| Highlights / Annotations:
Service Tax: When the entire demand covering the period October, 2002 to December, 2006 is a meagre ₹ 19,576/- the demand for a mere 3 months will be pittance or less making it ridiculous to remand the case for computation thereof - Tri
Customs: Imports in violation of the Exim Policy - Deterrent penalty - Tribunal has not passed a speaking order justifying the reduction of fine and setting aside the penalty. - matter remanded back - HC
VAT and Sales Tax: Levy of purchase tax u/s 4 - agriculture products - The contention that a farmer/agriculturist is indirectly being subjected to tax does not merit acceptance. - HC
Companies Law: Winding up - When the company paid installments to a substantial extent and prayed for some respite the Division Bench, in our view, would be within its right to consider such prayer and examine as to whether the applicant would deserve such treatment and the Court would not be so powerless to entertain such application - HC
Income Tax: TDS u/s 194H - discount allowed by the appellant to the distributors in respect of starter packs and recharge coupons for its prepaid service - since the relationship between the parties is that of an agent and principal, TDS u/s 194H is required to be made - HC
Income Tax: Deduction of expenditure after actual payment u/s 43B - Provision of Section 43B of the Income Tax Act does not apply to the electricity duty collected by the licensee/assessee as per provisions of the Bengal Electricity Duty Act, 1935. - HC
Income Tax: Condonation of delay - There is no allegation far less any proof of the fact that the appellant was prevented by any cause far less sufficient cause from preferring the appeal within the prescribed period of limitation - condonation denied - HC
Income Tax: Disallowance of transmission charges paid to U.P. Power Corporation Limited - payment of transmission charges is not payment for fee for technical services, therefore, the provisions of section 194J of the Act are not attracted. - Tri
Income Tax: Once the specified forms 15J and 15-I have been collected under Rule 29D(4)(ii) by the assessee even if the same is not submitted to the CIT for one reason or another, the assessee is not required to deduct tax at source u/s 194C - Tri
Income Tax: Interest on refund - refund made in part - Whether refund should have been first adjusted with the interest due on date of grant of refund, instead of being adjusted with the principal refund due? - Held yes - Tri
Recent Circulars, Trade / Public Notices:
2015 (5) TMI 810 - BOMBAY HIGH COURT
The Commissioner of Income Tax-5, Versus M/s Essar Teleholdings Ltd.
Income Tax: Disallowance u/s 14A - restoring back the issue to the file of AO for de novo adjudication in light of the provisions of Rule 8D - ITAT deleting the addition made by the AO u/s 14A for the purpose of computing book profit u/s 115JB(f) - Held that:- Tribunal had only reiterated in paragraph 8 of the order under challenge the finding on the expenditure as per rule 8D r/w section 14A of the Income Tax Act 1961. In relation to that, the Tribunal held that Rule 8D is not applicable to the A.Y. Under.....
2015 (5) TMI 809 - ITAT CHENNAI
P.K. Ganeshwar Versus The Asstt. Commissioner of Income-tax Circle I Tirupur
Income Tax: Disallowance from the sale of carbon credit u/s 80lA - sale of carbon credit - Held that:- There is no dispute about the nature of receipts arising from sale of carbon credits as the decision of My Home Power Ltd vs DCIT (2012 (11) TMI 288 - ITAT HYDERABAD) has been upheld [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT] holding therein that the same are not an offshoot of business but arise from environmental concerns. Their lordships have also observed that these carbon credits are not directly l.....
2015 (5) TMI 808 - ITAT CHENNAI
M/s C.N.V. Textiles Pvt. Ltd. Versus The Dy. Commissioner of Income-tax Company Circle Tirupur
Income Tax: Disallowance of deduction under section 80IA - sale of carbon credit, TUF interest subsidy receipt and generation loss compensation receipt - Held that:- Co-ordinate bench of the 'tribunal' in P.K.Ganeshwr vs ACIT [2015 (5) TMI 809 - ITAT CHENNAI] has accepted a similar plea raised in lower appellate proceedings for treating sale of carbon credit receipts as ‘capital’ receipts instead of ‘revenue’ receipts already accounted. The Revenue fails to point out any distinction on facts
2015 (5) TMI 797 - CALCUTTA HIGH COURT
SAARTHAK VANIJYA INDIA LTD. & ANR. Versus THE CHIEF COMMISSIONER OF INCOME TAX, KOLKATA - I, KOLKATA & ORS.
Income Tax: Validity of transfer order - Held that:- From the records produced by the respondent, it appears that a notice dated 13.10.2014 was sent to the petitioner at the address recorded in the official register but came back undelivered with the remarks ‘not known’. It further appears from the postal envelope containing the said notice that a remark is made as ‘addressee moved’.
The presumption under Section 27 of the West Bengal General Clauses Act can be raised for due service provided it is corre.....
2015 (5) TMI 796 - CALCUTTA HIGH COURT
HUTCHISON TELECOM EAST LTD. Versus COMMISSIONER OF INCOME TAX, TDS KOLKATA
Income Tax: TDS 194H - commission or discount - discount allowed by the appellant to the distributors in respect of starter packs and recharge coupons for its prepaid service - whether amounted to payment by the appellant of commission or brokerage within the meaning of section 194H ? - Held that:- The agreement between the assessee, who has been referred to therein as ‘HTEL’ and Poddar Communications, who has been referred to in the agreement as the ‘Service Provider’ provides that the service provider has.....
2015 (5) TMI 795 - CALCUTTA HIGH COURT
CESC LTD. Versus C.I.T. – II, KOLKATA
Income Tax: Applicability of Section 43B - electricity duty collected by the assessee-company as licensee, on behalf of the State Government - Held that:- The electricity duty, not being a sum payable by the assessee as a primary liability by way of tax, duty, cess or fee, Section 43B is not attracted to the licensee/assessee in respect of electricity duty collected by it for being passed on the State Government. On this point we are in respectful disagreement with the decision of Commissioner of Income Tax.....
2015 (5) TMI 794 - CALCUTTA HIGH COURT
COMMISSIONER OF INCOME TAX, KOLKATA-III, KOLKATA Versus MERLIN HOLDING PRIVATE LIMITED
Income Tax: Short term capital gain v/s business income - Whether Tribunal below committed substantial error of law by not analyzing the facts of the instant case to determine whether the income of the assessee was required to be treated as income from business and not short-term capital gain since the main motive of the assessee was to earn profit by trading on shares rather than to earn dividend by investing the same? - Held that:- The benefit of short-term capital gain can be availed for any period of re.....
2015 (5) TMI 793 - CALCUTTA HIGH COURT
Commissioner of Income Tax, Kolkata-XIX Versus M/s Golden Corporation Services
Income Tax: Condonation of delay - Held that:- In the case before us a final opinion on the question is not essential because the appeal, in this case filed in the year 2010, was a still born appeal because it was barred by limitation. The appellant did not even serve a copy of the application under Section 5 of the Limitation Act for condonation of delay. The matter appeared before us as indicated earlier on 9th April, 2015. Till then no steps were taken. The appellant as a matter of fact woke up after Mr......
2015 (5) TMI 792 - DELHI HIGH COURT
COMMISSIONER OF INCOME TAX DELHI CENTRAL-III Versus VISHAN DAS AND OTHERS
Income Tax: Interest added under Section 245D(2C) cancelled by ITAT - Held that:- Question of levying any additional interest over and above what is permissible under Chapter XIX-A would not arise in the given circumstances of the case.
Concededly at the time when the application was filed before the settlement commission, the assessee deposited the admitted tax liability. Soon thereafter, when the application was admitted, the amount required was deposited within the time stipulated under Section 245D(6.....
2015 (5) TMI 791 - DELHI HIGH COURT
THE LIQUIDATOR POLYMERLAND INDIA P. LTD. Versus THE DEPUTY COMMISSIONER OF INCOME TAX
Income Tax: Deemed accrual of interest - Tribunal held that the interest had accrued to the assessee and hence was assessable to tax in the hands of the Appellant - Held that:- The judgment Shoorji Vallabhdas & Co. (1962 (3) TMI 6 - SUPREME Court) has been recently follows in CIT V. Excel Industries Ltd. [2013 (10) TMI 324 - SUPREME COURT] where it was reiterated that income tax is levied on real income and not hypothetical income. Therefore, entries inspired by realistic prospects of their realisation cann.....
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2015 (5) TMI 321 - SUPREME COURT
M/s. Cosmopolitan Hospitals (P) LTD. Versus Commissioner Of Wealth Tax
Wealth tax: Scope and ambit of section 40(3)(vi) of the Finance Act, 1983 - Whether the Hospital property would be subjected to wealth tax under the Wealth Tax Act, 1957 - the contention of the appellant is that the Hospital building should be treated as “office” which is used for the purposes of its business. - Held that:- For the exclusion the 'hospital' must be one held by an industrial unit for the welfare of its employees. Thus the intention of the legislature as can be understood from this in.....
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2015 (5) TMI 807 - CESTAT BANGALORE
Visakhapatnam Stevedores Association Versus Commissioner of Central Excise, Customs And Service Tax, Visakhapatnam-I
Service Tax: Manpower Recruitment and Supply service - principle of mutuality - Invocation of extended period of limitation - Held that:- issue is prima facie covered by the Gujarat High Court [2013 (7) TMI 510 - GUJARAT HIGH COURT] and Jharkhand High Court [2012 (6) TMI 636 - Jharkhand High Court] decisions as also by the Tribunal decision in the case of Federation of Indian Chambers of Commerce and Industry [2014 (5) TMI 183 - CESTAT NEW DELHI]. Apart from that we also prima facie find favour in the appell.....
2015 (5) TMI 806 - CESTAT NEW DELHI
M/s Shree Venkatesh Medical Agencies Versus Commissioner of Central Excise And Service Tax, Raipur
Service Tax: Demand of service tax - Invocation of extended period of limitation - Held that:- Revenue has not filed any appeal against the impugned Order-in-Appeal for dropping the penalty under Section 78 ibid. The period involved in this case is October, 2002 to December, 2006 while the Show Cause Notice was issued on 23.02.2008. It is thus obvious that the entire demand is beyond normal period of one year (except for a period of mere three months i.e. October, 2006 to December, 2006 and that too only if .....
2015 (5) TMI 805 - CESTAT MUMBAI
Reach Network India Pvt Ltd Versus Commissioner of Service Tax, Mumbai-II
Service Tax: Waiver of pre deposit - Online Information and Database Access and/or Retrieval Services - Held that:- Inter-connection charges paid by one ISP to another ISP are not liable to service tax - on 01.05.2006, appellant on their own, to avoid any further litigation, took registration certificate under the category of "Business Support Services" and discharged service tax liability on such amount received from ISP and in 2008 took registration under the category of "Internet Telecommunication Service.....
2015 (5) TMI 776 - CESTAT NEW DELHI
Bharti Airtel Ltd Versus Commissioner of Central Excise, Chandigarh
Service Tax: Denial of refund claim - Unjust enrichment - documents had not been produced to show that the amount charged to the foreign network operator was as per agreement and also to show that no service tax was charged - Held that:- principle of unjust enrichment would not be applicable to export transactions as specifically provided in section 11B of Central Excise Act, 1944. The facts of the case of Vodafone Cellular Ltd. (2014 (3) TMI 117 - CESTAT MUMBAI) are similar to the facts of the present case......
2015 (5) TMI 775 - CESTAT MUMBAI
First Flight Couriers Ltd Versus Commissioner of Service Tax, Mumbai
Service Tax: Penalty u/s 76 & 78 - short payment of service tax - Held that:- that there is no such allegation on the appellant and the escapement of tax as alleged seems to be short paid due to some mis-calculation. We also find strong force in the contention raised by the representative of appellant that DGCEI which investigated the matter, did not come out with any short payment of service tax prior to April 2004. It was his submission that once in a year, the appellant themselves reconcile the statements.....
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2015 (5) TMI 772 - CESTAT BENGLALORE
R.K.S. Motor (P.) Ltd. Versus Commissioner of Central Excise, Customs & Service Tax, Hyderabad-II
Central Excise: Condonation of delay - Delay of 29 days - Improper advice of legal counsel - Held that:- for the lapse of the advocate or because of the fact that counsel did not advise them suitably, the appellant should not suffer. Therefore we set aside the decision and condone the delay in filing the appeal and remand the matter to the learned Commissioner (Appeals) for considering the appeal afresh in accordance with law. Needless to say principles of natural justice will be observed while considering the .....
2015 (5) TMI 771 - CESTAT BANGALORE
Sagar Cements Ltd Versus Commissioner of Central Excise, Customs And Service Tax, Hyderabad
Central Excise: Waiver of pre deposit - Denial of CENVAT Credit - GTA Service - claim of the appellants is that the CENVAT Credit is taken in respect of cement wherein the appellants bore the freight and supplied the goods at the premises of customers on FOR destination basis - Held that:- Decision of the Hon ble Supreme Court [2002 (10) TMI 96 - SUPREME COURT OF INDIA] may not be applicable to the facts of this case since in that case, factory gate was admittedly the place of removal and there was no dispute.....
2015 (5) TMI 770 - CESTAT CHENNAI
M/s. Tansi Foundry Versus Commissioner of Central Excise, Salem
Central Excise: Denial of SSI exemption - Notification No. 1/93-CE dated 28.02.1993 - appellants had not opted the benefit of exemption in respect of the goods under the sub-heading 7325.10 and paid full duty - Held that:- The appellant contended that they were not aware that the goods under heading No. 7325.10 was within the purview of the exemption Notification No. 1/93-CE w.e.f. 01.03.94. We find that there is no dispute that after amendment of the SSI exemption Notification No. 1/93 as amended by Notificati.....
2015 (5) TMI 769 - CESTAT CHENNAI
M/s. CARESS INDUSTRIES PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, SALEM
Central Excise: Waiver of pre deposit - Classification of goods - Held that:- Prima facie, it appears that the contents of the goods do not substantially contain nitrogen and phosphates. To call the goods as fertilizers, these ingredients substantially dominate. Therefore, appellant is directed to deposit ₹ 10,00,000 - Partial stay granted......
2015 (5) TMI 738 - CESTAT CHENNAI
Commissioner of Central Excise, Chennai -II Versus M/s. Rawf Re-Rollers
Central Excise: Clandestine removal of goods - evasion of duty - Held that:- department had demanded excise duty on MS. Rounds, alleging that the respondents have clandestinely removed the goods by relying on the oral statements and without any corroborative evidence either from the respondents premises or from the Customer, Trader's documents etc. Therefore, we find that the Commissioner (Appeals) has discussed issues at length and has given a detailed order while setting aside the order of the adjudicatin.....
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2015 (5) TMI 803 - SUPREME COURT OF INDIA
Commnr. of Customs, Mumbai Versus M/s. A.S. Moloobhoy & Sons & Ors.
Customs: Duty demand - Invocation of extended period of limitation - Held that:- The limitation, at the relevant time, for issuance of show cause notice was six months. It is therefore clear that in terms of Section 28 of the Customs Act, 1962, the show cause notice issued to the respondents before the limitation period. However, the Department sought to invoke the aforesaid proviso on the ground that there was willful misstatement and miss-declaration of the imports in the Bills of Entries which were fi.....
2015 (5) TMI 802 - CALCUTTA HIGH COURT
M/s. Nepa Agency Co. Pvt. Ltd & Anr Versus Union of India & Ors.
Customs: Suspension of license - Lending of license to other person - Smuggling of cigarettes in the name of import of dining sets - Held that:- The power under Article 226 of the Constitution of India is an extraordinary power and should be exercised by the High Courts only in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions w.....
2015 (5) TMI 801 - DELHI HIGH COURT
TNT INDIA PRIVATE LIMITED Versus UNION OF INDIA & ANR.
Customs: Imposition of penalty u/s 112 - Confiscation of goods - Jurisdiction of Commissioner - Held that:- After adjudication had taken place on the show cause notice dated 15.01.2013; which, called upon the petitioner to, inter alia, render explanation vis-a-vis the tentative view of the respondent as to why its registration should not be revoked in terms of the 2010 Regulations. Since, it is a question of lack of jurisdiction, this court under Article 226 of the Constitution can entertain the petition.....
2015 (5) TMI 800 - MADRAS HIGH COURT
Commissioner of Customs (Import) , Custom House Versus M/s. Billiards Point, Hon'ble Customs, Excise and Service Tax Appellate Tribunal
Customs: Imports in violation of the Exim Policy - Deterrent penalty - Tribunal set aside penalty - Non speaking order - Held that:- Goods were contracted and shipped on 01.08.2004, i.e., when the import of second-hand machinery was not permitted. However, the bill of entry was filed on 09.09.2004. The importer taking advantage of the new Foreign Trade Policy, 2004-09, submitted that at the time of filing bill of entry, new policy had come into force permitting importation of second-hand machinery, the i.....
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2015 (5) TMI 804 - ANDHRA PRADESH HIGH COURT
M/s. K.G.F. Cottons (P) Ltd. Versus The Assistant Commissioner (CT) LTU, O/o The Dy. Commissioner (CT) ,
VAT and Sales Tax: Levy of purchase tax u/s 4 - agriculture product processors i.e. (1) rice millers, or (2) dhal millers, or (3) soyabean oil millers, or (4) cotton millers - whether in the nature of levy on farmers - Held that:- Notwithstanding the goods being "taxable goods", there may be circumstances by reason of which the particular sale transaction does not attract tax under the Act. Section 4(4) provides for such a situation and makes the purchase of such goods taxable in the hands of the purchasing VAT .....
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2015 (5) TMI 799 - CALCUTTA HIGH COURT
STARLIGHT REAL ESTATE (ASCOT) MAURITIUS LIMITED & ANR. Versus JAGRATI TRADE SERVICES PRIVATE LIMITED & ORS.
Corporate Laws: Challenge of Award passed in arbitration proceeding by a third party - It is settled law that what cannot be done directly cannot be permitted to be done indirectly - It is submitted that Arbitration is a creation of statute and not a Common Law right and therefore, the remedy must be as per statute only. A suit in relation to arbitration proceedings and for challenge to an Award may, if at all, be maintainable only in cases where there is a doubt as to the execution and existence of the arbitra.....
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2015 (5) TMI 368 - MADRAS HIGH COURT
Union of India Versus Lal Chand
FEMA: Recovery of large amount of cash - contravention of the provision of Section 9(1)(b) and 9(1)(d) of FERA Act, 1973 - Offence under Section 56(1)(i) of FERA Act and Sections 49(3) and (4) of FEMA Act, 1999 - Reliability on co-accused's statement - Held that:- confession of co-accused is admissible only if the case of other co-accused has been tried jointly as per Section 30 of Indian Evidence Act. In such circumstances, no reliance can be placed on Exs.P5 and P7/statements of Haja Mohideen - .....
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2015 (5) TMI 777 - BOMBAY HIGH COURT
Sodexo SVC India Private Limited. Versus The State of Maharashtra And Others
Misc: Taxability of Sodexo Meal Vouchers - whether in the nature of goods - consumability within the municipal limit is relevant or not - levy of entry tax / octroi duty / Local body tax (LBT) - Paper based vouchers - affiliates are bound to honour vouchers - On receipt of the vouchers, the Petitioner reimburses the affiliates after deducting service charges - Maharashtra Municipal Corporations Act, 1949 - Held that:- As far as the use or consumption of goods for the purposes of charging Octroi is co.....
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Jiva Seva is Shiva Seva :
Service to humanity is Service to God
May I be born again and again, and suffer thousands of miseries so that I may worship the only God that exists, the only God I believe in, the sum total of all souls—and above all, my God the wicked, my God the miserable, my God the poor of all races, of all species, is the special object of my worship.
- Swami Vivekananda, CW, 5:137