would certainly not be persuaded to grant relief to the petitioner for sum of ₹ 4,94,20,595/- with interest which even otherwise is not due to it.
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2016 (6) TMI 534
Mesne profits - capital or revenue receipt - whether the Tribunal was correct in holding that mesne profits, cannot be part of book profit u/s. 15JB, as it was held as capital assets? - Held that:- The Special Bench of the Tribunal in Narang Overseas Pvt. Ltd., (2008 (2) TMI 817 - ITAT MUMBAI ) held that the same is capital in nature. There is no doubt that the issue arising herein is also with regard to the character of mesne profits received by the RespondentAssesse. In this case also, the amounts are received by the RespondentAssessee from a person in wrongful possession of its property i.e. after the relationship of landlord and tenant has come to an end. Once the Special Bench order of the Tribunal in Narang Overseas Pvt. Ltd., (supra) has taken a view on the character of mesne profits, then unless the Revenue challenges the order of the Special Bench of the Tribunal it would be unfair of the Revenue to pick and choose assessees where it would follow the decision of the Special Bench of the Tribunal in Narang Overseas Pvt. Ltd., (supra) The least that is expected of the State which prides itself on Rule of Law is that it would equally apply the law to all assessees's. No substantial question of law. - Decided against revenue
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2016 (6) TMI 533
Levy of penalty under section 158BFA (2) - Cash Found and Jewellery - Held that:- It is now a settled issue that penalty under section 158 BFA is not automatic and cannot believe levied merely because the addition has been confirmed. On both the two additions above it is apparent that had the assessee produced the cashbook as well as the withdrawal of cash in the hands of those company where ₹ 448299 was an opening balance and the withdrawal of cash is from bank, perhaps the addition would not have been sustained. Cashbook produced before the lower authorities evidently proves that there was cash on hand available with the assessee from the company of which assessee is one of the director. Further the balance cash on hand the hands of the assessee’s parents as well as on the bedroom of the assessee is also covered by the amount of cash on hand with that company. Further, this explanation was already available by letter dated 27/09/2002 filed before the Deputy Director of Income Tax ( investigation). Similarly, the explanation for the jewellery found was also given vide same letter . Therefore, though the additions have been confirmed on the basis that this is an afterthought but merely because the addition has been confirmed, the penalty under section 158BFA , which is not automatic, cannot be levied. Therefore, on the merits on both the above additions we delete the penalty. According to the provisions of section 158BFA (2) the assessing officer is required to work out 100 % of tax sought to be evaded on account of the undisclosed income and also maximum penalty leviable at 300% of the tax on undisclosed income and then levy penalty between theses limits. In the present case, the penalty has been levied on the amount of undisclosed income without providing any working of maximum and minimum penalty leviable. Therefore, on this ground also the penalty order is vitiated. - Decided in favour of assessee
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2016 (6) TMI 532
Disallowance of demolition expense - non business expenses - Held that:- The demolition expenses were incurred by the assessee company to remove illegal structure in the portion of the plot of land granted by Collectors office in favour of the assessee company in 1968 as set out in SOF above and in our considered view, this is a normal business expenditure although it is incurred through chartered architect which was reimbursed by the assessee company. Hence, we hold merit in the contentions of the assessee company and allow the expenses incurred by the assessee company as business expenses through its architect paid to BMC towards demolition of illegal structure on its plot of land. We donot find any merit in the contentions of the Revenue as on the one hand development expenses and evacuation expenses with respect to the same piece of land was allowed by learned CIT(A) as business expenses , which orders of the learned CIT(A) is not contested by the Revenue as no second appeal is filed by the Revenue against the orders of learned CIT(A) before the Tribunal , and merely because the receipt for demolition expenses for demolishing the illegal structure on the same piece of land is in the name of the architect, the same cannot be held to be non-business expenses and disallowed by the Revenue. - Decided in favour of assessee Disallowance u/s 43B - Held that:- The Revenue failed to bring on record provisions of any law in force under which this liability of sharing of 50% unearned increase in the land on sale or transfer with the Government can be crystallized or fastened on the assessee company , rather it is a contractual liability arising from contract between the two contracting parties viz. the assessee company on the one hand and Government on the other hand through Collector. In our considered view, the afore-stated amount of ₹ 4,55,422/- stated to be payable towards unearned increase in the plot of land in the event of sale or transfer vide clause 2(g) of Schedule II of the agreement dated 03-07-194 entered into by the assessee company and Additional Collector of Bombay for grant of land in favour of the assessee company is not hit by provisions of Section 43B of the Act as the liability has not arisen on account of any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force , but the liability has arisen out of the contract between the two contracting parties and not arising out of any law in force. Thus, we hold that this amount stated to be payable of ₹ 4,55,422/- to Collector towards unearned increase in the land on sale of reversionary rights in the plot is not hit by provisions of Section 43B of the Act. There is another aspect to this issue which also needs to be dealt with is with respect to the verification of the computation of ₹ 4,55,422/- as computed by the assessee company, i.e. whether or not a correct amount of liability albeit not paid which has accrued and crystallized in favour of the Collector vide agreement dated 03-07-1964 with respect to the sale of reversionary rights in the two plots and hence limited verification is required to be done by the Revenue on the computation of working of ₹ 4,55,422/- which has been produced before us as the authorities below have not accepted the claim of the assessee company of ₹ 4,55,422/- being payable to the Collector and allowed the actual amount of ₹ 64890/- paid to the Collector which was computed by the Architect vide working enclosed in paper book page 44-45 filed with the Tribunal . Accordingly, we set aside and restore this issue to the file of the A.O. with limited direction to verify the computation of the working of the unearned increment of ₹ 4,55,422/- made by the assesseee company with respect to the sale of the reversionary rights in the two plots by the assessee company and corresponding existence of liability of the assessee company to the tune of ₹ 4,55,422/- in favour of the Collector in accordance with the agreement dated 03-07-1964 .
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2016 (6) TMI 531
Allowance of consultancy and advisory services - non setting up of business - Held that:- In the instant case under appeal, the project for manufacturing and supplying of locomotives has not yet been set up , while only preparatory steps are taken by the assessee company by bidding for award of the contract by Rites Limited , Ministry of Railways in favour of the consortium partners which included assessee company also for setting up manufacturing facility at Marhowra, Bihar for manufacture and supply of locomotives to Indian Railways whereby bid documents has been filed with Rites Limited , Ministry of Railways and these expenses of ₹ 1,35,74,240/- paid to BMR on consultancy and advisory services in connection with this Indian Railway project are merely preparatory expenses incurred by the assessee company prior to setting up of business and hence cannot be allowed as revenue expenditure in the hands of the assessee company. Looking into all these facts and circumstances of the case we find no infirmity in the order of the ld. CIT(A) and we uphold and sustain the same for the reasons as indicated above. We order accordingly. - Decided against assessee
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2016 (6) TMI 530
Priority of Adjustment of business loss against the Long Term Capital Gains and interest income - contention of the assessee company for adjustment of business loss first against the interest Income and then against the Long Term Capital, thereby leaving only LTGC to be taxed at 20% as applicable on it - Held that:- Section 71(2) makes it clear that in respect of any assessment year, when the net result of the computation under any head of income, other than ‘Capital gains’, is a loss and the assessee’s income is assessable under the head ‘Capital gains’, the assessee would be entitled to the set off such loss against his income, assessable for that assessment year under any other head including income assessable under the head Capital gains’. The Section does not states that the business loss has to be adjusted first with particular head of income. In respect of any assessment year, when the net result of the computation under any head of income, other than ‘Capital gains’, is a loss and the assessee’s income is assessable under the head ‘Capital gains’, the assessee would be entitled to set off such loss against his income which is assessable for that assessment year under any other head including income assessable under the head ‘Capital gains’. The ITAT, Pune Bench decision in case of Coated Fabrics (P.) Ltd. Vs. JCIT [2006 (1) TMI 228 - ITAT PUNE-A] is applicable in the present case as facts are similar in both the matter as relates to whether option is available to an assessee for set off of any head of loss against any head of income including capital gain assessable for that assessment year. The said question was answered in favour of the assessee therein. The CIT(A) while dismissing the appeal of the assessee, mis- interpreted the said order of the Appellate Tribunal which is binding on the CIT(A) and has to be followed by the CIT(A) being superior appellate authority. - Decided in favour of assessee
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2016 (6) TMI 529
Disallowance u/s 14A r.w.r 8D - Held that:- From the records, we find that the assessee’s own fund comprising the share capital and reserves were to the tune of ₹ 20,06,22,262/- vis a vis the investments in shares of ₹ 11,12,76,771/- and the loan funds were ₹ 5,19,09,835/- at the year end. Thus ,it is amply clear from the above facts that the assessee’s own funds were far more than the value of investments in shares and there is merit in the submissions and arguments of the ld. counsel of the assessee that disallowance under rule 8D (2)(ii) of ₹ 13,99,868/- was not justified. Further, the case of the assessee is fully covered by the decision of the jurisdictional High Courts. In the case of CIT V/s RELIANCE UTILITIES AND POWER LTD. [2009 (1) TMI 4 - BOMBAY HIGH COURT ] it has been held that if both funds are available with the assessee i.e. interest bearing funds and interest free funds then the presumption would arise that investment made would be out of interest free funds available with the company, if the interest free funds are sufficient to meet the investments. So far as the addition made under rule 8D(2)(iii) is concerned, the assessee company has demonstrated before us that the AO has completely ignored the facts of strategic investments of ₹ 1,36,65,695/- in the associate concerns which were intended not for the purpose earning gain or tax free income but to acquire the control over those concerns. A working of the disallowance under section 14A r.w.r 8D was also filed by the assessee which was arrived at after reducing the amount of investments in strategic concerns ₹ 1,36,65,695/- and investment in growth scheme of Mutual funds ₹ 8,15,61,466/- as on 31.3.2008 from the total value of investments of ₹ 11,12,76771/- and thus the disallowance u/s 14A r.w.r.8D 2(iii) was worked out at ₹ 60,809/- which is in our opinion is the correct amount of disallowance. In view of the above facts we direct the AO to delete the addition of ₹ 13,99,868/- as made u/r 8D(2)(ii) and ₹ 2,92,780/- as made u/r 8D (2)(iii). - Decided partly in favour of assessee.
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2016 (6) TMI 528
TDS u/s 194I - non deduction of tds on lease premium paid to Pimpri Chinchwad New Township Development Authority (PCNTDA) - demand raised under section 201(1) and 201(1A) - Held that:- The issue arising in the present appeal before us is identical to the issue before the Tribunal in ITO vs. Camp Education Society (2014 (10) TMI 902 - ITAT PUNE) and following the same parity of reasoning, we hold that the assessee is not liable to deduct tax at source out of the lease premium payments paid to PCNTDA. Accordingly, we uphold the order of the CIT(A) in holding that the lease premium paid by the assessee was outside the purview of section 194I of the Act and the Assessing Officer was not justified in raising the demand under section 201(1) of the Act and charging interest under section 201(1A) of the Act. - Decided in favour of assessee.
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2016 (6) TMI 527
Validity of reopening of assessment u/s. 147 of the Act - Held that:- We are unable to agree with the contentions of the assessee with regard to the issue relating to validity of reopening of assessment. We notice that the assessing officer has received information from the investigation wing on the basis of search conducted by the sales tax authorities. The parties from whom the assessee has claimed to have purchased goods have admitted before the sales tax authorities that they have given only accommodation bills without actually supplying goods. In our view, this information received by the AO was sufficient to form belief that there was escapement of income. In our view, it cannot be said that the assessing officer has reopened the assessment in a mechanical manner. Accordingly we uphold the order of Ld CIT(A) passed on this issue. - Decided against assessee Addition of gross profit at 30% of non-genuine purchases - Held that:- AO has not given any basis for adopting the profit rate at 30%. Since the assessee was contending that the purchases were genuine one, it did not have an opportunity to advance its arguments with regard to the rate of 30% adopted by the AO. Accordingly, we are of the view that the assessee should be provided with an opportunity to advance its arguments on the rate of profit estimated by the AO. Accordingly we set aside this matter relating to estimation of profit from bogus purchases to the file of the AO with the direction to decide the same afresh, after affording opportunity of being heard to the assessee. The order of Ld CIT(A) passed on this issue stands modified accordingly. - Decided in favour of assessee by way of remand.
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2016 (6) TMI 526
Validity of assessment u/s 158BD - Held that:- The provisions of sec. 158BD, in our view, contemplates that the satisfaction should be arrived in an objective manner by the AO of searched person and thereafter, he should hand over the relevant documents to the AO of other person. A careful reading of the letter dated 21.8.2000, referred above, would show that the AO of the searched person has merely given the facts relating to the admissions made by Shri Gyanchand R Madhani and further refers to the disclosure made on account of inflated expenses. While section 158BD refers to the undisclosed income , the AO did not refer to any undisclosed income emanating from the documents found during the course of search. The AO simply refers to the admission made in the sworn statement and also to the disclosure relating to incriminating documents, but not to the undisclosed income. It is pertinent to note that the admission made in the sworn statement taken u/s 132(4) of the Act is rebuttable one. Accordingly, we are of the view that the AO of the searched person has merely intimated the details of search proceedings to the AO of the assessee and the same, in our considered view, shall not constitute satisfaction about undisclosed income as contemplated u/s 158BD of the Act. Accordingly, we find merit in the contentions of the assessee on the legal issue. Accordingly, we hold that the satisfaction mandated u/s 158BD of the Act was not recorded by the AO of the searched person. In view of the above, we quash the assessment order passed by the AO. - Decided in favour of assessee.
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2016 (6) TMI 525
Disallowance of deduction of alleged accumulated unabsorbed depreciation of earlier years while computing the book profit for the purpose of section 115JB - Held that:- CIT(A) failed to justify why a different stand has been taken in this assessment year, where in the previous two assessment years, consistently, the AO has allowed reduction of unabsorbed loss/depreciation under clause (iii) of Explanation to section 115JB while calculating the book profit. In the Asstt.Year 2010-11, the AO has granted reduction. The order of the AO was sought to be revised by the ld.Commissioner by exercise of power under section 263 of the Act. However, the conclusions of the ld.Commissioner did not get approval from the Tribunal, and that order has been set aside. The assessment order in Asstt.Year 2010-11 has been restored. Considering all these factors in their setting as a whole, we are of the view that restructuring credits brought by the assessee to the profit & loss account against accumulated profit and loss/debit balance, while giving effect to the scheme sanctioned by the BIFR would not extinguish alleged loss and depreciation from the accounts of the assessee in actual terms. Such loss would be available to the assessee as per the accounts prepared under Part-II and III of Schedule-VI, and the assessee will be entitled to claim reduction of loss/unabsorbed depreciation, whichever is lower, from the book profit under clause (iii) of Explanation to Section 115JB, while making such computation for the purpose of section 115JB. We allow the appeal of the assessee and set aside the orders of the Revenue authorities on this issue. We direct the ld.AO to grant deduction of unabsorbed depreciation amounting to ₹ 27,36,90,817/- from the book profit under clause (iii) of Explanation to Section 115JB(2) of the Income Tax Act, 1961. - Decided in favour of assessee
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2016 (6) TMI 524
Eligibility of deduction u/s.80IB - interest receivable on trading - Held that:- Interest receivable on trading should also be treated as part of business profit on which deduction u/s 80IB has to be allowed. See CIT vs Vidyut Corporation [2010 (4) TMI 229 - BOMBAY HIGH COURT] and CIT vs Pratham Developers(2013 (8) TMI 112 - GUJARAT HIGH COURT ) - Decided in favour of assessee
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2016 (6) TMI 523
Long Term Capital Gains - sale of mutual fund units of HSBC Fixed Term Series 59 - options to pay tax on LTCG @20% or 10% with or without indexation - Held that:- The taxes are to be collected by the authority of law as per the mandate of the Act. Merely because the assessee has not filed the details of long term capital gain in the return of income filed with the Revenue , the assessee cannot be denied the benefit of provisions of Section 112(1)(a) of the Act read with the first proviso to Section 112(1) of the Act. The assessee being an individual is entitled to choose the option whichever is more beneficial to the assessee as are available u/s 112(1)(a) read with first proviso to Section 112(1) of the Act , provided other conditions are fulfilled. The assessee has right to choose to be taxed on long term capital gains arising from the transfer of HSBC MF either @ 20% after claiming the benefit of cost inflation indexation as provided in Section 112(1)(a) of the Act read with second proviso to Section 48 of the Act , to compute indexed cost of acquisition or indexed cost of improvement of the capital asset , or to be chargeable to tax @ 10% without adjusting the cost of acquisition or improvement with cost inflation index as per provisions of Section 112(1)(a) of the Act read with first proviso to Section 112(1) of the Act in the case of long term capital gain arising on transfer of listed securities or units or zero coupon bonds as applicable for the instant assessment year,provided other conditions are fulfilled. Thus, the A.O. is directed to allow the benefit of choosing the option to the assessee in accordance with the provisions of section 112(1)(a) of the Act read with first proviso to Section 112(1) of the Act , after verifying that all other conditions as stipulated under the Act for claiming the afore-stated benefits are duly fulfilled by the assessee. - Decided in favour of assessee
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2016 (6) TMI 522
Determination of ‘Permanent Establishment’ (PE) - whether the computation of period of stay of the different projects carried out by the assessee at different sites of the assessee company is to be combined together for determining the period of stay and aggregate duration of period is to be seen or duration of execution of each of the projects is to be examined separately to test the time limit of 9 months, as stipulated in Article 5 - Para 2(i) of Indo-Mauritius Double Taxation Avoidance Agreement? - Held that:- As only one project was carried out during the year i.e. contract number D4522, the duration of which was for 3 months only. Thus, in view of legal position as has been decided by the Tribunal in assessee’s own case as well as on the facts of the year before us, we find that the assessee had no PE in India in the year under consideration in terms of Article 5(2)(i) of the Act Indo-Mauritius treaty. Thus, we do not find any force in the ground raised by the Revenue and uphold the factual findings of Ld. CIT(A), respectfully following the order of the Tribunal for assessment year 1997-98. Thus, grounds raised by the Revenue are dismissed. - Decided in favour of assessee Indian liaison office of M/s McDermott ETPM East Inc., Dubai - whether a separate legal entity, constituted a permanent establishment of the assessee in India? - Held that:- PE of the assessee should be determined, keeping in view work carried out at its project sites. We have already held that on the basis of facts before us the work duration was less than 9 months. Thus, in our view, since the project of the assessee did not have work duration of more than 9 months during the year as per the facts brought before us as discussed in detail in earlier part of the order, an activity of the maintenance of back-up cum support office ‘simpliciter’ shall not constitute ‘PE’ of the assessee. - Decided in favour of the assessee Insurance receipts taxable u/s 44BB - Held that:- In view of the aforesaid legal position, we hold that the said amount can be brought to tax only if the assessee has a PE in India for the concerned project. But the facts brought before us were not complete and clear. Further, there is no clarity as to the fact whether impugned receipts were with regard to which project and pertain to which period and whether the said project constituted a PE in the impugned period or not. The assessee has admitted the legal position that in case work duration of a project exceeds 9 months, then income from the said project would be liable to be taxed u/s 44BB. Therefore, we remit this issue back to the file of the AO to examine complete and correct facts. If these receipts pertain to project which did not constitute any PE in India then these receipts would not be taxable. In the case said project constituted a PE in India at the relevant point of time then AO is required to find out further whether the expenses/cost (for which recovery has been made by way of impugned insurance claim) were claimed as expenses or not. In case no claim was made of the expenses, then recovery thereof cannot be brought to tax at this stage Taxing amount received by the assessee primarily on account of discount earned, exchange gain and miscellaneous income - Held that:- We have decided an identical issue in ground no 2 of A.Y. 1998-99 ( in the assessee’s appeal) wherein the issue was sent back to the file of the AO for verification of facts for determination of PE of the related projects. We find it appropriate to send this issue also back to the file of the AO. The AO shall verify the requisite facts taking guidance from our order of A.Y. 1998-99 and the directions contained therein shall apply mutatis mutandis. With these directions, the issue is restored back to the file of the AO. Levy of penalty u/s 271(1)(c) - Held that:- It is noted that the issues involved in the quantum appeal have either been allowed in the quantum appeal or these have been sent back to the file of the AO for verification of requisite facts. Thus, penalty is deleted on those additions which have been deleted in the quantum appeal. For the remaining issues which have been sent back to the file of AO, the penalty order does not survive as on date, and therefore, the same is set aside. The AO is free to initiate and levy the penalty as per law, if and as and when any addition is made in the fresh assessment order as may be passed by the AO, in pursuance to our directions Tax amount of the invoice raised to M/s Engineers India Ltd., which was not accepted by the said company - Held that:- It is an accepted proposition that under mercantile system of accounting any income or expenses is taken into consideration on the basis of its accrual irrespective of its actual receipt or payment, as a case may be. But, what is important is that income/expense must first be accrued. If an income does not even get accrued, the same cannot be brought to tax merely on unilateral action taken by the assessee by mere issuing of an invoice. It is noted from the facts before us that invoice raised by the assessee has not been even accepted by the said party. There is nothing to show that whether the work for which invoice was raised has been accomplished or not and was accepted as such by the said company. Under such circumstances, there are serious doubts if at all if accrual of the income has taken place. The law in this regard is well settled law that mere making of a claim of income which does not give rise to any enforceable right does not result into any income. Though the position of law in this regard is clear, but in absence of complete facts before us we are not able to conclude this issue at this stage. We find that both of the lower authorities had dealt with this issue in highly surreptious and non-speaking manner. Under these circumstances, we find it appropriate to send this issue back to the file of the AO who shall take guidance from the observations given by us in this order. The assessee shall also bring on record complete facts with regard to the subsequent developments that might have taken place with regard to realization of the amount of the invoices from the said party, for which AO shall grant adequate opportunity of hearing
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2016 (6) TMI 521
Disallowance of deduction for interest paid by the assessee on its borrowing from HDFC Bank - advancing money for purchase of property - nexus with business - Held that:- The objects in the Memorandum of Association are clearly in favour of the impugned transaction and establish a direct nexus between the business of the assessee and the advancing of money. Our view is also fortified with the financials of the assessee in as much as in the Balance Sheet under the Head “Stock-in- trade” there is a balance of ₹ 880,083,323/- which includes building of ₹8,38,915,200/-. These figures are exhibited being Balance Sheet and its schedules for the year ending 31.03.2002. These factual datas clearly show that assessee is very much in business in the real estate and showing the same as stock-in-trade in its Balance sheet. Even in its Profit and Loss account, the assessee has shown ₹ 63,46,92,800/- as sale of building & forfeiture receipts. Our aforementioned factual observations clearly show that the revenue authorities have grossly erred in not accepting assessee’s contention that is one of the businesses is in real estate. The Tribunal in the first round of litigation has directed the assessee to establish direct nexus between the advancing of money to SSKI and its commercial expediency. In our understanding of the fact, as mentioned elsewhere, the assessee has successfully discharged its onus and has complied with the directions of the Tribunal. We set aside the findings of the ld. CIT(A) and direct the A.O. to delete the additions - Decided in favour of assessee
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2016 (6) TMI 520
Addition on account of income from undisclosed sources - Held that:- We find that the payments have been made as per Collaboration Agreement and ledger account shows the amount of ₹ 21 lacs paid to the owner Sh. Hanwantbir Singh and the copy of construction account of the property No. C-550, Defence Colony, New Delhi in the books of M/s IG Builders and Promoters Pvt. Ltd. The assessee has not purchased this property directly from the owner but has only entered into collaboration agreement for construction of said property and thereby became the owner of 2nd floor and terrace on the 2nd floor of the said property C-550, Defence Colony, New Delhi. As the entire construction cost and amount of ₹ 21 lacs paid to the owner of the said property have been duly reflected in the books of accounts of the assessee. Therefore, Ld. CIT(A) has rightly held that AO was not justified in making the addition of ₹ 91 lacs as income from undisclosed sources and accordingly deleted the addition.
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2016 (6) TMI 519
Rate of commission on accommodation entries - Held that:- Assessee buys bogus purchase bills and also sales bogus purchase bills. As already stated by the assessee that he is earning commission from bogus entries of issuing sales bills and then he is also buying purchase bills from one Sh. Vaivab Jain therefore he may also be incurring some cost out of that. Further the assessee is also doing this business through many brokers as per para no 3.1 of the assessment order and there might be some cost of those brokers also. Further, in the statement assessee has also submitted the comparative rate of brokerage being charged by other brokers which is also in the range of 0.25% to 0.75%. Further assessee is issuing the bills of goods and also receiving the bills of those goods which are fictitious. As these bills are fictitious to prove their genuineness before VAT authorities assessee need to make payment of VAT or CST. For this assessee submitted the purchase ledger as well as the bank book. Accordingly to the VAT laws it was submitted by the assessee that he has to calculate input VAT and output VAT and pay the differential VAT. The difference between the cheque amount and net amount should also take care of all these nitty gritty of the accommodation transactions. In view of above facts we are of the view that ld CIT(A) has applied correct estimate of rate of commission income @2% which is reasonable and appropriate looking to the facts and circumstances of the case. In view of this we confirm the finding of the ld CIT(A) for all these years i.e. AY 2007-08, to 2009-10. Coming to cross objection filed by the assessee which is against the confirmation of addition by the ld CIT(A) of 2% of the commission on accommodation entries. While deciding the appeal of the revenue we have provided reasons that why CIT(A) is correct in estimating the commission income of the assessee @2% and thereafter granting deduction of 0.5% of the commission income as expenditure. For the same reasons we dismiss the cross objection filed by assessee for all the years. - Decided against assessee.
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2016 (6) TMI 518
Assessment of jurisdiction u/s.153A - agricultural income - Held that:- There is no allegation that these lands were kept idle and no agricultural operation was carried on by the assessee. Considering the vast area of agricultural land owned by the assessee and agricultural operations carried on by the assessee, it is not possible to hold in all assessments completed u/s.143(3) r.w.s.153A of the Act, the assessee’s income not from agricultural income and it is from other sources as there is no evidence found during the search to say otherwise. Hence, in our opinion, when no incriminating material found at the time of search to suggest that the assessee shown nonITA agricultural income as agricultural income and arbitrarily disallowing the same by the AO and confirming the CIT(A) at 50% of that disallowed by the AO, is not justified. Accordingly, the agricultural income declared by the assessee has to be accepted in toto. This ground in all these appeals of the assessee is allowed and the ground raised by the Revenue in all its appeals are dismissed. Addition towards difference in turnover between the seized material and turnover declared in the finance statement - main plea of the assessee is that the turnover mentioned in the seized material does not tally with the books of accounts as on the date of search, since it requires reconciliation - Held that:- The observation of the CIT(A) is that the assessee has not reconciled properly while completing the proceedings before him. The assessee filed above statement reconciling the turnover in seized material with the books of account maintained by the assessee. In the interest of justice, it is appropriate to go through it by the AO, decide the issue afresh. Accordingly, the issue relating to addition towards difference in turnover between seized material and turnover with books of accounts is remitted back to the file of ld. Assessing Officer for fresh consideration after giving adequate opportunity of hearing , the AO shall decide the issue afresh. Addition made in respect of income from sale of agricultural land by treating it as real estate business - Held that:- It is an admitted fact that the land was held by the assessee as a capital asset from the date of purchase till the date of sale. There is no evidenced brought on record by Revenue to show that the land was held by assessee as stock-in-trade. The mere circumstances that a property is purchased in the hope that when sold later on it would leave a margin of profit, would not be sufficient to show, an intention to trade at the inception. In a case where the purchase has been made solely and exclusively with the intention to resell at a profit and the purchaser has no intention of holding the property for himself or otherwise enjoying or using it, the presence of such an intention is a relevant factor and unless it is offset by the presence of other factors it would raise as strong presumption that the transaction is an adventure in the nature of trade. Even so, the presumption is not conclusive and it is conceivable that, on considering all the facts and circumstances in the case, the court may, despite the said initial intention, be inclined to hold that the transaction was not an adventure in the nature of trade. The presumption may be rebutted. In the present case, considering the facts and circumstances of the case it cannot be considered as an adventure in the nature of trade. The intention of the assessee from the inception was to carry on agricultural operations and even there was no intention to sell the land in future at that point of time. It was due to the boom in real estate market came into picture at a later stage, the assessee has sold the land. Merely because of the fact that the land was sold for profit, it cannot be held that income arising from the sale of land was taxable as profit arising from the adventure in the nature of trade. The period of holding should not suggest that the activity was an adventure in the nature of trade. Further, we make it clear that when the land which does not fall under the provisions of section 2(14)(iii) of the IT Act and an assessee who is engaged in agricultural operations in such agricultural land and also being specified as agricultural land in Revenue records, the land is not subjected to any conversion as nonagricultural land by the assessee or any other concerned person, transfers such agricultural land as it is and where it is basis, in such circumstances, in our opinion, such transfer like the case before us cannot be considered as a transfer of capital asset or the transaction relating to sale of land was not an adventure in the nature of trade so as to tax the income arising out of this transaction as business income. Levy of interest u/s.234A & 234B - period of charging of interest - Held that:- The period of charging of interest should be from the date of determination of income under section 143(1) or 143(3) to the determination of enhanced income under section 143(3) r.w.s. 153A of the Act.
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2016 (6) TMI 517
Exemption u/s 11 - Investment in shares in a Private Limited Company - Held that:- Investment in shares in a Private Limited Company if made out of the profit of business then the exemption benefit shall not be denied to the assessee. In the instant case the assessee claimed to have made the investment out of the fund representing the profit and gains of assessee’s business and the Ld. DR failed to bring anything on record contrary to the point of argument of the ld. AR. Accordingly, in our considered view, we find that there is no violation of the provisions of Section 13 of the Act and the assessee is entitled for exemptions under section 11 of the Act. We also find that the Private Limited Company was formed for the furtherance of the objects of the assessee and both the societies were the shareholders in the company. None of the Director had any substantial interest in the company. The members of the assessee society were the directors only in the representative capacity in the company. Therefore, in the instant case benefit under section 11 of the Act cannot be denied. Similarly, we also find that the assessee has been claiming the exemptions benefit under section 11 of the Act for the last several years but the same was not denied therefore in our view principle of consistency should be applied in the instant case. - Decided in favour of assessee.
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Corporate Laws
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2016 (6) TMI 538
Winding up petition petition - non existence of bonafide disputed debt - Held that:- Considering the the record of the petition, including the statutory notice and the reply given to the earlier notice by the respondent Company, affidavits, counteraffidavits it appears that the debt is not an admitted debt and bonafide disputes are raised by the respondent Company and on the basis of the aforesaid, it cannot be said that nonpayment of bonafide disputed debt would amount to “neglect to pay” so as to make liable under sections 433 and 434(1)(a) of the Act and thus, the present case would not fall under sections 433 and 434 of the Act eligible for winding up. It further transpires from the record of the petition that the respondent Company is a going concern and it cannot be said that the respondent Company has lost its financial substratum.
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Central Excise
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2016 (6) TMI 545
Cenvat Credit - sending inputs for job work - availing Cenvat credit on nylon granules which are inputs for manufacture of bobbins - whether the goods sent to the job worker had been returned after process. The same could have been cross verified for a finding on fact with production records etc. Held that:- Appellant in the first round of litigation itself, submitted the full production details of bobbins and their further use in their manufacture. Originally, the recovery of Cenvat credit was mainly sought to be made on the ground of not following proper procedure for sending the goods for process by job workers. This issue has already been discussed and requires no further reiteration that there is no general rule about the point whether procedural lapse, if any, could contribute to denial of a substantial benefit. In the present case when the matter was remanded for a third time adjudication, it is expected on the part of the Original Authority to conduct a cross verification of other material evidence like usage of bobbins by the appellant, documents, if any, available at the job workers side to corroborate the job work and return of goods etc. A one line finding to the effect that party failed to produce record hence he is denying Cenvat credit is not legally sustainable. All the records available in the factory premises have been resumed by the visiting officers. Further, it is the Department which is making allegation of non-receipt of job worked goods back to the appellant, necessarily certain more verification is required to support such assertion. As the lower Authorities did not adhere to the remand direction by the Tribunal to the full extent which is basically to find out the correct facts of the case. Any further remand will not serve any purpose. As such the original order as upheld by the impugned order is not sustainable. Therefore, the impugned order is set aside. - Decided in favour of appellant
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2016 (6) TMI 544
Clearance of goods to sister establishment - Non reversal of credit on such goods before clearance - Held that:- It cannot be said that it is entirely revenue neutral situation. In given point of time, they had sufficient credit balance in their PLA, which was far greater than amount taken as CENVAT Credit is irrelevant as the two accounts are totally independent accounts and if the amount in the CENVAT Credit is utilized, it will only result in increase the availability in the PLA accounts. The show-cause notice alleged that the fact regarding clearance without payment of duty was not informed to the department nor mentioned in the monthly ER-1 returns to prove the intention to evade payment of duty of the said goods. We do not find any evidence from Revenue to support the assertion that the appellants were required to give this information in the ER-1 returns. The said ER-1 returns are not part of the relied upon documents. Furthermore, it has not been established as to which entry in ER-1 were wrong or erroneous. The Order-in-Original asserts that the appellant had not submitted the invoices on which credit has been availed to the department. However, they have not pointed out that in what provisions of law was it necessary to submit the said invoices. In fact during the said period, there is no requirement of submitting any invoices. The appellants are Public Sector Undertaking and in most of the clearances listed in the show-cause notice, the credit of the duty paid was admissible to the refund unit and the situation was revenue neutral. Imposition of penalty is non justified. - Decided partly in favour of assessee.
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2016 (6) TMI 543
Admissibility of refund under Rule 5 of the Cenvat Credit Rules, 2004 against the supply of final product to SEZ - lower authority rejected the refund claim of the accumulated Cenvat Credit under Rule 5 on the ground that supplies made to SEZ is a deemed export, not a physical export - Held that:- From the statuary provisions under the SEZ Act 2005 and SEZ Rules 2006, it is clear that supplies made to SEZ are considered as exports. Therefore, all the benefits provided for exports under Foreign Trade Policy, Central Excise Act and Customs Act & Rules, made thereunder shall be applicable to supplies made to SEZ unit also. It is clear that in respect of supplies made to SEZ unit; it shall be eligible for all the benefits available under the Central Excise Act, 1944 and rules thereunder. Accordingly, the appellant is entitle for the refund under Rule 5 of CCR, 2004. The appellant is legal by entitle for the refund under Rule 5 of Cenvat Credit Rules, 2004. - Decided in fovour of assessee
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2016 (6) TMI 542
Clandestine removal - What is the effect of non-production by the Department of the original records RG-1 and RT 12 returns to the Tribunal - statements recorded from the proprietor and the authorized signatory and the loose sheets recovered during such operation - Held that:- the Authenticity was doubted due to their non-availability at the time to search and their submission belatedly at the time of recording of statement of proprietor on 01.08.2003. There is no submission by the revenue regarding the fact whether any cross verification with these statutory records were made by the officers during investigation. It is also not clear when these statutory records were taken over or perused by the department. Further, is to be noted while R.g.1 entries were discussed in the Tribunal’s order, the authenticity of entries in RT-12 periodical returns were not subjected to analysis. These returns are filed by appellant periodically with the Department. The question of their later manipulation does not arise as the original returns were to be with the Department only. Also the retraction of earlier statements were not made by affidavit or letter but by another statement dated 01.08.2003 recorded under section 14. Since it is the contention of the Revenue that statement recorded under section 14 is admissible as evidence and the contents therein are to be considered to arrive at a decision, it is necessary to take the statement dated 01.08.2003 also as admissible evidence subject to cross verification. Apparently, statement dated 01.08.2003 contradicts the earlier statements of inculpatory nature regarding clandestine removals. However, statement dated 01.08.2003 was made by the proprietor to explain the entries as made in the statutory records and returns in support of his claim about proper accounting and licit clearances. Therefore, in absence of original statutory records it will not be justifiable to arrive at a conclusion about the authenticity of the same. Any conclusion in this regard cannot be made by presumption or by reasoning. Accordingly, we hold that we are not able to arrive at a finding to interfere and to overturn the finding already recorded by the id. Commissioner (Appeals) based on the analysis of the contents of the statutory records. - Decided against the Revenue
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2016 (6) TMI 541
Valuation - Job worker - manufacture and clearance of intermediary goods to the principal manufacturer for manufacture of final goods - addition of 115% of the cost of production - Held that:- the appellant was related to the principal manufacturer as interconnected undertaking and covered by Section 4(3)(b)(i) of the CEA, 1944. Such a case fundamentally goes out of the scope of Rule 9 of Valuation Rules because that rule does not cover the interconnected undertaking within its fold. Therefore, there is no necessity to examine even applicability of the proviso in the present case. Since the case falls under Section 4(3)(b)(i) of CEA, 1944, valuation it goes to Rule 10 (b) of the Valuation Rules. That sub-clause of Rule 10 requires valuation of goods under Section 4 (1) of CEA, 1944. Accordingly, the sequential step is to follow the ratio laid down in the case of Ujagar prints Etc.Etc. Vs. UOI & Others [1989 (1) TMI 124 - SUPREME COURT OF INDIA]. Such manner of valuation is not questioned by Revenue. Therefore, there is no need to go further since the assesse says that Ujagar prints procedure has been followed and Revenue totally ignored such aspect to be examined. Therefore, the Tribunal cannot make a new case to create jurisdiction for it to decide the issue not before it. Since the case is covered by Section 4 (3) (b) (i), the present appeal is answerable in terms of Rule 10 read with Section 4 itself. - Decided in favour of appellant with consequential relief
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2016 (6) TMI 540
Classification - appellants were engaged in the manufacture of refrigerating appliances and air conditioner machinery and equipment - excise authorities treted the products as electric fans falling tariff item 33 - Held that:- Order-in-Original as well Order-in-Appeal were passed on the presumption that the revisionary authority has finalised the assessment of the impugned goods as electric fan under Tariff Item 33(3). This observation in Order-in-Original as well Order-in-Appeal is incorrect as from the order of the Revisionary authority it is clear that the Revisionary authority had not classified the impugned goods under any heading but had left the issue regarding the classification open for adjudication. Even the Hon'ble High Court in its order has observed as that the government had left the issue open and had in fact remanded the matter back to the lower authorities to hear the matter afresh after issuing show-cause notice. From the above it is apparent that both Order-in-Original as well as Order-in-Appeal are based on a wrong premise. They could not have proceeded with the confirmation of demand without first classifying of the product as the demand of classification was remanded by the Revisionary authority. In view of the above the impugned order is set aside and the matter is remanded for fresh adjudication after classifying the product following the due process of law.
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2016 (6) TMI 539
Denial of cum-duty-price benefit in the computation of duty liability - non-payment of Central Excise duty by issuing invoices in the name of a fictitious firm - whether the Appellants are eligible to cum-duty price benefit in computation of demand for clearance made through their another Unit viz. M/s Tekni Enterprises? - Held that:- The Appellant’s case, in our view, fall within the Explanation-II to Section 4 of Central Excise Act, 1944 and covered by the aforesaid judgment of Meghdoot Gramudyog Sewa Sansthan [2010 (11) TMI 911 - CESTAT NEW DELHI] Accordingly, the learned Commissioner (Appeals|) has erred in denying the cum-duty-price benefit in computation of demand to the Appellant. In the result, the impugned order is set aside and the Appeal is allowed in favour of assessee
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Indian Laws
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2016 (6) TMI 537
Official Liquidator proceedings for sale of the remaining assets of the Company in liquidation - Held that:- The verification report in respect of claim raised by GIDC is taken on record. As far as prayers prayed for in para 17 (b), (c) and (d) are concerned, the Official Liquidator is permitted to initiate the proceedings of sale of immovable properties of the company situated at GIDC, Panoli and the upset price and Earnest Money as well as the schedule is fixed As far as prayer 17(e) is concerned, the OL is directed to file a fresh report stating further details and the balance amount in the account of the company under liquidation.
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