|
Advanced Search Options
Case Laws
Showing 321 to 340 of 935 Records
-
2013 (6) TMI 622
Compensation charges - revenue v/s capital - CIT(A) held the charges as revenue expenditure - Held that:- The transaction entered into by the assessee, shown as payment of compensation and claimed as a revenue expenditure, cannot be said to be a mere camouflage or subterfuge designed by the assessee. The assessee had received advance amounts against the booking of plots. These amounts kept lying with the assessee for over a decade. However, the deals could not finalise and the plots remained under the ownership and possession of the assessee company only. The payment was only a part payment, which was returned by the assessee along with the proportionate interest thereon.
This payment of interest is not only payment due to the depositor, but it is also payment made as a sound business policy, lest other prospective buyers be shooed away by the factum of non-payment of interest to the earlier customers, even though the advance amounts kept lying with the assessee for years together. Since the payment was in the course of business of the assessee company, it was rightly claimed as a business expenditure. The nomenclature of the payment being not determinative of the nature thereof, it matters little that it was termed as 'compensation' which, otherwise too, it indeed is, as discussed. The payment, however, has never been shown to be sale consideration for re-purchasing the plots, as tried to be made out by the Assessing Officer. Once the plots never left the ownership and possession of the assessee, there is no question of their being re-purchased by the assessee company. CIT (A) also found the amount paid by the assessee to have been allowed to the assessee as revenue expenditure pertaining to the issue of consistency. In favour of assessee.
-
2013 (6) TMI 621
Bad debts written off disallowed - Held that:- As relying on judgment of C.I.T. vs. New Delhi Hotels Ltd. [2012 (3) TMI 325 - DELHI HIGH COURT] a sum of advance of Rs. 10 lacs which was paid by Shri Jagdish Nain was on behalf of the assessee and the payment was related and incidental to the assessee's business. The loss of the amount paid and the consequential reimbursement to Sh. Jagdish Nain was also incidental to the business of the assessee. Thus set aside the orders of the authorities below and decide the issue in favour of the assessee.
-
2013 (6) TMI 620
Labour expenses/wages disallowed in the absence of proper evidence - CIT(A) deleted the addition in part - Held that:- AO had not recorded any specific finding to reach the figure of disallowance of Rs. 3 lac, which was an ad hoc addition made, ignoring the fact that the percentage of labour wages to gross turnover had come down to 13.73% for that year (Assessment Year 2008-09) as against that of 16.99% in the earlier year. CIT (A) has restricted the addition to Rs. 1 lac which, in our considered opinion is well justified. Against revenue.
Unverifiable purchases - CIT(A) deleted the addition - Held that:- As the assessee has shown better results during the year, over those for the earlier assessment year. The gross profit has gone up to 13.10% against 12.90% in the earlier year. In view thereof, the CIT (A) cannot be said to have erred in holding the addition made on estimate basis to be unjustified. In favour of assessee.
-
2013 (6) TMI 619
Validity of assessment on a company which has been dissolved/ amalgamated - Held that:- As AO in his assessment order has noted that company had merged with M/s BS Infratech Pvt. Ltd., w.e.f. 1.4.2008. Therefore, it was very much in the knowledge of AO that the assessee was non existent. Therefore, he should have initiated the proceedings against the amalgamated company only.
Moreover, the assessee has also indicated on the acknowledgements of returns that returns are being filed under protest. The CIT (A) after relying upon a number of case laws has rightly held that the assessment order passed on the appellant company was a nullity. - Against revenue.
-
2013 (6) TMI 618
Cenvat Credit - Input Services - housekeeping services keeping he factory premises neat and clean and construction services for construction of certain office rooms in the factory premises. - Held that:- So far as “construction services” is concerned, the same undisputedly has been used for construction of office room in the factory premises. - the definition of input service specifically covers the services used in relation to setting up, modernization, renovation or repairs of a factory, premises. Thus the construction service used for construction of office rooms of the appellant’s factory was specifically covered by the definition of input service during the period in dispute. - Decided in favor of assessee.
As regards the housekeeping service, the same undisputedly has been used for keeping the factory premises neat and clean which is a statutory requirement of Section 11 of the Factories Act, 1948. In view of this, the service have to be treated as services used by the manufacturer in or in relation to the manufacture of final product as without compliance with provision of the Factories Act, manufacturing operations are not possible. - Credit allowed. - Decided in favor of assessee.
-
2013 (6) TMI 617
Cenvat Credit - Input Services - The services are certification of the factory work, payment made to advocates for legal services related to manufacturing activities, repair and maintenance of the factory, audit and accounting of the factory, packaging services for export purposes, advertisement expenses, quality upgradation and so on. - Held that:- From the submissions made by the appellant, the services on which credit has been availed relate to audit and accounting services, repair and maintenance services, packaging service, legal services etc. All these services have nexus and are integrally connected with the business of manufacturing and therefore, they are all eligible input service as defined in Rule 2(l) of the CENVAT Credit Rules, 2004. The decision of the Honble High Court of Bombay in the case of Ultratech Cement Ltd. (2010 (10) TMI 13 - BOMBAY HIGH COURT) applies to the facts of this case. - Credit allowed.
-
2013 (6) TMI 616
Cenvat Credit - Input Services - commission agent service - nexus with manufacturing - Held that:- Hon’ble Punjab and Haryana High Court in the case of C.C.E, Ludhiana vs. Ambika Overseas [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT] held that the assessee a manufacturer is entitled to the credit of services provided by the Overseas Commission Agent for canvassing and procuring the order as these activities are sale promotion. Revenue relied upon the decision of the Tribunal whereby the Tribunal after relying upon the decision in the case of Maruti Suzuki Ltd. [2009 (8) TMI 14 - SUPREME COURT] held in favour of Revenue. The Hon’ble Supreme Court in the case of Ramala Sahakari Chini Mills Ltd. vs. C.C.E., Meerut I (2010 (11) TMI 34 - SUPREME COURT OF INDIA) referred the matter to Larger Bench for decision on the issue. In these circumstances, and in view of the Hon’ble P & H High Court in the case of Ambika Overseas (2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT) which is specific on the issue, therefore, I find that the impugned order is not sustainable and the same is set aside. - Decided in favor of assessee.
-
2013 (6) TMI 615
Cenvat Credit - welding electrodes - Held that:- . Though the Honble Andhra Pradesh in the case of Sree Rayalaseema Hi-strength Hypo Ltd. (2012 (11) TMI 255 - ANDHRA PRADESH HIGH COURT) has taken a contrary view observing that the repair and maintenance is an activity distinct from manufacture and inputs used for repair and maintenance of plant and machinery would not be eligible for cenvat credit, the other High Courts have, as mentioned above, have held that welding electrodes used for repair and maintenance of the plant and machinery would be eligible for cenvat credit.
Honble Rajasthan High Court in the case of Hindustan Zinc Ltd. Vs. Union of India [2006 (5) TMI 44 - HIGH COURT RAJASTHAN] in which it was held that steel items used for repair and maintenance would be eligible for cenvat credit, has been upheld by the Apex Court as civil appeal filed by the Government against this judgement of Honble Rajasthan High Court had been dismissed. Besides this, Honble this Honble Chhattisgarh High Court in the case of Ambuja Cement Eastern Ltd. (2010 (4) TMI 429 - CHHAITISGARH HIGH COURT) has also discussed the judgement of the Tribunal in the case of Steel Authority of India Ltd.Vs. CCE and Apex Courts order dismissing the SLP appeal against the same and has observed that the Tribunals judgement is not correct and that the dismissal of SLP without giving any reasons does not lay down any law. - Credit allowed.
-
2013 (6) TMI 614
Recovery - circular dated 1.3.2013 - Held that:- Having regard to the identicalness of the challenge made in the instant writ petition, we deem it expedient to close this matter by giving liberty to the petitioner to lay before the authority concerned a copy of the judgment and order [2013 (4) TMI 102 - RAJASTHAN HIGH COURT] for the needful.
-
2013 (6) TMI 613
Condonation of delay - The reason given is that the appellant being a Division of Indian Railways, they had to forward the papers to their Headquarters for review, clearance etc. and hence, the delay. The appellant also pleads that the appellant being a Govt. department, the matter be considered leniently in view - Held that:- The Hon'ble Supreme Court in the case of Chief Post Master General vs. Living Media India Ltd. - [2012 (4) TMI 341 - SUPREME COURT OF INDIA] held that COD application by Govt. dept. cannot be done mechanically merely because the Govt. or its want was party before the Court and in absence of plausible and acceptable explanation, government cannot plead that there was no gross negligence or deliberate inaction or lack of bona fide , and liberal construction has to be adopted to advance substantial justice.
The argument advanced for the delay is purely bureaucratic red-tape which is not satisfactory to this Bench. - application for condonation of delay dismissed.
-
2013 (6) TMI 612
Classification - sensur Rubefacient & Herbyl Skin Ointment - under 3003.39 of CETA 1985 as Ayurvedic Medicine claimed by the appellant or under 3003.10 of the CETA 1985 as P. or P Medicines (other than Ayrvedic Medicines) as claimed by the Revenue. - Held that:- The nature of the product and how it is perceived by the buyers is also required to be gone into for proper appreciation of the issue. As these details are required to be gone into at the time of regular hearing, we are of the opinion that appellant has not made out a prima facia case for complete waiver and are required to be put to certain conditions. Appellants directed to deposit an amount of Rs. 25 lakh - stay granted partly.
-
2013 (6) TMI 611
Cenvat credit - CR Coils - revenue authority are holding that this activity of slitting of CR Coils does not amount to manufacture and have denied the Cenvat credit availed by the appellant. - Held that:- the order of this tribunal in the case of Ajinkya Enterprises (2013 (6) TMI 610 - CESTAT MUMBAI) is squarely on the issue, which has been upheld by the Hon'ble High Court of Bombay [2012 (7) TMI 141 - BOMBAY HIGH COURT] as has been correctly pointed out by the learned counsel. - a strong prima facie case for the waiver of the pre-deposit of the amounts involved. - stay granted.
-
2013 (6) TMI 610
Cenvat credit - CR Coils - revenue denied the credit on the ground that credit of Cenvat was not admissible since the activity of de-coiling of HR/CR coils and cutting & slitting thereof into specific sizes as per the design of M/s. Twin Metal Products Pvt. Ltd. (SEZ Unit) and carrying out pickling and oiling did not amount to manufacture. - Held that:- in the case in hand before us, the appellants were undertaking composite activity of de-coiling of HR/CR coils thereafter cutting and slitting into specific sizes and after that pickling and oiling taken place, which was clarified by the department only on 24-6-2010 saying that the said activity does not amount to manufacture. Therefore, following instructions issued through Circular No. 911/1/2010-CX., dated 14-1-2010, the appellants approached to the Commissioner for issuance of appropriate rectification for regularization of the CENVAT credit availed as their activity does not amount to manufacture and they have paid duty on clearance of the goods more than the credit availed. The Commissioner has also considered the representation of the appellant and forwarded to the Board for issuance of the required notification. The Board has neither rejected the proposal of the Commissioner, nor issued the notification for regularization of credit availed. In that situation, we are of the view that the benefit of the Circular No. 911/1/2010-CX., dated 14-1-2010 is available to the appellants.
As per Rule 3(5) of the Cenvat Credit Rules, 2004, if the activity in question of the appellants does not amount to manufacture, the appellants are required to pay duty equal to credit taken on clearance of such inputs under cover of Central Excise invoices. As in this case, the activity of the appellants does not amount to manufacture, therefore, these inputs are cleared as such. In that event, as per Rule 3(5) of Cenvat Credit Rules, 2004 the appellants are required to pay duty equal to the credit taken thereon and the appellants have paid duty more than the credit availed.
The duty paid by the appellants has been accepted by the department which is admittedly more than the CENVAT credit availed by the appellants. Therefore, we hold that the appellants are not required to reverse the credit. - Credit allowed - Decided in favor of assessee.
-
2013 (6) TMI 609
Filing of appeal before Commissioner (Appeals) - time limit - section 85 - Held that:- it is clear, Section 85 provides that any person aggrieved by any decision or order passed by an adjudicating authority can prefer an appeal within three months. Thereafter, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from preferring the appeal, the Commissioner can allow the appeal to be preferred within further period of three months and not beyond that.
In the present case, the appeal has been preferred on 05.10.2009. The order has been passed by the adjudicating authority on 27.01.2009. Copy of the order has been received by the appellant’s son who was the Managing Partner on 07.02.2009. Appellant’s son has died on 23.06.2009. There was enough time to prefer the appeal. The appellant’s son has participated in the proceedings as the Managing Partner of the firm. The knowledge can be attributed to the appellant also who is a partner. Therefore, it cannot be said the appellant was not aware of the order.
Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred by time. The appellate Tribunal has rightly confirmed it. - Decided against the assessee.
-
2013 (6) TMI 608
Renting of immovable property - levy of service tax - dispute between landlord and tenant - tenant refused to pay as per the terms of contract - Held that:- it is apparent that the first defence taken in the preliminary objection No.1 that the tenant was not liable to pay service tax is a defence prohibited by law inasmuch as service tax on commercial rented properties is an indirect tax and the jurisprudence on indirect tax tells us that the primary liability of the landlord to pay the tax to the Income Tax Authorities can be passed on to the tenant, for the reason as per the law it is the commercial use by the tenant which enhances the utility to the tenant with respect to the property which attracts service tax on commercial properties.
Section 108 of the Transfer of Property Act, 1882 enlists the rights and liabilities of the lessor and the lessee. Suffice would it be to state that clause (l) thereof, casts a legal duty on the lessee to pay or tender the agreed rent at the proper time and proper place. Thus, notwithstanding there being or there not being a term in the lease deed, it certainly would be the duty of every tenant to pay the rent to the landlord as per the agreement. - Decided against the tenant.
-
2013 (6) TMI 607
Classification - Supply of cabs - Rent-a-Cab service - It is the contention of the advocate that they did not own the vehicle; that they had hired the same from other vehicle owners and supplied the vehicles to M/s. Mahindra & Mahindra as per the contract. The activity undertaken by them cannot be considered as ‘Rent-a-Cab Service' inasmuch s they have not undertaken any renting. - Held that:- the agreement was for the purpose of supply of vehicles of required specifications. The taxable service means any service provided to any person by a ‘rent-a-cab scheme operator in relation to renting of a cab and the terms rent a cab scheme operator means any person engaged in the business of renting cabs, and the cabs includes both motor cabs, maxi cabs, as defined in the Motor Vehicles Act, 1988. There is no dispute of the fact that the vehicle supplied by the appellant satisfied this criterion.
There is no stipulation either in the Act or in the Rules that the person renting the cabs should also own the vehicles. So long as the person rents a cab either owned by him or cabs procured from elsewhere, the liability to pay service tax would arise and, therefore, the activity underta
Regarding extended period of limitation - Held that:- the show cause notice has been issued within the time-limit specified and the demand is not time-barred. Since the appellant did not file any returns they are rightly liable to penalty under Section 77 and we uphold the same. As regards the imposed under Section 76 the said penalty is attracted for failure to pay service tax by the due dates and there is no mens rea required to impose penalty under the said Section. Therefore, imposition of penalty under Section 76 is also sustainable in law. - Decided against the assessee.
-
2013 (6) TMI 606
Cenvat Credit - Input services - export of goods - CHA service - rent-a-cab service - Held that:- So far as the CHA services are concerned, to the extent the same have been used for clearance of imported goods used by the appellant for manufacture the same without any doubt, would be covered by the definition of 'input service' and would be eligible for cenvat credit.
As regards the rent a cab services, the same would be eligible for cenvat credit if rent a cab services had been used by the employees of appellant company for the company's work. The Tribunal in the case of Commissioner of Central Excise, Raipur Vs. Beekay Engg. & Castings Ltd. [2009 (6) TMI 96 - CESTAT, NEW DELHI], Dr. Reddy's Lab Ltd. Vs. Commissioner of Central Excise, Hyderabad, [2009 (9) TMI 287 - CESTAT, BANGALORE] and Commissioner of Central Excise, Vishakhapatnam Vs. Andhra Pradesh Paper Mills Ltd. [2010 (2) TMI 532 - CESTAT, BANGALORE] has held that when rent a cab services is availed by the officials of company for company's work the same would be eligible for cenvat credit.
However the crucial question in this case is as to whether the services, in question, were used for the company's work. Though on this point the appellant from the very beginning, have pleaded that this fact is verifiable from the invoices, the lower authorities have not given any finding on this point. Accordingly on this point the matter requires to be remanded. - Decided in favor of assessee.
-
2013 (6) TMI 605
Cenvat Credit - "input service" credit on telephone services which are installed at the residence of the officials - Held that:- the telephones installed at the residences of the officials which are integrally connected with the business of the manufacture of final product of the appellant and the same is covered under Rule 2(l) of the CCR - Credit allowed.
-
2013 (6) TMI 604
Reassessment proceedings - entry tax assessment - under the 'Gas Sale Contract', the GAIL was supplying gas to the buyers. The gas was measured by the equipments installed at the gas measuring station maintained by GAIL at the buyer's premises. The GAIL alleges that the security of the meter installed at the premises of the buyers is exclusive responsibility of the buyer concerned. If the meter was found tampered, the gas drawn beyond the metered quantity can be treated as unauthorised extraction. - The GAIL is aware of the quantities of the gas, which is alleged to be stolen by the buyers, and has raised the invoices. It is not denied that the gas was drawn, and will thus be treated to be supplied, even if the extraction was unauthorised. - The price was not paid as the quantity of the supply was not admitted.
Held that:- the dishonest extraction of the gas by tampering the meter, of the unmeasured supply would not prima facie fall within the definition of theft as the consent of GAIL, in supply of gas was not absent. The unauthorised extraction of gas by tampering with the meter would at best amount to criminal breach of trust. The raising of bills for supply of such unmeasured quantity of gas by tampering of meter will amount to the consent for such supply, under the contract.
Additional Commissioner has not erred in law in extending the limitation for making re-assessment of the assessment years 2004-05 and 2005-06. He has given sufficient reasons supported with the grounds of his belief, that the turnover had escaped assessment on the material furnished by the assessing authority. The Deputy Commissioner, Commercial Tax has also not committed any error of law in issuing notice for re-assessment, for which he has given sufficient grounds after considering the reply given by the petitioner. - Decided against the assessee.
-
2013 (6) TMI 603
Refund claim - appellants paid the export cess by mistake and Revenue accepted the same, without any objection - Held that:- It seems to be a case of payment of export cess under a mistake. Neither the appellant was aware of the exemption of the same or the Revenue adviced him not to pay the cess. The decision of Aman Medical Products Ltd. vs. CC, Delhi (2009 (9) TMI 41 - DELHI HIGH COURT) wherein held that when there is no list between the assessee and the Revenue, non-filing of any appeal against the assessment order cannot act fatal to the assessee’s claim of refund.
By applying the ratio of the above decision to the facts of the present case, there was no list between the appellant and the Revenue and it was a simple case of payment of export cess on a mistaken belief, which was also not rectified by the Revenue. Revenue’s appeal is accordingly rejected.
............
|
9911796707
Advanced Search 
