|
Advanced Search Options
Case Laws
Showing 381 to 400 of 1429 Records
-
2014 (2) TMI 1050 - CESTAT MUMBAI
Classification of goods - Reclassification of the products such as GOC and C-Pentane - Revenue relying upon the test report showing that boiling range of motor spirit and the product in question qualifies the same to be classifiable as motor spirit - Held that:- as per Chapter Note 4(a) of Chapter 27 of the Central Excise Tariff, “motor spirit” means any hydrocarbon oil (excluding crude mineral oil) which has its flash point below 25°C and which either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines. In the present case, there is no evidence on record produced by the Revenue either before the adjudicating authority or in the present appeal that the product in question is suitable for use as fuel in spark ignition engines. In the absence of such evidence, we find no infirmity in the impugned order - Decided against Revenue.
-
2014 (2) TMI 1049 - CESTAT MUMBAI
Valuation - Show cause Notice was issued on 06.09.1984 demanding duty in respect of recorded copies on the ground that M/s Gramophone Company of India Ltd are holding copyright of the programme recorded by the respondents - Respondents have no right to sell to any other party other than M/s GCIL - Therefore, Revenue held that Respondents are liable to pay duty on the price at which M/s GCIL is selling the tapes manufactured by the Respondents to their dealers - Held that:- In the Show Cause Notice, the allegation is that M/s GCIL are the manufacturers as per the provisions of Section 2(f) of the Central Excise Act. In a similar situation we find that the Tribunal in the case of Collector vs Music India Ltd (supra) held that the buyers price to their own sellers cannot be the basis for determination of assessable value at the hands of the assessee who undertakes the activity of recording the audio cassettes - in the Show cause Notice there is a specific averment that M/s GCIL is the manufacturer and the present Respondents are liable to pay duty on the price at which M/s GCIL is selling. In case M/s GCIL is to be treated as manufacturer then the Respondents are not liable to pay any duty - Decided against Revenue.
-
2014 (2) TMI 1048 - CESTAT NEW DELHI
Exemption on the basis of 11C Notification No. 44/90-C.E. (N.T.), dated 1-11-1990 - Manufacturing of drugs - Held that:- Reading of 11C Notification makes clear that rifampicin and formation of rifampicin with Isoniazid (INH) are only eligible under the exemption Notification. Therefore, the drug montorip Capsule which is a formulation of 3 combination mainly Rifampicin + Pyrazinamide + Isoniazid shall not be eligible for exemption under the Notification in question - so far as Montomycin and Montex Forte is concerned, the appellant has already succeeded before adjudicating authority who followed 11C Notification and granted relief. In view of the clear mandate of 11C Notification appeal is dismissed insofar as montorip capsule is concerned - Decided against assessee.
-
2014 (2) TMI 1047 - MADRAS HIGH COURT
Stay application - Difference between tax paid under the TNVAT Act under Works Contract Act - Suppression of sales - Difference in purchase turnover between the trial balance and the monthly sales tax returns - Held that:- A perusal of the material documents reveals that what are all the information available with the assessee had been furnished to the department and the assessee had been duly assessed to tax and the liability had been fixed - sales cannot be construed as Inter State sales and it is only a sales within the State of Tamil nadu, now the respondents have invited the dealer to prove their objections through an audited trial balance and the Profit and Loss Account and undoubtedly, it is for the assessee to prove its objections in accordance with law.
As the respondents have proposed to revise the assessment only for non-furnishing of the audited trial balance and the plea of the petitioner that they are prepared to prove their objections with the audited accounts, these writ petitions are disposed of with a direction to the writ petitioner to file their proof of objections within a period of four weeks from the date of receipt of a copy of this order. Thereafter, the respondents shall consider the same in accordance with law and on merits, give an opportunity of hearing to the dealer and pass appropriate orders thereon within a period of eight weeks thereafter. Till such time, the respondents are directed not to proceed with the recovery order - Stay granted.
-
2014 (2) TMI 1046 - MADRAS HIGH COURT
Execution of bank Guarantees for the balance amount of disputed tax - Held that:- The petitioner has already deposited 25% of the disputed amount of tax pursuant to the direction given by the Appellate Deputy Commissioner. In addition to the deposit of 25%, the Appellate Deputy Commissioner, directed the petitioner to produce Bank Guarantee for the remaining amount of tax and penalty - This Court has passed several orders on earlier occasions substituting the condition with regard to execution of Bank Guarantee by permitting the concerned appellants to produce personal bonds, undertaking to pay the entire amount , in case the appeal is rejected - The petitioner in these three petitions is also similarly placed and therefore, I am of the view that the petitioner should be permitted to execute personal bonds instead of Bank Guarantees - Decided in favour of assessee.
-
2014 (2) TMI 1045 - CESTAT NEW DELHI
Waiver of penalty in respect of delayed payment of service tax on renting of immovable property - Section 80 was amended and a new provision of section (2) was introduced, vide Finance Act, 2012 - Held that:- The appellant in the present case has deposited the service tax alongwith interest on 03.12.2011 and 25.05.2012. As such the said provision is fully applicable to the facts of the present case. - Following the decision in M/s. Euro Ceramics Ltd. Versus Rajkot [2013 (5) TMI 538 - CESTAT AHMEDABAD], penalty waived - Decided in favor of assessee.
-
2014 (2) TMI 1044 - CESTAT CHENNAI
Refund of CENVAT Credit - eligibility of input service credit taken on lift maintenance or air-conditioner, renting of cafeteria area, sale of foreign currency, AMC to air-conditioning - Held that:- denial of credit on air-conditioner, renting of cafeteria areas, AMC to air-conditioner are not sustainable. - Decision in the case of assessee's own case [2013 (12) TMI 741 - CESTAT CHENNAI] followed.
The respondent is an 100% EOU with the Software Technology Park of India and during the course of business some of the employees were required to travel outside India to the patent company for knowledge transfer relating to the business. It is also noted that the lift maintenance is related to their office premises. - all these activities are covered within the definition of input services under Rules 2004 - Decided against the revenue.
-
2014 (2) TMI 1043 - CESTAT NEW DELHI
Valuation - construction service - inclusion of free supplies - Held that:- free supplies made by the Customers to the construction service provider would not get added in the gross amount charged for providing construction services. - Following the decision in the case of Bhayana Builders Pvt. Ltd. vs. CST, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI] decided in favor of assessee.
-
2014 (2) TMI 1042 - CESTAT MUMBAI
Levy of penalty for delayed payment of service tax - works contact service - Held that:- in view of the on going contract which was entered into prior to 10.09.2004 and the levy of tax being a new levy from 10.09.2004 and the appellant was under the bona fide belief that they do not fall under the Service Tax liability and keeping in mind the conduct of the appellant that he has discharged the Service Tax alongwith interest soon after being pointed out, it is a fit case for setting aside the penalty under Section 78
-
2014 (2) TMI 1041 - CESTAT NEW DELHI
Stay application - Demand of service tax - Intellectual property service - Transfer of licence for production of certain aircrafts and equipments and transfer of technology - Held that:- confirmation of demand under IPR category is justified. Similarly, the appellant has not disputed that the engineers of foreign parties came to their premises for giving advice and consultancy for the manufacture of aircrafts. As such, we prima facie agree with the Adjudicating Authority that the demand on the said count is also sustainable - demands stand raised by invoking the longer period of limitation. The Adjudicating Authority has himself extended the benefit of Section 80 in respect of penalties to be imposed on the appellant in terms of various Sections. If that be so, there cannot be any malafide or suppression on the part of the appellant so as to invoke the longer period of limitation - Conditional stay granted.
-
2014 (2) TMI 1040 - CESTAT CHENNAI
Rectification of mistake - Change in cause title - Held that:- Registry is directed to correct the cause title insofar as the words written ‘Commissioner of Central Excise, Chennai IV Commissionerate’ would be substituted by ‘Commissioner of Service Tax, Chennai’. The assessee is also directed to mention the correct cause title in further proceedings - Rectification made.
-
2014 (2) TMI 1039 - CESTAT NEW DELHI
Demand of service taxes - Benefit of Notification No.24/2004 - Denial of benefit in respect of computer training service - Held that:- Following decision of C.C.E. vs. Sunwin Technosolution P. Ltd. [2010 (9) TMI 71 - SUPREME COURT OF INDIA] - Conditional stay granted.
-
2014 (2) TMI 1038 - CESTAT NEW DELHI
Stay application - Commercial coaching and training service - Recovery of Credit - Imposition of interest and penalty - Held that:- use catering service, photography service, service of repair and maintenance of the motor vehicles and renting of halls and travelling expenses is not disputed. I am of prima facie view that all these services have nexus with the appellant’s activity of providing commercial coaching and training and, as such, the same appear to be covered by the definition of input service as given in Rule 2 (l) of the Cenvat Credit Rules. In view of this, the requirement of pre-deposit of Cenvat credit demand, interest and penalty is waived for hearing of the appeal and the recovery thereof is stayed till the disposal of the appeal - Stay granted.
-
2014 (2) TMI 1037 - DELHI HIGH COURT
Power to grant stay u/s 254(2A) of the Act – Stay to be granted beyond 365 days – Held that:- The legislative mandate has to be respected and the courts do not legislate but interpret the statute as a legislative edict - The third proviso after amendment, undoubtedly bars and prohibits the tribunal from extending interim stay order beyond 365 days - It stipulates deemed vacation and imposes no fault consequences in strict terms - The language is clear and therefore has to be respected - However, the provision does not bar or prohibit an assessee from approaching the High Court by way of writ petition for continuation, extension or grant of stay.
The High Court in appropriate matters can grant or extend stay even when the tribunal has not been able to dispose of an appeal within 365 days from the date of grant of initial stay - This perhaps appears to be and apparently is the intention of the Parliament - Relying upon Jethmal Faujimal Soni vs. Income Tax Appellate Tribunal [2010 (4) TMI 747 - Bombay High Court ] - Grant of stay by the tribunal is not a matter of right, but is decided by a speaking order, recording prima facie view on merits - In case there is an error or the tribunal has erred in granting stay, Revenue is not without remedy and can approach the High Court in accordance with law – the Revenue is the appellant before the High Court in disproportionately large percentage of cases, being aggrieved by the finding/adjudication by the tribunal on the question of law and fact - Appeals are preferred by the Revenue mostly in cases where the tax demand is ₹ 10 lakhs or above - The figures/data does indicate that in substantial number of matters, Revenue may not have succeeded before the tribunal in sustaining the tax demand.
In view of the third proviso to Section 254(2A) of the Act substituted by Finance Act, 2008 with effect from 1st October, 2008, tribunal cannot extend stay beyond the period of 365 days from the date of first order of stay - In case default and delay is due to lapse on the part of the Revenue, the tribunal is at liberty to conclude hearing and decide the appeal, if there is likelihood that the third proviso to Section 254 (2A) would come into operation.
Third proviso to Section 254 (2A) does not bar or prohibit the Revenue or departmental representative from making a statement that they would not take coercive steps to recover the impugned demand and on such statement being made, it will be open to the tribunal to adjourn the matter at the request of the Revenue - An assessee can file a writ petition in the High Court pleading and asking for stay and the High Court has power and jurisdiction to grant stay and issue directions to the tribunal as may be required - Section 254(2A) does not prohibit/bar the High Court from issuing appropriate directions, including granting stay of recovery.
Determination of Arm’s length price – Held that:- Determination of arm’s length pricing on international transactions and the tax amount involved which includes interest under Section 234B of the Act - By the order dated 4th January, 2013, stay was extended by 180 days or till the disposal of the appeal, whichever occurs first.
-
2014 (2) TMI 1036 - ALLAHABAD HIGH COURT
Recall of order – Opportunity of being heard – Held that:- Assessee contended that the his version could not be put forth with - Order 41 Rule 21 of the Code of Civil Procedure provides that where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal - if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him - the Court has power to exercise the inherent power - The cause shown by the applicant is satisfactory and as such, to secure the ends of justice, it would be apt to recall the judgment and order dated dated 27.8.2013 – thus, all the applications are allowed with a cost - The judgment and order dated 27.8.2013 passed in the aforesaid appeals is recalled subject to payment of the cost – Decided in favour of Assessee.
-
2014 (2) TMI 1035 - DELHI HIGH COURT
Validity of direction for special audit of accounts u/s 142(2A) of the Act – Transfer pricing adjustments - Held that:- There is no merit in the petition of the assessee - in the petitioner’s letter dated 31.10.2011, addressed to the respondent in response to various notices issued by the latter and with reference to the subsequent discussions held in the course of the hearing which took place on 19.10.2011, the petitioner has submitted an elaborate reply in paragraph 9 of the letter under the caption “show cause as to why special audit under Section 142(2A) of the Act should not be conducted in the instant case” - The paragraph clearly refers to the request made by the respondent on 19.10.2011 to the petitioner to show cause as to why special audit should not be conducted because of the nature and complexity in the financial statements.
The inclusion of the last mile charges in the profit and loss account as a debit, when the capitalised infrastructure cost is eligible also to depreciation, may amount to double deduction - The approval was accorded by the CIT on 23.12.2011 - It cannot be said that the CIT did not apply his mind to the proposal for special audit - The assessing officer referred the matter to the Transfer Pricing Officer under Section 92CA of the Act on which the latter did make an addition on account of transactions with the petitioner’s associated enterprises and it was at that stage the assessing officer made a reference to special audit; the suggestion was that the exercise was uncalled for since the direction of the TPO was binding on the AO in any case - the AO is empowered to refer the accounts to the special auditor “at any stage of the proceedings” S.142(2A) - there is no bar, and there is nothing in the sub-section which makes its provisions subject to the powers of the TPO - The reference to special audit cannot be held to be contrary to law on that score – Decided against Assessee.
-
2014 (2) TMI 1034 - CALCUTTA HIGH COURT
Nature of Income – sale of land - Business income OR Capital gain – Held that:- CIT(A) held that the activity of business has not been established conclusively - The conduct of the appellant in the previous years, their actions as apparent from the balance sheet of the previous years and their source of income in the previous years, all point to the fact that there was no business activity and the land was sold during the year on which income had been derived could not be considered to be a business activity – thus, the sale of land be treated as capital gain and not business income – Tribunal upheld the decision of CIT(A) - Whether the income arose out of any business activity or out of capital gain is essentially a question of fact or a mixed questions of law and fact - Both the CIT (Appeals) and the learned Tribunal agreed as regards the fact that the income arose out of capital gain - revenue could not point out any infirmity in the view taken by the CIT (Appeals) and the Tribunal – there is no question of law arises in the appeal to be entertained – Decided against Revenue.
-
2014 (2) TMI 1033 - KARNATAKA HIGH COURT
Power of Commissioner u/s 263 of the Act – Held that:- The decision in MALABAR INDUSTRIAL CO. LIMITED v/s COMMISSIONER OF INCOME TAX [2000 (2) TMI 10 - SUPREME Court] followed – commissioner cannot exercise the power of revision solely on the ground that the order passed is erroneous - He gets jurisdiction only if such erroneous order is prejudicial to the interest of the Revenue - for attracting Section 263, the condition precedent has to be abide - 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 Assessing Officer – Decided against Revenue.
Interpretation of section 13(1)(d) of the Act - Whether the Tribunal is correct in holding that when a part of income is held to be violative of the provisions of Section 13(1)(d) only to the said extent maximum marginal rate of tax is to be levied and not for the whole income more particularly when there is violation of provisions of Section 11(5) of the Act – Held that:- It is only the income from such investment or deposit which has been made in violation of Section 11(5) of the Act that is liable to be taxed and that violation under Section 13(1)(d) does not tantamount to denial of exemption under Section 11 on the total income of the assessee – the decision in Director Of Income-Tax (Exemptions) Versus Sheth Mafatlal Gagalbhai Foundation Trust [2000 (10) TMI 26 - BOMBAY High Court] followed - in case of contravention of Section 13(1)(d), maximum marginal rate of tax under Section 164(2), proviso is applicable only to that part of income of the Trust which has forfeited exemption and not the entire income – thus, the entire income of the respondent-Trust cannot be assessed for the tax – Decided against Revenue.
-
2014 (2) TMI 1032 - CALCUTTA HIGH COURT
Retrospective effect of Section 14A and Rule 8D of the Act - Disallowance of Expenses - Whether the Tribunal was justified in holding that the provisions of sub-sections (2) and (3) inserted in Section 14A of the Income Tax Act, 1961 with effect from April 1, 2007 and rule 8D inserted in the Income Tax Rules, 1962 on March 24, 2008 were procedural and retrospective and were applicable for the assessment years 2001-02, 2004-05 and 2005-06 – Held that:- Assessee contended that Rule 8D cannot, by any stretch of imagination, be said to be retrospective in nature – Relying upon Godrej and Boyce Mfg. Co. Ltd. Vs. Deputy Commissioner of Income Tax and Anr. [2010 (8) TMI 77 - BOMBAY HIGH COURT] - The provisions of rule 8D of the Income Tax Rules which have been notified with effect from March 24, 2008, shall apply with effect from the assessment year 2008-09 – the Assessing Officer is duty bound to determine the expenditure which has been incurred in relation to income which does not form part of the total income under the Act - the department must be deemed to have accepted the position that Rule 8D is only prospective in nature - the department has to have some consistency in its views and it cannot blow hot and cold at its sweet-will – Decided in favour of Assessee.
-
2014 (2) TMI 1031 - ITAT HYDERABAD
Order of CIT(A) - Proper examination not done – CIT(A) deleted various additions as opening Capital Balance, Gift from parents & sister, outstanding expenses, unsecured loans, disallowance of expenses and agricultural Income returned - Revenue objected for deleting various additions by CIT(A) without evidence or giving opportunity to the A.O - The matters raised before require re-examination by AO - As seen from the balance sheet placed on record, there are no immovable properties, even the so-called agricultural land purchased in 2005 - As stated by AO no books of accounts or vouchers are furnished - The confirmation of gift letters signed and filed also are devoid of any information about date of gift, mode of gift and amount advanced by each person - Opening capital claimed also require confirmation about sources - CIT(A) without examining this issue, deleted them without proper reasons - Whether assessee has any other Balance Sheet reflecting assets is also not on record - Rule 46A violation is also there – thus, the matter remitted back to the AO for fresh adjudication – Decided in favour of Revenue.
............
|
