Adjustment of excess amount of service tax paid - Scope of the term subsequent period - Decision in the matter of Narnolia Securities Pvt. Ltd. Vs. Commissioner of Service Tax, Ranchi (2008 -TMI - 4428 - CESTAT KOLKATA). - Rule 6(3) of the Service Ta......

Waiver of predeposit – Held that:- waiver of predeposit and stay of recovery should be granted in respect of the balance amount inasmuch as a major part of the Service Tax amount admittedly stands deposited and sizeable part of the balance amount is ......

Stay - refund of unutilised CENVAT Credit taken on input services availed in relation to export of output services – claim was rejected in toto by the original authority and that of the other respondent was partly allowed - original authority held th......

Port services - service of providing crane service has been permitted to be rendered by 3 rd parties and in that connection, agreements have been entered into between the Port Trust and the said parties and amounts have been collected as licence fee.......

Money laundering - Constitutional validity - expressions - "person" ; "proceeds of crime" ; "property" and "transfer" - attachment - property owned by or in possession of a person, other than a person charged of having committed a scheduled offence -......

Deemed Divided - Assessment order u/s. 144 r.w.s. 147 - Notice u/s 148 - held that:- in reopening of a completed assessment there is nothing arbitrary about any of these provisions and that rigorous checks and controls have been provided on the exerc......

Reassessment u/s 147 - jurisdictional pre-conditions - full and true disclosure - held that:- The assessment orders for the assessment years 1990-91 and 1991-92 clearly indicate that the Assessing Officer was aware of the nature and character of inco......

Bad debts or business loss - advances to sister concern - Except the sum of Rs.23.70 lakh which the assessee wrote off in the instant year, the remaining amount was collected. - held that:- Obviously this amount cannot be considered as bad debt deduc......

Education trust - corpus fund - amount charged from students against various funds directed credited to balance sheet - AO denied the exemption and held as current income - held that:- AO has failed to appreciate that the appellant trust has not made......

Application for advance rulings before AAR after filing of return u/s 139(1) - held that:- the date of the filing of the application before the Authority should be the crucial date for determining the question of the applicability of clause (i) of th......

Disallowance of bad debts - It was submitted by the Ld. A.R. that now, this issue is squarely covered in favour of the assessee by the judgement of Hon'ble Apex Court rendered in the case of TRF Ltd. as reported in 323 ITR 397. Ld. D.R. supported the......

Disallowance u/s 40A(3) - assessee in the relevant year derived income from wholesale trading of cement, hiring of marriage hall, purchase and sale of plots and commission from J.K. Laxmi Cement through his proprietorship concern M/s Vinayak Traders ......

Disallowance u/s 40(a)(ia) - TDS u/s 194C - C & F agents services - reimbursement of expenses - services procured from others to fulfil his own contract - It was submitted that many of the payments made by C and F agents are even not liable to TDS at......

Disallowances/additions on account of interest - AO observed debit interest entry against the business income and Royalty income - unsecured loan and interest paid thereon – Held that:- as per the clauses of the Addendum agreement with the company a......

Reopening - the assessee filed return of income declaring total loss of Rs.75,239/- and the assessment under section 143(3) was completed on 31.03.2003 determining the total income at Rs.39,49,962/- which was subject matter of appeal on the issues of......

Exemption on Re import - notification no. 94/96-Cus dated 16.12.1996 - held that:- at the time of importation as presented were fully built buses containing fitments such as Air Conditioner, T.V., video, Coffee maker, music system and refrigerator. T......

Confiscation - imposing penalties - importer had not included in the Bill of Entry certain other goods viz, Metal Straps, Button Cells, Bazels with Straps and complete wristwatches which were found in 124 cartons - 11041 pieces of wristwatches were n......

Application for impleading - application was dismissed without issuing any notice – Held that:- CLB was not justified in disposing of the application without notifying the proposed respondent. Having regard to the fact that application is maintainabl......

Demand of extended period of limitation - confiscation and penalty - respondent filed a declaration for claiming exemption under Notification No.64/95 dated 16/03/95 on the furniture items cleared at Nil rate of duty claiming these furniture to be st......

Refund - limitation of time - annual capacity of production was finally determined by the Commissioner vide order passed in February 2001, which was accepted by the appellant and the duty assessment was also finalized in accordance with the said orde......

Demand if duty, interest and penalty - allegation of the department is that the appellant had recovered this amount from their customers and, therefore, as per the provisions of Section 11D of the Central Excise Act, the amounts so recovered are liab......

Duty evasion - Appellant has submitted that the Tribunal while holding that the requirements of Section 11AC of the Central Excise Act, 1944 had been met, merely observed that the allegation of the Department that the assessee had contravened various......

Refund – refund claim rejected on the ground that appellants were unable to establish that they had not passed over the burden of duty to the customers - Consequent to the finalisation of the provisional assessment, the appellants had filed refund cl......

Cenvat Credit - payment of excise duty on non dutiable goods by the supplier of inputs - wires had been received by the respondent during the period from August, 2003 to 08.07.04, i.e., during the period for which the 1st and 2nd provisos had been ad......

CENVAT Credit availed on input services - appellants submitted that the original documents could not be produced since the factory had been attached by GIDC and therefore the impugned order has been passed holding that the appellant could not produce......

The appellant is engaged in providing Advertising services to their customers and availed CENVAT Credit of Service Tax paid on Hotel services, Catering service, Decorator service and Pathological laboratory service. Proceedings were initiated on the ......

Penalty u/s 76 and 78 - - Commercial & Industrial Construction service - late payment of service tax - penalty u/s 76 and 78 - held that:- penalties under Section 76 and 78 of Finance Act, 1994 are mutually exclusive even earlier to the amendment of ......

Waiver of pre-deposit - refund - wrongly taking credit suo motto by the applicant – Held that:- applicant was eligible for refund of Rs.25/- lakh was settled way back in 2006 and that the Tribunal vide order dated 3.12.2009 held that the department w......

Whether appellant entitled to CENVAT credit of the service tax paid on "Clearing and Forwarding Agent's Service" (CFA services) availed by them for clearing their final product from factory to port for export – Held that:- CENVAT credit on CFA servic......

Appellant floated a Collective Investment Scheme (C.I.S.) and collected money from the general public. - The SEBI filed a complaint against the Appellants for violation of sections 11B, 12(1B) of the Act and Regulations 5(1), 68(1), 68(2), 73 & 74 ......

Avoidance of Dividend Distribution tax - commission paid to director - allegation of avoidance of DDT - Disallowance u/s 36(1)(ii) - whether commission is paid in lieu of dividend - held that:- The AO’s conclusion that the corpus for paying the divid......

Disallowance on account of proportionate interest on advances – Held that:- The assessee utilized land belonging to company as a security against loan raised from the bank proved by a copy of certificate issued by the State Bank of India certifying t......

Mercantile method of accounting - Revenue recognition in construction service - AS-7 issued by ICAI and sectin 145 - (i) accrual of income in the case of retention money but TDS deducted including the retention money, year of accrual is the issue and......

Deduction u/s 10A - FD interest - held that:- The Hon’ble jurisdictional High Court in the case of Green Agro has considered an identical issue. The judgement of the Hon’ble High Court has not been brought to the notice of the Income Tax authorities.......

Deduction u/s 80IA - notified Industrial Park Scheme, 2002 - business of Hotel, builders and real estate developers - Assessee submitted that there is no reason why the income from the development of industrial park declared by the Assessee in AY 04-......

Simultaneous deduction u/s 80HHC and 80IB - on the ground that 100% deduction had not been claimed on the profits when such allowance is not permissible under both the provisions in accordance with section 80-IA(9) of the Act read with section 80-IB(......

Entitlement to deductions u/s 80HHA and u/s 80-I – Held that:- Only total value of the plant and machinery of industrial undertaking, which manufactures or produces article should alone be considered – considering the break up details of the each pla......

Validity of the reopening - Condonation of delay in filing of cross objection - Held that:- it appears that the assessee took the provisions of condonation of delay in a casual manner and granted. It is well settled that the Court helps vigilant and ......

Disallowance as per provisions of section 40A(3) of the Act - cash payment exceeded the limit prescribed - The assessee submitted that the provisions of section 40A(3) are not applicable as payment made in cash was towards electricity bill, telephone......

Set off of loss of the undertaking eligible for deduction u/s 10A against profit of the undertaking eligible for deduction u/s 80HHE – AO stated that while two units were eligible for deduction u/s 10A, the assessee could not claim deduction u/s 10A ......

Whether Designated Authority has no power to issue corrigendum as it became functus officio in law immediately after the issuance of the final finding dated 17-2-2009 and only jurisdiction which the Designated Authority had thereafter was in terms of......

Waiver of pre-deposit - Counsel submitted that the Appellant is nearly 69 years of age and has no subsisting business since the transaction in question related to the year 2003 – Held that:- opportunity should be granted to the Appellant to move the ......

Shareholders - control over the company - benami shareholders - transfer of shares of deceased shareholder - Maintainability of this application - held that:- when a proceeding is continuing for a substantially long time, to the knowledge of a Compan......

Constitutional validity - Restriction on Cenvat / Modvat Credit on inputs when imported - petroleum products - restriction imposed retrospectively - but the same restriction was deleted prospectively - Constitutional validity of Section 87 of the Fin......

Inclusion of extra amount in the name of Majuri (labour charges) and the Octroi from their customers in the value under central excise - held that:- matter remanded back for verification and fresh decision.......

Classification - wood partition with GRP Skin and are manufactured by laminating wood battens with veneer sheets and glass cloth with the help of resin at room temperature. According to the appellant these goods are “articles of wood not elsewhere sp......

Cenvat credit - assessee had a practice of identifying stores which were no more useful or which were unfit for consumption in its Taloja plant. According to the Revenue, Cenvat credit covered by the list of cancelled bins for the years 2003-2004, 20......

Transfer pricing - arm's length price (ALP) - transactions with Associated Enterprises (AEs) - selection of comparable - held that:- The Tribunal in the case of Genisys Integrating Systems (India) (P.) Ltd. had given specific direction to be followed......

Income from surrender of possessory rights of premises - tenancy (sub tenancy) right - held that:- the assessee is in continuous possession of the property, was continuously conducting the business from the premises, in fact had right to construct bu......

Transfer pricing - Arm's Length price (ALP) - associated enterprises - Software Development Activity - selling agent (or markteing office) versus distributor - held that:- there was no direct evidence in the hands of the TPO to say that the assessee......

Addition to the net wealth on account of Urban Land - agriculture land under wealth tax act 1957 - held that:- There is no dispute about the fact that the impugned lands were within the Municipal limits of Shamli. U/s 2(ea) of the Act, Urban land is ......

Information Technology Software Services – Export of service – refund – Held that:- service tax, on the output service provided by the applicant was effective from 16.05.2008 and that the rules specifically permitted registration within 30 days from ......

Charges collected as 'Co-loaders'. - Courier agency - The Commissioner has held that the said activities fall under the category of 'Business Auxiliary Service' (BAS) and confirmed demand of service tax – Held that:- activities of the applicant as 'C......

Waiver of pre-deposit - stay of recovery in respect of service tax - penalty - demand of service tax is under the head “Construction of Residential Complex Services' – Held that:- appellant constructed residential complexes for their clients. who, in......

Waiver of pre-deposit and stay for recovery - Appellants contended paying service tax under the head ‘Works Contracts’ as per the agreement - Held that:- Nothing contained in the said agreement or in the bill that the appellant was executing 'Works ......

Whether appellant was already convicted under section 138 of the Negotiable Instruments Act, 1881 and hence he could not be again tried or punished on the same facts under section 420 or any other provision of IPC or any other statute – Held that:- s......

Interpretation of Section 11(1)(a) - Application of income - treatment of payment of taxes under the Voluntary Disclosure of Income Scheme, 1997 – revenue contested taxes paid are not to be treated as application of income of the trust - Held that:- ......

TDS on the activity of super stockist of Chemists & Druggists - Principal to Principal relationship or Principal to agent relationship - held that:- the assessee company has not paid even a single penny to its super stockiest. - Rather, it is just th......

Reassessment - Notice u/s 148 - Addition on account difference in revenue booked in P & L A/c and TDS Certificates - held that:- not only the return of income stood assessed but also the proceedings u/s.154 have been concluded after the assessee has......

Challenge to notice u/s 143(2) on CA of the assessee - held that:- the CA representing the assessee received the notice and thereafter the assessee ratified the notice by filing various submissions. Thus, these estoppels from challenging such service......

Profit from sale of DEPB - Deduction u/s 80HHC - held that:- the matter is no longer res integra as the same has been finally settled by Hon'ble the Supreme Court in a recent judgment rendered in the case of Topman Exports (2012 -TMI - 210467 - SUPRE......

Stay - Admission of appeal before ITAT where no payment was made u/s 249(4) - held that:- in view of the case of Pawan Kumar Laddha (2010 -TMI - 75438 - SUPREME COURT) the appeals of the assessee are maintainable because the provisions of section 249......

Block assessment - Participation in assessment proceedings - validity of assessment in view of section 292BB - Notice u/s 143(2) was not serviced - held that:- We find that a categorical finding has been recorded by the CIT (A) and the Tribunal that ......

Deduction u/s 80HHC - exclusion of unrealized export receipts - definitions of 'export turnover' and 'total turnover' provided in explanation (b) and (ba) to 80 HHC of the Income Tax Act 1961 - held that:- Tribunal did not commit any error in direct......

Deduction u/s 80IB - inclusion / exclusion of balcony - built up area - held that:- admittedly if the balcony area is excluded, none of the residential units is more than 1,500 sq. ft. Therefore, the assessee is entitled to 100% benefit of Section 80......

Default under section 194C on account of payment under labour charges – the assessee contention that he has not engaged any labour contractor and all the payments made towards labourers who are employed by the assessee directly and it is accounted fo......

Transfer Pricing adjustments - Arms length price (ALP) - u/s 92CA - software development and IT enabled services - selection of comparable - products are generally sold on license basis wherein the right to use the software is transferred without giv......

Cost paid for grant of further opportunity to accused - appellant contested that no provision in the Cr.P.C under which this cost can be imposed by Court and be given to the accused persons and when accused have been substantially responsible for the......

Writ petition - to pay the reward @ 20% on the entire duty including penalty and fine as earlier sanctioned – Held that:- The Reward Committee in the last two minutes of meeting held has opined that the information given by the petitioner was of gene......

Liquidation of a company - Claim under Section 536(2)- transfer of flat after the order of winding up – Held that:- Transaction undertaken by company in liquidation can be validated under Section 536(2) as compulsion of circumstances, in order to sav......

Exemption under SSI notification No.8/99/CE - sales turnover for the year 1999-2000, the appellant explained that their actual sales during that financial year were only Rs.31,95,792/- well within the exemption limit of Rs.50 lakhs and that the rest ......

Refund claim of deemed credit - refund claim has been rejected firstly on the ground that the appellant has failed to produce the evidences and secondly on the ground that they have not complied with the Notification No. 11/2002 – Held that:- appella......

Stay - Cash Discount/Prompt Payment Discount - Quantity Discount - allegation of the department that the Cash Discount/Prompt Cash Discount and Quantity Discount; which were claimed by the appellant, have not been passed on by them to their buyers – ......

Cenvat credit - AED (T&TA) and AED (T&TA) - department was of the view that since the inputs received by the appellant had suffered AED (T&TA) and AED (T&TA) was part of the price of the inputs and though the credit of AED (T&TA) had been availed by ......

Fees for technical services - meaning of "make available" - Section 9(l)(vii) of the Income Tax read with Article 12(5) of the DTA agreement between India and Netherlands - services to supply technical data including drawings, plans, maps etc., (geo......

Demand of service tax, interest and penalty - Tamil Nadu Government undertaking have constructed quarters for the Tamil Nadu police officials - appellants states that as per the definition of the expression “residential complex” under Section 65(91a)......

Whether Tribunal was justified in construing the Schedule Entry C-74 to mean footwear predominantly made of plastic and not as footwear exclusively/entirely made of plastic – MVAT Act, 2002 - Held that:- Counsel for the Appellant has also produced sa......

Waiver of pre-deposit - applicant is a ‘Steamer Agent' and they are collecting amounts on behalf of the steamer for meeting the terminal expenses at different foreign ports relating to the transportation of cargo. The Commissioner has held that the a......

Belated payment of service tax – penal action on the ground of failure to pay tax within due dates specified under Section 68 of the Finance Act – Held that:- penalty for failure to pay tax in time does not arise when the service tax has been paid to......

Out Bound Tours - department has held that the entire amount collected from the tourists including airfare to-and-fro and towards expenses incurred in connection with arrangements like hotel stay and sight seeing was to be included under the category......

Suo motu adjustment of excess service tax paid – Rule 6(4A) of the Service Tax Rules, 1994 - Held that:- Noting that the rule provides for suo motu adjustment and also noting that the excess payment could be adjusted only on 28.06.2007 by the issue ......

Allegation of offence by the employee - CBEC - employee has crossed the age of superannuation even if he had continued in service. - writ jurisdiction - held that:- We could have answered the question of subsistence allowance also. But the order of d......

Deduction u/s 80IB - erection of telecom shelter erected at the site of mobile telephone service providers - ‘article’ or ‘thing’ or just an immovable property - meaning of attached to the earth - manufacture or production of an article or thing - He......

Deletion of penalty imposed under section 271(1)(c) – Held that:- Found by the Tribunal that all the figures of the earlier years losses were available with the Department and as such it cannot be said that there was any deliberate attempt on the par......

Claim of exemption denied in view of Section 10-A subsection (9) and (9A) - as the assessee was earlier a proprietorship concern, but converted into a partnership firm during the previous year – Held that:- Sub-sections (9) and (9-A) were no longer i......

Addition made on account of alleged unexplained income – ITAT deleted the addition - Held that:- Once the assessee has established that he has taken money by way of accounts payee cheques from the lenders who are all income tax assessees whose PAN ha......

The expression 'liable to tax' - Non residents - DTAA between India and UAE. - Relief under Explanation 1(b) of Sec. 9(1)(i) of the Income Tax Act, 1961 - Export of electronic goods and plastic mould to Dubai and Nigeria. - Deduction u/s 80HHC - h......

Family arrangement by a deed – settlement of dispute by Arbitrator lead to resign and transfer of shares of assessee for a consideration – AO held there was a transfer, there was a capital gain and therefore the assessee is liable to pay the tax – He......

Stay application - Charitable purpose - Scope u/s 2(15) - maintenance of stay application - held that:- the outstanding demand for assessment year 2009-10 is the direct outcome of the order passed u/s.12AA(3) of the Act cancelling the registration gr......

Extension of approval granted u/s 80G denied - The assessee society was registered u/s 12A – Held that:- For granting approval under section 80G(5)(vi) the society has to satisfy that, it is established in India for a charitable purpose and the condi......

Treatment of sales tax refund as income under section 41(1) - held that:- as held by the CIT(A), the Assessing Officer has not specifically brought into the fact in the assessment order as to the debit of a specified amount in a specific year. In a ......

Disallowance of legal claim of deduction u/s 80-P(2)(a)(iii) wherein the appellant having inadvertently claimed deduction only u/s 80-P(2)(d) – Held that:- As per bye-laws of the appellant-sugar mill it is engaged in the manufacturing of sugar produc......

Transactions under a software license agreement - assessee a German company taxed as a non-resident in India owning 26% of the shareholding in two Insurance companies in India – Revenue treated transaction towards Royalty receipt within the meaning o......

Benefit of Article 8 of the Indo-USA DTAA to the line-haul activity – revenue contested that CIT(A) erred in not adjudicating on nature of Cargo business carried on by assessee in India and has failed to inquire into real nature of business activity ......

Full value of consideration in view of property assessed by Stamp Valuation Authority for charging stamp duty being deemed sale consideration of the property for computing LTCG on the same – Held that:- DVO has not discussed anything while determinin......

Disallowance the claim of late payment of PF, ESIC and ESI – that the assessee has paid the amounts on account of employers/ employee contribution and employees contribution in the next month of deduction - Held that:- If the amounts are deposited be......

DTAA with USA - withholding tax (TDS) - Affiliate Agreement - sharing of fee - Distance learning courses - information through website situated outside India - 'permanent establishment' or 'business connection' - held that:- nature of payment made to......

Anti-dumping duty - Anti-dumping duty on the imports of Saccharin – sub-section-1 read with sub-section-5 of section-9A(5) of the Customs Tariff Act, 1975 - Held that:- DA has categorically recorded that “Vishnu Chemicals provided information and the......

Applications waiver of pre-deposit - appellant is carrying on the business of duty-free shop - theft/burglary took place at the above duty-free shop - appellant estimated loss of Rs.60 lakhs due to the theft and furnished a list of stolen goods - sh......

Scheme of Arrangement and Demerger - between Zuari Industries Limited (Transferor) and Zuari Holdings Limited (Transferee) and their respective shareholders and creditors. The sanction is sought from the appointed date that is 1st July 2011. - held t......

Amendment in AOA - Invocation of jurisdiction under section 186 of the Act - to change the articles of association as void and ultra virus – Held that:- prayer for calling a fresh meeting by poll of vote by ballot under the supervision of this Bench......

Levy of penalty under Rule 209 r.w.r. 26 of the Central Excise Rules,2001 directing the proprietor and partner of default companies to pay penalty – Held that:- Proprietorship firm or proprietor thereof cannot be treated as two different legal entiti......

Demand - Revenue neutral exercise - Whether the pre-deposit is to be waived on the basis of revenue neutrality assessed by Member (Judicial) or pre-deposit should be called for considering that express provisions of notification as in force after 01-......

Claim of benefit under Notification no. 63/95-CE dated 16.06.1995 - Held that:- Notification no. 63/95-CE grants duty exemption on goods manufactured by specified public undertakings and are for supply to the defence for official purposes - company t......

Cenvat credit on capital goods which are used in the captive power plant - part of electricity generated is sold outside the factory. - held that:- in view of the provisions of Rule 6(4) of the CENVAT Credit Rules, we find prima facie the applicants ......