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Showing 141 to 160 of 871 Records
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2013 (3) TMI 737 - CESTAT MUMBAI
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... ... ..... pyrights service effective from 1-7-2010. Since the transaction has taken place prior to 1-7-2010, there is merit in the appellant’s contention that they are not liable to pay Service Tax. 5.5 As regards the income shown under the category of Recovery of bad debts, the appellant had stated that they had already discharged the Service Tax liability. 6. In view of the foregoing, we are of the considered view that the matter has to go back before the adjudicating authority for consideration of the issue afresh with regard to the liability of the Service Tax on the activities undertaken by the appellant. The appellant is also directed to produce all the documentary evidence in support of their claim that they are not liable to pay Service Tax. Needless to say that the appellant shall be heard before passing the order on the matter afresh. 7. Thus, the appeal is allowed by way of remand. Stay application is also disposed of. (Dictated and pronounced in Court)
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2013 (3) TMI 736 - CESTAT MUMBAI
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... ... ..... on of service tax demand have not been considered by the ld. Adjudicating authority. Therefore, the matter has to go back to the adjudicating authority for fresh consideration of all the issues involved. The appellant’s offer to pre-deposit an amount of ₹ 68,31,637/- is accepted and they are directed to make the pre-deposit of the said amount within a period of 6 weeks and report compliance before the adjudicating authority by 7th May, 2013. On such compliance, pre-deposit of balance of dues adjudged against the appellant shall stand waived and recovery thereof stayed, the adjudicating authority shall hear the matter afresh and pass an order in accordance with law. The appellant is also directed to furnish all the documentary evidences they want to rely on in support of their contention. 8. Thus the appeals are allowed by way of remand. Stay applications are also disposed of. 9. Order be given Dasti. (Operative part of the order pronounced in the Court)
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2013 (3) TMI 735 - CESTAT MUMBAI
Short payment of service tax - manpower recruitment or supply agency service - appellant failed to discharge service tax on reimbursement of wages received by them (by way of debit notes) from their client M/s. Tidewater during the period November 05 to December 08.
Held that: - the OWNER shall furnish CONTRACTOR from time to time with a scale of wages applicable to the SEAFARER. The owner reserves the right to revise such scale at any time on a prospective basis. OWNER shall reimburse the CONTRACTOR, the applicable wages of each SEAFARER incurred as an expense to the CONTRACTOR - the respondent’s contentions that the Seafarers are employees of M/s. TIPL and the service rendered by them is “manpower recruitment” and not “manpower supply” have no basis whatsoever.
Whether the service rendered by the respondent is taxable under “manpower recruitment or supply agency” service or “ship management service”? - Held that: - sub-clause (68) relating to manpower recruitment or supply agency service occurs first compared to sub-clause (96a) relating to ship management service. Therefore, the classification sought in the present case by the Revenue under “manpower recruitment or supply agency” service cannot be faulted at all.
Whether the respondent was acting as a Pure Agent of M/s. TIPL? - Held that: - When one reads the Agreement entered into by the respondent with M/s. TIPL, it is seen that none of the four elements described above are present. The agreement is not one between an agent and a principal; it is one between two principals. Secondly, the respondent is engaging the seafarers, responsible for their conduct, payment of wages/salaries/other compensations, for their termination and repatriation. For such services rendered, the respondent is getting compensated in two ways, one by way of re-imbursement of the wages/salaries of the seafarers and second by way of daily compensation based on the number/type of seafarers supplied. Thus the question of treating the respondent as a ‘pure agent’ of M/s. TIPL does not arise at all from the terms and conditions of the agreement.
Whether both the amounts received, that is, reimbursement of wages and daily compensation are leviable to Service Tax? - Held that: - The Respondent charges for the services rendered by way of two debit notes, one debit note for the daily compensation and the other for the wages of the seafarers. Merely because he has split up the gross amount charged into two elements, it does not mean that only one of them is the gross amount charged and the other is not. The modus operandi adopted in splitting up the gross amount appears to be only for the purpose of avoiding/evading service tax and nothing else. Therefore, the total/gross amount charged for the service rendered is the sum total of both the debit notes, as per the provisions of Section 67 - In the present case, we have determined the value in terms of the provisions of Section 67 of the Finance Act, 1994 and not under Rule 5(1) of the Valuation Rules. Therefore, we do not find any conflict between the issue considered herein.
Whether any part of the demand is time-barred and whether there has been any suppression of facts on the part of the respondent? - Held that: - If there was any intent to evade service tax, they need not have shown the amounts received under the category of pure agents. Therefore, the extended period of time cannot be invoked to confirm the service tax demand.
Whether the penalty is imposable on the appellant? - Held that: - Penalty under Section 78 is imposable only when any of the following 5 elements are present, namely, fraud, collusion, willful mis-statement, suppression of facts or contravention of the provisions of the Act or rules made thereunder, with intent to evade payment of service tax - these elements are not present in the instant case. In view of the same, penalty is not imposable under Section 78 of the Finance Act, 1994.
Penalty u/s 76 - Held that: - No mens rea is required for imposition of penalty under Section 76 and mere failure to pay Service Tax along with interest will attract the provisions - the appellant has not produced any evidence before us for waiver of penalty under Section 76 - penalty u/s 76 upheld.
Appeal allowed in part.
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2013 (3) TMI 734 - CESTAT MUMBAI
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... ... ..... ot be of any help inasmuch as they dealt with completely different situations. 5.4 As regards the demands under GTA services and construction services, the appellant’s argument that they pertain to consideration received for the services rendered prior to the imposition of tax or were covered under exemption Notifications appear to have merit. 6. In view of the above, we are of the view that the appellant has not made out a prima facie case for complete waiver of Service Tax dues adjudged against them especially in respect of ‘Management, Maintenance or Repair Service’ undertaken by them. Accordingly we direct the appellant to make pre-deposit of Rs. 15 lakhs (Rupees fifteen lakhs only) within a period of eight weeks and report compliance on 27-5-2013. On such compliance, pre-deposit of balance of dues adjudged against the appellant shall stand waived and recovery thereof stayed during the pendency of the appeal. (Pronounced in Court on 19-3-2013)
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2013 (3) TMI 733 - CESTAT MUMBAI
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... ... ..... o the tune of ₹ 9,83,532/-, out of which an amount of ₹ 5 lakhs pertained to MTDC for which the defence taken by the ld. Counsel is that construction of tourist complex is not for any commercial or industrial use, therefore, not liable to service tax. We find these tourist complexes have been leased out by MTDC on rent as tourist complex like hotel etc. Therefore, on this account, the applicants have failed to make out a case for 100 waiver of pre-deposit. We therefore, direct the applicants to deposit an amount of ₹ 2,50,000/- on this account. 10. In a nutshell, we direct the applicants to make pre-deposit of ₹ 3,61,121/- (Rupees Three lakhs sixty one thousand one hundred and twenty one only) within four weeks. On such deposit, pre-deposit of the balance amounts of service tax, interest and penalties is waived and recovery thereof is stayed during the pendency of the appeal. 11. Compliance is to be reported on 26-4-2013. (Dictated in Court)
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2013 (3) TMI 732 - CESTAT MUMBAI
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... ... ..... ed the submissions made by both the sides. 5.1 In the present case, the appellant is treating the waste water received from M/s. Apte Organics Chemical Pvt. Ltd. before it is sent to the chemical effluent preachment plant for further treatment and disposal. Waste Water or any waste for dispersal per se cannot be considered as goods. Further, the Board in the Circular (cited supra) in the case of Bio-Medical waste had clarified that incineration/shredding of bio-medical waste does not amount to processing of goods and does not make transaction taxable under the category of ‘Business Auxiliary Services’ or any other taxable services as in existence. 5.2 In view of the above, we are of the view that the appellant has made out a strong case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of the dues adjudicated against the appellant and stay recovery thereof during the pendency of the appeal. (Dictated and pronounced in Court)
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2013 (3) TMI 731 - SUPREME COURT
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... ... ..... n the provisions of the Evidence Act and MCOCA examined on the basis of submissions advanced by the learned counsel representing the rival parties, it is inevitable for us to conclude, that the accused-respondents cannot be permitted to summon the witnesses at serial nos. 63 to 66 as defence witnesses, for the specific objective sought to be achieved by them. 45. For the reasons recorded hereinabove, we are satisfied, that the impugned order dated 26.11.2012 passed by the High Court deserves to be set aside. The same is accordingly hereby set aside. It is held, that it is not open to the accused-respondents to produce the witnesses at serial nos. 63 to 66 in order to substantiate the confessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah (the accused in Special Case no. 4 of 2009), who are not accused/co-accused in Special Case no. 21 of 2006 (out of the proceedings whereof, the instant appeal has arisen). 46. Appeal stands allowed.
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2013 (3) TMI 730 - KARNATAKA HIGH COURT
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... ... ..... , held, that valuation of such physician samples falls within Rule 4 of the ‘Valuation Rules’ and not Rule 8. 26. There is yet another facet, i.e., failure of the petitioner to explain the reasons for not filing Form E.R.-1 under Rule 12 of the Central Excise Rules, 2002 r/w Rule 9(7) of the Cenvat Credit Rules, 2004, in respect of goods cleared for trial and demonstration, as also in its balance sheet, the Cenvat duty, paid, accounted as an expense to the company, was it to adopt a lesser value to effect payment of Cenvat duty? These call for an explanation if any, to be examined by the Appellate Authority before whom, it is said, an appeal is pending. Without dwelling into the merit or demerit of the said allegations, and leaving them open, the appellate authority is directed to extend a reasonable opportunity of hearing to the petitioner in the appeal over such allegations, and pass orders in accordance with law. This petition, without merit, is rejected.
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2013 (3) TMI 729 - CESTAT BANGALORE
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... ... ..... e party ltimately produced ARE-1 certified by the Customs Officer. It is not the case of the learned Superintendent (AR) that any time limit was prescribed by the Range Officer for production of the ARE-1 by the appellant, nor is it her case that PART-B of the ARE-1 produced by the appellant to the Central Excise Range Office did not contain the Customs Officer’s certificate of the goods covered by the Shipping Bill dated 24-11-2008 having been shipped on 14-12-2008. On these facts and circumstances, there is no reason why it should be held that the appellant violated Condition No. (ii) of Notification No. 42/2001-C.E. (N.T.) ibid. The appellant should not have been compelled to pay duty on the goods. When they claimed its refund, it was readily sanctioned by the original authority. The order passed by the original authority was not fit for review. 7. In the result, the impugned order is set aside and this appeal is allowed. (Pronounced and dictated in open Court)
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2013 (3) TMI 728 - ITAT COCHIN
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... ... ..... adras and Delhi High Courts that an income escaping assessment under section 147 cannot be completed within the time available for issuing notice u/s. 143(2) of the Act and for completion of assessment u/s. 143(3) and since these decisions remain unchallenged by the department, we dismiss the departmental appeal for the year 2003-04 i.e. I.T.A. No. 254/2010”. 5. In view of the binding decision of the Hon’ble High Court of Kerala, we hold that the re-assessment notice u/s. 148 of the Act issued in the instant case within the time limit available for issuing notice u/s. 143(2) of the Act for completing the assessment u/s. 143(3) of the Act, is not valid. Accordingly, the assessment framed on the strength of the invalid notice is liable to be quashed. Accordingly, we set aside the order of the Ld. CIT(A) and quash the assessment order passed by the Assessing Officer. 6. In the result, the appeal filed by the assessee is allowed. Pronounced accordingly on 08-03-2013.
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2013 (3) TMI 727 - GUJARAT HIGH COURT
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... ... ..... sksh Builders to the tune of ₹ 97,73,170/ . As the sub-contractor had left the work, remaining work was completed by the assessee-respondent. The question arose with regard to the requirement of deducting TDS. CIT (A) gave a finding "there was any doubt with regard to genuineness of the transactions, the Assessing Officer could have made further inquiry and since the same is not done either in the assessment proceedings or in the remand proceedings, it did not agree with the view point of the Revenue. When challenged before the Tribunal, it also concurred with the findings of the CIT (A) as it found no material having been presented by the Department controverting the view taken by the CIT (A). This issue also is predominantly based on the facts presented to both these authorities. No question of law, much less substantial question of law, arises for entertaining the said issue. 7. Resultantly, Tax Appeal is dismissed in absence of any substantial question of law.
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2013 (3) TMI 726 - ITAT KOLKATA
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... ... ..... e disallowed as attributable to earning tax free dividend. The CIT(A) was thus quite justified in deleting the interest disallowance. We have also noted that entire expenses incurred by the assessee have been offered for disallowance, and once that happen, nothing remains for further disallowance u/s 14A. The disallowance under section 14A can come into play only out of expenses claimed for deduction and expenses have been claimed for deduction, there cannot be any disallowance either. The conclusions arrived at by the CIT(A) are, therefore, correct and admit no interference by us. We approve and confirm the order of the CIT(A). In view of the above discussions and respectfully following the esteemed views of the Hon’ble jurisdictional High Court as also the coordinate Bench of this Tribunal, we uphold the grievance of the assessee. 11. In the result, the appeal filed by the assessee is allowed. Order dictated and pronounced in the open Court on 6th day of March, 2013.
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2013 (3) TMI 725 - SUPREME COURT
Validity of summon order passed by the Metropolitan Magistrate (M.M) u/s 415, 409, 34, 120B of the Indian Penal Code (IPC) against the Managing Director, the Company Secretary and the Directors of the Company and the company - The complainant alleged that the respondents have committed criminal breach of trust and cheating, inasmuch as they have sold off shares of the complainant and misappropriated the entire sale proceeds. Considering the facts of the case magistrate issued the summon.
HELD THAT:- Considering the allegations made in the complaint, documents placed on the record and the evidence led by the witnesses, and after being satisfied that a prima facie case is made out, directed issuance of summons against the respondents to face trial under the aforementioned Sections of IPC. The learned Magistrate has been directed to proceed with the trial against respondent No. 1 u/s of IPC. The issuance of summons against respondents Nos. 2 to 7, namely, the Managing Director, the Company Secretary and the Directors of the Company cannot be sustained and the same are liable to be set aside. So far as respondent No. 1 Company is concerned, the issuance of summons as against the Company under Section 415 IPC also cannot be sustained.
The order of the High Court, therefore, needs no interference by this Court.
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2013 (3) TMI 724 - ITAT AHMEDABAD
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... ... ..... rmed since it is plain and evident that the deduction under section 10A has to be given at the stage when the profits and gains of business are computed in the first instance. So construed, the appeal by the Revenue would not give rise to any substantial question of law and shall accordingly stand dismissed. There shall be no order as to costs. 5. We notice that this judgment is followed by the same High Court in case of Commissioner of Income Tax-7 vs, Schmetz India (P.) Ltd., 2012 211 Taxman 59 2012 26 texman.com 336 (Bom). 6. Having perused the statutory provision contained in Section 10A of the Act as well as Section 80A, we see no reason to take a view different from the Bombay High Court as in the present case. Resultantly, tax appeal is dismissed.” In view of the above, grounds raised by the assessee in these appeals is allowed. 8. In the result, appeals of the assessee are allowed. Order pronounced in open court on the date mentioned hereinabove at caption page
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2013 (3) TMI 723 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ts raised are in terms of Section 104 of the Act. As on today, there is no document or information available on record to show that the respondents intend to act under Section 104 of the Act. Since, the respondents are investigating the proceedings relates to import of prohibited foods and have called upon the petitioner to produce the documents in terms of Section 108 of the Act, the entire arguments raised by learned counsel for the petitioner on the basis of Section 104 of the Act are untenable. 5. The argument that the offence is bailable is not disputed by learned counsel for respondents. It is also pointed out that though the offence is bailable but still the petitioner has obtained an order of this Court for not arresting the petitioner even though, the anticipatory bail is not maintainable in respect of bailable offence. 6. Since, the respondents are only investigating in terms of Section 108 of the Act, we do not find any merit in the present petition. 7. Dismissed.
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2013 (3) TMI 722 - ITAT PUNE
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... ... ..... hearing both the sides we find the addition of ₹ 2,88,375/- made by the Assessing Officer on account of excess stock has been confirmed by the learned CIT(A). While deciding the ground of appeal No.3 in ITA No.1001/PN/2011 we have accepted the alternate contention of the learned counsel for the assessee that telescoping benefit should be given to the assessee in case addition is sustained on account of excess consumption in A.Y. 2002-03. We therefore direct the Assessing Officer to give the benefit of excess consumption of steel from the excess stock found during A.Y. 2008-09. The balance amount of ₹ 31,286/- (i.e. ₹ 2,88,375 - ₹ 2,57,089/-) is accordingly directed to the sustained. Ground raised by the assessee is partly allowed. 29. In the result all the ITA Nos. 1001/PN/2011 to ITA No. 1006/PN/2011 are partly allowed for statistical purposes and ITA No.1007/PN/2011 is partly allowed. Pronounced in the Open Court on this the 19th day of March, 2013.
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2013 (3) TMI 721 - BOMBAY HIGH COURT
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... ... ..... es made on an adhoc basis? (b) Whether on the facts and in the circumstances of the case, the Tribunal erred in confirming the denial of the claim for deduction of ₹ 20,16,264/being annualized write off of the amount paid to Maharashtra Industrial Development Corporation (MIDC) in consideration for permitting user of its land for a period of 95 years?
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2013 (3) TMI 720 - BOMBAY HIGH COURT
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... ... ..... question (a) is concerned, the Tribunal by the impugned order has followed the decision of this Court in the matter of Commissioner of Income Tax V/s. Badridas Gauridu (P) Limited reported in (2003) 261 ITR 256 (Bom) to hold that exchange rate gain on forward contract is business income. Accordingly, the Tribunal held that the foreign exchange gain would be export profit and, hence, cannot be excluded from export turnover under Section 80HHC of the Income Tax Act, 1961. In view of the above, we see no reason to entertain question (a). 3. In so far as question (b) is concerned, counsel for the parties state that this issue is covered in favour of the assessee and against the Revenue by the decision of this Court in the matter of Commissioner of Income Tax V/s. Gem Plus Jewellery India Limited reported in (2011) 330 ITR 175 (see page 183). In that view of the matter, we see no reason to entertain question (b). 4. Accordingly, the appeal is dismissed with no order as to costs.
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2013 (3) TMI 719 - ITAT PUNE
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... ... ..... lack of enquiry at least on the first two issues. So far as the third issue is concerned i.e. the applicability of Section 94(7) there is no discussion, or any query and certainly it is an issue for which the assessment order can be said to be erroneous to the extent. We therefore uphold the order of the Ld.CIT to the extent only on the issue of applicability of the Section 94(7) of the Act i.e. on the third issue and accordingly the impugned order is modified and the assessee partly succeeds in this appeal. We, therefore, hold that to the extent of the third issue i.e. set-off of short term capital loss and applicability of Section 94(7) of the Income-tax Act, the order is erroneous as well as prejudicial to the interest of the revenue and Assessing Officer is directed to complete the assessment after examining this issue as per the provisions of law. 17. In the result, assessee's appeal is partly allowed. Pronounced in the Open Court on this the 8th day of March, 2013.
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2013 (3) TMI 718 - ITAT JODHPUR
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... ... ..... Act cannot be imposed because there can be no concealment in these cases, nor that the assessee has furnished inaccurate particulars of income. Any estimate is an opinion which is taken subjectively, when this difference of opinions leads to any addition, it cannot terminate into a penalty under s. 271(l)(c) of the Act. The decision of Shiv Lal Tak v. CIT 2001 251 ITR 373 of Hon'ble Rajasthan High Court is also relevant. 5. Thus, it is manifestly clear that the sustained additions are a result of estimated disallowances of expenses and estimated trading addition. Accordingly, by respectfully following the above judgments/orders and by applying their ratio decidendi to the facts of this case, we are left with no option but to confirm the impugned order of learned CIT(A), who has also deleted the impugned penalty on the similar reasoning. 6. As a result, the appeal of the Revenue fails and is liable to be dismissed. 7. In the result, the appeal of the Revenue is dismissed.
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