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Case Laws
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2010 (7) TMI 512
Classification - Demand - Intellectual Property Services - The appellants have also submitted that since it had deposited the tax found due along with applicable interest before issue of show-cause notice basic to the proceedings, the matter should have been treated as closed in terms of section 73(3) of the Act - there is considerable merit in the claim of the appellants that the tax and interest confirmed against the appellants were not liable to be paid by it - Decided in the favour of the assessee
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2010 (7) TMI 511
Construction service - service tax on builders - Constitutional validity of section 65(30a)with section 65(105)(zzq) and section 65(105)(zzzh) with section 66 - Notice shall issue to the Attorney General of India and also to Respondent - Until the next date of hearing, no coercive steps shall be taken against the Petitioner for the recovery of service tax in relation to the provision - the assessments may proceed in accordance with law.
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2010 (7) TMI 508
Capital gain vs. Other sources - Lease or transfer - sale through auction - sale consideration received in installments - whether the amount received by the seller forms part of the sale consideration or it was under a different transaction where interest for a fixed amount was calculated and received by him - the amount in question, received by the Official Liquidator as per the orders of the Company Court, though repeatedly referred to as interest, for the purpose of assessment of income tax, it is part of sale consideration and therefore, the same cannot be treated as income from other sources as defined in Section 56 of the Income Tax Act - The said amount is treated as Capital gain - Decided in the favour of the petitioner
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2010 (7) TMI 506
CENVAT credit on Capital goods - Rule 4(2)(a) and (b) of CENVAT Rules 2001 - 50% or 100% credit - Whether the Hon'ble CESTAT has committed an error of law in holding that the provision prevailent after 01.03.2002 and prior to 01.04.2000 would be deemed to be in operation during the period when Rule 4(2)(a) and (b) of CENVAT Rules 2001 was in force by relying upon Section 21 and 24 of the General Causes Act 1897 - Refer to the decision of the Hon'ble Supreme Court in the case of KOLHAPUR CANESUGAR WORKS LTD VS UNION OF INDIA, held that the order of the Tribunal, which is, directly in conflict with Rule 4(2) of the Cenvat credit Rule cannot therefore, be sustained - The question of law, therefore, is answered in favour of the appellant.
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2010 (7) TMI 504
Ban on export of meat sourced from animal slaughtered - Ministry recalled the notification without any application of mind and just by telephonic talk directed to omit the proviso - law as was originally existing having not been challenged, we find no case made out to interfere with the amendment - no merit, the petition and the Civil Application both dismissed
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2010 (7) TMI 502
Demand together with interest and penalty -The Appellants had duly applied for registration soon after the imposition of the tax and they were awaiting the registration before they could made payment of the Service Tax amounts - This is a case in which a lenient view regarding impositionof penalty under section 80 of the Finance Act, 1994 can be taken - Hence, confirming the tax and interest amounts determined by the authorities below, the penalty imposed under section 78 is set aside - Appeal is thus partly allowed.
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2010 (7) TMI 500
Search and seizure - Block assessment - Undisclosed income - Penalty u/s 158BFA - "Whether the Tribunal was justified in setting aside the penalty imposed on the ground that under section 158BFA(2) the element of offence is absent and consequently, imposition of penalty is illegal? Held that: - In the order passed by the AO, no reasons are assigned for imposing penalty. Penalty is imposed because the assessee has not complied with the conditions stipulated in the first proviso. That cannot be the reason for imposing penalty. Though the assessee had not paid the tax payable on the date of the assessment order and the payment of tax was in instalments in pursuance to the notice issued, as there is a cash crunch, he has paid the tax subsequently. When the tax payable on the undisclosed income under section 113 of the Act is 60 per cent it takes care of many factors. - Tribunal in his jurisdiction was justified in setting aside the order of penalty. Though we do not agree with the reasoning of the Tribunal that the provision does not contemplate the nature of the offence for coming to the conclusion that penalty is not leviable, in this case it is not necessary for us to go into the correctness or the legality of the said finding as the assessee is entitled for relief on the merits of the case.
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2010 (7) TMI 498
Waiver of pre-deposit - Valuation - The appellants are engaged in the manufacture of liquid glucose - A show cause notice was issued to the appellant on the ground that the appellant had failed to add the cost of M.S./HDPE barrels received free-of-cost from the buyers for packing the product manufactured by the appellant to the transaction value of the said product. The cost of the packing material supplied free-of-cost to the assessee would amount to an additional consideration flowing from the buyer to the assessee in relation to the goods sold - The entire value of such barrels has to be considered at every occasion of supply of such barrels to the assessee - Only proportionate cost will have to be included in the transaction value for each consignment of liquid glucose - Prima facie case has been made out for waiver of the amount demanded - The liability to be calculated by applying the principle of amortised cost - The appellant shall be liable to deposit an amount of Rs. 2,75,000/- out of the total amount demanded
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2010 (7) TMI 496
Waiver of pre-deposit - valuation - sales tax collected and retained by the assessee - Held that: - retention of amount of Rs. 7,99,70,453/- was not on account of deduction from the Sales Tax but on account of loss, which would be suffered by the appellants on account of pre-matured re-payment of the loan amount of sales tax, which was converted into a loan amount in terms of the scheme issued by the State Government. The same being not on account of deduction from the Sales Tax, as such, the question of refusal of deduction of amount of Rs. 7,79,70, 453/- do not appear to be in consonance with the concept of transactional value within the meaning of said expression under the said Act. - a prima facie case has been made out for waiver of amount demanded - full waiver granted.
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2010 (7) TMI 494
Penalty - Assessee had the turnover of Rs. 43,49,986 in the share business which was not considered for auditing of accounts required under section 44AB of the Act, 1961 - . The only issue for consideration which is common in the Revenue’s appeal as well as cross-objection filed by the assessee relates to levy of penalty under section 271B of the Income-tax Act - The Assessing Officer, considering the provisions of section 44AB of the Act, levied the penalty at half per cent, of the total turnover of both businesses subject to maximum of Rs. 1,00,000 - on the decision of the hon’ble Supreme Court in the case of R.B. Jodha Mal Kuthiala v. CIT (1971 -TMI - 6273 - SUPREME Court) wherein it has been held that there was no presumption as to the tax – By the plain reading of the provision of the Section 44AB – It was held that the assessee, is not in dispute that the assessee had not got tax audit report in respect of share trading business having turnover of Rs. 43,49,986 - levy of penalty confirmed.
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2010 (7) TMI 492
Deduction under section 80IB - The assessee was doing business of development and construction on land - One of the basic requirements for granting deduction u/s.80-IB was that the development and construction of housing property should commence on or after 1.10.1998 - It is not the first year in which the claim for deduction u/s.80-IB was made - certificate issued by CIDCO on 7.4.1998 was only approval letter for commencing the construction whereas the actual commencement was done only after receiving certificate from District Collector of Thane on 19.5.1999 - As in the instant case the assessment order is not prejudicial to the interest of the Revenue inasmuch as the rightful deduction has been granted u/s. 80-IB(10) when seen in the light of actual date of commencement being after 01.10.1998 - view taken by the learned CIT to revise the order u/s 263 not acceptable – decided in favor of assessee.
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2010 (7) TMI 490
Estimation of profit - Application of section 145(3) - Held that: - the returning of a lower profit, which is itself a relative term, cannot by itself form a reason for the rejection of account - However, Rejection (non acceptation) of books of account on the ground of booking of a substantial portion of the expenses through self-vouchers sustained. Estimation of income of the business would arise only where the finding of the books of account not yielding correct income due to their being not correct or complete, is upheld - When the quantum or estimate itself is in dispute, making claims, sons any basis, is of no moment; the law, in fect, only requiring the assessing authority to be not arbitrary and make the estimated an objective, reasonable manner; in short, fairly - Decided in the favour of the assessee by way remand to CIT(A) for passing a speaking order in the matter, and after allowing proper opportunity of hearing to both the parties Income from other sources or capital gain - Trees rooted to the land, by definition, are a part of land (refer: Transfer of Property Act), even as clarified by the apex court per inter alia the cited decisions - Thus, though an erstwhile constituent thereof, and not mainland itself, it would nevertheless, where severed from the land and realized as such, stand to be categorized as a capital asset in specie - The gains on the sale of trees, decidedly a capital asset u/s, 2(14), would therefore stand to be assessed as 'capital gains' u/s. 45 of the Act Regarding cost of acquisition - Plants and trees arise out of the womb of the land without any organised effort or activity, which is what essentially the term 'spontaneous growth signifies - The assessee, however, in the computation of its income under the said head would be entitled to a reduction toward the decline in the value of the land on account of removal of such trees, and which would be independent and irrespective of whether the roots stood sold to the same purchaser, or stood not sold by the assessee, being unrealisable or otherwise; it being not the Revenue's case that the roots stood sold to somebody else - Decided in the favour of the assessee by way of remand - In the result, the assessee's appeal is partly allowed and partly allowed for statistical purposes
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2010 (7) TMI 488
Business income or Rental income - ownership of property - property on lease - tenancy right - CIT (A) held that the rental income was assessable under the head business and not under the head income from house property. - Held that: - the assessee has exploited the lease rights in the property as an owner. The rent has been received under tenancy rights and, therefore, the assessee is owner of the property for the purposes of section 22 of the Act. Accordingly, the rent received by the assessee will be assessable under the head “house property” and not under the head “income from business. - Decided in favor of revenue.
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2010 (7) TMI 486
Refund - Respondent is engaged in manufacturing and export of goods and filed refund claim of Rs. 3,33,564/- claiming refund service tax paid by them for the period from April 2008 to June 2008 on port services and transport of goods - As regards terminal up handling charges and REPO charges, the very same issue had come before the Tribunal in the case of M/s. Macro Polymers Pvt. Ltd. v. CCE, [2010 -TMI - 78579 - CESTAT, AHMEDABAD] this Tribunal had taken a view that refund of service tax paid on terminal handling charges and REPO charges were admissible under circumstances - in this claim the refund claimed is in respect of transportation from ICD to the port - refund allowed.
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2010 (7) TMI 484
Cenvat credit - 'Air Ticket Booking Service' - subject to the condition that the journey is undertaken for the business purpose only - appellate authority has relied upon the decision of the Tribunal in the case of CCE, Ahmedabad v. Fine Care Biosystems [2009 -TMI - 35460 - CESTAT, AHMEDABAD] - Held that: - dispute is covered by the Tribunal's judgment cited supra, this is not a fit case for admission - appeal is dismissed
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2010 (7) TMI 483
Set off and carry forward – Unabsorbed depreciation – Exemption u/s 10B - Deduction u/s 80HHC - Held that: In accordance with the majority view, therefore, it is held that the unabsorbed depreciation in respect of Unit A for assessment year 1994-95 to 1996-97 and could be set off against its assessable income for the assessment years 2000-01, 2001-02, 2002-03, 2004-05 and 2006-07. Likewise, the unabsorbed depreciation of Unit B for assessment year 1997-98 could be set off against the taxable income for assessment year 2006-07, deciding the said issue in favour of the assessee and against the revenue. - Decided by third member by majority view. DEPB Income - taxability u/s 28 - Held that: section 28(iiid) would apply only to the profit realised on the transfer of DEPB license(s) by the assessee during the relevant year. Deduction u/s 80HHC - third proviso to section 80HHC(3) is applicable only to the profit arising on the transfer of the credit(s) available under the DEPB scheme, which is to be reckoned by taking its face value as its ‘cost’ which, in turn, would be assessed to tax under section 28(iiib) in the year in which the Application to the appropriate authority stands made by the assessee after effecting the export.
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2010 (7) TMI 481
Appellant is only providing service in the hospital - not providing any commercial caterers' service - taxing the appellant shall cause undue hardship and equally calling for pre-deposit before hearing the matter shall cause prejudice to its interest - Held that: - appellant had no voluminous turnover - proper case for dispensing pre-deposit on the ground of unsound financial condition - Application is disposed of
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2010 (7) TMI 479
Revision - Scrutiny - Addition - Penalty - Time barred limitation - Whether in the facts and circumstances of the case, the Commissioner of Income-tax is justified on merits to set aside the Order of the Assessing Officer dropping the penalty proceedings imposed under section 271(1)(c), even though, the Commissioner of Income-tax has rightly exercised his jurisdiction under section 263 - Held that: - a joint reading of sections 275(1)(a) and 275(1A) are capable of being interpreted in more than one way. It is a possible view that section 275(1A) allows the Assessing Authority to “impose penalty” even after the appeal is determined by the Hon’ble High Court. The above view has been adopted by the Assessing Authority. It is a settled position of law that where two views are possible, the view adopted by the Assessing Officer cannot be held to be erroneous. - the order could be revised only if it is not only prejudicial to the interests of the revenue but also erroneous. - In the present case, the order cannot be held to be erroneous. Therefore, the Revision order passed by CIT is not sustainable in law.
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2010 (7) TMI 477
Demand of service tax, interest and penalty - assessee availed services of Goods Transporter Operator - assessee was liable to pay Service Tax as recipient of such services - Held that: - till the point of time Section 73 of the Finance Act, 1994 came to be substituted w.e.f. 10-9-2004 provisions of the said section could not be made applicable despite retrospective amendment in Sections 68 and 71A of the Finance Act, 1994. In these circumstances, admittedly, the assessee could not be faulted with for not having filed a return after getting himself registered. More particularly, when one considers the language employed in the Proviso below sub-section (1) of Section 68 and the provisions of Section 71A of the Finance Act, 1994, it is not possible to state that the language of the Statute is so clear that any default can be fastened on the respondent-assessee - Appeal is dismissed
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2010 (7) TMI 475
Sugar – Computation of average production of sugar – Exemption Notification - no ambiguity in Clause (3) of the notification in question which category provides that the period in which the sugar was not produced therein shall be ignored - principle of reading down cannot be applied – Each assessment year with regard to taxing matter should be considered independently while evaluating the tax
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