Tuesday, September 15, 2015

[aaykarbhavan] Judgments and Information [3 Attachments]




1
Commissioner, Customs and Central Excise, Meerut-I Versus M/s Janardan Plywood Industries Ltd., Dehradun
SSI Exemption - availing SSI benefit for one unit and paying full rate of duty from another unit simultaneously - Denial of exemption benefit under Notification No. 1/93-CE dated 28.02.1993 - Held that:- A bare reading of the amendment, which was inserted in the early Notification 1/93-CE, appears to suggest that this was done as manufacturers were coming in and out of this exemption. They first used to opt for exemption in a financial year and thereafter for other clearances they opted out of t.....
2
Commissioner of Service Tax, Mumbai Versus M/s MSIM Global Support & Technology Services Pvt. Ltd.
Denial of refund claim - unutilized CENVAT Credit - nexus between input service and export service - Held that:- There cannot be two yardsticks that in one hand availability of Cenvat credit is not under dispute but for granting the refund dispute was raised. - the ratio of the judgment of previous case MORGAN STANLEY ADVANTAGE SERVICES LTD [2014 (12) TMI 330 - CESTAT MUMBAI] is directly applicable in the present case. - Commissioner(Appeals) have considered the issue in detail and given finding.....
3
M/s Jain Irrigation Systems Ltd. Versus Commissioner of Central Excise, Nashik
Denial of refund claim - when the services are provided within and outside India and the recipient has paid the Service Tax, whether the appellant is entitled to refund on the part of services provided outside India by the service provider - Held that:- Admittedly the claim of refund is not time barred under the provisions of Finance Act or under Section 11B of the Central Excise Act. Hence, the ruling of the Hon'ble Bombay High Court relied upon by the Revenue in the case of Andrew Telecom (201.....
4
AAM Services India Pvt. Ltd. Versus Commissioner of Central Excise, Pune-III
Rejection of refund claim - Bar of limitation - Held that:- There is no dispute as to the fact that the appellant had exported the services and are claiming the refund of the service tax paid on the input services, which are used for providing such export service. It is also undisputed that the refund claims have been filed on 26/03/2010 and that foreign remittance have come during the period April to June 2009. - Consultant was correct in stating that this judgement of the Tribunal [2013 (7) TM.....
5
Elixir Training Services Pvt Ltd Versus Commissioner of Central Excise, Pune-III
Waiver of pre deposit - Commercial Training or Coaching Services - Whether the appellant's activity of training, coaching in spoken English language would fall into the category of vocational training or not - Held that:- while passing the stay order, the appellants own case for earlier period bench relied upon the orders passed by the co-ordinate bench in the case of Apex Institute of English vs. CCE - [2010 (8) TMI 245 - CESTAT, BANGALORE] and ICM English Centre vs. Commissioner of Service Tax.....
6
Sandeep Enterprises And Others Versus Commissioner of Central Excise And Service Tax And Others
Extension of stay - Extension beyond the period of 365 days - Held that:- Any stay order passed by the Tribunal, if it is in force beyond 07/08/2014, it would continue till the disposal of the appeals and there is no need for filing any further applications for extension of orders granting stay either fully or partially. - Decision in the case of M/s. Venketeshwara Filaments Pvt. Ltd. & Ors. Vs. CCE & ST., Vapi [2014 (12) TMI 227 - CESTAT AHMEDABAD] - Stay extended.
7
Rughani Brothers Versus Commissioner of Service Tax, Mumbai
Imposition of penalty - Delay in filing returns - Held that:- Rule 7C read with first proviso makes it abundantly clear that the maximum penalty that can be imposed under the said Rule is the one prescribed under Section 70. During the impugned period i.e. April 2008 to March 2011 the maximum penalty that could be imposed under Section 70 was ₹ 2,000/-. Therefore, in respect of six returns, the maximum penalty that could have been imposed was only ₹ 12,000/- and not more than that am.....
8
M/s Manchanda And Manchanda Builders Pvt Ltd Versus State of Haryana And Others
Charging VAT on amount other than value of good - Petitioners seeking declaration that Explanation (i) of Section 2(1) (zg) of Haryana Value Added Tax Act, 2003 and Rule 25 (2) of Haryana Value Added Tax Rules, 2003 and other related provisions, so far as they include value of land for charging VAT on developers to be ultra vires to Constitution of India – Held that:- In case provisions of law was seeking to charge sales tax on any amount other than value of goods transferred in course of execut.....
9
Meenakshi Paper Stores Versus Commissioner of Commercial Taxes, The Joint Commissioner (CT) Enforcement Wing, The Deputy Commissioner (CT) Enforcement Wing DC (CT) (ENF) , The Deputy Commercial Tax Officer
Retention of goods – One-time payment for release – Petition was filed challenging impugned order by which, on verification of bills, delivery address, TIN Number and CST Number, was not found, violating Rule 5 of TNVAT Act 2006 and thereby, goods were retained – However, petitioner submitted that in order to avoid further loss of time, petitioner was prepared to pay one time tax reserving his right to challenge impugned order – Held that:- respondent submitted that if petitioner comes forward t.....
10
M/s. SOUTHERN FAST FOOD COMPANY PRIVATE LIMITED Versus COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM AND COMMERCIAL TAX INSPECTOR
Detention of goods – Condition for release of goods – Petitioner aggrieved by notice detaining consignment of machinery and parts that was purchased by petitioner and also by imposition of security deposit as condition for release of goods and vehicle – Held that:- on verification of details available in KVATIS, it was found that petitioner had no branch or godown – It was therefore suspected that onward movement of goods, from check post, was pursuant to sale effected by petitioner to person in.....
11
Mr Haresh Goradia, Mr Hemant J. Patel, Mr Manohar V. Date Versus Commissioner of Central Excise, Raigad
Levy of penalty on Broker for abetment - Rebate of duty - export of goods under Rule 18 - Revenue contended that the rebate claims were filed by submitting false, fabricated and forged documents with an intention to fraudulently claim rebate of duty and to defraud the Government. - appellant contended that It is also submitted that they are only the commission agents. It is also argued that there is no documentary evidence on record to substantiate that the appellants are involved in the fraudul.....
12
M/s Lamicoat International Pvt. Ltd., Shri Lok Nath Prasad Gupta, Director, Shri Om Prakash Gupta, Director, Shri Dipankar Ghosh, Manager Versus Commissioner of Central Excise, Noida
Denial of CENVAT Credit - Clandestine removal of goods - Duty demand u/s 11D - Captive consumption - Demand of interest - Held that:- Every person who is liable to pay duty under this act or rules made thereunder has collected any amount in excess of duty assessed or determined is required to pay to the Central Government amount so collected. As per the show cause notice, the allegation of the Revenue is that as the activity of the appellant does not amount to manufacture therefore, the appellan.....
13
M/s RUPA DYEING & PRINTING PVT LTD Versus COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, SURAT I
Review/recall of order - Tribunal rejected revenue plea on account of procedural irregularity - appeal signed as well as filed by commissioner - Held That:- review is filed beyond limitation by 632 days. The appeal was decided after bipartite hearing. We do not see any justification for condoning the delay in any manner - Decided against assessee.
14
M/s Shiv Shanker Processor (P) Ltd. Versus Union of India and others
Waiver of pre deposit - Held that:- In view of the agreement between the counsel for the parties, the writ petition is disposed of by modifying the order dated 11.3.2013 - The petitioner, as a pre-condition, shall, deposit with the concerned department 25% of the duty demanded, i.e., ₹ 8.50 lacs within 15 days - Decided conditionally in favour of assessee.
15
The Commissioner of Central Excise Versus M/s. Satpuda Tapi Parisar SSK Ltd.
Penalty u/s 11AC - Tribunal reduced penalty - Held that:- In the light of the Judgment of the Apex Court in the case of Union of India v/s. Rajasthan Spinning & Weaving Mills, reported in [2009 (5) TMI 15 - SUPREME COURT OF INDIA], Counsel for the parties state that the impugned order of the CESTAT be quashed and set aside and the matter be restored to the file of the CESTAT for fresh decision on merits in accordance with law. - impugned decision of the CESTAT dated 22.11.2005 is quashed and set.....
16
M/s Filatex India Ltd Versus Commissioners of Central Excise, Customs and Service Tax-VAPI
Cleared the goods under the cover of ARE-3 on the strength of the CT-3 certificates without payment of duty - Partially Oriented Yarn - failure to produce warehousing certificates in respect of 13 ARE 3s - Imposition of penalty and interest - Held that:- Appellants cleared the goods under the cover of ARE-3 on the strength of the CT-3 certificates without payment of duty issued by M/s. Enkay Texofood Industries Ltd. - Tribunal in the case of Skyron Overseas Vs. Commissioner of Central Excise (S.....
17
MGM Industries Versus Commissioner of Central Excise, Pune-I
Classification of control panels - manufactured for general electric and can be put to use for X-ray machines and the application is exclusive. - Classification under Heading 8537.00 or Heading 9022.10 - Held that:- Typically in a medical X-ray, there are number of independent apparatus which are put together and work as a system. - 4-digit level in the HSN and in the Central Excise Tariff is exactly same. Further in the Central Excise Tariff, further division at 6-digit level is based upon whe.....
18
YOUNG STEELS PVT LTD SHRI DEVENDER ARORA, DIRECTOR Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-I
Waiver of pre-deposit - clandestine removal of goods - validity of evidences - Penalty u/s 11AC and Rule 26 - Held that:- Out of total duty demand of ₹ 74,06,356/-, ₹ 12.93 lakh is based on the entries in the purchase file recovered on 12/11/2008 from the premises of M/s.KIL at J-1200, Palam Vihar, Gurgaon , a portion of which was rented out to Shri Ravi Saini, an employee of KIL. There is no dispute that Shri Devender Arora, Managing Director of the appellant company in his statemen.....
19
Commissioner, Central Excise & Service Tax, Ahmedabad Versus M/s Cadila Veterinary
Denial of refund claim - Cash refund - Held that:- Tribunal remanded the matter to the Adjudicating authority to verify the use of CENVAT Credit on payment of disputed duty and now refunded amount, the assessee were compelled to pay duty out of the PLA during the said period. - despite the order of the Tribunal, the Adjudicating Authority upheld the earlier Adjudication order. I find that the Commissioner (Appeals) has given detailed findings on this issue and he has also verified the documents .....
20
Satnam Singh Alias Santa Versus State of Haryana
Conviction under Section 15 of the NDPS Act, 1985 - Held that:- mere nonjoining of the independent witness itself is not a ground to discard the prosecution case. The testimonies of the official witnesses also carries the same evidentiary value as that of any other witness - defence plea of the appellant that he has been falsely implicated at the instance of Leela Singh due to party faction has no substance, so there was no motive for the false implication of the accused-appellant by SI Budh Sin.....
21
Sunday Emegha Versus State
Conviction u/s 21(c) of NDPS Act and under Section 14 of Foreigners Act - Non compliance with Section 50 - Held that:- Recovery of heroine was not effected from the person of the appellant but from the handbag carried by him, hence the prosecution was not under an obligation to serve a notice under Section 50 of NDPS Act on the accused. - PW4/A under Section 50 of NDPS Act shows that the accused has been duly informed about his legal right to get his search conducted before a Gazetted Officer or.....
22
PARVINDER SINGH KHURANA Versus COMMISSIONER OF CUSTOMS AND ANR.
Release of bank guarantee - Provisional release of the orders of cars/ vehicles seized under section 110 of the Customs Act - Held that:- appropriate orders for the release of bank guarantee and also consequential orders applying the law declared in Jatin Ahuja v. Union of India and Ors. (2012 (12) TMI 675 - DELHI HIGH COURT) would be issued in tune with section 110 of the Customs Act within a week. The statement of the customs authorities and the Dy. Commissioner is hereby recorded. The respond.....
23
Commissioner Versus S. Krishna & Co.
Validity of impugned order - Dismissal of appeal on technical ground - Held that:- Review committee assigned reasons while directing the Department to prefer an appeal. Learned Judicial Member has not considered the ground mentioned by the Committee while recommending for filing of the appeals. On a technical ground of the appeals were dismissed. We are of the view, that since the report of the Committee was available with the Tribunal, it should have looked into the grounds on the basis of whic.....
24
TATA TELESERVICES (MAHARASHTRA) LTD. Versus UNION OF INDIA
Entitlement of benefit of exports made by its sister concern – Grant of EODC – Encashment of bank guarantee – Present Court held that petitioners were entitled to benefit of exports made by its sister concern – Though petitioners in pursuance to order approached respondent-4 for grant of EODC, same has not yet been issued by respondent No. 4 to the petitioners – Meantime, respondent-1 to 3 have addressed communication to Respondent-6 for encashment of one of bank guarantees submitted by petitio.....
25
Commissioner Versus Pasupati Acrylon Ltd
Levy of education cess and additional duty when basic customs duty is exempt - duty-free imports were being made under DEPB scheme - Benefit of Exemption Notification No. 32/2005-Cus. - Supreme Court after condoning the delay found no ground to interfere with the appeal file dby the Revenue against the deciison of High Court [2014 (1) TMI 169 - GUJARAT HIGH COURT] wherein High court held that Merely because the conditions provided for adjustment of credit in the DEPB scrips, it cannot be stated .....
26
The Commissioner of Income Tax Versus V.S. Dempo And Co. Pvt. Ltd.
Issue of interest income restored to the file of the A.O. by ITAT to exclude 90 % of 'net' interest income - whether the receipt on account of electronic data processing and professional services is not income but in the nature of reimbursement of expenses. Therefore, no occasion to invoke clause (bba) of Explanation to 80HHC would arise? - Held that:- We accept the revenue's contention that the receipts attributable to electronic data process and professional services would be in the nature of .....
27
M/s. Mookambika Associates Versus Assistant Commissioner of Income Tax And Others
Waiver of interest under Section 220(2) rejected - whether petitioner suffered genuine hardship? - Held that:- petitioner, a partnership firm, did not submit its returns for the year 2006-07 and 2007-08 within the time stipulated but did so only after the machinery provided under the Income Tax Act was put into force i.e. a search conducted and notice issued, pursuant to which returns were filed on 20.9.2010. The conduct of the petitioner speaks volumes of its commitment to rule of law. The fac.....
28
PR. Commissioner of Income Tax – 10 (2) Versus Groz Engineering Tools Pvt. Ltd.
Use of drawings, procedure and trademark of MPL - whether was going to bring an advantage of an enduring nature to the Assessee, therefore, capitalized as royalty paid by the Assessee to MPL also confirmed by CIT(A)? - ITAT was of the view that the CIT(A) was not justified in enhancing the addition made by the AO by capitalising the royalty - Held that:- There was sufficient opportunity for the AO, if he doubted the genuineness of the payment of royalty by the Assessee to MPL, to have conducted .....
29
Commissioner of Income Tax Delhi Versus Atma Ram Properties Pvt. Ltd. And Vica-Versa
Rental income received by the assessee from the tenants in occupation of the property - 'income from business' OR 'income from house property' - Held that:- In view of the fact that the Assessee has accepted the decision of the Income Tax Appellate Tribunal for the AYs 1992-93 till 1999-2000 and has expressed no objection to the Revenue's appeals for AYs 1990-91 and 1991-92 being allowed, the above questions in the Revenue's aforementioned appeals are answered in the negative i.e. favour of the .....
30
Shri Mohinder Singh Dhindsa, Prop M/s. Mohinder Oil Carriers Versus Income Tax Officer
Condonation of delay - delay of about 554 days - Held that:- It appears that for the first time the assessee has taken the plea that address mentioned on registered post is wrong or that the letter was sent on wrong address and there was no business at that time as it was closed in 2008. As regards the Plea that there was no business as it was closed in 2008, do not find an iota of evidence in support of this contention. Even otherwise also this contention of the assessee cannot be accepted on t.....
31
Income Tax Officer, Ward-II (2) , Gurgaon Versus Shri Attar Singh and Vica-Versa
Addition u/s 69 - unaccounted investment - Held that:- The authorities below have not disputed the fact that Shri Adisal was owning 8 acres of land jointly with other co-owners. However, the CIT(A) discarded and rejected the explanation of the assessee, affirming the conclusion of the AO that there has been no evidence given by the assessee to substantiate that he had received proceeds from agricultural produce.

When we observe the copies of the revenue patwari record column 5, we no.....
32
Dy. Commissioner of Income Tax, Circle–4 (1) Mumbai Versus M/s. Dhyan Stock Broking Pvt. Ltd.
TDS u/s 194C - profit sharing - Disallowance under section 40(a)(ia) - non deduction of tds - payments made by the assessee to jobbers / arbitragers - CIT(A) deleted disallowance - Held that:- We respectfully follow the order of the Tribunal in the case of M/s Asset Alliance Securities Pvt. Ltd. (2010 (7) TMI 720 - ITAT MUMBAI) and uphold the impugned order of the learned CIT(A) deleting the addition made by the Assessing Officer holding that the provisions of section 194C of the Act are not att.....
33
The Dharmodayam Co. Versus The Income Tax Officer, Ward-1 (1) , Thrissur.
Assessment of part of income accumulated u/s. 11(2) - disallowance of income accumulated u/s 11(2) - whether the bank fixed deposits, which were made in the immediately preceding year, could be earmarked towards the income accumulated u/s 11(2) of the Act or not, in compliance with the provisions of sec. 11(2)(b)? - Held that:- In the instant case, there is no dispute that the assessee has passed a resolution for accumulation of income duly specifying the purpose of accumulation. Out of the sum .....
34
Deputy Commissioner of Income-tax, Circle 12 (3) , Bangalore Versus Shri Tobby Simon
Deemed dividend u/s 2(22)(e) - CIT(A) deleted the addition - Held that:- We agree with the findings of the Commissioner of Income-tax (Appeals) that the payments made by the assessee on behalf of the company, for its business purposes and the reimbursement thereof to the assessee by the said company cannot be treated as deemed dividend under section 2(22)(e) of the Act. However, it is seen from the paper book filed by the assessee that some of the payments using his credit card were also towards.....
35
M/s. Almac Corporation 10, Ahmedabad Versus DCIT, Circle-10, Ahmedabad
Disallowance treating remuneration paid to the partners under the provisions of section 40(b)(v) as excessive - whether the interest income is to be considered for the purpose of calculation of remuneration to the partners? - Held that:- On perusing the assessment order, we find that though the A.O has stated that the interest of ₹ 8,30,979/- is in the nature of non business income and taxable under the head "income from other sources" but no such adjustment has been made by him while comp.....
36
Dr. Bhim Rao Ambedkar Educational Society Versus CIT –II, Lucknow
Eligibility for registration u/s 12A - whether the society is not being run according to the objects and thus contravenes the provisions of section 12AA(3)? - CIT(A) denied registration - Held that:- When the object clause shows that the education and treatment has to be provided free of cost and the assessee society is charging fees for those facilities, it has to be accepted that the assessee society is not being carrying out its activities as per its object clause and once this is found that.....
37
DDIT (E) , Trust Circle-IV, New Delhi Versus The Associated Chambers of Commerce and Industry of India
Charitable purpose - Expenses incurred outside India on account of foreign traveling - whether were not allowable as application of income as the assessee was not notified by the CBDT in this regard? - CIT(A) granted relief for the assessee - Held that:- Undisputedly and admittedly, the main objective of the assessee association is to promote trade and industry in India that in the present era of economic globalization, sending delegation to foreign countries cannot be held as outside the ambit.....
38
ITO Ward-44 (3) , New Delhi Versus Gautam Murgai
Unexplained cash credits and payments of credit cards from undisclosed sources - CIT(A) deleted the addition - reopening of assessment - Treating the unexplained cash credits as business receipt and determining income from business by applying net profit @ 5% of the business receipts - Held that:- CIT(A) has correctly mentioned that the income of the assessee's wife has to be excluded from the income tax assessment of the assessee, as the wife of the assessee is filing her returns with the respe.....
39
M/s. Samsung R&D Institute India Bangalore Pvt. Ltd. Versus The Additional Commissioner of Income Tax, Range 12, Bangalore. And Vica-Versa
Computation of deduction u/s. 10B - whether the CIT(Appeals) was justified in directing the AO to exclude the expenditure incurred in foreign currency such as salaries, travelling and conveyance, sub-contracting, software development charges, communication, etc. from the export turnover, with reducing the same from the total turnover also? - Held that:- CIT(Appeals) following the decision of the Hon'ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd. (2011 (8) TMI 782 - KARNATAKA .....
40
ACIT, CC-XXIII, Kol. Versus M/s. Zenith Timber Products (P) Ltd., Kol
Levy of penalty u/s 271(1)(c) - disallowance of claim of depreciation on land - assessee submitted that he had computed and claimed the depreciation on land due to misconception and confessed the mistake at the time of hearing by submitting a fresh depreciation chart - CIT(A) deleted penalty levy - Held that:- Order of the Ld. CIT(A) finds support from the order of the Tribunal passed in the case of the assessee itself in the immediately preceding assessment year 2005-06 on identical set of fac.....
41
M/s. Tidel Park Ltd Versus Assistant Commissioner of Income Tax, Company Circle- III (2) , Chennai and Vica-Versa
Eligibility for deduction under section 80IA - whether lease rent income received from letting out modules of software technology park to various lessees would constitute income from business and eligible for deduction under section 80IA? - Held that:- The issues in both the appeals of the assessee and Revenue have been decided by the Tribunal in assessee's own case for the assessment year 2008-09 holding that lease rent income from modules built up space of industrial park is assessable under t.....
42
M/s. Kataria Enterprise Versus ITO, Ward 2 (4) , Bhavnagar.
Reopening of assessment - CIT(A) restricting depreciation rate @15% instead of 20% on dumper vehicle thereby resulting in the impugned disallowance on merits - Held that:- Revenue strongly supports the impugned reopening action. However, it fails to rebut the factual position that the Assessing Officer has not decided assessee's stated objection. We are of the view in this backdrop of facts that such a course of action is mandatory on an Assessing Officer's part before framing reassessment. See .....
43
Smt. Sarwariben Versus ACIT, Cirlce-7, Ahmedabad
Short term capital gains in view of the SEBI's disgorging order - CIT(A)'s action challenged upholding assessment as short term capital gains on account of profits derived from sale of shares despite the fact that the same stood appropriated in SEBI's favour - Held that:- From the findings of the SEBI, it is implicit clear that both the assessees have indulged in violation of SEBI regulations, while making investments in IPOs. Whatever amounts they have illegally earned, which could be assessed .....
44
Bank of India Versus Asst. Commissioner of Income Tax-2 (1) , Mumbai
Treatment to Commission on share application made on behalf of PMS clients as income of the assessee - Held that:- There is uncontroverted finding in the assessment order as well as in the impugned order that even after set-aside proceedings, the assessee did not produce any evidence in support of its contention that the transaction and subscription was on account of PMS client account, thus, the addition was again made. Even, the submission of the assessee vide letter dated 23/06/2011 were cons.....
45
M/s. Jayant Security & Finance Ltd. Versus I.T.O. Ward 1 (4) , Baroda
Genuity of loss on sale of shares - Held that:- No reasons to reject the loss on sale of shares by the assessee. The prices at which shares are sold cannot be subjected to our scrutiny and determination, but then rejecting the loss in entirety ends up holding that the assessee ought to have sold the shares at the prices at which the same were purchased. That is beyond the plea of tax authorities to decide, and it is for the businessman as to how he conducts his business – though within the frame.....
46
M/s. Golden Developers Versus The Income Tax Officer (OSD)
Entitlement to claim of deduction u/s.80IB(10) - disallowance of claim - Held that:- The AO has allowed the claim of the assessee for deduction u/s.80-IB(10) of the Act for assessment pertaining to the AY 2006-07, wherein also the AO also allowed the claim of the assessee of deduction u/s.80IB(10) of the Act. Facts are identical and project is also same and the Revenue has not pointed out as to how the claim that was allowed in earlier years and under the same facts and circumstances would be di.....
47
DCIT, Circle 11 (1) , New Delhi Versus Exxon Mobil Gas (India) Pvt. Ltd.,
Transfer pricing adjustment - calculation of OP/TC of EIL - CIT(A) deleted the addition - Held that:- We find that the major item of 'Other income' is Interest income which rightly deserves exclusion from the operating profit. When we compare other figures from the Profit & Loss account of EIL and the Annexure-I, it comes to light that the figures of all the expenses tally. To put it simply, the assessee took all the expenses, including the non-operating expenses, in the calculation of operating.....
48
HDFC Bank Ltd. Versus Dy. Commissioner Of Income Tax
Disallowance made u/s 14A - Held that:- Even though the assessee has contended that it has used only its own funds for making the investments, in our view, the availability of own funds on the date of making investments needs to be verified. Admittedly, the facts relating thereto are not available on record. Since full facts which are required to be considered in order to properly appreciate various contentions of the assessee are not available before us, the bench suggested that this issue may .....
49
Asst. Commissioner of Income tax Versus M/s. Clarion Power Corporation Ltd., Hyderabad
Income generated in sale of Carbon Credits - whether treated as a capital receipt and not taxable as held by CIT(A) - Held that:- The issue in dispute is squarely covered by the decision of the ITAT, Hyderabad Bench in case of M/s My Home Power Ltd. Vs DCIT (2012 (11) TMI 288 - ITAT HYDERABAD), which has been confirmed by the Hon'ble Jurisdictional High Court in case of same assessee while dismissing department's appeal as reported in [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT ] holding that t.....
50
M/s Khira Mehta Shah & Associates, C/o Wankhede Stadium Versus ITO –19 (2) -3, Mumbai
Valuation of stock - partnership firm - Addition to income being difference between market value and the book value of the stock in trade of the appellant firm on the alleged dissolution of the appellant firm - Held that:- Once the dissolution takes place, distribution of stock in trade before the actual dissolution deed was drafted and signed will have to be valued at market price with a view to balancing the accounts. The business stated to be had come to a standstill as there was a dispute am.....
51
Asst. Commissioner of Income Tax, Circle-16 (2) , Hyderabad Versus M/s. Prabhat Agri Biotech Ltd.
Exemption u/s 10(1) - Disallowance of agriculture income - AO disallowed the amount on the reason that this is not agriculture income but income from business operations - Held that:- No reason to interfere with the order of the Ld.CIT(A). Not only that, the issue in earlier years was already crystalised in favour of assessee by the decision of the Hon'ble High Court of Judicature of Andhra Pradesh at Hyderabad in assessee's own case in [2014 (2) TMI 1197 - ANDHRA PRADESH HIGH COURT]. Hon'ble Hi.....
52
M/s. Ganga Foundations Pvt Ltd Versus The Commissioner Large Taxpayer Unit (LTU)
Waiver of pre deposit - Mandatory pre deposit - Section 35F - Held that:- Applicability of Section 35 F of the Finance Act is pending consideration before the Hon'ble Division Bench of this Court, this Court permits the petitioner to file an appeal along with waiver application, within a period of two weeks from the date of receipt of a copy of this order. Since the matter is pending before the Division Bench of this Court, testifying the validity of Section 35-F of the Finance Act, relating to .....
53
Commissioner of Customs, Central Excise And Service Tax, Hyderabad Versus M/s TPSC India Pvt. Ltd.
Waiver of pre deposit - Manpower supply service - Held that:- Tribunal ought not to have granted absolute waiver and also stay of recovery without imposing any condition, does not merit any consideration in the facts of the case. The Tribunal had taken into consideration of the fact that the issue with regard to similar circumstances was already the subject matter of two decisions of the Tribunal at Delhi, stated supra. In that view of the matter, when the issue is squarely covered, there would .....
54
The Commissioner of Customs, Central Excise & Service Tax, Guntur Versus M/s. Narasaraopet Municipality, Narasaraopet, Guntur
Imposition of penalty - Tribunal set aside penalty invoking section 80 - Held that:- Since the entire amount has already been recovered, there is no liability on the appellant. These reasons perhaps impelled the learned Tribunal to invoke provisions of Section 80 of the Act. Moreover, the learned Tribunal has followed its earlier decisions on the same point and those orders are not stated to have been challenged before any Court of law. - Tribunal exercised the power under Section 80 of the Act .....
55
The Commissioner of Central Excise Pondicherry Commissionerate and others Versus Customs, Excise & Service Tax Appellate Tribunal, Chennai and others
Demand of service tax - GTA Service - Held that:- ratio laid down in Cheran Spinner's case (2013 (8) TMI 215 - MADRAS HIGH COURT), is equally applicable to the cases on hand, following the said ratio, these appeals are also liable to be dismissed. - Decided against Revenue.
56
Elegant Developers Versus CC, Delhi
Waiver of pre deposit - Real Estate Agent Service - land acquired was agricultural land for real estate - Held that:- Value of the land is not includible in the assessable value for charging service tax and noted that the appellants failed to give the cost of land and that the average cost of land mentioned by the appellants was inclusive of the profit of the appellants which was includible in the assessable value. In the absence of data given by the appellants the primary adjudicating authorit.....
57
M/s 3 Generations Versus Commissioner of Service Tax, Delhi-II
Imposition of penalty - Payment of commission to foreign service provider - Liability under Reverse Charge mechanism - Bonafide belief - Held that:- Under Reverse Charge Mechanism the services receiver located in India who has received the services from the service provider located outside India is required to pay service tax under Reverse Charge Mechanism. Therefore, the contention of the bonafide belief is not sustainable. - appellant has paid the entire amount of service tax, in fact excess a.....
58
M/s Sethi Tools Pvt Ltd Versus Commissioners of Central Excise, Customs and Service Tax-Vadodara-II
Renting of Immovable Property - Penalty u/s 76, 77 & 78 - Held that:- As per the above provision an assessee who paid the service tax on 'Renting of immovable Property' before introduction of Sec 80(2) cannot be put at a disadvantage vis-a-vis a tax payer who delayed and paid tax on the same service after 6.3.2012. Further, there was a dispute on the levy of service tax on 'Renting of Immovable Property' and the same was brought to the notice of the department by the appellant through a letter d.....
59
Narasaraopet Municipality Versus Commissioner of Customs, Central Excise and Service Tax Guntur
Condonation of delay - Demand of service tax - Renting of immovable property - Penalty - Held that:- entire amount of service tax has already been recovered by the Revenue Authorities - following the earlier decisions, we set aside the penalties imposed on the appellant in their entirety taking a view that appellants are eligible for the benefit of provisions of Section 80 of the Finance Act 1994. As regards service tax and interest, the liability has been admitted and said to have been recovered. - Delay condoned conditionally.
60
M/s SRI NANJUNDESHWARA TRADERS Versus STATE OF KARNATAKA, BENGALURU AND OTHERS
Denial of input tax deduction – Bogus or false invoices – Respondent-Authority vide impugned order disallowed input tax deduction as claimed by petitioner on ground that invoices produced by petitioner was based on fake or duplicate invoices – Held that:- petitioner had claimed input tax credit however said claim was disallowed by after verifying records and finding that invoice which was relied upon by petitioner to claim input tax credit was bogus invoice or false invoice – Burden was cast on .....
61
M/s. DEN NETWORKS LTD. Versus THE COMMERCIAL TAX OFFICER AND INSPECTING ASST. COMMISSIONER
Penalty Proceedings – Petitioner impugns order passed in penalty proceedings in which it was stated that assesse acknowledged notice and filed reply involving objections to proposal for assessment under Rule 6(5) of CST (Kerala) Rules 1957 – It was alleged that Proceedings are initiated for levying penalty only on account of incorrect understanding of factual situation, So much so, proposal to impose penalty is without any basis – Held that:- In view of reply given by petitioner, finding in impu.....
62
Bharat Earth Movers Ltd. Versus State of Karnataka and Others
Waiver of pre-deposit amount – Petitioner sought direction to Tribunal to admit its appeal without insisting on pre-deposit of 30% of disputed amount as stipulated under Section 63(4) of Karnataka Value Added Tax Act, 2003 – Held that:- Section 63(4) insists on pre-deposit of 30% of tax or other amount disputed and also fee equal to 2% of amount of assessment objected to – There is no discretion vested with Appellate Authority to either reduce amount of deposit or waive deposit or make payment i.....
63
C. Bakthavatchalam Versus Union of India & Anr.
Denial of actual benefit of pay in the post of Inspector of Central Excise - Held that:- The very fact that the appellant was subsequently promoted, though notionally, indicates that the respondent-Union of India accepts the wrongful denial of such promotion to the appellant. The promotion made on the recommendation of the DPC would go to show that the appellant was fit and eligible for promotion on the dates when his juniors were promoted. The only ground that had prevailed upon the Union of In.....
64
M/s. Acumen Capital Market (India) Ltd. (formerly known as M/s. Peninsular Capital Market Ltd.) Versus The Commissioner of Central Excise Customs And Service Tax Cochin
Condonation of delay - Delay of 69 days - Held that:- Tribunal has stated in the impugned order that the non- availability of the Managing Director is not shown to have resulted in the business of the appellant to a standstill, and therefore, there is no reason to condone the delay, we think that the totality of the grounds raised in the appeal ought to have also been relevant consideration for viewing the situation as one where ends of justice would be satisfied, if delay is condoned on terms. .....
65
Rajesh Kumar Gupta Versus Commissioner of Central Excise, Chandigarh
Power of Tribunal to set aside ex parte order - whether the Customs Excise & Service Tax Appellate Tribunal, is empowered while exercising power under the Central Excise Act, 1944 to set aside an ex-parte order - Held that:- A perusal of order allowing the appeal against the appellant reveals that counsel for the appellant was not present. The Tribunal instead of passing an order initiating ex-parte proceedings, chose to forthwith decide the appeal and set aside the order passed in favour of the.....
66
SALASAR STEEL AND POWER LTD. Versus COMMISSIONER OF C. EX. & CUS.
Restoration of appeal - Appeal dismissed for non compliance with pre deposit order - Held that:- If an application had been filed on 22-8-2014 for rectification/modification of the order dated 11-7-2014 before the last date fixed for compliance by pre-deposit on 15-9-2014, we are of the view that the application was required to be considered and disposed in accordance with law. The order states that the application was not on record. If the Office of the Tribunal did not place it on record, the .....
67
Commissioner of Central Excise Chandigarh Versus M/s. Taurus Agile Technology Corporation Pvt. Ltd.
Denial of CENVAT Credit - nexus with manufacturing activity - Held that:- For the nexus of the services impugned, I find that the respondent paid service tax on lending of DLF office Chandigarh, maintenance charges Mumbai office, brokerage and commission paid to the agent for obtaining office building at Bombay, insurance, plant and machinery, security charges of Chandigarh office, house keeping charges at Chandigarh, Medical and accident insurance of employees, maintenance / rent charges of Ban.....
68
Shri Dinesh Magrupal Versus CCE, Daman
Levy of penalty for abetment - allegation of diverting and illicitly clearing the raw materials procured duty free and their finished product in DTA by resorting to under-valuation - Held that:- appellant is a 100% EOU. They supplied the raw materials to the main noticee under the cover of CT3 certificate after observance of the procedure prescribed under Central Excise Rules 2002. There is no dispute that the main noticee received the raw material supplied by the Appellant.

The case .....
69
NECO SCHUBERT AND SALZER LTD. Versus COMMISSIONER OF C. EX., NAGPUR
Export of goods against ARE-1 and bond - evidence - discrepancy in the description and classification of the goods - inter company movement of goods for Job work shown as sale and purchase - paper transactions - Held that:- Invoices which form the basis for demanding duty are issued by NSSL and these invoices are in the name of JNL. However, these invoices very clearly indicate the consignee as USCO Spa, Italy. Thus it is very clear that the goods covered by the invoices are being exported and .....
70
M/s Hindustan Lever Ltd. Versus Commissioner of Central Excise, Mumbai-I
Valuation - Determination of assessable value - clearing soaps in bulk to job-worker without marking MRP - Job worker in turn were packing the individual soaps in multi-piece packaging - Held that:- Since there is no assessable value determinable in this case recourse to Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 has been done. It would appear that determination of assessable value has been done by resorting to Rule 4 of Central Excise Valuation (Determinati.....
71
M/s Rallis India Ltd. Versus Commissioner of Central Excise And Service Tax, Surat-II
Denial of CENVAT Credit - whether the Appellant is eligible to take CENVAT Credit on the ISD invoices issued by Head office situated in Mumbai - services of Professional Fees & Brokerage for sale of Land is not in relation to manufacturing activity and is not eligible for CENVAT Credit - Held that:- Bench in the case of Cadmac Machinery Co. (P) Ltd Vs CCE Ahmedabad (2011 (8) TMI 709 - CESTAT AHMEDABAD) has held that the services regarding valuation of property have to be considered as an activit.....
72
Ashis Kumar Bose Versus Commissioner of Customs (Preventive) Kolkata
Dismissal of Appeal – Suspension of Identity card – Applicant changes finding recorder in impugned order that as per provisions of Custom House Agents License Regulations, 2004, only appeal lies against order passed under Regulation 20 or Regulation 22 and no appeal is pending before Tribunal against suspension of Identity Card, hence appeal was dismissed – Held that:- Admittedly both punishments, namely imposition of fine and suspension of Identity Card were challenged in appeal – However impug.....
73
M/s Super House Ltd. Versus Union Of India And 2 Others
Validity of service of Notice – Notices send via speed post – Condonation of Delay – Due to non-existence of All Industry Rate for riding breeches with artificial leather cloths, petitioner had made six applications for fixation of brand rate under Rule 6(1)(a) of Customs and Central Excise Duties and Service Tax Drawback Rules 1995 – Application was rejected on ground of two days delay – Revision was filed however it was informed that it had been filed beyond time, when calculated from order da.....
74
COMMISSIONER OF CUS., VISAKHAPATNAM Versus JAI BALAJI INDUSTRIES LTD.
Valuation - Suppression of value of goods - Inclusion of separate charge for design, engineering fee - Confiscation of goods - Redemption fine and penalty - Tribunal vide impugned order reported in [2014 (11) TMI 612 - CESTAT BANGALORE] set aside confiscation of goods, redemption fines and penalty - Present court is of opinion that certified copy of impugned order, which is annexed to appeal was underlined with red ink and also some endorsement was made by Officer with words "urgent AO/Legal" -.....
75
Commissioner Versus Fairway Trading Company Pvt. Ltd.
Denial of refund claim - Overvaluation of goods - Voluntary payment of duty - Tribunal vide impugned order reported in 2014 (10) TMI 506 - CESTAT BANGALORE held that refund sanctioned by original authority was in accordance with law and there was no need to interfere with same by filing appeal, thereby dismissed appeal of revenue - High court after hearing counsel for parties found that duty was paid by assessee under protest and ultimately it was found that such duty was not leviable - Therefor.....
76
IN RE : KUMAR IMPEX
Drawback Claim under S.no. 48026210 – export of plain paper cut in size - Quality of goods – Respondents claimed drawback under Sl. No. 48026210 @ 5.5% – Lower authority classified export goods under drawback S. No. 4802 0099 and allowed eligible drawback of 1% and not 5.5% as claimed by respondents – Commissioner(A) allowed drawback @ 5.5%, in favour respondent – Held that:- original authority held that goods are not of prime quality and hence, classifiable under drawback S. 48020099 @ 1% only .....
77
RELIANCE COMMUNICATIONS INFRASTRUCTURE LTD. Versus C.C. (I) , NHAVA SHEVA
Classification of goods - import of optical fibre cables (OFC) – Tariff entry CTH9001 and CTH8544 – Confiscation – Vide impugned order, adjudicating authority classified optical fibre cables imported by appellant under CTH 9001 and denied benefit of notification No. 24/2005-Cus, confirmed differential duty demand and confiscated goods – Whether goods were to be classified under CTH 8544 or under CTH 9001 of Customs Tariff – Whether confiscation of goods and imposition of penalty was justified –.....
78
Commissioner of Income Tax –V Versus Kapil Nagpal
Sale of shares - whether constitute long term capital gain? - Held that:- After analysing the documentary evidence produced by the Assessee, the CIT (A) fairly concluded that the actual transfer of the shares took place only on 8th November 2006 and that therefore, the Assessee had held shares for more than one year. The further consequential finding that long term capital gains resulted cannot be said to be perverse. Question is answered in favour of the Assessee and against the Revenue.
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79
K.K.J. FOUNDATIONS Versus THE ASSISTANT DIRECTOR OF INCOME TAX (EXEMPTION) , KOCHI
Rectification under Sec.154 - assessee seeking to rectify the order of assessment, contending that out of the gross income of ₹ 2,66,50,000/- an amount of ₹ 84,00,000/- was received during the previous year ending 31.03.2005 from Mr. K.K. Joseph as loan and ₹ 1,62,50,000/- was also received as loan from K.K. Joseph during the current year - Held that:- On a perusal of the facts, the orders rendered by the statutory authorities and the Tribunal and appreciating the pleadings put.....
80
Commissioner of Income Tax-4 Versus M/s Hindustan Organics Chemicals Ltd.
Legality of affidavit - Assessing Officer had filed the subject appeal has also filed affidavit dated 24 August 2015 pointing out that a mistake occurred on his part as he proceeded to file this appeal on the note prepared by his staff - Held that:- We accept the unconditional apology of the present incumbent Assessing officer as well as erstwhile Assessing officer who was Officer responsible for filing the appeal. We trust that they would be more careful in the manner in which appeals/affidavit.....
81
Nippon Leakless Talbros Versus Asstt. Commissioner of Income Tax, Circle Rewari, Haryana
Transfer pricing adjustment - Payment of royalty - Whether the assessee is paying royalty for the receipt of technical guidance, it need not have paid management fee as held by TPO - Commercial and Business expediency of incurring any expenditure - Held that:- The TPO while giving the appeal effect to the order of Hon'ble ITAT examined the additional evidences submitted by the assessee and deleted the addition on account of management fees vide its order dated 12.01.2015.Further in the AY 2009-1.....
82
DDIT, Circle-3 (2) , New Delhi Versus M/s. Corning S.A, Gurgaon
Transfer pricing adjustment - deletion of adjustment pertaining to agency services function carried on by the appellant by CIT(A) - whether TPO/CIT(A) were incorrect in not bench-marking the functioning of import of products from M/s Corning SA France and receipt of agency commission from M/s Corning SA France - Held that:- The conclusion however of the authorities below is that the distribution function and agency service function are not comparable. It has been found that distribution function.....
83
Raymond Limited Versus Dy. CIT-293) , Mumbai
Exigibility to interest u/s.244A - refund of tax to the assessee for the relevant year - Held that:- The Apex Court per its larger bench decisions in Modi Industries Ltd. (1995 (9) TMI 324 - SUPREME Court) and Gujarat Fluoro Chemicals (2013 (10) TMI 117 - SUPREME COURT) settled that there is no right to get interest of refund except as provided by the statute. The proposition of the interest being exigible on any amount paid, irrespective of either any obligation to pay or even its character und.....
84
American Express (India) Private Limited Versus DCIT, Circle 1 (1) , New Delhi and Vica-Versa
Transfer Pricing adjustment - selection of comparable - Inclusion of WEAL INFOTECH LIMITED - Held that:- No reason to disturb the view of the ld. CIT(A) because the assessee included it in the list of comparables in its Transfer pricing study. The very comparability of this company was not disputed by the TPO. In that view of the matter, the ld. CIT(A) cannot be faulted with for directing to include the data of a company in the list of comparables, which was originally included by the assessee a.....
85
M/s. Megha Developers C/o. V.P. Patel & Co Adv. Versus ITO, Ward-9 (4) , Ahmedabad
Eligibility of deduction u/s 80IB(10) - CIT(A) confirmed the action of the AO by observing that the society, Punit (Motera) Cooperative Hsg. Society Ltd., Ahmedabad was the sole owner of the land and the assessee has not incurred expenses on purchases of cement, steel etc. and that the assessee constructed and sold shops in the scheme, the built up area of which exceeds limit of 2000 sq.ft prescribed in clause (d) of section 80IB(10) with respect to shops constructed - Held that:- Facts in the p.....
86
DBH International Pvt. Ltd Versus ITO, Ward 10 (2) , New Delhi
Disallowance under section 14A read with Rule 8D - suo moto disalllowance - Held that:- It is seen that the appellant company itself has made the disallowance of expenditure u/s 14A r.w.r. 8D of ₹ 1,39,39,685/. The claim of disallowance made by the appellant company was examined by the AO during the course of assessment. The appellant produced the books of accounts and the evidences, which the ld. Assessing Officer had verified the ld. AO examined the books of accounts, evidences and recor.....
87
The Assistant Commissioner of Income Tax Versus M/s. M.K. Exim (India) Ltd.
Reopning of assessment - basis of reopening of the assessment order was lesser figure of total turnover - Held that:- It is undisputed fact that AO had not borrowed the satisfaction from the audit party as nowhere in the satisfaction he has mentioned the audit objection. As per his working in reasons recorded excess deduction had been calculated at ₹ 27,66,386/- on the basis of total turnover of ₹ 16,82,67,037/- whereas the assessee has taken total turnover in computation made by th.....
88
M/s. Bangalore Credit Co-Operative Society Versus The Deputy Commissioner of Income-Tax, Circle-4 (1) , Bangalore
Disallowance of deduction u/s 80P in respect of interest receivable on standard asset - Held that:- Assessee had deposited the money in a bank so as to earn interest. The said interest income is attributable to carrying on the business of banking and therefore it is liable to be deducted in terms of Section 80P(1) of the Act.

If the interest amount of ₹ 19,06,609/- on the standard assets representing the loan given to the members of the assessee society, than the said income is.....
89
Income-tax Officer, Ward 10 (2) , Ahmedabad Versus M/s Adroit Techno
Disallowance made on account of commission payment to non-resident - as per AO assessee has not paid the actual payment within the prescribed period of 12 months framed u/s 139(1) of the Act the whole expenses claimed by the assessee is not justified and hence not allowable u/s 195 - CIT(A) deleted the addition - Held that:- From going through section 139(1), there is no such provision mentioned in which some time prescribed period of 12 months is required for making the payment of commission to.....
90
Oriental Pathways (Nagpur) Pvt. Ltd. Versus ACIT, Circle-13 (1) , New Delhi.
Penalty u/s 271(1)(c) - disallowance of expenses written off u/s 35D - Held that:- Admittedly and undisputedly, the claim of preliminary expenses was allowed by the AO in five equal instalments starting from AY 2009-10 which also shows that 1/5th part of the claim of the assessee has been allowed by the AO during the year under consideration and remaining part has also been allowed by the AO in four equal instalments in the subsequent assessment years. Now, under above noted facts and circumstan.....
91
Shri Sayla Sukahadiya Parivar Trust C/o. Sheth Ramniklal Jayantilal Versus Commissioner of Income Tax (Exemption) Ahmedabad
Registration under section 12AA denied - Trust is created for the benefit of a particular community, which does not ensure for the benefit of the public, and thus, hit by section 13(1)(b) as said by CIT(Exemptions) - Held that:- As decided in C.I.T. vs. Barkate Saifiyah Society (1993 (11) TMI 13 - GUJARAT High Court) the Tribunal has rightly held that section 13(1)(b) applies only to trusts which were purely for charitable purposes and the assessee trust was charitable as well as religious in na.....
92
Asst. Commissioner of Income-Tax, Circle-9 (1) , Hyderabad Versus M/s Deccan Grameen Bank And Vica-Versa
Disallowance of broken period interest - CIT(A) deleted the addition - Held that:- Issue in dispute is squarely covered by the decision of the Tribunal in assessee's own case for AY 2010-11ssue in dispute is squarely covered by the decision of the Tribunal in assessee's own case for AY 2010-11 [2015 (4) TMI 583 - ITAT HYDERABAD] to hold that broken period interest claimed by assessee is an allowable deduction - Decided in favour of assessee.

Addition on account of amortization of prem.....
93
M/s. Bhagyanagar Oil Industries Versus Income Tax Officer, Ward-9 (2) , Hyderabad
Addition under section 68 - amount payable by the assessee to farmers towards purchase of sunflower seeds as unexplained cash credits - Held that:- As rightly submitted by the Ld. Counsel for the assessee, the impugned credits being trade credits of the assessee on account of purchase of sunflower seeds are not in the nature of cash credits as envisaged under section 68 and the same therefore cannot be added to the income of the assessee by invoking the said provision. Moreover, as pointed by hi.....
94
The ITO 9 (1) (4) Mumbai Versus M/s. Fobeoz India P Ltd.
Disallowance deleted by CIT(A) - CIT(A) deleting the addition of excess provision written back by the assessee in the profit and loss account and not offered for tax in this year - Monetary limits for the Revenue to file appeals - Held that:- Considering proposition laid down by the hon'ble High Court in the case of CIT v. Smt. Vijaya V. Kavekar [2013 (2) TMI 451 - Bombay High Court] we hold that in view of the revised Instruction issued by the Central Board of Direct Taxes under which, the mone.....
95
Starwing Developers Pvt Ltd And Others Versus ACIT 8 (3) , Mumbai
Disallowance u/s 14A r.w.r 8d - Held that:- The issue arising before us is identical to the issue before Tribunal in Rainy Investment Pvt. Ltd. Vs. ACIT (2013 (2) TMI 602 - ITAT MUMBAI ) and following the same parity of reasoning, we hold that no disallowances under section 14A of the Act is to be made in respect of the investment made by the assessee in share application money. However, relying on the order of the Tribunal we restore this issue back to file of the AO for verifying the claim of .....
96
Shri Om Prakash Bansal, S/o. Shri Ramavtar Versus Income Tax Officer, Ward-Behror, Behror
Rejection of books of account - trading addition - Held that:- The assessee's books have been rejected year after year and estimate has varied in each year. The ld. Counsel for the assessee has requested for addition on lump sum basis which in our view is not a scientific method and cannot be adopted in assessee's case. Thus looking at the repeated failure of not maintaining proper books, despite a voluminous business, nature of the business and the transactions, assessee cannot be allowed to e.....
97
Asstt Director Of Income Tax- (E) Versus Oil Industry Safety Directorate
Additions made on the basis of assessment completed as AOP - CIT(A) deleted the addition - whether the assessee has nowhere proved that it falls under the category of Artificial Juridical Person and is created by the Ministry of Petroleum and Natural Gas as its extension wing? - Held that:- CIT(A) in the impugned order has correctly deleted the addition in dispute by respectfully following his own earlier order for the asstt. year 2004- 05 wherein on the basis of the notification [Resolution No......
98
The ITO, Ward-I I (1) , Ludhiana Versus Shri Bir Parkash Malhotra Prop. M/s Ganpati Traders
Unexplained cash deposits in savings bank account - CIT(A) deleted addition - DR relied upon the orders of AO and submitted that no bill of sale has been produced before the authorities below. Therefore, the assessee could not co-relate the sale with the amount in question - Held that:- Commissioner of Income-tax (Appeals) noted that the assessee has withdrawn the amount of ₹ 10 lakhs each from M/s. Shiv Shankar Mega Mart which was deposited in the savings bank account of the assessee with.....
99
Marwari Panchayat Vastu Bhandar Versus Assistant Commissioner of Income-tax, Trust Circle, Guwahati
Eligibility for exemption U/s. 11 - whether both the AO as well as CIT(A) erred in law as well as on facts in holding that the appellant trust was carrying the business of renting vastu etc. for a fee and, therefore, it attracted the first provisio to Section 2(15)? - Held that:- The assessee a Public Charitable trust, was created vide deed of trust dated 01.06.2000, that it was granted registration u/s. l2A of the Act, w.e.f. 27.07.2001 that it was granted approval u/s. 80G(5)of the Act, in 200.....
100
Shri Padamram Devram Chaudhari (Prop. Dharnidhar Industries) Versus The ITO, Ward 2 (2) , Ahmedabad
Unexplained liabilities - Held that:- As far as the accounts of M/s. Bhagyoday Enterprises and M/s. Bhavana Trading Company, both under proprietorship of one Mr. A.P. Tripathi were not required to be disbelieved because of the reason that the liability outstanding as on 31st March, 2007 was not an old liability; hence, could not be considered as a doubtful liability. Since, the accounts were alive and the assessee was settling the accounts by making payments through account payee cheques, theref.....
101
Mindteck (India) Limited Versus The Income Tax Officer, Ward 12 (1) , Bangalore.
Setting off of loss of 10A unit against the 'income from other sources'- disallowance made by the AO on account of assessee's claim for setting off of the loss of 10A unit against interest income assessed under the head 'income from other sources' was confirmed by the ld. CIT(A) - Circulars beneficial to the assessee - Held that:- Keeping in view the legal position emanating from the judgments of Varghese (K.P.) v. ITO [1981 (9) TMI 1 - SUPREME Court] and Keshavji Ravji and Co. v. CIT, [1990 (2.....
102
L.R. Sharma Versus Commissioner
Recording of Satisfaction u/s 86 - clearance from the Committee of Chief Commissioners of Central Excise - Supreme Court dismissed the appeal filed by the assessee against the decision of Delhi High Court [2014 (4) TMI 403 - DELHI HIGH COURT] wherein Tribunal held that Chief Commissioners did not, on the record, record independent reasons for concurring with their respective subordinates does not render the authorization void. There is no such requirement in Section 86(2), and this Court does no.....
103
Gupta Global Resource Pvt. Ltd. Versus Commissioner
Waiver of pre deposit - Reimbursement of railway freight - Business Auxiliary Services and Goods Transport Agency Services - Held that:- The taxable service and rendered in taxable territory, which is provided or to be provided, that is brought within the purview of this enactment. The Tribunal ought to have indicated at least prima facie as to how in this case the Railway Freight and which is charged by Railway for transportation of coal from the mines to the destination, namely Karnataka Power.....
104
M/s Chandra Associates Versus The Commissioner (Appeals) Customs, Central Excise & Anr.
Condonation of delay - delay of 26 days - failure to give sufficient reason for delayed filing of the statutory appeal before commissioner (appeals) - Demand of service tax u/s 77 - Penalty u/s 78 - Held that:- The right of filing appeal under Section 85 (3A) of the Finance Act is a statutory right conferred on the person concerned by appropriate legislation enacted by the Parliament. Right of appeal, it is well established, is a very valuable right which cannot be taken away by adopting such a.....
105
Chaque Jour Outsourcing Solutions Private Limited Versus Commissioner of Service Tax & Anr.
Waiver of pre deposit - business auxiliary services - inclusion of the reimbursement expenses as the value of the taxable services - Held that:- Intercontinental Consultants (2012 (12) TMI 150 - DELHI HIGH COURT) held that rule 5 (1) - which sought to include expenditure or costs incurred by the service provider in the course of providing taxable services in the value for the purpose of charging service tax - to be contrary to Section 67 of the Finance Act. That judgment was delivered on 30.11.2.....
106
M/s. Shubh Labh Agency Versus CCE, Bhopal
Denial of refund claim - Unjust enrichment - Onus to prove - Held that:- Appellant had filed refund claim claiming it to be consequent upon the CESTATs Final Order [2008 (7) TMI 47 - CESTAT, NEW DELHI]. We find that the Commissioner (Appeals) has given clear finding that amount of refund claim is in respect of service tax which has been recovered from the customer namely M/s. J.P. Cement, Rewa and M/s. J.P. Cement has taken cenvat credit of the said service tax and utilized for payment of Cent.....
107
M/s. Gannon Dunkerly & Co. Ltd. Versus CST, New Delhi
Commercial or industrial construction services - Benefit of Notification No.15/2004-ST dated 10.9.2004 - abatement under Notification No.15/2004-ST - Held that:- It has been held by the CESTAT in case of Bhayana Builders (2013 (9) TMI 294 - CESTAT NEW DELHI (LB)) that value of free supplies need not be included for claiming abatement under Notification No.15/2004-ST. In the wake of the said judgement, even the impugned demands would not be sustainable and consequently the question of penalty wou.....
108
Vodafone India Ltd. Versus The Commissioner of Central Excise, Mumbai II
Availment of CENVAT Credit - duty paid on towers (in CKD/SKD form), parts of towers, shelters / prefabricated buildings purchased by them and used for providing output service - Held that:- Goods are neither 'capital goods' as defined in rule 2(a)(A) of the CENVAT Credit Rules, 2004 and nor do they fall within the definition of 'input' as defined in rule 2(k) thereof. This Court has further held that in any event the towers and parts thereof are in the nature of immovable property and are non-ma.....
109
Commissioner Versus Hi-tech Carbon
Demand of service tax - Effect of retrospective validation of service tax on GTA services for the period prior to 1-6-1998 - issuance of SCN u/s 73 - Supreme Court dismissed the appeal filed by the Revenue against the decision of Tribunal [2004 (8) TMI 7 - CESTAT (NEW DELHI)] since the issue raised in these appeals is squarely covered by the judgment of this Court in 'Commissioner of Central Excise, Meerut-II v. M/s. L.H. Sugar Factories Limited and Others' [2005 (7) TMI 106 - SUPREME COURT OF I.....
110
L.R. Sharma Versus Commissioner
Recording of Satisfaction u/s 86 - clearance from the Committee of Chief Commissioners of Central Excise - Supreme Court dismissed review petitions finding no reason to interfere with impugned order [2015 (9) TMI 589 - SUPREME COURT].
111
M/s Bhora Marbles Versus The Commercial Tax Officer, The Assistant Commissioner (CT)
Detention of Goods – Non availability of E-Transit passes – Respondent by impugned order detained goods of petitioner on transit on grounds that goods were not accompanied with E-Transit passes and amount mentioned in Invoices differ from amount mentioned in K.K.Forms – It was alleged by petitioner that accompanied with KK Forms and sale invoices, mentioning destination with Tax Identification Number and hence, first respondent ought not to have interfered with transit of goods – Held that:- Sec.....
112
Jay Ambe Traders Versus State of Gujarat
Pre-deposit Condition – Deposit of partial amount – Vide order passed by Appellate Authority demand was raised directing dealer to deposit 25% of total demand raised as pre-deposit – On ground of failure to comply with order of pre-deposit, Appellate Authority dismissed appeals – Tribunal directed appellant to deposit total sum of ₹ 20 lacs, on non-compliance of which Tribunal dismissed both appeals – Held that:- Admitted that appellant had deposited total sum of ₹ 14 lacs, therefore.....
113
Nagappa Auto Versus Assistant Commissioner (CT) (Main) , Aminjikarai Assessment Circle, Chennai
Failure to issue Show-Cause notice – Before passing impugned orders, respondent failed to issued show-cause notice to petitioner as per circular, therefore, impugned orders are not sustainable in law – Held that:- admittedly, impugned proceedings have been issued without issuing show-cause notice to petitioner –As per circular issuance of notice is desirable since there may be disputes on actual amount of arrears, number of days of delay and calculation of penalty – From reading of said circular.....
114
Carrier Aircon Limited Versus State of Haryana
Benefit of input tax credit – Whether dealer can file tax invoices and Forms VAT C-4 claiming benefit of input tax credit at appellate stage and in that eventuality liability of dealer is to be re-determined – Held that:- In view of observation made by current in M/s Vijay Cottex Limited, Panipat v. State of Haryana and others [2013 (12) TMI 1447 - Punjab and Haryana High Court] it has been held that dealer is entitled to produce Form VAT C-4 and tax invoices before assessing authority who shall.....
115
M/s. Rajaram Steel Industries Pvt. Ltd. Versus Commissioner of Central Excise, Customs, Nagpur
Recovery of excise duty - Liability of successor - Purchase of immovable property assets - Held that:- In the present case it is not under dispute that firstly the duty is recoverable from M/s. Sumit Rerolling Mills Pvt. Ltd but the assets was purchased by the appellant, not from M/s. Sumit Rerolling Mills Pvt. Ltd but from Zia Iron Stores. As per the provisions, if the asset is sold by M/s. Sumit Rerolling Mills Pvt. Ltd to the appellant then only proviso to provisions of Section 11 will attrac.....
116
Maharashtra Seamless Ltd. Versus Commissioner of Central Excise, Raigad
Cenvat Credit - Input services - Business auxiliary services being provided by the commission agents - Nexus with manufacturing activity - impact of the amendment to Rule 2(l) w.e.f. 1.4.2011 - The demands raised were confirmed by the Commissioner by distinguishing between the activity of "Sales Promotion" and "Sales" - Held that:- the decisions of this Tribunal in the case of Rosa Sugar Works vs. CCE, Lucknow [2013 (11) TMI 1074 - CESTAT NEW DELHI] is clearly applicable to this case. - Credit .....
117
Rakhoh Industries Pvt. Ltd. Versus The Union of India And Others
Denial of exemption claim - Whether the Load Spreading Plates (LSP) manufactured by the three Appellants and Towers can be considered to be covered under "Wind Operated Electricity Generator, its components and parts", which are exempted under Notification No. 6 of 2006 - tribunal has clubbing the three appeal and delivered different decisions - Held that:- Tribunal held that various judicial pronouncements have, according to the Counsel, allowed exemption to Towers and their parts. However, no .....
118
M/s. Smile Electronics Ltd. Versus Commissioner of Central Excise Customs And Service Tax
Waive of pre-deposit - Denial of benefit of Notification No.83/94-CE - Whether the non- fulfillment of conditions of Notification No.214/86-CE as also Notification No.83/94-CE, dated 11.4.1994 can be held to be procedural violation so as to extend the benefit of the Notification to the appellant - Held that:- Appellant admittedly has not followed the substantive conditions of the Notification in question which require the supplier of the raw material or semi-finished goods to give an undertaking.....
119
M/s JSW Steel Ltd. Rep By Its Authorised Signatory Versus Commissioner of Central Excise
Duty demand - suppression of facts - duty evasion - Held that:- Pointing out certain lapses and contraventions of the provisions of the Act and Rules, related to the actual production of finished goods, the respondent alleged suppression and duty evasion. Since the respondent has taken the ground of suppression, etc., it is appropriate for this court to direct the petitioner to file necessary objections to the show cause notice impugned herein. Hence, the petitioner company is directed to file t.....
120
M/s Dhariwal Industries Ltd Versus Commissioner of Central Excise Custom And Service Tax, The Superintendent of Central Excise (ADJN)
Duty demand - Violation of principle of natural justice - Denial of Opportunity of cross examination of officer who have allegedly conducted surveillance of the petitioner factory - Held that:- It is not the case of the revenue that Sohanraj Mehta who made the statements in the enquiry is examined as a witness in the case before the Court and that the court was of the opinion that having regard to the circumstances of the case his submission should be admitted in evidence, in the interest of jus.....
121
R. Krishna Mohan Versus The Assistant Commissioner of Central Excise, Prosecution Unit, Chennai
Request for quashing of complaint - petitioner has not complied with the order of the Commissioner of Central Excise - Held that:- Though the judgment in Anil Gupta v. Star India Pvt. Ltd. & Another [2014 (7) TMI 545 - SUPREME COURT] was delivered on 07.07.2014, the Hon'ble Supreme Court only laid down the law and did not state in the order that the order will have only prospective operation. Therefore, having regard to the provisions of Section 9AA of the Central Excise Act, 1944, which is in p.....
122
Hindustan Antibiotics Ltd. Versus Commissioner of Central Excise, Pune-I
Duty demand u/s 11D - sale of goods as inclusive of duty - according to the revenue, in such cases appellant is deemed to have collected excise duty from their customers and hence are liable to deposit the same under the provisions of Section 11D of Central Excise Act, 1944. - Held that:- Appellant is only trading in the goods under dispute. They are selling the goods at price fixed by NPPA. Further they are purchasing the same goods from the manufacture at the price fixed by NPPA with a discoun.....
123
Ciron Drugs & Pharmaceuticals Pvt. Ltd. Versus Commissioner of Central Excise, Thane-II
Utilization of Cenvat Credit for making deposit of 7.5%3 u/s 5F of the Central Excise Act, 1944 as pre-deposit before filling of appeal - Department claims that the disputed is related to cenvat credit itself and the action of the assessee is amount to reversal of the credit and not the payment of 7.5% amount - Held that:- the said amounts have not been reversed during the course of investigation but were paid by the appellant themselves and are a matter of dispute with reference to the duty de.....
124
M/s. EID Parry India Ltd. Versus CCCE, LTU, Chennai
Cenvat Credit - use of oxygen and acetylene gases as input - appellant stated that oxygen and acetylene gases are used for repair and maintenance of machineries which are used in the manufacture of final product and hence are eligible inputs - Rule 2K of CENVAT Credit Rules, 2002. - Held that:- appellant-assessee is entitled to avail CENVAT credit on oxygen and acetylene gases which are being used in repair and maintenance of plant and machinery as inputs - Decision in the vase of CCE, Coimbator.....
125
M/s Welspun India Limited Versus C.C.E. & S.T. -Vapi
Demand of interest u/s 11AB - interest on reversal amount of cenvat credit - whether interest is payable by the appellant under Central Excise Law when a monthly payment prescribed is not paid by the appellant, but entire payment of a Financial Year is paid subsequently within the specified due date under Rule-6(3A) of CCR - Held that:- In a situation when common inputs are used for making dutiable and exempted Final Products and separate accounts are not maintained, then appellate is required t.....
126
M/s Purify Filters Versus CCE, New Delhi
Duty evasion - Whether or not the appellant collected in the name of excise duty any amount from their buyers which they failed to deposit to the Government - Held that:- The plea of the appellant is that in all inclusive price purchase order they have only charged concessional rate of excise duty which they have deposited with the Government. However, the facts of the case as revealed from the records indicate that the rate mentioned in the purchase order is per piece price + Central Excise dut.....
127
Shri. Naman Hotels Private Ltd., Juniper Hotels Pvt Ltd, Johnson & Johnson Pvt. Ltd., Thyssenkrupp Industrial Solutions (India) Private Limited (erstwhile known as UHDE India Private Limited) Versus The Union of India And Others
Entitlement to the Duty Credit scrip under the Served From India Scheme - Denial on the ground that Petitioner is promoting 'Thyssenkrupp' brand which is not an Indian brand and that Petitioner is not an Indian service provider - Held that:- persons providing a service from India to any other country, from India to service consumer of any other country in India, supply of a service from India through commercial or physical presence in territory of any other country, supply of a service in In.....
128
Alliance Strategies Ltd. Versus Commissioner of Customs (Import & General)
Imposition of Pre-deposit Condition for hearing – Onerous and excessive – Appellant contended that Tribunal's condition for hearing of pre-deposit (to extent of 20% of penalty amount), is onerous and excessive – Held that:- no dispute that merely week after, appeal was filed, notification requiring pre-deposit fixed to tune of 7.5% of determined duty and penalty liability came into force – In light of this fact and further circumstance that director made admissions with respect to forgery, Court.....
129
Commissioner Versus Hoogly Mills Project Ltd.
Import of used/Second hand Machinery - Mis-declaration/under-valuation - Aggrieved by the order of tribunal reported in 2003 (6) TMI 140 - CESTAT, KOLKATA, Revenue had filed current C.E.R.C.- While relying upon the observation made, on current case, in Commissioner Versus East India Commercial Co. Ltd.[2015 (1) TMI 753 - ANDHRA PRADESH HIGH COURT] that age of machinery was more than 10 years old – Conclusion arrived at by Commissioner was not fully supported by evidence inasmuch as even as per r.....
130
Varalakshmi Exports Versus Commissioner
improper importation of goods - Confiscation of goods - stay of recoveries - Appeals filed against order confiscating goods and imposing penalty upon appellants were upheld by tribunal, however Demand of duty of ₹ 48,03,968/- and levy of interest were set aside, Penalty imposed under Section 114A were set aside, but penalty of 50% duty demanded was sustainable under Section 112 - Confiscation and imposition of fine was also set aside - Appeal against said order of tribunal was filed by app.....
131
THE COMMISSIONER OF INCOME TAX, COCHIN Versus M/s MERCHEM LIMITED
Disallowance under Sec.36(1)(va) r/w Sec.2(24)(x) - remittance of employees' contribution to Provident Fund and ESI has been delayed beyond the due date of payment prescribed under the respective Acts - ITAT deleted the addition - Held that:- If the intention of a particular provision of a statute can be gathered from the language used by the legislation, then we are bound to abide by the language used therein in order to ascertain the intention. We are also of the opinion that there was a clear.....
132
M/s. Dharmapuri Paper Mills Pvt. Ltd. Versus The Joint Commissioner of Income Tax
Reopening of assessment - escaped income under Section 115JA - assessee had written back depreciation wrongly in their profit and loss account and that therefore the income chargeable to tax had escaped assessment - Tribunal held that books profit is not to be reduced by the excess provisions of depreciation credited in the profit and loss account? - Held that:- The proviso under clause (i) of the Explanation makes it clear that in case where Section 115JA is applicable to an assessee in any pr.....
133
Commissioner of Income Tax (Exemption) Versus Bhagwan Shree Laxmi Naraindham Trust
Scope of Section 115 BBC on trust - Registration under Section 12A denied - receipt of anonymous donations - whether the case of the Assessee is clearly hit by the provision of Section 115BBC? - the case of the Assessee is not of public religious trust but a case of spiritual organization as held by AO - Penalty proceedings under Section 271(1)(c) were directed to be initiated separately - ITAT allowing the Assessee's appeal concluded that the Revenue had wrongly applied Section 115 BBC of the A.....
134
The Commissioner of Income Tax – 1 Versus M/s. BFIL Finance Ltd.
Income on account of short term capital gains on sale of property - selection of assessment year for taxation - Tribunal accepting the additional evidences setting aside the entire issue of Short Term Capital Gain - Held that:- Even where an assessee has offered tax in the subject assessment year, it was open to the assessee before the Appellate Authority to raise additional grounds to the effect that same should not be included in the total income for the purposes of taxation. The entire issue .....
135
M/s Subex Ltd. Versus Commissioner of Income Tax-III
Revision u/s 263 - as per CIT(A) AO did not verify the claim of the Assessee for deduction u/s.35D of the Act, by taking note of the definition of capital employed and as to whether share premium can be considered as part of the capital employed and whether FCCBs can be considered as debentures and taken as part of capital employed for the purpose of allowing deduction u/s.35D of the Act - Held that:- In the present case, the 1st year in which relief was allowed u/s.35D of the Act has since been.....
136
Pole to Win India (P.) Ltd. Versus Deputy Commissioner of Income-tax, Circle 11 (3) , Bangalore
Transfer pricing adjustment - selection of comparable - Held that:- Maple eSolutions Ltd. be excluded from the set of comparable companies as objection of the assessee with reference to this company is with regard to the financials of the company, on the ground of unreliability of data being acceptable.

Vishal Information Technological Services Ltd., Asit C Mehta Financial Services Ltd. (earlier known as Nucleus Netsoft & GIS (India) Ltd.) - Admittedly, as pointed out by the ld. D.R......
137
Mac Charles India Ltd Versus Deputy Commissioner of Income-tax, Circle -12 (1) , Bangalore
Disallowance of depreciation on land on which assessee had leasehold rights - alternate claim of assessee that the payment had to be allowed as revenueHeld that:- As decided in assessee's own case for AY 2006-07 to 2008-09 the lease rent paid for acquiring leasehold rights over the land can never be treated as cost of the plant (windmill). The functional test cannot be extended to a case of lease rent for acquiring leasehold rights over the land, whatever be the technical requirement of erecting.....
138
Sri Laxmidas Bapudas Darbar Versus The Income Tax Officer, Ward 1, Bagalkot.
Income under the head "Long Term Capital Gain" (LTCG) on surrender of tenancy rights - Whether the CIT(Appeals) was right in coming to the conclusion that there was no transfer of leasehold rights by the assessee in favour of the lessors? - Held that:- Admittedly, the compromise decree was registered and a sum of ₹ 8,49,639 was incurred as stamp duty and registration expenses in registering the compromise decree. A further sum of ₹ 5,81,090 had also been incurred to demolish the str.....
139
Dy. Commissioner of Income-tax, Circle – 8 (1) , Hyderabad Versus Quick MD, Hyderabad
Applicability of provisions of 10A(7) - AO is of the view that assessee has declared unreasonably high rate of profit only for the purpose of claiming exemption u/s 10A - arrangement between assessee and its AE resulting in higher margin of profit, disallowance of part of deduction u/s 10A by invoking the provisions of section 10A(7) read with section 80IA(10) - Held that:- Profit margin declared by assessee at 97.40% cannot be considered to be unreasonable or unbelievable considering other fact.....
140
D.C.I.T., Central Circle-VI, Kolkata Versus M/s. Maithan Smelters Ltd.
Deduction u/s 80IB on account of transport and other subsidies - CIT(A) allowed the claim - Held that:- Interest subsidy, transport subsidy and power subsidy received by the assessee are eligible for deduction u/s 80IB of the Act - See Commissioner of Income-tax Versus Meghalaya Steels Ltd. and M/s Pride Coke Pvt. Ltd. [2013 (7) TMI 175 - GAUHATI HIGH COURT ] - Decided in favour of assessee.

Addition on account of closing stock valuation of raw materials - CIT(A) deleted the addition .....
141
Shri S. Tejraj Ranka Versus The Assistant Commissioner of Income Tax, Circle 7 (1) , Bangalore.
Eligibility for deduction u/s 54F - AO was of the view that the value shown in the registered sale deed can be considered as investment in a residential house for allowing exemption u/s 54F - Held that:- Assessee has parted with a sum of ₹ 54,70,887 to acquire a " residential house", in the sense, a house which is habitable. Therefore as far as proceedings under the Act are concerned, the Assessee cannot be denied the benefit of deduction u/s.54F of the Act. The fact that there was underva.....
142
Vertex Homes Pvt. Ltd. Versus Dy. Commissioner of Incometax, Circle – 3 (3) , Hyderabad
Eligibility to claim deduction u/s 80IB(10) - Held that:- Provisions of section 80IB(10) being beneficial in nature, too technical a approach, would defeat the purpose for which provision has been brought into the statute. Moreover, as far as ld. CIT(A)'s observation that the housing project should have been completed by 31/03/2011, we do not find the same to be acceptable. As assessee's housing project has been approved after 1st April, 2005, the stipulated period within which assessee has to c.....
143
Income Tax Officer, II (3) , Lucknow Versus M/s. Saraswati Educational Charitable Trust
Anonymous donations - addition u/s 68 as unexplained cash credits - assessee trust - invoking provisions of section 115BBC - CIT (A) deleted addition on account of donations, not found explained by the Assessing Officer - Held that:- Though the Revenue has taken a plea that for anonymous donation, provisions of section 115BBC of the Act can be invoked but in the instant case where the assessee has filed various documents to prove the identity of the donors, these donations cannot be called to be.....
144
Shri B.L. Dasraj Urs, M/s. Sri Nimishamba Stationery Versus The Income Tax Officer, Ward 2 (2) , Mysore.
Penalty u/s. 271(1)(c) - vlidity of notice u/s. 274 - unaccounted sales - entire sale value was treated as income of the Assessee and brought to tax rejecting assessee contention that only the gross profit on these unaccounted sales can be added as income of the Assessee and not the entire sales - Held that:- On the facts of the present case that the show cause notice u/s. 274 of the Act is defective as it does not spell out the grounds on which the penalty is sought to be imposed.

.....
145
M/s. Bangalore Commercial Transport Credit Cooperative Society Ltd Versus Income-tax Officer, Ward – 3 (3) , Bangalore
Denial of deduction u/s.80P(2)(d) - assessee is a cooperative society - interest received by it on deposits placed with cooperative banks - Held that:- Deposits placed with banks could be considered only as investments irrespective of the classification done by an assessee. All deposits will be investments, unless the context otherwise suggest, whereas all investments may not be deposits. Therefore assessee was eligible for claiming deduction u/s.80P(2)(d) of the Act.

As to whether i.....
146
Syndicate Bank Versus Addl. CIT (CIB) , Hyderabad
Penalty u/s. 272A(2)(c) - CIT considered the non-submission of information as willful default and levied penalty - default in issuing notice - Held that:- There is no need for levy of penalty in the given cases. First of all, the notice issued u/s. 136 is a general notice asking for information which is not in the domain of the ITO, CIB. The CBDT itself has prescribed certain limits for calling for information and Income tax Act also prescribes various limits for furnishing information on a regu.....
147
Spandana Sphoorty Financial Ltd. Versus Addl. Commissioner of Income-tax, Range – 3, Hyderabad.
Disallowance u/s 14A - Held that:- The issue in dispute is squarely covered by the decision of the ITAT in assessee's own case for AY 2009-10 [2014 (11) TMI 229 - ITAT HYDERABAD ] wherein the Tribunal sustained the disallowance under Rule 8D(2)(ii) by observing as so far as disallowance @ 0.5% on the average value of investment under rule 8D(2)(III) is concerned, we are of the view that the same is in order. Reading of the provision contained u/s 14A and more specifically sub-section(3) of secti.....
148
Armed Forces Officers Co-operative Housing Society Ltd Versus Income Tax Officer, Ward-15 (1) , Hyderabad
Interest received from bank deposits/balances - whether is covered by 'Principles of mutuality' or not? - assessee is a housing co-operative society and has claimed certain incomes as exempt on 'Principles of mutuality - Held that:- Since jurisdictional High Court in the case of Secunderabad Club [2011 (8) TMI 752 - Andhra Pradesh High Court] has clearly held that interest received from third parties cannot be exempted under the 'Principles of mutuality', we reject assessee's contentions, as th.....
149
Public Education Society Versus The Deputy Director of Income Tax (Exemptions) , Circle 17 (2) , Bangalore.
Meaning of expression "such income" in section 11(1)(a) - Held that:- Identical issue was considered by the Apex Court in Commissioner of Income-Tax Versus Programme For Community Organisation (2000 (11) TMI 4 - SUPREME Court ) which was also applied by the Special Bench of the ITAT Mumbai in Bai Sonabai Hirji Agiary Trust. Versus Income-Tax Officer. [2004 (9) TMI 300 - ITAT BOMBAY-E] holding that the expression "such income" means gross income and not the net income after deducting the adminis.....
150
M/s. AVR Swarna Mahal and M/s. Swarnapuri AVR Jewellery Versus The Assistant Commissioner of Income-tax, Salem
Addition on gross profit difference between server copy and books of accounts - Held that:- Admittedly, there is a difference of ₹ 25,84,844/-, when the assessee's books of account compared with the stock. There is no dispute on this issue. Therefore, the ld. AR's submission that net profit to be considered, cannot be accepted, as all the expenditure is relating to the business of the assessee and already debited in the profit and loss account. There is no iota of evidence to suggest that .....
151
Bhaidas Cursondas And Company Versus Addl. CIT, Range-12 (1) , Mumbai
Disallowance u/s.14A in respect of direct expenditure, including by way of interest on borrowings, in relation to income/s not forming part of the total income - CIT(A) deleted addition in part - Held that:- Both the interest cost being allocated, i.e., as between the incomes forming and not forming any part of the total income, as well as the said incomes themselves, it needs to be noted, are for the whole year. This, even otherwise patent, becomes inevitable in the instant case as the assesse.....
152
The Deputy Commissioner of Income Tax Versus M/s Road Safety Club (P) Ltd.,
Membership fee receipt - accrual of income on proportionate basis - CIT(Appeals)'s action in allowing the assessee's claim offering only 1/8th of membership receipts received during the relevant previous year as its income - Held that:- The Revenue had sought to tax the similar membership advances in the relevant year of receipt in earlier assessment years as well. The assessee produces copy of the co-ordinate bench decision (supra) rejecting this course of action. The Revenue only submits that .....
153
The Assistant Commissioner of Income-tax, Central Circle -4, Surat Versus Shri Niraj Kumbhat
Eligibility for immunity under provision of Explanation 5 to Section 271(1)(C) - whether the assessee had offered the undisclosed income in the statement recorded u/s. 132(4) during the course of search or in a separate letter filed to the department on 02.08.2006? - CIT(a) allowed immunity - Held that:- The only objection of the Revenue that the assessee has not specified in its statement, the manner in which such income has been derived is baseless as it has been categorically observed by the .....
154
M/s Sunny Jacob 916 Jewellery Versus The Dy. CIT, Cent. Cir. Kottayam
Suppression of sales - CIT(A) deleted the addition - Held that:- This Tribunal is of the considered opinion that Commissioner of Income-tax(A) is not justified in deleting the addition for the assessment years 2002-03 to 2007-08. However, the statement recorded from the cashier and other persons and the material collected by the Commercial Tax Department needs to be examined after giving an opportunity to the taxpayer. The taxpayer had no occasion to respond to the material collected by the sale.....
155
N.V. Marketing Pvt. Ltd. Versus Union of India & Others
Waiver of pre-deposit - Challenge to the Explanation to clause (ii) of Section 65(19) of the Finance Act, 1994 - promotion or marketing of games of chance, organised, conducted or promoted by the client - Held that:- It has been inter alia, held by the Sikkim High Court [2013 (11) TMI 1002 - SIKKIM HIGH COURT] that the activity of promotion, marketing, organising or in any other manner assisting in organising games of chance, including lotteries is an activity falling under "betting and gambling.....
156
Bhumika Enterprises Versus Commissioner, Value Added Tax & Anr.
Issuance of notices under Section 59(2) of the Delhi Value Added Tax Act, 2004 - Held that:- Two notices read together make out a very depressing story insofar as the functioning of the Department of Trade and Taxes, Government of NCT of Delhi is concerned. We had indicated that, on the one hand, on the same day, a notice for production of records on 26.06.2015 is issued and on the other hand, on that very day, the default assessment notices were issued in which it is stated that the dealer has .....
157
M/s. The Design Consortium Versus Commissioner of Central Excise, Delhi-II
Denial of refund claim - Bar of limitation - Held that:- in the present case the date of filing the refund claim electronically, which is 5.7.2012, is to be taken as the date of filing the refund claim and with reference to that date the impugned amount rejected is not barred by time. - for the creatures of the Statute (including the Deputy Commissioner and the CESTAT Tribunal) the time limit prescribed under Section 11B ibid is sacrosanct - even if the Superior Courts in some cases having regar.....
158
Chandra Lubricare Versus Commissioner of Central Excise, Madurai
Valuation - reimbursement of expenses - Clearing & Forwarding services - appellants have claimed deductions towards reimbursable charges under the head "VSAT Allowances & Delivery Charges" - Held that:- appellants have entered into a contract agreement with Castrol India Ltd. which covers entire functions of clearing and forwarding of the appellant. Therefore, service tax is demandable on the gross amount and the same cannot be vivisected. - LAA has rightly upheld the demand - Decided against the assessee.
159
M/s Skyline Contractors Pvt. Ltd. Versus CST, Delhi
Demand of service tax - Inclusion of value of material supplied free of cost - Overlapping of periods - Held that:- Mere overlapping of certain period is no evidence that the service tax has been demanded on the same transactions. Therefore it will be open for the appellant to take this plea during de novo adjudication to show that there is overlapping of transactions inasmuch as certain transactions have been included in both the show cause notices for charging of service tax. - Matter remanded back - Decided in favour of assessee.
160
CCE, Kanpur Versus M/s Society Motors
Business auxiliary service or Business support service - automobile dealers - appellant was providing space and accommodation to the financial institutions - Held that:- Appellant was receiving incentive/commission from bank and other financial institutions of providing services to them in relation to granting loans to its customers and that it was not charging any rental from them (i.e. banks/financial institutions). In the light of the said statement, we find that the inference by Commissioner.....
161
Pidilite Industries Ltd Versus Commissioner of Central Excise, Customs (Adjudication) -Vadodara -II)
Denial of refund claim - SEZ unit - receipt of services - egal Consultancy Services were not included in the list of services approved by the developer during the relevant period when services were availed - Held that:- It is observed from Clause 2 of Notification No. 9/2009-ST, dated 03.03.2009 and later claim considered under Notification No. 17/2011-ST, the exemption by way of refund is admissible if, the services are approved by the developer or unit of SEZ. It is claim of the appellant that.....
162
Pidilite Industries Ltd Versus Commissioner of Central Excise, Customs (Adjudication) -Vadodara-II
Denial of refund claim - Notification No. 9/2009-ST dated 3.3.2009 - duty paying documents were not furnished - Held that:- appellant while making the rebate claims furnished a calculation sheet showing the documents under which the duty payment has been made to the service providers and also the cheques through which such payments were made. Serial No. 5 of their refund application dated 25.03.2011 also indicates that the invoices/bills evidences payment of service tax are enclosed. Serial No. .....
163
M/s. Nirma Limited Versus Commissioner of Central Excise & S.T., Ahmedabad
Denial of refund claim - whether appellant will be entitled to refund as per Notification No. 41/2007-ST dated 06.10.2007 for Custom House Agents Services availed under Section 65 (105) (h) and transport of goods under Section 105 (zzp) of the Finance Act, 1994. - Held that:- In view of the case laws relied upon by the appellant, services availed in relation to exports on account of REPO Charges, Transportation from factory to place of export, Terminal Handling Charges etc., are eligible for ref.....
164
MODIPON FIBER CO Versus STATE OF GUJARAT
Levy of Interest – Delayed payment – Whether Tribunal was right in law in holding that applicant was liable to pay interest as assessed by Sales Tax Officer under section 47(4A) of Gujarat Sales tax Act, 1969 – Held that:- Similar question was discussed in case of Brook Bond India Ltd Vs. State of Gujarat [1998 (11) TMI 632 - GUJARAT HIGH COURT] – On considering ratio laid down in said case as similar facts and questions of law were involved, assesses would not be liable to pay any interest as a.....
165
M. Sahul Hameed Versus The Commissioner of Commercial Taxes, The Deputy Commercial Tax Officer
Violation of Principle of natural Justice – Non Supply of Invoices – Incorrect and Incomplete exemption claim – Second respondent issued notice, alleging that exemption claimed by petitioner was incorrect and incomplete, thereafter passed impugned assessment order, confirming proposal in notice – It was alleged that respondent did not furnish copies of documents sought for by petitioner and without giving any opportunity of personal hearing to petitioner, impugned order was passed violating prin.....
166
Mukat Pipes Limited Versus State of Punjab and another
Extension of Time to submit documents – Rejection of Application – Assessing authority issued notice for framing assessment – Petitioner produced declaration forms out of which some declaration form was disallowed by assessing officer on ground that said form was not filled with complete details – Assessing authority rejected plea of petitioner for extension of time – Tribunal also dismissed appeal against said order of authority – Held that:- not disputed that one C form was returned by Departm.....
167
Shifa Constructions Versus Additional Commissioner of Commercial Taxes, (Zone-1) , Gandhinagar, Bangalore
Determining rate of tax to be levied – Assessing authority had passed assessment order determining gross turnover and taxable turnover and levied tax – Tax was levied at rate of 1.5 per cent. under section 6B of KST Act though it was case of assesse that as per Government notification, tax payable under section 6B of KST Act on turnovers relating to sale of iron and steel was specified at 0.3 per cent – Held that:- Admittedly revisional authority while taking into consideration fact that amount .....
168
M/s. Bhor Industries Ltd. Versus Commnr. Of Central Excise Mumbai
Extended period of limitation - assessee would be disputing the classification as approved by the Revenue. However, in spite thereof the goods were not cleared as per the classification approved by the Revenue but at a lower rate on the basis of classification which the assessee thought was the correct classification. Thus on the basis of the misstatement larger period of limitation was invoked. We find that action of the Commissioner on limitation has been upheld by the Tribunal as well after g.....
169
M/s. Sharp Carbon India Versus Commissioner of Central Excise, Kanpur
Extended period of limitation - wilful suppression of fact or commission of any fraud - suppression of production of goods and clandestine removal - Held that:- firstly the assessee had not produced invoices etc. despite being demanded by the Central Excise Officers vide letters dated 10.1.1990, 23.1.1990, 5.3.1990, 27.3.1990, 24.4.1990 and 14.5.1990 and when the Central Excise Officers visited the manufacturing unit on 17.5.1990 then the appellant took the stand that the records have burnt in.....
170
M/s. Tigrania Metal And Steel Industries Pvt. Ltd. Versus Commissioner of Central Excise
Extended period of limitation - jurisdiction of the authorities - question of fact or question of law - Appellant would submit that if the point of limitation involves jurisdiction of the authorities, then, the findings, though mixed in character, raise a substantial question of law - Held that:- It is unfortunate that this technical defence has resulted in repeated remands and the Revenue and its officers being engaged endlessly by the Tribunal and their superiors in considering the issue. I.....
171
The Commissioner of Central Excise, Pondicherry Versus M/s New India Surfactants, Customs, Excise And Service Tax Appellate Tribunal
Cenvat Credit - Final product being Spent Sulphuric Acid was cleared at nil rate of duty - in the nature of by-product or waste - Held that:- Spent Sulphuric Acid is not a final product, as has been held in the decision of the Supreme Court and assuming it is a waste, refuse or by-product, it is chargeable to nil rate of duty - cenvat credit cannot be denied - Decision in the case of Hindustan Zinc Ltd. [2014 (5) TMI 253 - SUPREME COURT] followed. - Decided against the revenue.
172
TCS e-Serve Ltd. Versus Union of India & Ors.
Denial of refund claim - Department has not accepted the Tribunal's order and has filed an appeal against the same in this Court - Held that:- There is no legal provision which is brought to our notice enabling the Revenue to keep refund applications pending merely because an order passed by the Tribunal has been challenged by the Revenue in further appeals. In the teeth of the clear language of law and there being no interim stay in favour of the Revenue, we find no justification for keeping th.....
173
M/s Balaji Alloys Versus Commissioner of Central Excise, Chandigarh
Condonation of delay - Delay of 132 days - Held that:- Even assuming that there was negligence on the part of the consultant, considering the extent of delay, the appellant ought not to be visited with such drastic consequences. There was nothing to indicate that there was any negligence on the part of the appellant who had engaged the consultant and not furnished him the instructions to file the appeal. - Delay condoned.
174
Videocon Industries Ltd. Versus Commissioner of Central Excise, Aurangabad
Duty demand - Valuation - Whether warranty charges can be allowed to be deducted from the MRP for the purpose of valuation under Section 4A - Held that:- From the reading of section 4A in subsection (2) it is very clear that while arriving at the assessable value for the retail sale price an amount of abatement is specified by notification can only be deducted. In the present case, on CTVs the abatement during the relevant period was provided within the range of 30% to 35% in terms of Notificati.....
175
M/s Green Brilliance Energy Pvt. Ltd. Versus Commissioner, Central Excise & Service Tax, Vadodara-I
100% EOU - Export / DTA clearance of non-excisable / exempted goods - exempted goods versus Zero rated goods or Nill rated goods - interpretation of an exemption notification - Notification No.22/2003-CE or No.52/2003-Cus - Whether a 100% EOU is entitled to exemption on inputs used in the manufacture of finished goods, which are either non-excisable or if imported, are chargeable to Nil or exempted rates, in view of second Proviso to Clause 6 of Notification No.22/2003-CE, dt.31.03.2003 or Provi.....
176
Savira Industries, Commissioner of Central Excise Versus Commissioner of Central Excise, Savira Industries
Extended period of limitation - Manufacture - SSI Exemption - activities of drilling, punching holes, welding and bending etc. on job work basis - bonafide belief - appellant categorically stated inter alia that they are only job worker carried out fabrication and received labour charges and also stated that he was not aware that such fabrication undertaken by them would attract excise duty - Held that:- the appellants genuinely believed that mere cutting, bending, welding of steel rods/sheets .....
177
M/s DHARIWAL INDUSTRIES LTD Versus COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX
Refund claim - manufacture of Gutkha and Pan Masala - Reopening after Closure of factory due to banning the use of plastic pouches - Abatement under Rule 10 of Rules 2008 - Assessee reopened the factory - Held that:- It is revealed from the letter dt.08.02.2011 of the Appellant, as referred above, that the Appellants had given intimation to the Assistant Commissioner of Central Excise that they closed down their factory due to the notification issued by the Ministry of Environment & Forest, Gov.....
178
The Commissioner of Customs (Sea Imports) , Chennai Versus Customs, Excise & Service Tax Appellate Tribunal, Chennai and others
Monetary limit – Redemption fines and penalty being less than monetary limit – Confiscation of goods and consequent imposition of redemption fine and penalty was imposed by adjudicating authority – Tribunal found that confiscation ordered under Section 111-D of Customs Act is not maintainable and as result, allowed appeal filed by assesse – Held that:- seen from records that assessing officer initially imposed ₹ 3,00,000/- as redemption fine and ₹ 70,000/- as penalty, which, on appea.....
179
M/s. Aquamall Water Solutions Limited Versus The Commissioner of Customs (Import) ICD, And Another
Re-assessment of Bills of entry – CVD mistakenly paid at 10% instead of 6% – Petitioner from time to time imported Reverse Osmosis (RO) membrane element for household type filters – Petitioner claims that, at import stage Counter Veiling Duty (CVD) was paid; though mistakenly at rate of 10% – Assertion of petitioner is that, notification had been issued by respondents, whereby CVD, on RO membrane, for household type filters, had been reduced to 6% – Petitioner seeks direction for reassessment of.....
180
Commissioner of Customs (EP) Versus National Steel & Agro Industries Ltd.
Utilisation of Advance Licensing Scheme – Matter Remanded back for De-Novo consideration - Tribunal vide impugned order remanded matter back to Commissioner for denovo consideration, and to re-¬adjudicate show cause notice in its entirety – Whether tribunal was justified in remanding matter back for de-novo consideration – Held that:- Tribunal clearly concluded issue that activity of respondent assessee could be termed as "manufacture" – Only limited issue which was being dealt with by Tribunal .....
181
COMMISSIONER OF CUS., CSI AIRPORT, MUMBAI Versus GYANCHAND JAIN
Penalty imposed for improper importation of goods - Withdrawal of penalty - Whether Tribunal is right in law in setting aside penalty imposed under Section 112(2) of Customs Act, 1962 – Held that:- Once assessee is recognized as sole proprietorship concern, then, imposition of penalty on firm/concern or proprietorship concern and sole proprietor separately was not permissible in given facts and circumstances – Therefore, tribunal was justified in setting aside penalty upon sole proprietor-respon.....
182
Innobiz Electronics Pvt. Ltd. Versus Commissioner
Imposition of Pre-deposit – Rejection of Waiver – Whether Tribunal was justified in directing Appellant to deposit amount as pre-deposit when appellant's goods were still lying under control of Revenue and rejecting total waiver of pre-deposit – Held that:- Authority rejected value declared in bill of entry and re-determined value under Section 28(4) of Customs Act, 1962 – Goods valued at ₹ 33.5 lakhs were directed to be confiscated and allowed to be redeemed on payment of redemption fine .....
183
Enercon GmbH Versus Wind World (India) Limited and others
Mismanagement or oppression - CLB has found that, the case of oppression made out by the Mehras against EG is proved and as per provisions of Section 397, 402 and 403 of the Companies Act, 1956 (the Act), buyout by Mehras of the shareholding of EG is necessary. - CLB has directed EG to sell it's share holding to Mehras, laying down certain modalities as regarding appointment of facilitator and for valuation. - Held that:- if one takes overall view of the decision, it clearly appears that the man.....
184
Director of Income Tax Versus M/s. Ericsson Communications Ltd.
TAS deduction - amount was credited on account of royalty payable to Telefonaktiebolaget L.M. Ericsson, Sweden (hereafter 'TLME') - said entry was subsequently reversed, as according to the Assessee, the payment of royalty to TLME was not permissible as per the Industrial policy in force at the material time - accrual of income - Whether the Tribunal was right in law in holding that the assessee was not liable to deduct TDS under Section 195 ?- Held that:- Indisputably, the Assessee neither paid.....
185
M/s. Nileswar Range Kallu Chethu Vyavasaya Thozhilali Sahakarana Sangham Versus Commissioner of Income Tax, Calicut
Benefit of deduction under section 80P(2)(a)(vi) denied - CIT(A) allowed claim - whether the appellant societies cannot be considered as co-operative societies engaged in the collective disposal of labour of its members as contemplated under section 80P (2) (a) (vi) of the Act and therefore, ineligible for deduction under section 80P (1) as held by ITAT? - Held that:- The collective disposal of the labour of the members of the society is not resulting in the generation of any income to the socie.....
186
M/s. Asianet Satellite Communications Ltd. Versus The Commissioner of Income Tax
Revision u/s 263 - whether Tribunal holding that the order of the CIT(A) under section 263 satisfies the precondition of prejudice to the revenue is proper and correct? - Held that:- Commissioner held that the Assessing Officer has passed Annexure A order without any application of mind and without conducting any enquiry and also without even calling for or verifying the records. The Commissioner has also found that hire charges were paid but no tax has been deducted. Admittedly, the assessment .....
187
M/s. Alcon Developers Versus Assistant Commissioner of Income Tax, Circle-1 (1) , Aykar Bhavan
Breach of the principles of natural justice - whether oral submissions are to be advanced as in case oral arguments are not heard it would lead to the breach of the principles of natural justice - Held that:- In the present case, it is not disputed that the Appellants were not given an opportunity to advance oral arguments before the Tribunal. The letter dated 08.01.2015 has also not been examined nor placed before the Tribunal whilst passing the impugned Order dated 23.01.2015. Not giving an a.....
188
Karnataka Jewels Ltd. Versus Joint Commissioner of Income Tax And 1
Dismissal of appeal for non-prosecution by ITAT - proceedings before the Tribunal came to be conducted ex parte in view of the fact that the petitioner had not informed the Tribunal about the change of its address - Held that:- On the day fixed for hearing or any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is on for hearing, the Tribunal may dispose of the appeal on merits after hearing the resp.....
189
Harish Ahuja Versus Commissioner of Income Tax, Chandigarh
Rejection of books of account merely for absence of stock register - non-fulfillment of ingredients u/s 145(3) - Held that:- No substance in the argument raised by the learned counsel. AO passed the assessment order under Section 143(3) of the Act by applying GP rate of 10% on gross sales of 11.74 crores after rejecting the books of account under Section 145(3) of the Act on the ground that no stock register was maintained by the assessee and, thus, made an addition of 41,09,728/-to the total re.....
190
The Commissioner of Income-tax, Faridabad Versus M/s Rashtriya Vikas Party, Faridabad
Speaking order - excess exemption of income under Section 13A claimed by assessee as per AO - CIT(A) allowed assessee claim do confirmed by ITAT - Held that:- According to the revenue, the assessee had initially claimed that the books of account were lost and the same were not produced on that count. Lateron, the books of account were recovered. However, no date and time etc. were given as to when they were lost and when they were recovered. The entirety of the facts were required to be gone int.....
191
The Commissioner of Income Tax-II Kanpur Versus M/s. J.K. Synthetics Ltd.
Rectification of mistake - interest under Section 220(2) of the Act was charged from the date of the original Assessment Order dated 26.3.1992.- Held that:- In the instant case, the original demand pursuant to the first Assessment Order dated 26.3.1992 was duly satisfied and the amount was refunded pursuant to the first rectification order passed under Section 154 on 15.9.1994. In similar circumstances, the Supreme Court in the case of Vikrant Tyres Limited ( 2001 (2) TMI 129 - SUPREME Court ) .....
192
Commissioner of Income Tax- 17 Versus Goel Bricks Industries
Additions made on account of brick production, clay excavation, carriage expenses and expenditure on water courses - CIT(A) partly allowed the Assessee's appeal and deleted certain additions made by AO. The CIT (A) also increased the gross profit rate by 1%, resulting in an addition of ₹ 2,95,000 - Held that:- It appears that the Revenue's appeal before the ITAT, Delhi was for some reason not heard for many years and it was only on 25th August 2014 that it was taken up for hearing. In the .....
193
The Commissioner of Income Tax-II, Panchkula Versus Shri Rakesh Kumar Khosla
Trading addition - assessee failed to justify the adoption of sale price at less than opening stock price with documentary evidence - ITAT restricted the addition to ₹ 2,00,000/- as against ₹ 41,24,000/- made by AO - Held that:- The Assessing Officer made an addition of ₹ 41,24,000/- on the ground that the assessee failed to justify the adoption of sale price at less than opening stock price with documentary evidence. Further, the Assessing Officer held the said addition was th.....
194
Deputy Commissioner of Income Tax, Company Circle-V (3) Chennai Versus M/s. Rajkumar Impex Pvt. Ltd.
Forward contracts in respect of forex transactions entered into by the assessee with the banks - whether will not fall under the definition of speculative transaction and holding that assessee is entitled to claim such loss as business loss as held by CIT(A) - Held that:- Forex transactions entered into by the assessee are not derivative transactions. However, it was held that transactions considered for determining the business loss from derivative transactions cannot be more than the total exp.....
195
ADP Pvt. Ltd., Hyderabad Versus Dy. Commissioner of Income-tax, Circle – 1 (1) , Hyderabad.
Transfer pricing adjustment - selection of comparable - Held that:- The issue relating to comparability of companies objected by assessee are covered by various decisions of different benches of the Tribunal for the very same AY. In case of Ness Innovative Business Pvt. Ltd. Vs. DCIT [2014 (7) TMI 303 - ITAT HYDERABAD] the coordinate bench rejected Bodh tree consulting ltd. Exensys Software Solutions Ltd., Sankhya Infotech Ltd., Foursoft Ltd., Thirdware solutions Ltd. Tata Elxsi Ltd. and Infosys.....
196
Mahendra Builders & Developers Versus Asstt. Commissioner of Income Tax, 1 (1) , Indore
Reopening of assessment - assessee has not fulfilled the required conditions of section 80IB(10) - Held that:- While framing the assessment for the assessment year 2006-07 the Assessing Officer found that the assessee has not fulfilled the required conditions of section 80IB(10) of the Act and the Assessing Officer recorded certain failure on the part of the assessee for not fulfilling the conditions as narrated u/s 80IB(10) of the Act which also include the built up area and amended provisions .....
197
Indo Shell Cast Pvt. Ltd. Versus The Assistant Commissioner of Income Tax Company Circle I (1) , Coimbatore
Disallowance of loss incurred by the assessee on forward contracts and other derivative contracts as speculation loss - Held that:- Both trading of shares and derivative transactions are not coming under the purview of Section 43(5) of the Act which provides definition of "speculative transaction" exclusively for purposes of section 28 to 41 of the Act. Again, the fact that both delivery based transaction in shares and derivative transactions are non-speculative as far as section 43(5) is concer.....
198
DCIT, Circle-1, Nellore Versus M/s Madurai Power Corporation Pvt. Ltd.
Claim for deduction under section 80IA disallowed - profits and gains derived by the assessee from the sale of sludge/waste oil - CIT(A) deleted addition - Held that:- Profits and gains derived from such business considered to include the sale of sludge, which is the product of the business undertaken by the assessee i.e., manufacture of power and the sludge is generated out of such activity and is held to be directly attributable to the business activity of the assessee. Hence, we are of the fi.....
199
M/s. Saj Flight Services Pvt. Ltd. Versus Assistant Commissioner of Income Tax/Income Tax Officer (OSD) , Company Ci rcle-VI (1) , Chennai
Disallowance of expenses in agricultural activity - CIT (Appeals) ought to have seen that assessee is running farm tourism - Held that:- No good reason to interfere with the findings of the Commissioner of Income Tax (Appeals) in sustaining the disallowance of agricultural expenses . Thus, we affirm the order of the Commissioner of Income Tax (Appeals) on this issue and reject the grounds raised by the assessee for both the assessment years. - Decided against assessee.

Disallowance of.....
200
Mr. T. Nagoor Meeran Versus The Income Tax Officer, Non-corporate Ward-7 (1) , Chennai
Unaccounted investments in purchase of properties - purchase price of the property invested in item No.2. - Held that:- Sale consideration shown at transaction mentioned at Sl No 2 of ₹ 8,92,000/- is the total of the transactions mentioned at Sl No.2 of ₹ 8.92,000/- is the total of the transactions mentioned at Sl.Nos.1 & 3 (i.e.Rs 6,90,000 + ₹ 2,02,000). Thus, there is a duplication of the amounts considered by the Assessing Officer in his order to the extent of ₹ 3,90,0.....
201
Dy. Commissioner of Income Tax Versus M/s SKM Creations Pvt Ltd
Addition on unexplained share capital under section 68 - CIT(A) deleted addition - Held that:- CIT(A) was not justified in deleting the addition made by the AO particularly when the assessee failed to produce the concerned parties. At the same time, it also appears that the AO without considering the documents furnished by the assessee in the form of share applications, copy of bank account from where money was paid, copy of acknowledgment of Income Tax Return, copy of the balance sheet etc. and.....
202
Mrs. Cherukuri Swapna Versus Deputy Commissioner of Income Tax
Disallowance of deduction claimed u/s. 80IB - Held that:- There is no doubt with reference to the fact that assessee's claim pertains to AYs. 2009-10 to 2011-12 as recorded by the Revenue authorities. The Ld.CIT(A) also gave a factual finding that issues are similar to AY. 2009-10, therefore, since the issue was decided in favour of assessee in AY. 2009-10 wherein held there was no violation of any condition in respect of the project developed by the assessee for the purpose of claiming deductio.....
203
M/s SBI Life Insurance Co. Ltd. Versus Asstt. Commissioner of Income Tax
Reopening of assessment - as per section 115B the tax rate of 12.5% should have been applied only to the income earned from insurance business and for the other income, the tax at the rate of 35% should have been applied - Held that:- Since, the AO inadvertently, had applied lower tax rate of 12.5% on the entire income, hence, the AO had reasonable belief that the income of the assessee has escaped assessment. We find that this issue has been unsuccessfully contested by the assessee in appeal be.....
204
Smt. N. Kalaimani Versus The Income Tax Officer
Additions of unexplained cash deposits - Held that:- The assessee had deposited ₹ 4 lakhs on 18.09.2009. A sum of ₹ 3,90,000/- is stated to have been returned by her husband. The CIT(Appeals) does not reject veracity of this plea. It is further seen that the assessee had deposits a sum of ₹ 2 lakhs as on 20.10.2009 over and above the aforesaid sum of ₹ 4 lakhs. Remaining amounts are corresponding deposits and withdrawals instances. The assessee claims to be earning a mont.....
205
The Assistant Commissioner of Income Tax Versus M/s Balaji Distilleries Ltd. (Merged with United Spirits)
Interest disallowance made u/s 36(1)(iii) - CIT(A) restricted disallowance - Held that:- There is no dispute that the very interest disallowance had been restricted to the extent of diversion of interest bearing funds @ 15% in the past. It has already come on record that the 'tribunal' has also decided this ground in assessee's favour to the extent indicated hereinabove. No distinction much less a justifiable one on facts is forthcoming. In these circumstances, we uphold the CIT(A)'s findings an.....
206
The Income Tax Officer Company Ward Versus M/s Evershine Timber International Ltd
Reopening of assessment - deemed dividend addition - CIT(A) deleted the addition - Held that:- We find from the case file that the assessment order is completely silent on the nature of the impugned loans in the shape of business advances. The CIT(Appeals) had examined all material on record for concluding that loans in question in the shape of business transactions / advances could not be treated as deemed dividends. The Revenue neither challenges the CIT(Appeals)'s order on the ground of admit.....
207
M/s Sony Mobile Communications India Pvt. Ltd. Versus. Additional Commissioner of Income Tax,
Transfer Pricing adjustment - TPO/AO/DRP held that advertising, marketing and promotional ("AMP") expenditure as a separate international transaction under Section 92B - Held that:- TP issue on the same facts and circumstances i.e., AMP expenses, arose in the case of the assessee in the preceding year i.e. AY 2008-09 which has been set aside and restored to the file of the Assessing Officer to decide the same afresh in view of the Special Bench judgment of ITAT in the case of LG Electronics (20.....
208
M/s Sony Mobile Communications India Pvt. Ltd. [Formerly known as Sony Ericson Mobile Communication (India) Pvt. Ltd.] Versus ACIT, Range-9, New Delhi
Transfer pricing adjustment - whether there is no agreement for the use of brand name between the overseas AE and the assessee and the assessee has not made any payment to its AE for using the brand name? - application of Bright-line test - Held that:- The grounds qua the application of Bright-line test is decided against the assessee, thereafter holding that the assessee has rendered higher intensity functions qua the comparables by which the AE of the assessee has been benefited by brand build.....
209
M/s. Umang Overseas, M/s. Narayan Impex, Shri Shiyam Sundar & Shri Rajiv Arora Versus. CC, Tuticorin
Mis-declaration of Fabric – Waiver of pre-deposit of penalty – Applicant attempted to export fabrics by mis-declaration of goods to avail undue DEPB benefits – Applications are filed for waiver of pre-deposit of penalty – Held that:- Applicants were directly involved in claiming undue DEPB benefits – Prima facie, penalties are impossible on applicants – Therefore, all applicants are directed to make pre-deposit within period of four weeks and report compliance – Upon deposit of said amount, pre-.....
210
M/s Omkar Engineering Co. Versus Customs, Excise & Service Tax Appellate Tribunal & Anr.
Waiver of pre-deposit - Business Auxiliary Services - application was partly allowed by directing the Appellant to deposit 25% of the amount demanded - Held that:- Tribunal observed that certain processes on the material supplied by the Ship-builder are required to be carried out by the appellant at his works as per work terms and conditions of the contract. Whether factually this has been done or not is a matter which is required to be decided on the basis of material placed before the learned.....
211
Godrej & Boyce Mfg. Co. Ltd. Versus Union of India & Ors.
Waiver of pre-deposit - cenvat credit - exempted and taxable services - trading activity - tribunal directed the appellant to deposit 50% of the CENVAT Credit disallowed - prima facie view - Held that:- So long as any tentative and prima facie finding will suffice for disposal of such interim applications, the Tribunal must be careful and render only them and nothing more. We find that not just absence of a word "prima facie" but otherwise as well the findings cannot be termed as tentative. In.....
212
The Commissioner of Central Excise Versus M/s The Indian Hume Pipes Co Ltd, Customs, Excise And Service Tax Appellate Tribunal
Commissioning or installation of construction service - Activity of laying, jointing, testing and commissioning of PSC Pipes, construction of pumps, civil structures, supply, delivery and commissioning of submersible pump set and turbine pump sets, maintenance etc. - Held that:- As rightly pointed out by the Tribunal, the Assessee was entrusted with the task of laying a long distance pipeline to enable the Tamil Nadu Water Supply and Drainage Board to supply water. It was an activity in public i.....
213
Commissioner of Service Tax Versus Japan Airlines International Co. Ltd.
Validity of filing an appeal - application of mind by the Committee of Chief Commissioners (COCC) on the issues - Tribunal had dismissed the revenue appeal - Held that:- the scope of the present appeal is confined to the correctness of the impugned order of the CESTAT dismissing the CST's appeal at the threshold after holding that the decision of the COCC was vitiated for non-application of mind. It is evident from the order of the Full Bench [2015 (7) TMI 824 - DELHI HIGH COURT] that the CESTA.....
214
M/s. Nawaz Shipping Versus Commissioner of Central Excise & S.T., Rajkot
Levy of penalty - service tax and interest were paid before issue of show cause notice - scope of section 73(3) - Held that:- it is seen that the matter is no more res-integra. The Division Bench of the Karnataka High Court in the case of CCE & ST, LTU, Bangalore vs. Adecco Flexione Workforce Solutions Limited [2011 (9) TMI 114 - KARNATAKA HIGH COURT], had held that assessee is not liable to pay any penalty under such circumstances - Levy of penalty u/s 78 set aside. - Decided in favor of assessee.
215
National Council For Cement And Building Materials Versus Commissioner of Customs, Central Excise and Service Tax Hyderabad-IV
Commercial training or coaching service - The appellant is a R&D organization under the Ministry of Commerce & Industry with a mandate to undertake and promote research and other scientific work connected with cement and building materials and also to impart training to skilled and unskilled labour in construction field - Held that:- no doubt that with the retrospective amendment to the definition of the service tax category, the liability would arise against the assessees. However such liabilit.....
216
M/s. Tulip Mines Pvt. Ltd. Versus CCE, C & ST, BBSR-II
Input services being GTA services - Claim of refund on input services used in Export of goods - Notification No.41/2007-ST - xport invoices numbers are not mentioned in the lorry receipt and the shipping bills - Held that:- However, they are in a position to establish the link between the lorry receipt and the respective export invoices under which the goods were exported. There is no need to examine whether the said condition is substantive or otherwise as I find that on similar issue, this Tri.....
217
M/s. Thanjai Study Centre Versus CCE, Trichy
Commercial coaching and training - parallel college - appellant contended that coaching is offered as per the University Curriculum and the students appear for examination and the degrees are awarded by the respective Universities - both curriculum and fees are decided by the university as per the agreement. - Charges are collected by appellant. - Held that:- Respectfully following the decision of the Hon'ble Kerala High Court in the case of Malappuram Distt. Parallel Colleges Association Vs......
218
SA Enterprises Versus Commissioner of Central Excise, Pune-I And Vice-Versa
Penalty u/s 78 - manpower recruitment and supply agency service - Held that:- Prior to 08/04/2011, Section 78 envisaged imposition of penalty equal to service tax short paid or not paid if such short/non-payment was on account of willful mis-statement, suppression of facts or contravention of any other provisions of the Act with an intent to evade service tax. In the present case, the appellant had collected the service tax amount from his customers but failed to remit the same to the exchequer......
219
M/s Ionnor Solutions Private Limited Versus Commissioner of Central Excise And Service Tax-Chandigarh-I
Denial of refund claim - unutilized cenvat credit - refund in terms of notification No. 5/2006-CE(N.T.) dated 14.3.2006 - Held that:- credit of service tax taken by them was admissible. It is also a fact that the appellants were not in a position to utilize the credit against the goods exporting during the quarter to which the claim relates. Seen in this light there is no doubt that the refund claim was not in violation of the said para 4 of the said Notification. Thus the commissioner (Appeals).....
220
Sri Kumar Timbers and Plywoods represented by its Proprietrix, Mrs. K. Prema Versus The Commercial Tax Officer
Fixation of higher rate of tax – Increase in turnover – Violation of Natural Justice – Notice was issued upon petitioner fixing rate of tax liability payable at 12.5% or more as per TNVAT act as turnover of petitioner exceeded ₹ 50 lakhs – In appeal against said order before respondent to drop proceedings as petitioner has not crossed limit of ₹ 50 lakhs, was filed – However respondent, without considering documents sent by petitioner, passed erroneous order – Held that:- After recei.....
221
Vishwas Agro Impex Versus State of Punjab and others
Exemption from Advance tax – As per notification, exemption application was to be filed if goods were to be disposed of in manner otherwise than by way of sale or by making zero rate sales as provided under section 17, of such goods, or of goods manufactured therefrom – Petitioner submitted that application followed by various reminders was moved by petitioner for exemption of advance tax but no decision has so far been taken thereon – Held that:- after considering material on record and without.....
222
Perfect Industries Versus State of Punjab
Detention of goods transferred for replacement – Imposition of Penalty – During course of business, huge quantity of goods were found defective by purchasing dealers which were returned back by dealers for replacement – Since goods in question were moved by way of replacement and not by way of sale, obligation to fill declaration form was not required – However said goods were detained by Excise and Taxation Officer and penalty was imposed taking value of goods – Whether order imposing penalty w.....
223
Sri Saraswathi General Merchant Versus The Deputy Commercial Tax Officer
Violation of principles of natural justice – Claim of Input Credit Tax – Respondent issued notice alleging that petitioner effected purchases from dealers, whose registration was cancelled and claimed input tax credit and hence, he was liable to pay amount availed by him – Thereafter respondent passed impugned order, without affording opportunity of personal hearing to petitioner – Held that, respondent did not indicate as to proposed addition to be made in assessment, which, as per provisions o.....
224
Commissioner of Central Excise, Vapi Versus M/s. The Paper Products Ltd.
Classification of shrink sleeves - classifiable under Sub-heading 3020.19 or Sub-heading 4901.90 - case of the assessee is that this product is to be treated as one falling under plastic industry - whether the product in question can be treated as that of printing industry or it is covered by plastic industry. - Held that:- we are clear in our mind that the printing was only incidental and the main purpose of the product is to provide tamper protection to the product to make shatter resistance.....
225
Commnr. of Central Excise, Vadodara Versus M/s. Viacom Electronics P. Ltd. & Ors.
MRP based valuation u/s 4A - accessories - woofer is not a part of Television set and that they are being cleared and sold separately. This was the case, prior to introduction of assessment under Section 4A(MRP). The MRP based assessment is for television set and not for its accessories. - order of the tribunal [2005 (12) TMI 149 - CESTAT, NEW DELHI] sustained - Decided against the revenue.
226
Commr. of Central Excise, Mumbai Versus M/s. Parle Bisleri Pvt. Ltd.
Intermediate product - manufacture of sugar syrup - captive consumption - evenue wanted to impose excise duty thereon on the ground that it contains 75.2% sugar contents and, therefore, was to be classifiable under Heading 1702 - Held that:- it is not in dispute that in any case the said product is exempted from duty as per Notification No. 217/86-CE dated 02.04.1986 as amended by Notification No. 79/91-CE dated 25.7.1991. - appeal dismissed - decided against the revenue.
227
Commissioner of Customs & Central Excise Meerut Versus M/s. Barnala Steel Industries Ltd. Muzaffarnagar
Levy of penalty - quantum of penalty - intention to evade payment of duty - Rule 96ZP (3) of the Central Excise Rules, 1944 - Held that:- From perusal of the show cause notices we find that there is no allegation of intention to evade payment of duty by the respondent. The only allegation is of late payment of central excise duty. In the order in original the adjudicating authority recorded a finding of fact that the interest on late payment of duty has already been deposited by the respondent-.....
228
LALIT PUKHRAJ DESHLAHARA Versus UNION OF INDIA
Restoration of appeal - Tribunal has dismissed the appeal for non-compliance with the condition of pre-deposit. - SSI Exemption - use of brand name (Cellonex) of distinct entity - manufacturing the grinders, mixers and parts thereof - Held that:- We do not see how after the Petitioner on his own approaches the Tribunal and seeks sympathy and equity by urging that the Appeal be restored to the file and heard on merits that the Petitioner now can file another Writ Petition and seeking the same re.....
229
RAJESH KUMAR AGARWAL Versus COMMISSIONER OF C. EX., NEW DELHI
Dummy unit - allegation of evasion of duty on manufacture of cigarettes - The Department's allegation is that PTPL, Nasik was nothing but a dummy entity or a front company floated by GTC for the purpose of duty evasion, that it is GTC who were fully controlling the activities of PTPL and that during the period of dispute, PTPL had received huge quantity of cigarette tobacco and other raw materials through GTC, which were used in manufacture of unaccounted cigarettes which were cleared clandestin.....
230
BHUSHAN STEEL LTD. Versus COMMISSIONER OF CENTRAL EXCISE, RAIGAD
Valuation - inclusion of freight where goods delivered at the customer's premises at pre-agreed freight - transaction value under section 4 - freight charges were shown in the invoices and collected by the appellant from his customers - determination of place of removal.

Held that:- Claim of the ld. Advocate therefore, needs detailed examination with reference to purchase orders, invoices, L.R.s transit insurance policy, etc., to arrive at the place of sale or place of transfer of po.....
231
COMMISSIONER OF C. EX., GHAZIABAD Versus BHUSHAN STEEL LTD.
Refund of excess duty - Valuation - deduction of various types of discounts from the assessable value - manufacture of cold rolled Steel Strips/Sheets and Galvanized Plain and corrugated sheets. - Held that:- In any case we find that the Revenue is not disputing the factum of giving of discounts to the customers. The discount policy also was available and was known to the customers at the time of clearance of their final product. The discounts stand actually given when a particular customer atta.....
232
WINSOME YARNS LTD. Versus COMMR. OF C. EX. & SERVICE TAX, CHANDIGARH-II
Cenvat Credit on capital goods - Export of Yarn exempted from duty - The yarn meant for export was being cleared on payment of duty at the rate of 4% adv. and was being exported under rebate claim. Notification No. 30/2004-C.E. provides for full duty exemption to the items specified thereunder subject to condition that no input duty credit is availed. - Alternative Notification No. 29/2004-C.E. and Notification No. 29/2004-C.E - Held that:- The contention of the Department is totally incorrect.....
233
Commissioner of Customs, Mumbai-I Versus M/s. Seiko Brushware India
Denial of benefit of Exemption Notification No. 34/98-Cus – Pig hair bristles that were imported were sold against which revenue issued show cause notice stating that since these pig hair bristles were sold without any sales tax been paid thereon, benefit of Exemption Notification would not be available to importer – Commissioner, concluded that Exemption Notification exempting pig hair bristles from tax would amount to case where no tax is chargeable on sale of goods and therefore, benefit of s.....
234
Commissioner of Custom (Import) Mumbai Versus Can Pack (India) Pvt. Ltd.
Valuation of goods - Inclusion of lumpsum trademark fee and lumpsum royalty for technical knowhow - It was held that lump sum payments for trade mark usage and royalty for technical know-how is condition of sale for purchase of raw-materials from related foreign entities and therefore, it should be added on proportionate basis to value of goods imported - Tribunal vide impugned order [2015 (2) TMI 646 - CESTAT MUMBAI] set aside on basis that same is unsustainable in law - Admittedly there is del.....
235
Ram Gopal Kudal Versus Additional Commissioner of Customs (DEEC) , Customs, Excise and Service Tax Appellate Tribunal
Misuse of Advance license – Goods diverted to domestic market – Appellant and his associates were allegedly misusing license received under Advance License Scheme and were evading customs duty on imported goods by diverting goods imported duty free under license into local market without utilizing them for intended purpose – Show cause notice was issued to appellant along with other persons proposing to confiscate goods, demand customs duty and levy penalty – Held that:- Even though personal hea.....
236
Mr. Vinod Kumar Mathur and others Versus Union of India and ors.
Misclassification due to suppression of facts – Imposition of penalty – Settlement Commission vide order imposed penalty upon on petitioner – Main issue was of misclassification arising due to alleged suppression of facts regarding source of insoluble sulphur crystex HB OT 20 by petitioners – Held that:- if letter, informing source of elemental sulphur, issued from overseas supplier was required so as to term dispute as not genuine or bonafide, that aspect has not been at all considered by Commi.....
237
Dalmia Continental Private Limited Versus Food Safety and Standards Authority of India & Another
Release of Consignment - import of Canola Oil – Labels not in conformity with Packaging and Labelling Regulations – In past petitioner was permitted to import Canola Oil and no objection was taken by respondent No.1, but consignments imported in January and June, 2014 was rejected on ground that label does not conform to Packaging and Labelling Regulations under Clause 2.2.2(2), which was published on respondent-1 website – Held that:- label prima facie appears to be in complete conformity with .....
238
SDV International Logistics Ltd. Versus Commissioner of Customs And Service Tax, Bangalore
Revocation of Customs Broker Licence - offence relating to smuggling of Red Sanders - whether revocation of licence of the customs broker, the appellant is correct considering the role of the appellant broker in clandestine export of Red sanders. - Held that:- The three actions of the appellant of failing to advice the client regarding affix of bottle seal no., obtaining dock permits and obtaining the second bottle seal have been taken together to come to the conclusion that the omissions of th.....
239
Stantech Project Engg. Pvt. Ltd. Versus Nicco Corporation Ltd.
Winding-up petition - unable to pay the dues - the claim was for a sum of ₹ 3,54,500/- together with interest at the rate of ten per cent per annum together with ₹ 1,09,958/- deducted by the Respondent on account of the tax deducted at source (TDS). These amounts have remained unpaid even after the receipt of the statutory notice. - Held that:- The Company Judge had no alternative but to proceed for Winding up of the Respondent Company since it had failed to discharge the admitted .....
240
M/s Vibgyor Texotech Ltd. Versus The Board of Directors, State Bank of India And Others
Validity of notice u/s 13(2) and u/s 13(4) of the SARFAESI Act - right of the third party - Territorial Jurisdiction of Debt Recovery Tribunal (DRT) - secured creditor to take possession of the secured assets. - Held that:- this Writ Petition ex-facie was not maintainable. The petitioner throughout knew that the remedy of the petitioner to challenge any order in the Securitisation Appeal No.4 of 2012 was not to approach this Court directly. Further, even if the Presiding Officer of DRAT was not .....
241
The Commissioner of Income Tax, Karnataka (Central) , Bangalore Versus M/s. Islamic Academy of Education
Registration granted u/s. 12A cancelled - activity of the trust was not genuine and was not being carried out in accordance with the objects of the trust - Held that:- In the instant case, the material on record shows that the Trust has established educational institution and imparting medical education. Every year, students are admitted. Huge investment is made for construction of buildings for housing the college, hostel and to provide other facilities to the students who are studying in the C.....
242
The Commissioner of Income Tax, The Dy. Commissioner of Income Tax Versus M/s. Islamic Academy of Education
Exemption u/s 11 and 12 - whether status of the assessee should be taken as "Trust" as against AOP adopted in the assessment order - whether "borrowed capital" needs to be taken into consideration while deciding whether shares held by the trust exceeds 5% of the share capital of the company or not? - Held that:- As decided in Commissioner of Income Tax –vs- M/s.Islamic Academy of Education [2015 (9) TMI 450 - KARNATAKA HIGH COURT] exemption u/s 11 and 12 of the Act shall not be denied to assesse.....
243
Malabar Hill Club and others Versus The ACIT, Range-5 (2) , Mumbai and Vica-Versa
Concept of mutuality - Enhancement of income by the FAA - Held that:- FAA for enhancing the income during appellate proceedings, the FAA should not travel outside the record, i.e., the return made by the assessee or the assessment order of the AO, that the power of enhancement was restricted to the sources of income which have been the subject-matter of consideration by the AO from the point of view of taxability,that consideration did not mean incidental or collateral examination of any matter .....
244
M/s La Sonia Wines Versus ACIT, CC-41, Mumbai
Unexplained drastic variation in net profit rate - AO mentioned that considering the fact that the sales are not verifiable, it will not be unreasonable to compute the profits at the rate of 5% of the disclosed sales - Held that:- We are of the considered opinion that neither the AO nor the CIT(A) examined the books of accounts. Both of them did not pin point any defects in the books of account. Further selling its products in cash is not against the law. A different percentage of profit cannot .....
245
M/s. Starlite Lighting Limited Versus Addl. CIT, Range-1, Nashik
Unexplained cash credits u/s.68 - Held that:- CIT(A) while accepting loan to the tune of ₹ 48,40,992/- in respect of 4 persons sustained the addition of ₹ 10,08,079/- which is the difference between the figures shown by the assessee and the figures as per the loan confirmation letters filed before the AO by the above 4 parties. Therefore, the order of the CIT(A) sustaining the difference of ₹ 10,08,079/- is upheld.

Now coming to the balance amount of ₹ 84,99,23.....
246
The Assistant Commissioner of Income Tax Versus M/s TTK Protective Devices Ltd (Formerly Known As. M/s TTK LIG Ltd)
Payment of logo charges - revenue v/s capital expenditure - Held that:- Tribunal in assessee's own case for the assessment years 2002-03 to 2007-08 [2012 (10) TMI 1001 - ITAT CHENNAI] decided the issue in favour of the assessee wherein held title of the 'logo' in question has not passed over to the assessee. Further, there is no acquisition of assets or part of any capital asset. Usage of logo by the assessee is only for displaying it on the product manufactured i.e. rubber contraceptives. That .....
247
Smt. Swapna Cherukuri, Hyderabad Versus Dy. Commissioner of Income-Tax, Central Circle 6, Hyderabad
Disallowance of deduction under S.80IB(10) - the commercial space of 11,913 sq. ft. in the project developed by the assessee was more than the prescribed limit of 5% of the total built up area of the project - Held that:- In the present case, the plot of land on which the commercial complex was built had already been sold by the assessee and since the commercial complex on the said plot of land was developed by the owners of the land and not by the assessee, we are of the view that the same coul.....
248
Hanuman Trading Co. Versus Income Tax Officer Ward-I, Kothagudem
Revision u/s 263 - disallowance u/s. 40(a)(ia) and u/s. 40A(3) made by AO - Held that:- As from the material on record, it is clear that the AO made enquiries on the very same issues during the course of assessment proceedings and merely because, the returned income is lower, the assessment order cannot be termed as erroneous. It is only after the examination of detailed information filed during the course of assessment proceedings that assessment order came to be passed. It is not a case of lac.....
249
Assistant Commissioner of Income Tax, Central Circle- II (5) Versus Mr. J. Harris Jayaraj
Accrual of income - Advance received by the assessee for his professional work - whether has to be assessed in the year of receipt or in the year of performing the contract? - Held that:- None of the advances received by the assessee are assessable as income of the assessee in the assessment year 2005-06 as it was received only as advance for performing projects in future. Advances received cannot be assessed in the year of receipt but has to be assessed in the year of performing contract - Decided in favour of assessee.
250
Shri Mukund Bankatlal Bhattad Versus ACIT, Central Circle-2 (1) , Pune
Addition on account of peak credit/investment - whether the addition is duly covered in the declaration and other addition made by the Assessing Officer in the assessment order and this sustaining amounts to taxing the same amount twice? - Held that:- Since nothing has been brought before the lower authorities as well as before us that the statement given during the course of search was on wrong assumption of facts or that the statement given during the course of search is untrue or false, ther.....
251
Albert Einstien Society of Human Gametes, Hyderabad Versus Director of Income-Tax (Exemption) , Hyderabad
Grant of registration u/s 12AA denied - as per DIT(E)objects of assessee do not come under the purview of charitable purpose as defined u/s 2(15) and the entire activity of collecting sperm/egg, arranging facility for surrogacy, etc, which is in the nature of medical services are actually undertaken by M/s Diana Medical Services Pvt. Ltd. and assessee has been created only on paper - Held that:- Unless corroborative evidences are brought on record to establish that the entire activity of bringin.....
252
Haresh N Sachdev, HUF, Mumbai Versus Income Tax Officer 19 (2) (3) , Mumbai
Addition u/s 68 - assessee received a portion of cash through the will of his father who expired on 28.12.2002 and his aunty who expired on 14.6.2003 - Held that:- We notice that the assessee has a written a letter dated 10-12-2010 before the assessing officer, wherein he has pointed out that the assessing officer is asking for details of the income of the deceased person after expiry of about six years since the demise of the executor of the will. Though the said letter was written in the conte.....
253
DCIT, Circle-7, Pune Versus W.B. Engineers International Private Limited
Transfer pricing adjustment - whether Terex GB Ltd. is not assessee's Associate Enterprise? - Held that:- The finding given by DRP that the prices and other conditions relating thereto are not influenced either by the assessee or Terex GB Ltd. could not be controverted by the Ld. Departmental Representative. A bare perusal of the various clauses of the distributor agreement shows that both are independent parties. We therefore do not find any infirmity in the order of the DRP holding that Terex .....
254
Asst. Commissioner of Income-tax, Circle – 14 (1) , Hyderabad Versus M/s APSRTC Employees Thrift & Credit Society Ltd.
Compliance to TDS provisions - whether interest payment to associate/nominal members are not covered under the said provision of exemption u/s 194A(3)(v) - difference in rights and privileges between regular members on one side and associate/nominal members on the other found by AO and observed that 'member' as envisaged u/s 194A(3)(v) only refers to a regular member and not all the members of the society - Held that:- On perusal of the provisions contained u/s 194A(3)(v), it is very much clear .....
255
Lalit T. Bhatia Versus Jt. CIT, Range 8 (1) , Mumbai
Levy of penalty u/s.271(1)(c) - default u/s. 2(22)(e) - Held that:- Ignorance of law is no excuse, even as clarified in CIT vs. Alkesh K. Patel [2010 (3) TMI 416 - BOMBAY HIGH COURT] wherein the assessee-respondent pleaded similarly, admitting to a bona fide mistake in view of his being not aware of the relevant provision of law, being, in fact, the provision under reference, i.e., section 2(22)(e). The Hon'ble Court discountenanced the plea of a bona fide mistake on account of being unaware of .....
256
Asstt. Commissioner of Income Tax 11 (1) , Mumbai Versus M/s Digi JPR Networks Private Limited
Credit for tax deducted - CIT(A) allowed claim - Held that:- CIT(A) has given a clear finding that there was no revenue impact, since the payments made by the assessee has been fully reimbursed during the year under consideration, meaning thereby, if the profit and loss account is recast by including the payments and reimbursements as its expenditure and income respectively, then the provisions of sec. 199 of the Act read will Rule 37BA would stand complied with.

Since the Ld CIT(A) h.....
257
Shri P. Jaya Prasad Raja Versus Addl. Commissioner of Income-tax, Range 8, Hyderabad.
Benefit of deduction u/s 54F - whether the AO is right in restricting the benefit for the one property, when two properties are adjacent? - Held that:- Assessee had sold two commercial properties and had invested the capital gain within the stipulated period in a Group Housing Complex at Bangalore, in the ground floor and first floor of the same property, numbered as IC-1 and IC-2. Before the AO, the assessee, on query, had contended that both the premises in fact constituted one residential uni.....
258
ITO, TDS-3, Surat Versus Shri Khedut Sahakari Khand Udyog Mandali Ltd.
Failure to deduct TDS under section 194C - assessee got transported the sugar cane from the fields of farmers to its premises with the help of transporters - assessee-in-default liable to tax under section 201 as well as interest under section 201(1A) - CIT(A) deleted the disallowance - Held that:- Assessee's contention that it has not got the sugar cane transported with the help of contractor rather, it was obligation of the farmers to supply sugar cane at the factory gate was nowhere recorded .....
259
DCIT, 17 (2) , Mumbai Versus M/s. Damania & Sons And Vica-Versa
Allocation of cost of land - whether CIT(A) has erred in holding that there is no basis and justification to allocate ₹ 5,28,12,000/- towards the building? - adoption of cost of building - work out long term capital gain on transfer of leasehold rights on land - Held that:- AO has arbitrarily allocated the cost of land by taking into consideration the cost of the building overlooking the claim of the assessee that even if new construction has to be made in the same plinth area it cannot be.....
260
M/s Chemical Sales And Services Versus Income Tax Officer, Ward-24 (3) , New Delhi
Disallowance of interest expenses - assessee has allegedly diverted interest bearing funds for non-business purposes - Held that:- The advances have been made to M/s Suresh Goel & Son (HUF) for the purpose of the business and on account of commercial expediency, and it has not been established by the learned Assessing Officer that advances are for non - business purposes and as such, disallowance made by the learned Assessing Officer is unsustainable in law. Therefore, delete the addition in dis.....
261
N.K. Media Ventures (P) Ltd. Versus JCIT (TDS) , Bhubaneswar
Penalty imposed u/s. 272A(2)(k) - e-TDS statements filed much later than the due dates - Held that:- Period for levying the penalty has to be counted from the date of payment of tax because the delay in filing the return till the date of payment of tax is already explained on the ground that the assessee could not pay the taxes for which separate penal provisions exist. The assessee has also explained the reasons for not paying the tax to the Central Government in time which was because of finan.....
262
Unichem Laboratories Ltd Versus DCIT-5 (3) , Mumbai
Validity of reopening of assessment - Held that:- AO assumed the jurisdiction u/s 148, once a definite information was received from the office of DIT (Invt.), Ludhiana. This, according to us is a good enough reason to initiate proceedings for reopening. As mentioned by the revenue authorities that it was not a case, where four years had elapsed and that the AO needed some evidence of incriminatory nature to initiate the reassessment proceedings.We, therefore sustain the order of the CIT(A) on t.....
263
Shri Koganti Venkata Ramaiah Versus ACIT, Circle 2 (1) Vijayawada
Commission/royalty estimated at 2% on accrued basis on the sub contracted work - revision u/s 263 by CIT(A) as AO without properly examining the material on record has estimated the profit at 2% on work given on sub contract basis as claimed by the assessee and has not examined the assessee's claim of exemption under section 54F for an amount of ₹ 11.00 lakhs against the capital gain arising out of sale of agricultural land - Held that:- As far as the first issue relating to CIT's directio.....
264
Kolar and Chickballapur District Co-op. Bank Ltd. Versus Assistant Commissioner of Income-tax, Circle 10 (1) , Bangalore
Benefit of carry forward of set off of loss for A.Y. 2004-05 - non filing of return within due date - assessee is a co-operative bank assessed in the status of AOP and carries on banking business - Held that:- Admittedly, in the case of assessee, the return of income was not filed within the due date and therefore the loss for A.Y. 2004-05 has not been determined in accordance with the provisions of sub-section (3) of 139 for A.Y. 2004-05. Such a loss cannot be therefore set off against the pro.....
265
St. Jude medical (Hong Kong) Limited Versus The Dy. Director of Income-tax (Int. Taxation) Rg. 2 (1) , Mumbai
Rectification of mistake - Non-reduction of the management fees offered to tax - CIT(A) directing AO to reduce the management fee offered to tax by the Appellant in its return of income in respect of direct sales by the Head Office - Held that:- As per Para 42 of the order the fact which remains uncontroverted by the revenue authorities and the DR are that the assessee in the year under consideration was covered under the TP regulations and in those proceedings, the factum of management fee has .....
266
Shri Jay Ajit Charia Versus Commissioner of Central Excise & S.T., Surat – I
Vocational training Institute - Running of Commercial Coaching Classes for the students of Chartered Accountant examination and providing coaching for different Chartered Accountant courses - exemption Notification No. 24/2004-ST dated 10.09.2004 - Clubbing of income of other relatives to the taxable turnover of the assessee - appellant strongly relied upon the decision of the Tribunal in the case of Pasha Educational Training Inst. [2008 (12) TMI 80 - CESTAT, BANGALORE] - Held that:- he appella.....
267
The Commissioner of Central Excise, Salem Versus M/s. Thriveni Earth Movers Pvt. Ltd., Salem and others
Nature of service - Whether every service rendered in mining area would have to be classified under "Mining Service" or it has to be classified according to its scope and nature of the work? - Whether the service as defined in the scope of the contract could be more appropriately classifiable under "Cargo Handling Services"? - Whether the Tribunal was right in holding that the limestone and rejects are not goods? - Held that:- while this Court is not inclined to deal with the matter, while disp.....
268
M/s Landmark Construction Versus The Commissioner, Service Tax, Mumbai - II
Restoration of appeal - Tribunal dismissed the appeals for non-compliance of pre-deposit order - Held that:- We do not think that such litigants deserve sympathy or there should be a premium on their lapses and deficiencies by an order from higher Court granting unconditional restoration of the Appeal and directing the Tribunal to decide the same on merits. It would be a travesty of justice if such an approach is adopted in all cases of this nature. We are therefore of the view that the Tribunal.....
269
Hindustan Petroleum Corporation Ltd. Versus Commissioner of Central Excise, Delhi-III
Waiver of pre-deposit - tribunal did not follow the order of similar bench to grant full waiver - HPCL was providing Business Auxiliary Services ('BAS') to IGL with regard to the sale of CNG through the retail outlet of HPCL - CESTAT proceeded to analyse the individual clauses of the Agreement dated 31st October, 2007 between HPCL and IGL and came to prima facie, conclusion that "there is no sale of natural gas or CNG to the appellant and sale of CNG the retail customers is by the IGL itself wit.....
270
The Commissioner of Service Tax Chennai Versus Lumax Samlip Industries Ltd.
Levy of service tax - services rendered prior to levy - payment received after the levy - consulting engineering services - Held that:- the demand of service tax is in relation to services received prior to 18.4.2006 and, therefore, by virtue of the above said circular dated 26-9-2011, there will be no liability. - Decided against the revenue.
271
TANUSHREE LOGISTICS PVT. LTD. Versus UNION OF INDIA
Supply of tangible goods - assessee did not file reply to the SCN - assessee contended that authority has made up his mind and is bound to create unnecessary and abnormal demand and calling for his reply to the impugned notice remains a empty formality and is not going to serve any purpose. It is further contended that the statements recorded during search and indicated in the show cause notice impugned herein, are under duress and cannot be read against him - Assessee contended that the authori.....
272
COMMR. OF S.T., MUMBAI-I Versus RIYA TRAVELS & TOURS (INDIA) PVT. LTD.
Levy of penalty u/s 78 - corresponding modification (upward) in penalty due to final computation of service tax liability - benefit of reduced penalty of 25% - Held that:- Commissioner proceeds to recompute and recalculate the tax liability and penalty. The penalty that he has computed is based on evasion and consistent therewith. However, he has not ignored the proviso to Section 78 and in computing the benefit thereunder that he refers to the figures in a table, copy of which is found at page.....
273
CHRISPAL SHIPPING CO. PVT. LTD. Versus COMMISSIONER OF S.T., MUMBAI-II
Validity of Show Cause notice - proper officer - argument was raised before the tribunal first time - it was contended that notice has been issued by the Superintendent of the Central Excise. He lacks jurisdiction and, therefore, the order passed by the Adjudicating Authority was void ab initio - it was contended that show cause notice could have been issued only by the Commissioner of Central Excise or any delegate of the Commissioner duly and properly delegated the powers to adjudicate in term.....
274
COMMR. OF CUS. & C. EX., BHOPAL Versus STATE OF MADHYA PRADESH
Storage and Warehouse Services - Levy of service tax on supervision charges paid to the Government - For the purpose of deputing staff for supervision of the work, the charges levied at 5% were levied under Section 28-A of Madhya Pradesh Excise Act, 1915 - charges in respect of storage of Foreign Liquor undertaken by the Liquor Contractor in the warehouse - Held that:- That being so, the activities of the staff appointed to supervise the work of the warehouse and the act of the State Government .....
275
Bipinkumar And Brothers By Its Proprietor Versus State of Gujarat
Cancellation of Registration – Genuineness of Transaction – Tribunal vide impugned order dismissed revision application of appellant confirming order passed by authorities cancelling registration certificates of petitioner – Held that:- Admitted that registration of petitioner was cancelled ab-initio under VAT Act as well as CST Act on ground that petitioner indulged into billing activities only with respect to the alleged purchases – Tribunal observed that after examining issue afresh and consi.....
276
KERALA STEEL TRADERS ASSOCIATION AND OTHERS Versus STATE OF KERALA AND COMMISSIONER OF COMMERCIAL TAXES AND JOINT COMMISSIONER I
Fixation of 'floor rate' for collection of advance tax – Petitioner challenges Ext.P6 Circular, issued by commissioner, alleging that digitally signed Form 15 was not practical, to be followed in case of petitioners who are engaged in field of timber business – It is also pointed out that, Commissioner adopted discriminative stand in so far as, some of dealers trading 'Cement' and 'Rubber' stand excluded from satisfying requirement under Ext.P6 – Held that:- Admitted position that Commissioner h.....
277
L & T Valves Ltd. Versus Assistant Commercial Tax Officer, (Enforcement) , Roving Squad-1, Karur
Detaining of Goods - Documents not accompanied with goods - Levy of tax and compounding fee - Petitioner goods were intercepted and respondent detained on ground that documents were not accompanied goods – Therefore, impugned detention notice was issued were goods were detained and authority demanded tax together with compounding fee – Held that:- respondent detained goods when goods were diverted to some other place, while all relevant documents show that goods were meant to be delivered at pet.....
278
State of Punjab and another Versus Genus Overseas Electronics Limited
Revocation of Penalty – Tribunal vide impugned order set aside penalty order and remanded matter back for ascertaining rate of tax applicable – It was alleged that Tribunal erred in cancelling penalty as dealer had transported inverters and not UPSs thus, was liable to pay tax at rate of 12.5 per cent whereas tax on UPSs was leviable at rate of four per cent – Held that:- Tribunal came to conclusion that nature of transaction could be determined by Assessing Authority – Assessing Authority shal.....
279
M/s S.L. Industries, M/s Panchamal Plastics Versus The Commissioner of Central Excise And Service Tax
Evasion of duty - Request to furnish documents sought for - Held that:- Documents referred to in the show cause notices in question has been furnished to petitioners. Concededly the documents which are now sought for by petitioners in their respective representations have not been relied upon in the show cause notices by respondent except seizure mahazar. In fact, documents referred in seizure mahazar has also been furnished to petitioners along with the documents in three (3) volumes and as suc.....
280
Southern Cooling Towers Pvt. Ltd. Versus Commissioner of Central Excise, Haldia & Ors.
Condonation of delay - Non receipt of order - Held that:- Alleged adjudication order dated 19th November, 2012 was not received by them. Only a recovery notice dated 29/30th December, 2014 was received by the writ petitioner. It is also alleged by the writ petitioner that after issuance of the show cause notice dated 26th July, 2011, no communication at all was received from the respondent authorities. Since it was not favoured with the copy of the adjudication order, the writ petitioner was una.....
281
Commissioner of Central Excise, Customs And Service Tax, Vapi Versus M/s Sun Pharmaceutical Industries Ltd.
Remission of duty - Loss of goods due to flood - Application of the assessee came to be rejected on the ground that the goods were destroyed in the absence of the officer of the Central Excise Department - Held that:- Undoubtedly after the goods became contaminated and though several reminders were sent to the department as aforesaid, the department chose to remain silent and as such the Respondent was left with no other option, but to destroy the goods as there was a risk of entire production a.....
282
Nabeel Ansari, S/O. Ahammed Koya Versus Department Of Customs, Joint Commissioner of Customs
Violation of the principles of natural justice - Cross examination opportunity not given - Held that:- Court finds that the case put up by the petitioner is not liable to be entertained in view of the law declared by the Apex Court as per the decision Telestar Travels Pvt. Ltd. v. Special Director of Enforcement cited [2013 (2) TMI 396 - SUPREME COURT]. In the said circumstance, interference is declined and the writ petition is dismissed - Decided against Assessee.
283
The Commissioner of Central Excise Versus M/s. Phenoweld Ploymers Pvt. Ltd.
Invocation of extended period of limitation - Suppression of facts - Held that:- Once the issue of invocation of extended period of limitation raises a mixed question of fact and law, then the Tribunal found and on facts that assuming the larger period could have been invoked the Revenue / Department was aware that the assessee sold the goods from the depot piece meal. Once the Revenue was so aware and as found by the Tribunal on facts, then, the extended period could not have been invoked and a.....
284
Rajan Beedi Company Versus Commissioner of Central Excise, Cochin
Maintainability of appeal - Section 35G - Held that:- An appeal under Section 35G of the Act would not lie to the High Court in terms of sub-section 1 of that Section in relation to an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment. Any question having a relation to the value of goods for the purpose of assessment goes out of the jurisdiction of the High Court in terms.....
285
IN RE : RIYA SOAP
Area based exemption - determination of substantial expansion - Notification No. 1/2010-C.E., dated 6-2-2010 - new investment by more than 25% in the existing plant and machinery which also resulted into generation of employment by 50% - Revenue contended that Since the notification is primarily aimed at increasing the industrial activity by expansion etc., taking the depreciated value of plant & machinery would go against the spirit of the notification. - Held that:- The adjudicating authority.....
286
REAL ISPAT AND POWER LTD. Versus COMMISSIONER OF C. EX. & S.T., RAIPUR
Cenvat Credit - Waiver of pre-deposit - abnormal consumption of inputs i.e. pig iron, scrap, CPC production apart from low production yield resulting in high utilization of Cenvat credit - majority order - Held that:- in this case the applicant has produced 2 reports showing consumption pattern of the input which show that the pattern the consumption shown by the applicant is correct. Further, in the case of Sanco Plastics Pvt. Ltd. (2003 (11) TMI 519 - CESTAT, NEW DELHI) this Tribunal has held.....
287
COMMISSIONER OF CENTRAL EXCISE, JAIPUR-I Versus AKSH OPTIFIBRE LTD.
Levy of interest on payment of differential duty - valuation - clearance of goods on provisional price basis without opting for provisional assessment - assessee submitted an explanation in which it was submitted that sub-rule (4) of Rule 7 makes it clear that the interest payment arises only from the first day of the month succeeding the month for which such amount is determined and according to the assessee, it was to be determined from the date of finalization of the provisional assessment an.....
288
MAHINDRA & MAHINDRA LTD. Versus COMMISSIONER OF C. EX., MUMBAI-V
Cenvat Credit - export of tractors - duty was paid on captive consumption of parts where the parts were exempted unconditionally - revenue contended that appellants were not required to pay duty on the aggregate parts and are therefore, not entitled to take credit of the duty so paid? - Sr. No. 92 of Notification No. 6/2006-C.E. - Scope of Section 5A(1A) of Central Excise Act, 1944 - Held that:- Though the aggregates are exempted from duty, the assessees are paying duty on the aggregates used fo.....
289
Sandisk International Ltd. Versus The Designated Authority & Ors.
Levy of Anti-dumping Duty on USB Flash Drives - validity of investigation and findings of the Designated Authority (DA) - Sub section (5) of Section 9A of the Customs Tariff Act, 1975 - It is contended by the petitioner that the non-supply of the data/evidence relied upon by the Designated Authority violated the principles of natural justice and curtailed the rights of the petitioner to defend/oppose the imposition of the Anti-Dumping Duty and also amounted to a denial of an opportunity to effe.....
290
Rajinder Singh And Another Versus Intelligence Officer, Directorate of Revenue
Offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Contention of learned counsel for the appellants that the statements before the Revenue Officials are not admissible in evidence, is untenable and unacceptable. - Furthermore, contention of learned counsel for the appellants that there are number of cuttings in statement suffered by Sukhchain Singh rendering it inadmissible, is not tenable - carrying approx. 5 Kg. of heroin in a hand bag - He.....
291
Aban Offshore Ltd. & Another Versus Union Of India & Others
Non-Compliance of Notification No.12 of 2012 – Provisional conditional release – Drill ship and rig respectively was brought in by petitioners and in order to fulfill obligation under contracts with ONGC – Drill ship 'ABAN ICE' and drilling Rig 'ABANIV' were seized by respondent no.3 on belief that though it were exempted from payment of duty under Notification No.12 of 2012 but terms and conditions of this notification are not complied with – Held that:- Admittedly petitioners have received pro.....
292
The Commissioner of Customs (Export) Versus M/s. Reliance Industries Ltd.
Levy of Education-cess – Exemption of duty under Notification No.45/02/Customs – Respondent-assessee filed about 16 bills of entries and claimed benefit of Notification No.45/02/Customs – On finalization of assessment, benefit of notification was extended to all bills of entries, exempting duties leviable subject to conditions that duties leviable were debited from relevant pass book under scheme known as DEPB scheme – Education cess at 2% on these duties was also debited from duties of DEPB as .....
293
QUALITY APPAREL EXPORTERS PVT. LTD. Versus COMMISSIONER OF CUS. (EXPORTS)
Restoration of Appeal – In support of prayer for restoration of appeal, Tribunal refused to oblige appellants – Held that:- no fault with approach of Tribunal inasmuch as pre-deposit order was made in year 2007 – That was not complied with, appeals came to be dismissed – Tribunal, therefore, could not be asked to recall its order on application for restoration preferred as late as in 2013 –In said circumstances, Tribunal rightly refused to restore appeals and that too on ground that original con.....
294
Commissioner Versus A.V. Global Corporation Pvt. Ltd.
Issue of certificate – Supply of Forged documents – Vide impugned order tribunal forfeited/penalty sum as imposed for violation of Regulation 19(1) and 19(8) of Customs House Agent Licensing Regulation, 2004 – Employee of respondent company who applied to Customs Authorities for issue of H Card had enclosed forged documents with application – Held that:- appellant authorities accepted and believed that certificate was genuine and validly issued certificate which was accepted by respondent employ.....
295
SENKA CARBON PVT. LTD. Versus ASSISTANT COMMISSIONER OF CUS. (REFUNDS)
Sanction of refund due – According to petitioner, refund application was made as early as in 2004 and yet refund was not granted – It was contended that if appeal was filed by Department, then question of granting refund at that stage does not arise – Held that:- petitioner should be informed in writing by respondent as regard fate of his refund claim – If department preferred appeal against order of Commissioner (Appeals), petitioner should be put on notice – Direction issued to respondent to c.....
296
COMMISSIONER OF INCOME TAX, MANGALORE AND ANR Versus FR. MULLLERS CHARITABLE INSTITUTIONS
Power of Commissioner u/s 263 – Held that:- The decision of HC confirmed [2014 (2) TMI 1033 - KARNATAKA HIGH COURT] – commissioner cannot exercise the power of revision solely on the ground that the order passed is erroneous - if one of the requirements for satisfaction of taking action under Section 263 of the Act is absent, then recourse cannot be made to Section 263 of the Act - The Commissioner cannot invoke his revisional power to correct each and every type of mistakes committed by the Ass.....
297
Hotel Paras Garden Versus Central Bank of India
Recovery proceedings - Whether notice for recovery, as contemplated by Rule 2 was served upon the debtor ? - The prayer is, as Bank and Recovery Officer failed to comply with the mandatory provisions of Rules 48, 49, 50 and 52 of Second Schedule appended with the Income Tax Act, 1961, and did not adopt fair and proper procedure, the sale of subject property by auction, be quashed and set aside and property should be restored back to the petitioners

Held that:- In this case, the petiti.....
298
Assistant Commissioner of Income Tax Versus Shri Kamlakar Moghe
Deduction u/s. 48(1) - ITAT allowed deduction - Held that:- As after expiry of Shri P.M. Moghe on 20.03.1996, the assessee and his three daughters were faced in a peculiar position. They resolved the situation and a family settlement was reduced into writing. It was agreed that at the time of sale, each sister shall be given ₹ 15 lakh and each niece shall be given Rs. Five lakh. Accordingly, when the property was sold on 07.07.2006, this family settlement has been given effect to. It is, t.....
299
The Tax Recovery Officer Range-2, The Commissioner of Income-Tax Versus Sri Bhishma Pithamaha
Recovery of dues from third parties - realization of dues of the Math - notice issued by the Tax Recovery Officer (TRO) to the Managers of five banks where one Sri.Ramajanam, the power of attorney holder of the writ petitioner was having his accounts - would it be appropriate for this Court to invoke extraordinarily discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who does not have any confirmed right over the properties and his filing of the wr.....
300
Joneja Bright Steel Pvt. Ltd. Versus Commissioner of Income Tax, Faridabad
Rejection to books of accounts - addition to income - AO disallowed the expenses with regard to the purchase of the material by the appellant - assessment also made under Section 68 - Held that:- A notice under Section 131 of the Act had been served upon M/s Rama Enterprises. We are informed that PAN numbers were called for and have now been produced. The vendors appear to have paid tax. The effect thereof would have to be considered. It would now be possible to ascertain in a more satisfactory .....
301
CIT Versus Sanjay Kumar Garg
Validity of reopening of assessment - ITAT nullifying the assessment orders on the ground that they were barred by limitation - Held that:- In the present case, the time limit for completing the reassessment proceedings pursuant to the notice issued on 23rd September 2005 was 31st December 2006. As is evident from the narration hereinabove, the reassessment proceedings were in progress and were being adjourned from time to time. Without those proceedings having come to an end a fresh reassessme.....
302
The Commissioner of Income Tax II, Pune Versus Shri Gautam Balasaheb Ladkat, Smt. Asha Balasaheb Ladkat, Shri Sameer Balasaheb Ladkat, Late Shri Balasaheb M Ladkat
Additions u/s 68 - Maturity proceeds of RIB shown as gifts from unrelated Non Resident India - satisfactory explanation with regard to its nature and source questioned - Held that:- Assessee had led evidence to establish the capacity of the donor. This was evident from the fixed deposit certificates as well as bank statements pertaining to the period when subscription was made to RIB Bonds by the donor. Insistence on the part of the revenue seeking to examine the financial capacity of the donor .....
303
TRIYOGI NARAYAN SINGH Versus CIT, KOLKATA-X, KOLKATA
Validity of assessment under section 144 - Best judgment assessment - whether it was open to the assessing officer to make the assessment under section 144, otherwise than, on the basis of all relevant materials which the assessing officer had gathered after giving an opportunity to the assessee ? - Held that:- As quoted the relevant part of the order passed by the assessing officer from which it clearly appears that the assessing officer first exercised his power under section 145 and thereaft.....
304
Commissioner of Income Tax, Mangalore Versus M/s Manipal Alumni of Nephrology Trust
Registration under Section 12A denied - non commencement of activities and therefore, failed to satisfy the conditions laid down in Section 12AA(1)(b) - Tribunal held that the assessee trust must be granted registration under Section 12A and recognition under Section 80G - Held that:- The question involved in these appeals is squarely covered by the judgment of this Court rendered in the case of Director of Income Tax (Exemptions) Vs. Meenakshi Amma Endowment Trust (2010 (11) TMI 853 - KARNATAKA.....
305
Income-tax Officer, Ward 1 (2) , Ahmedabad Versus Biotech Ophthalmic (P.) Ltd.
Addition on account of deemed dividend under section 2(22)(e) - CIT(A) deleted the addition - Held that:- As being a registered shareholder is a condition precedent for invoking Section 2(22)(e) of the Act, and that condition is admittedly not satisfied. For this short reason alone, the impugned additions should have been deleted by the CIT(A). We approve the conclusions arrived at by the CIT(A) in this respect and decline to interfere in the matter so far as the relief given by the CIT(A) is c.....
306
M/s. Shamjibhai G. Patel Versus ITO, Ward 9 (1) , Ahmedabad
Disallowance of outstanding labour charges to various contractors - Held that:- The assessee files a chart showing identical unpaid labour charges paid/accepted in assessment years 2008-09 to 2012-13; respectively.

We reiterate that these random cases duly confirm to have made available their services at respective BSNL offices. There is no dispute raised about their identity since identity cards form part of the case file. There are many other confirmations in the same backdrop of fa.....
307
Sheetal Abhinandan Lodha and Vinti Abhishek Lodha Versus Dy. Commissioner of Income Tax, Cen Cir-7 (3) , Mumbai
Validity of addition made in the assessment proceedings framed u/s 143(3) r.w.s. 153A - abatement of assessment - assessment of gift receipts - Held that:- Admittedly, these assessees have not filed original returns of income prior to the date of initiation of search under the regular provisions of the Act. The return of income filed by them under section 153A of the Act for the assessment year under consideration was the first return of income filed by the assessees. The second proviso to secti.....
308
Aarti Drugs Limited Versus The Addl. CIT, Range 6 (1) , Mumbai and Vica-Versa
Non consideration of sale of DEPB as export incentives for deduction u/s. 80HHC - Held that:- In view of the convergence of the stands the rival counsels, and noting that the issue raised are governed by the ratio of the judgment of Hon'ble Supreme Court in the case of Topman Exports vs. CIT (2012 (2) TMI 100 - SUPREME COURT OF INDIA) wherein the decision of CIT vs. Kalpataru Colors & Chemical (2010 (6) TMI 63 - BOMBAY HIGH COURT) has since been reversed to held that DEPB has direct nexus with t.....
309
ACIT, Bhiwani Versus Haryana Kshetriya Gramin Bank City Centre, Bhiwani
Maintainability of appeal - Disallowance of provision made for write off of loans - Addition on account of irrecoverable interest pertain to the provision for bad and doubtful debts - CIT(A) deleted the additions - Held that:- As decided in assessee's own case for the A.Y. 2002-03 the assessee is a Cooperative Grameen Bank which filed its return of income for loss after claiming various deductions mentioned in the impugned order and the AO has disallowed the same but finally deleted by the ITAT......
310
Dy. Commissioner of Income Tax Circle–15 (3) , Mumbai Versus Smt. Radha M. Biradar
Disallowance of wages - CIT(A) deleted part addition - Held that:- Perusal of the remand report shows that the Assessing Officer has examined all the facts and evidences. The assessee submitted Muster Sheet of wages before the Assessing Officer. Nothing adverse therein has been found by the Assessing Officer. Further, it may be seen from the history chart that the ratio of wages in the year under consideration is lowest in four years. There is no prohibition under the law that the wages cannot b.....
311
Ram Gopal Versus ITO, Ward-1 (1) , Muzaffarnagar.
Disallowance of amount of service tax payable u/s 43B - Held that:- Since the said amount of service tax was not received during the year, the ld. AR argued that no disallowance can be made on this score u/s 43B. For this proposition, he relied on the judgment of CIT VS. Ovira Logistics (P) Ltd. (2015 (4) TMI 684 - BOMBAY HIGH COURT). For similar proposition, he relied on the order passed by the Chennai bench of the tribunal in ACIT VS. Real Image Media Technologies (P) Ltd. (2007 (12) TMI 263 -.....
312
Manoj Kumar Poddar Versus Income-tax Officer, Wd-2 (3) , Asansol
Addition of unsecured loans - Held that:- It is clear that the assessee is unable to prove the immediate source of the transaction for the reason that the creditor is having bank account no. 071696 of UCO Bank, Barakar where an amount of ₹ 3,00,000/- was deposited on 03.10.2006 and on that very same day this amount was given as loan to the assessee i.e. her husband. Apart from this amount of ₹ 3,00,000/- there are small entries varies from ₹ 10,000/- to ₹ 20,000/- in the .....
313
M/s. Ootacamund Club Versus Income Tax Officer, Ward I (1) , Ootacamund.
Applicability of principle of mutuality - interest earned by the assessee from the financial institutions who are members of the assessee Club treated as taxable income of the assessee - Held that:- No merits in the arguments submitted by the Ld. A.R. The decision of the Tribunal in the assessee's own case for A.Ys 2002-03 to 2007-08 the Bench had followed the decision of the Hon'ble Apex Court in the case of CIT Vs. Vegetable Products Limited in (1973 (1) TMI 1 - SUPREME Court) wherein it was h.....
314
Mr. R. Vellusamy Versus Deputy Commissioner of Income Tax, Salem
Income from unexplained source - gift received from the members of the assessee's family - Held that:- The assessee had submitted cash flow statements, bank statements and affidavits from his wife and daughter in law for having received ₹ 23 lakhs. When the assessee had made such submissions, it is the duty of the Revenue to examine the veracity of the claim of the assessee by examining the source of the donee either by summoning them or by verifying the documents furnished by the assessee.....
315
Income Tax Officer, Ward–14 (1) (1) , Mumbai Versus Legal Heir of Shri Ratansingh C. Pethani
Entitlement to indexed cost of acquisition for working of capital gains - addition made on account of denying the exemption claimed under section 54 by treating the LTCG claimed by the assessee as STCG, as the assessee has held the ownership of the flat for less than 36 months - holding period of the flat sold by the assessee during the year under consideration, should be counted from which date? - Held that:- The assessee is holding the possession of the flat since 15th April 1996 and this fact.....
316
Audyogik Shikshan Mandal Versus Income-tax officer, Ward -8 (1) , Pune
Exemption under section 11 denied - car purchased in the exclusive name of a trustee - Held that:- Admittedly, the assessee trust had not received any compensation in the year under consideration. The learned Judicial Member stated that while analysing the nature of the provision, particularly the quantum of compensation, should be tested/appreciated in a "subjective manner". With due regards, provisions of the Act have to be analysed and understood keeping in mind the 'object of the Legislature.....
317
Income Tax Officer-21 (2) (4) , Mumbai Versus Saroja S. Mekal
Entitlement to exemption under section 54F - Capital gain on transfer of certain capital assets not to be charged in case of investment in residential house - assessee found favour with CIT (A) on the basis that the Flat "B" itself was the new asset, so that it could not be said that the assessee had more than one residential house, excluding the new asset, as on the date of the transfer of the original asset, i.e., July 21, 2008. Any investment made during the period July 21, 2007 and July 21, .....
318
D.H. SECURITIES (P.) LTD. Versus DEPUTY COMMISSIONER OF INCOME-TAX-4 (1)
Non-allowance of the credit of Securities Transaction Tax (STT) u/s. 88E in view of the assessee's tax liability for the current year being determined u/s 115 JB - MAT - CIT(A) allowed the assessee's claim - Held that:- No infirmity in the impugned order; the same being rather the consistent view of the Mumbai Benches of the Tribunal. The order by the Tribunal in the case of Horizon Capital Ltd. (supra) has been since confirmed by the high court in CIT v. Horizon Capital Ltd. [2011 (10) TMI 489 .....
319
Kalai Construction P. Ltd Versus The Assistant Commissioner of Income Tax
Bogus purchases - non-availability of some companies from whom the assessee had made purchases - Held that:- AO has not doubted the construction made by the assessee. He only doubted the genuineness of the purchases. So, any company which is carrying the construction, it is necessary to buy/ use necessary materials like iron, cement, sand, wood, etc. Without there being any material, the assessee cannot complete the construction work. We find that there is sound reasoning in the submissions of t.....
320
Shri Sarwankumar Sharma Versus The Income Tax Officer, Ward 1 (2) , Surat
Addition u/s 69A on account of cash deposit in the bank account - Held that:- On examining the bank account submitted by the assessee we find that the assessee had withdrawn cash in most of the instances by way of issuing cheques to various parties from Surat and other places. Similarly, cash was deposited from various places in the assessee's bank account. This points out that there was some activity carried on by the assessee relating to business. The revenue has it means to find out the natur.....
321
Lloyd Electric and Engineering Limited Versus State of Himachal Pradesh And Others
Rate of CST @2% or 1% - Industrial Policy of the State of Himachal Pradesh - period 01.04.2009 to 17.06.2009 - The whole thrust of the contention advanced by the State is that since the notification under the Act providing for tax concession was issued only on 18.06.2009 wherein it was specifically mentioned that the notification would have immediate effect and would operate for the period ending on 31.03.2013, the appellant is not entitled to the CST concession @ 1% for the intervening period.....
322
M/s. R.K. Industries and M/s. Madhav Industrial Corporation Versus Commissioner of Customs, Jamnagar (Prev.)
Classification of Vessel with surplus fuel under CTH 8908 – Appellants filed bills of entry for clearance of vessels alongwith surplus fuel to be classifiable under CTH 8908 – Vide impugned order redemption fine and penalties in respect of importation of vessels for breaking purpose along with surplus fuel was imposed – Held that:- Tribunal on identical issue in case of A G Enterprises and Others vs. Commissioner of Customs (Prev.) Jamnagar [2014 (8) TMI 44 - CESTAT AHMEDABAD] held that as per c.....
323
M/s. Bhagwati Enterprises Versus Commissioner of Central Excise, Jalandhar
Admission of additional evidence - Classification of service - Advertising agency service or Renting of immovable property - appellants have contended that they were not providing any advertising agency service and were in fact renting space from Railways which they used to further give on rent - Held that:- Commissioner (Appeals) referred to Rule 5 of the Central Excise (Appeals) Rules, 2001 and held that additional evidence can be considered only when the adjudicating authority has refused to .....
324
M/s. Auto Window Versus Commissioner of Central Excise, Mumbai-II
Denial of CENVAT Credit - supplementary invoice - service provider had paid the service tax after detecting by the department - Interest u/s 11AA - Business Auxiliary Services - Job works - Suppression of facts - Held that:- Service provider has carried out the job on the material supplied by the appellant and the said job work goods returned to the appellant. Appellant has used the said goods in the manufacture of other final product which has been cleared on payment of duty. Thus job work acti.....
325
M/s Phoenix Logistics Pvt. Ltd. Versus The Commissioner of Customs, Hyderabad
Condonation of delay - Issue related to Renting of immovable property - Held that:- It is not in dispute that similar issues with respect to taxability of services rendered in the renting of immovable property are pending before the Supreme Court in the case of M/s Retailers Association of India v. Union of India & Ors, and further the appellants own case for the earlier and subsequent years are pending before the Tribunal - Coupled with this fact, the aspect that the order dated 26.03.2012 came.....
326
MAHESWARI ENTERPRISES Versus COMMISSIONER OF CENTRAL EXCISE, BOLPUR
Order beyond the scope of show cause notice - interpretation of SCN - waiver of pre-deposit - whether a new or foreign case can be made out by an adjudicating officer without affording an opportunity to the noticee to defend the charge. - Composition scheme under Works contract service -  In paragraph 4.13 of the Order-in-Original, the adjudicating authority have explicitly and clearly recorded the violation of Rule 3(3) of the said rules and held that since the conditions of the composite.....
327
M/s. Ramchandra Singh Versus The Union of India Through Central Excise And Service Tax Department And Others
Condonation of Delay - Delay in filing of appeal before Commissioner (Appeals) - petitioners claiming benefit of Section 14 of the Limitation Act of 1963, to exclude the time consumed in disposal of the writ petition before this Court in computation of the delay - Held that:- Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caus.....
328
ARAFAATH TRAVELS PVT. LTD. Versus UNION OF INDIA
Waiver of pre-deposit - export of service or not - air travel agents - commission / overriding commission - IATA agents - general sales agent, in respect of cargo sales and passenger sales - Extended period of limitation - Held that:- Circular No. 111, dated 24-2-2009 provides that if the benefits of the service accrues outside India, it will be export of taxable service. Furthermore, the issue of 5% commission paid to IATA agents and incentive paid to IATA agents, who have already discharged S.....
329
GEE PEE AGRI PVT. LTD. Versus COMMISSIONER OF C. EX. & CUSTOMS
Eligible person to get the refund - manufacture or the merchant exporter - Held that:- It is quite clear that refund of service tax is due either to the petitioner or to the merchant exporter. There is some dispute about who is entitled to the refund of service tax, but in any case, the respondents cannot hold the service tax since they are not entitled to do so.

The service tax should be refunded to the petitioner within six weeks. In case, the merchant exporter has any issue in thi.....
330
Commissioner Versus Kingfisher Airlines Ltd.
Sponsorship service - matches conducted by the Indian premier League (IPL) - Apex Court dismissed the appeal against the order of tribunal [2014 (11) TMI 82 - CESTAT MUMBAI] wherein it was held that, sponsorship of sports events are exempted from the taxable service
331
Supreme Road Transport (P.) Ltd. Versus State of Bihar
Seizure of goods – False/incomplete disclosure – Petitions challenging action of respondent-commercial taxes authorities of seizure of goods in transit and vehicles/carriers for alleged violation of Section 60(2) of Bihar Value Added Tax Act, 2005 and action of imposing penalty – Petitioners also challenges constitutional validity of Section 60(4) – Held that:- not in dispute that disclosure made by driver was not true / complete – Section 60 of amended act, 2005 empowers State Government to est.....
332
The State of Andhra Pradesh Versus M/s Polygone Refractories Ltd
Classification of Fire Bricks – Entry 32, schedule I and Schedule VII – Assessing authority taxed sale of fire bricks as goods falling under entries 32 of 1st schedule – Deputy Commissioner revised order of authority treating them as unclassified goods / general goods falling under Schedule VII – Tribunal vide impugned order set aside order of commissioner and classified goods under entry 32 – Held that:- usage of these refractory bricks in regular construction work cannot be ruled out, especial.....
333
Merino Panel Products Limited Versus Sales Tax Tribunal II, Haryana and another
Non-production of ST-38 form – Goods Detained – Exempted Unit - Goods of petitioner were detained on ground that ST 38 form produced was blank and goods were not covered with genuine and proper documents, thereafter penalty was imposed – Tribunal by impugned order, partly allowed appeal by reducing penalty by 50% and holding that though petitioner was exempted unit, yet requirement of carrying duly filled ST 38 form was binding – Held that:- as observed by current court in M/s Crown Gaskets (In.....
334
Indian Oil Corporation Ltd. Versus State of Haryana and others
Levy of tax – Non-Submission of C-Form – Grant of Exemption Certificate – Petitioner was earlier granted exemption certificate however suo moto revision was taken against said order and petitioner was denied exemption on grounds that he did not submit C form – Whether non submission of C form was valid ground for revoking exemption granted to petitioner – Held that:- As per section 8(4) of CST Act if dealer does not furnish particulars along with C form then was liable to pay tax at 10 per cent......
335
Commnr. of Central Excise, Rajkot Versus M/s Satyam Technocast & Anr.
Clandestine manufacturing and removal of goods - dummy job work units - fictitious invoices showing much lower quantities/value than the actual - tribunal had set aside the demand - Held that:- On going through the order of the Tribunal we find that the prime reason given by the Tribunal in support of its order is that there is hardly any evidence on record to prove the allegations made against the two respondents herein. We find this to be totally erroneous. We have already reproduced the mate.....
336
Blue Star Ltd. & Anr. Versus Union of India & Anr.
Levy of duty on walk-in cooler - Extended period of limitation - A Walk-in cooler consists of an insulated room with a door. A cooling unit is fixed on the top panel of this enclosure and cool air is blown in to maintain low temperature therein. - Whether in the nature of REFRIGERATING AND AIR-CONDITIONING APPLIANCES AND MACHINERY, ALL SORTS AND PARTS THEREOF falling under item no. 29A - Held that:- many High Courts had taken the view that the tax on Walk-in coolers would not be covered by item .....
337
Shalimar Ispat Udyog Versus Commissioner
Rectification of mistake - Earlier tribunal in [2014 (2) TMI 716 - CESTAT NEW DELHI] had rejected the application for rectifiation of mistake - Apex Court has restored the matter before the tribunal subject to the cost of ₹ 1,00,000/-.
338
COMMISSIONER OF C. EX., AHMEDABAD Versus RELIANCE INDUSTRIES LTD.
Exemption of duty on Yarn - effect of amendment notifications - the expression "or draw twisted or texturised yarn" was deleted and the entry then read "dyed, printed, bleached or mercerised, yarn whether single, multiple (folded) or cabled, manufactured in a factory, which does not have the facilities (including plant and equipment) for producing single yarn". - The revenue does not dispute that the assessee is covered by entry against serial No. 116A of the Notification No. 34/97, dated 6th Ju.....
339
Commissioner of C. Ex., Mumbai-III Versus Hind Rectifiers Ltd.
Valuation - inclusion of cost of transportation and insurance policy - Held that:- the insurance policy for the transportation of the goods was taken by the assessee on behalf of the purchaser - the cost of transportation and insurance could not have been included for arriving at the price of the goods for the purpose of excise duty.
340
M/s Shreematha Precision Components, M/s Jinalloy Steel Industries Versus The Commissioner of Central Excise, The Superintendent of Central Excise
Duty demand - Duty paid through debit made in CENVAT Credit account - contravention of the provisions of Rule 8(3) of the Central Excise Rules, 2002 - Held that:- A bare reading of Rule 14 would indicate that where the assessee has taken or utilized wrongly or has been erroneously refunded the CENVAT credit, then authorities would be entitled to recover the same from the manufacturer or the provider of the output service and provisions of Sections 11A and 11AB of Central Excise Act or Sections 7.....
341
The Commissioner of Central Excise, Thane – II Versus M/s. Bright Brothers Ltd.
Demand of penalty - willful mis-statement or suppression of facts or contravention of any of the provisions of the Central Excise Act or the Rules - Intention to evade duty - Held that:- The adjudicating authority having not recorded any such satisfaction there was no justification for upholding the imposition of penalty. The Tribunal may have recorded a single line conclusion and with regard to requantification of duty dispute, but we have independently perused the record, applied our mind and .....
342
The Commissioner of Central Excise, Pune-I Versus M/s. Tanschem Limited
Benefit of exemption under Notification No.8 of 1997 - Held that:- Notification No.8 of 1997 is not amended by Notification No.13 of 1998. It may have been amended by Notification No.7 of 1998 dated 2nd June, 1998, but that is not what has been pressed into service before us. What has been pressed into service is the allegation and in the show cause notice pertaining to the amendment to Notification No.8 of 1997 by a Notification No.13 of 1998. A perusal of the copy of the 1998 Notification doe.....
343
Patel Widecom India Ltd. Versus Commissioner
Duty demand - Tribunal reduced demand and penalty - Held that:- Specific finding of fact has been recorded relying upon the documentary evidence as well as on the admission of Sri Narendra Randhwa, Manager Export and Import of the company to the effect that the goods had been removed from the factory on the pretext of demonstration and repair purpose but had been ultimately disposed off in the DTA. The Tribunal has further recorded that although the counsel for assessee submitted that the goods .....
344
Commissioner Versus Vidhya Packaging Indus. Pvt. Ltd.
Manufacture of polyester filament yarn - Penalty under Rule 173-Q - Imposition of redemption fine on seized goods - Held that:- Buyer M/s. Vidhya Packaging Industries Pvt. Ltd. had returned the goods vide challan No. 133 on 4-6-1997, i.e., a day prior to the alleged inspection. The quantity shown in this challan prepared by M/s. Vidhya Packaging Industries Ltd. tallies with the quantity found during the inspection. Further, we find that due intimation of return of goods was intimated by the resp.....
345
Commissioner Versus Rakesh Chemicals (P) Ltd.
Imposition of penalty - Suppression of facts - Mens Rea - Held that:- entire amount of duty was paid on 29-5-2000 and 24-4-2001 prior to the issuance of show cause notice on 22-10-2002. In view of the admitted fact that the entire amount of ₹ 32,544/- was paid prior to the issuance of the penalty notice and, in the absence of any finding, that the assessee had suppressed the fact with the intent to avail the payment of duty having not been established beyond a reasonable doubt, we are of t.....
346
Commissioner of Customs (Import) Versus M/s. Wings Electronics & Anr.
Mis-declaration of country of origin – Imposition of duties, fines and penalty – Commissioner vide order imposed duties, redemption fine and penalty – Tribunal set aside order of Commissioner after re-appreciating entire evidence – Whether tribunal is right in setting aside order imposing duties, fines and penalty – Held that:- no material was produced by Department to indicate payment by assesse importer on basis of such alleged invoice showing higher amounts – Declaration of country of origin .....
347
The Commissioner of Customs Versus M/s Atul Timbers
Classification of Ghana Teak rough Square Logs - Tribunal vide impugned order [2005 (7) TMI 137 - CESTAT, NEW DELHI] set aside order of commissioner and upheld classification of goods only under Heading 44.03 of CETA - Supreme Court after going through the orders passed by Appellate Tribunal, court found that all nuisances have been taken into consideration and discussed while holding that goods in question, viz., 'Ghana Teak rough Square Logs' would be classified under Heading 44.03 - Therefore.....
348
Kiran Nagindas Vora of Mumbai Versus The Commissioner of Customs (Export) , Nhava Sheva
Conspiracy to make fictitious exports – Retraction of statement – Cross-examination of Witness – Tribunal in second round allowed Revenue appeals and imposed penalty under section 14(1) of Customs Act, 1962 upon appellant by concluding that both appellant and one other were involved in transactions which led to inflated and bogus claims of refund / rebate / drawback – Held that:- Adjudicating Authority observes that allegations against appellant are that he entered into conspiracy to make fictit.....
349
Thomas Karketta Versus State Thr. Narcotics Control Bureau
Possession of Contrabands – Appeal against Conviction – Appellant stood convicted under Section 20(b)(ii)(c) of NDPS Act for being in possession of 61.49 kg ganja and has been sentenced to undergo Rigorous Imprisonment and to pay fine – Held that:- PW.4 along with PWs. 1, 3 and 6 have denied suggestions that nothing was recovered from possession of appellant and that all proceedings was conducted in police station – PW.9 clearly demonstrates that only four sealed sample were send to FSL, and not.....
350
Lakhwinder Kaur Versus Assistant Collector of Customs, Customs Division, Amritsar And Visa-Versa
Evasion of duty – Appeal against conviction – BSF apprehended accused while traveling on motorcycle and 213 gold biscuits of foreign origin were recovered – Trial Court ordered conviction and sentence accused 3 and 5 under Section 135 while accused-4 was declared proclaimed offender – In appeal accused-5 was acquitted while conviction of accused-3 was upheld – Held that:- Evident from statements of accused-3 parents as well as her confessional statement that she had been forced to accompany her .....
351
KRISHNA & CO. Versus COMMISSIONER OF CUS., TIRUCHIRAPPALLI
Cancellation of LEO grant – Furnishing of bank guarantee – Second respondent cancelled LEO granted to petitioner, thereby, petitioner was prevented from exporting river sand to Maldives – Single Judge passed order of interim direction by which, petitioner was directed to furnish Bank Guarantee for value of entire sand, which has been loaded in vessel and direction was issued to 1st and 2nd respondents to issue necessary sail order to Vessel subject to furnishing Bank Guarantee – Held that:- Admi.....
352
RAVI Versus ASSTT. COLLECTOR (PREV.) , CUS. & C. EX., INDORE
Evasion of Duty – Smuggling foreign origin silver – Appellants were intercepted with silver slabs and they did not had any valid document for possessing recovered silver – They were convicted and sentenced under section 135 of Customs Act, 1962 – Held that:- there were ample evidence on record that applicants were smuggling foreign origin silver slabs and thus have contravented provisions of import (control) order No. 17/55 – Thus conviction of applicants was based on proper appreciation of evid.....
353
DIRECTORATE OF ENFORCEMENT Versus HARMIT SINGH and ANR
Application filed beyond period of limitation – Condonation of Delay – Appeal was preferred against final order of Tribunal which was allowed and order of adjudication was quashed – Aggrieved by said order of tribunal, appeal was filed before High court which is objected on ground that it has been preferred beyond period of limitation – Held that:- Apparently, appeal has been filed after inordinate delay of 832 days.

Section 35 of FEMA permits appeal to be filed within 60 days from da.....
354
SAROJ CERAMICS INDUSTRIES Versus INCOME TAX OFFICER
Unexplained investment in factory building and factory land - rectification of mistake - Held that:- As at the time of hearing of the Tax Appeal, the assessee did not point out before this Court that they have already preferred rectification application before the Tribunal which is pending nor even at the time of deciding the rectification application (subsequently) by the Tribunal it was pointed out before the Tribunal that against the judgment and order passed by the learned Tribunal which is .....
355
COMMISSIONER OF INCOME TAX I Versus ITEGRA ENGINEERING INDIA LTD
Review u/s 263 - incorrect allowance of set off of unabsorbed depreciation - as per CIT(A) incorrect allowance of set off of unabsorbed depreciation by AO and permitting the carry forward of depreciation allowance relating to A.Ys. 1997-98 and 1998-99 beyond the stipulated quarantine period of eight years and setting off the same against the income of A.Y. 2007-08 is unsustainable in law - Tribunal quashing the order u/s.263 holding that the review of assessment was merely on change of opinion -.....
356
Late M.S. Ramasamy, Rep By M.R. Saraswathy Versus The Income Tax Officer, ARD I (7) , Salem - 7
Claim of business loss rejected - loss comprised of deposit relatable to dealership/distributorship and the balance referable to cylinder hire charges due to fraud/cheating on him - business loss v/s capital loss - Held that:- Admittedly, the assessee had not commenced its distributorship business. The deposits made by the assessee was for the purpose of acquiring profit and securing dealership/distributorship. Originally, the assessee was in the business of manufacturing handloom silk and not i.....
357
Commissioner of Income Tax, Faridabad Versus M/s. ITW India Ltd.
Validity of reopening of assessment - as per revenue treatment of service income for the purpose of calculation of deduction u/s 80 HHC was not discussed at any prior stage, and the assessee had made no clear submission in this regard in earlier proceedings - ITAT held that reopening beyond 4 years from the assessment year was bad in law as the assessee has not failed to disclose truly and fully all material facts necessary for assessment - Held that:- Separate schedule had been appended with th.....
358
The Commissioner of Income Tax-17 Versus M/s. Estate Enterprises
Penalty levied u/s. 271(1)(c) - furnishing inaccurate particulars of income by making inadmissible claim on account of interest paid to foreign party - Tribunal deleted the penalty - Held that:- It is a settled position in law that mere disallowance in quantum proceedings would not ipso facto lead to imposition of penalty. The tests to be applied in imposing penalty are different and distinct from the tests to be applied in disallowing an expenditure in quantum proceedings. In the present case, .....
359
M/s. Sheikh Abdullah & Sons Versus Union of India, through Secretary Ministry of Finance And Others
Revision u/s 263 - Rectification of mistake - Entitlement for interest exemption under Section 10(15)(iv)(e) allowed but claim of such amount under Section 80HHC denied - AO disallowing the interest exemption contending that on the basis of the direction of CIT(A) the issue being a legal matter, the error was being rectified under Section 154 of the Act as a mistake apparent from the record.whether Tribunal was not justified in setting aside the order of the Commissioner under Section 263 of the.....
360
M/s. The Ramco Cements Ltd. (Formerly known as M/s. Madras Cements Ltd.) Versus Joint Commissioner of Income Tax, Range-I, Madurai
Entitlement to relief under Section 80IA in respect of new 650 TPK Kiln - ITAT denied claim - Held that:- There is no denial of the fact that by setting up a new Kiln, the maximum production capacity of the appellant was actually increased from what it was earlier. In other words, the activity undertaken by the appellant can, at best, be termed as one of expansion of an existing facility.

Unfortunately for the Revenue, clause (i) of sub-section (2) of section 80 IA does not use the e.....
361
SAROJ CERAMIC INDUSTRIES Versus INCOME TAX OFFICER
Undisclosed investment - Addition of difference in the cost of construction of the factory building - non rejection of books of accounts - Held that:- No question of law arises. The Assessing Officer proceeded to examine the report of valuer supplied by the assessee itself. This was not a case where the Assessing Officer was relying on DVO's estimation of the cost of the building before the Assessing Officer. The assessee never took the stand before the Assessing Officer that the report may have.....
362
The Commissioner of Income Tax – 7 Versus M/s. Hindustan Ciba-Geigy Ltd.
Disallowance of expenses incurred on VRS - AO had treated the same as unascertained liability - Tribunal confirming the order of the CIT(A) in deleting the addition - Tribunal dated 31st October, 2012 stands modified by the order dated 10th July, 2015 passed in Miscellaneous Applications Held that:- So far as Questions (a) to (d) are concerned, Revenue is not pressing the same. So far as Question (e) is concerned, at this stage, we decline to answer the same. This is so as otherwise we would hav.....
363
Commissioner of Income Tax-II Versus Kajaria Ceramics Ltd.
Interest free deposit in favour of the sister concern - excess security deposit purportedly made by the Assessee in respect of renting of the premises from DEWPL - liability to TDS under Section 194H - Held that:- The making of the interest free deposit in favour of the sister concern was its business decision and it gained no undue advantage. On the second issue, it was held that the elements of income were not embedded in the reimbursement made to its sister concern and therefore the Assessee .....
364
M/s. Novo Nordisk India Pvt. Ltd. Versus The Deputy Commissioner of Income Tax
Transfer pricing adjustment - Whether transaction by which incipient (raw material for manufacture of Human Mono component and Highly Purified insulin in 40 IU Vials) is supplied by Novo Nordisk A/S to TPL and the transaction by which the Assessee engages the services of TPL to convert the incipient into Human Mono component and Highly Purified insulin in 40 IU Vials and ultimately sells the same in Indian market on behalf of Novo Nordisk A/S. can be considered as an International Transaction be.....
365
DCIT (OSD) , Circle-8, Ahmedabad and Others Versus Schutz Dishman Bio-Tech Pvt. Ltd. and Others
Transfer pricing adjustment - CIT(A) deleted the addition - Held that:- For A.Y.04-05, similar issue has been decided by ITAT in favour of assessee following case of associate concern viz. M/s Dishman Pharmaceuticals & Chemicals Ltd. In view of above, CIT(A) was justified to direct the Assessing Officer to delete the adjustment made in assessment order in respect of Arm's Length Price because PBIT of 17.13% is very much comparable and better than the industry average of 12.87%. Even margins with.....
366
Smt. Harpreet Kaur Versus Commissioner of Income-tax-II, Chandigarh
Revision u/s 263 - assessee claimed wrong exemption of ₹ 3,56,96,300/- against the total investment of ₹ 2,54,62,812/- under section 54 - Commissioner of Income Tax noted that the assessee had sold farm house, therefore, cannot claim deduction under section 54 of the Act and further the assessee is not entitled for deduction under section 54F - Held that:- It is clear that the specific queries were raised by the Assessing Officer at assessment stage regarding long term capital gains.....
367
Shri Thomas George Muthoot Versus ACIT, Cir. 1 (1) , Thiruvalla
Disallowance of payment of interest u/s 40(a)(ia) for non deduction of tax - Held that:- Section 40(a)(ia) would cover not only to the amounts which are payable as on 31st March of a particular year but also which are payable at any time during the year. Of course, as long as the other requirement of the said provision exist.

By following the judgments of the Calcutta High Court in Crescent Export Syndicate (2013 (5) TMI 510 - CALCUTTA HIGH COURT) and the Gujarat High Court in Sikanda.....
368
The ACIT, Jaipur Versus M/s Agrasen Engineering Industries Ltd.
Rejection of books of accounts - trading addition - CIT(A) deleted the addition - CIT(A) deleting the addition made by the AO on account of undisclosed sale - whether assessee could not prove that the scrap was retained by the job workers? - Held that:- The assessee's regular books of account cannot be rejected on the basis of the issues like stock of oil and lubricants and consumables stores which constitutes day to day purchases and the stock is comparatively small. Besides such items being in.....
369
M/s. Vikas Academy Versus Income Tax Officer, Ward II (4) , Madurai.
Validity of the re-assessment proceedings u/s.147 - Commissioner of Income Tax (Appeals) sustaining the order of the Assessing Officer who had made addition by invoking the provisions of section 45(4) and treating the settlement of an asset in favour of the retiring partner as capital gain - CIT(A) confirmed re-assessment order and additions thereon - Held that:- It is pertinent to mention here that the transfer of the asset is by the firm which is a "legal entity" to the retiring partner anothe.....
370
M/s. Bhandari Construction Company Versus Dy. CIT, Circle-2, Pune
Validity of assessment order u/s.153 C r.w.s.153 A - penalty u/s.271(1)(c) - Held that:- A Although various additions were made we are confined to the penalty levied on addition of ₹ 11,50,000/- made by the Assessing Officer u/s.68 of the I.T. Act and proportionate interest thereon amounting to ₹ 2,53,000/-.

Admittedly, apart from the addition of ₹ 5 lakhs no other addition has been made on the basis of incriminating material found and seized from the premises of Shr.....
371
Income Tax Officer (E) , Delhi Versus Janak Charitable & Education Society
Addition made u/s 68 - assessee trust has violated the conditions for grant of exemption u/s 12A - CIT(A) deleted the addition - Held that:- . On a consideration thereof on facts, we are of the view that the impugned order cannot stand in the eyes of the law. The CIT(A) has failed to address the speaking findings on record made by the AO namely that the assessee had collected funds through illegal means. The so called donations through entry operators who admittedly did no business whatsoever an.....
372
Director of Income-tax (IT) -I, Mumbai Versus Administrator of the Estate of Late Mr. E.F. Dinshaw
Penalty under Section 271(1)(c) - Assessee did not adjust the dividend income against short-term capital gain in view of Section 94(7) - Tribunal held that penalty under Section 271(1)(c) is not leviable when parameters laid in Explanation 1(B) of Section 271(1)(c) stands satisfied - Held that:- Order of the Tribunal is based on finding of fact, which is not shown to be perverse as Tribunal held that the respondent-assessee having made complete disclosure in the return of income, the fact that d.....
373
Shri Atul Kaushik, Shri Krishan Dhawan, M/s. Oracle India Pvt. Ltd. Versus C.C. (Export) , New Delhi
Valuation - Import of Oracle packaged software - condition of sale or condition of use - Whether the licence fee paid by OIPL to its parent company Oracle USA is includible in the assessable value of imported media packs – the licence fee has actually been collected from the customers and a part of it (56%) remitted by OIPL to Oracle USA. Ld. counsel has strenuously argued that the licence fee remitted by OIPL to Oracle USA was not a condition of sale and only a condition of use. - Held that:- .....
374
ENPRO OIL (P) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, NOIDA
Management Consultancy Service - appellants were advising the clients about various aspects relating to Management. The services are not executionery in nature and are clearly advisory in nature. - Held that:- Regarding the appellants' contention that the said services would be appropriately covered in the category of support services of business or commerce, or Business Consultancy Service, the same is not tenable because as per the definition of support service for business or commerce, the a.....
375
TATA CONSULTANCY SERVICES LTD. Versus C.C.E. & S.T, (LTU) MUMBAI
Export of services - claim of rebate - Notification No. 11/2005, dated 19-4-2005 issued under Rule 5 of the Export of Services Rules, 2005 - A contention of Revenue is that the element of service tax which is mandatorily required to be mentioned under Rule 4 of the Service Tax Rules is not shown in the export invoices. - Held that:- omitting to mention amount of service tax on the invoices when there is documentary evidence showing payment of service tax in the books of accounts maintained by t.....
376
Swastik Industrial Powerline Ltd Versus Commissioner Trade & Taxes Delhi
Sale against ST-1 Form - DVAT - correctness of ST-1 - denial of deduction - The Assessing Authority (hereafter 'AA') had found that the relevant account (ST-2 account) filed by certain dealers ( hereafter referred to as 'purchasing dealers') who were stated to have purchased goods from the Appellant against the ST-1 Forms - Held that:- it is well established that a selling dealer would have no duty to examine the correctness of the Form ST-1 submitted; the selling dealer would also not be respon.....
377
Commr. of Central Excise, Hyderabad Versus M/s. Electronics Corpn. of India Ltd.
Valuation - Related person - Apex Court uphold the decision of tribunal [2003 (3) TMI 597 - CEGAT, BANGALORE] wherein tribunal has sustained the order of Commissioner (Appeals) who has stated that,

"ECIL has been accused of forming the joint venture with a view to depress the assessable value of the impugned goods and thereby evaded payment of the appropriate Central Excise duty. It should be noted that the ECIL is Government of India Enterprise under the Department of Atomic Energy a.....
378
M/s. Biochem Pharmaceuticals Ind. Ltd. Versus Commnr. of Central Excise, Daman, Vapi
Valuation of free samples - samples are distributed free to the physicians - Held that:- CESTAT has accepted that the method of valuation would be `cost of production or manufacture of the goods'. To this extent the grievance of the appellant herein stands redressed.

Insofar as the present case is concerned, since substantial relief is already granted to the appellant in the rectification orders passed by the CESTAT, it is not necessary to deal with the remaining period which shall .....
379
Banwait Enterprises Versus C.C.E. & S.T. -Chandigarh-II
Denial of refund claim - Bar of limitation - Duty paid under protest - Held that:- In the G.A.R. -7 Challans dated 5.3.2009, 31.3.2009, 3.7.2009 and 5.10.2012, the appellant has not endorsed the words under protest. Where as in GAR-7 Challans dated 28.4.2010, 5.7.2010, 3.7.2010, 4.10.2010, 4.1.2011, 4,4,2011, 5,7,2011, 4.10.2011 3.1.2012, 31.3.2012 and 4.01.2013 the appellant has marked the words under protest. The refund claim is filed beyond a period one year after deposit. The amount as per.....
380
M/s Ishwar Consultant, M/s Shreya Financial Services, Shri Sanjeev Upadhyay Versus C.C.E., Kanpur
Business Auxiliary service - Denial of SSI exemption - whether the commission received by the appellants from the banks is chargeable to service tax under Section 65 (19) of the Finance Act, 1994 under Business Auxiliary Services - whether small scale exemption will be admissible to the appellants or not - Held that:- services provided by these appellants as a Commission Agents are classifiable as Business Auxiliary Services. Appellants are arranging loans for the banks and thus promoting market.....
381
CCE, Kanpur Versus M/s Metro & Metro
Leviability of service tax - services provided by a person situated out of India - Held that:- The issue has been finally settled by Hon'ble Supreme Court in the case of Union of India vs. Indian National Ship Owners Association [2009 (12) TMI 2 - Supreme Court of India] when Revenue appeals against Bombay High Courts order in the case of UOI vs. M/s Indian National Ship Owners Association (2008 (12) TMI 41 - BOMBAY HIGH COURT), was dismissed - Decided against Revenue.
382
M/s Sharda Udyog Versus Commissioner of Central Excise, Ghaziabad
Management, Maintenance or Repair Service - activity of reconditioning - Invocation of extended period of limitation - Held that:- Admittedly, reconditioning and restoration was not available in the definition of Management, Maintenance or Repair Services prior to 16.05.2005 and same was specifically introduced with effect from 16.05.2005, Thereafter, this Tribunal has arrived at a decision that for the period prior to 16.05.2005 the definition of Management, Maintenance or Repair Services did n.....
383
Commissioner of Service Tax, Bangalore Versus Khoday Breweries Ltd.
Denial of refund claim - Amount paid under protest - relevant date - period of limitation - GTA service and business auxiliary service - Held that:- appellant had paid the amount during the course of investigation on the advice given by the investigating officer (it might be force) and after adjudication process, if the demand is dropped, the amount deposited has to be considered as pre-deposit or a deposit. Therefore in this case also, the limitation has to be accounted from the date of the adj.....
384
Agi Glaspca Versus Commissioner of Customs, Central Excise And Service Tax, Hyderabad-IV
Denial of CENVAT Credit - goods transport agency service - Held that:- prior to 01.04.2008 when the inclusive part of the definition allowed CENVAT credit in respect of outward transportation from the place of removal, would be valid and credit will be allowable in respect of outward transportation from the place of removal till 01.04.2008, the date on which the words "from the place of removal" were replaced by words "up to the place of removal". It is not the case of the Revenue that the appel.....
385
Munish Jain Versus State of Haryana And Another
Maintainability of Suit – Statutory Bar to entertain Suit – Plaintiff's company was unable to repay its debt and Haryana financial corporation took possession of company including its pledged buildings, machinery, land etc and were put to auction – Simultaneously company failed to provide C-form and assessing authority under Haryana General Sales Tax Act, 1973 consequently served summons to make payment of amount due – Plaintiff seeking proper remedies and to be allowed to still furnish C-forms .....
386
M/s. Kiran Distributors Versus The Commercial Tax Officer, The Assistant Commissioner (CT)
Detention of goods for carrying incorrect documents – One time payment for release of goods – Petitioners goods were intercepted in transit and on verification of goods and records, even though goods were accompanied with required documents, respondent detained goods and vehicle – Respondent thereafter issued impugned Goods Detention Notice for reason that in Gujarat Transit Pass, Consignor Name / Consignee Name and name mentioned in invoice were different – Held that:- Admittedly main issue was.....
387
Commissioner, Commercial Tax Versus Glorious Electric Co.
Benefit of compounding scheme – Benefit of compounding scheme was not made available to assesse during assessment year in question only on ground that application made for obtaining benefit under said scheme during said assessment year was belated – Held that:- Tribunal vide impugned order held that it is undisputed that assessee had been given credit of said scheme in previous year – There is no fixed time-limit in scheme disclosing period of its enforceability and, accordingly, there remains s.....
388
Packwell Print Industrial Co-operative Society Limited Versus The Commissioner, Commercial Tax, Dehradun
Benefit of Exemption as per notification – Use of Handmade paper in manufacturing - Tribunal vide impugned order reversed decision of Appellate Authority in which authority stated that onus of establishing that assessee does not come within exemption notification is with Department and as Department proceeded to hold that assessee does not come within exemption notification assessment orders exempting revisionist are bad – Held that:- who seeks to contend that he is entitled to benefit of exempt.....
389
M/s Shree Bihari Forgins Pvt. Ltd. Versus Commissioner Central Excise And Anr.
Validity of Tribunal's order - Tribunal dismissed appeal as not being the civil court - Matter before Tribunal is as to who is the proper party to the case - Held that:- Besides demand of duty, penalty has also been imposed upon Sri Pramod Kumar Goyal being the active Director and that the appeal before the Commissioner (Appeal) was contested on behalf of the company by Sri Pramod Kumar Goyal, however, in no circumstance the Tribunal can refuse to enter into the issue as to whether the appeal as.....
390
Commissioner of Central Excise Versus M/s Yamuna Fan Industries
Rectification of mistake - Rectification Application came to be dismissed under the order of the Tribunal dated 05.01.2001 on the ground that the two orders referred to by the department were independent orders and no mistake has crept in the order of the Tribunal. - Held that:- An application for rectification is made for the purposes of making corrections of the mistakes in the order of the Tribunal which are apparent. If such application is rejected by the Tribunal, it will not mean that the .....
391
Commissioner Versus Shree Krishna Fabrics
Duty demand - Confiscation of goods - Imposition of penalty - Held that:- A Division Bench of this Court in the case of Commissioner of Central Excise & Customs v. Stovec Industries Ltd. reported in [2013 (1) TMI 72 - GUJARAT HIGH COURT] held that in view of Circular dated 17-8-2011, tax appeal involving the duty amount below ₹ 10 lakh is not maintainable and this Circular also applies to the pending appeal. Following the aforesaid decision of the Division Bench, we dismiss this tax appeal as not maintainable - Decided against Revenue.
392
Tirupati Metal Works Versus Commissioner of Central Excise, Delhi -II Commissionerate
Waiver of pre deposit - Financial crisis - Held that:- the materials on record, the statements of the parties, the affidavit placed on record together with copies of the ITR, balance sheets and the statement of affairs clearly indicate that the appellant is in acute financial crisis and would not be able to pay any amount. In these peculiar circumstances, the requirement of depositing any pre-deposit amount is hereby set aside - stay granted.
393
Value Industries Ltd. (Earlier Videocon Appliances Ltd.) Versus Commissioner of Central Excise, Aurangabad
Duty demand - Manufacturing activity or repair activity - Assessee received defected compressors - Held that:- there is clear distinction between the newly manufactured compressor and repaired one. It is also observed that if it is assumed that the repair claimed by the Appellant is not repair and it is a manufacture in terms of Section 2(f), then as per the nature of the product, there will be no concept of repair in respect of compressor and the like goods, for the reason that there can not be.....
394
M/s. Sunshine Overseas and Others Versus Commissioner of Central Excise & S.T., Surat
Clandestine removal of goods - Imposition of penalty - Held that:- Appellant No.5 M/s. Vandevi Texturisers (P) Limited and its CEO Appellant No.6 indulged the whole conspiracy with Appellant No. 1, 2 and 3 in hand in gloves in clandestinely disposal of the goods. All were directly involved in disposal of the goods in open market in different roles as stated in the Adjudication order

Quantum of penalty are excessive. As regards the imposition of penalty on Shri Rashid Sadatali Saiyed, .....
395
Rajarambapu Patil SSK Ltd. Versus Commissioner of Central Excise, Kolhapur
Demand towards 10%/5% of value of exempted electricity generated and supplied in term of Rules 6(3) Cenvat Credit Rules, 2004 - Held that:- Demand of 10%/5% of the value of electricity generated and supplied to M/s. MSEB was made in terms of Rule 6(3) of Cenvat Credit Rules, 2004. The undisputed fact is that the appellant is sugar/molasses manufacturing unit, electricity so generated and supplied to M/s. MSEB is manufactured out of bagasse. - issue that 10%/5% value of electricity generated from.....
396
M/s MI Telecom Solutions Pvt Ltd, Shri Ashok Kumar, Director of M/s MI Telecom, Acme Telepower Pvt Ltd Versus CCE, Delhi-II
Manufacture of semi finished battery management systems electrical panels, air-cooling systems and regulators on Job work basis - Marketability - Exemption under Notification No.50/2003-CE - Simultaneous availment of exemption under Notification No.214/1986-CE - Held that:- If the goods being cleared by M/s.MI Telecom are incomplete battery management system, electrical panel, air-cooling system and line regulators and complete goods emerged only in the premises of M/s. Acme, the incomplete good.....
397
M/s. Rupa & Co. Limited, Tirupur Versus The Customs, Excise and Service Tax Appellate Tribunal, The Commissioner of Central Excise
Denial of CENVAT Credit - Rule 9A - Transitional provisions for textile and textile articles - physical content of the inputs in process - claim rejected towards process loss - Held that:- Right from the stage of issue of show cause notice upto the stage of the order of the Tribunal, the claim of the appellant that they incur a manufacturing loss to the extent of 5% of the total quantity of the finished product, has not been disputed by the Department. In cases where there is a dispute about th.....
398
M/s Shivam Marketing Thru. Gauravkushwaha Partner Versus Union of India And Others
Provisional release of goods – Fulfilment of condition for release – Applicant stated that entire duty of consignment have already been deposited based on value approved by Government approved valuer's report and, thus, no Bank Guarantee/Security was required for release of goods –Assistant Commissioner(Customs) directed release of seized goods provisionally on conditions –However later Assistant Commissioner(Customs), requested to retain 25% of value of goods as security in lieu of Bank Guarant.....
399
Lanvin Synthetics Private Limited & anr Versus The Union of India & anr
Non-compliance of conditional advance licence – Imposition of Duty – Delay in adjudication – Petitioner-1 was issued conditional advance licence and compliance was to be made with condition that petitioners would export polythene/viscose blended fabric – As there was collusion between 2nd petitioner and third party, incorrect/manipulated/false information regarding quantities/weight/composition of exported goods was provided to show compliance of terms and conditions of licence and demand of dut.....
400
Commissioner Versus Neptune Cargo Movers
Suspension of License - Vide impugned order of tribunal reported in [2007 (2) TMI 544 - CESTAT, CHENNAI] application filed for condoning delay of 64 days was dismissed for being time barred - It was submitted by learned counsel for appellant that period of suspension ordered against respondent was for period of 18 months from 23-8-2005, which has come to end on 23-1-2007 - It was observed by high court that since period was already over, it was therefore submitted that nothing further survives f.....

Link for Supreme Court Judgments

S. 133 A: Survey – Income from undisclosed source – Retraction of statement – No other evidence of suppression of income – Addition of income not justified. [S.69]
Dismissing the appeal of revenue, the Court held that; while making the additions in the hands of the partner as well as in the hands of the firm, the Assessing Officer solely relied upon the statement of the partner recorded at the time of search, which subsequently came to be retracted or explained within the period of 19 days. Except the statement recorded at the time of search which was subsequently retracted, there was no other material or corroborative material with the Assessing Officer, on which, the addition of Rs. 6 lakhs in the hands of the partner and Rs. 7,00,500 cash in hand and Rs. 25,50,320 as unexplained investment in stock in the hands of the firm could be justified. Under the circumstances, the deletion of the additions was justified. (AY. 2007-08)
CIT v. M.P. Scrap Traders (2015) 372 ITR 507 (Guj.) (HC)



S. 254(1): Appellate Tribunal –Natural justice – Right to cross examine is a part of the audi alteram principle – Order of Tribunal was set aside
The AO disallowed the expenses on the basis of statement of the parties who have stated that they have provided hawala bills. The assessee requested for copy of statement and opportunity for cross examination. The assessee also filed affidavit of party stating that they have rendered the services and the transaction with the assessee was genuine. AO disallowed the payment without providing an opportunity for cross examination. Order of the AO was confirmed by the CIT(A) as well as Tribunal. On appeal to High Court allowing the appeal the Court held that without providing an opportunity of cross examination to the assessee resulted into a breach of principles of natural justice hence the order of the Tribunal was set aside to the AO with the direction to provide an opportunity of cross examination and pass the order in accordance with law. (AY. 2007-08)
R. W. Promotions P. Ltd. v. ACIT (Bom)(HC) www.itatonline.org

 
S. 277A : Offences and prosecutions – Falsification of books – False TDS certificate – Tax practitioner – Refund on the basis of TDS certificates – Respondent had no role in preparing TDS certificates – ITO could not initiate criminal proceedings for commission of offences punishable under IPC. [IPC, Ss. 378(4), 418, 465, 471]
Respondent-accused, an advocate, was a tax practitioner. Main assessee, a Railway contractor, had engaged him for purpose of submission of his returns and supplied him requisite documents, including TDS certificates. Respondent filed return on behalf of main assessee and claimed a refund on basis of TDS certificates. Complainant – ITO opined that TDS certificates were not genuine and refund was wrongly claimed. He thus filed complaint against respondent-accused for commission of offences punishable under sections 418, 465, 468 and 471 of IPC. Trial Court dismissed said complaint. On appeal to High Court dismissing the appeal of revenue the Court held that; since complainant ITO had miserably failed to point out that respondent was liable for preparing false documents which were rather supplied to him by main assessee, Trial Court was justified in dismissing complaint filed against him. (AY. 1988-89)
T.D. Gandhi, ITO v. Sudesh Sharma (2015) 230 Taxman 572 (P&H)(HC)


Facility sharing arrangements between group cos. not 'real estate business' within FDI policy: DIPP

DIPP clarifies on FDI policy on facility sharing arrangements between group companies; States that the facility sharing agreements between group cos. through leasing / sub-leasing arrangements will not be treated as 'real estate business' within provisions of FDI Policy, subject to certain riders: (i) Such arrangements are at arm's length price in accordance with Income Tax, 1961 and (ii) Annual Lease Rent earned by lessor company does not exceed 5% of its total revenue: DIPP, Ministry of Commerce & Industry

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DIPP reviews existing FDI Policy on partly-paid shares & warrants

DIPP reviews FDI policy on partly-paid shares and warrants, amends policy; Clarifies the definition of 'capital' to mean a) 'equity shares; b) fully, compulsorily and mandatorily convertible preference shares; c) fully, compulsorily and mandatorily convertible debentures and warrants'; Clarifies that equity shares issued in accordance with Cos. Act shall include equity shares that have been partly-paid, states that preference shares and convertible debentures shall be fully paid and mandatorily and fully convertible and 'warrants' include share warrants issued in accordance with Cos. Act; States that Indian Co. may issue warrants and partly-paid shares to a person resident outside India, subject to the terms and conditions as stipulated by RBI: DIPP, Ministry of Commerce & Industry.

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Letter of undertaking to buy-back shares 'concluded contract'; Upholds Single Judge order

Division Bench of Bombay HC dismisses appeal filed by La-Fin Financial Services Pvt Ltd ('appellant') against Single Judge order that granted interim injunction against it from encumbering its assets or properties until Rs.166.54 crores was paid to IL&FS Financial Services Pvt Ltd ('respondent'); Notes the fact that parties had executed a Letter of Undertaking under which appellant had an obligation to purchase respondent's shareholding in MCX-SX after 1 year from date of investment by respondent but not later than 3 years, however, appellant failed to fulfill its obligations, thus, respondent filed a specific performance suit before Single Judge whereby injunction was granted; Division Bench rejects appellant's contention that Letter of Undertaking was just an offer and not a concluded contract, holds that the letter provides for a valuable consideration, "If the Letter of Undertaking was merely an "offer"... there would be no question of the same being given for any consideration, because an offer does not have to be coupled with consideration."; Also rejects appellant's contention that relief granted by Single Judge was in the nature of attachment before judgment which could not be granted, differentiates relief of attachment before judgment & relief of temporary injunction under CPC, and holds that Courts have inherent power to grant injunction; Relies on SC rulings in Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal and Wander Ltd. and Anr. vs Antox India P. Ltd, & distinguishes appellant's reliance on co-ordinate bench ruling in Swan Mills vs Dhirajlal and SC ruling in Raman Technical and Process Engineering Co:Bombay HC

The ruling was delivered by Justice V.M. Kanade and Justice B.P. Colabawalla.
Senior Counsel Shekhar Naphade alongwith Advocates Tushad Cooper, Arvind Lakhawal, Naresh Chedda and Pooja Shah argued on behalf of appellant. Respondent was represented by Senior Counsel Venkatesh Dhond alongwith Advocates Ashish Kamat, Shyam Kapadia, Gaurav Shah and Henna Dauylat.


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Posted by: Dipak Shah <djshah1944@yahoo.com>


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