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Showing 501 to 520 of 984 Records
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2009 (7) TMI 897
Cenvat Credit- Circular No. 97/8/2007/ST, dated 23.08.2007- Whether the respondent is entitled for Cenvat Credit on service tax paid for outward transportation under goods transport agency services? Held that- the lower authorities have not given any finding on the parameter laid down in the circular No. 97/8/2007/ST, dated 23.08.2007 thus the remand back the matter to the original authority.
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2009 (7) TMI 896
Services received from outside India-Reverse charges- In the light of the judgment of Indian National Shipowners Association v. Union of India 2009 -TMI - 32013 - HIGH COURT OF BOMBAY Commissioner (Appeals) held that the recipient of the service has been provided service by the foreign service provider for which the respondent shall not be liable to pay tax prior to 18-4-2006 in respect of such services. Held that- stay application and appeal of the revenue is dismissed.
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2009 (7) TMI 894
Assessee carrying on the business of shares and stock broking, had purchased shares on behalf of and on instructions from its sub-broker - the assessee did not deliver those shares to the sub-broker. However, in the said year, brokerage was shown as income in the previous year relevant to AY 2001-02 in income-tax return, which was assessed as well. - for the assessment year 2001-02 assessee claimed deduction of the amount as “bad debt” under section 36(1)(vii), which it could not recover from the sub-broker - only because shares were not delivered for want of full payment, which was to be made by the sub-broker to the assessee, it cannot be said that there was no transaction between the parties - Shares remained in the possession of the assessee. Therefore, the assessee could sell the said shares in the market for whatever consideration it could fetch and that was to be adjusted against the balance amount of Rs.41,37,881 payable by the debtor, i.e., the sub-broker, to the assessee, before arriving at the actual figure of “bad debt”. This aspect has not even been looked into by the Income-tax Appellate Tribunal in its impugned order. – matter remitted for fresh consideration
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2009 (7) TMI 893
Concealment of Income – penalty – Assessee filed nil return claiming exemption u/s 10(29) – on assessment AO found that certain income is not allowed for exemption and assessed the income at Rs.1,81,93,618/- and propose to levy penalty under section 271(1)(c) of the Income Tax Act, 1961 – held that despite the fact that the respondent-assessee had filed a nil income tax return for the assessment year 1993-94, claiming exemption under section 10(29) of the Act, yet it had disclosed its entire income by, depicting clearly the various heads under which the said income had been earned. And as such, it was not as if the respondent assessee had “concealed the particulars of his income” or “furnished inaccurate particulars of his income” – Penalty is not leviable.
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2009 (7) TMI 892
Long-term capital gains on sale shares - assessee claimed exempted under section 54F of the Act - Information from the Deputy Director of Income-tax (Investigation), was received by the Assessing Officer regarding a bogus claim of long-term capital gains shown against sale/purchase of shares routed through bank account - Certain beneficiaries have taken accommodation entries by making the payment in cash and by accepting the equivalent amount by draft and cheque and certain premium was paid on that account - It was also revealed that no actual sale/purchase of shares had taken place - operator of the aforesaid account admitted that no genuine transactions of sale/purchase of shares have taken place through this account, and he received cash from beneficiaries deposited in the bank account then issued a cheque or draft to the beneficiaries - assessee submitted that transactions of sale of shares and the capital gain arising therefrom has been declared in the Voluntary Disclosure of Income Scheme – Held that:- no justification in giving one more opportunity to the assessee, in the light of the submissions made by the assessee before the Assessing Officer, where the assessee himself has made a submission that amount of capital gain on shares was declared under the Voluntary Disclosure of Income Scheme meaning there by that the transaction was not disclosed in the regular return, it was never the case of the assessee that the transactions of sale and purchase of shares transacted through M/s. R. K. Aggarwal & Co. were genuine and the amount deposited in the bank account cannot be considered to be unexplained money introduced by the assessee by way of depositing in her various bank accounts, order of the Commissioner of Income-tax (Appeals) in confirming the addition upheld Unexplained credit or loans - whether the Assessing Officer can make the addition on account of unexplained credit or loans taken – Held that:- It is not clear whether in the course of reassessment proceedings the Assessing Officer recorded any other reasons after having noticed that the income to the extent of Rs. 1,35,00,000 had also escaped assessment - additions were made in the absence of details or confirmation of loans furnished by the assessee - Commissioner of Income-tax (Appeals) has confirmed the addition for the assessee's failure to file any confirmation from respective creditors as well as copy of agreement for taking loans and advances from various companies - assessee has also submitted that the assessee was prevented by sufficient reasons and cause from furnishing necessary details as various litigations were running between the assessee and the lenders under section 138 of the Negotiable Instruments Act and other provisions matter remanded to Commissioner of Income-tax (Appeals), appeal filed by the assessee is partly allowed in the manner as indicated above.
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2009 (7) TMI 890
Fraudulent import - Revenue Intelligence an intelligence was received by the Officers of DRI indicating fraudulent importers are importing super bikes in India by first disassembling them abroad and importing the said disassembled bikes in consignments by declaring them as spare parts - value of the imported bikes which are till date connected to the applicant though are tentatively valued at Rs. 50 lacs it cannot be lost sight of the fact that as yet investigation is not over and hence gravity of the offence cannot be judged at this stage. Having regard to the fact that a racket is operating which is resulting in causing loss of revenue to the Government by evasion of customs duty in the peculiar facts and circumstances of this case, this is not a fit case for release of the applicant on bail. In the result application stands rejected.
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2009 (7) TMI 889
Provisional release –Car imorted - vehicular details are tampered – respondents contended that importer has nothing to do with the car and the duty payment has been made through illegal/Hawala channels, which require further investigation, importer has stated falsehood in his statement given under Section 108 of Customs Act, 1962 and has mislead the investigations – Held that:- When this Court indicated that if the petitioner is willing to provide bank guarantee for interim release of the vehicle, respondents were not justified in taking such an adamant stand. respondents directed to pay to the petitioner costs of this writ petition. Accordingly, the respondents shall pay an amount of Rs. 2000/- as costs to the petitioner, writ petition is disposed of with the above direction.
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2009 (7) TMI 886
Refund under Section 11B of the Central Excise Act - according to the Tribunal since the levy of duty was, not challenged by the Appellant(s) who claims to have taken over the operations from its predecessor, they were not entitled to claim refund - Assessee paid duty under protest for the period for which their claim is made. According to the appellants since the duty was paid under protest, Section 11B was not applicable - Held that:- Matter remanded to Tribunal to decide the correct status of each of the appellants before us vis-a-vis the erstwhile Corporation, appeals are disposed of
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2009 (7) TMI 884
Mis-declarion of value and quantity to evade customs duty - adjudicating authority imposed penalties under Sec. 112(b) of the Customs Act on the ground that respondents were dealing with the goods which were liable for confiscation. It was contended on behalf of the respondents that they were not aware about the nature of the goods – Held that:- Tribunal found that the case of Pawan Kumar Gupta is guilty under Sec. 112(b) of the Customs Act but on consideration of the totality of the facts and circumstances, the penalty imposed was reduced from 1.5 crores to 5 lakhs, Since he has already been found guilty under Sec. 112(b) of the Customs Act and penalty has also been imposed on him, no interference is called for. appeal filed against Pawan Kumar Gupta is also accordingly dismissed.
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2009 (7) TMI 883
Condonation of delay - delay of about 30 days - appellants received order on 29th September, 2008. They filed appeals on 28-1-2009 and gave papers to the consultant on 22-12-2008 which was within the time of filing the appeals. Thereafter, there was some delay in the office of the consultant. Once, the petitioner herein had taken steps, failure of the consultant ought not to result in denying to the petitioner’s a remedy of hearing especially when the delay is only of about 30 days - Held that:- order is set aside, Delay condoned.
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2009 (7) TMI 880
Revaluation loss - assessee has claimed loss on account of revaluation of closing stock of debentures and shares - assessee did not carry out any business in share trading in the financial year relevant to the immediately preceding assessment year - AO accepting the claim of the assessee for deduction on account of fall in value of shares and securities as reflected in the balance sheet. In the circumstances the claim of the assessee clearly reflected in the balance sheet and return of income and accepted by the AO cannot be said to be erroneous or legally unsustainable. As held by the Supreme Court in the case of Malabar Industrial Co. Ltd.(2000 - TMI - 5786 - SUPREME Court) Revision - Held that:- when two views were inherently possible and that ITO has taken one view then even if the CIT doesn't agree with the view taken by the AO, the assessment order cannot be treated as erroneous order prejudicial to the interest of the Revenue, unless the view taken by the ITO is unsustainable in law. Unless an assessment order is both erroneous as well as prejudicial to the interest of the Revenue, the CIT doesn't have jurisdiction to revise the assessment order under section 263. order of the CIT under section 263 is not sustainable in law and accordingly set aside, appeal of the assessee is allowed.
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2009 (7) TMI 878
Deduction under 80IB- Original return on time-Revised return invalid-Held that:-original return should be filed in time, but the claim need not necessarily be made in the original return, it can be made subsequent thereto - Goetze India Ltd.(2006 -TMI - 5171 - SUPREME Court) was limited to the power of the assessing authority to entertain claim for deduction otherwise than by a revised return, and did not impinge on the power of the Tribunal. The claim of deduction under section 80-IB can be made by the assessee before the appellate authorities. Since grounds relating to the deduction under section 80-IB were made before the appellate authorities, irrespective of whether it was claimed by the assessee before the Assessing Officer or not, or whether it was claimed through original return or revised return, the allowability of claim has to be adjudicated on the merits. - Since the learned Commissioner of Income-tax (Appeals) has not decided the issue on the merits, we restore the issue claim of deduction under section 80-IB before him to decide the same on the merits.
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2009 (7) TMI 876
Additions u/s 41(1) - deep freezer deposits - period of holding 5 to 10 years - The assessee after manufacturing ice cream is also marketing after appointing various dealers all over the region. For this, the assessee has purchased deep freezers for keeping ice cream and supplying the same to the dealers against deposits for deep freezers. The assessee treated this deep freezer deposits in the books of account as an asset and treated this as deep freezer deposits over all the years. - Held that:- provisions of section 41(1) of the Act cannot be applied to the facts of this case as the twin conditions as prescribed in section 41(1) the Act have not been satisfied, i.e., during the assessment year in question the assessee must have received some benefits by way of cessation or remission of liability and the amounts must have been allowed as deduction or allowance in respect of these expenditure or trading liability incurred by the assessee and that is not a case in the present fact. - the action of the Assessing Officer in treating the deep freezer deposits account at ₹ 11,60,000 as income of the assessee is against the provisions of the Act - Decided against the revenue.
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2009 (7) TMI 874
Undisclosed income - Cash Credit - satisfactory explanation - additions under section 68 - the explanation of the assessee in the present' case is that all these creditors are income-tax assessees and their PANs have been given along with their copy of bank account as well as proof of filing returns of income for the year, under consideration as well as preceding years, Whether by filing these evidences, it can be said that the assessee had discharged the initial burden laid upon him under section 68 - Held that:- ample evidences were produced by the assessee to discharge the initial burden. The AO has not brought any material on record to show that the explanation filed by the assessee was, in any manner, unsatisfactory. The evidences filed by the assessee remain unnrebutted. Therefore, addition could not be made under s. 68 of the Act .
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2009 (7) TMI 872
Rectification of mistakes - Interest on refund of self assessment tax - as per the Explanation as well as the decision in Modi Industries Ltd (1995 -TMI - 5478 - SUPREME Court). by the Supreme Court, the tax paid as self-assessment tax becomes a payment of tax pursuant to a notice of demand issued on adjustment against demand on assessment and accordingly the interest on the refund to an assessee out of self-assessment tax is to be granted under s. 244A of the Act - issue will be taken as debatable one on that ground and, therefore, the AO had no jurisdiction to rectify his earlier order dt. 7th June, 1999 in exercise of powers vested under s. 154 of the Act. - the notice under s. 154 issued by the AO on 6th June, 2000 proposing to withdraw the interest allowed as per order under s. 154 of the Act dt. 7th June, 1999 was illegal and bad in law. Regarding interest on interest on delayed refund - Sec. 244A grants interest only on that amount of refund that is out of the tax paid by the assessee or collected from him and not on the amount due to the assessee but withheld by the Revenue, such as interest due which though included in the amount of refund under s. 240 of the Act by virtue of certain decisions referred to above - it is held that assessee was not entitled to any interest on interest as it was not a case of the refund of amount out of any tax paid by or collected from the assessee nor it has a date of payment by the assessee from which it can run.
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2009 (7) TMI 870
Penalty u/s 271D - reasonable cause u/s 273B - Violation of section 269SS - Cash borrowings - Assessee-company is a builder and developer of lands. It is natural for it to look for purchase of lands which it can develop and make profits - assessee no doubt had a cash balance of above Rs. 12,00,000 in its books on 1st March, 2002, but apparently the market price of the lands was around Rs. 15 to Rs. 20 lakhs and therefore. the assessee, instead of using up the cash balance in its books and restricting the borrowing to a much lesser amount, resorted to borrowing the sum of Rs. 15 lakhs from N.K. Chemist in cash - Now there may be many ways in which a business deal can be put through and it is well-settled that essentially it is for the businessman to put a transaction through in the manner best suited to his interests - In these circumstances it appears to me that the assessee resorted to cash borrowing in violation of s. 269SS only because of the advantages which the ready cash back-up would give - Appeal is allowed
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2009 (7) TMI 868
Cenvat credit - Any material if used for producing or processing of any goods or and for bringing about any change in any substance for the manufacturer of final product would be “capital goods” and therefore qualify for availing cenvat credit - From the Clause (iv) of the said Rule, it is clear that for availing cenvat as capital goods the only requirement is that they should be used in the factory of production As regards the second issue, the same is now covered in favour of the assessee by the Larger Bench decision of the Tribunal in the case of ABB Limited & Ors reported in (2009 -TMI - 34139 - CESTAT, BANGALORE), laying down that credit on service tax paid on outward transportation of the final products is available to the assessee - Decided in favor of the assessee
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2009 (7) TMI 866
Sale of biscuits - Whether the Tribunal is justified in cancelling respondent’s sales tax assessment on the sale of biscuits under brand name under entry 17(i) of the first schedule of the KGST Act and directed assessment treating the biscuits as sold without brand name - Held that:- in fact the design, multicolour print and get up of the company’s name, namely ‘Ankit’ along with product name clearly indicate that they are exclusive brand name developed and used by the respondent - However biscuit is a unique consumer product with its taste and flavour varying with the manufacturers making it - Therefore unable to sustain the Tribunal’s order - Consequently S.T. Revisions are allowed by reversing the order of the Tribunal and by restoring the assessment - Appeal is dismissed accordingly.
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2009 (7) TMI 862
Deduction under section 80HHC - Once it is not in dispute that interest is received on the loans given to the employees it is difficult (sic) to come to the conclusion that such interest earning is nothing but a receipt in the course of normal business; it is a normal commercial practice to grant loans to the employees from time to time and any interest that the business concern earns on such loan cannot be an independent source of income in character - There are large number of decisions of this Tribunal holding that interest earned on advances to the employees is to be treated as integral part of business income - the interest earned on loans ought to have been treated as part of the business income for the purposes of computation of deduction under section 80HHC of the Act - Direct the Assessing Officer to modify the claim of deduction under section 80HHC of the Act.
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2009 (7) TMI 860
Reason To Believe - In this case, assessee filed the return in the status of registered firm on 30th Oct., 1998 declaring income at Rs. 2,09,570 for the year under consideration - In this case the different firms came together and constituted another firm through its representatives - Coming to the instant case of the assessee there is no case even for the Revenue that all the partners of both the firms were not the signatories of the larger firm - The agreement is in truth between three major members out of those who constitute the yarn shop and four outsiders - The reopening on the basis of a decision that was already existing at that point of time which was held to be ignorance of law could not be a ground for initiating reassessment proceedings - There was no escapement of income and, therefore, consequential reopening was also bad in law - Decided in the favour of the assessee
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9911796707
