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2023 (5) TMI 389 - CESTAT MUMBAIShort collection of tax - cum-tax benefit - expenditure out of provisional outgoing for deposit and advance are not backed by actual billings - liability arising on corpus fund for club house and corpus fund for complex and apex body - HELD THAT:- Even if the computation in the notice was incorrect as claimed by the assessee, the negative balance for 2010-11 in both have not been substantiated by the adjudicating authority - We must confess to some difficulty in comprehending the intent of the said ground as the reviewing authority has not countered the findings in the impugned order on the basis of fund position as it should have been. Review is a process culminating in serious contentions to be made before the appellate authority and is not half-baked perception analysis. Neither is it an audit of adjudication order for compliance with some norms – real or imagined. In the absence of cogent deduction from ascertained figures, this ground does not merit further consideration. The performance of service devolving on cooperative societies must, necessarily, attach to the same activity undertaken by preceding developer; the adjudicating authority has rendered clear findings on that which have not been specifically discountenanced in the review. The manner in which statutorily assigned duties and obligations is in consonance with the transactional schema of section 65(105)(zzg) of Finance Act, 1994 is sorely lacking in the grounds to merit serious consideration in appeal. Cum tax benefit - HELD THAT:- The claim of Revenue that cum tax computation is not admissible fails and, more particularly, as the decision of the Hon’ble Supreme Court in AMRIT AGRO INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., GHAZIABAD [2007 (3) TMI 14 - SUPREME COURT] arose from a dispute over exclusion of central excise duty in computation of assessable value and the difference between a levy at the stage of manufacture and a levy that is destination-based precludes that as precedent. This issue is, therefore, no longer res integra and the adjudication order passes muster on this score. Exclusion of ₹ 2,48,85,135, claimed to have been paid for electrical energy and water consumption on behalf of the owners by the respondent, from tax liability on ‘provisional outgoing paid in deposit and advance’ - appellant is aggrieved by the failure on the part of the adjudicating authority to verify actual disbursement under those heads - HELD THAT:- There is nothing on record to indicate that evidence of such was placed before the adjudicating authority. The appellant cannot be faulted for surmising that the impugned order has proceeded by accepting the summary furnished by assessee - such verification should have been done or got done for reinforcing the conclusion of non-taxability. To that extent, the impugned order requires remedying. The appeal of Revenue of not sustaining the exclusion of ₹ 2,48,85,135 on account of electrical energy and water consumption from assessable value, for the nonce are allowed - the issue regarding ascertainment of claim that this amount represents actual billings is remanded back - appeal disposed off.
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