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Showing 201 to 220 of 1412 Records
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2017 (6) TMI 1212
Admitting the petition without providing opportunity to the petitioner and without hearing the petitioner herein in that regard - Held that:- The respondents have filed their additional counter/objections. Though the contentions as put forth is referred to therein the respondents in the light of having a consideration of the matter including the question relating to admission of the petition before the National Company Law Tribunal (for short ‘NCLT’) have conceded that the order impugned at Annexure ‘A’ be set aside and the NCLT be directed to reconsider the matter afresh by hearing the learned counsel for both the parties before considering the admission of the petition before it.
The NCLT is directed to provide opportunity of hearing to the learned counsel for all the parties before it and thereafter consider the petition in accordance with law including on the issue relating to the admission of the petition before it.
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2017 (6) TMI 1211
Treating the loss in the transactions of derivatives as bogus loss - modification carried out in the name and code of the assessee by the broker - Held that:- Indeed the client’s code and name were modified in respect of transactions claimed by assessee. However, on perusal of record, we find that the impugned transactions were carried out through banking channel and all the supporting evidence such as contract note, payment of STT were filed at the time of assessment proceedings. We also find that Ld. CIT(A) confirmed the order of AO on the basis of his guess-work as saying - “there is a possibility that the modifications might have been made to accommodate the appellant as the broker of the appellant was a sister concern".
CIT(A) has confirmed the order of AO on his own surmise and conjecture which is not permissible in the eyes of law. Ld. DR has also not brought anything on record contrary to the advance arguments placed by Ld. AR for the assessee as well as no defects of whatsoever has been pointed out in the documents produced by assessee in support of its impugned loss. We also find whatever modifications were carried out by the broker they were carried out within the time permitted by the NSE for the purpose of modification. Thus we hold that the impugned loss claimed by assessee is genuine loss and allowable deduction - Decided in favour of assessee.
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2017 (6) TMI 1210
Unexplained credit - Held that:- The assessee has not placed any evidence regarding the identification, genuineness and creditworthiness of the creditor. Though the Tribunal remitted back the matter for furnishing the necessary evidence to establish the genuineness of the credit the assessee failed to establish the same. Therefore, there is no merit in the argument of the assessee that the loan is genuine. The assessee relied on the decision of assessee’s own case, where the addition was deleted in view of the amount involved but not because of the genuineness of the credit was established. The assessee did not even furnish the confirmation and identity of the creditor. Thus the addition made by the AO is confirmed and the order of the Ld.CIT(A) is upheld.
Addition of estimated interest on the loan of Shri S.K.Bhandari - Held that:- There was no discussion regarding the payment of interest to Shri SK Bhandari. There was no evidence found during the course of search regarding the payment of interest to Shri Bhandari. AO made the addition purely on surmise without any evidence. Thus the addition made by the AO is deleted and the orders of the lower authorities are set aside. This ground of the appeal is allowed.
Addition made on the basis of seized books of accounts - Held that:- In the absence of any evidence to show that there was action u/s 132 of Income tax act in the assessee case and exercise has been made by the Revenue to prove that the incriminating material was belonged to the assessee with the relevant statements recorded u/s 132(4) or u/s 131 of the IT Act, we are of the considered view that that the presumption to hold that he books of accounts belonged to the assessee u/s 132(4A) of I.T. Act cannot be made applicable to the assessee. Further the AO also caused the enquiries in respect of the loans and advances stated to have been made to the parties and received replies denying the transactions. Therefore, we hold that the addition made on the basis of presumption u/s.132(4A) in the hands of the assessee cannot be sustained and deleted.
Addition u/s 69 - credit in the bank of Rajasthan and estimated interest thereon - account not disclosed to the Department - Held that:- There was a peak credit balance of ₹ 10000/- in the account and the assessee has not placed any evidence before us to establish the source of the deposits made in the Bank Account. The assessee has not denied that the bank account belonged to her. Therefore, we uphold the addition of ₹ 10,000/- and confirm the order of the Ld.CIT(A) with regard to the deposit. However we do not find any evidence in respect of interest charged by the assessee and assessed by the AO. The entire addition was made on surmises which cannot be sustained Therefore, we are unable to uphold the addition made by the AO on account of interest.
Addition on account of cash credits during relevant previous years - Held that:- The argument of the assessee that identity of the creditors and their creditworthiness have already been established in the A.Y 1981- 82 and substantially higher amounts have been accepted by the ITAT is not an acceptable argument. Income Tax proceedings for each year is independent. The assessee has to prove the identity, capacity and credit worthiness of the creditor every year for the advances accepted during the year under consideration. This view is upheld in number of judgments. In the instant case, it was set aside to the A.O with a direction to furnish evidence to the A.O to establish the genuineness, identity and credit worthiness of the creditor in the re-assessment proceedings but the assessee failed to furnish any evidence to support her case. Therefore we do not find any infirmity in the orders of the CIT(A) and we uphold the same. The assessee’s appeal on this ground for the A.Y 1982-83 and 1983-84 are dismissed.
Addition in respect of cash received from M/s. Balaji Plastics & Metals Enterprises - Held that:- The amount of ₹ 10,000/- stated to be received from M/s.Balaji Plastics towards re-payment of the loan. The assessee also stated that Hundi Receipt signed by the buyer was furnished. But the party has denied the transaction, hence it is obligation on the part of the assessee to prove the transaction by producing the creditors. Both the authorities have stated that the assessee has not produced any evidence to prove the genuineness of the transaction - No infirmity in the Orders of the Ld.CIT(A) and the same is upheld.
Interest charged on the advances taken - Held that:- There was no evidence brought on record by the A.O regarding the payment of interest to the above parties. Even in re-assessment proceedings the A.O has not brought on record any evidence to prove that the assessee has made the payment of interest to the above creditors. In the absence of any evidence we are unable to sustain the additions made by the A.O, and accordingly the same is deleted. The orders of the lower authorities on this issue are set aside and the appeal of the assessee on this issue is allowed.
Addition relating to the Repayment of Loans - Held that:- It is evident from the assessment order reproduced above that the above parties have denied the re-payment of the amounts to the assessee. Though the debts are outstanding in the names of the above persons, having denied transactions by the debtors burden is on the assessee to prove that the amounts had actually came to the account for re-payment of the above loans, failing which the cash credits appearing in the names of the debtors should be treated as unexplained and brought to tax which the A.O has exactly done in the assessment order and the CIT(A) has confirmed the order of the A.O. In the re-assessment proceedings also the assessee has not furnished any evidence to establish that the credits were actually repayment of loans. - Appeal of the assessee is partly allowed.
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2017 (6) TMI 1209
Benefit of incentives claimed pursuant to N/N. 43 (RE-2013)/ 2009-14 dated 25th September, 2013 - Held that: - issue covered in the case of JSW Steel vs. Union of India & Ors. [2016 (1) TMI 957 - BOMBAY HIGH COURT], where it was held that the 2013 Notification places no cap or restriction on the value of the IEIS scrip - the judgment in JSW Limited would also enure to the benefit of the present Writ Petition - petition disposed off.
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2017 (6) TMI 1208
CENVAT credit - inputs - structural components used for making capital goods - C.B.E.C. Circular No. 964/07/2012-CX dated 02.04.2012 - Held that: - in view of the definition of inputs during the relevant period that inputs used for making capital goods within the factory were eligible for the purpose of Cenvat credit and in view of the said C.B.E.C. Circular No. 964/07/2012-CX dated 02.04.2012 - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1207
ALP in the case of loans advanced to Associate Enterprises - whether loans determined on the basis of rate of interest being charged in the country where the loan is received / consumed? - Held that:- In the present case, the Revenue has not brought on record any other evidence to the effect that in the country where the loan is received by the Associate Enterprise, the rate of interest is different than the one which is being charged by the assessee. Further, it has been brought on record that the assessee has been advanced loan by the foreign bank at rate of 4.79 % and has charged interest on loan advanced to Associate Enterprise at ₹ 7.3%.
We could have considered the case of the Revenue had the Revenue brought on record the rate of interest being charged in the country where the Associate Enterprise of the assessee has advanced the loan. Naturally, the period for which loan has been given would be considered and not the period within which the loan has been repaid. However, considering the fact that the assessee has got the loan at 4.79% and has advanced the loan to his Associate Enterprise at 7.3% and the very basis of the order of the Transfer Pricing Officer was on wrong premise i.e. it has considered the rate as prevailing in India, the Tribunal has considered the facts of the present case in a plausible manner.
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2017 (6) TMI 1206
Penalty levied u/s 271(1)(c) - non specification of charge - Held that:- The notice was issued in a simple proforma in which both the limbs to levy the penalty has been mentioned. No specific limb has been mentioned under which the penalty is going to be levied. We are of the view that the penalty levied by the Assessing Officer and confirmed by the learned Commissioner(Appeals) is not liable to be sustained in the eyes of law. - Decided in favour of assessee.
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2017 (6) TMI 1205
Exemption under section 5(1) of the CST Act - denial on the ground that bills of lading were not submitted to him - demand of CST at five per cent. of the direct export sales of spices - Held that: - as it is now contended on behalf of the petitioner that copies of bills of lading, for the turnover subjected to tax, are now available and shall be produced before the assessing authority, if an opportunity is given to him to do so, it would be appropriate to set aside the impugned order - petitioner shall furnish the copies of bills of lading to the assessing authority within one week from today and, on receipt of the documents, the assessing authority shall consider the same and pass an assessment order afresh in accordance with law - petition allowed by way of remand.
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2017 (6) TMI 1204
CENVAT credit - whether they are entitled to take Cenvat credit on iron and steel items namely Shapes and Sections, Angles, M.S. Plates, M.S. Round, M.S. Plates, Channels, Hot Strips, Chequered Plates, M.S. Plat, HR coils, Aluminium Sheets, R.S. Joist, etc., falling under Chapter 72, 73 and 76 of the Central Excise Tariff Act, 1985 including welding electrodes? - whether the exclusions provided in Explanation-2 of Rule 2 (k) of Cenvat Credit Rules, 2004, inserted with effect from 07/07/2009 have prospective effect only? - whether the demand is barred by limitation?
Held that: - The Apex Court in the case of J.K. Cotton Spg. & Weaving Mills Co. Ltd. Vs. Sales Tax Officer, Kanpur [1964 (10) TMI 2 - SUPREME COURT OF INDIA], while interpreting the scope of the expression "used in the manufacture of" in Section 8 (3) (b) of Central Sales Tax Act, 1956, has held that if a process or activity is so integrally related to the ultimate manufacture of goods, so that, without that process or activity, the manufacture may, even if theoretically possible, be commercially inexpedient, the goods intended in that process or activity, would have to be treated as used in the manufacture. When the Apex Court has interpreted the expression 'used in the manufacture' in the above manner, the scope of the expression 'used in or in relation to manufacture,' 'whether directly or indirectly' in the definition of input in Rule 2 (k) of the Cenvat Credit Rules, 2004 would be much wider.
So far the utilization of items like M.S. Plates, are concerned, it is admitted fact that such items have either been used in repair and maintenance or for fabrication of various capital items or machinery of the sugar mill and, therefore, the same would be eligible for Cenvat credit - That the steel items used for fabrication of various items of Sugar Mill Machinery like cane, Bagasse carrier, Bagasse Cilo, pipe, etc., being sugar mill machinery and hence are covered by chapter 84, would be eligible for Cenvat credit as inputs and the definition of input also cover the goods used for manufacturing of capital goods used in the factory of manufacturer of dutiable goods.
As the steel items have admittedly been used for fabrication of various items of plant and machinery, being components of sugar mill machinery, or used in the repair of such machinery, the steel items would have to be treated as input in the manufacture of capital goods and hence would be covered by the definition of input in Rule 2(k) and would be eligible for credit.
Whether the exclusions provided in Explanation-2 of Rule 2 (k) of Cenvat Credit Rules, 2004, inserted with effect from 07/07/2009 have prospective effect only? - Held that: - Hon’ble Gujarat High Court in the case of Mundra Port and Special Economic Zone Ltd. Vs CCE [2015 (5) TMI 663 - GUJARAT HIGH COURT] have held, overruling the Larger Bench of this Tribunal in the case of M/s Vandana Global Limited [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] that explanation 2 in Rule 2(k) of CCR, 2004, inserted with effect from 7th July, 2009 have only prospective effect, observing that there is nothing in the amending Act to suggest that amendment was clarificatory in nature.
Time limitation - Held that: - when objection was raised by audit that they have rightly taken Cenvat credit of the items in dispute and from such date, show cause notices have been issued after more than 12 months - SCN are bad on the ground of limitation and there is no ground for invoking the extended period of limitation.
Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1203
Principles of Natural Justice - without issuing a second notice to the petitioner under section 39 of the KVAT Act, the assessing officer, respondent No. 2, has passed the reassessment order dated April 27, 2017 - Held that: - section 39 (b) of the Act specifically requires that a notice be issued to the dealer prior to reassessing the tax liability. Thus, an opportunity of hearing has to be given to the assessee.
Bare perusal of the re-assessment order dated April 27, 2017 clearly reveals that a notice was issued to the petitioner on October 5, 2015, but only for production of books of account for the assessment year 2010- 11. However, subsequent thereto, no notice was issued to the petitioner under section 39 of the KVAT Act. Thus, the very vital step in reassessing the tax liability has been skipped by the assessing officer. Thereby, the assessing officer has violated the petitioner's right under the principles of natural justice - Since a fair procedure has not been adopted by the respondent No. 2, this Court has no other option, but to set aside the reassessment order dated April 27, 2017.
Petition allowed by way of remand.
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2017 (6) TMI 1202
Deletion of assessment - it was alleged that Tribunal did not consider all the aspects, and deleted assessment - Held that: - Tribunal concluded that in the absence of the all details, it cannot be stated that the coupons were issued to the parties whenever sales were effected to them - the Tribunal held that no opportunity was granted to the respondent dealer, to explain the reasons for the difference noticed in respect of coupons found at the time of inspection - The contentions raised by the revenue are all factual and there is no question of law arising for consideration - Tax Revision dismissed.
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2017 (6) TMI 1201
Finalization of assessment - the petitioner is not liable to satisfy the alleged deficit 0.5% as the assessment here in question is 2013- 2014 and Exhibit.P5 amendment was brought into force only on 1.4.2016 - Held that: - though there is no appeal from the aforecited judgment, this Court would grant a conditional order, directing consideration of the appeal on executing a simple bond without sureties before the Assessing Officer with respect to the enhanced legal benefit fund - petition disposed off.
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2017 (6) TMI 1200
Reversal of Input tax credit - Section 19(2)(v) of the Tamil Nadu Value Added Tax Act, 2006 - Held that: - the issue regarding the ITC reversal under Section 19(2)(v) of the TNVAT Act is covered by the said decision of this Court [2017 (3) TMI 279 - MADRAS HIGH COURT] and therefore, the Assessing Authority can re-consider the said issue once again - the matter is remitted back to the Assessing Officer to re-consider the said issue - matter on remand.
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2017 (6) TMI 1199
Issuance of Form-S - deduction of tax at source under the provisions of the Tamil Nadu Value Added Tax Act, 2006 in the hands of the appellant in respect of the inter-State works contract executed by the appellant head office at Rajasthan - Held that: - If, according to the appellant, the assessments are deemed to have been completed for the relevant years, then, the appellant should approach the concerned assessing officer with such a plea so as to obtain appropriate communication to enable him, not only to get the bank guarantee of ₹ 5,00,000 furnished to the first respondent revoked and also to enable him to revoke the bank guarantee furnished to the respondents 2 and 3.
The writ appeals are disposed of, by directing the appellant to approach the first respondent/assessing officer by way of a detailed representation requesting for release of the bank guarantees - appeal disposed off.
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2017 (6) TMI 1198
CENVAT credit - insurance premium paid - Held that: - There is certain amount of risk against lending which is made out of deposits received from depositors. Therefore, taking insurance to protect interest of the bank being integrally connected with the business of banking, Cenvat credit of service tax paid claimed is allowable - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1197
Principles of Natural Justice - service of notice - the Appellate Authority has noted only the issuance of the notice and not given any specific finding as to whether such notice was served on the petitioner - Held that: - as the petitioner contends that they have changed the address, which was not intimated to the Appellate Authority by over sight, the petitioner should be given one more opportunity to appear before the Appellate Authority and agitate the matter on merits - the matter is remitted back to the first respondent / Appellate Authority for re-considering the appeals once again on merits and pass fresh orders, after hearing the petitioner - petition allowed by way of remand.
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2017 (6) TMI 1196
Pre-deposit - Section 35F (i) of the Central Excise Act, 1944 - whether mandatory deposit of seven and half percent as per Section 35F (i) of the Central Excise Act 1944, is required to be paid in cash or the same can be paid from CENVAT Credit Account maintained by the appellants? - Held that: - it is not specifically mentioned that amount has to be deposited only by way of cash payment - the view taken by the First Appellate Authority, that deposit under Section 35F (i) cannot be made from CENVAT Credit Account, is not the correct appreciation of law so long as the CENVAT Credit is permissible for utilization as per Rule 3(4) of the CENVAT Credit Rules, 2004.
Appeal filed by the appellants are allowed by way of remand to the First Appellate Authority with direction to decide the appeal on merits.
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2017 (6) TMI 1195
Penalty - Disallowance of already debited Cenvat Credit - Held that: - the debit entry of an irregular Cenvat credit will nullify the credit taken in the Cenvat account - Since the appellant has debited all the entries of Cenvat credit objected by Revenue alongwith interest there was no need for issue of present SCN - Since SCN was not to be issued, the question of imposition of penalty does not arise - appeal allowed in part.
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2017 (6) TMI 1194
Reverse Charge Mechanism - import of service - Advertisement Agency Service - sponsoring sports bodies located outside India - whether the appellant-assessee, a manufacturer of Electronic & Electrical goods who have incurred expenditure in foreign exchange in sponsoring sports bodies located outside India, is liable to pay Service Tax on reverse charge basis under the classification “Advertisement Agency Service” defined under Sub-clause (e) of Clause 105 of Section 65 read with Section 65 Clause (2 & 3) of the Finance Act, 1994?
Case of Revenue is also that the appeals cannot be disposed of when only stay applications were listed - Held that: - no statutory provision was brought to our notice to the effect that appeals could not be disposed of on the day when stay applications were listed even if both sides consented for final disposal of appeals themselves.
Advertisement Agency Service or Sponsorship of Sporting Events? - Held that: - A perusal of the rights granted to the appellant under the sponsorship agreements reveals that these are agreements for sponsorship of various sports events and not for receiving advertising agency service - Merely because there is a mention of expression ‘advertising material’ and the same is defined in the agreement, it cannot be said that GCC has provided advertising agency service to the appellant. Further, Schedule 4 to the said agreement deals extensively about the global partnership rights granted to the appellant by GCC. Various rights that have been granted under the global partnership rights include (i) right to use official status, (ii) advertising and promotional rights before and at each event, (iii) rights regarding the marks, (iv) rights regarding footage, photographs and player attributes, tickets and corporate hospitality etc. None of these rights constitute advertising agency service.
What the appellant paid to various bodies abroad was the consideration for various sponsorship rights that were granted to it and not for advertising agency service.
It is pertinent to note that ‘sale of space or time for advertisement and sponsorship services’ was introduced with effect from 1-5-2006 without any amendment to the definition of advertisement agency or advertising agency service and therefore in the given circumstances, it cannot be asserted that it was part of the advertisement agency service prior to 1-5-2006 and was carved out of the scope thereof.
The issue contained in this appeal is squarely covered by the ruling of this Tribunal in the case of Hero Motocorp Ltd. [2015 (11) TMI 227 - CESTAT NEW DELHI], where it was held that the service received is not taxable under the head “Advertising Agency Services”.
Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 1193
Treatment to business loss from commodity trading as speculative loss - notional addition of ₹ 10,000/- as alleged administrative and finance cost incurred on commodity trading - Held that:- The actual delivery means real as opposed to notional delivery. Whether a transaction is a speculative in general sense or under the Contract Act, is not relevant for Income Tax purposes. Before the ld. CIT (Appeals) the assessee admitted that part of the transactions were not settled by actual delivery of goods and at least part of the loss was speculative. The assessee, however, could not produce any evidence to substantiate its claim that part of the loss that has been incurred was settled by actual delivery of goods and the loss is not speculative. Even before the Tribunal, the assessee could not improve its case on the issue. We thus do not find any reason to interfere with the first appellate order. The same is upheld. The expenses on administrative and finance estimated at ₹ 1,00,000/- in assessment year 2008-09 and ₹ 10,000/- each in assessment year 2009-10 being a nominal one, is justified and upheld. The ground Nos. 2 and 3 are accordingly rejected.
Validity of addition made u/s 80IC - apportionment of common expenditure between the unit eligible for deduction under section 80IC and non-eligible units on the basis of turnover - Held that:- CIT (Appeals) correctly allowed partial relief to the assessee on the claimed deduction under section 80IC of the Act by upholding the criteria of apportionment of indirect expenditure of Baddi Unit on the basis of sales turnover of Baddi Unit to the total turnover of other units etc. for the allocation of expenditure of interest on the basis of actual usages of funds for which a working was furnished by the assessee. This action of the CIT (Appeals) has resulted in relief of ₹ 1,96,95,332/- towards the claimed deduction under section 80IC of the Act. He has given relief of ₹ 38,26,826/- on the basis that it was amount of notional ad-hoc 1% cost inputted to Baddi Unit for sales affected by other units while computing deduction under section 80IC of the Act
CIT (Appeals) has perused the debits and credits to the account of Head Office and taking them into consideration on a daily basis to find out the product, the product on which interest cost attributable to net use by funds by Baddi Unit has been computed by resident company at ₹ 34,61,811/- has been held attributable to Baddi Unit by him. CIT (Appeals) has noted further that the assessee had opening credit balance in its books of accounts to the account of Head Office of ₹ 17,57,43,596.23 from which the assessee company had deducted the investment in fixed assets out of share capital and share premium, which was derived by taking into fixed assets as appearing in the balance sheet of Baddi Unit to the total fixed assets held by the assessee company. While computing the figure of actual usages of funds by the Baddi Unit the assessee has also reduced the profit declared by Baddi Unit of ₹ 10,62,29,705/- in the preceding two assessment years to arrive at the opening figure of funds in use by the Baddi Unit. In absence of rebuttal of these material facts by the Revenue, we do not find reason to interfere with the first appellate order - Decided against revenue
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