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Case Laws
Showing 421 to 440 of 1429 Records
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2014 (2) TMI 1010 - CESTAT CHENNAI
Waiver of pre deposit - Availment of CENVAT Credit - manufacture of computers system and is also engaged in the trading - input services i.e Management, maintenance and repair service, software services - Held that:- In respect of the credit attributable to the trading activity, we do not find any merit in the submissions of the learned counsel for the applicant because the applicant should not have taken or at least reversed it on his own. There is no submission that they have made any reversal either at Bangalore or Pondicherry. The matter under consideration is credit taken at Pondicherry. So it is appropriate that the portion attributable to trading is ordered to be reversed immediately. Therefore, we order the applicant to make a pre-deposit of Rs.1.7 crores in respect of Appeal - Conditional stay granted.
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2014 (2) TMI 1009 - CESTAT AHMEDABAD
Waiver of pre-deposit - Classification of the product “Gronimix Neem Blended Organic Manure” - fertilizer - Classification under CETA 3101 00 99 or CETA 3808 99 10 - Held that:- literature/pamphlet available in para 85.1 of the adjudicating order dated 21-2-2013 as to what nutrient/nutrients are provided by the product manufactured/marketed by the appellants. On the contrary one of the features of the product mentioned in the pamphlet is that “Application of Gronimix with ‘N’ containing fertilizers regulates the release of nitrogen for longer time and increases the effect of fertilizers”. This feature only seems to suggest that release of Nitrogen (N) from a fertilizer is also regulated by the product manufactured by the appellant. Under the heading ‘Effectiveness’ of the pamphlet contained in para 85.1 of the adjudication order dated 21-2-2013 also the product has been advertised to control Nemotodes, termites and soil borne pests which have been appropriately interpreted by the adjudicating authority in paras 89.1 & 89.2 of the adjudication order. Appellants have, therefore not made out a prima facie case for complete waiver of the dues and are required to be put to certain conditions - Conditional stay granted.
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2014 (2) TMI 1008 - CESTAT NEW DELHI
Waiver of penalty - short payment was due to error of interpretation of exemption Notification No. 15/2002, dated 1-3-2002 - Payment of Short duty - Held that:- spell of contravention is only 5 months from the date of implementation of notification. There is no observation that the appellant deliberately caused loss to revenue except an assumption that there was intentional short-payment. As soon as the respondent came to understand right interpretation it made good loss of revenue. For this short spell of breach, it may not be construed that there was deliberate breach of knowable law. At the infancy stage of implementation of notification, arise of difficulties may not be ruled out. Finding no contumacious conduct of the respondent, granting waiver of penalty by ld. Commissioner (A) appears to be justified. Therefore, there shall be no interference to his order - Decided against Revenue.
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2014 (2) TMI 1007 - CESTAT AHMEDABAD
Denial of remission of duty - destruction of goods - Appellant’s both factories were flooded by water due to heavy rains and flood in Daman Ganga River in August, 2004 - Application was unanswered by the office of the Commissioner of Central Excise or the office of the Assistant Commissioner of Central Excise having jurisdiction over the appellant’s factory - Held that:- the appellant having informed the authorities about the quality of the goods which needs to be destroyed, as being unfit for human consumption, it was for the lower authorities to respond to such a letter received from the appellant and also the remission application. - The lower authorities have not even bothered to call for any details or give any response to the appellant on the remission application. - The appellant had taken all the possible actions from his side to keep the departmeat informed about the requirement of remission of the duty and also of the destruction of the goods.
The rejection of the remission applications by the adjudicating authority in these cases is not in consonance with the law and are unsustainable. - Following decision of assessee's own previous case [2008 (4) TMI 636 - CESTAT, AHMEDABAD] - Decided in favour of assessee.
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2014 (2) TMI 1006 - CESTAT CHENNAI
Waiver of pre deposit - Availment of CENVAT Credit on inputs - Captive consumption u/ntf 67/95 - Exemption vide Notification No. 6/2006-C.E., dated 1-3-2006 - availing exemption on Final Products as supply to International Competitive Bidding (ICB) Project - Held that:- assessees prima facie were not required to discharge the obligation prescribed under Rule 6 of Cenvat Credit Rules, 2001 as they were covered by Clause (vii) of Rule 6(6), which stipulates that the provisions relating to payment of 10% or 5% as the case may be were not required to be followed as the goods were supplied against I.C.B. in terms of Notification No. 6/2002 or 6/2006 and therefore, exempted from levy of duty of customs and additional duty as per Clause (vii) of Rule 6(6) of the Cenvat Credit Rules. The assessees therefore, have made out a prima facie case on merits and we therefore dispense with pre-deposit of duty, interest and penalty and stay recovery thereof pending the appeal. - Following its earlier decision in [2012 (10) TMI 105 - CESTAT, CHENNAI] - Stay granted.
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2014 (2) TMI 1005 - ANDHRA PRADESH HIGH COURT
Valuation of assets under Wealth tax - Whether Tribunal was justified in Fixing the value of the beneficial interest in the corpus at 50% of the value fixed by the valuer on the alleged grounds of uncertainties, hazards and risks of litigation, etc.? - Held that:- Tribunal is the last fact finding authority and the High Court in exercise of its jurisdiction under Section 27 of the Act and Section 256 of the Income Tax Act has to accept the finding as recorded by the Tribunal as correct unless a specific question as to the perversity of such finding of fact has been raised in the given case.
Question Nos.1 and 2, relating to valuation of the asset in issue, in the present case are pure questions of fact. In view of the facts and in the circumstances of the case, we deem it appropriate that the two questions are required to be answered in favour of the assessee and against Revenue.
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2014 (2) TMI 1004 - DELHI HIGH COURT
Special audit under Section 58A of the Delhi Value Added Tax Act, 2004 - Adequate opportunity in the context of proposal under Section 142(2A) of the Income Tax Act - Held that:- Section 142(2A) before this amendment in 2006 was cast in pari materia terms. Interpreting that provision, the Supreme Court was alive to the fact that the order of special audit was likely to cause prejudice, hardship and even great deal of displacement to the assessee. The Court, therefore, read into Section 142(2A), the requirement that the tax administrator ought to issue prior notice and grant reasonable opportunity. That the Parliament assimilated the law and codified it through a proviso is a matter of detail which ought not to be determinative in the circumstances. In the present case, given the pari materia terms of both provisions, this Court rules that an identical opportunity in the case of special audit in the Income Tax is necessary to be given through notice by the Commissioner on each occasion when special audit is proposed - It is open to the respondents, if so advised, to issue Show Cause Notice and grant reasonable opportunity in line with the Supreme Court’s decision in Rajesh Kumar (2006 (11) TMI 135 - SUPREME Court) and Sahara India (Firm) (2008 (4) TMI 4 - Supreme Court) - Decided in favour of assessee.
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2014 (2) TMI 1003 - ALLAHABAD HIGH COURT
Liability to tax - Exemption from Central Sales Tax - Goods exempted in U.P. Sales Tax Act, 1948 however, taxable under the United Provinces Sales of (Motor Spirit, Diesel Oil and Alcohol) Taxation Act, 1939 - Tribunal following the judgment in Oudh Sugar Mills Ltd. Vs. CST [1986 (10) TMI 313 - ALLAHABAD HIGH COURT] granted exemption - Whether sale of alcohol during the relevant period was exempt under 'sales tax law' of the State of U.P. hence, there would be no liability of payment of central sales tax in accordance with the provisions of Section 8 (2-A) of the Central Sales Tax Act - Whether the judgment of learned Single Judge in Oudh Sugar Mills Vs. CST 1987 U.P. Tax Cases 1034 and other three judgements following the said judgment as noted above lay down the correct law.
Section 8(2-A) makes it clear that if the sale or purchase of any goods is exempt from tax generally under the sales tax law of the appropriate State there shall be no liability of payment of central sales tax - provisions of 1939 Act were amended by U.P. Act No. 12 of 1974 by which amendment under Section 3 of the 1939 Act alcohol become taxable w.e.f. 2.5.1974. Similarly by U.P. Act No. 8 of 1975 payment of tax under the 1948 Act on alcohol was exempted under section 4 of the 1948 Act. By virtue of amendments made in Section 4 by U.P. Act No. 8 of 1975, the tax on alcohol was exempted under section 4 w.e.f. 2.5.1974.
The exemption from the Central Sales Tax Act under the repealed provision was in respect of 'sales or purchases ........ of any goods by a dealer'. The section granted exemption to any goods of a dealer when such goods were 'exempt from tax generally .......'. In order to take advantage of this Section 8(2A), a dealer will have to establish that sale or purchase of the goods in question was exempt from tax generally. If it was a special exemption granted to him because his undertaking was a new industrial undertaking or for any other reason for a limited period, then the exemption will not be of general nature and he will not be entitled to get the benefit of this sub-section. There was an Explanation to the old sub-section (2A) of Section 8, which made it clear that if the exemption was only in specified circumstances or under specified conditions or in relation to which the tax was levied at specified stages or otherwise than with reference to the turnover of goods, then the sale or purchase of goods shall not be deemed to be exempted from tax generally.
United Provinces Sales of (Motor Spirit, Diesel Oil and Alcohol) Taxation Act, 1939 is a 'sales tax law' within the meaning of Section 2(i) of Central Sales Tax Act, 1956. The alcohol being taxable under the 1939 Act, payment of central sales tax on inter-State sale of alcohol was not exempted as per provisions of Section 8(2-A) of the 1956 Act even though there was general exemption under section 4 of the 1948 Act - The judgment of learned Single Judge in Oudh Sugar Mills Vs. Commissioner of Sales Tax (supra) does not lay down the correct law - The Tribunal fell in error in taking the view that assessee was not liable for payment of central sales tax on the inter-State sale of alcohol. The orders of the Tribunal impugned in these revisions are hereby set aside - Decided in favour of Revenue.
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2014 (2) TMI 1002 - CESTAT KOLKATA
Waive of pre-deposit - Security Agency Services / Man Power Recruitment Supply - Classification - Applicant have supplied para-medical staff to M/s. ESIC - Held that:- Applicant have been receiving the payments for supply of the para-medical staff on monthly basis, not on the basis of average work rendered or the performance of the staff supplied. - Applicant had rendered the ‘Services of Man-Power Supply’ to its clients. - prima facie case is against the assessee.
Regarding ‘Conservancy and Watch & Ward Service - Held that:- prima facie, the services rendered by the Applicant, are in the nature of Security Agency Services.
Applicant could not able to make out a prima facie case for total waiver of the predeposit of dues adjudged and the Applicant had not pleaded any financial hardship. - stay granted partly.
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2014 (2) TMI 1001 - DELHI HIGH COURT
Levy of service tax on parking charges - Management of cars/scooter parking facilities at Indira Gandhi International Airport, New Delhi - Imposition of penalty u/s 76, 77 and 78 - - Held that:- Explanation makes it clear beyond any doubt, that Parliament had intended that renting or immovable property was to be taxed, for the first time, from 1st June, 2007. Its intention that parking was to fall within the expression “renting of immovable property”- again with effect from 01.06.2007, is also clear from Section 65 (90a). Yet, the definition of taxable service, while introducing Section 65 (105) (zzzz) specifically excluded parking services. Now, parking services – regardless of wherever it is carried on - stand excluded in entirety. Therefore, it is not open now for the revenue to argue that it falls within the expression “airport service” under Section 65 (105) (zzm). Parliament would have manifested its intention to bring to tax a part of the activity, carried out in airport premises, if it wished, in more express and clearer terms - Following decision of M/s. Flemingo Duty Shops Pvt. Ltd v Union of India and Ors. [2013 (1) TMI 523 - DELHI HIGH COURT].
So far as the revenue’s argument that the issue cannot be gone into, because the assessee did not dispute the basic liability is concerned, this Court is of the opinion that a concession, if made on an erroneous understanding of the law; at any rate without the sanction of law to collect the amounts demanded, the revenue cannot rely upon the technicality of a concession of law. - Decided in favour of assessee.
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2014 (2) TMI 1000 - CESTAT BANGALORE
Cenvat Credit - Nexus between input and output service - Held that:- For rendering services, the appellant has to hire premises, recruit employees, use information technology software, engage management consultant, manage, maintain or repair both movable and immovable properties, use telecommunication services for communication purposes and so on. - The definition of input service under Rule 2(l) of the CENVAT Credit Rules, 2004 is worded in a broad manner so as to bring within its ambit services availed by a provider of taxable service, whether directly or indirectly, and also enumerates some of the services which fall within the purview of the input service.
Appellant has, clearly and in detail, explained the nexus between the input service on which credit was taken and the output service provided. Instead of examining the claim of the appellant and rebuting the same, if required, the adjudicating authority has dealt with the issue in a cavalier and irresponsible way. - matter remanded back for reexamination of the facts - Decided in favor of assessee.
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2014 (2) TMI 999 - CESTAT KOLKATA
Condonation of delay - Delay due to Finance manager leaving - Held that:- delay was caused because of the absence of Sri Sunil Prasad from his duty without informing the applicant. They came to know about impugned order after being communicated by the Range Superintendent. Thereafter, they made all out efforts to locate Mr. Sunil Prasad and consequently, filed the appeal after his resuming duty. I find from the records and correspondence between the applicant and Mr. Sunil Prasad that the delay was caused due to the absence of Mr. Sunil Prasad from duty and his failure to communicate in time about the passing of the said order. The reasons explained seems to be bonafide - Delay condoned.
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2014 (2) TMI 998 - CESTAT NEW DELHI
Stay application - Demand of service tax - Interest u/s 75 - Penalty u/s 76 - Whether the appellant would be liable to pay interest under Section 75 on the service tax and also penalty under Section 76 of the Finance Act, 1994 for failure to pay the service tax by the due date - Held that:- appellant had not paid the service tax by the due date. In view of this, I am of the view that this is not the case for waiver. The appellant are directed to pay the disputed amount of interest for the period of delay and also pay the entire penalty imposed on them under Section 76 - Stay denied.
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2014 (2) TMI 997 - CESTAT CHENNAI
Demand of service tax - Held that:- applicant already paid a sum of Rs.74,65,676/-. We find that the deposit of the said amount is sufficient for the purpose of hearing of appeal - Hence, predeposit of the balance amount of tax and penalty are waived and stayed till disposal of the appeal - Stay granted.
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2014 (2) TMI 996 - ITAT AHMEDABAD
Restriction of addition on account of difference in stock - During the course of survey difference in physical stock as compared to the book stock was found. AO has noted that the assessee could not reconcile the difference - the contention of Assessee cannot be accepted that there was mistake in stock taking - with respect to addition made on account of difference in stock, when the difference in stock is found, addition on account of gross/Net profit of such difference can be made instead of the entire difference being added to the income - the AO was not justified in making the addition of the entire difference found in the stocks as income of the Assessee - the gross profit declared by the Assessee for the year under consideration is 22.96% , the addition is restricted made on the basis of gross profit – Decided partly in favour of Revenue.
Addition made on account of construction of godown – Held that:- The expenditure in construction of godown was done by Assessee in the year under appeal and earlier years - The percentage of expense, incurred during the year works out to around 26% - valuation is a subjective exercise and in which case the estimates made of construction would differ from valuer to valuer - the Assessee has not maintained books of account with respect to the cost of construction – thus, the estimate of addition of Rs. 7,00,000/- would meet the ends of justice – the AO is directed to restrict the addition to 7,00,000 – Decided partly in favour of Assessee.
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2014 (2) TMI 995 - DELHI HIGH COURT
Addition u/s 68 of the Act – Burden to prove – Furnishing of Satisfactory explanation - Whether the Tribunal fall into an error in holding that the assessee had not discharged the initial onus cast upon it under Section 68 and furnishing satisfactory explanation – Held that:- There is no need for any authority for the proposition that the scope of enquiry of lower authority or Court in the face of a remand is confined to the points required of it to return a finding - Having regard to this aspect, once the Tribunal had spelt out what was expected of the assessee, it was not now open for the latter to contend that the requirement was unreasonable - The assessee did not appeal against the remand nor seek dilution of points on which the Tribunal recollected finding after due enquiry - it is now not open for the assessee to state that even though it could afford explanations by way of affidavits of the two individuals and the foreign national, its inability to secure any confirmation or documentary proof in support of its contention that the two foreign remitters did not have any independent transaction carries no consequence - Since the aspect goes to the root of the second requirement under Section 68 - the genuineness of the transaction by the assessee cannot be said to have been shown by it in discharge of the initial burden placed on it by Section 68 of the Income Tax Act – Decided against Assessee.
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2014 (2) TMI 994 - DELHI HIGH COURT
Validity of Notice issued u/s 148 of the Act – Validity of Letter issued by the AO – Held that:- The contentions of the petitioner deserve acceptance - Once the revenue found there was no basis to connect the petitioner with the May Fair Garden property, he ought to have dropped the reassessment proceedings - Nothing survived thereafter - He was acting outside jurisdiction when he issued a letter calling upon the petitioner to avail of the opportunity given to him to cross-examine the complainant – i.e., the person who was the author of the tax evasion petition.
Instead of terminating the proceedings initiated under Section 148 of the Act by dropping them the revenue chose inexplicably to keep those proceedings alive - This is illegal and impermissible in law - This amounts to nothing but harassment of the petitioner - There appears to be some vested interest in keeping the proceedings against the petitioner pursuant to the notice alive – revenue have to act in accordance with law and not under any pressure - The AO, being a responsible officer should not be party or pressurised by someone to personal vendetta – thus, the notice issued under Section 148 of the Act as well as the letter set aside – Decided in favour of Assessee.
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2014 (2) TMI 993 - GUJARAT HIGH COURT
Deduction u/s 80HHC of the Act - Whether the Tribunal was right in law in holding that the components of sales tax and central excise do not form part of the sale proceeds for the purpose of Section 80HHC of the Act despite insertion of Section 145A – Held that:- The decision in CIT v. Lakshmi Machine Works [2007 (4) TMI 202 - SUPREME Court] and Commissioner of Income Tax vs. Shiva Tex Yarn Ltd. [2012 (9) TMI 658 - SUPREME COURT] followed - sales tax and excise duty do not have any element of "turnover" which is the position even in the case of rent, commission, interest etc. - excise duty and sales tax are indirect taxes - They are recovered by the assessee on behalf of the Government - if they are made relatable to exports, the formula under Section 80HHC would become unworkable - The view which is taken in the light of amendments made to Section 80HHC from time to time – the Tribunal has not committed any error in holding that the components of sales tax and central excise do not form part of sale proceeds for the purpose of Section 80HHC of the Act despite insertion of Section 145 A of the Act – Decided against Revenue.
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2014 (2) TMI 992 - ITAT AHMEDABAD
Allowability of deduction u/s 80IB(10) of the Act – Held that:- Nothing has been brought on record by the Revenue to demonstrate that the powers were exercised by the DVO to take the measurement of the flats when the same was denied by Assessee - the DVO has himself admitted in the noting "Property inspected from terrace - The flats from inside will not be available for verification of measurements in a day which could not be arranged today – the noting of DVO that he has inspected the property in question personally and had measured the same from terrace and the area is less than 1500 sq. ft. per unit shows that even by including the outer walls, while measuring from terrace, the area was less than 1500 sq. ft. per unit – Relying upon CIT vs Anriya Project Management Services (P) Ltd [2012 (5) TMI 196 - KARNATAKA HIGH COURT] - the definition of "built up area" inserted by Finance No 2 of 2004 which came into effect from 1.4.2005 is prospective in nature and has no application to the housing projects which were approved by the local authority prior to that date - Thus, the Assessee is eligible for deduction u/s 80IB(10) the order of CIT(A) set aside – Decided in favour of Assessee.
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2014 (2) TMI 991 - ITAT MUMBAI
Determination of Arm’s Length Price – Transfer Pricing Adjustment - Held that:- The decision in Assistant Commissioner of Income-tax Versus DHL Danzas Lemuir (P.) Ltd. [2006 (9) TMI 498 - BOMBAY HIGH COURT] followed - The assessee shared profit in the ratio of 50:50 both on the payments made by it and the receipts of freight from its AEs - The assessee paid certain sum to its AEs abroad for doing the work similar to which it did for which it received freight revenue from its AEs - the assessee has earned/paid revenue from to its AEs in the same proportion – thus, the transactions have been recorded at arm's length price and there was no justification for making such addition – there is no reason to interfere with the order – Decided against Revenue.
Denial of benefit of Percent range as per section 92C(2) of the Act – Held that:- The lower authorities have erred in denying the benefit of the proviso to Sec. 92C(2) of the Act while computing the ALP – thus, the benefit of the proviso to Section 92C(2) of the Act should be given to the assessee – Decided in favour of Assessee.
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