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Case Laws
Showing 201 to 220 of 1763 Records
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2016 (11) TMI 1567
TPA- MAM - CUP accepted by Transfer Pricing Officer in subsequent assessment years by accepting quotation for benchmarking international transaction - Held that:- in the subsequent years the comparable uncontrolled price method has been accepted by the Transfer Pricing Officer. Learned senior counsel, though sought for some time to file an affidavit as to whether the acceptance was after accepting quotations, we do not find any need for the same before this Court since for the subsequent years from 2007-08 onwards the same has been accepted. If there is some irregularity on the part of any of the officers, it is for the Revenue to take appropriate action.
The special leave petition is dismissed.
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2016 (11) TMI 1566
TPA - comparable selection - functinal dissimilarity - Held that:- Assessee is engaged in the business of providing medical transcription services falling within the category of information technology enabled services [“ITES”] to its AEs i.e., Acusis LLC, USA thus companies functionally dissimilar with that of assessee need to be deselected from final list.
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2016 (11) TMI 1565
Depreciation claim to assessee trust - double deduction since purchase of its assets were claimed as expenditure - Held that:- ITAT followed the decision of this Court in a previous order in the assessee’s case - Director of Income Tax (Exemption) v. M/s Sanskriti Educational Society and other connected cases, (2014 (11) TMI 733 - DELHI HIGH COURT). In the circumstances, no question of law arises; the appeal is dismissed. - decided against revenue
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2016 (11) TMI 1564
Works Contract Service - Levy of Service tax - Industrial and construction services - Held that:- The matter needs to be sent back to the original adjudicating authority for fresh examination of issue of leviability of Service Tax on the industrial and construction services done under the work contract prior to 1.6.2007, following the judgement in the case of Commissioner of Central Excise, Kerala vs Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] - appeal allowed by way of remand.
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2016 (11) TMI 1563
Reopening of assessment - validity of reasons to believe - change of opinion - Held that:- If specific queries were raised during the course of original assessment proceedings to which specific replies were filed by the assessee supported by relevant documentary evidences, issuing notice u/s 148 to re-open the assessment on the very same issues considered at the time of the original assessment proceedings amount to change of opinion.
As relying on CIT vs. Kelvinator of India Ltd, reported in [2010 (1) TMI 11 - SUPREME COURT OF INDIA] Notice issued u/s 148 of the Act was without jurisdiction and deserves to be quashed. - decided in favour of assessee.
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2016 (11) TMI 1562
Reopening of assessment - AO reopen the concluded scrutiny assessment based upon a satisfaction that income has escaped assessment - addition on basis of audit report - Held that:- It is quite evident that the AO did not receive any objective material warranting reopening of a concluded scrutiny assessment and that the re-assessment was based upon the observations of the audit report which had scrutinized the return for the concerned year on standalone basis. These observations were entirely on the basis of that scrutiny. It is now settled law that audit reports cannot be the sole basis for reopening of assessment (refer Indian and Eastern Newspaper Society v. CIT, (1979 (8) TMI 1 - SUPREME COURT), Xerox Modicorp Ltd. v. DCIT, (2013 (1) TMI 160 - DELHI HIGH COURT) and CIT v. Lucas TVS Ltd.(2000 (12) TMI 102 - SUPREME COURT). In the circumstances, the audit report could not have been the sole basis for reopening the concluded assessment for AY 2008-09. - Decided in favour of assessee
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2016 (11) TMI 1561
Clandestine Removal - the main ground raised is that the evidence of some of the persons has not been appreciated properly. That is not a question of law much-less a substantial question of law - there is no merit in the appeal and the appeal is dismissed.
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2016 (11) TMI 1560
CENVAT credit - input services - storage of sugar in its godown - denial of credit on account of nexus - Held that:- It does not appeal to commonsense as to how the goods shall be stored without godown facility - The storage of the goods having direct nexus to the manufacture, disallowance of Cenvat credit on the rent paid for the godown is inconceivable - credit allowed - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1559
Penalty u/s.271(1)(c) - expenditure incurred for obtaining the bank loan - revenue v/s capital expenditure - Held that:- Expenditure was incurred for obtaining the bank loan. Merely, because AO has considered the expenses as capital in nature, same does not amount to furnishing of any inadequate particulars of income, therefore, not liable to penalty u/s. 271(1) ( c). Disallowing the expenditure genuinely incurred for the purpose of business merely on the plea of prior period expenses will not attract penalty u/s.271(1)( c) - full details regarding franking charges, foreign exchange loss were filed before the lower authorities. There was no concealment of any particulars of income. Merely disallowance of claim does not amount to furnishing of inadequate particulars of income nor concealment of income. - Decided in favour of assessee.
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2016 (11) TMI 1558
Disallowance of expenditure incurred on repairs, renovation etc. of bungalow on lease - Held that:- ZSP group has already offered the same to tax in their petition before the Settlement Commission -thus taxing it in the hands of the assessee company will amount to double taxation - also the property does not belong to the assessee company. Merely because the assessee has made a statement u/s 132(4) by admitting the same as additional undisclosed income, the same is not binding on the assessee - thus we are of the considered opinion that the expenditure incurred on repairs and renovation on bungalow has to be allowed as a business expenditure in the hands of the assessee company.
Disallowance u/s 14A r.w. Rule 8D - Held that:- AO has not proved any nexus between the expenditure incurred and earning of tax free dividend income - only expenditure, which has been proved to have been incurred in relation to earning of tax free income can be disallowed and section 14A cannot be extended to disallow such expenditure which is assumed to have been incurred for the purpose of earning tax free income - reliance is placed on the judgement Hon’ble Bombay High Court in the case of CIT Vs. Reliance Utilities and Power Ltd [2009 (1) TMI 4 - BOMBAY HIGH COURT] where in it is held that if there were funds available both interest free and overdraft and or loans taken, then presumption would arise that investment would be out of the interest free funds generated or available with the company if the interest free funds were sufficient to meet the investments - hence no disallowance u/s 14A shall be made.
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2016 (11) TMI 1557
Entitlement to exemption u/s 10(23C)(iv) - continuity of claim - Held that:- Board’s circulars are binding on Income Tax authorities. CIT(Appeals), therefore, correctly relied upon Board’s circular No. 7/2010 for the proposition that once approval u/s 10(23C)(iv) have been granted to the assessee, it would be valid until withdrawn. DR could not contribute anything on this issue and no infirmity have been pointed out in the order of the ld. CIT(Appeals).
Disallowance of capital, expenditure u/s 37(1) - Held that:- On perusal of the Income & Expenditure account, for year ending 31.03.2012 found that revenue grants on income side have been shown after reducing the amount utilized for capital expenditure. No further expenditure has been debited. These finding of facts recorded by ld. CIT(Appeals) have not been rebutted in any manner. Further the amounts spent by assessee are clearly application of its income in nature which have been spent to achieve the objects of the assessee. Further, when assessee has been granted approval under section 10(23C)(iv) of the Income Tax Act and exemption is available to the assessee, there is no question of disallowing any amount of this nature. - Decided against revenue
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2016 (11) TMI 1556
Initiation of penalty u/s 271(1)(b) for non-appearance on 30.10.2015 - Held that:- assesses had reasonable cause for non- appearance on that day - therefore, there is no justification for levying the u/s (271)(1) (b) - also no penalty can be levied if the assessments have been completed u/s 143 (3) - Decided in favor of assessee.
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2016 (11) TMI 1555
Works contract - construction of residential complex - Demand of service tax - appellant-assessee had constructed the flats for Saharanpur Development Authority (S.D.A.) under "Manyaver Kanshiramji Shahri Garib Awas Yojana" for the Government of U.P. - Held that: - as per the scheme, houses were allotted without any consideration, i.e. free of cost to the weaker section of the society on lease basis. Ownership of the flats is always with the Government of U.P. - it is covered by the Explanation (a) of the said Section 65(95a). Thus, the complex is not subjected to Service Tax on the basis of work contract as residential complex was given without consideration - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1554
Deduction u/s 10A - total turnover of the assessee-company, is its export turnover and has no domestic turnover - Held that:- In the case of this assessee, the export turnover is equal to the total turnover. The assessee has been claiming deduction under section 10A on this basis and the Revenue has been allowing the same, by accepting the claim of the assessee.
Though the Ld. D.R. submitted that there is no res judicata in tax proceedings, for the sake of consistency and to avoid chain reaction in future assessment years, and as the tax rates for all the years are same and as the assessee has claimed deduction under section 10A on this year unbilled revenues in the next assessment year and as the revenue has accepted this claim, we are of the opinion that the unbilled revenues have to be eliminated from the total turnover as well as the export turnover in this year and the deduction under section 10A be computed. We direct the Assessing Officer accordingly. Hence, we allow this ground of the assessee.
Charging of interest u/s 234A - Held that:- As return of income in this case was filed well within time i.e., on 30.10.2007. Thus the levy of interest under section 234A is bad in law. Ground of the assessee is allowed.
Exemption under section.10A is to be allowed in respect of the amounts in question relating to the disallowance u/s 40(a)(ia) - Decided in favour of assessee.
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2016 (11) TMI 1553
Addition u/s 68 - cash deposits were out of sale proceeds which were reflecting in the sales account because no such explanation was offered before the A.O. during the course of scrutiny proceedings - Held that:- The entire deposit to the bank account has been recorded in the books of the assessee and the books were produced before the Assessing Officer. The total sales of the assessee were of ₹ 8511415/-. Out of the total sales, the assessee has cash sales of ₹ 449338/-. The entire cash deposit is either from sale proceeds or from the collection against the book debt.
We find that as per section 68 of the Act sum should be credited in the books but the assessee has credited the sale proceeds in its books of accounts which has been accepted by the Assessing Officer. AO has nowhere found the defect in the books of accounts, therefore, when the assessee has credit sale proceeds in cash in the books of accounts and the same is deposited in bank, no addition can be made u/s 68
Unexplained share application money - Held that:- In case of three parties the learned CIT(A) was of the view that three parties, viz. M/s R.K. Skyline Construction Ltd., M/s Renovision Commece P. Ltd and Amarjyoti Vyapar Ltd. no cash was deposited and the learned CIT(A) has verified the bank accounts of these parties and he has treated it as genuine and the addition of ₹ 12 lacs was deleted. Therefore, our interference is not called for.
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2016 (11) TMI 1552
Reopening of assessment - assessment beyond the period of 4 years - Held that:- In the present case, as we have already seen, evidence was produced before the AO in the course of the original assessment proceedings u/s 143(3) of the Act and the same was perused by the AO and he had not chosen to draw any conclusion that the amount claimed as deduction by the Assessee was in fact not available to the assessee. In the given circumstances, we are of the view that Explanation 1 cannot also be resorted to by the Revenue. Explanation-1 to Sec.147 cannot be read in a manner so as to override Proviso to Sec.147 of the Act. Initiation of reassessment proceedings u/s 147 of the Act is held to be illegal and consequently, order passed u/s. 147 of the Act is cancelled - Decided in favour of assessee.
Treating the interest as income from other source instead of business income thereby disallowance of benefit of Sec. 10B of the Act - Held that:- In the present case the assessee is a 100% EOU and has income from exports. Besides the assessee has also earned income from the interest on the margin money deposited with the bank in order to avail the packing credit facility. There is a direct nexus between interest income and the income of the business of the undertaking. Indeed the interest income does not par take the character of a profit and gains from the export of an article, but it is the income which is derived in the course of the business. In view of the definitions of ‘Income from Profits and Gains’ incorporated in Sub-section (4), the assessee is entitled to the benefit of exemption of the said amount as contemplated u/s. 10B of the Act. Hence the ground raised by the assessee is allowed.
Disallowing the exemption u/s. 10B - addition holding tea blending activity as non-manufacturing - Held that:- As decided in assessee's own case [2012 (7) TMI 531 - ITAT KOLKATA] the blending of tea amounts to manufacture or production of tea for the purpose of exemption u/s 10B of the Act.
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2016 (11) TMI 1551
Delay in filing application - time limitation - after 1600 days delay, applicant approached the Court for setting aside the exparte decree - Held that: - Admittedly, as per Section 5 of the Limitation Act, this petitioners / defendants 2 and 3 should have filed the application for setting aside the exparte decree within a period of 30 days from the date of exparte decree. But, this application was filed after a long delay of 1600 days and there was no proper explanation given by the petitioners / defendants 2 and 3 - The Hon ble Apex Court time and again directed the parties to give proper explanation for each and every day delay, but they were not given any proper reasons in this case.
For the huge delay of 1600 days delay, there was no proper explanation by the petitioners / defendants 2 and 3, in fact the conduct of the defendants 2 and 3 namely petitioners herein that there was gross negligence on the part of them in depending the matter - This Court and the Hon ble Apex Court clearly stated that it is a settled legal principle that law of limitation is founded on Public Policy not meant to destroy rights of parties, but to see that the parties do not resort to dilatory tactics.
The parties ought to be vigilant in Court proceedings and the duty of the parties to conduct the case and contact their advocate in proper - it is their bounden duty for the petitioners / defendants 2 and 3 that they would appear before the Court regularly without absenting themselves and verifying about the status of the case - revision petition dismissed - decided against petitioner.
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2016 (11) TMI 1550
Whether the hot metal transport vehicle, jumbo electric platform truck trailer assembly used for oil storage tank and ladle transfer car are part of the plant and machinery?
Held that: - All these items are integrally connected to the manufacture of excisable goods. These are part and parcel of the manufacturing process. They are vehicles which cannot be used anywhere outside the factory. They are not vehicles which can be plied on public highways. They are not vehicles which can be registered under the Motor Vehicles Act. Therefore, they are the essentially plant and machinery.
Appeal dismissed.
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2016 (11) TMI 1549
Benefit of N/N. 6/2006-C.E., dated 1-3-2006 - manufacture of parts and components of boiler - denial of exemption on the ground that the products manufactured and cleared by the appellants are classifiable under Heading No. 8402 90 90 and not under Heading No. 9801 - Held that: - In the appellant’s own case M/s. Atmasco (P) Ltd. Versus CCE & Customs, Raipur [2015 (2) TMI 830 - CESTAT NEW DELHI], the exemption has been allowed to the appellant on similar goods cleared under the said notification - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1548
Concessional rate of duty under N/N. 4/2006-C.E., dated 1-3-2006 - denial on the ground that the item cement has not been cleared to ‘industrial and institutional consumers - Held that: - C.B.E. & C.’s clarification F. No. 124/02/2008-CX-3, dated 12-6-2008 says that such goods are entitled to benefit of N/N. 4/2006 under Sr. No. 1C of the Table annexed with the said Notification as the goods were sold to industrial and institutional consumers and not to retail buyers - appeal dismissed - decided against Revenue.
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