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Showing 461 to 480 of 16027 Records

• 2014 (12) TMI 976
  

  Benefit of section 10(23C)(via) – Applicability of 14th Proviso to Section10 (23-C)(via) to AYs 2005-2006 and 2006-2007 - Assessee contended that revenue could not take advantage of his own inaction, in not passing any orders on application that was pending before him – Held that:- Revenue was of the view that the assessee had not preferred the application in respect of the AYs during the financial year immediately preceding the AY for which the benefit was sought - the finding of the revenue cannot be legally sustained insofar as it stems from an erroneous interpretation of the applicability of the proviso - the Proviso is intended to ensure that any application preferred after 01.06.2006, for the purposes of grant of exemption or continuation thereof, has to be made during the financial year immediately preceding the AY from which the exemption is sought.

  The Proviso could not have been cited as a reason for holding the application preferred by the petitioner for the assessment years 2005-2006 and 2006-2007 to be belated - the findings relating to the AY 2007-2008 are also legally unsustainable since, even if the revenue was of the opinion that the benefit of Section 10 (23-C) (via) could not be continued for the AY, nothing prevented him from treating the application as a fresh application for the grant of the benefit u/s 10(23-C)(via) for the AY 2007-2008 - the law that governs the assessment of an assessee in any AY is the law prevailing as on 1st of April of the relevant AY - the amendment would govern only the exemption that was to be granted with effect from the AY 2007-2008 onwards – thus, the order of revenue is set aside and the revenue is directed to consider the application and grant the benefit u/s 10 (23-C) (via) for the period from 2002-2003 to 2007-2008 – Decided in favour of assessee.

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• 2014 (12) TMI 975
  

  Grant of deduction u/s 80IC – Whether assessee had failed to make a claim for the same in its return of income nor filed revised return of income – Held that:- The Tribunal was rightly of the view that the Revenue has not disputed the finding of the CIT(A) that the assessee was eligible for deduction u/s 80IC of the Act - No material was brought to show that the assessee was not eligible for deduction u/s 80IC - the assessee has filed a petition u/s 154 of the Act at the earliest point of time seeking revision of intimation u/s 143(1) of the Act and the matter was pursued by the assessee diligently even before the CIT(A) - when an appeal is a continuation of the original assessment proceedings, the Tribunal was justified in relying upon RAMLAL, MOTILAL AND CHHOTELAL Versus REWA COALFIELDS LTD.[1961 (5) TMI 54 - SUPREME COURT] - wherein it is held that the State authorities should not raise technical pleas if the citizens have a lawful right - the authorities under the Act are required to ensure that only legitimate taxes due are assessed and collected – Tribunal rightly upheld the findings of the CIT(A) that the assessee is eligible for deduction u/s 80IC – thus, the order of the Tribunal is upheld – Decided against revenue.

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• 2014 (12) TMI 974
  

  Re-opening of the assessment u/s 147/148 – Held that:- In Commissioner of Income Tax Versus Kelvinator Of India Limited [2002 (4) TMI 37 - DELHI High Court] it has been held that on mere change of opinion of AO cannot be a ground for re-assessment and that amendment of sec. 147 w.e.f. 1.4.89 has not altered the position – assessee has been able to prove that assessee disclosed all primary fact before AO at the time of making original assessment order dated 26.11.2008 - the re-opening of the assessment for the year 2006-07 is thus, clearly bad in law and is to be set aside – Decided in favour of assessee.

  Assessment Year 2007-08 – Held that:- In Arun Kumar Goyal Vs CIT [2012 (12) TMI 870 - PUNJAB AND HARYANA HIGH COURT] it was held that it is explicit from the post amendment decisions cited above that once there are reasons for the AO to believe, whether such reasons originate out of the record already scrutinized or otherwise, he shall be within his competence to initiate the re-assessment proceedings - Since in the assessment year under appeal, the AO has processed the return u/s 143(1) and has not formed any opinion on the material available on record - therefore, it may not be a case of quashing of re-assessment proceedings in the year under consideration i.e. assessment year 2007-08 – Decided against assessee.

  Deduction on various subsidies u/s 80IB – Held that:- The assessee obtained subsidies in respect of unit No. I and II Samba which falls in territory of State of J&K and the dispute of disallowance of deduction u/s 80IB pertains to Samba unit only which is in the State of J&K - the same scheme of grant of subsidy have been considered by Hon'ble J&K High Court in the case of Shree Balaji alloys & Ors Vs CIT [2011 (1) TMI 394 - Jammu and Kashmir High Court] in which the assessee unit was also found to be situated in State of J&K and in the case of the assessee also, the units are situated at Samba (J&K), therefore, when the schemes of grant of subsidy have been considered by Hon'ble J&K High Court, the same view shall have to be adopted in the case of the present assessee for grant of deduction u/s 80IB on the identical facts in which the subsidies were held to be capital in nature – the authorities below are not justified in denying deduction u/s 80IB - assessee is also entitled for relief on alternate contention and would be entitled to set off of the expenses under the grant of subsidies – the order is set aside and the AO is directed to grant deduction to the assessee u/s 80IB – Decided in favour of assessee.

  Reduction on rate of deduction from 12% to 11% u/s 80IB - Inter unit investments - interest allocation on deemed basis – Held that:- The AO has specifically noted that interest expenditure on the investments made by the Ludhiana unit in the other units located at Samba had not been allocated to respective units - The AO, therefore, correctly referred to provisions of Section 80IA(8) (10) of the Act because the assessee company was transferring funds borrowed on interest from the non eligible unit at Ludhiana to the eligible units and the corresponding interest was not being allocated which had led to the inflation in the profits of eligible units - The finding of fact recorded by AO have not been assailed through any material on record - CIT(A), perused the balance sheet of Ludhiana unit which shows that funds have been raised from financial institution on interest apart from internal accrual/capital contributions - CIT(A), therefore, observed that this would mean that in order to transfer the appropriate interest debits to the eligible units, only way out was to find out the ratio of borrowed/non-borrowed funds and in this regard, data was furnished by the assessee - Since, the data produced by the assessee clearly support the finding of CIT(A) for allocation of the interest to the three units, therefore, there should not have any grievance left for the assessee to agitate the finding of fact recorded by the CIT(A) - CIT(A) correctly allocated the interest to the three units and correctly reduced the same addition in proportion/ratio of borrowed/non-borrowed funds – Decided against assessee.

  Disallowance u/s 14A – Held that:- The assessee's counsel has specifically pleaded that no investments have been made in the year under consideration and only part investments have been made in subsidiary companies - the AO has specifically observed that assessee company had made investments in shares and mutual funds on which exempt income accrued and no disallowance in respect of expenditure incurred to earn the exempt income have been made - The A.O. considering explanation of the assessee concluded that assessee had not been able to establish the claim that no expenditure had been incurred and therefore disallowance had to be worked out by applying Rule 8D of the Act - assessee earned dividend income in the year under consideration - disallowance u/s 14A has been worked out on the basis of Rule 8D which is as observed earlier applicable in case of the assessee – Decided against assessee.

  Addition of 2% on advances given by assessee to BPL – Held that:- The assessee has not diverted borrowed funds for any business purposes - The AO has not brought any evidence on record to prove any nexus between borrowed funds and the funds advanced to subsidiary companies - The assessee has not given funds to the subsidiary company without any interest rather it is a fact that assessee has charged interest @ 10% on the funds given to the subsidiary companies - since the assessee has business relation with the subsidiary company and funds have been given to the subsidiary company subject to interest, therefore, AO could not examine the reasonable interest charged by the assessee - The AO cannot step into the shoe of the businessman as to how much the businessman has to earn profit out of the same transaction – CIT(A) correctly deleted the addition – Decided against revenue.

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• 2014 (12) TMI 973
  

  Immunity from taxation under Article 289(1) of the Constitution of India – Assessee being A.P. Pollution Control Board separate legal/juristic entity or not from the State Govt. – Held that:- The assessee board was created with effect from 24/01/1976 as Andhra Pradesh State Board for the Prevention and Control of Water Pollution and subsequently rechristened as Andhra Pradesh Pollution Control Board after enactment of the AIR (prevention and control of pollution) Act, 1981, but, the assessee board never claimed immunity from payment of income-tax under article 289 of the Constitution of India - only after assessee lost the claim of exemption u/s 10(20) of the Act, by virtue of amendment to the definition of the expression local authority w.e.f. 01/04/2003 and it failed in its attempt, either in getting approval u/s 10(23C)(vi) or being registered u/s 12AA of the Act for the AY, as a last resort it staked its claim of immunity from payment of income-tax under article 289 of the Constitution of India, that too at the stage of proceeding before the FAA - during the assessment proceeding also for the AY, assessee never claimed that its income is exempt from taxation by virtue of article 289(1) of the Constitution of India - the income generated by the board which goes to constitute its own fund does not go to the consolidated fund of the state and is distinct and separate from the fund of the state govt. Section 62 of The Water (prevention and control of pollution) Act, 1974 empowers the state govt. to supersede the state pollution control board, if it is of the opinion that the state board has persistently made defaults in the performance of the functions imposed on it by or under the Act or circumstances exist which render it necessary in the public interest to do so - only upon supersession of the state board the state govt. takes over all the powers and functions and duties performed by the state board and also property owned or controlled by the board shall vest in the state govt. - therefore, it becomes clear that until supersession of the state board, not only it retains its distinct and independent identity but also the funds and property of the board also remains in its possession.

  The income/receipts of the board remain as its own funds and not transferred to the coffers of the state govt. - when the income/receipts of the board remain with the board itself and not transferred to the state govt. such income/receipt has to be considered as income/receipt of the board and not of the state govt. - Therefore, such income/receipt cannot be immune from taxation under article 289(1) of the Constitution of India - under no circumstances it can be held that the income/receipts of the assessee is that of the state govt. - not only assessee is a distinct and separate legal/juristic entity but funds of the assessee also belong to assessee - assessee by its own actions considers itself to be a separate legal entity distinct from the state govt. - That being the case, the income/receipts of the board has to be treated as its own income and not of the state govt. - CIT(A) rightly was of the view that assessee cannot get immunity from taxation under article 289 of the Constitution of India.

  Rejection of exemption claimed u/s 10(23C)(iv) – Held that:- Considering the fact that assessee’s writ application is pending before the Hon’ble Jurisdictional High Court, the directions of the CIT(A) are upheld – Decided against assessee.

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• 2014 (12) TMI 972
  

  Addition on surrender made by assessee deleted – Difference in physical stock found at the time of survey and stock as per books of accounts – Held that:- CIT(A) was rightly of the view that the assessee explained the variation in stock supported by its stock register, purchase bills, sale register and reconciliation in respect of each and every item of stock inventory drawn at the time of survey - Though assessee had surrendered for the difference in stock as per physical stock and stock as per books of account but later on while finalizing its accounts, the assessee noted certain mistakes in the recording of certain transactions, therefore, he prepared a reconciliation statement and submitted the reconciled statement along with the explanation and all documentary evidences to the AO - AO did not comment upon such explanations.

  Again during assessment proceedings, the assessee had submitted the same explanation to which also AO failed to offer any comments - it was the duty of AO to verify the explanations given by assessee and should have found fault in the reconciliation before making addition - there was no change in the quantitative stock as on date of survey and as per books of accounts on the date of survey - the difference in quantities had occurred only due to wrong recording of certain transactions and the reconciliation was supported by documentary evidences - The submission of correct calculation of stock on the basis of documentary evidence and explanation cannot be termed as retraction as it is in the common knowledge that during survey operations in a limited period of time, exact stock cannot be calculated specifically in a case like this where different qualities and different products were dealt by the assessee - the action of assessee in submitting rectified position of stock was justified and therefore, action of Ld. CIT(A) in giving relief to the assessee is justified specifically in view of the fact that AO instead of verifying the claim just ignored it – thus, the order of the CIT(A) is upheld – Decided against revenue.

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• 2014 (12) TMI 971
  

  Assessment u/s 153A - Various disallowance made - No material whatsoever was found relating to the routine disallowance - whether these disallowances can be made or confirmed sans any incriminating material found during the course of search – Held that:- In CIT Vs. M/s. Murali Agro Products Ltd. [2010 (10) TMI 1052 - BOMBAY HIGH COURT] it has been held that once it is held that the assessment finalized has attained finality, then the deduction allowed u/s 80HHC of the Income-tax Act as well as the loss computed under the assessment would attain finality - In such a case, the AO while passing the independent assessment order u/s 153A read with section 143(3) could not have disturbed the assessment/ reassessment order which has attained finality, unless the materials gathered in the course of the proceedings u/s 153A to establish that the reliefs granted under the finalised assessment/reassessment were contrary to the facts unearthed during the course of 153 A proceedings - there is nothing on record to suggest that any material was unearthed during the search or during the 153A proceeding which would show that the relief u/s 80HHC was erroneous – thus, the disallowances which has been confirmed by the CIT(A) cannot be uphold - Decided in favour of assessee.

  Addition of bogus bills/purchases made for construction – Held that:- The AO has not only relied upon the admission of the Director, Mr. Viren Ahuja at the time of statement u/s 132(4), but also has analyzed the nature of transaction and carried out inquiry to find out that the claim of purchases made for construction were bogus - once the evidences and materials are indicating the non-genuineness of the expenditure, the onus is heavily upon the assessee to prove the contrary on the basis of concrete material or evidence - onus has not been discharged by the assessee at all and not only, that it has been categorically admitted by the assessee when it was confronted during the course of search that, the payments relating to purchases are bogus – there was no merits in the contention raised by the assessee and the order of the CIT(A) is upheld – Decided against assessee.

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• 2014 (12) TMI 970
  

  Transfer pricing adjustment - Serviced provided to AE – Selection of Companies as comparables Accel Transmatic Ltd.– E-Zest Solutions - Held that:- Following the decision for all the comparables as decided in M/s. Motorola Solutions India Private Limited Versus ACIT, Circle-2, Udyog Vihar [2014 (10) TMI 358 - ITAT DELHI] - the Tribunal restored the issue to the file of the TPO to consider the inclusion/exclusion of this comparable depending upon the finding of RPT – with regard to E-Zest Solutions the TPO is directed to examine the reply of the assessee and adjudicate the matter afresh.

  Avani Cimcon Technologies Ltd. – Held that:- The Tribunal directed exclusion of the comparable for the reason that it owns certain softwares developed by it and the revenues earned are not merely on account of development of new software from scratch but because of utilisation of own software also - the asset base of the company could not be compared with that of the tested party.

  Celestial Labs – Held that:- The Tribunal observed that Celestial Labs is mainly into software development services, in as much as, R&D facilities have been used by it in relation to development of a software for discovery of new drugs - It was engaged in bioforma and biotech manufacturing of customised I.T. solutions, manufacturing of trucks, and contract research activities.

  KALS Information Systems – Held that:- The Tribunal directed the AO to exclude this comparable on the ground that there is a difference in the asset base of both the companies.

  Flextronic Software Systems Ltd.- Ishir Infotech Ltd.- Held that:- The Tribunal held that the company cannot include a comparable as there is a clear contradiction in the contents of the annual report and the information obtained u/s 133(6), hence this comparable has to be excluded for the same reason.

  Sasken Communication Technologies Ltd. – Held that:- The company has to be excluded as it owns IPRs and had branded products.

  Tata Elxis Ltd. – Held that:- The Tribunal directed the exclusion of this comparable for the reason that the software developed by this company were used as tools in development of new softwares – Decided partly in favour of assessee.

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• 2014 (12) TMI 969
  

  Addition u/s 28(iv) r.w. section 41 r.w. explanation 2(iv) – loan waived by the lenders - Deduction of amount from the amount of reduction of loans and liabilities - Held that:- Following the decision in Commissioner of Income-Tax Versus Chetan Chemicals Pvt. Ltd. [2001 (10) TMI 12 - GUJARAT High Court] wherein it has been held that before the section can be invoked, it is necessary that an allowance or a deduction has been granted during the course of assessment for any year in respect of loss, expenditure or trading liability which is incurred by the assessee, and subsequently during any-previous year the assessee obtains, whether in cash or in any other manner, any amount in respect of such trading liability by way of remission or cessation of such liability - In that case, either the amount obtained by the assessee or the value of the benefit accruing to the assessee can be deemed to be the profits and gains of business or profession and can be brought to tax as income of the previous year in which such amount or benefit is obtained - it cannot be said that the assessee-company was carrying on business of obtaining loans and that the remission of such loans by the creditors of the company was a benefit arising from such business – thus, the amount waived by the lender bank is not an income u/s 2(24) of the Act and further Section 28 also does not include amount of loan waive by the lender u/s 41 of the Act cannot apply to this receipt in respect of this amount – Decided against revenue.

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• 2014 (12) TMI 968
  

  Claim of deduction u/s 80IB - Income derived from operations and maintenance of SEZ - Deletion of adjustment in book profits calculation u/s 115JB – Held that:- CIT(A) rightly of the view that the adjustment not provided in explanation contained in section 115JB which provide for certain additions and subtractions from the profit shown in the profit & loss account - the income is from SEZ operations and it is not required to be included for working of book profit u/s 115JB – also in DCIT, Circle-10 (1), New Delhi Versus DLF Assets Pvt. Ltd. [2014 (1) TMI 1579 - ITAT DELHI] it has been held that the provisions of clause (g) to section 115JB refers to the amount of expenditure incurred for earning exempt income which has to be added back to the profit as per P&L A/c for the purpose of calculation of book profits u/s 115JB – the order of the FAA is upheld – Decided against revenue.

  Disallowance on deduction u/s 80IAB deleted – income from sale of business treated as capital gain – Held that:- As decided in assessee’s own case it has been held that deduction u/s 80IA of the Act cannot be denied after having been granted in the first year of claim, as the restraint of Section 80 IA(3) cannot be re-adjudicated in the subsequent AYs without withdrawing or disturbing the claim which was allowed in the initial AY – Decided against revenue.

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• 2014 (12) TMI 967
  

  Addition of interest on loan advanced to AE in AK – Directions made by Dispute Resolution Panel-II, Mumbai u/s. 144C(5) to do the same – Held that:- In various decisions it has been held that to bench mark the interest charged by the Indian assessee to the AE, LIBOR Plus is considered as arm’s length interest rate - the assessee is charging the interest from AE at the rate of 10% which is more than the interest rate paid by the assessee on the foreign currency loan from SBI at LIBOR + 205 BPS - even if the arm’s length interest adopted as 5.71% which is LIBOR + 2.5%, the assessee’s interest charged to the AE at the rate of 10% is more than the arm’s length interest rate and accordingly no adjustment on account of arm’s length of interest is warranted - the arm’s length rate of interest would be taken as the interest on deposit in Bank – thus, the interest charged by the assessee at the rate of 10% would be at arm’s length and no adjustment is called for on this account - the interest charged by the assessee at the rate of 10% from its AE is at arm’s length and the additions made is to be set aside – Decided in favour of assessee.

  Adjustment of interest for delayed realization of sale from AE – Held that:- The TPO has verified the documents produced by the assessee and confirmed the non-charging of interest on delayed export receipts either from AE or non AE - due to the delay in realization of sales, the assessee has earned foreign exchange gain which is much more than the interest adjustment - the uniform policy of not charging the interest both from AE and non AE debtors was recognized and no adjustment on account of notional interest on the outstanding amount on export proceeds can be made - 80% of the total sales of the assessee is from non AE customers, when the assessee is not charging any interest from non AE then there is no case made out by the revenue that the assessee is doing any favour or giving any benefit to the AE by extending the credit period of realization of sales which is less than the internal CUP being the assessee allowing the credit period to the non-AE – thus, the average collection period from AE is less than the average collection period from non AE – thus, the order of the DRP is upheld – Decided against revenue.

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• 2014 (12) TMI 966
  

  Disallowance u/s 14A - Carry forward of business loss – Held that:- The carry forward business loss was set off to the extent of available business income and thereby the total income was computed at Nil – the AO made certain disallowances u/s 14A and accordingly computed the total income of the assessee as against the Nil return of income - since the AO computed the total income by making the addition to the extent of ₹ 38,20,860/-, therefore, the carry forward business losses to the extent of ₹ 6,39,538/- should have been set off instead of ₹ 6,21,615 - the carry forward losses ought to have been set off to the extent of the available business income - when the AO has made the addition of more than 38 lakhs then to that extent the carry forward business losses of the assessee should have been set off - setting off carry forward business losses now depends on the finality of the addition made by Assessing Officer u/s 14A - the allowability of setting off the carry forward business losses depends upon the total income as per the outcome of the appeal.

  Whether section 14A is attracted in respect of the investment made in shares albeit no exempt income is earned by the assessee on such investment - Held that:- The assessee has not received/earned any exempt income during the year - there is no claim of exempt income by the assessee during the year – relying upon Commissioner of Income Tax-IV Versus Holcim India P. Ltd. [2014 (9) TMI 434 - DELHI HIGH COURT] - the entire or whole expenditure has been disallowed as if there was no expenditure incurred by the assessee for conducting business - CIT(A) has positively held that the business was set up and had commenced - Expenditure had to be also incurred to protect the investment made - genuineness of the expenses and the fact that it was incurred for business activities was not doubted by the AO and has also not been doubted by the CIT(A) - Decided in favour of assessee.

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• 2014 (12) TMI 965
  

  Cargo Handling Services - Whether the Appellant were eligible to claim the benefit of exemption from the levy of ‘Cargo Handling Services’ in relation to the cargo meant for export - Held that:- Assessee could not adduce sufficient evidences to establish that the cargo which they handled, were meant for export. Consequently, the demand was confirmed by the ld. Commissioner. Now, the Appellant claim that they could procure necessary documents, to establish that the cargo in question for the relevant period, were meant for export, and also they would place necessary documents/certificates in support of their claim. However, we find that the said certificate and documents relate to 56% of the demand. The ld. Advocate for the Appellant submits that they are now in the process of procuring the documents for the remaining quantity of goods. Therefore, in the interest of justice, we are of the view that the matter may be remanded to the ld. Adjudicating Authority for considering the evidences afresh, that would be placed by the Appellant - Matter remanded back - Appeal disposed of.

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• 2014 (12) TMI 964
  

  Consulting Engineer’s Services - Executing the work of construction of mess, quarters etc. for the staff of Assam Rifles - Held that:- Dispute centers round the services rendered by the Appellant to the Director General of Assam Rifles in executing the works of construction of quarters and mess for the staff of Assam Rifles. We find from the submission of the ld. Advocate for the Appellant that the issue is highly debatable and accordingly, the same ought to be examined in detail, before arriving at a conclusion as to whether the services rendered by the Appellant to the Director General of Assam Rifles would fall under the category of ‘Consulting Engineer’s Services’ or otherwise. Considering the fact that the Appellant is a public sector undertaking of Government of India, it is appropriate to remit the case to the ld. Commissioner (Appeals) for deciding the issue on merits, without insisting any predeposit. In the result, the impugned Order is set aside, and the matter is remitted to the ld. Commissioner (Appeals) for deciding the issue afresh. - Decided in favour of assessee.

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• 2014 (12) TMI 963
  

  Waiver of pre-deposit - Mining Services - transportation of lignite from the mines to the power plant under the GTA services and also for transportation of fly ash - Held that:- agreement between two parties for the mining and transportation as individual expenses can not be considered to be falling under one heading i.e. ‘Mining Services’. This is our prima-facie view. This our prima-facie view is fortified by the decision of the Tribunal in the case of R.K. Transport Company (2012 (3) TMI 271 - CESTAT, NEW DELHI). On perusal of the circular which has been relied upon by the adjudicating authority, we also find that the said circular specifically talks about vivisection of the contract for the purposes of charging under the of Cargo Handling Services and Transportation Services - appellant has made out a prima-facie case for the waiver of pre-deposit of the amounts involved. Accordingly, application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of the appeal. - Stay granted.

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• 2014 (12) TMI 962
  

  Whether the appeal filed before the Commissioner (Appeals) was barred by limitation or otherwise - Held that:- It is the claim of the Appellant that even though they were communicated with the Order-in-Original on 19.01.2011 by hand-delivery; but the certified copy was received by them on 04.04.2011. Therefore, the date of receipt of the certified copy of the impugned Order-in-Original be considered as the date of communication of the Order and the limitation should start from that date. I do not find force in the argument of the ld. FCA for the Appellant. Since the Order was communicated to them on 19.01.2011, the appeal could have been filed on the basis of such Order, and it cannot be construed that the date of communication of the certified copy thereof, be considered as the date of communication for the purpose of computation of the time-limit of three months, as prescribed under Section 85(3) of the Finance Act, 1994. - appeal dismissed.

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• 2014 (12) TMI 961
  

  Waiver of pre deposit - secondment of employees - Manpower Recruitment or Supply Agency Service - Business Auxiliary Service - Held that:- Manpower Recruitment or Supply Agency service allegedly received by the appellant, that issue also stands concluded by the judgment of the Gujarat High Court in C.S.T. vs. Arvind Mills Ltd. reported in [2014 (4) TMI 132 - GUJARAT HIGH COURT] whereby the High Court confirmed the decision of the Ahmedabad Bench of this Tribunal in Arvind Mills Ltd. vs. C.S.T., Ahmedabad reported in [2013 (10) TMI 821 - CESTAT AHMEDABAD]. There are other decisions of this Tribunal in Paramount mount Communication Ltd. vs. C.C.E., Jaipur - [2013 (3) TMI 134 - CESTAT NEW DELHI]; Volkswagen India Pvt. Ltd. vs. C.C.E., Pune I reported in [2013 (11) TMI 298 - CESTAT MUMBAI] and of the Principal Bench in BMW India Pvt. Ltd. vs. C.S.T. ,Delhi reported in [2013 (10) TMI 585 - CESTAT NEW DELHI] which enunciates the same principle of no liability to tax on reimbursement of the expenses and salaries of employees seconded by the principal employer to a subsidiary employer in India, for effective execution of the principal employers business.

  In so far as Business Auxiliary Service is concerned, the appellant claims that it amounts to export of taxable service and is entitled to immunity to service tax under provisions of the Export of Service Rules, 2005.This plea stands concluded by the Larger Bench decision of this Tribunal in Paul Merchants Ltd. vs. C.C.E., Chandigarh reported in [2012 (12) TMI 424 - CESTAT, DELHI (LB)] as well as the decision in Simpra Agencies and Simpra Agencies Pvt. Ltd. reported in [2014 (6) TMI 354 - CESTAT NEW DELHI]. We grant waiver of pre-deposit in full and stay all further proceedings for realization of the adjudicated liability, pending disposal of the appeal - Stay granted.

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• 2014 (12) TMI 960
  

  Waiver of pre-deposit of service tax - Commercial, training and coaching services - Held that:- Prima facie, we find that the applicant has made out a strong case in respect of demand of ₹ 3 lakhs which is in respect of applicant providing computer education to the students in government schools as per the syllabus. Keeping in view the facts and circumstances, applicants are directed to deposit ₹ 1,25,000 within a period of 8 weeks in addition to the amount already deposited and report compliance. The pre-deposit of the remaining dues are waived and recovery stayed during the pendency of the appeal. - Partial Stay granted.

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• 2014 (12) TMI 959
  

  Waiver of pre- deposit of service tax - Job work - Business Auxiliary Service - Materials and chemicals which are used during the processing are sold to the principal - Held that:- Admitted case of the appellants are that they are receiving the articles of aluminium from the principal and after undertaking certain processes which does not amount to manufacture, clear the same to the principal. As the applicants are receiving the aluminium articles from the principal, therefore, prima facie we find no merits in the contention of the appellant that the activity comes under ‘works contract’. during the argument the applicant admitted that the value of articles is approximately 60%. In view of the above as we find that the applicant failed to make a case for total waiver of pre-deposit of service tax - Partial stay granted.

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• 2014 (12) TMI 958
  

  Waiver of pre-deposit of service tax - Real estate agents service - Held that:- The applicants agreed to purchase land for certain consideration from land owner. Subsequently entered into another agreement for sale of the same land, without getting it registered in their own name and without giving full consideration to the land owner, with the builder. There is no registered sale deed transferring land in the name of the present applicant. As per the definition of ‘real estate agent’ as provided under Finance Act, real estate agent means a person who is engaged rendering any service in relation to leasing or renting of real estate agent. In the present case, the activity undertaken by the applicant is real estate agency as the applicant had not transferred the land in his name before entering into an agreement for sale with the builder. Therefore, we find no merit in the contention of the applicant that it is a case of sale and purchase of land. Under these circumstances as we find that applicant failed to make out a case for total waiver of service tax. - Partial stay granted.

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• 2014 (12) TMI 957
  

  Waiver of pre deposit - Reimbursement of transportation charges by CHA - whether the appellant was liable to pay Service Tax on the transportation charges reimbursed by the appellant to the CHA who actually paid transportation charges to transporter without paying service tax - Held that:- As per Rule 2(i)(d)(i)(B) of the Service Tax Rules, 1994, service tax on GTA services is required to be paid by the person who actually pays or is liable to pay the freight either himself or through his agent. In the present case, CHA is rendering several services to the appellant as per the invoices raised by CHA and produced at the time of arguments and one of the charges indicated in the invoices is payment of transport charges. There is no evidence on record that CHA is acting only as an agent of the appellant and that which paying freight charges to the transporter CHA was only acting as an agent. - Appellant has made out a prima facie case for complete waiver of the confirmed dues and penalties. Accordingly, it is ordered that there shall be stay on recoveries of the confirmed dues and penalties, till the disposal of the appeal - Stay granted.

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