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Showing 161 to 180 of 2046 Records
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2018 (10) TMI 1891
LTCG or STCG - gains arising on transfer of trade mark - AO had considered the gains arising on transfer of the trade mark to be short term in nature, whereas the Tribunal found it otherwise - HELD THAT:- As decided in own case [2016 (5) TMI 1549 - ITAT CHENNAI] allowing the claim of the assessee that the gains arising on transfer of the trade mark was long term in nature. We do not find any reason to interfere with the order of the Ld.CIT(A) in this regard.
Deduction u/s.54F - such claim was denied by the AO, considering the assessee to be owning more than one residential property, when he transferred the trade mark - CIT(A) had, on the other hand, found that one of the two properties was a commercial one and hence assessee was justified in claiming deduction u/s.54F - HELD THAT:- What we find is that neither the Ld.AO nor the Ld.CIT(A) had carefully not gone through the conveyance deeds through which the assessee had acquired the residential houses. AO had simply stated that letting out of a flat to a company for conducting its business did not change the nature of the flat. Ld.CIT(A) on the other hand, went by the pre-amble of the Conveyance Deed. We are, therefore, of the opinion that the question whether the assessee owned more than two residential properties and whether one of such property could be considered as commercial flat and could be excluded, for application of Sec.54F of the Act, requires a fresh look by the AO. We set-aside the order of the lower authorities and remit the question whether assessee was eligible to claim deduction u/s.54F of the Act, back to the file of the AO for fresh consideration in accordance with law.
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2018 (10) TMI 1890
Refund of SAD - time limitation - Rejection on the ground that the same has been filed after the prescribed time limit of one year from the date of payment and as such is rejected as being barred by time - HELD THAT:- The SAD exemption has been granted vide N/N. 102/2007 dated 14.09.2007 as issued in accordance of Section 25(1) of the Customs Act which provides power to the Central Government to grant exemption from duty by way of Notification. This Notification exempts the goods falling within the first schedule to the Customs Tariff Act, 1975 when imported into India for subsequent sale, from the whole of the additional duty of Customs leviable thereupon in accordance of the above mentioned Section 3(5) of Customs Tariff Act.
Whether there is any time limit prescribed by law for filing the refund claim of additional duty of Customs as stands exempted vide the N/N. 102/2007? - HELD THAT:- The words used in the provision makes it clear that statute has not distinguished the nature of duty or interest, the refund whereof is claimed. Hence, even if we do not look into the amended Notification No. 93/2008, the period of limitation as applicable for filing the refund claim under Notification 102/2008 will otherwise be a period of one year in accordance of the aforesaid Section 27 of Customs Act. Thus, we cannot rule out that the Notification No. 93/2008 came into existence to align the statutory provision with the Notification which was silent as far as the period of limitation for the purpose as mentioned therein is concerned. Otherwise also, on examination of relevant provision it appears that the provisions of limitation are excluded, it would nonetheless be still open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation.
The refund claim of additional duty due to the exemption flowing out of N/N. 102/2007 has to be filed within one year in view of the subsequent Notification No. 93/2008-Cus which still holds good and also in view of Section 27 of the Customs Act, 1962 - Commissioner(Appeals) has committed an error while giving an expanded interpretation qua limitation to favour assessee.
Refund rejected - Appeal allowed - decided in favor of Revenue.
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2018 (10) TMI 1889
Rectification of mistake - error apparent on the face of record - consideration of decisions mentioned - HELD THAT:- From the record it is noticed that Ld. AR had submitted a paper book of decisions in support of the appeal and cited the decisions at Sr. No. 9 to 11 in support of his arguments. The said decisions cited at Sr. No 9 to 11 could not be considered and because of oversight, they were missed in the order while dismissing ground no. 2 of the appeal filed by the assessee.
The decisions at Sr. No. 9 to 11 of the paper book of the decisions submitted by the assessee in support of ground no. 2 of the appeal, though were cited before us, but because of oversight it could not be considered or distinguished in the order while dismissing ground no. 2 of the appeal filed by the assessee - thus, there is ‘mistake apparent from record’, therefore, we recall our decision on ground no. 2 of the appeal in order dated 19.03.18 and direct the Registry to fix the matter for re-hearing on ground no. 2 and as such this ground of appeal will be heard afresh on merits.
Application allowed.
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2018 (10) TMI 1888
Undisclosed income - receipt not included in the Profit & Loss Account of the assessee - As contractual receipt under Marketing Assistance Programme (MAP) as per Agreement executed between it and Exxonmobil Lubricants Pvt. Ltd. the assessee submitted that this amount was to be passed on to the customers (sub-distributors) as incentive - as further explained with reference to the MAP Agreement that the assessee was receiving financial assistance as ‘upfront payment’ on the condition that the same was to be passed on to the customers and no part was to remain with it as income - HELD THAT:- Exxonmobil Lubricants Pvt. Ltd., has a right to demand immediate payment if the conditions given are violated. First Schedule to the Agreement provides that the effective date of MAP Agreement is 01.06.2010 and the maturity date is 31.05.2011. Similarly, there is next Agreement for ₹ 21.25 lac, whose effective date is 1 st July, 2010 and maturity date is 30th June, 2011. Similar is the position in so far as the effective and maturity dates of other two Agreements are concerned. Total amount under these four Agreements comes to ₹ 1,91,65,000/-, which pertains to part of the year under consideration and the remaining part to the subsequent year. The assessee, in turn, is passing over the amount of incentive given under the MAP Agreement to the sub-distributors at the time of their lifting the goods, which payment, during the year, totaled at ₹ 1.29 crore and odd. The remaining amount of ₹ 62.03 lac will be adjusted against payment to be made in the subsequent year by the sub-distributors at the time of their further purchase.
MAP payment received by the assessee comes with certain conditionalities, such as, the assessee has to provide bank guarantee and there is an obligation to lift the stocks. In case the assessee does not succeed in lifting the stock etc., the proportionate part would not be available to it for onward payment to sub-contractors. The assessee has been consistently following this practice of accounting the amounts under MAP Agreement and the same has been accepted in the assessments completed u/s 143(3) for the two immediately preceding assessment years, namely, 2009-10 and 2010-11.
CIT(A) has recorded a categorical finding to this effect which has not been controverted by the ld. DR. In the absence of any factual difference in the manner of receipt, disbursement or accounting of the marketing assistance payment received under the MAP Agreements in the preceding year vis-àvis the year under consideration, we are satisfied that the ld. CIT(A) rightly appreciated the facts and was justified in deciding this issue in favour of the assessee. We, therefore, uphold the same.
Disallowance of commission to Smt. Inderjeet Kaur and Smt. Parvinder Kaur - HELD THAT:- As found that the assessee failed to lead any evidence about the genuineness of transactions of payment to these two ladies. The ld. AR explained the nature of such payments by explaining that some sub-distributors insisted on making payment to these two ladies as a part of their incentive under the MAP Agreement. It, therefore, becomes manifest that such commission is simply a part of the payment made to the distributors which was received by the assessee under the MAP Agreements from Exxonmobil Lubricants Pvt. Ltd. for onward payment to customers. Since the assessee is neither offering the receipt of incentive from Exxonmobil Lubricants Pvt. Ltd., as income, nor payments made to sub-distributors as expense, a part of such payment, termed as commission, to these two ladies cannot, therefore, cannot have a different shade from the angle of deductibility. It is further observed that the assessee failed to adduce any evidence of rendering of services by these two ladies, which necessitated it to make such payments. We, therefore, uphold the impugned order on this score.
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2018 (10) TMI 1887
Proceedings u/s 153A - no assessment proceeding was pending being the date of search - HELD THAT:- Admittedly, for the assessment years 2009-10 and 2011-12 under consideration, the assessee filed the return of income on 20.11.2009 and 05.11.2011 and the return was processed under Section 143(1) of the Act and no assessment order was passed under Section 143(3) of the Act. In the meantime, there was search under Section 132 of the Act on 03.09.2013. On the date of search, the time limit for issuing notice under Section 143(2) of the Act had expired. Therefore, it is obvious that the return filed by the assessee before the date of search was terminated by operation of law. In other words, no assessment proceeding was pending on 03.09.2013 being the date of search.
This Tribunal is of the considered opinion that when the assessment proceeding is not pending on the date of search, the Assessing Officer can assess or re-assess the income only on the basis of material found during the course of search operation. In this case, admittedly, there was no material found during the course of search operation, therefore, this Tribunal is of the considered opinion that in view of the judgment of Apex Court in Meeta Gutgutia [2018 (7) TMI 569 - SC ORDER] the Assessing Officer cannot initiate proceeding under Section 153A of the Act. - Decided against revenue.
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2018 (10) TMI 1886
TP Adjustment - Assessee has assailed the action of authorities below in rejecting CUP/internal Transactional Net Margin Method (TNMM) as the most appropriate method for determining arm’s length price of the international transactions - grant of proportionate adjustment at entity level - HELD THAT:- A perusal of the orders of authorities below show that the assessee had asked for adjustment only on the AE sales as disclosed in segmental accounts. The assessee in the immediately preceding assessment year 2010-11 had computed adjustment on same lines.
DRP accepted the same. In the assessment year under appeal the adjustment is sought at entity level and there has been no change in the facts. DRP directed the TPO to make adjustment only on AE sales as was made in the preceding assessment year. The assessee in order to fortify his submissions with respect to allowability of adjustment at entity level has placed reliance on the decision of Co-ordinate Bench of the Tribunal in the case of WIKA Instruments India Pvt. Ltd. [2018 (4) TMI 1637 - ITAT PUNE] - Appeal of Revenue is dismissed being devoid of any merit.
Most appropriate method to be applied for determining Arm’s Length Price (ALP) of international transactions in respect of provision for engineering design and services - HELD THAT:- From the order of the Tribunal for assessment year 2009-10 we find merit in the plea of assessee that hourly rates charged by it in providing specialized services to its associated enterprises can be the basis for verifying its stand as to whether the services provided by the assessee to its associated enterprises were at arm's length. However, the stand of Assessing Officer / TPO in rejecting the said plea of assessee was the tainted transactions vis-à-vis costs incurred by the assessee both for associated enterprises and non-associated enterprises. In the totality of the above said facts and circumstances, where the stand of assessee has not been looked into by the TPO and has been brushed aside, we in the interest of justice, direct the Assessing Officer / TPO to determine arm's length price of international transactions undertaken by the assessee by applying most appropriate method i.e. internal TNMM method of man hourly rates. The assessee has also asked for various other adjustments for carving out differences which may also be looked into by the TPO, who shall decide the issue after affording reasonable opportunity of hearing to the assessee and determine arm's length price of international transactions.
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2018 (10) TMI 1885
Revision u/s 263 - decision of the Assessing Officer not granting exemption under section 54B of the Act and the other being the applicability of section 50C of the Act in relation to sell of land by the petitioner - HELD THAT:- As petitioner submitted that he does not dispute the Commissioner's order in connection with the claim of the petitioner under section 54 of the Act. However, with respect to revised capital gain under section 50C of the Act, counsel relied on the 1st proviso to subsection (1) of section 50C of the Act which was inserted with effect from 01.04.2000, as per which, if the date of agreement fixing the amount of consideration and the date of registration for the transfer of capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer.
Counsel pointed out that the requirement of the further proviso for applicability of the said proviso viz. that the payment should have been made through account payee cheque or bank draft or through electronic clearance system was satisfied in the present case. According to the petitioner therefore the Jantri rates as revised on the date of registration of the sale deed could not have been taken into account. Counsel pointed out that the Commissioner in the impugned order though recorded this contention, did not decide the same.
NOTICE, returnable on 29.10.2018
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2018 (10) TMI 1884
Seeking direction to the SubRegistrar, Dindori (Respondent No.4) to accept the Sale Certificate dated 25.07.2018 executed by the Petitioner in favour of Respondent No.2 as per the Securitisation and Reconstructionof Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) in respect of secured assets - substance of the Petition is that the Respondent No.4 has verbally declined to register the Sale Certificate on the premise that on the record of rights of the aforementioned secured assets, there is an endorsement of attachment to the tune of ₹ 13,63,744/as of 10.11.2015, on account of Sales Tax dues.
HELD THAT:- The provisions of Section 26E of the SARFAESI Act have overriding effect. Section 37 of the MVAT Act, is expressly made subject to the provisions of any Central Act which create first charge. The fact that the provisions of Section 26E came into force by Act 44 of 2016 do not detract materially from the overriding effect of the provisions of the said Section, especially, in the facts of the case at hand, as the security interest was created in pursuance of the mortgage registered on 05.03.2010.
The question of preferential claim of the Petitioner and Respondent No.3 qua the secured assets can be considered and determined after providing opportunity to the Respondent No.3 to put forth its case - Petitioner shall tender the Sale Certificate, registration of which is sought, before the Respondent No.4 tomorrow - Respondent No.4 shall carry out the necessary process of adjudication and determine the stamp duty to be levied on the said instrument by 01.11.2018.
The Registry is directed to list the matter on 02.11.2018.
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2018 (10) TMI 1883
Bill of Lading - whether printed conditions annexed to the Bill of Lading would not be binding upon the parties? - HELD THAT:- The Bill of Lading makes it clear that the term "Merchant" (which is defined in the Standard Conditions Governing Multimodal Transport Documents-Clause (1) (e) as meaning shipper, consigner or consignee) expressly agrees to be bound by all the terms, conditions, clauses and exceptions on both sides of the Bill of Lading whether typed, printed or otherwise.
The Respondent has expressly agreed to be bound by the arbitration Clause despite the fact that it is a printed condition annexed to the Bill of Lading. Secondly, it must be remembered that the Respondent has itself relied upon the Bill of Lading as part of its cause of action to recover the sum of ₹ 26,53,593/- in the suit filed by it. The Respondent, therefore, cannot blow hot and 23-02-2021 (Page 2 of 3) www.manupatra.com Surender Gupta cold and argue that for the purpose of its suit, it will rely upon the Bill of Lading (though unsigned) but for the purpose of arbitration, the requirement of the Arbitration Act is that the arbitration Clause should be signed.
The present is a clear case where, Under Section 7(5) of the Act read with M.R. Engineers and Contractors Pvt. Ltd. (supra) (paras 22 & 24), the reference in the Bill of Lading is such as to make the arbitration Clause part of the contract between the parties - The fact that the stage of the present suit is that a particular witness is being examined would not come in the way of the Section 8(3) application being allowed inasmuch as the Section 8(3) application was filed in the same year as that of the suit.
Appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1882
Decree of settlement/compromise - HELD THAT:- It is jointly stated that the present matter has been settled between the plaintiff and the defendant at the total amount of ₹ 7,50,000 to be paid in monthly installments as per the settlement agreement dated 16.08.2018, Ex. P1 starting from 20.09.2018 (total six months). In case of default of any installment, a penalty of ₹ 5000 per installment per month shall be paid by the defendants from 15.11.2018 onwards. It is jointly prayed that the present matter may be decreed as compromised/settled. Statement of counsel for the plaintiff and AR of defendant are recorded separately.
The present suit is decreed. A consent decree be prepared. File be consigned to record room.
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2018 (10) TMI 1881
Revision u/s 263 - assessee was not entitled for deduction u/s.80IB - As assessee failed to fulfill the conditions laid down as per the provisions of the Act in respect of its claim of deduction u/s. 80IB of the Act, the assessment order was erroneous and prejudicial to the interests of Revenue - HELD THAT:- From the certificate issued by the local authority, which is on the subject of amalgamation and amended approved plan of the housing project,. referring to various commencement certificates and amended plan with the earliest date back to 19.11.1998. If the project was approved in the year 1990, here is no question of deduction 80IB(10) and if the project was under taken in the year 1998 whether the said project had been completed within the stipulated four years period.
As observed that the construction of the project was not completed within four years from the end of the financial year in which the housing project was first approved - assessee was not eligible to claim deduction u/s 80IB(10). The deduction u/s 80IB(10) is to be allowed if the assessee fulfills at the conditions as laid down in the provisions of the income Tax Act. In the said case the assessee had failed to fulfill the conditions required to claim deduction u/s 80IB{10). However, the Assessing Officer had not examined the said issue and allowed the claim of the said deduction thereby rendering the assessment order to be erroneous & prejudicial to the interest of revenue.
Neither the project was approved by the assessee nor any enquiry has been made by the AO as to how the eligibility condition u/s.80IB(10) has been complied with by the assessee who has been given development rights in respect of certain portion of the project approved in the name of M/s. Unitech Limited - out of the deduction claimed, the AO has reduced the amount pertaining to the profit earned on this project in the earlier two years, but no enquiry has been made by the AO as to why in respect of the very same project, profit of earlier years was to be reduced from the profit of eligible project. We also observe that audit report in form No.10CCB filed by the assessee at Column 4(a), the assessee has claimed the project to be fully owned by it, whereas the actual fact is that assessee has no ownership rights in the project.
No enquiry has been made by the AO so as to ascertain correctness of the assessee’s claim when the project itself was not approved in the name of assessee and he has only got developmental right in respect of part of the project. It is also not clear as to what is the size of the plot of land on which project has been approved. It is also not clear whether approval was prior to 01/04/2004 or subsequent to it.
No infirmity in the order of CIT for invoking provisions of Section 263 holding the order passed by AO was erroneous in so far as prejudicial to the interest of revenue, on the plea that no enquiry having been made by the AO regarding assessee’s eligibility to claim deduction u/s.80IB(10). CIT has passed order also considering the issue raised in the show-cause notice dated 31/01/2012. Accordingly, we upheld the order passed by CIT passed u/s.263 and matter is restored back to the file of AO for making enquiry - Decided against assessee.
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2018 (10) TMI 1880
Classification of goods - ‘Bike Locks’ used for motorized bicycle - classified and taxable under HS-8714 (Parts and Accessories of Bicycle and other cycle) - HELD THAT:- The locks classified under Chapter 8301 are for the purpose of general use whereas, the cycle locks are specific as they are exclusively used for bicycles and cannot be used for any product other than the bicycle.
The ‘accessories’ are well defined by the Supreme Court in Annapurna Carbon Industries Co. v. State of Andhra Pradesh [1976 (3) TMI 156 - SUPREME COURT], wherein the Hon’ble Court held that meaning of accessories is accepted as an object or device that is not essential in itself but that adds to the beauty or convenience or effectiveness of something else or is supplementary or secondary to something primary or greater importance.
Also, EXIM data with respect to goods under question makes it explicitly clear that HS Code 8714 is being used for cycle locks in import as well as export around the world. This supports the view that bicycle locks appropriately fall under HS-8714 - further it is found that cycle locks as parts and accessories of vehicles of Headings 8712 and 8713 falling under Chapter 8714 were exempted vide Entry No. 293 of exemption Notification No. 12/2012-Central Excise, dated 17-3-2012 as amended. Thus bicycle locks were already being classified under Chapter 8714 in pre-GST era.
The product ‘cycle locks’ is classifiable under Chapter Heading 8714 of the Customs Tariff Act, 1975 and Goods and Services Tax rate applicable to Chapter Heading 8714 is applicable to the said product.
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2018 (10) TMI 1879
Mutation of Exchange - validity of registered sale deed - possession of suit land - cause of action to file the present suit - maintainability of suit of the plaintiffs in the present form - locus standi to file the present suit - estoppel by their act and conduct to file the present suit or not - suit of the plaintiffs is bad for mis-joinder of necessary parties or not - jurisdiction to try the present suit.
Whether oral exchange of immovable property worth more than ₹ 100/- is permissible? - HELD THAT:- The issue in question, in fact, is no longer res integra in view of the authoritative pronouncement of the Hon'ble Supreme Court as have been taken into consideration by a Co-ordinate Bench of this Court (Sandeep Sharma, J.) in a fairly recent decision in PIAR CHAND AND ORS. VERSUS SANT RAM AND ORS. [2017 (5) TMI 1753 - HIMACHAL PRADESH HIGH COURT] wherein it was observed that this Court is of definite view that no reliance, if any, could be placed by first appellate Court on 'Azadinama' Ex. P-1 to conclude that plaintiff had relinquished his 1/2 share in favour of the defendants, more particularly, in the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land.
Learned counsel for the respondents has failed to show any other authority taking a contrary view one taken by the learned Single Judge in the aforesaid cases and the reason for the same is otherwise obvious. Accordingly, taking the support from the aforesaid judgment by holding that the oral exchange of more than ₹ 100/- is impermissible in law.
Whether the alleged exchange could have been transacted and effected on behalf of the appellants/plaintiffs by their father and that too when the father appears to have not been appointed as attorney of the appellants/plaintiffs? - HELD THAT:- It is settled that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein - issue answered in favour of the appellants.
Could the first appellate court have reversed the decree of the learned trial Court based on the reasoning that there was variance between the plea taken in the written statement and the testimony of defendant No. 3 as to the mode of exchange viz. In the written statement it was alleged that there was an oral exchange and in the testimony it was stated that a deed of exchange had been executed? - HELD THAT:- This Court has already observed that an oral exchange of immovable property worth ₹ 100/- was impermissible. Therefore, the plea of exchange as set up by the defendants was rather not maintainable as no valid title would pass in their favour. That apart, once there was admission by defendant No. 3 in his cross examination with regard to execution of exchange deed, then it was incumbent upon defendant No. 3 to have produced the said deed or else an adverse inference was required to be drawn. To say the least, the findings recorded by the learned first appellate Court are totally perverse and contrary to law. Accordingly, this question is decided in favour of the appellants.
This Court has no hesitation to conclude that the findings rendered by the learned first appellate Court are not only perverse, but are contrary to law and are, therefore, not sustainable - Appeal allowed.
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2018 (10) TMI 1878
Revision u/s 254 - tribunal considering the fact recorded by the Assessing Officer, inter alia held that the assessee has not carried out any activities in connection with agricultural activity, as provided under explanations of section 80P(4), its activities are purely a commercial banking activity - HELD THAT:- From the various judgements of the Supreme Court and other High Courts, it is clear, that the Tribunal’s power u/s. 254(2) is not to review its earlier order, but only to amend it with a view to rectify any mistake apparent from the record. An error apparent on the record means an error which strikes one on mere looking and does not need a long drawn out process of reasoning on points on which there may be conceivably two opinions. The error should not require any extraneous matter to show its incorrectness. If the view accepted by the Tribunal in the impugned order is one of possible views, the case cannot be said to be covered by an error apparent on the face of the record. Since the assessee is not able to exactly point out the mistake apparent from the record, the MP is dismissed.
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2018 (10) TMI 1877
Assessment of club - Interest income from fixed deposit earned by the appellant from bank out of the surplus funds raised from contribution of several members of the appellants club - principle of mutuality and 'No Man can trade with himself' - benefit of interest derived is utilised by several members of the appellant's club - HELD THAT:- Appellant/assessee fairly submits that the above Substantial Question of Law has been decided against the assessee in the assessee's own case.
Further in the case of Madras Gymkhana Club vs. Deputy Commissioner of Income Tax [2009 (7) TMI 68 - MADRAS HIGH COURT] an identical question came for consideration and the same has been decided against the assessee.
In Bangalore Club vs. Commissioner of Income Tax. [2013 (1) TMI 343 - SUPREME COURT] held that if the object of the assessee company claiming to be a “mutual concern” or “club”, is to carry on a particular business and money is realized both from the members and from non-members, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality - Decided against the assessee
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2018 (10) TMI 1876
Interpretation of statute - storage or warehousing mentioned in clause (i) (e) of the explanation in entry at S.N 24 - includes cold storage, deep freeze storage and controlled atmosphere storage also or not - agriculture produce - taxability - rate of tax - turmeric whole (gattha & fait), turmeric powder, red chili (whole), red chili powder, chili seeds - covered under the definition of 'Agriculture Produce' as defined under N/N. 11/2017- Central tax (Rate) dated 28.06.2017 or not.
Interpretation of statute - scope of term 'warehousing' as appearing in clause (i) (e) of the explanation in entry at Sr. No. 24 of the notification no. 11/2017-Central Tax (Rate), dated 28.06.2017 corresponding notification no. 46/ST-2 Dt. 30.06.2017 under the HGST Act, 2017 - HELD THAT:- Since, the warehousing services are support services and covered in SAC 99672, it includes cold storage, deep freeze storage and controlled atmosphere storage services also unless an exception is provided in the entry - It had also been argued and discussed whether processing done on the agriculture produce by a person other than the cultivator will take away the benefit of nil rate to support services in relation to agricultural produce as per entry no, 24 of the said notification.
A plain reading of clause (vii) of explanation 4 to the said notification clearly mention that 'such processing is done as is usually done by a cultivator or producer.' It is immaterial that who does the process as long as the process is such as is usually done by the cultivator or producer which does not alter the essential characteristics of the agricultural produce but makes it marketable for primary market - Turmeric, red chilly in whole are generally marketed in the primary markets and once converted in powdered form these are sellable in the secondary market.
Pre-conditioning : and pre-cooling processes as mentioned in sr. no, 24 (ii) of the said notification - HELD THAT:- It is amply clear that the pre-conditioning or pre-cooling processes are rendered on the agriculture produce at the farm gate before being transported to either the markets or for storage purpose. Therefore, these services of pre-conditioning or precooling processes cannot be regarded as cold storage, deep-freeze or controlled atmosphere storages but the benefit of nil rate on such services shall be available as long as the conditions and restriction as provided under entry 24 (ii) of the said notification are satisfied.
Whether the entry 24 (ii) of the said notification also include dry fruits, cut fruits, frozen nuts, processed fruits, and cut vegetables, dried vegetables, processed vegetables and the like? - HELD THAT:- The pre-conditioning or pre-cooling processes etc. are usually done at the farm gate on the fresh harvested fruits and vegetables. The category of the products cited by the applicant are such on which certain processing has already been done. Such already processed produce will not require the pre-conditioning or pre-cooling processes to be done again and therefore, to our mind the entry takes in its scope fresh fruits and vegetable only.
Understanding the scope of SAC 9967 (supporting service in transport) in relation to the agriculture produce as mentioned at Sr. No. 24 of the said notification - HELD THAT:- It is noticed that the benefit of nil rate is provided to only those support services to agriculture which are specifically mentioned at Sr. No. 24 of the said notification. It does not cover the services of transport of agriculture produce and therefore the applicable SAC on such services shall be 9967 irrespective of the service being performed in relation to agricultural produce or any other goods.
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2018 (10) TMI 1875
Exempt from GST or not - Residential Dwelling Unit taken on Lease from Various Individuals/Owners for Sub Leasing and the same Residential Dwelling unit to Corporates as well as Individuals for Residential Purposes along with various amenities such as Furniture, Appliance, Cleaning, Security, Pest Control, AC Service etc. - Entry No. 12 of N/N. 12/2017- Central Tax (Rate) dated 28th June 2017 - HELD THAT:- it is understood that the First Lease agreement between the owner and the applicant is in the nature of only a right given to the applicant for further sub-letting the property, though with a condition that it can be sub-letting only for residential purpose - It is the second Lease agreement (Sub-Lease) which is between the applicant and the actual user of the property which is for residential purpose. This agreement, to our understanding qualifies under service code 997211(Rental or leasing services involving own or leased residential property) and falls under the said entry 12 of the notification in question - The First Lease agreement between the owner and the applicant, at the most can be termed as property management services falling under service code 997221. The third Lease relating to services is rightly understood by the applicant as taxable and hence out of the purview of the said entry 12 of the above notification.
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2018 (10) TMI 1874
Non-appearance on the date of hearing - HELD THAT:- It seems that the applicant is deliberately avoiding personal hearing and no purpose seems to be served by providing any further opportunities. Since the applicant does not seem to be interested in obtaining advance ruling, the application is filed.
Ordered accordingly.
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2018 (10) TMI 1873
Input Tax Credit of IGST and Compensation Cess - receipt of cars (on stock-transfer basis) for use in relation to specified business activities and thereafter onward supply to dealers after use by the Applicant-unit for a limited period of time - HELD THAT:- There is no doubt that in the motor vehicle industry, demonstration vehicle is an indispensable tool for promotion of sales by providing trial runs to the customers. These demo cars are used for demonstration purpose for the prospective customers and after a specific period of time, these are sold off for the book value, paying the applicable taxes at that point of time - During discussions it has been shown to the authority that these demo cars are received by the applicant against tax invoices and are reflected in their books as capital assets. The general provisions for availing input tax credit on capital goods which are used or intended to be used in the course or furtherance of business are contained in section 16 (1) and section 18 (1) of the CGST/HGST Act, 2017 read with the relevant rule 43 of the CGST/HGST Rules.
It is also worth noting that the specific provisions regarding admissibility of input tax credit on motor vehicles for transportation of persons upto a seating capacity of not more than 13 person are contained in section 17 (5) of the CGST/HGST Act 2017 - Since section 17 (5) of the HGST/CGST Act, 2017 starts with a non obstante clause, as per the law the admissibility of input tax credit on motor vehicles in the present case shall be as per the provisions contained therein.
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2018 (10) TMI 1872
Classification of goods - man-made textile Non-Woven Geo bags from Polypropylene - classified under heading - 6305 having description or otherwise? - HELD THAT:- CHAPTER 63 of the first schedule to the Customs Tariff Act, 1975, covers “Other made up textile articles; sets; worn clothing and worn textile articles; rags” and heading 6305 provides for SACKS AND BAGS, OF A KIND USED FOR THE PACKING OF GOODS. Further, subheading 6305 33 00 covers sacks and bags of polyethylene or polypropylene or the like - Sr. No. 224 of schedule I of Notification No. 01/2017-CentraI Tax (Rate) dt.28.06.2017, provides for CGST @2.5%, on goods of chapter 63 provided the said goods are of value not exceeding ₹ 1000/- per piece. Whereas, S.No.171 of Schedule II of Notification No.01/2017-CentraI Tax (Rate) dt.28.06,2017, provides for CGST @6% on goods of chapter 63 provided the said goods are sets of sale value exceeding ₹ 1000/- per piece.
Thus, in the instant case, the sacks and bags (of a kind used for packing of goods), are covered by chapter 63 and the same are liable to GST as under:
(a). - 5% IGST OR 2.5% CGST + 2.5% SGST, [S.No. 224 of schedule I of Notification No.01/2017-Central Tax (Rate) dt.28.06.2017 refers], where the goods are of value not exceeding ₹ 1000/- per piece.
(b). 12% IGST OR 6% CGST + 6% SGST, {S.No.171 of Schedule II of Notification No. 01/2017-CentraI Tax (Rate) dt.28.06.2017 refers] where the goods are sets of value exceeding Rs, 1000/-per Piece.
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