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Showing 181 to 200 of 1441 Records
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2014 (2) TMI 1264
Disallowance made by the AO u/s.14A r.w.8D - Held that:- As the assessee had more funds at its disposal, in form of share capital and reserves, than the investment made during the year. Therefore, respectfully, following the orders of the Tribunal, for the earlier years, we confirm the order of the FAA for the interest expenses. As far as administrative expenses are concerned; following the order of the Tribunal for the earlier years; we direct the AO to restrict the same to 5% of dividend income. Grounds of appeal taken by the AO are allowed, in part.
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2014 (2) TMI 1263
Condition of pre-deposit - the appellant submitted that the deposit contemplated under section 129E of the Customs Act can be directed only in those cases where the duty or interest or penalty has been levied in respect of the goods which are not under the control of the Customs authorities. In this case, admittedly the Customs authorities are in possession of 270 bales of the goods. Out of those 270 bales, Mr. Chowdhury, learned Advocate pointed out that by the impugned order, 70 bales were released.
Held that:- in the facts and circumstances of the case, pre-deposit could not have been claimed or directed to be made. Therefore, the order to that extent is wrong and is set aside.
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2014 (2) TMI 1262
Applicability of sec.115JB on assessee bank - Held that:- Admittedly, the assessee has not challenged this issue in an earlier occasion before the Tribunal and stated that the assessee did not want to press the ground. After hearing both the parties, the Tribunal dismissed the ground raised by the assessee as not pressed. It means that the Tribunal adjudicated the ground and thereafter, the AO passed impugned consequential order, which is in consonance with the order of the Tribunal. Now, the assessee’s counsel wanted to re-argue the case, which is not permissible, as unless and until the earlier order of the Tribunal dated 19th March, 2010 is disturbed by any process of law. Therefore, the assessee is not at all at liberty to challenge the finding of the Tribunal in the second round of litigation by way of rearguing the issue, which has already been adjudicated by the Tribunal in an earlier occasion. It is a settled law that the Tribunal has no power to review its own order and, therefore, if the assessee wants to agitate the issue, which has already been decided by the Tribunal, the Tribunal has no power and remedy lies elsewhere. The case law relied upon by the AR in the case of Indian Oil Corporation Ltd. (1986 (8) TMI 57 - SUPREME Court) is nothing to do with the present case as it was delivered on different set of facts. - Decided against assessee.
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2014 (2) TMI 1261
Additional income brought to tax - survey operation - Held that:- The assessee has manipulated his claim of expenditure so as to offset the revenue effect of additional income of ₹ 15 lakhs offered by him in the course of survey. It is an undisputed fact that the amount of ₹ 15 lakhs was offered by the assessee as additional income over and above his regular income from the business. Therefore, it is not permissible for the assessee to dilute the said amount of additional income by overstating the expenditure.
In the facts and circumstances of the case, we find that the Assessing Officer has rightly made an addition of ₹ 15 lakhs and the same has to be sustained. We set aside the order of Commissioner of Income Tax (Appeals) on the issue of deleting the addition of ₹ 15 lakhs. - Decided in favour of revenue
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2014 (2) TMI 1260
Depreciation computation - capital subsidy reduction from the cost of machinery - Held that:- Capital subsidy is not required to be deducted from the cost of plant and machinery
Revenue v/s capital receipt - Held that:- Subsidy received as Excise duty reimbursement cannot be taken as revenue receipt
MAT computation - Held that:- AO is not entitled to add the above said two items to the book profit computed u/s 115JB of the Act. See assessee's own case [2014 (1) TMI 1747 - ITAT MUMBAI]
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2014 (2) TMI 1259
Seeking direction for expeditious completion for regular proceeding - Held that:- we do not find difference to such proposition since right to early justice is the right vested with the litigant. We hope that the learned Adjudicating authority shall expeditiously complete the regular proceeding. - Misc. as well as stay applications and appeal are dismissed
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2014 (2) TMI 1258
Eligibility - Chemical fertilizer mixture - Grant of exemption from the levy of turnover tax under Section 6B of the Karnataka Sales Tax Act - Notifications dated March 31, 1997, March 1, 1998, March 31, 1999 - Tribunal passed the order without considering the judgment of this Court as not a binding precedent in the case of Pali Chemical Industries, Nippani, Belgaum v. Additional Commissioner of Commercial Taxes, Zone I, Bangalore [2004 (11) TMI 545 - KARNATAKA HIGH COURT].
Held that:- discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. Therefore, the Tribunal should have kept in mind that the doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs, and, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.
Entry 11 defines what a chemical fertilizer is and what a chemical fertilizer mixture is. Both are distinct entries and so understood, as such exemption was granted only to chemical fertilizer. This benefit was not extended to chemical fertilizer mixture. Therefore, when the Legislature made a distinction between chemical fertilizer and chemical fertilizer mixture from the inception, a notification exempting from payment of turnover tax on chemical fertilizer cannot be extended to chemical fertilizer mixture. If that is done by the interpretation process, the court would be adding to the notification which the Legislature and the Government did not intend to.
The courts have no power to legislate, to add or to remove from the notification issued by the Government. When the Government notification specifically refers to the chemical fertilizer, there is no scope for interpretation also. In that view of the matter, we do not see any substance in the said contention. In fact, in the Pali Chemical Industries case (supra), the Division Bench, as stated earlier, has extracted the entries, examined the entire scheme of entry 11, followed the judgment of the apex court, looked into the very same notification and has placed interpretation, which, in our opinion, is also proper and correct. We do not see any justification to differ from the said interpretation and the judgment in Pali Chemical Industries' case (supra) equally binds this court. Therefore, the order passed by the Tribunal cannot be sustained. - Revision Petitions are allowed
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2014 (2) TMI 1257
Maintainability - reopening of assessment orders of various years - recovery of Commercial Tax under M.P. Commercial Tax Act, 1994 - entire process of assessment or reassessment has been undertaken and final orders of assessment has been passed during pendency of writ petitions before this Court - Held that:- the assessment officer has conducted the assessment proceedings and now as the assessment order has been passed the petitioner should take recourse of remedy available under the statute and file an appeal before the statutory independent appellate authority, as is indicated under Section 61 of M.P. Commercial Tax Act. The question as to whether the assessment has been done properly, whether proper opportunity of hearing has been granted to the petitioner, whether relevant documents are supplied or not are all questions which can be dealt with by the competent Appellate Board. On such consideration, indulgence of this Court exercising extraordinary jurisdiction in this petition under article 226 of the Constitution is not called for.
In a matter pertaining to assessment of tax, when the assessment order is based on scrutiny of account books, ledge, vouchers and other materials, the assessment being based on certain factual aspects of the matter, such questions can be more appropriately dealt with by the statutory Appellate Board than by a writ court under Article 226 of the Constitution. Therefore, the petitioner is given the liberty to challenge the order of assessment in accordance to provisions of M.P. Commercial Tax Act before the assessment Board. - Petition disposed of
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2014 (2) TMI 1256
Appeals not traceable with the registry - Held that:- We find that the files were not traceable and subsequently are reconstructed and transferred from Mumbai Bench and received on 27.01.2014 by this bench. Since the matter is of 1995, we allow the application filed by the Revenue and direct the registry to list the matter for disposal on 17.04.2014
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2014 (2) TMI 1255
Validity of Tribunal's order - Waiver of pre-deposit - Non-appearance of counsel of appellant - Order passed ex-parte as there was no application for adjournment and there many adjournments before to make pre-deposit a sum being entire amount of service tax demanded - Held that:- the case was adjourned for the purpose of furnishing certain materials. However, the nature of such materials is not placed before this Court. Be that as it may, the reason assigned for non-appearance, prima facie appears to be genuine in the absence of any rebuttal for the same. Therefore, in order to given an opportunity to the assessee and in the interest of justice, we deem it appropriate that the Tribunal should hear the assessee on merits on the miscellaneous application. Therefore, the impugned order is set aside and the matter is remanded back to the Tribunal. - Appeal allowed by way of remand
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2014 (2) TMI 1254
Recovery of dues - failure to deposit the amount on the ground that appeal has been filed - Petitioner contended that the impugned notice is based or founded upon circular dated 1st January, 2013, which has been quashed and set aside by different High Courts. Also the authorities cannot proceed to recover the amount when the same is the subject matter before this Court in the earlier writ petition.
Held that:- the petitioner had an opportunity to deposit the dues as indicated by this Court and having failed to do so, there is no impediment and fetter put on the department to proceed with the recovery of the said amount. The Rajasthan High Court in the case of Manglam Cement Ltd. v. Superintendent of C. Ex. Range-III, Kota [2013 (4) TMI 102 - RAJASTHAN HIGH COURT], categorically held that mere filing of an appeal does not operate as stay or suspension of an order appeal against. The interim order sought for was refused at the admission stage. Therefore, the petitioner cannot say that the authorities are denuded of its power to take steps for recovery of the amount. The petitioner has tried to demonstrate before this Court that certain observations were made when the earlier writ petition was taken up, which inevitably suggest that the Court was conscious of the situation that the authorities shall not take any coercive measures pending the said writ petition. Though this Court finds that the department cannot take advantage of a circular, which is already quashed and set aside by the High Court, but for reasons narrated above, this Court does not intend to interfere with the said recovery notice, even if the circular appears to be non est.
Furthermore if certain event has taken place and the observation is made by the Court orally, the same Hon’ble judge can only modify/clarify or indicate the happenings of such event and not by another judge or the higher forum. Since there is no interim order passed by the Court restraining the department from proceeding to recover the amount, the contemplation at the behest of the department for taking measures to recover the said amount cannot be faulted with. - Decided against the petitioner
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2014 (2) TMI 1253
Rejection of the reference by BIFR - Held that:- The Majority shareholder of the respondent is the majority shareholders of Anand Comforts Pvt. Ltd., which is also said to be carrying on a similar business as the respondent. The debts were cleared out of the sale proceeds of the personal assets of the wife of the Managing Director and also out of the personal borrowing of the Managing Director of the respondent-Company. The machinery is said to be in good condition and will be used in its business and that there are no debts except as aforesaid and even if there are any dues legitimately payable to any person, the respondent undertakes to clear the same. Hence, it is sought that the reference be rejected and the proceedings be closed.
As claimed on behalf of the respondent-Company, there are no substantial dues to be cleared except those mentioned hereinabove and therefore, on an undertaking to be filed by the respondent, by way of an affidavit and an Indemnity Bond to the effect that the amounts mentioned hereinabove shall be cleared in due course in terms as aforesaid, the reference is rejected and the proceedings stand closed. The affidavit and the Indemnity Bond shall be filed within a period of one week from today.
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2014 (2) TMI 1252
Arbitration and Conciliation - High Court has appointed/nominated an Arbitrator on behalf of the appellant herein on the ground that in spite of notice by the respondent in this behalf, the appellant had failed to nominate its Arbitrator in terms of Clause 25 of the Agreement entered into between the parties - Held that:- Setting aside the order of the High Court, we would like to give the following directions, in order to balance the equities:
(1) It shall be ensured by the appellant that final bill is settled by SCOPE within two months from the date of receiving the copy of this order. For this purpose, this order shall be brought to the notice of SCOPE as well so that SCOPE acts swiftly for settling the bill.
(2) In case there are certain claims of the respondent which are not agreed to while passing the final bill and disputes remain, those will be taken up by the appellant with SCOPE immediately thereafter by invoking arbitration between the appellant and SCOPE as per the arbitration agreement between the appellant and SCOPE. In raising such disputes the appellant and the respondent shall act in unison as per the understanding arrived at between them vide supplementary agreements. In that event, arbitral tribunal shall be constituted within 2 months thereof.
(3) In case the appellant is satisfied with the final bill and chooses not to raise the claims with SCOPE but the respondent feels that their claims are legitimate then it would be treated as dispute between the appellant and the respondent. In that event, arbitral tribunal shall be constituted as per Clause 25 of the agreement dated 3.3.1998 between the parties within a period of two months of that event.
(4) In either of the aforesaid arbitrations, the arbitral tribunal shall endeavour to render its award within six months from the date of the constitution of the arbitral tribunal.
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2014 (2) TMI 1251
Penalty u/s. 271(1)(c) - addition of income u/s. 2(22)(e) on deemed dividend - Held that:- Facts on record show that on the date of taking these advances, there was no approved plan of phase-II. The assessee could not furnish copy of plan of Phase-II put up for approval before the competent authority. Since no approved plan was available, there cannot be any question of allotting commercial space to these three companies. These facts were very much in the knowledge of the assessee yet the assessee chose to show these advances under the head 'current liability' as advances for commercial space. In our considered view, this conduct of the assessee clearly establishes the concealment of facts and filing of inaccurate particulars.
The assessee has concealed the true facts thereby filed inaccurate particulars. Therefore, we do not find any error or infirmity in the findings of the Ld. CIT(A). The penalty u/s. 271(1)(c) is leviable on the facts of the case - Decided against assessee
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2014 (2) TMI 1250
Permission to pursue the statutory remedy by way of appeal - Held that:- The law has already been declared by a Division Bench of Madras High Court exactly on similar circumstance as per the decision in Metal Weld Electrodes v. CESTAT, Chennai (2013 (11) TMI 240 - MADRAS HIGH COURT), that statutory remedy by way of appeal is maintainable. It is stated by the learned Standing Counsel that, similar decision has been taken by this Court as well.
The learned Senior Counsel for the petitioner submits that, in the light of the law as aforesaid, the petitioner may be permitted to pursue the statutory remedy by way of appeal.-
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2014 (2) TMI 1249
Disallowance of depreciation on assets of sale & lease back transaction - CIT(A) deleted the disallowance - Held that:- For claiming higher rate of depreciation, there is no requirement under the Act of usage of the assets by the assessee himself. The vehicles were purchased by the assessee from manufacturer and leased out to customers. Such vehicles were used in the course of leasing business. See M/s ICDS. LTD. Versus COMMISSIONER OF INCOME TAX. MYSORE & ANR. [2013 (1) TMI 344 - SUPREME COURT] - Decided in favour of assessee
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2014 (2) TMI 1248
Reversal of input-tax credit - Manufacture of wheels and air-suspension automobile components - Petitioner selling the goods in the course of inter-State trade or commerce, under section 8(1) of the Central Sales Tax Act, 1956 for which the assessing authority took a position that case would fall under clause (v) of sub-section (2) of section 19 and therefore, the proviso inserted by the amendment would apply to them and called upon the petitioner to claim the input-tax credit in excess of three per cent. and reverse the credit up to three per cent but petitioner contended that they would fall under clause (ii) of sub-section (2) of section 19 - Held that:- clause (ii) deals with purchase of goods used as input in manufacturing and processing of goods in the State but clause (v) deals with sale in the course of inter-State trade or commerce. Interestingly, clause (ii) uses the expression "manufacturing or processing", but not the expression "sale in the course of inter- State trade or commerce". On the contrary, clause (v) uses the expression "sale in the course of inter-State trade or commerce", but not the expression "manufacturing or processing".
If at least the expression "sale" had been used in clause (ii), one can conclude that clause (ii) applies only to manufacture and sale within the State. Alternatively, if at least the expression "manufacture" had been used in clause (v), one can conclude that clause (v) covers the manufacture and sale in the course of inter-State trade or commerce and not manufacture and sale within the State. But, both these clauses omit the expressions essential for the interpretation that the parties want to view to the proviso to clause (v). While the petitioner wants to read into clause (ii), the expression "sale", the respondent wants to read into clause (v), the expression "manufacture". Therefore, if one is wrong, the other is also wrong and if one is right, the other should also be right. So, to come up from this confusion, the application has to be made to Advance Ruling Authority which the appellant has already and rightly made and the respondent ought to have waited for the decision of Advance Ruling Authority. Since the respondent did not wait, the petitioner is justified in coming up before this court.Therefore, the impugned orders suffer from non application of mind and are liable to be set aside. - Matter remitted back
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2014 (2) TMI 1247
Deduction u/s.10B - denial of claim on the ground that the assessee company is not a 100% EOU since it is not approved by the Board appointed in this behalf by the Central Government u/s.14 of the Industries (Development and Regulation) Act, 1951 - Held that:- no approval / ratification of STPI approval is required from BOA formed by Ministry of Commerce u/s 14 of Industries (Development & Regulation) Act, 1951. For the above reason, the Tribunals have found that the decision of Infotech Enterprises Ltd., (2002 (5) TMI 217 - ITAT HYDERABAD-B) will not be applicable after 2006. In view of the discussions made above, from which it is apparent that the overwhelming view of the Tribunals have been to treat the approval granted by the STPI to be enough for the fulfillment of condition prescribed in sec. 10B for approval of the EOU unit under sec. 14 of Industries (Development & Regulation) Act, 1951 and on this ground the benefit cannot be denied has to be accepted despite the fact that the sec. 10B specifically talks of only registration u/s.14 of Industries (Development & Regulation) Act, 1951. Since the Assessing Officer in this case has only raised this issue, the same has to be not allowed in view of the discussions made above. Ground No. 1 therefore, is allowed. The Tribunal in the above relied cases have also allowed the benefit on the 'principle of consistency', which is applicable in this case also. It was demonstrated by the AR that similar benefit u/s 10B was allowed by AO in earlier assessment years and no action to J withdraw the same has been taken. - Decided in favour of assessee
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2014 (2) TMI 1246
Validity of reopening of the assessment - Held that:- In the instant case, we have already noticed that the return of income has been processed only u/s 143(1) of the Act. Hence, in our view, the decision rendered by Hon’ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers (2007 (5) TMI 197 - SUPREME Court ) squarely applies in the instant case. The Ld A.R placed reliance on the decision of Co-ordinate Mumbai bench in the case of Aipitia Marketing (P) Ltd [
2007 (8) TMI 488 - ITAT MUMBAI] to contend that the re-opening of assessment is not valid, even if the return had been processed u/s 143(1) of the Ace, if there is no fresh material before the AO. In our view, the said decision is not applicable in the instant case, since the reassessment is warranted due to the retrospective amendment brought in the Act. Hence, we do not find any infirmity in the decision of the ld CIT(A) in upholding the reopening of the assessment. Accordingly, we uphold his order on this issue.
MAT computation - Addition of “Provision for bad and doubtful debts” in computing the “Book Profit” - Held that:- In the instant case, we are concerned with the provisions of sec. 115JB, wherein the book profit is required to be computed from the audited accounts prepared under the provisions of the Companies Act. Under the accounting principles, on the basis of which the accounts are prepared under the Companies Act, the terms “Bad debts” and the “Provision for bad and doubtful debts” have distinct meaning and has got different accounting treatment. Hence, in our view, the decision rendered by Hon’ble Supreme Court in the case of Vijaya Bank (2010 (4) TMI 46 - SUPREME COURT ) under the normal provisions of Income tax Act, cannot be applied to the provisions of sec. 115JB of the Act. We notice that the Co-ordinate bench in the case of Tainwala Chemicals & Plastics India Ltd. [2011 (4) TMI 840 - ITAT MUMBAI ] , did not consider the applicability of the Companies Act to the book profit computed under sec. 115JB Act. In view of the foregoing, in our view, the Ld CIT was justified in upholding the addition of “Provision for bad and doubtful debts” to the book profit.
Computation of interest u/s 234B and 234C - Held that:- We set aside the order of Ld CIT(A) on this issue and restore the same to the file of the AO with the direction to compute the interest u/s 234B and 234C of the Act by excluding the addition relating to “Provision for bad and doubtful debts” from the amount of book profit.
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2014 (2) TMI 1245
Disallowance u/s 14A r.w.r 8D - Whether Tribunal was right in law in not deciding the matter and instead sending the matter back to the Assessing Officer for fresh decision? - Held that:- Rule 8D formula could not be applied to the case which arose prior to the introduction of said rule. Nevertheless and more so, therefore, a need would arise to ascertain the disallowance of expenditure, if any, and if so, to what extent be made for the assessee to earn tax exempt income. Since this exercise was not done previously, the Tribunal was within its right to require the Assessing Officer to do so. It is true that in a given case the Tribunal could also either on the basis of the materials already on record or when need be, after calling remand report, itself undertakes such an exercise within the parameters of law. Nevertheless, even in the facts of the case, the Tribunal found it more appropriate and convenient to require the Assessing Officer to do so. - Decided against assessee
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