|
Advanced Search Options
Case Laws
Showing 321 to 340 of 1437 Records
-
2015 (3) TMI 1123
Cenvat Credit - eligible input services - (a) Security Service received in residential colony and guest house; (b) Pest Control service received in employees’ residential colony; (c) Repair and Maintenance of air coolers in residential colony; (d) Maintenance of river pump and security service received at guest house. - Held that:- Cenvat credit availed on service tax on various services received at the residential colony of the appellant are ineligible for Cenvat credit, as has been authoritatively held by the Hon’ble Bombay High Court in the case of Manikgarh Cement [2010 (10) TMI 10 - BOMBAY HIGH COURT]. To that extent the appeals of the appellant fails. - As regards the various services received at residential colony i.e. pest control service, maintenance of air coolers and electrical & other maintenance, I. had already held that Cenvat credit is not eligible on the service tax paid by the service providers. To that extent the appeals of the appellant fails.
Extended period of limitation - Held that:- appellant has made out a case for service tax credit which sought to be denied and is beyond the limitation period. To that extent, the impugned orders are set aside and the appeal is allowed. The demand in this appeal within the limitation period is upheld along with interest. - Decided partly in favor of assessee.
-
2015 (3) TMI 1122
Addition 14A - Held that:- Without highlighting the facts of that case no addition should be made on the basis of general presumption. The FAA, in the present case, had held that the every assessee would keep watch over the market to maximise its profit but he had missed one important aspect that the assessee was holding the shares of group concerns for strategic purposes and for selling and buying and selling them frequently. In absence of the finding as to how much was the sum incurred by the assessee under the head administrative expenses, it is not possible for us to uphold the order of the FAA for the year under consideration.
Hon’ble jurisdictional High Court in the case of Gopal Purohit (2010 (1) TMI 7 - BOMBAY HIGH COURT ) has held that that there should be uniformity in treatment and when facts and circumstances for different years were identical particularly in the case of the same assessee. Analysis of the above lay down that the principle of consistency can be ignored only in certain conditions and without pinpointing the difference of facts for a particular year with the facts of earlier year/s consistency should be maintained. Considering the peculiar facts and circumstances of the case, we are reversing the order of the FAA. Effective ground of appeal raised by the assessee for the year under consideration, is allowed in its favour. - Decided in favour of assessee.
-
2015 (3) TMI 1121
Valuation - Variation in prices - Group companies - Apex Court dismissed the appeal of the revenue against the decision of tribunal in view of that, a clear finding of fact has been arrived at by the CEGAT [2003 (9) TMI 434 - CESTAT, NEW DELHI] to the effect that variation in prices was not two to eight percent and that was also because of the bulk purchases made by the two companies from the respondents herein. No substantial question of law arises.
-
2015 (3) TMI 1120
Depreciation towards temporary structures in leased premises - CIT(A) restricted claim to 10% as against 100% claimed by the assessee - Held that:- The assessee has incurred an expenditure towards refurbishing the leased out premises by incurring expenditure on wooden partitions, false ceiling, ESD tiled floorings, electrical network cabling and interior decoration etc. There is no doubt that the assessee would derive benefit from these structures year after year and therefore, the benefit derived is of enduring nature. From the lease deed of the assessee with its landlord, it is evident that the lease is for a period of nine years which can be further extended by mutual consultation. It is also evident that the asset leased out by the assessee is of commercial nature and intention of the landlord is to let out the premises on long term basis. Therefore, from the facts and circumstances of the case, it is evident that the assessee would derive benefit from these structures at least for a period of nine years or even more. These structures also remains as the property of the assessee and on vacating the premises, the assessee is entitled to either remove these structures, or sell it to the new tenant. As pointed out by the Ld. CIT (A), Explanation-1 to Section 32 clearly clarifies the issue, though it has been inserted by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986 with effect from 01.04.1988.
In the present case before us, it is not the repair work that was carried on but creation of an asset itself by incurring an whooping expenditure of. Considering the facts of the present case before us, and based on our above discussions, we do not find it necessary to interfere with the elaborate and speaking decision rendered by the Ld. CIT (A). Accordingly, the issued is decided in favour of the Revenue. Needless to mention, that all the decisions cited by the Ld. A.R, are distinguishable from the facts of the present case before us. - Decided against assessee
-
2015 (3) TMI 1119
Recovery of penalty composed u/s 114(i) and u/s 114(AA) of the Customs Act, 1962 - goods were chemicals and appellants mis-declared the goods and these were found to be ‘Muriate of Potash’ (MOP) by customs and seized - Revenue submits that penalty was rightly imposed when there was absolute confiscation of the goods was made - Held that:- When the order does not reflect about redemption of goods on fine, it appears that the goods are prohibitory goods for which customs authority has absolutely confiscated. To protect the interest of Revenue, appellant is directed to deposit ₹ 10,00,000/- within eight weeks from today and make compliance on 01.06.2015.
-
2015 (3) TMI 1118
Tds u/s 194C - non deduction of TDS - disallowance u/s. 40(a)(ia) - Held that:- We hold that section 40(a)(ia) is not attracted in respect of payment already made by the end of the previous year. The AO is directed to verify the claim of the assessee and if it is in line with the view taken herein the same may be considered accordingly. - Decided in favour of assessee.
-
2015 (3) TMI 1117
Carry forward of deficit on account of excess expenditure - Assessee is a trust registered under section 12A - CIT(A) allowed the claim of set-off - Held that:- Since the view taken by the learned CIT(A) is in conformity with the view taken by the Hon'ble Bombay High Court in assessee’s own case for A.Y. 2005-06 [2013 (3) TMI 654 - BOMBAY HIGH COURT], which is not disputed by the Revenue, we do not find any infirmity in the order passed by the CIT(A) allowing the carry forward of deficit on account of excess expenditure - Decided in favour of assessee.
-
2015 (3) TMI 1116
Unexplained expenditure made u/s 69C - CIT(A) deleted the addition - Held that:- AO was not justified in making the addition on the basis of statements given by the third parties before the Sales Tax Department, without conducting any other investigation
It has to be appreciated that (i)Payments were through banking channel and by Cheque,(ii) Notices coming back, does not mean , those Parties are bogus, they are just denying their business to avoid sales tax/VAT etc, (iii) Statement by third parties cannot be concluded adversely in isolation and wi thout corroborating evidences against appel lant ,(iv) No cross examination has been offered by AO to the appel lant to cross examine the relevant parties (who are deemed to be wi tness or approver being used by AO against the appel lant) whose name appear in the websi te www.mahavat.gov. in and (v) Fai lure to produce parties cannot be treated adversely against appellant. - Decided in favour of assessee
-
2015 (3) TMI 1115
Addition on account of profit arising on the suppressed sales - calculation by estimating the production on the basis of alleged electricity consumption - rejection of books of account - Held that:- In the cross appeals filed by the assessee and the Revenue, we hold that there is no merit in the order of Assessing Officer in rejecting the books of account under section 145 of the Act. Consequently, the ground of appeal No.3 raised by the assessee is allowed. Further we also delete the addition made on account of gross profit arising on the suppressed sales worked out on the basis of alleged electricity consumption and consequently, the grounds of appeal Nos.4 and 5 raised by the assessee are also allowed. Further, the addition made on account of working capital requirement is also deleted . Hence, the grounds of appeal Nos.3 to 6 raised by the assessee are thus, allowed. - Decided in favour of assessee
-
2015 (3) TMI 1114
Cenvat Credit - SEZ unit - Eligible input services - The lower authorities are of the view that the said services on which CENVAT Credit was availed is not eligible to the appellant as the said services were not used for export of services. - Held that:- As regard availment of CENVAT Credit of service tax paid on "Health Club and Fitness Centre", vide our final order dated 20.06.2013, we held that these services are not eligible for availing CENVAT Credit. Accordingly, the demands confirmed by the lower authorities on this services are liable to be upheld along with interest.
We have no hesitation to hold that the appellant has correctly availed the CENVAT Credit of the service tax paid by various service providers except "Health Club and Fitness Centre Services".
Adjudicating authority has erred in confirming the demand despite there being calculation errors. In short, we find that the appellant has made out a case for him as to eligibility of CENVAT Credit availed on various services as indicated here-in above except for "Health Club and Fitness Services", and hold that they, have correctly availed CENVAT Credit and the appeal to that extent needs to be allowed and we do so. - Decided partly in favor of assessee.
-
2015 (3) TMI 1113
Addition u/s 14A - CIT(a) deleted the addition in part - Held that:- There is no common interest expenditure in the present case – as per the uncontroverted submissions of the assessee, no portion of interest really survives for allocation under rule 8D(2)(ii). However, as the ld. CIT(A) has given partial relief and the assessee is not in appeal against the same, all we can hold is that the relief granted by the ld. CIT(A) does not need to be disturbed at the instance of the revenue. We thus decline to interfere in the matter in this appeal by the Assessing Officer. - Decided against revenue
-
2015 (3) TMI 1112
Addition u/s 68 - CIT(A) deleted the addition - Held that:- Since the facts are similar to the earlier year and since assessee has furnished copy of the sale bills of the sale of Talent Infoway Ltd, and bank statements including purchase contract notes and other details on the basis of which CIT(A) held the transactions as genuine, we do not see any reason to interfere with the order of the CIT (A). Since AO also relied on the findings in the case of assessee’s husband in assessment year 2005-06 and the learned CIT (A) also deleted the addition based on the same, we do not see any reason to interfere with the order of the CIT (A) - Decided in favour of assessee
-
2015 (3) TMI 1111
Disallowance u/s 14A - Held that:- AO has to examine the nature of expenditure vis-a-vis the earning of the exempt income. Here in this case the assessee had offered ₹ 2,40,000/- for the purpose of disallowance. However, the AO without examining the same has proceeded to apply rule 8D, as if it is a natural corollary to section 14A. The basic requirement the law is to examine the nature of the expenditure which can be said to attributable for the earning of the exempt income. If the assessee has incurred major expenditure for its core business, then it is incumbent upon the AO and is mandatory for him to examine the nature of expenditure and satisfy himself about the assessee’s claim as to whether any expenditure has been incurred for the purpose of earning exempt income and then he has to quantify the expenditure. Here in this case, only clause (iii) of Rule 8D has been invoked by the AO to work out the indirect expenses, without satisfying himself about the assessee’s correctness of the claim. In absence of satisfying the mandatory requirement as given in sub-section (2) of section 14A, the disallowance offered by the assessee under rule 14A cannot be tinkered with and also it appears to be reasonable looking to the overall indirect expenditure incurred by the assessee. - Decided in favour of assessee
-
2015 (3) TMI 1110
Levy of personal penalty under Rule 26 - M/s. Sadbhavana Enterprises paid the amount of duty in question along with interest and 25 per cent of duty as penalty within a period of 30 days of issuing of the show cause notice - Held that:- if against a show cause notice the main party paid duty, interest and 25 per cent duty as penalty then the proceedings initiated through the show cause notice comes to an end. - Since the main assessee has paid duty, interest and 25 per cent duty as penalty within 30 days of the issuing of the show cause notice, therefore, proceedings against the appellants also comes to an end. - Decided in favor of appellant.
-
2015 (3) TMI 1109
Rejection of the settlement application - Best Judgment assessment - Sections 7(a) and 7(c) - Held that:- Petitioner company's properties is sought to be auctioned by tomorrow. Further, it is stated by the learned counsel appearing for the petitioner that the petitioner company is already in a financial crunch. According to the Petitioner Company, the interpretation given by the respondents in respect of the Sections 7 of the Act is wrong.
Before even filing of Settlement, an applicant has to necessarily comply with the mandatory conditions laid down in the Scheme. There is no dispute in this regard. Now, the petitioner wants to take advantage of Section 7(a) alone whereas, the authorities, in the case on hand, have invoked 7(a) and 7(c) of the Act together. Therefore, he has come forward with these Writ Petitions for the relief stated earlier.
On the date of entering into the settlement enquiry, there was proceedings pending before the Assistant Commissioner, Karur. Such argument cannot be accepted for the reason that there is a provision to the effect that which shall be deemed to have been withdrawn from the date of making of application under sub-section(1) of Section 5. - There is no infirmity or illegality in the orders impunged in these Writ Petitions - Decided against Assessee.
-
2015 (3) TMI 1108
Waiver of pre deposit - levelling of soil including filling of gorges/nallah, etc - value of the goods involved is also excludible in terms of Notification No. 12/2003-ST - Held that:- The adjudicating authority further noted that the average cost of land mentioned by the appellants was inclusive of the profit of the appellants which was includible in the assessable value. Thus when the appellants failed to provide the evidence of the value of land, the adjudicating authority felt constrained not to deduct the value thereof. Similarly, it was for the appellants to provide evidence required for the benefit of notification No. 12/2003 - development of agriculture land is outside the purview of service tax, it is to be noted that service provided in relation to agriculture is excluded from the purview of Section 65(97a) ibid, but in the present case land was (being) developed for real estate and therefore it was a service provided in relation to real estate and not in relation to agriculture (even if for the sake of argument, the land is held to be agricultural land). - issues of classification and valuation also need to be analysed at the time of final hearing, we are of the view that pre-deposit of 25% of the impugned service tax liability with proportionate interest would meet the requirement of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - Partial stay granted.
-
2015 (3) TMI 1107
Demand of service tax - Research and development services - Export of service - Held that:- It is quite clear that the issue is covered by the precedent decisions of this Tribunal. Moreover in this case even though quality tests were conducted in India, only after the report is accepted by the clients abroad, service gets completed. In the case of B.A. Research India Ltd. the Tribunal had taken a view that this amounts to part performance in abroad and part performance in India and in such cases according to definition of Export of Service Rules, this has to be considered as export - Decided in favour of assessee.
-
2015 (3) TMI 1106
Transmission of electricity or distribution - Exemption under Notification No. 45/2010-ST dated 20.07.2010 till 2010 and subsequently under Notification No. 11/2010-ST dated 27.02.2010 - Held that:- There is no contrary finding that manpower supply service has not been provided to a transmission and distribution company. There is no detail available as to how the service provided by the appellants has to be treated as the one provided prior to transmission and distribution of electricity. Notification No. 45/2010 exempts all the services rendered in relation to transmission and distribution of electricity and there is no distinction made prior to commencement of transmission or distribution subsequently. It is quite clear that in this case services are provided to M/s. APCPDCL which is engaged only in transmission of electricity and therefore services provided by them have to be considered as the one provided for transmission not distribution. Under these circumstances we consider that the appellants clearly are eligible for the benefit of Notification No. 45/2010. In view of the fact that the issue involved has been considered in detail and there is nothing left to look at, it would be appropriate to allow the appeal itself at this stage rather than keeping the matter pending for years before this Tribunal. - Decided in favour of assessee.
-
2015 (3) TMI 1105
CENVAT Credit - exempted services - taxable output services provided by the appellants were written off - Telecommunication Services - Held that:- It is nobody's case that the service when it was rendered was not taxable or exempt. In fact it is not even a case that service has not been rendered. The amount that was to be received has not been received. During the relevant period service tax was payable only when the consideration was received. We agree that appellant has made out a prima facie case in their favour under the facts and circumstances discussed above. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.
-
2015 (3) TMI 1104
Denial of refund claim - export of service or not - Notification No.5/2006-CE(NT) read with Rule 5 of CENVAT Credit Rules - Accumulated CENVAT Credit - Held that:- as a result of providing of marketing and warranty support, the benefit of intermediate sales and benefit of sales goes to Sun Microsystems, Singapore and therefore it cannot be said that the service has not been exported at all. Commissioner has considered the provisions of Export of Services Rules and has held that the service has to be considered as performed in India, he has failed to take note of the fact that there is a specific provision in the Export of Services Rules providing that where a service is partly performed outside India and partly performed in India, it is considered as performed abroad. In this case, when marketing service is provided or warranty service is provided from India, the original request had gone to Sun Microsystems Singapore and or the appellant would have received the request as an agent to Sun Microsystems, Singapore and therefore it has to be held as partly performed in India and partly performed outside India. Therefore it has to be observed that appellant has rendered export of service. - Decided in favour fo assessee.
............
|
9911796707
Advanced Search 
