|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1250 Records
-
2024 (4) TMI 1250
Income deemed to accrue or arise in India - payments received by the Assessee from its Indian Customers on account of Centralized Services viz. sales and marketing, loyalty programs, reservation service, technological service, operational services and training programs/human resources - Fee for Technical Services as defined under section 9(1)(vii) of the Income Tax Act, 1961 or 'Fee for included services as defined under Articles 12(4) (a) of the Indo US DTAA - HELD THAT:- Undisputedly and on going through the records, we find that the question which stands posited would have to be answered against the appellant bearing in mind the judgment rendered by the Court in Director of Income-tax vs. Sheraton International Inc [2009 (1) TMI 27 - DELHI HIGH COURT] held payments received were neither in the nature of royalty under Section 9(1)(vi) read with Explanation 2 or in the nature of fee for technical services under Section 9(1)(vii) read with Explanation 2 or taxable under Article 12 of the DTAA. The payments received were thus, rightly held by the Tribunal, to be in the nature of business income. And since the assessee admittedly does not have a permanent establishment under the Article 7 of the DTAA "business income" received by the assessee cannot be brought to tax in India. The findings of the Tribunal on this account cannot be faulted. Decided in favour of assessee.
-
2024 (4) TMI 1249
Determination of Origin of Copper Tubes exported to India and eligibility of such Copper Tubes for benefit of ASEAN-India Free Trade Agreement (AIFTA) - eligibility for exemption available under N/N. 46/2011-Cus., dated 1-6-2011 issued by the Indian Government under Section 25(1) of the Customs Act, 1962 - HELD THAT:- It is found that to determination of origin of copper tube under benefit of Asian-India Free Trade Agreement, Jodhpur Preventative Commissionerate, Jaipur Customs had initiated investigation into import of copper tubes taking FTA benefit from Vietnam and other ASEAN Countries and had found out that the value addition requirement to be unsatisfactory. Due to this, the FTA Cell, CBIC has been requested to thoroughly investigate the matter. Letters have been issued to all Customs formation for provisional assessment under bond and BG of such copper tubes and pipes imports so as to maintain uniformity in clearance and to check any port shifting by importers to evade said compliance. Further, the matter has been taken up by the National Assessment Centre (NAC) and, as per NAC minutes dated 8-11-2023, it was agreed to assess all Bill of Entry for copper tubes and pipes (CTH 7411 10) being imported from Vietnam and Thailand claiming India-ASEAN FTA benefit provisionally with Bond and BG as per Rules, or as per Merit duty leviable. Further, the concerned Commissionerate has requested to consider the situation of ongoing investigation in the matter is pending, the benefit of reduced or NIL duty on import of copper tubes from Vietnam under Indo-ASEAN FTA may not be allowed till the time investigation on this matter pertaining to the origin of the copper tubes imported from Vietnam is conducted.
It is found that the matter of import of copper Tubes under benefit of Asian-India Free Trade Agreement (AIFTA) is under ongoing investigation and as well as under provisional assessment of Bills of Entry of such kind of imports. The instant matter does not appear to be maintainable and the instant application appears liable for rejection under clause 2(a) of Section 28(i) of Customs Act, 1962.
Conclusion - The application for an advance ruling is rejected due to the ongoing investigation and lack of sufficient evidence to substantiate the origin criteria and eligibility for exemption under the AIFTA.
Application rejected.
-
2024 (4) TMI 1248
Penalty u/sec.270A(8) and (9) - non-disclosure of interest income during the course of quantum assessment, amounted to “under reporting” of the total income - HELD THAT:- We find no reason to sustain the impugned penalty for the precise reason that although the legislature has stipulated specific clauses (a) and (f) to sub-sec.(9); to be read with sub-sec.(8) of sec.270A, lower authorities have no where pinpointed as to which limb the assessee had committed it’s default attracting “under-reporting” as a consequence of “mis-reporting”.
That being the case, not only hon’ble jurisdictional high court’s recent Full Bench landmark decision in Mohd. Farhan A.Shaikh [2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)] has held that such a failure on the Assessing Officer’s part indeed vitiates the entire penal proceedings [in old scheme], but also the very principle applies qua this new scheme of sec.270A applicable w.e.f. 01.04.2017 for assessment year 2017-2018 onwards as per Schneider Electric South East Asia (HQ) Ltd. [2022 (3) TMI 1295 - DELHI HIGH COURT]
We thus accept the assessee’s instant sole substantive grievance in very terms to conclude that the learned lower authorities have not specified the corresponding limb in their respective orders. Assessee appeal allowed.
-
2024 (4) TMI 1247
Maintainability or entertainability of the review application - Section 114 of the Code of Civil Procedure, 1908 - Merits of grounds, on which review has been sought.
Maintainability/entertainability of the review application in view of the subsequent order passed by the trial court - HELD THAT:- This Court finds that substantive provision of review of any judgment or order is contained under Section 114 of the Code and is governed by the procedure laid down under Order XLVII. The power of the appellate court to remand a case to the trial court is contained under Order XLI Rules 23, 23-A and 25 of the Code and this Court does not find any such provision under the Code, either express or implied, that would take away the right of a party aggrieved by order of remand to raise a challenge to the same, either before a superior court or before the same court by means of a review application, merely because the remand order has been given effect to in terms of a subsequent order. The only prohibition against consideration of an application at an advanced stage of proceedings can be found in a case where an ex-parte decree drawn by the trial court merges into decree of appellate court and, in that event, application for setting aside the ex-parte decree would not lie before the trial court; vide Explanation attached to Rule 13 of Order 9 C.P.C.
An appeal as well as review, being creatures of statute, the right to lay a challenge, either by way of appeal or by review or otherwise, would fall on the same footings and merely because the remand order has been given effect to in terms of a subsequent decision, the same would not render the challenge as infructuous or not maintainable.
Merits of grounds, on which review has been sought - HELD THAT:- Section 114 of the Code of Civil Procedure, being the substantive provision for review, clearly uses the words “ the Court may make such order thereon”. It means that power to allow or reject a review application depends on discretion of the Court in given facts and circumstances of a particular case and the Court is not bound to allow the application in every case and situation - Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered.
It is well settled that injunction application is decided on the basis of stand taken in the affidavits as well as documents annexed thereto and focus is on prima facie case, balance of convenience and irreparable loss only. The consideration of an injunction application cannot be equated with holding of full-fledged trial of the suit itself where decision is made on the basis of primary and secondary evidence led by the parties during the course of trial - Despite the same, this Court neither expressed any final or even tentative opinion on the merits of rival claims of the parties nor did it record any finding thereon, and, admittedly, the parties led additional evidence before the trial court in pursuance of the order of remand. If the documents already on record or those subsequently filed as additional evidence have or have not been considered or wrongly interpreted by the trial court in its subsequent order dated 30.01.2024, it may be a matter of scrutiny in pending appeal against the said order but cannot be a ground for reviewing the remand order - there are no error apparent on the face of the record nor any other ground to review my order of remand.
Conclusion - The review application dismissed on merits, finding no error apparent on the face of the record or other grounds justifying review.
Application dismissed.
-
2024 (4) TMI 1246
Mistake apparent from record u/s 254(2) - Tribunal's decision to restrict the addition for unaccounted purchases to 6% instead of 12.5% - HELD THAT:- Having gone through sub-section 2 of section 254 of the Act, as noted above, we observed that “any mistake apparent from the record” can be rectified. The plain meaning of the word ‘apparent’ is that it must be something which appears to be ex-facie and incapable of argument and debate.
Thus, section 254(2) of the Act does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof.
Therefore, amendment of an order under section 254(2) of the Act, does not mean entire obliteration of order originally passed by the Tribunal and its substitution by a new order of Tribunal, this is not permissible under section 254(2) of the Act.
Power to rectify an order, under section 254(2) of the Act is extremely limited and it does not extend to correcting errors of law, or re-appreciating factual findings. Based on these facts and circumstances, we dismiss the miscellaneous application filed by the Revenue.
-
2024 (4) TMI 1245
Oppression and Mismanagement - Sections 241 and 242 of the Companies Act 2013 - HELD THAT:- The NCLAT noted that the decision of this Court in TATA Consultancy Services Limited Vs Cyrus Investments Private Limited & Ors [2021 (3) TMI 1181 - SUPREME COURT] was delivered after the order of the NCLT. Thereafter, the NCLAT extracted from the judgment in Tata Consultancy Services Limited. Having done so, it remanded the proceedings back to the NCLT. The NCLAT held that the NCLT will have to reexamine the original petition in light of the judgment of this Court in TATA Consultancy Services Limited [2021 (3) TMI 1181 - SUPREME COURT].
Simply remanding the matter to the NCLT without examining the facts and without analysing the extent of the application of the decision in TATA Consultancy Services Limited to the facts at hand would amount to an abdication of the appellate jurisdiction of the NCLAT.
Appeal is restored to the file of NCLAT for fresh examination.
-
2024 (4) TMI 1244
Prayer for interim order - HELD THAT:- Considering the facts and circumstances of the case and submission of the parties, there is no scope of passing any interim order in the matter and the issue involved in this writ petition requires affidavit from the respondent for final adjudication.
Let the respondents file affidavit-in-opposition within four weeks, petitioners to file reply thereto, if any, within two weeks thereafter - List this matter for final hearing in the monthly list of July, 2024.
-
2024 (4) TMI 1243
Seeking direction to the respondent to allow provisional release of 53 kg of gold seized by the Seizure Memo - HELD THAT:- Writ Petition is disposed of directing the Appropriate Authority to decide the request of the petitioner for provisional release of seized gold in accordance with law within a maximum period of four weeks.
-
2024 (4) TMI 1242
TP Adjustment - technical know-how fees and reimbursement of employee-related expenses - HELD THAT:- Both the sides are unanimous in stating that the facts in Assessment Year 2010-11 are identical to Assessment Year 2013-14. The TPO has rejected Assessee’s bench marking and has questioned the benefits accruing to the Assessee. The TPO finally quantified ALP of the services at NIL. It is no more res integra that the TPO cannot ask for need-benefit-test. The TPO is only required to determine ALP of the transaction. Thus, in light of above facts we have no hesitation in allowing ground no.1 of appeal for parity of reasons.
TP adjustments qua reimbursement of employees cost - Assessee has furnished additional evidences to substantiate that the aforesaid person had infact worked for the Assessee in India and the payments/reimbursements are in connection with their services rendered in India. The additional evidences filed by Assessee vide application dated 10.4.2023 are taken on record.
Assessee had furnished visa/passport details of both the aforesaid employees which were not considered by the TPO and additional evidence placed on record before the Tribunal, we deem it appropriate to restore this issue to the file of AO/TPO for deciding the issue afresh after considering the documents, in accordance with law. Thus ground no.2 is allowed for statistical purposes.
Disallowance u/s 40 (a)(i) - payments made for legal services provided by Titus India - contention of the Assessee is that the payments are made through UPS WWF for administrative convenience - HELD THAT:- The issue travelled to the Tribunal [2015 (6) TMI 383 - ITAT MUMBAI] wherein deleted the disallowance and purpose behind insertion of second proviso by Finance Act, 2012 in Section 40(a)(ia), it can be said to be declaratory and curative in nature and therefore, it should be given retrospective effect from 1-4-2005, being the date from which sub clause (ia) of section 40(a) was inserted by Finance (No.1) Act, 2004 - restore the matter back to the file of AO to verify as to whether the Titus has paid tax on the impugned payments by incorporating the same in their respective income. If the AO finds that the Titus has already paid tax by including such payments in its income, no further tax can be collected from assessee which amounts to double taxation and no disallowance can be made in the hands of He assessee u/s. 40(a)(i).
Disallowance of depreciation in respect of fixed assets purchased from UPF WWF - Once the assets enter the Block and depreciation has been allowed in the preceding Assessment Years, depreciation has to be allowed on said assets in the subsequent AY. In light of findings of the Tribunal in Assessment Year 2008-09, the Assessee is eligible to claim depreciation on the said assets in impugned Assessment Year. The ground no.5 of appeal is thus, allowed.
Treating forex gains as operational income - HELD THAT:- TPO in the impugned Assessment Year has held foreign exchange gain as non-operating income. AR has pointed that in immediate preceding Assessment Year, i.e., 2009-10 and in subsequent Assessment Years i.e., 2012-13 and 2013-14, TPO has accepted foreign exchange loss as operating in nature. This fact has not been disputed by the Department.
As in the case of PCIT Vs. Rampgreen Solutions Pvt. Ltd. [2016 (5) TMI 1434 - DELHI HIGH COURT] has held that foreign exchange fluctuation losses are part of operating expenses and to hold so, the Hon’ble High Court in turn placed reliance on the decision in case of CIT Vs. Woodward Governor India Pvt. Ltd. [2009 (4) TMI 4 - SUPREME COURT] We find no merits in ground no.1 of appeal hence, the same is dismissed.
Excess provisions written back - DR submits that provisions written back is not part of operating income - HELD THAT:- Hon’ble Jurisdictional High Court in the case of Tetra pack [2023 (10) TMI 43 - BOMBAY HIGH COURT] taking similar view held, liability written back and doubtful debts written back are inextricably linked with the business operations, hence, should be considered as operating income - we find no merit in the ground of appeal of the Revenue, hence dismissed.
TP adjustment deleted by the DRP in respect to reimbursement of Stationery and Printing and Scanning and Digital Storage of customs related documents - contention of Assessee that no additional evidences were filed by the Assessee before the DRP, whereas, Department contends that DRP has deleted the addition on the basis of fresh evidences - HELD THAT:- From perusal of findings of the DRP it does not emanate that any fresh evidence was considered by the DRP to decide the issue in hand. The DRP ostensibly decided the issue on the basis of documents already on record. A specific query was raised by the Bench as to what were the additional evidences furnished by the Assessee before the DRP. To this the ld. DR was unable to point out the alleged additional evidence. Hence, we are unable to accept the allegation of the Department that the issue was decided in favour of Assessee on the basis of additional evidences. Apart from above no other argument was advanced by the Department. In light of above, we hold that ground no.3 of appeal is devoid of any merit.
Exclusion of comparables by the TPO - Ever after exclusion of comparable companies the margins are within ±5% range hence, no T.P adjustment is required. Ergo, ground no.3 in Assessee’s appeal is dismissed as infructuous.
-
2024 (4) TMI 1241
Addition u/s 68 - treating the cash deposits during the demonetisation period as unexplained - CIT(A) deleted addition -
Identity of the creditors - HELD THAT:- The assessee has filed necessary details to prove that sales to a single customer does not exceed Rs. 2 lakhs. Therefore, in our considered view, the assessee has established identity of the customers.
Genuineness of transactions - Genuineness of sales declared by the assessee before the date of demonetization and after the demonetization is not in dispute. Further, the assessee has furnished comparative details of total sales, cash sales, cash deposits for two financial years and as per details filed by the assessee, there is no abnormal deviation or increase in cash sales reported by the assessee for the impugned assessment year, more particularly during demonetization period.
Therefore, we are of the considered view, that the Assessing Officer is erred in treating cash deposits into bank account as unexplained cash credit taxable u/s. 68 of the Act, even though the assessee has furnished all details to prove that sales declared for the above period is supported by necessary evidences and source for cash deposit is out of cash sales made during demonetization period.
Whether is there any prohibition in accepting demonetized currency notes of Rs. 500 and Rs. 1000 after 08.11.2016 and up to 31.12.2016? - The specified bank notes (cessation of liability) Act, 2017, also stated that from the appointed date no person can receive or accept and transact specified bank notes, and appointed date has been stated as 31st December, 2016. Therefore, there is no clarity on how to deal with demonetized currency from the date of demonetization and up to 31st December, 2016. Therefore, under those circumstances, some persons continued to accept and transact the specified bank notes and deposited into bank accounts. Therefore, merely for the reason that there is a violation of certain notifications/GO issued by the Government in transacting with specified bank notes, the genuine explanation offered by the assessee towards source for cash deposit cannot be rejected, unless the Assessing Officer makes out a case that the assessee has deposited unaccounted cash into bank account in specified bank notes.
As decided in Sahana Jewellery Exports Pvt. Ltd. [2024 (1) TMI 112 - ITAT CHENNAI] under identical set of facts and also in respect of cash deposits during demonetization period held that, when source for cash deposits has been explained out of cash sales made during the period, then cash sales made by the assessee cannot be treated as unexplained credit taxable u/s. 68.
Thus, assessee has explained source for cash deposits into bank account during demonetization period, out of cash sales recorded in the books of accounts maintained by the assessee. CIT(A), after considering relevant facts has rightly held that the AO is erred in making additions towards cash deposits u/s. 68 - Decided in favour of assessee.
-
2024 (4) TMI 1240
Unexplained money u/s. 69A brought to tax u/s. 115BBE - cash deposits during demonetization period - unexplained sales - AO on the basis of analysis of comparative cash sales, cash deposits and closing cash in hand of every month for two financial years, has come to the conclusion that the assessee has booked bogus sales prior to the date of demonetization to cover up cash deposits in specified bank notes to bank accounts - CIT (A) simply accepted explanation furnished by the assessee and deleted additions made towards cash deposits u/s. 69A r.w.s. 115BBE
HELD THAT:- Appellant has filed all details including sales bills, corresponding purchase bills and stock register to prove that sale declared for the above period is supported by necessary invoices and also there is no discrepancy in quantitative details of stock in trade maintained by the assessee. Further, it is not a case of the Assessing Officer that, the assessee has booked cash sales without corresponding purchases or stock in trade.
But, the AO has failed to make out any observation with regard to books of accounts maintained by the assessee, sales bills, purchase bills and stock details submitted in support of their arguments. Therefore, we are of the considered view that the AO is erred in making additions towards cash deposits into bank account during demonetization period u/s. 69A r.w.s. 115BBE
In this view of the matter and by following the decision of ITO vs Sahana Jewellery Export Pvt. Ltd. [2024 (1) TMI 112 - ITAT CHENNAI] we are of the considered view, that the assessee has explained source for cash deposits during demonetization period, out of opening cash in hand available as on 08.11.2016 and further, said cash in hand is supported by cash sales declared prior to the date of demonetization. The ld. CIT(A), after considering relevant facts has rightly deleted additions made by the Assessing Officer towards cash deposits u/s. 69A r.w.s. 115BBE of the Act. Thus, we are inclined to uphold the findings of the ld. CIT (A) and dismiss appeal filed by the revenue.
-
2024 (4) TMI 1239
Unexplained cash credit u/s 68 - Addition of sale proceeds of shares of alleged penny stock - AO has primarily placed reliance on the report given by the Investigation wing of the Income tax department, Kolkatta in order to arrive at the conclusion that the long term capital gains reported by the assessee is bogus in nature
HELD THAT:- We notice that the investigation report prepared by Investigation wing, Kolkata is a generalized report with regard to the modus operandi adopted in manipulation of prices of certain shares and generation of bogus capital gains.
AO has placed reliance on the said report without bringing any material on record to show that the transactions entered by the assessee were found to be a part of manipulated transactions, i.e., it was not proved that the assessee has carried out the transactions of purchase and sale of shares in connivance with the people who were involved in the alleged rigging of prices. AR also submitted that the regulator of stock market SEBI has not conducted any enquiry against the assessee.
AO has assessed the Sale consideration of shares as unexplained cash credit u/s 68. It is pertinent to note that the purchase of shares made in an earlier year has been accepted by the revenue. The sale of shares has taken place in the online platform of the Stock exchange and the sale consideration has been received through the stock broker in banking channels. Hence, in the facts of the case, the sale consideration cannot be considered to be unexplained cash credit in terms of sec. 68 of the Act.
In the instant case, the AO has not established that the assessee was involved in price rigging and further the AO did not find fault with any of the documents furnished by the assessee. Appeal of the assessee is allowed.
-
2024 (4) TMI 1238
Addition u/s 68 - treating long term capital gains being exempt u/s. 10(38) to be non-genuine - HELD THAT:- There is no material or information that SEBI has found any manipulation for rigging of prices in the shares of Prraneta Industries Ltd or has ever banned the trading.
Apart from that, even the Investigation report and information which has been referred by the AO in his order, there is nothing concrete which has been mentioned except for stating that Investigation report points out that the companies which were controlled by Shri Shirish Chandrakant Shah were only for providing accommodation entries.
However, nowhere it has been brought on record that Shri Shirish Chandrakant Shah was promoter and director of this company and the company was only for providing accommodation entry or was part of any rigging or manipulation of prices or there is any information regarding exchange providers who had assisted the sellers like purchasing scrips.
Reasons given to delete the addition in case of assessee’s family will apply mutatis mutandis for this appeal also. Accordingly, the addition made by the AO is on similar grounds is directed to be deleted. Decided in favour of assessee.
-
2024 (4) TMI 1237
Cancellation of GST registration of the petitioner - non-filing of GST return for six consecutive months - HELD THAT:- In view of consensus between the parties that matter is covered by the order passed in SALMAN QURESHI GSTIN VERSUS COMMISSIONER CENTRAL GOODS AND SERVICE TAX COMMISSIONERATE DEHRADUN, AND OTHER [2023 (3) TMI 1563 - UTTARAKHAND HIGH COURT], present writ petition is also decided in terms of the said order. Petitioner shall be at liberty to move an application for revocation of cancellation order under Section 30 of Central GST Act within two weeks. With his application, petitioner shall also furnish all the GST returns which he failed to submit and he will also deposit the outstanding dues of Goods and Service Tax with his application.
Petition disposed off.
-
2024 (4) TMI 1236
Violation of principles of natural justice - Petitioner was unaware of proceedings culminating in the order - HELD THAT:- On perusal of the impugned order, it is evident that the tax proposal pertained to the belated filing of returns, the difference between the petitioner’s GSTR 1 and 3B returns and the difference between the petitioner’s GSTR-3B returns and the auto populated GSTR-2A. The order discloses that the petitioner did not participate the proceedings. In these facts and circumstances, it is just and necessary that the petitioner be provided an opportunity to contest the tax demand by putting the petitioner on terms.
The impugned order dated 27-12-2022 is set aside on condition that the petitioner remits an aggregate sum of Rs. 15,00,000/- towards the disputed tax demand within two weeks from the date of receipt of a copy of this order - petition disposed off.
-
2024 (4) TMI 1235
Addition of unexplained money u/s 69A - cash deposits made during the demonetization period - AO doubted the cash sales by comparing with the cash sale in the preceding as well as succeeding year for relevant month, the cash sale made during the month of October and the first week of November, 2016 being substantially high for the reason that the assessee has not furnished the details of the names and address, PAN or identity of the buyers in support of its claim.
HELD THAT:- The assessee has furnished the trading account, P&L account and reduction of stock is matching with the corresponding sales. AO did not find any defects in the books of accounts and trading account, P&L account and the financial statements and failed to disprove the condition of the assessee. CIT (A) has observed that the AO has not been able to find any fictitious purchases that could have been the root cause of unaccounted money being deposited in the Banks under the garb of sales, Once the purchases are genuine, the sales could not have been doubted. An abnormal increase in cash sales cannot alone be the ground to out rightly reject them.
Case of AO is that no details of the names and address, PAN or identity of the buyers were furnished by the assessee in support of its claim - CIT(A) has opined that the limit of transaction beyond which PAN is mandatory is ₹2 lakhs. Hence the seller is not required to obtain PAN from purchaser till this limit. The assessee has not made any sales above ₹2 Lakhs hence merely on suspicion it cannot be inferred that the sale is bogus. Hence rejecting the cash sales bills on this count cannot be done. It is a true fact that the books of the assessee have been audited and no fault has been found.
Assessee has not submitted purchase ledger, sales ledger, cash book for the year under consideration and for the previous year, even though called for during scrutiny proceedings - The above submissions are not found to be correct for the reason that in response to the notice issued u/s 142(1) of the Act dated 30.10.2019, the assessee has submitted complete details, as was required by the AO through his notice un/s 142(1) of the Act, as could be evidently admitted by the AO in the assessment order at para 3.0.
Assessee has also furnished copy of screenshot of reply filed by the assessee on 19.11.2019 and on 26.12.2019 in reply to the notice issued under section 142(1) of the Act dated 30.10.2019, wherein, the assessee has uploaded the details of TDS expenses, financial statement, purchases, sales, etc., which are sufficient to prove the genuineness of the purchases and also the cash sales.
AO has erroneously made addition under section 69A - Decided in favour of assessee.
-
2024 (4) TMI 1234
Method of valuation - whether the goods viz. DVD players and Flip-down LCD monitors falling under Chapter heading 8528, 8521 and 8519 imported by the appellant and majority of which cleared to industrial consumers be assessed to duty i.e. additional duty of customs (CVD) applying MRP based assessment under Rule 4A of the Central Excise Act, 1944? - HELD THAT:- The imported goods viz. DVD players and Flip-down LCD monitors which are cleared to OEMs i.e. industrial consumers in bulk are not liable to be assessed under MRP based assessment under Section 4A of the Central Excise Act, 1944; hence the differential duty on this count demanded from the appellant and confirmed in the impugned orders is not sustainable. However, the appellant had admitted that a minuscule quantity involving differential duty of Rs. 1.00 lakh has been sold in retail to consumers at the direction of OEMs. The Department’s allegation is that the differential duty on sale directly to the consumers in retail is more than Rs. 1.00 lakh. Therefore, only to ascertain the liability on account of retail sale to consumers, the matter is remanded to the adjudicating authority. However, considering the facts and circumstances of the case, the penalty is not imposable on the appellants.
The impugned order is modified by setting aside the demand on clearances of goods to OEMs i.e. industrial consumers and confirming the demand with interest for clearances to retail consumers other than OEMs. Penalty is set aside.
Conclusion - The goods sold to industrial consumers are exempt from MRP-based assessment under the Legal Metrology (Packaged Commodities) Rules, 2011.
Appeal allowed by way of remand.
-
2024 (4) TMI 1233
Disallowance of interest u/s. 36(1)(iii) - purchase of shares was mainly for acquiring controlling rights in another company.
HELD THAT:- When both final fact finding authorities have arrived at the same concurrent findings of fact, no further investigation is required to be undertaken to inquire about circular trading entered into solely with the idea of evading tax by assessee acquiring the shares of AEC through finances arrange mainly from sister companies of the Torrent Group along with two other companies to enable the Torrent Group to acquire and take over the business of AEC.
No substantial question of law can be said to have arisen from the impugned order passed by the Tribunal as both CIT (A) and Tribunal have rightly deleted the addition made by the AO u/s 36(1)(iii) after recording the above findings that assessee has made investment during the course of business for purchase and sale of the share which represented only 2.56% of the total share capital of AEC and therefore, there cannot be any intention of the respondent-assessee to become a tool to acquire the shares of AEC by Torrent Group. No substantial question of law.
-
2024 (4) TMI 1232
Levy of service tax - incentives linked to the sale of motor vehicles - sale of accessories and spare parts by the Appellant to its co-dealers and customers - amount received against sale of goods during the servicing-of vehicles (both, periodical or accidental) - supply of goods involved in execution of works - activity performed by the Appellant by way of painting of vehicles - HELD THAT:- The issue is no more res integra and has already been decided in favour of the Appellant in their own case [2018 (10) TMI 650 - CESTAT ALLAHABAD] where it was held that 'Reference can be made to this Bench’s decision in the case of Tanya Automobiles Pvt. Ltd. v. Commissioner of Central Excise & Service Tax, Meerut-I [2016 (1) TMI 704 -CESTAT ALLAHABAD], wherein it was held by relying upon precedent decisions that the value of the parts used during the course of repair of the services would not represent the value of the services, so as to require their addition in the value of the services. Similarly the incentives received from Maruti Udyog for achieving targeted sale were held as not to be part of the value of the services.'
Conclusion - The service tax demands on incentives, sale of goods, and services were not legally sustainable.
Appeal allowed.
-
2024 (4) TMI 1231
Validity of Reassessment proceedings - lack of jurisdiction on no proper approval by the competent authority u/s 151 - HELD THAT:- It is noted on perusal of the reasons recorded and approval u/s 151 by the competent authority indicates that Pr. CIT has not applied his mind on the reasons recorded by lower authorities and he has only expressed or mentioned ‘Yes’ on the reason forwarded (PBP-5).
As per decision of N. C. Cables Ltd. [2017 (1) TMI 1036 - DELHI HIGH COURT] where in it has been held that Section 151 of the Act clearly stipulates that the CIT, who is the competent authority to authorize the reassessment notice, has to apply his mind and form an opinion. The mere appending of the expression ‘approved’ or ‘Yes’ says nothing. It is not as if the CIT has to record elaborate reasons for agreeing with the noting put up before him. At the same time, satisfaction has to be recorded of the given case which can be reflected in the briefest possible manner. In the present case, the exercise appears to have been ritualistic and formal rather than meaningful, which is the rationale for the safeguard of an approval by a higher ranking officer.
As no satisfaction by the CIT, the satisfaction if any was of the AO, who is not competent in the present case. Appeal of the assessee are allowed.
........
|
9911796707
