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Showing 381 to 400 of 14810 Records
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2013 (12) TMI 1386
Determination of annual letting value u/s 23(1)(a) - Whether interest free deposit received is part of annual lettable value u/s 23(1)(a)- Held that:- The assessee has himself declared the actual rent which is much higher than the municipal value of the property - The assessee, otherwise could have insisted the AO to adopt the municipal value which is less than the actual rent claimed by the assessee - This act of the assessee itself shows that the claim is bona fide in nature which prima facie appears that there is no concealment in respect of the actual rent received by the assessee and also the assessee has not inflated/deflated the rental income by reason of any extraneous consideration - Decided against Revenue.
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2013 (12) TMI 1385
Denial of Cenvat credit – Debit notes not in a prescribed format under Rule 9 of Cenvat credit Rules, 2004 – Waiver of Pre-deposit – Held that:- Following Pharmalab Process Equipments Vs. CCE, Ahmedabad [2009 (4) TMI 142 - CESTAT AHMEDABAD] – and MISSION PHARMA LOGISTICES (I) PVT. LTD. Versus COMMISSIONER OF C. EX., RAJKOT [2012 (11) TMI 117 - CESTAT, AHMEDABAD] - CENVAT Credit can be availed on the basis of debit notes which contained all the ingredients as required under the invoices - the applicant has a strong prima facie case in their favour - Pre-deposit waived till the disposal – Stay granted.
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2013 (12) TMI 1384
Liability to Sales tax - supply of printed materials - Whether the Sales Tax Appellate Tribunal is right in proceeding on the footing that since the printed materials supplied by the assessee have no commercial value in the sense that they cannot be marketed in the open market, the impugned transactions were purely ones of work and labour and not liable to tax - Held that:- what was supplied by the dealer was only labels on which certain particulars had been printed to suit the requirements of a particular customer. This Court observed that the labels by themselves could not really be sold in the open market and they had no use since the same were not of any use in the open market. This Court pointed out that on the contractor undertaking to do the work for the particular customer therein, the labels would not necessarily be deemed to sell the materials the fact that in the execution of the contract for work some materials were used and the property / goods so used, passed to the other party would not by itself make the transaction a sale. In other words, the dominant intention was not for sale of labels. Hence, the transaction could not be treated as deemed sale for the purpose of assessing the turnover - Decided against Revenue.
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2013 (12) TMI 1383
Principle of Natural Justice - Opportunity of personal hearing not given - Cancellation of registration certificate - Cancellation done with retrospective effect - Held That:- Issuing authority is competent to cancel certificate, however sub-section (15) of section 39 of the Act, what is contemplated is a personal hearing. Personal hearing is totally different from show-cause notice. Consequently, though the Department has issued a show-cause notice, that will not amount to granting an opportunity of being heard - Following decision of Indo Germa Products Limited Vs. Assistant Commissioner (CT) [2011 (9) TMI 530 - Madras High Court] - Decided in favour of appellant.
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2013 (12) TMI 1382
Waiver of pre-deposit of CENVAT Credit - Valuation – inclusion of value of the diesel which was purchased for testing, the DG sets manufactured and supplied by the appellant - Held that:- On perusing the terms and conditions of the purchase order, we find that the condition of erection, installation and commissioning is not mentioned in the purchase order and the delivery is considered as effected the moment the DG sets are delivered at the purchaser’s site.
The condition of erection, installation and commissioning is not a part of the sales contract or the purchase order placed for the DG sets manufactured by the appellant and if the same is not a part of the sales contract, we are unable to understand how the cost of the diesel used by the appellant while taking the trial run of the DG sets at the customer’s premises, would form a part of the assessable value of the DG sets and is liable to duty. Accordingly, the application for waiver of pre-deposit of balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Following decision of assessee's own case [2013 (4) TMI 128 - CESTAT AHMEDABAD] - Prima facie case in favour of assessee - Stay granted.
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2013 (12) TMI 1381
Stay application - Demand of service tax - Commercial or Industrial Construction services - Held that:- sub-contractor is also liable to discharge the Service Tax liability. We find from the records that for the years 2006-2007 and 2007-2008, the appellant has been filing the Service Tax returns, indicating therein the amount of Service Tax paid by them. At this juncture, we find that the Service Tax liability within the period of one year from the date of issue of show cause notice would be leviable on the appellant. The show cause notice was issued on 08.09.2009. It is the claim of the ld. Counsel that the appellant is facing financial hardships, though not substantiated by any document on record - Partial stay granted.
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2013 (12) TMI 1380
Stay application - Commercial and Industrial Construction services - Interpretation of provisions of Rule 3(3) of the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007 - Held that:- an assessee is eligible to opt for the Service Tax only if he exercises an option prior to payment of Service Tax on the works contract - appellant had followed the said procedure. Be that as it may, we also find strong force in the contentions raised by the ld.Counsel that if the Revenue authorities want to tax the services under Commercial or Industrial Construction services, they are eligible for abatement of 67% of the value which has been charged and collected by them - Stay granted.
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2013 (12) TMI 1379
Demand of service tax - Advance tax paid - Suo moto adjustment of service tax - Held that:- appellant had reflected the payment of advance tax particulars both in the returns for the period October 2008 to March 2009 and April to September 2009. From these returns it is evident that what the appellant has made was advance payment of tax and not any excess payment as concluded by the adjudicating authority. The liability to pay the tax arose only in April 2009, but the payment was made in December 2008. Thus the payment made in December 2008, can only be an advance payment of tax and not an excess payment of tax. Even though this contention was raised before the adjudicating authority in the reply to the show-cause notice, the same has not been rebutted by the adjudicating authority in any manner. He has simply dismissed the appeal saying that it is only an afterthought to cover up their lapses in not intimating the excess payment of service tax to the service tax authorities. There was no need for the appellant to make such a submission when they have paid the tax in advance. The order of the adjudicating authority reflects complete non-application of mind - Decided in favour of assessee.
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2013 (12) TMI 1378
Proportionate distribution of service tax – Input service distributor - Credit availed on exempted units excluded – Held that:- Proportionate distribution of service tax was not required under the Rules as applicable at the material time – Following Ecof Industries (P.) Ltd. Versus Commissioner of Central Excise, Bangalore [2009 (10) TMI 171 - CESTAT, BANGALORE] - the appellants are eligible for relief – Order set aside and the matter remanded back to the adjudicating Commissioner for the limited purpose of re-quantification by demand – Decided in favour of assessee.
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2013 (12) TMI 1377
Waiver of pre deposit - Demand of service tax - Commercial training or coaching services - Held that:- commercial and coaching center excludes the institute or establishments from the levy of service tax which were engaged in providing pre-school coaching and training or the center or any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognised by law for the time being in force. The applicants are not issuing any certificate/diploma/ degree. They are only providing the coaching and training in the area of aircraft maintenance and training is only for the practical experience. Prima facie we are of the view that the applicant does not fall under the exclusion category of the services - Conditional stay granted.
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2013 (12) TMI 1376
Waiver of pre deposit - Demand of service tax - Valuation - Business support services - Collection of adda fees - Held that:- adda fees is collected as a statutory fees and secondly land used for parking stands specifically excluded from the provisions of renting of immovable property. If that be so, we are prima facie opinion that collection of adda fees at the specifically rates prescribed by the Govt., cannot be held to be a service provided to the transporters/operators of buses - adda fees levied by District Magistrate as per authorization of Govt. is a statutory levy and cannot be held to be issue of any specific service provided and is not leviable to service tax under category of ‘business support services’ - appellant should not be directed to deposit any amount of tax on this count in view of the above order of Commissioner (Appeals). Otherwise also we find that the demand stands raised by invoking longer period of limitation which cannot be held to be justified. The matter at the most involves interpretation of legal provision and cannot be held to be on account of any mala fide intent on the part of the appellant - Following decision of Kadamba Transport Corporation Ltd. reported as [2010 (6) TMI 667 - COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX (APPEALS), GOA] - Stay granted.
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2013 (12) TMI 1375
Rejection of rebate claim - Notification No. 12/2005-S.T., dated 19-4-2005 - Input services used in development of software exported out of India - Availment of CENVAT Credit - Held that:- The input services in respect of which rebate has been claimed are internet/telecommunication services, housekeeping services, professional services, outdoor catering services, renting of immovable property services, maintenance & repair services, security agencies services, rent-a-cab operator services, etc. In my view all these services would be necessary input for a software unit and hence, it would be totally incorrect to deny rebate on the ground that the same are not the services required for development of software more so, when during the period prior to the period of dispute and they paid after the period of dispute, the department has been granting rebate in respect of these very services.
Appellant are a 100% EOU i.e. a STP unit and their domestic transactions are rare, there would not be no occasion for them to utilize the Cenvat credit if any availed when it is not the case of the Department that they have also claimed cash refund of accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004. It would not be correct for the department to conclude that they have availed Cenvat credit just on the basis of Col. 5b of the ST-3 Return without checking the records, which are required to be maintained by the appellant for availment of Cenvat credit in respect of the provisions of Rule 9(6) of the Cenvat Credit Rules, 2004. The availment of Cenvat credit in respect of input or input services is a matter of fact which has to be verified from the records maintained by the appellant and no inferences can be drawn in this regard merely from the ST-3 Returns, when the appellant, from the very beginning are pleading that the entry in Col. 5b regarding availment and utilization of the Cenvat credit was made by them due to mistake and that the figures regarding utilization of Cenvat credit mentioned in this col. is actually the figure of rebate claim which has been granted to them.
Matter is remanded back to the original adjudicating authority for deciding the rebate claim filed by the appellants afresh. If from the records maintained by the appellant, it is clear that they have not availed any Cenvat credit the rebate claim would have to be accepted - Decided in favour of assessee.
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2013 (12) TMI 1374
Levy of penalty when service tax has been paid before issuance of show cause notice - Engineering consultancy services - Held that:- appellants did not have qualified staff and they paid the Service Tax after the amounts were paid by them for the services received from time to time and discharged the liability in full which is not in dispute would show that extended period could not have been invoked in this case. Moreover entire duty liability was discharged by July, 2008 which is less than nine months from the visit of the officer which would again show that the payment was made promptly without any delay. Having regard to these facts and having regard to the fact that appellant was eligible for Cenvat credit, we find that this was a case where provisions of Section 73(3) was applicable and no show cause notice should have been issued. Further we also find that this is a case where appellants have been able to show reasonable cause for non-payment of the tax even if it is assumed that there was delay in payment in view of the revenue-neutral situation and lack of availability of qualified staff - amount paid towards Service Tax and interest thereon demanded and appropriated is sustained and penalties imposed on the appellant are set aside - Decided partly in favour of assessee.
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2013 (12) TMI 1373
Demand of service tax - Notification No. 32/2004-S.T., dated 3-12-2004 - GTA service - Held that:- The notification does not intend a specific stationery to prove the stand of the appellant fulfilling the conditions as above. Therefore, if separate sheet is showing proper declaration that shall also form an integral part of the invoice, if there is mention in the separate sheet about the primary document which is invoice. There is nothing negative evidence by Revenue to this effect in the order. Therefore, the appellant should not suffer the consequences of adjudication - Stay granted.
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2013 (12) TMI 1372
Interest earned on non-SLR funds - Held that:- Following CIT v. The Goa Urban Co-operative Bank Ltd [2009 (7) TMI 1150 - BOMBAY HIGH COURT] - Whether the business is derived from or attributable to SLR or non-SLR funds would not make any difference for the purposes of qualifying the interest earned by the cooperative bank under Section 80P (2) (a) (i) as the deposits of surplus idle money available from working capital, including reserves, excess collection of interest tax and other incomes are all attributable to the business of banking - The interest from such deposits cannot be said to be beyond the legitimate business activities of the bank - Decided against Revenue.
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2013 (12) TMI 1371
Whether sale proceeds claimed during assessment proceedings be accepted - Held that:- It is a question of fact which has been decided by the Tribunal - The Tribunal has accepted the claim of the assessee - No substantial question of law arises before High Court - Decided against Revenue.
Interest u/s 234A, 234B and 234C - Held that:- Following CIT Vs. Ranchi Club Ltd [2000 (8) TMI 79 - SUPREME Court] - Even if any provision of law is mandatory and provides for charging of tax or interest - Such charge by the assessing officer should be specific and clear and assessee must be made to know that the assessing officer has applied its mind and has ordered charging of interest - The mandatory nature of charging of interest and the actual charging of interest by application of mind and the mention of the proviso of law under which such interest is charged are two different things - Decided against Revenue.
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2013 (12) TMI 1370
Difference in value of stock as per stock statement submitted to bank and stocks as per books - Held that:- The assessee's income was to be assessed on the basis of the material required to be considered for the assessment and not on the basis of the statements given to third party - The burden of showing undisclosed income was on the revenue - That burden cannot be said to be discharged by referring to the statements given by the assessee to the bank, and making it the foundation for adding the difference in the stock as his income - The CIT had accepted the books of accounts and had found that all the purchases and sales are vouched - The stock registers were maintained by the assessee in ordinary course of business - No defects were pointed out in maintenance of such registers, nor there was any other information or material to doubt their correctness - The statements given by the assessee to the bank for obtaining overdraft facility, in the practice prevalent to overstate the stocks to obtain overdraft facility could not be treated to add the entire difference and that too in respect to only one of the items namely the 'zinc' - Decided against Revenue.
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2013 (12) TMI 1369
Share application money received - Held that:- The disputed share application money was received through banking channels and names, address, PAN Nos. supported by confirmation, copies of bank account, copies of application for return of shares, copies of annual accounts of share applicants, copies of return of income of share applicants and affidavits of the office bearers of the applicant companies were submitted before the revenue authorities and all these details were confronted to the Assessing Officer - When the identity of the share applicants is proved by the assessee and the AO has not brought any adverse material or fact against the share applicants, then no addition can be made in the hands of appellants - The Assessing Officer could not prove that the money received by the assessee from alleged three companies in the form of share application money had come from the own sources of the assessee - Following C.I.T. vs Lovely Export P. Ltd [2008 (1) TMI 575 - SUPREME COURT OF INDIA] - No evidence has been brought on record by the Assessing Officer to prove that the share application money emanated from the coffers of the assessee and the Assessing Officer has not made any inquiries from the concerned authorities nor did he examine the assessment record of the share applicants - Decided against Revenue.
Correlation between cash deposits and cheques issued - Held that:- The disputed cash deposits were made out of cash withdrawals made from the same bank on earlier occasions and as per remand report, the Assessing Officer was satisfied about the source of cash deposited in the bank account of the assessee - When the balance matches with the balance sheet and cash book, no addition u/s 68 of the Act is sustainable - Decided against Revenue.
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2013 (12) TMI 1368
Disallowance of interest free advances - Held that:- CIT (A) has failed to pass a speaking order regarding whether the judgement in case of Reliance Utilities and Power Ltd [2009 (1) TMI 4 - HIGH COURT BOMBAY] is applicable or not - The assessee failed to demonstrate with evidences and details about the nexus between the interest free advances given and the interest free loans taken by the assessee - The issue was restored for adjudication.
Profit on sale of shares - Held that:- Profits cannot be taxed twice, one on account of assessee's own offer in the AY 2009-2010; and secondly on account of taxation by the Assessing Officer - CIT (A) needs to take a consistent stand in this regard and is required to pass a speaking order considering the fact that the same income should not be taxed twice - The issue was restored for adjudication.
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2013 (12) TMI 1367
Unexplained cash deposits - Held that:- On perusal of documents impounded during search which are ways and means account and balance sheet and copy of bank statement of Andhra Bank, there were entries with reference to the deposits and corresponding withdrawals - The genuineness of these transactions have been demonstrated by Assessee by way of documentary evidence - Since the assessment was made based on the ways and means statement, the learned CIT(A) has rightly deleted the addition by giving a categorical finding that it is clear from the ways and means account that Assessee had sufficient funds to deposit the amounts in the Banks - Decided against Revenue.
Discharge of income tax liability before proceedings - Held that:- Assessee had paid the tax before the appeal was heard by the CIT(A), therefore, the ground is not material - Facts on record indicate that assessee discharged the tax liability by the time CIT(A) heard the case - Decided against Revenue.
Unexplained income - Held that:- Copy of ways and means account, and copies of bank statement of account from Andhra Bank, Tirupathi and Bank of Baroda are placed to establish that the entries of the said deposits have been appeared in the said statements - Since Assessee has proved the genuineness of his claim by way of documentary evidence - Decided in favour of assessee.
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