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Showing 241 to 260 of 1585 Records
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2015 (8) TMI 1353
Rejection of claim of interest expenditure under the normal provisions of the Act - Rejection of interest liability under section 115JB of the Act - Held that:- The assessee is one of the notified entities coming under Harshad Mehta group against whom stock scam charges are pending. With regard to above said issue relating to rejection of interest claim these issues are being set aside by the Tribunal to the file of ld. CIT(A) for fresh adjudication in all other group cases belonging to Harshad Mehta.
Charging of interest u/s 234A, 234B and 234C - Held that:- As already held in Divine Holdings Pvt. Ltd. [2012 (4) TMI 100 - BOMBAY HIGH COURT] and Cascade Holdings Pvt. Ltd.[2014 (4) TMI 973 - BOMBAY HIGH COURT ]that the provision of sections 234A, 234B and 234C are mandatory in nature and would also apply to the notified entities also. The ld. Counsel submitted that the Tribunal, by following the above said decisions of Hon’ble Bombay High Court in assessment year 2007-08, has held that the assessee would be liable to pay interest under section 234A, 234B and 234C of the Act. The Ld A.R submitted that the assessee has preferred an appeal against the said decision of the Tribunal before the Hon’ble Jurisdictional High Court and the same is pending. The ld. Counsel submitted that the assessee has filed a declaration in Form no.8 in terms of Section 158A(1) of the Act and accordingly, he submitted that this legal issue may be set aside to the file of the AO with a direction to follow the decision rendered by the Hon’ble Bombay High Court for the assessment year 2007-08.
The ld. Special Counsel appearing for the Revenue submitted that the appeal filed by the assessee before the Hon’ble Bombay High Court has not been admitted so far. However, when it was pointed out that the Tribunal has set aside the matter to the file of the AO by taking cognizance of declaration filed by the assessee, the ld. Special Counsel agreed that the similar direction may be given in the instant case also
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2015 (8) TMI 1352
TDS u/s 194C - payment made against the supply of materials included in composite contracts for executing Turn Key Projects - Held that:- The contract for supply of material being a separate and distinct contract, no division is permissible under Section 194C of the Act. Section 194C has suffered an amendment also with effect from October 1, 2009 and the provision has been made very clear without any ambiguity.
Thus, we can conclude safely that if a person executing the work, purchases the materials from a person other than the customer, the same would not fall within the definition of ‘work’ under Section 194C of the Act. See Commissioner of Income-tax Versus Karnataka Power Transmission Corporation Ltd. (KTPCL) [2012 (6) TMI 204 - Karnataka High Court ]
TDS u/s 194J or 194C - payments made by an assessee towards Bill Management Services - Held that:- The services rendered by the agencies engaged by the assessees at Hospet, Bellary and Raichur are not professional services, and, therefore, Section 194J is not attracted. The demand towards the alleged short deduction of tax deducted at source and interest, therefore, was improper. The contract was rightly held to be a service contract by the Tribunal and we, also, feel that it was a contract, which should be covered under Section 194C of the Act.
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2015 (8) TMI 1351
Interest - penalty - time limitation - Held that: - as per the statutory requirement, the reversal particulars were furnished in the monthly returns, the show cause notice was required to be issued within one year from the date of filing of such returns - As the show cause notice in this case has been issued in 2008, in my opinion, the same is barred by limitation of time, since the fact of taking irregular credit was known to the Department way-back in 2003 - demand set aside on ground of limitation - appeal allowed - decided in favor of appellant.
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2015 (8) TMI 1350
Validity of reopening of assessment - depreciation on windmills - Held that:- The relevant facts and material concerning the depreciation on windmills etc. was admittedly placed before the Assessing Officer in the original assessment proceedings and the Assessing Officer after due indulgence passed the assessment order. The only reason for reopening is audit objection received by the Assessing Officer which led to issuance of notice under section 154 initially, followed by notice under section 148 of the Act. The Hon’ble Bombay High Court in the case of M/s Jet Speed Audio Pvt. Ltd. (2015 (2) TMI 766 - BOMBAY HIGH COURT) affirming the order of the Tribunal held that re-assessment without mention of any tangible material in the reasons recorded is unjustified.
On merits, the Ld. Authorized Representative for the assessee contended that the civil construction work and electrical installation is vital and integral part of the windmills and cannot be isolated. The civil construction and electrical work are specifically designed for operation of the windmills and are not separable. Therefore, depreciation on these structures/fittings have to be applied at the same rate, as is available to the principle asset i.e. windmill. For this proposition, he relied on the decision of Hon’ble Bombay High Court in the case of CIT vs. Cooper Foundary Pvt. Ltd. [2011 (6) TMI 837 - BOMBAY HIGH COURT ]. It was held by the Hon’ble High Court in that case that findings recorded by the Tribunal that RCC foundation forms integral part of the windmill is a finding of fact and no question of law arises from the same.
Thus, on merits as well the assessee has prima facie case in its favour. Since the appeal of the Revenue is dismissed on the issue of jurisdiction assumed by the Assessing Officer under section 147, the issue on merit has become academic.
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2015 (8) TMI 1349
Grant of permission to take vessel outside India - undertaking given to bring the vessel back to India within six months from the date of export and also execution of bank guarantee - Held that: - considering the reasons satisfactory and pre-deposit of ₹ 6.52 crores and bank guarantee 8.20 crores lying with the Revenue, we allow the applicant to take the vessel out side India for deployment for completion of work order for period of six months subject to condition that the applicant executes bank guarantee of ₹ 3 crores in favour of the Commissioner of Customs(Import), New Custom House, Mumbai - permission granted - application allowed - decided in favor of applicant.
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2015 (8) TMI 1348
Benefit of N/N. 67/95 - clearance of galvanized corrugated sheets on payment of duty - clearances to State of Gujarat in Kutch area - whether appellant required to pay duty at the stage of galvanization of sheets? - Held that: - The admitted position is that appellant is not entitled to avail the benefit of exemption Notification No. 67/95. But in this case, the appellant is paying 8% of value of exempted goods cleared by them in terms of Rule 6(3) of the Cenvat Credit Rules, 2004. In these circumstances, we hold that appellant is entitled to claim the benefit of exemption Notification No. 67/95. Therefore, the appellant is not required to pay duty at the stage of galvanizing of sheets - appeal allowed - decided in favor of appellant.
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2015 (8) TMI 1347
Validity of reopening of assessment - reasons to believe - Held that:- In the present case before us we find that the Assessing Officer did not bother himself to verify the correctness of the information received by him but merely accepted the truth of the information in a mechanical manner. What sort of enquiry or verification of information received by him from the Investigation Wing of the Department was made by the Assessing Officer prior to issuance of notice u/s 148 and the result of such enquiry has not been made available even on the request of the assessee to the Assessing Officer vide letter dated 08.03.2013. We thus find substance in the contention of the assessee that in absence of any reference to any corroborative material in the possession of the Assessing Officer leading him to believe that the information received was based on some relevant material and the income has escaped assessment, the Assessing Officer had issued notice u/s 148 in a mechanical manner on the basis of vague information from the investigation wing of the department. The assessee thus succeeds on this contention as well to arrive at a conclusion that notice issued u/s 148 was not valid. - Decided in favour of assessee
Notice against non existent company - reopening - Held that:- Notice issued under sec. 148 of the Income-tax Act, 1961 on a non-existent assessee was invalid and the assessment made in furtherance thereto inconsequence was invalid and void. The assessment in absence of issuance of mandatory notice under sec. 143(2) of the Act was also void ab-initio - Decided in favour of assessee
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2015 (8) TMI 1346
Entitlement to the benefit of the amendment made by the Kerala Finance Act, 2014, to the extent it relates to input tax credit - Held that: - It is pointed out that Section 25 C has been introduced in the K.V.A.T. Act through the Kerala Finance Act, 2014, only with effect from 1.4.2005. The relevant assessment year in so far as this revision is concerned is 2008-09. The retrospective amendment, as made by the introduction of Section 25 C, is a special provision regarding assessment of dealers paying presumptive tax. The said provision provides that notwithstanding anything contained in sub-section (4) of Section 11 or sub-section (2) of Section 12, if any assessment or other proceeding is initiated by the assessing authority denying the eligibility of a dealer to pay presumptive tax for the violation of conditions enumerated in sub-section (5) of Section 6, such dealer shall be granted input tax credit or special rebate, as the case may be. That being so, even if the revision petitioner had violated the conditions enumerated in sub-section (5) of Section 6; that is to say, the import of goods from another State; he will continue to enjoy the benefit of input tax credit. Hence, the orders impugned have to be modified and the assessing authority is directed hereby to modify the assessment order by giving input tax credit on the basis of the aforenoted amendment; however, after verifying the invoices produced by the assessee. Such is the order which ought to have been, and, was required to be passed in this case under Section 63 of the Act. Hence, this revision is ordered directing compliance of the aforesaid in letter and spirit.
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2015 (8) TMI 1345
CENVAT credit - manufacture of paints - credit of service tax paid by Head Office on input services - whether the denial of the cenvat credit to the appellant on the ground that the input services were received by the head office prior to obtaining registration certificate from the jurisdictional service tax authorities, justified? - Held that: - I find from the available records that head office of the appellant in Delhi was registered with the Service Tax Authorities on 06.03.2006 and thereafter on 16.03.2006, the ISD invoices were issued to the appellant, enabling it to take cenvat credit of service tax paid on the disputed services. Since the appellant has taken the cenvat credit based on the document prescribed under Rule 9 of the Cenvat Credit Rules, I am of the considered view that there is no infirmity in taking such cenvat credit, and as such, the same cannot be denied to the appellant - appeal allowed - credit allowed - decided in favor of assessee.
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2015 (8) TMI 1344
CENVAT credit - manufacture of Printed Plastic Laminates, other Laminated Plastic Pouches, Printed Polypeline Labels etc., falling under Chapter Sub-heading Nos. 39202020, 39239090 and 39269026 repectively of the Central Excise Tariff Act, 1985 - whether the denial of CENVAT credit on the ground that printed plastic laminates are not arising out of any manufacturing process, and as such, duty was not payable on the said product, is justified? - Held that: - The obligation of manufacturer of dutiable and exempted goods is contained in Rule 6 of the Cenvat Credit Rules, 2004. The said Rule is applicable only when both dutiable as well as exempted goods are manufactured in the factory of the manufacturer.
In the present case, printed plastic laminates manufactured by the appellant is not confirming to the definition of ‘exempted goods’ as per the definition contained in Rule 2(d) of the said Rules. Since the appellant is engaged only in the manufacture of dutiable goods, I am of the view that the embargo created in Rule 6 of the said Rules regarding payment of 10% of the price of exempted goods shall not be applicable and as such, the duty demand confirmed by the authorities below are not justified - since printed plastic laminates cannot be considered as exempted goods, I am of the considered view that the inputs used in or in relation to manufacture of such exempted product is eligible for the cenvat benefit and the embargo/ stipulation created in Rule 6 of the said Rules will have no application and as such, the appellant is not required to reverse 10% of the total price of printed plastic laminates removed from the factory.
Denial of credit not justified - appeal allowed - decided in favor of appellant-assessee.
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2015 (8) TMI 1343
Bail application - money laundering - nature of offence - HC [2015 (8) TMI 1341 - GUJARAT HIGH COURT] held there is no prima facie material evidence against the petitioner of any money laundering even today despite the fact that he is in custody for the last about 11 months - Held that:- Permission to file special leave petition is granted. Heard learned counsel for the parties.
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2015 (8) TMI 1342
CENVAT credit - input service - Security Services on Guest House - Erection and Commissioning Services - Held that: - So far as the Cenvat credit on Security Services on Guest House is concerned that is no way related to manufacture, for which, assessee shall not get the Cenvat credit thereon. So far as Erection and Commissioning Services is concerned, that has a direct bearing on the power generation. Even though the power generated at a place was availed to use the same in the manufacture, that establishes a vital link between input or input service used and manufactured. Accordingly, appellant is entitled to the Cenvat credit on the Erection and Commissioning Services availed.
Imposition of penalty - Held that: - penalty shall not be levied on the Cenvat credit because the appellant substantially succeeds on the Erection and Commissioning Service. Appellant’s bona fide belief was that Security Services was part of power generation activity. Noticing no mala fide, there shall be no penalty even on this service.
Appeal allowed - decided partly in favor of assessee.
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2015 (8) TMI 1341
Bail application - money laundering - nature of offence - Held that:- We have perused the supplementary complaint No.4/2014 which shows that fraud has been committed by some of the accused. However, the complaint does not show any material evidence, direct or circumstantial, against the petitioner. Allegations against the petitioner are of handling money belonging to his uncle from Mumbai. So far as the petitioner is concerned, there is no recovery or discovery from or at the instance of the petitioner. Barring statements, there is no prima facie material evidence against the petitioner of any money laundering even today despite the fact that he is in custody for the last about 11 months.
Powers of this Court in writ jurisdiction under Article 226 of the Constitution are much wider than the jurisdiction for granting bail under Cr.P.C. We are informed of the fact that uncle of the petitioner, who is alleged to have much higher role and is stated to be the main accused, is on bail pursuant to quashing of non-bailable warrant issued against him by a single Judge of this Court, while observing that order was obtained by the respondents by misrepresenting and suppression of vital facts. Out of 89 accused persons and entities, all are on bail except eight or nine, including the petitioner. If about 80 out of 89 accused are ordered to join investigation under protection of Court orders, present petitioner who had already undergone about 11 months is entitled to the interim relief prayed by him.
The petitioner is ordered to be released till the final decision of this petition, subject to his furnishing a personal bond in the sum of ₹ 50,000/- (Rupees Fifty Thousand only) with one surety of the like amount to the satisfaction of the Special Court and on observing other general conditions as well as condition that he will not leave country without prior permission of the trial Court. However, on a request made by the learned advocate, the petitioner may furnish surety in cash and cash surety will be replaced by solvent surety within a period of 15 days.
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2015 (8) TMI 1340
Service tax liability - commission received - Business Auxiliary Services - Held that: - the issue involved in this case is now squarely settled by the judgment of the Tribunal in the case of Microsoft Corporation India Pvt. Ltd. v. Commissioner of Service Tax, New Delhi [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)]. In the said judgment, the majority view has held that any commission received for rendering services in India to the principals situated abroad, will be export of services more so if the agent is rendering the services of ascertaining potential customers under the territory, informing about market conditions and competitor activities, identifying customers, contacting customers and selling over, etc. All these activities are undertaken by the respondent in the case in hand. Since the issue is now squarely settled by the decision of the Tribunal, we hold that the impugned order is correct and legal, and does not suffer from any infirmity - appeal disposed off - decided against Revenue.
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2015 (8) TMI 1339
The decision in the case of Karnataka Tarpaulin & General Industries Versus C.C.E., Bangalore [2005 (6) TMI 561 - CESTAT BANGALORE] contested - Held that: - The classification issue which is decided in favour of the assessee by the Customs, Excise and Service Tax Appellate Tribunal appears to be a proper decision. Even otherwise, the tax effect involved is negligible. The appeal stands dismissed.
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2015 (8) TMI 1338
Benefit of EPCG Scheme - rejection of authorization - import of Vitrified Tiles - Held that: - This Court is of the view that the stand of the respondent is perfectly justifiable under the facts and circumstances. The respondent only demanded compliance of the proceedings under N/N. 16/2015 as a duty bound officer. Certainly, in such circumstances, when there is no authorization, the officer is entitled to demand compliance of Notification No. 16/2015. Nevertheless, this Court is of the view, in view of the fact that the petitioner has already approached Appellate Authority-JDGFT, the goods shall be released to the petitioner on executing a simple bond and also giving an undertaking that in the event of rejection of appeal by the JDGFT they will pay the duty as per the demand - petition disposed off.
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2015 (8) TMI 1337
Import - the decision in the case of CONFIDENT DENTAL EQUIPMENT PVT. LTD. Versus COMMR. OF CUS., CHENNAI [2004 (12) TMI 420 - CESTAT, BANGALORE] contested - Held that: - the goods in question imported by the respondent were machines and not parts of the machines. We, thus, do not find any infirmity in the order passed by the Tribunal - appeal dismissed.
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2015 (8) TMI 1336
Denial of CENVAT credit - Notification No.67/95 CE dated 16.3.1995 - Rule 57A & 57Q of the Central Excise Rules, 1944 - Held that: - The benefit of Rule 57Q is available, on the duty paid on the capital goods used by the manufacturer in his factory and for utilising the credit so allowed towards payment of duty of excise leviable on the final products.
On the basis of clause (1) of Explanation to sub-rule (1) of Rule 57Q. Sub-rule (1) of Rule 57A excludes capital goods as defined in rule 57Q, if they are used for producing or processing of any goods or for bringing about any change in any substance in or in relation to the manufacture of the final products or used for any purpose for manufacture in the factory - Decided in favour of the assessee.
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2015 (8) TMI 1335
Demand of duty - clearance of the waste and scrap - sale without raising bills - whether demand was barred by limitation under section 11A(1) - extended period of limitation - Held that:- The assessee did not show as to why there was some sale without raising any bills, as evidenced from file Number 15. Therefore, we are of the considered view that the original authority and the appellate authority were right in holding on a question of fact that there was intention to evade payment of duty. Without carefully appreciating the above facts, the Tribunal came to a conclusion, devoid of any material, that there was no intention to evade payment of duty. Therefore, the second question of law has to be answered in favour of the Revenue.
Once the second question of law is answered in favour of the Revenue, it evolves as a corollary that the Revenue is entitled to invoke sub-section 4 of section 11A and seek the benefit of extended period of limitation from the relevant date. Therefore, the first question of law should also be answered in favour of the Revenue.
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2015 (8) TMI 1334
Demand - Penalty - Reversal of CENVAT credit - Slow moving stock - Notification No.26/2007-CE(NT), dated 11.05.2007 - The credit availed by the appellant was in accordance with the CENVAT statute, and in absence of any specific provision requiring the appellant to reverse the credit availed on the inputs, confirmation of duty demand is against the principles of law - Since there is no provision existed in the CENVAT Credit Rules for reversal of CENVAT credit at the material time reversal of credit cannot be insisted, relying upon the circular issued by CBEC - Appeal allowed.
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