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TMI Tax Updates - e-Newsletter
June 9, 2015
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Refund the excess amount paid with interest - The declaration of income furnished by the assessee under the revised return is declared to be invalid. In such circumstances, the provisions of self-assessment under Section 140-A of the Act, are not attracted - refund of self assessment tax paid allowed - HC
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Deduction of tax at source u/s. 195 - it is proved that assessee is merely a trader of software products of the foreign company - payment made is not in the nature of 'royalty'. - AT
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Disallowance of interest expenditure under section 57(iii) - the interest expenditure on the borrowed amount used for the purpose of investment in the shares is an allowable deduction under section 57(iii) - AT
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Disallowance of land development charges - onus is on the assessee to establish on evidence that the land development expenses were incurred wholly and exclusively for the purpose of its business - AT
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Reopening of assessment u/s 147 r.w.s. 148 - the assessee himself could request for the reasons after the expiry of the said period of six year and the reasons were furnished within a period of less than 4 months. This cannot be treated as unreasonable time - AT
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Disallowance of OBR (overburden removal expenses) - there is nothing on record to establish, or even suggest, that expenses incurred on removal of overburden at the surface level, which were capital expenditure in nature, have been claimed as revenue deduction on the strength of coal mining in another piece of land within that coal mine - expenses allowed - AT
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Disallowance of interest u/s 40A - The unsecured borrowings by a commercial organisation like the assessee, on these facts, @ 16% interest seems to be reasonable. The benchmark @ 14% adopted by the ld. CIT(A), by taking fixed deposit interest rates of companies like MGF Limited and Rama Vision Ltd., cannot be applied in a rigid way. - AT
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Non deduction of TDS - interst paid to Government - overriding title on an income - assessee was not required to deduct the TDS on the payments made to the Govt. - Assessing Officer has erred in treating the assessee in default - AT
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Rejection of book result U/s 145(3) - AO estimated the N.P. rate @ 10% - . The defects pointed out by the AO are sufficient to reject the book result addition @ 6% net profit subject to interest and remuneration to the partners to be made - AT
Customs
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Denial of refund claim - since it is not a case of collection of duty under the provision of law declared later as ultra vires, hence the provisions of Section 27 of Customs Act,. 1962 is applicable to the present refund claims - period of limitation applicable - AT
Service Tax
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Demand of service tax - GTA Service - respondents were transporting their own goods and it can be nobodys case that even providing service to oneself is taxable. - AT
VAT
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Levy of tax on purchase value - TNVAT - Sales had been done by the petitioner to the tune of ₹ 47,05,257/-. In view of Section 3(4)(a)(ii) extracted supra, the respondent has no jurisdiction to assess the tax based on the purchase value - HC
Case Laws:
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Income Tax
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2015 (6) TMI 217
Refund the excess amount paid with interest - Held that:- The declaration of income furnished by the assessee under the revised return is declared to be invalid. In such circumstances, the provisions of self-assessment under Section 140-A of the Act, are not attracted. If the Assessing Officer is barred from framing a fresh assessment based on any invalid return, non-est in the eye of law, though is chargeable under Section 4 of the Act, Department, retaining that amount of tax paid on the basis of an invalid return without there being any self assessment/assessment made by the authorities under the Act, would violate Article 265 of the Constitution of India. When the assessment is annulled by the Authorities, the Department is bound to refund the excess amount of tax paid by the assessee on the valid return. The interpretation of the Tribunal that the return contemplated under the proviso (b) to Section 240 of the Act, includes both valid and invalid is not sustainable and has to be set aside. Since we are of the view that the tax amount paid on the invalid return has to be refunded the same analogy applies to the interest portion also. - Decided in favour of the assessee
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2015 (6) TMI 216
Depreciation on the inflated cost of windmills - whether Tribunal was right in allowing excess lease rentals on the basis of inflated cost of windmills ? - Held that:- Tribunal considered the statement of comparable cases made by the assessee and concluded that the payment made by the assessee was certainly not inflated. The Tribunal considered the fact that setting up of windmills was a specialized task and came to the conclusion that the Assessing Officer had no evidence on record to establish that the price of windmills paid by the assessee was not the actual price or that the price was inflated. The Tribunal found that the Assessing Officer had proceeded on the basis of a presumption that the cost of each windmill is inflated by ₹ 1 crore and it had not been proved by documentary evidence that such money came back to the assessee from the concern to whom commission was paid, namely M/s. Suhani Traders. The Assessing Officer has not disputed the fact that the assessee paid lease rent of ₹ 5,51,788/- to Weizmann group Ltd. on account of the windmills taken on lease and the contention of the Assessing Officer that lease rents were unreasonable was not based on any cogent material but only based on assumption and presumption. In fact, the lease rents were fixed in accordance with the formula provided by Indian Renewable Energy Development, a Government of India Company which provided support to Electricity Project. The Tribunal found that the CIT (A) was justified in holding that there is nothing on record to prove the excessive amount of lease rent was paid. The said issue is identical in all appeals and the appeals came to be rejected while upholding the orders of the Commissioner of Income Tax (Appeals). The appeals filed for the year 2002-03 and 2005-06 were also dismissed. The cross objections filed by the assessee for the year 2002-03 were also rejected. - Decided against revenue
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2015 (6) TMI 215
Refusal to release jewellery seized - Held that:- Circular/Instruction dated 21 January 2009. Clause 3(d)inter alia, provides for release of the seized jewellery in case the ownership of the seized jewellery is accepted and the assessee concerned provides an unconditional and irrevocable bank guarantee to the extent of the value of seized jewellery. The revenue would not be prejudiced in any manner, if the jewellery is released on the bank guarantee furnished by the Individual, as according to the revenue he is the person who is owner of the seized jewellery and he undertakes through his counsel that the bank guarantee be encashed to meet the dues on the seized jewellery of any of the three petitioners. We set aside the two orders of the Commissioner of Income Tax dated 17 October 2014 and direct him to release the seized jewellery to the Individual upon satisfaction of its valuation and on the Individual furnishing unconditional and irrevocable bank guarantee of a Nationalised Bank. Needless to state that the Commissioner of Income Tax would dispose of the petitioners' applications for release of the seized jewellery in terms of this order, as expeditiously as possible and preferably before 10 December 2014, keeping in view the marriage in family is scheduled on 15 December 2014.The aforesaid bank guarantee of Nationalised Bank wold be valid for a period of four months from today. The petitioners undertake to return the seized jewellery to the revenue at the end of the period of three months.
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2015 (6) TMI 214
Eligibility for deduction u/s 36(1)(iii) - interest paid on the borrowing - Right of outgoing partner in certain cases to share subsequent profits - Held that:- The outgoing partner or his estate is entitled at the option of himself or his representatives to such share of the profits made since he ceased to be a partner as may be attributable to the use of his share of the property. The amount of ₹ 1,30,00,000/- paid is not a share of the profit of the retiring partner in the partnership firm. Therefore, applying the law laid down in Madhav Prasad Jatia v. CIT U.P reported in (1979 (4) TMI 2 - SUPREME Court) when the aforesaid amount of ₹ 75,00,000/- is not borrowed by the assessee for the purpose of business and does not laid out expenditure wholly and exclusively for the purpose of business of the firm, claim for deduction under Section 36(1)(iii) was not justified. The Authorities have rightly disallowed deductions and therefore, we do not see any merit in this appeal. - Decided against assessee.
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2015 (6) TMI 213
Transfer pricing adjustment - commission percentage, on the basis of FOB value of the goods, from the transactions with non-AE, are at arm’s length under the “indenting business” segment - Held that:- In the instant case, the commission earned from non AE transaction is an appropriate a suitable internal comparable for the purpose of comparing the international transactions affected by the assessee with Associate Enterprise pertaining to similar segment during the financial period under consideration. In view of above, respectfully following the view taken by the Tribunal for AY 2008-09 we inclined to hold that the issue is squarely covered in favour of the assessee and the impugned addition made by the AO in pursuant to direction of the DRP by passing the impugned order u/s 142(3) r.w.s. 144C of the Act is not sustainable and the AO/DRP is directed to delete the same. Decided in favour of assessee.
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2015 (6) TMI 212
Entitlement to claim of exemption u/s 10B denied - whether Unit-2 is a separate unit and not expansion of Unit-1? - Held that:- The direct evidence in the facts of the case would be the letter/application addressed by the assessee to the Competent Authority at the time of setting up Unit II as that is the evidence which would demonstrate whether the assessee intended to start a new independent undertaking or did the assessee intend to expand the existing unit as for both the eventualities permission/approval of the Competent Authority was necessary. The permission evidently having been granted which the Revenue on facts considers it to be in the case of expansion it is for the assessee to show that the permission granted was on the application of setting up a new unit and not on an application for expansion. The self-serving note in the accounts cannot be treated to be a direct evidence of any credible relevance. The justification for setting up a new undertaking on the basis of costs incurred for capital acquisition, investments in assets, new employees, new business, new premises etc. would be irrelevant evidences as both for expanding an existing unit or setting up a new unit specific separate bonded premises, assets, employees, separate books of account and bank accounts and business premises would be necessary. Thus reliance placed on decisions rendered in different facts and arguments would be of no relevance. The assessee after setting up Steel Foundry Division and Jute Mill Division started consuming their products instead of procuring them from the market as was done in the past. Rejecting the reasoning of the Revenue their Lordships held that “reconstruction” presupposes that transfer of assets of the existing business took place which was not a fact in that case as fresh capital had been introduced. It was also held that the fact that the product of the two divisions was utilized by the assessee who earlier was purchasing it from outsiders was not a relevant criteria for denying the claim. What was the intention of the assessee at the time of setting up the new unit would be brought out from the application made to the Competent Authority. Introduction of fresh capital is required even for expanding an existing business to a different location. Accordingly in the absence of any discussion on the direct evidence to decide the issue the same is remitted back to the file of the AO with the direction to decide the same afresh by way of a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. - Decided in favour of assessee for statistical purposes.
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2015 (6) TMI 211
Deduction of tax at source u/s. 195 - whether payment made by assessee to the foreign company being in the nature of 'royalty'? - CIT(A)deleting the demand raised u/s. 201(1) and 201(1A) - Held that:- When the department has not been able to bring any material on record to controvert the factual findings, arrived at by the Ld.CIT(A), we do not see any merit in the contention of the department that the payment made is in the nature of 'royalty'. On going through the facts and materials on record, we are of the firm opinion that the payments made by the assessee to M/s. Altiris do not come within the purview of 'royalty' as finds place u/s. 9(1)(vi) of the Act. As far as the decisions relied upon by the parties, we are of the view that they have no relevance to the facts of the present case since, on the basis of facts on record, it is proved that assessee is merely a trader of software products of the foreign company. In the aforesaid facts and circumstances, we find no reason to interfere with the order of the Ld.CIT(A) which is accordingly upheld. - Decided against revenue.
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2015 (6) TMI 210
Deduction u/s 80IA - income from windmill business - whether the unabsorbed depreciation accumulated in earlier years prior to the initial year needs to be adjusted while computing the amount eligible for deduction u/s 80IA? - eligible business being the only source of income of the assessee - Held that:- This issue has been considered by the Hon'ble Madras High Court in the case of Velayudhaswamy Spinning Mills (P) Ltd. Vs. ACIT [2010 (3) TMI 860 - Madras High Court] wherein after considering the decision of CIT vs. Goldmine Shares and Finance (P) Ltd. [2008 (4) TMI 405 - ITAT AHMEDABAD ] and referring the provisions of section 80IA of the Act, held that if the loss in the earlier years to the initial assessment year has already been absorbed, then it cannot be notionally brought forward and set off against the profits of the eligible business. This view has been reiterated again by the Hon'ble Karnataka High Court in the case of CIT & DCIT vs. Anil H. Lad [2014 (3) TMI 808 - KARNATAKA HIGH COURT]. Thus choosing of initial assessment year for the purpose of claiming deduction for the period of 10 years out of 15 years is with the assessee and secondly, before claiming deduction u/s 80IA of the Act, the loss on depreciation claimed by the assessee in respect of eligible business is to be set off against the income of the assessee from other source, that is, other business income and earlier loss/depreciation of the Wind Mill cannot be notionally set off against the profit of eligible business for the computation of deduction. Accordingly, the order of the ld. CIT(A) is confirmed - Decided against revenue.
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2015 (6) TMI 209
Liability to TDS u/s 194I- payment made by the assessee being lease premium - CIT(A)deleted the addition - Held that:- As the issue involved in the present case as well as all the material facts relevant thereto are similar to the case of Wadhwa & Associates Realtors Pvt. Ltd. (2013 (9) TMI 261 - ITAT MUMBAI) as well as Shree Naman Hotels Pvt. Ltd. (2013 (9) TMI 309 - ITAT MUMBAI) decided by the Tribunal, we respectfully follow the decisions rendered in the said cases by the co-ordinate Bench of this Tribunal and uphold the impugned order of the ld. CIT(A) holding that the lease premium paid by the assessee to CIDCO not being in the nature of rent as contemplated in section 194-I of the Act, the assessee was not liable to deduct tax at source from the said payment and hence could not be treated as the assessee in default u/s 201(1) & 201(1A) of the Act. The appeal filed by the Revenue is accordingly dismissed. - Decided in favour of assesse.
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2015 (6) TMI 208
Disallowance u/s.14A - Held that:- As per Rule 8D of the IT Rules, 1962, the expenditure should be related to the exempt income which does not form part of the total income. Therefore, the AO should have verified whether the expenditure which he proposed to disallow related to the exempt income or not. In the case in hand, the assessee’s contention qua the interest expenditure is that it had sufficient interest-free funds and the investment has been made out of such funds. The fact that the expenditure is not related to the exempt income and the investment wherefrom exempt income is earned is made out of interest-free fund needs verification. Therefore, the issue is restored to the file of AO for verifying the contention of the assessee that the interest expenditure is not related to exempt income and also investment out of which exempt income is earned was made out of interest-free fund. In case, the AO finds the contention of the assessee is correct, he would delete the addition. - Decided in favour of assessee for statistical purposes Excess depreciation on vehicle - CIT(A) deleted the addition - Held that:- The assessee is required to demonstrate that assessee-company has purchased vehicles during the year under consideration, the delivery of such vehicles has also been taken and such vehicles were put to use for business purposes. It would not be sufficient that the assessee obtained the registration certificate from the state transport authority to prove that the vehicles have been put to use for business purposes. For claiming depreciation, onus is on the assessee that the vehicles so purchased have been put to business as in the case in hand delivery of vehicles to the assessee is not proved, however registration of vehicles is proved. In our considered view, the assessee should have furnished other evidences for proving that in fact vehicles were put to use. Therefore, the order of the ld.CIT(A) is hereby set aside. The issue of allowability of depreciation is restored to the file of AO for decision afresh. - Decided in favour of revenue for statistical purposes.
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2015 (6) TMI 207
Disallowance of interest expenditure under section 57(iii) - Held that:- In view of the facts in issue as well as the following judgment of “CIT vs. Rajendra Prasad Moody” (1978 (10) TMI 133 - SUPREME Court), the judgment of “CIT vs. Darashaw & Co. Pvt. Ltd.” (2014 (5) TMI 940 - BOMBAY HIGH COURT) and “CIT vs. M. Ethurayan” (2004 (7) TMI 39 - MADRAS High Court ), we find that the interest expenditure on the borrowed amount used for the purpose of investment in the shares is an allowable deduction under section 57(iii). Decided in favour of assessee.
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2015 (6) TMI 206
Disallowance of land development charges - CIT(A) deleted the disallowance - Held that:- Claim of the assessee for such development expenses was disallowed by the A.O. on the ground that the relevant details to show the exact nature of expenses incurred were not furnished by the assessee and the onus to prove that the said expenses were incurred in connection with the concerned projects of the assessee was not satisfactorily discharged. As rightly contended by the Learned D.R., this specific reason given by the A.O. for making the disallowance has been overlooked by the Ld. CIT(A) and the claim of the assessee for land development charges is allowed by him only on the basis that the payment of such charges was made by the assessee to M/s. Ganesh Estates, by cheque after deducting tax at source. The mere fact that the relevant payment was made by the assessee to M/s. Ganesh Estates by cheque after deducting tax at source is not sufficient to allow the claim of the assessee for the said expenses and the onus in this regard is on the assessee to establish on evidence that the land development expenses were incurred wholly and exclusively for the purpose of its business. Thus restore the matter to the file of the A.O. for deciding the same afresh - Decided in favour of revenue for statistical purposes. Disallowance of commission expenses - assessee had not discharged its onus to prove that the expenses were incurred for its business - CIT(A) deleted the disallowance - Held that:- CIT(A) has again erred in relying only on the fact that the amount of commission was paid by the assessee by cheque after deducting tax at source to allow the claim of the assessee without appreciating that it is for the assessee to establish on evidence that the commission expenses claimed by it were incurred wholly and exclusively for the purpose of its business. We therefore set aside the impugned order of the Ld. CIT(A) on this issue and restore the matter to the file of A.O. for deciding the same afresh - Decided in favour of revenue for statistical purposes. Disallowance made u/s. 40A(3) - CIT(A) deleted the disallowance - Held that:- The payments made by the assessee to the land lords in cash were found to be covered by the Ld. CIT(A) by exceptional circumstances specified in Rule 8DD of I.T. Rules inasmuch as the same were made in respect of projects of the assessee located in remote villages where banking facilities were not in existence. At the time of hearing before us, the learned D.R. has not been able to dispute or controvert this finding recorded by the Ld. CIT(A) while allowing the relief to the assessee on this issue. We therefore find no justifiable reason to interfere with the order of the Ld. CIT(A) giving relief to the assessee on this issue and upholding the same - Decided against revenue.
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2015 (6) TMI 205
Reopening of assessment - addition made on account of unsecured loan taken - addition u/s 2(22)(e) - Held that:- There was no obligation on the part of the Assessing Officer to furnish the reasons recorded along with the issuance of notice under Section 148 of the Act. The assessee himself could request for the reasons after the expiry of the said period of six year and the reasons were furnished within a period of less than 4 months. This cannot be treated as unreasonable time and the ratio laid down by the Hon'ble Delhi High Court in the case of Haryana Acrylic Manufacturing Co. (2008 (11) TMI 2 - DELHI HIGH COURT) is not applicable to the facts of the present case. In that case, the reasons were asked within the period of six years from the end of the relevant assessment year and the Assessing Officer failed to furnish the same before the expiry of six years from the end of the relevant assessment year. Hence, the reassessment proceedings are valid in law. Addition on account unsecured loans - Held that:- It is noticed by the Assessing Officer that the transactions in question are merely book entries and the allegation made against the assessee company is that the assessee had provided cash to M/s Nishant Finvest P. Ltd. and M/s Performance Trading & Investment, who after depositing the cash in the bank account had issued cheques in favour of the assessee company which means that the cash deposited in the bank account of those concerns really belongs to the assessee. This fact is proved by deposit of cash in equivalent amount in the bank accounts of those two concerns preceding the issue of cheques in favour of the assessee. The appellant failed to rebut this allegation. The appellant also failed to produce the Directors of those concerns before the Assessing Officer. In other words, the appellant also failed to prove the genuineness of the transactions in the light of the fact that those concerns are alleged to be indulged in providing book entires. It is settled proposition of law that just because credits were accepted by account payee cheques and confirmation letters were filed, the transactions cannot be called sacrosanct. In our considered view, the assessee had failed to discharge his onus that was lying upon it in proving the credits under the provisions of Section 68 of the Act and therefore, we hereby confirm the addition of ₹ 4 lakhs. Addition under Section 2(22)(e) - Held that:- It is settled proposition of law that the transactions which are undertaken during the course of normal business activity shall not come within the purview of the provisions of Section 2(22)(e) of the Act. In this regard the reliance is placed on the decision of Hon'ble Jurisdictional High Court in the case of CIT Vs. Raj Kumar, [2009 (5) TMI 17 - DELHI HIGH COURT]. In the light of the above decision, we hereby delete the addition of ₹ 27 lakhs on account of deemed dividend.
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2015 (6) TMI 204
Disallowance of OBR (overburden removal expenses) - revenue expenditure or capital expenditure entitled to deduction on by under Section 35-E of the Act @ 10% amortization - Held that:- deduction under section 37(1) could not be declined on the ground that the expenditure in question was eligible for deduction under section 35 E. The deduction under section 35 E is normally available in respect of the expenditure which is not eligible for deduction under section 37 (1) and just because the deduction under section 35 E may be available in respect of an expenditure, even if that be so, cannot be reason enough to decline the deduction under section 37 (1). Of course, it is besides the fact that once the commercial production had commenced in the respective mines, there was no occasion to invoke the provisions of Section 35 E in respect of any expenditure incurred in the years after the year of commercial production. The apprehensions of the Assessing Officer seem to be purely hypothetical and in the realm of conjectures and surmises inasmuch as not one instance is shown in which the overburden removal expenses, booked in the accounts as revenue expenditure, actually pertain to removal of overburden only at the surface level and should be, therefore, treated as capital expenditure. Similarly, while declining the deduction of overburden removal as capital expenditure, the Assessing Officer, as also the CIT(A), has not treated any part of this expenditure, which essentially includes the expenditure incurred on removing overburden in the process of coal mining and production, as revenue expenditure. It seems to be more or less an undisputed position, given the nature of overburden removal expenses as we have discussed earlier, that a part of the overburden removal expenses is admittedly revenue expenditure, but if we have to uphold the stand of the authorities below, entire overburden removal expenses is required to be treated as capital expenditure eligible only for amortization under section 35D. In any case, there is nothing on record to establish, or even suggest, that expenses incurred on removal of overburden at the surface level, which were capital expenditure in nature, have been claimed as revenue deduction on the strength of coal mining in another piece of land within that coal mine. Thus disallowance deleted - Decided in favour of assessee. Disallowance in respect of 1/10th of One Time Lease Payment - Held that:- It is not anybody’s case that the assessee was not eligible for deduction under section 35E in respect of this expenditure on account of onetime lease rent and afforestation charges, nor is it the case that the entire related expenditure has already been allowed as deduction and nothing survives for being allowed as deduction now. What has been claimed, in our humble understanding, is not expenditure relating to assessment year 2004- 05 but amortization of eligible expenditure which was originally incurred in the assessment year 2004-05. Merely because the expense was originally incurred in the previous year relevant to the assessment year 2004-05, as long as it is otherwise eligible for amortization under section 35E, the deduction under section 35E to the amount so amortized cannot be declined. - Decided in favour of assessee. Disallowance of Education Expenses - CIT(A) deleted the addition - Held that:- This issue is covered, in favour of the assessee in assessee’s own case for the assessment years 1997-98 and 1998-99 wherein, following the decision of South Eastern Coalfield Limited Vs JCIT [(2002 (2) TMI 344 - ITAT NAGPUR], it was held that no disallowance can be made in respect of such expenses as the expenses were not incurred in terms of National Coal Wage Agreement entered into with the employee unions. - Decided in favour of assessee. Disallowance of Community Development Expenses - Held that:- s issue is covered, in favour of the assessee, only to the extent that the matter was set aside to the file of the Assessing Officer for examining relevant details and compare these with the items on which expenditure has been allowed in the case of South Eastern Coalfield (supra). - Decided in favour of revenue for statistical purposes. Disallowance of ‘Other Miscellaneous Welfare Expenses’ - Held that:- As long as expenses are incurred wholly and exclusively for the purposes of earning the income from business or profession, merely because some of these expenses are incurred voluntarily and even without there being any legal or contractual obligation to incur the same, those expenses do not cease to be deductible in nature. In other words, it is not necessary that every deductible expense must be directly relevant for earning income but for which such an earning may not be possible. As long as expenses for the purposes of business, whether unavoidable or not, these expenses continue to be deductible. - Decided in favour of assessee. Disallowance of ‘Other Development Expenses’ and “roads, culverts and drains in coal mines” - CIT(A) allowed claim - Held that:- All the mines, in respect of which these expenses are incurred, are revenue mines from which coal is being extracted. No part of this expenditure, therefore, needs to be capitalized, particularly as there is nothing in the development or initial stage. These are routine expenses for maintenance of a running mine. In any event, there is no material brought on record by the Assessing Officer to demonstrate that these expenses are capital expenses. Keeping in view of these discussions, as also bearing in mind entirety of the case and the accepted past history of the case, we deem it fit and proper to uphold the stand of the CIT(A) on this issue - Decided in favour of assessee.
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2015 (6) TMI 203
Undisclosed investment - CIT(A) deleted the addition - Held that:- Appellant had sufficient amount of cash available as per the cash book so as to enable to him to make the investment of the above amounts. Regarding the objection of the AO, that the cash withdrawn might have been spent by the appellant somewhere else and there was no chance of the appellant having cash in hand with him sufficient enough to make cash deposits with the bank from which the investment has been made by the appellant, find that the objection of the AO is not supported by any hard evidence and is based on general observation. Since there is no cogent material before the AO to support his above suspicion of the appellant having spent the cash balance on some other activities, a relief of ₹ 6,63,300/- correctly allowed - Decided against revenue. Unaccounted investment in FDR - CIT(A) deleted the addition - Held that:- The cash account of the appellant and from the perusal of the cash account, it is find that there was sufficient balance in the cash account on 5/1/05 from which the cash deposit of ₹ 35,000/-could have been made. The AO has no material to justify his suspicion that earlier cash withdrawals from bank have been spent or invested by the appellant somewhere else, and in the absence of such material, no adverse view can be taken against the appellant. Therefore allow this ground of appeal and delete the addition for ₹ 10 lakhs. - Decided against revenue. Addition to loan given to Smt. Rita Dhingra - CIT(A) deleted the addition - Held that:- The loan transaction, as entered into between the parties, is to be verified with reference to the question whether this transaction of loan involves transfer of funds which needs to be explained. In this case, there is nothing which needs to be explained when source of the same FDR has already been considered by the AO himself in his order. So far as the remaining amount of ₹ 1,05,000/- is concerned, the AO has accepted the source of this being out of 3 months' rent @ ₹ 35,0001- per month collected and credited in bank account of appellant wherein his wife Mrs. Rita Dhingra was a joint holder of account and also this rent has been declared by the appellant in his return of income for A.Y. 2005-06. Accordingly, the entire addition for ₹ 11,05,000/- being explained is directed to be deleted. - Decided against revenue. Disallowance of drawing for personal expenses - CIT(A) deleted the addition - Held that:- There is no difference in the accounted personal expenses as per the information given during assessment proceedings and therefore, source of the above personal expenses stand explained in view of reconciliation of cash flow statement. Regarding the balance amount of ₹ 1,29,521/-the AO has not raised any objection on the appellant's explanation in his report. It is observed that this balance amount for ₹ 1,29,521/- consists of LIC Premium for ₹ 1,07,4711-; mediclaim insurance for ₹ 17,995/- and Travel Insurance for ₹ 4055/-. All these payments have been made through cheques from the Account of G&J Apparels and are, therefore, explained. Therefore AO is directed to delete the addition - Decided against revenue. Addition to unexplained cash credits - CIT(A) deleted the addition - Held that:- AO has not considered the cash withdrawals of ₹ 1,89,000/- which he himself has taken in para-vii of the remand report and there is no reason given by the AO for omitting the above withdrawals to work out the availability of the cash deposits. Accordingly, the explanation of the appellant regarding these source of cash deposits stand explained and there is no justification for addition of ₹ 1,44,000/- - Decided against revenue.
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2015 (6) TMI 202
Treatment to repairs - revenue or capital expenditure - Held that:- There is nothing on the record, baring some general remarks, to demonstrate that any part of the repairs and maintenance expenses incurred by the assessee are capital expenditure in nature. Just because tiles, cement or iron is used in the civil work carried out by the assessee, in respect of those premises, such civil work need not necessarily result in capital expenditure. In a sophisticated technical and scientific work as vaccine development, it is only natural that highest precautions are taken to ensure that the manufacturing or other scientific process does not get vitiated by unwelcome elements. The exercise of such precautions necessitates expenditure on civil and maintenance work but then such work does not result in a capital asset. Thus as there is nothing to show that expenditure incurred by the assessee resulted in a new asset, or such enduring advantage so as to result in the very character of expenditure being rendered capital, we are of the considered view that impugned disallowances were wholly unwarranted and unsustainable in law - Decided in favour of assesse. Disallowance of interest u/s 40A - CIT(A) deleted addition - Held that:- The unsecured borrowings by a commercial organisation like the assessee, on these facts, @ 16% interest seems to be reasonable. The benchmark @ 14% adopted by the ld. CIT(A), by taking fixed deposit interest rates of companies like MGF Limited and Rama Vision Ltd., cannot be applied in a rigid way. There is no material whatsoever to suggest that a 2% higher interest than interest paid to such well reputed companies, and that too on fixed period deposits, will render the interest paid by the assessee to it's unsecured lenders as excessive and unreasonable having regard to fair market interest rate. In view of these discussions, as also bearing in mind entirety of the case, we hold that entire interest payment to the specified persons, at the rate of 16%, should be allowed as deduction. Accordingly, inmpugned disallowances deserve to be deleted - Decided in favour of assesse. Disallowance of the claim u/s 80IA/IB - CIT(A) deleted the disallowance with the direction to re-compute the deduction u/s 80IB by apportioning the expenditure on research and development by 1/3rd to each unit - Held that:- In granting the impugned relief, learned CIT(A) has merely followed his order, in assessee's own case for the assessment year 2005-06 and when Assessing Officer does not challenge findings of an appellate authority, against him, for one assessment year, it is not open to him to challenge the same findings in a subsequent assessment year. In any case, once a co-ordinate bench taken a particular view of the matter, it is amorally not open to us to take any other view of the matter. In view of these discussions, we uphold the grievance of the assessee and dismiss the grievance raised before us by the Assessing Officer. - Decided in favour of assesse. Disallowance of packing expenses - CIT(A) deleted the addition - Held that:- We are not inclined to disturb well reasoned findings of the learned CIT(A) as he rightly observed, it is not always practicable to maintain item wise day to day consumption of packing material, and the Assessing Officer cannot disregard the books of account without rejecting the same. The observations of the Assessing Officer proceed on mere suspicion and once all the defects and doubts of the Assessing Officer were satisfied in the first appellate proceedings, there was no legally sustainable basis for the impugned disallowance. Learned CIT(A) rightly deleted the same. - Decided in favour of assesse. Disallowance of sales expenses - CIT(A) deleted the addition - Held that:- the fact of expenditure was well established by evidences but the Assessing Officer wanted details like the end results by way of improvement of sales and details of persons contacted during visit etc. On these facts, and satisfied by the evidences produced by the assessee about fact of expenditure and broad purpose of expenditure, learned CIT(A) has deleted the disallowance. In any case, the disallowance is purely on adhoc basis. We see no reasons to disturb the conclusion so arrived at by the ld. CIT(A), which are also in harmony with accepted past history of the case.- Decided in favour of assesse.
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2015 (6) TMI 201
Non deduction of TDS - interst paid to Government - overriding title on an income - assessee in default u/s 201 and also levy of interest u/s 201(1A) - whether the assessee falls within the ambit of exclusion clauses provided in sub section 3 of section 194A(3)(iii)(f)? - Held that:- The title over the interest income at the time of generation from the assessee rest with the Govt. and not KUIDFC. Thus, the interest in practical was paid to the Govt. and section 196 provide that notwithstanding anything contained in the foregoing provisions of this Chapter, no deduction of taxes shall be made by any person from any sum payable to the Govt. The assessee was not required to deduct the TDS on the payments made to the Govt. Considering all these aspects, we are of the view that the Assessing Officer has erred in treating the assessee in default. Consequently the demand raised by the Assessing Officer by virtue of order passed u/s 201 and the interest charged u/s 201(1A) is deleted and the orders are quashed - Decided in favour of assesse.
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2015 (6) TMI 200
Disallowance of deduction of premium written off on Govt. Securities - CIT(A) deleted the addition - Held that:- The assessee invests in Govt. Securities and other financial documents as other co-operative banks as per the guidelines of the RBI and so as per the RBI Master Circular No.DBOD.BP.BC.13/21.04.141/2012-13 dated July 2,2012, containing consolidated instructions/guidelines issued to banks till June 30, 2012, on matters relating to prudential norms for classification, valuation and operation of investment portfolio by banks, Investments classified under HTM (Held To Maturity) need not be marked to market and will be carried at acquisition cost, unless it is more than the face value, in which case the premium should be amortized over the period remaining to maturity. The book value of the security should continue to be reduced to the extent of the amount amortized during the relevant accounting period. And as held in the case Indian Rayon and Industries Ltd. (2010 (3) TMI 299 - BOMBAY HIGH COURT ) it was held that discount on bonds and premiums on redemptions of debentures are allowable as expense proportionately spread over the period of security. So therefore we are of the considered view that this issue needs to be remanded back to the file of the AO to verify whether the assessee has claimed the expenses proportionately i.e. the premium amount which is in addition to the face value proportionately spread over the life of security and if it is so computed and claimed it be allowed - Decided in favour of revenue for statistical purposes. Claim u/s. 36(1)(viia) - assessee is a Co-operative Society and was claiming deduction u/s 80P(2)(a)(i) of the Act up to A Y 2006-07 @ 100% - Held that:- assessee has made the provisions of ₹ 3,66,33,543/- for bad and doubtful debts in its Profit & Loss A/c but by mistake while submitting the return the same was taken as ₹ 1,35,28,498/- instead of ₹ 3,66,33,543/-. We find that section 36(1)(viia) was amended by Finance Act, 2007, with effect from 01.04.2007, by which the words "or a cooperative bank other than a primary agricultural credit society or a primary cooperative agricultural and rural development bank" were inserted. This amendment is applicable to assessment year 2007-08 onwards and for the year under consideration. Accordingly, it applies to the case of the assessee for this year. We find that this issue has not been adjudicated on merits by the AO. Therefore, we think it fit to restore the matter back to the file of the AO to adjudicate the admissibility of the amount u/s 36(1)(viia) on merits. Decided in favour of revenue for statistical purposes. Accrued interest on NPA - CIT(A) deleted the addition - Held that:- considerable cogency in the finding of the Ld. CIT(A) regarding the notional interest income that the same has not been received by the assessee and as such the AO was not justified to make the addition on the basis of notional interest because of the mercantile system of accounting only and accordingly, the addition was rightly deleted by the CIT(A). - Decided against revenue.
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2015 (6) TMI 199
Trading addition - rejection of book result U/s 145(3) - AO estimated the N.P. rate @ 10% - Held that:- The A.R. himself admitted before the Assessing Officer that Section 145(3) are squarely applicable in the case of assessee. The assessee has shown current outstanding liability as on 31/3/2008 at ₹ 70,83,850/-, which was more than 30% of expenditure under the head of salary and wages and also pending for more than three months, which is not possible in contractor line. The assessee's claim that, it did not receive the amount from the BSNL, therefore, wages were outstanding, which was received later on but the assessee has not submitted any evidence regarding the payment from the BSNL later on except written reply and also further subsequent withdrawal from the bank account and reimbursement of the salary and wages in cash. Therefore, learned CIT(A) was not right in holding that defects pointed out by the Assessing Officer cannot be ground of rejection of books of account U/s 145(3) of the Act. There is no justification by the learned CIT(A in confirming the addition of ₹ 1 lac without confirming the rejection of book result U/s 145(3) of the Act. The defects pointed out by the Assessing Officer are sufficient to reject the book result. However, we find that AO had estimated the income higher side and had not compared the past history of the case and also had not made any comparison with another case of similar line of business. Therefore, we confirm the addition @ 6% net profit subject to interest and remuneration to the partners. The Assessing Officer is directed to recalculate the income as per above findings given by the Bench. - Decided partly in favour of revenue.
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2015 (6) TMI 198
Transaction of shares - Short Term Capital Gains and Long Term Capital Gain or business income - Held that:- Activities of the assessee clearly prove that the assessee wanted to maximise the profit and not interested in appreciation of value of the scripts.In our opinion, entries in the books of accounts is one of the deciding factors,but not the conclusive factor to decide as to whether the assessee was a trader or investor of shares covered under the head STCG In the present case,we do not find that the assessee was in investor for the shares which were taxed under the head STCG.As far as the shares of Zicom Elec.are concerned,we are of the opinion that same had been rightly taxed under the head LTCG by the FAA. In our opinion,to that extent,the order of the FAA has to be endorsed. But,we are reversing his order for the shares that were taxed under the head STCG by the AO.In short,considering the peculiar facts and circumstances of the case we are of the opinion that assessee was not an investor, but was a trader.Thus,partly confirming the order of the FAA,we are are deciding the effective ground of appeal in favour of the AO,in part. - Decided in favour of assessee in part.
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Customs
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2015 (6) TMI 221
Eligibility criteria as per Notification 65/88, dated 1-3-1988 & Notification No. 118/86, dated 7-2-1986 - Seeking direction to Commissioner to do needful within a stipulated time - Held that:- In our considered opinion, the submission made by Mr. Shridharan is absolutely fair and we accept the same and accordingly, it is directed that the concerned Commissioner shall consider the direction issued by the Tribunal in the backdrop of the Notification which we have reproduced hereinabove within a period of three months after affording an adequate opportunity of hearing to the appellant. We may hasten to add that for availing an opportunity of hearing before the Commissioner, the assessee-appellant shall deposit 40% ad valorem if the same has not been realised from him. We have not addressed to any aspect, namely, the applicability of Notification or modification of rate of interest. - Appeal accordingly disposed of.
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2015 (6) TMI 220
Denial of refund claim - Bar of limitation - Payment of excess export duty as there was short shipment of export goods - Held that:- Commissioner(Appeals) has recorded a categorical finding in relation to the plea of the Appellant that what have been collected from them satisfy the definition of 'duty' as prescribed under Section 2(15) of the Customs Act, 1962, hence the refund of the same is governed by the provisions of the Customs Act, 1962. He has observed that since it is not a case of collection of duty under the provision of law declared later as ultra vires, hence the provisions of Section 27 of Customs Act,. 1962 is applicable to the present refund claims in view of the principle of law settled by the Hon'ble Supreme Court in Mafatlal Industries' case (1996 (12) TMI 50 - SUPREME COURT OF INDIA). We do not find any infirmity in the impugned order. - Decided against Assessee.
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Corporate Laws
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2015 (6) TMI 219
Application for extension of time for payment to deposit-holders after maturity - Application u/s 74(2) of the Companies Act, 2013 - Exemption from maintaining liquid assets as required under clause (c), sub-section (2) of Section 73 of the Companies Act, 2013 and Rule 13 of the Companies (Acceptance of Deposit] Rules, 2014 - Whether reschedulement of deposits are allowed in Companies Act, 2013 - Held that:- On seeing innumerable complaints coming from various depositors complaining that this company has not even cleared the deposits already matured, which the company ought to repay to the depositors as agreed by the company, therefore, I hereby hold that the company failed to clear the cases of matured fixed deposits and has not made any serious efforts in clearing the deposits already matured long before, leave of the other prematured deposits lying with the company against which several complaints come to the applicant company and various Government Authorities, it could be evident from the application that the company is not likely to dear the dues as mandated by the statute, it is understandable that company is genuinely making efforts to clear the dues, if it had cleared the FOs already matured. On the contrary, the company has come with its projections linking payments to the depositors to its projections so as to say it will require time more than that company mentioned in the agreements entered into with the depositors. I made it clear that under new Act there is no provision for reschedule of deposits, it has all been done away with in the new Act, reschedule of deposits is a history now. However, the company is granted 30 days' time to clear all matured deposits along with interest accrued from the date of this order, as to the complaints demanding payment of premature deposits, the company shall pay premature deposits along with interest @12%, preferably, within 30 days' time from the date of this order.The company is directed to pay FDs as per order of maturity. As to premature deposits, the company has to pay giving priority to date of maturity and date of complaint received by CLB, Ministry of Corporate Affairs, the company and by other Government Authorities. - Decided against the appellant.
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Service Tax
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2015 (6) TMI 231
Penalty u/s 78 - Goods Transport Agency service - service tax was not being paid by them on account of financial problems and non-availability of sufficient funds - Held that:- Non-payment of duty on account of financial difficulties without intimating the Revenue, especially when the appellant was registered with the department and was aware of its legal obligations, reflected upon malafides of the appellant. The amount of service tax required to be paid for the period of three years was also not on the higher side and as such, the appellant's contention that the same was not paid on account of financial difficulties, can not be appreciated. Further, the appellants have admitted their tax liability and have paid the same for the longer period of limitation. As such, the invocation of longer period itself suggests that there was suppression or misstatement on the part of the assessee for nonpayment of the tax, in which case penal provisions would get attracted. - as the appellants have already deposited the service tax along with interest before the issue of show-cause notice, the penalty imposed under the provisions of Section 78 is required to be brought down to 25% of the tax amount - penalty in terms of Section 78 is set aside - Decided partly in favour of assessee.
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2015 (6) TMI 230
Demand of service tax - GTA Service - Held that:- Goods were transported by the respondents in their own truck and in another truck, which was taken on hire by them on per day basis and for which the fuel and other expenses were borne by the respondents. Thus it is evident that they were transporting their own goods and were not engaging any goods transport agency. - respondents did not "receive" the goods from any person as the goods transported were their own goods. Further "Goods Transport Agency" as per definition in Section (50B) of Finance Act, 1994 means any person who (prior to 01.05.2006 commercial concern which) provides service in relation to transport of goods by road and issues consignment notes by whatever name called. - respondents were transporting their own goods and it can be nobodys case that even providing service to oneself is taxable. CESTAT in the case of Kesoram Spun Pipes p& Foundaries (2002 (5) TMI 3 - CEGAT, KOLKATA) observed that in the present case, the appellants have received goods directly from the suppliers of the Coke, who have themselves undertaken the deliveries of the goods at the appellants door-steps, it cannot be said that the appellants received the services of any commercial agency. - No merit in Revenue appeal - Decided against Revenue.
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2015 (6) TMI 229
Waiver of pre deposit - Works Contract Service - Held that:- Services provided to various customers which are in the nature of laying of pipelines for water supply may not be leviable to service tax under ‘works contract service' in view of the fact that in this case, water supply was made by the Government or Municipality to the citizens and therefore, it cannot be said on prima facie basis that ‘works contract' was in relation to commercial or industrial purpose. Therefore, substantial portion of demand gets excluded for the purpose of requirement of pre-deposit. It is also seen that another demand of more than 52 lakhs is for laying of pipelines and construction of the same for SEZ and prima facie , the appellant has made out a case. - Stay granted.
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Central Excise
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2015 (6) TMI 226
Exemption under Notification 1/93-CE dated 28.2.1993 - manufacture of Aerated Water under various brand names using the trade mark with the “Kalimark” / M/s.Kali Aerated Water Works” - Use of third party brand name - Held that:- Trade name 'Kalimark Aerated Water Works' and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same. The agreement further provides that the user of this trade mark, therefore, shall not make any payment of royalty or remuneration to any other party. This very fact was correctly appreciated by the Commissioner who decided the appeal in favour of the appellant. - appellant has been using its own brand name 'Kalimark' and it belongs to the appellant. In view thereof, the case of the appellant is squarely covered in its favour by the judgment of this Court in Civil Appeal No.9157 of 2003 titled CCE, Hyderabad IV vs. Stangen Immuno Diagnostics [2015 (6) TMI 155 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2015 (6) TMI 225
Imposition of penalty u/s 78 - Lower authority reduced penalty - Held that:- Appeal has been filed in the instant case only on 01/04/2013 whereas the order of the appellate authority is dated 21/12/2012. The 30 days time-limit granted by the lower appellate authority would have certainly expired before the appeal was filed. However, the Revenue has not verified whether the appellant has paid the lower amount of penalty or not. If they had done so, there would not be any need to file this appeal itself. Be that as it may, in view of the hon'ble Bombay High Court's decision in the case of Castrol India Ltd. (2012 (6) TMI 697 - BOMBAY HIGH COURT), the lower appellate authority could not have extended the time-limit for the appellant to pay the mandatory penalty under Section 78. To this extent the impugned order is incorrect in law and merits to be set aside - Decided in favour of Revenue.
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2015 (6) TMI 224
Wrong availment of modvat credit - capital goods - violation of Rule 57Q and 57(T) of CER - Held that:- appellants duly intimated the Department prior to the importation of capital goods, which is mandatory for availing capital goods credit. They have also intimated that the said capital goods were shifted to unit-II which is on record. The allegation made in the adjudication order and in the impugned order that the appellants have not received the capital goods is not well founded with any supported evidence. There is no verification report either from the Range Superintendent or from the division authorities concerned after the receipt of the first intimation in 1997 & 1999. Without any investigation and proof of evidence contrary to the intimation and documents on record the adjudicating authority concluded that there is no receipt of capital goods in unit-I. I find that even though the capital goods were imported in the year 1997 and 1999, there is no record on availing credit either by unit I or unit II. Appellants have reversed the entire credit availed by while shifting on 30.08.99 to their unit-II, which is clearly reflected in the invoice dated 31.08.99 and the appellants have paid the duty by reversal of RG23 (c) part2 006 on 31.08.99. It is further supported by RT12 returns filed for the month of August'99 wherein both availment of debit of RG23 (c) part 2 has been reflected in the returns. Rule 57Q (8) clearly stipulates removal of capital goods before being installed in the factory on payment of appropriate duty. - appellants have removed the capital goods from unit-I to unit-II without installing the same and reversed the entire credit. Therefore, reversal of credit is in conformity with Rule 57Q(8) of CER,1944. In the case of Pooja Forge Ltd (supra), on identical issue the DB of the Tribunal has allowed the credit on capital goods where the capital goods were removed from unit-I to unit-II of the appellants own units. - appellants followed the procedure correctly in conformity with Rule 57Q, 57(T) and 57(S) and rightly availed and reversed the same at the time of removal of capital goods to their unit-II. Accordingly, the impugned order disallowing credit availed against the first appellant and imposition of equivalent penalty is set aside. - Decision in the case of Pooja Forge Ltd (2006 (1) TMI 290 - CESTAT, NEW DELHI) followed - Decided in favour of assessee.
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2015 (6) TMI 223
Demand of interest - Delayed payment of duty - Supplementary invoices - Held that:- appellant has paid the differential duty against the supplementary invoices raised by them. Further, they have failed to pay the interest. The issue has been settled by the Hon'ble Supreme Court in the case of SKF India Ltd. (2009 (7) TMI 6 - SUPREME COURT) and International Auto Ltd. (2010 (1) TMI 151 - SUPREME COURT OF INDIA). No infirmity in the impugned order - Decided against assessee.
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2015 (6) TMI 222
Waiver of pre deposit - Utilization of CENVAT Credit - failure to discharge full duty liability due to clerical mistake - Payment to be made through PLA Account - Held that:- One of the grounds raised in the appeal was that there was no intention on the part of the appellant not to discharge full duty liability for April 2012 inasmuch as while the short fall in payment was to the extent of ₹ 2 Lakh, at that time they had cenvat credit balance amount of ₹ 3.3 Lakh and though this point had been raised in the grounds of appeal but the same had not been considered while this fact is clear from the Commissioner s observation in para 19.2 of the impugned order and for this reason only the Commissioner had imposed a lower penalty of ₹ 2 Lakh. - keeping in view the judgment of Hon ble Gujarat High Court in the case of Indusar Global Ltd. vs. UOI (2014 (12) TMI 585 - GUJARAT HIGH COURT), the appellant have prima facie case in their favour. - Stay granted.
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CST, VAT & Sales Tax
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2015 (6) TMI 228
Interest on refund claim - Whether the learned Tribunal has erred in holding that the dealer is entitled to interest under Section 54(1)(aa) of the Gujarat Sales Tax Act on refund arising from the appellate order - held that:- Dealer is entitled to interest under Section 54(1)(aa) of the Gujarat Sales Tax Act on refund arising from the appellate order - Decision in the case of State of Gujarat Vs. Doshi Printing Press [2015 (3) TMI 211 - GUJARAT HIGH COURT] followed - Decided against Revenue. Whether the learned Tribunal has erred in deleting levy of penalty under Section 45(2)(c) - Held that:- Following decision of Banu Hasim Vs. State of Gujarat reported in [2012 (7) TMI 873 - GUJARAT HIGH COURT] case decided against Revenue.
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2015 (6) TMI 227
Levy of tax on purchase value - Held that:- Sales had been done by the petitioner to the tune of ₹ 47,05,257/-. In view of Section 3(4)(a)(ii) extracted supra, the respondent has no jurisdiction to assess the tax based on the purchase value. According to the petitioner, the respondent had taken the purchase value as yardstick without considering the provisions of the Act. The statute speaks about the Sales Tax turnover alone for the purpose of liability under section 3(4) of the Tamil Nadu Value Added Tax Act, 2006. - In the light of the provisions under Section 3(4) of the Tamil Nadu Value Added Tax Act, 2006, as the sales of the petitioner are less than ₹ 50,00,000/-, the impuged order is liable to be set aside - Decided in favour of assessee.
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Indian Laws
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2015 (6) TMI 218
Legality of the proceedings initiated under Section 14 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - petitioner is aggrieved by the measures adopted by the respondent-AARCL for enforcement of the security interest in terms of sub-section (4) of Section 13 of the Act - Held that:- As per provisions of sub-section (3) of Section 17, if the Tribunal after examining the facts and circumstances of the case and the evidence produced by the parties, comes to the conclusion that any measures referred to in sub-section (4) of Section 13 by the secured creditor are not in accordance with the provisions of the Act or the Rules made thereunder, it can declare the recourse to any one or more measures referred to in sub-section (4) of Section 13 taken by the secured creditor as invalid and restore the possession of the secured asset to the borrower. Moreover, as stated by counsel appearing on behalf of the respondent-AARCL at the bar, the petitioner has already availed the remedy available under Section 17 of the Act before the Tribunal. - Present matter does not suggest any special feature warranting interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India, by passing the effective and efficacious statutory remedy available under the relevant statute. - Decided against appellant.
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