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Case Laws
Showing 461 to 480 of 1040 Records
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2011 (1) TMI 1067
Waiver of pre-deposit of service - tax demand on the ground that the assessees were carrying out only completion and finishing services of lining/tiling ducts etc. and not undertaking industrial construction - Held that:- Commissioner (Appeals) has correctly listed out the nature of activities carried out by the assessees. Prima facie these would amount to completion and finishing services and therefore no prima facie case for total waiver can be said to have been made out by the assessees.
Assessee directed to pre-deposit of Rs. 1,50,000/- towards service tax demand within a period of eight weeks.
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2011 (1) TMI 1066
Waiver of pre-deposit and stay of recovery - management consultancy service - secondment charges paid in foreign currency as consideration for management consultancy service was not disclosed to the department - appellant has submitted that, even if it be assumed that a taxable service was provided by M/s. British Gas to MGL, any amount of service tax could not be demanded from MGL for the period of dispute inasmuch as this period is prior to 18-4-2006, the date on which Section 66A was inserted also an Indian recipient of a taxable service provided by a non-resident person having no office in India cannot be deemed to be a service provider for purposes of payment of service tax for any period prior to 18-4-2006 - Held that:- Appellant has only a debatable case and has not established a foolproof case for complete waiver of pre-deposit , appellant has to make pre-deposit of a reasonable part of the amount of service tax for purposes of Section 35F of the Central Excise Act
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2011 (1) TMI 1064
Waiver of pre-deposit - Appellants herein along with fifteen others had taken various input services against a single invoice in respect of each credit relating to different services - Held that:- As found in stay order [2010 (10) TMI 403 - CESTAT, BANGALORE] the Tribunal had waived pre-deposit of similar dues in respect of 10 other appellants subject to the condition that the appellants did not utilize the impugned credit which was modified and the appellants allowed to freeze 75% of the credit demanded which alone was available in their accounts and to make good the balance 25% with the credit as and when earned before the appeal is decided. Thus these applications in the present case are allowed on the same terms as regards freezing of the available 75% credit with similar undertaking by 9-2-2011 before the Assistant Registrar of this Bench.
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2011 (1) TMI 1063
Waiver of pre-deposit of service tax - business auxiliary service - The dispute is in respect of activity of procuring orders on behalf of the foreign company - contention of assessee that as the service is provided outside India, therefore, the appellants are not liable for service tax on this activity - Held that:- Board’s Circular wherein it has been clarified that in case the benefits of these services accrue outside India, it is to be treated as exports of service. Pre-deposit of service tax and penalties is waived and recovery of the same is stayed during pendency of the appeal. Stay petition is allowed.
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2011 (1) TMI 1060
Modvat credit in respect of welding electrodes used for repair and maintenance of plant and machinery denied - Held that:- As decided in Ambuja Cements (2010 (4) TMI 429 - CHHAITISGARH HIGH COURT), Hindustan Zinc Ltd. (2008 (7) TMI 55 - HIGH COURT RAJASTHAN) and Alfred Herbert (India) Ltd. (2010 (4) TMI 424 - KARNATAKA HIGH COURT) welding electrodes other items used for repair and maintenance of plant and machinery would be eligible for cenvat credit.
Modvat credit in respect of supporting structures- Held that:- As relying on APP Ltd. [2013 (7) TMI 494 - CESTAT BANGALORE] modvat calim is to be allowed. Issues are prima facie covered in favour of the appellants. Accordingly, dispense with the conditions of pre-deposit of duty and penalty of Rs.20,000/- and allow the stay petition
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2011 (1) TMI 1057
Penalty u/s 271 (1)(c) - Held that:- The penalty can be levied when income is concealed. Penalty can also be levied for furnishing inaccurate particulars of income. However, where the explanation is not bona fide, the penalty can still be levied. Thus, penalty has been levied in respect of deduction of Income-tax, claim u/s 35D etc. According to us, the case of the assessee stands on worse footing than such cases because its claim is based on a device formed to mislead the Assessing Officer. Further, full facts regarding the claim were not furnished in the return of income. Accordingly the ratio in the case of Escorts Finance Limited [2009 (8) TMI 677 - DELHI HIGH COURT], and Zoom Communication Private Limited [2010 (5) TMI 34 - DELHI HIGH COURT] is applicable to the facts of the case. Thus, it is a fit case for levy of penalty.
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2011 (1) TMI 1056
Business income Vs. Capital gain - assessee is a broker as well as investor - Held that:- the assessee is a broker as well as investor. It has maintained the investment portfolio separately, income for which was liable to be taxed as capital gains, as the intention in respect of this was to hold the investment as investment only and was shown as such in the books of account and income therefor was shown and treated as capital gains in the successive assessments.It is thus clear that assessee was holding certain stock for the purpose of doing business of buying and selling and at the same time it was holding that other shares as its capital for the purpose of dividend income. These were duly recorded in separate accounts.
Disallowance u/s 43B - SEBI registration fees - Held that:- The assessee submitted that the said liability accrued in the previous year relevant to asst. yr. 2005-06 and therefore, it is so claimed in this year - Hon'ble Calcutta High Court vide its order dt. 25th May, 2004 directed the stock brokers to pay the registration fees by adopting their own definition of turnover and thereafter SEBI formulated the scheme dt. 15th July, 2004 directing the broker to pay the fee.Therefore, the liability is settled in this year only and the same was accordingly claimed in this year hence need to be allowed.
Regarding addition u/s 14A - Assessee was asked to explain why the proportionate administrative and management expenses incurred for earning the exempt income should not be disallowed under section 14A - Held that:- As in the case of Godrej & Boyce Mfg. Co. v. Dy. CIT (2010 (8) TMI 77 - BOMBAY HIGH COURT) has held that even when prior to asst. yr. 2008-09, when rule 8D was not applicable, the AO has to enforce the provisions of sub-section (1) of section 14A - AO must adopt a reasonable basis or method consistent with all the relevant facts and circumstances after furnishing a reasonable opportunity to the assessee to place all germane material on the record - Appeal is allowed by way of remand
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2011 (1) TMI 1055
Disallowance OF expenses claimed on account of earning commission income - According to the assessee, she had incurred total expenditure under various heads to the tune of Rs. 13,07,755, which were directly related to her earning of commission income and this has resulted in net commission income of Rs. 7,04,175 which was also not disputed by the AO - assessee was not required to maintain accounts as per the provisions of section 44AA of the IT Act, 1961 and as such no adverse inference in this respect is warranted - Held that:- The authorities below did not dispute the heads of expenditure, but they merely doubted the quantum of the same for lack of supporting evidence - It is a fact that except filing month-wise details of expenditure and statements of accounts, the assessee also could not produce any evidence in support of the expenditure - disallowance is restricted to 10 per cent of the total expenses claimed - the appeal of the assessee is partly allowed
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2011 (1) TMI 1052
Penalty u/s 271BA - assessee-company had entered into for the first time an international transaction for export of sale of its products with one of its associated enterprise M/s Spin International Inc., a company incorporated in USA and some other unrelated parties as mentioned in the audit report in Form No. 3CEB read with s. 92E of the IT Act - It is thus evident that penalty under section 271BA can be levied if any person fails to furnish a report from the accountant as required under section 92E of the Act - It is a well-settled principle as laid down by the various Courts that the word "may" employed in penal provisions of the Act may be interpreted as discretionary and that discretion is limited within the meaning of such provisions providing the procedure thereof - assessee's accounts are duly audited under section 44AB of the Act and there is no such default as occurred in respect of international business - Held that: delay in submission of the report under section 92E of the Act within the prescribed time by the assessee was due to a reasonable cause and, therefore, penalty is not sustainable on this ground - Decided in favor of the assessee
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2011 (1) TMI 1050
Cable tray - Whether covered by the term Iron & steel within the meaning of CST Act 1956? - According to Department, sub-section (iv) would apply to only those items of iron and steel which are specified in Clauses (i) to (xiv) thereunder - Held that:- One of the tests would be as to whether the article produced is regarded in trade, by those who deal in it as distinct in identity from the commodity involved in its manufacture - The cable trays of different types and shapes come of the manufacturing process. There cannot be any doubt that the plates have undergone transformation into cable trays and the process involved was manufacturing. These are sold in the market to meet different mechanical and engineering needs as distinct from the plain or chequered plates - cable trays cannot be said to be declared goods within the meaning of Section 2(c) of the Act - thus the cable trays are not iron and steel as per section 3 of the Second Schedule of Sales Tax Act, 1975 read with section 14(iv) of the Act. Decided against the assessee
Interest under Section 27(1) of the Delhi Sales Tax Act, 1975 - Held that:- The dealer had chosen to withhold full payment of turnover tax by obtaining an interim order merely because a lot of others had done so, as it had paid turnover tax, giving full particulars thereof for the previous years - The provisions regarding interest were statutory provisions and there being no order against the running of interest from the time of default, the dealer could not now claim that the demand for interest by the Department was illegal or unauthorized - Decided against the assessee
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2011 (1) TMI 1048
Reopening of assessment - registration u/s 12AA - Revenue Audit Party has observed that in the case of the assessee, no trust deed has been executed and registered setting out its objectives, the property of the assessee is also not held under assessee-Trust - Held that:- It is an undisputed position the petitioner has been registered under section 12AA by the CIT, Gandhinagar vide order dated 22.9.2004 - it appears that the belief that income chargeable to tax escaped assessment is that of the Revenue Audit Party and not of the AO - it is not permissible for the AO to go behind the registration obtained by the assessee under section 12AA - CIT v. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA], has held that one needs to give a schematic interpretation to the words "reason to believe" failing which section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of "mere change of opinion", which cannot be per se reason to reopen - Decided in favor of the assessee
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2011 (1) TMI 1047
Deduction u/s. 80IA - Search and seizure - 153A assessment - whether the exercise of notionally carried forward and set off of depreciation and loss of the eligible business relating to the earlier assessment years is called for when the depreciation and loss of those assessment years have already been allowed to be set off against other income of those assessment years? - Held that:- The eligible business were the only source of income, during the previous year relevant to initial assessment year and every subsequent assessment years. When the assessee exercises the option, the only losses of the years beginning from initial assessment year alone are to be brought forward and no losses of earlier years which were already set off against the income of the assessee. Looking forward to a period of ten years from the initial assessment is contemplated. It does not allow the Revenue to look backward and find out if there is any loss of earlier years and bring forward notionally even though the same were set off against other income of the assessee and the set off against the current income of the eligible business. Once the set off is taken place in earlier year against the other income of the assessee, the Revenue cannot rework the set off amount and bring it notionally. Fiction created in sub-section does not contemplates to bring set off amount notionally. Fiction is created only for the limited purpose and the same cannot be extended beyond the purpose for which it is created. - Decided in favor of the assessee. Thus following the judgment of Velayudhaswamy Spinning Mills P. Ltd. v. ACIT [2010 (3) TMI 860 - Madras High Court] the contention of the assessee accepted and direct the assessing authority to grant deduction to the assessee u/s. 80IA for the quantum claimed by the assessee without diluting the same by the notional deduction of earlier loss and depreciation. In favour of assessee.
Cash seized in the course of search - Held that:- As assessee has not explained anywhere the source of this much amount as discernible from the books of account or any other documents - Decided against the assessee
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2011 (1) TMI 1039
Claim to carry forward depreciation - AO denied the claim to carry forward - Tribunal following the judgment in the case of Himatsingika Seida Ltd. (1997 (5) TMI 73 - ITAT BANGALORE )held that the Assessing Officer was not justified in denying the claim of the assessee - Held that:- Judgment of the ITAT, Bangalore Bench in the case of Himatsingika Seida Ltd. (supra), was challenged by the revenue before this Court wherein held that the Tribunal was not right in law in holding that the assessment order passed by the Assessing Officer allowing the claim of the assessee for adjustment of the unabsorbed depreciation against the other business income once again to show nil tax liability and it held that the said order is erroneous and prejudicial to the interests of the Revenue and accordingly, it set aside the judgment of the Tribunal.
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2011 (1) TMI 1038
U. P. Jal Nigam, Lucknow - whether a "local authority" or "company"? - Held that:- the powers and functions of U. P. Jal Nigam are akin to the various powers and functions amongst others of the municipalities or district boards. It has already been demonstrated that the Jal Nigam was established to improve the water supply and sewerage services in the State, which was being performed earlier by the municipal bodies. Due to rapid growth in the population and vast expansion of urbanization and fast development of science, it appears that the State Government though it fit to entrust the work of water supply and sewerage services to a specialized body (the U. P. Jal Nigam), instead of leaving it in the hands of unspecialized persons, discharging the municipal functions. It has not been found as a fact even by the Income-tax Appellate Tribunal that the U. P. Jal Nigam has been formed to trade in water supply or it is a trading organization. The constitution of the Jal Nigam shows that it has popular representatives as its five members are amongst the elected representatives. It has got power of superintendence over the Jal Sansthans and the Jal Sansthans have been held to be "local authority" - thus decided U. P. Jal Nigam, Lucknow, is a "local authority".
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2011 (1) TMI 1037
Reopening of assessment - beyond a period of four years from the end of the relevant assessment year - Held that:- No failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration, facts of the present case would stand squarely covered by the decision of this court in the case of CIT v. Bipin Vadilal (1999 (4) TMI 77 - GUJARAT High Court) inasmuch as the belief as to escapement of income chargeable to tax from assessment was not entertained by the Assessing Officer on the ground that there had been failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment and as such, no proceedings could have been initiated under section 148 after the expiry of a period of four years from the end of the relevant assessment year, assessment barred by limitation, assumption of jurisdiction by the Assessing Officer itself is invalid, petition succeeds and is accordingly allowed.
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2011 (1) TMI 1036
Pre-emptive purchase of land - absence of notice to show cause to the petitioner - violation of the provisions of section 269UC of the Act - dismissal of revision petition filled - lack of territorial jurisdiction - Held that:- The notification issued under the Income-tax Act vests jurisdiction on the Appropriate Authority at Delhi, to initiate action in respect of transactions relating to properties both at Delhi and Faridabad is also relevant. In such circumstances, merely because the property in question is situated at Faridabad would not disentitle the courts in Delhi to entertain a complaint pertaining to transfer of such a property. The contention of the counsel for the petitioner that the complaint is liable to be returned at the threshold, on account of lack of territorial jurisdiction of the courts at Delhi is therefore rejected.
With regard to the submission of the petitioner, that the objection with regard to jurisdiction of the courts at Delhi was not specifically dealt with either by the Additional Chief Metropolitan Magistrate or by the appellate court, it is a settled law that if various grounds are taken by a party to assail an order and though each of them is not specifically dealt with in the judgment/order, but ultimately, the petition is dismissed or the relief is declined, it has to be assumed that the court duly considered the said pleas on the merits before declining the relief prayed for, even if not specifically elaborated in judgment/order. Merely because the said plea was not rejected in so many words in the operative para of the order dated December 7, 2002 cannot be a ground to entertain the present petition.
Even otherwise, there is no illegality, infirmity or arbitrariness in the impugned order dated May 22, 2004, which would result in a serious miscarriage of justice, for this court to exercise its extraordinary powers under section 482 of the Code of Criminal Procedure. In view of the above, the present petition is dismissed.
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2011 (1) TMI 1035
TDS - assessee defaulted in not deducting the tax at source on the amount of commission paid to the distributor - Held that:- As it is evident that the distributor was to purchase products at pre-determined price from the assessee for selling the same within specified area. The products were to be purchased by the distributor against 100 per cent. advance payment or may be some times on credit at the discretion of the assessee. Both the assessee and the distributor have been collecting and paying their sales tax separately. Both the parties have clearly understood and accepted the agreement between them. That being the arrangement between the assessee and the distributor, it could not be said that the relation between them was that of principal-agent. On the other hand it was clearly stipulated to be an agreement between them on principal-to-principal basis - no infirmity in the findings of the CIT(Appeals) and also ITAT in concluding that the payment given by assessee to the distributor is nothing but a discount and did not have the characteristics of commission - appeal has no merit and is hereby, dismissed.
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2011 (1) TMI 1033
Reopening of assessment - deduction u/s 80P(2) - Validity of notice - beyond a period of four years from the end of the relevant assessment year - Held that:- It is apparent that the basic requirement for assuming jurisdiction under section 147 beyond a period of four years from the relevant assessment year is not satisfied as the belief as to escapement of income chargeable to tax from assessment, has not been entertained by the Assessing Officer on the ground that there has been failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment.
The only ground for reopening the assessment is the decision of Madhya Pradesh co-operative Bank Ltd. v. Addl. CIT [1996 (1) TMI 8 - SUPREME Court] which stands overruled by a subsequent decision rendered in the case of CIT v. Karnataka State Co-operative Apex Bank [2001 (8) TMI 9 - SUPREME Court]. In the circumstances, the very basis for reopening the assessment no longer survives. Hence, even on the merits the reopening of assessment is not sustainable. Decided in favor of the assessee
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2011 (1) TMI 1032
Re-opening of assessment - Validity of notice - Held that:- As it is apparent that in so far as the assessment years 1991-92 to 1995-96 are concerned, the impugned notices under section 148 have been issued on May 30, 2001 and as such are clearly beyond the period of four years from the end of the relevant assessment year - in the absence of any failure on the part of the petitioner to dis-close fully and truly all material facts necessary for its assessment.
As regards the assessment years 1996-97 to 1998-99 - Held that:- In the circumstances, the decision of Gujarat State Co-operative Bank Ltd. v. CIT [2000 (11) TMI 45 - GUJARAT High Court] 250 ITR 229 (Guj) for the purpose of arriving at the opinion that income has escaped assessment has been reversed by the decision of Gujarat State Co-operative Bank Ltd. v. CIT [2001 (8) TMI 15 - SUPREME Court] which forms the basis for reopening of assessment, itself is no longer good law and as such the very substratum for reopening the assessment falls - In favour of assessee.
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2011 (1) TMI 1025
Selling and distribution expenses - Whether form the part of assessable value? - Held that:- Selling and distribution expenses shall not form part of assessable value when they are captively consumed by the assessee, appeals filed by the Revenue deserve no merits. no reasons to interfere with the impugned order, the same are confirmed, appeals filed by the Revenue are rejected.
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