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Showing 361 to 380 of 1817 Records
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2013 (11) TMI 1459
Utilization of Services – Waiver of Pre-deposit - Whether the services have been used in or in relation to the manufacture of their finished goods at their factory or otherwise – Held that:- The burden lies on the Assessee to maintain proper records - Prima facie, the Applicant have failed to discharge the burden - the Applicant had not registered themselves as an ‘input service distributor’ – Thus, Prima facie, it is difficult to extend the CENVAT Credit of input service invoices in the name of their Branch Office – Relying upon B.S.N.L. vs. CCE, Jamshedpur [2013 (11) TMI 1261 - CESTAT KOLKATA] - the Applicant have failed to make out a prima facie case in their favour for total waiver of dues – Applicant directed to deposit 10% of the CENVAT Credit as pre-deposit – upon such submission rest of the duty to be waived till the disposal – Partial stay granted.
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2013 (11) TMI 1458
Demand of service tax - Business Auxilliary service - Manpower Recruitment or Supply Agency - Intellectual Property- Held that:- petitioner received royalty from the newspaper - Business Standard for publishing the petitioner’s journal ‘Indian Management’. The petitioner had already remitted 10% of the value received under this head towards service tax, under the category ‘intellectual property service’- Prima facie that the conclusion as to the petitioner having provided Business Auxiliary Service is both erroneous and inadequately reasoned in the adjudication order; substantial amount of service tax has been paid in so far as intellectual property service is concerned; and in respect of Manpower Recruitment or Agency Service, service tax was remitted by the petitioner under a different category, of Management and Consultancy service. We do not find a strong prima facie case in so far as intellectual property service is concerned - Assessee directed to make a pre deposit - Partial stay granted.
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2013 (11) TMI 1457
Waiver of penalty u/s 80 - Penalty under section 76 & 78 - Construction of residential complex services - Assessee neither got registered with the department under the Service Tax Act nor filed any returns to the department - Commissioner (Appeals) after invoking section 80 dropped the penalty as the appellant had contended the existence of bonafide belief that service tax would be applicable only when actual sale was effected - Held that:- amendment was effective from 1.7.2010. Visit to the factory by the officers was on 16.8.2011. It was found that the Respondent had already started booking of flats w.e.f.August, 2010. Law was already on the statute book. Therefore everyone was expected to know the law. Question of existence of bonafide belief as provided under section 80 of the Finance Act, 1994 does not come to their rescue. If registration was taken on their own and service tax would have been deposited thereon even at the time of booking of flats, question of bonafide belief would have come into play. There is nothing on record to show that they have made any effort to know about liability of service tax or approached department for any clarification. It was only after visit of the departmental officers, appellants got themselves registered - penalty reduced to equal to fifty percent of service tax due as provided under the first proviso to section 78 - Decided partly in favour of Revenue.
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2013 (11) TMI 1456
Demand of service tax - Availment of CENVAT Credit - Beneft of Notification No. 30/2004-CE & 29/2004-CE both dt. 09/07/2004 - Business auxiliary services - Cross utilisation of credit on inputs and input services by the same manufacturer - Whether the appellant is doing both the activities of manufacturing dutiable goods and providing dutiable services - Held that:- after reversal of credit of inputs lying in the appellants factory premises on 01.07.2007 there was still unutilised credit in appellant’s cenvat credit account. Which can be on account of cenvat credit accumulated and lying with the appellant with respect to capital goods received by the appellant
Once appellant is undertaking the activity of manufacturing of excisable goods and clearing a part of it on payment of duty and also paying service tax on the service rendered by the appellant the cenvat credit lying in the cenvat credit account can be utilised for payment of both the Central Excise duty and the service tax liability as Rule 3(1) & 4 of the Cenvat Credit Rules clearly prescribes that cenvat credit taken by the appellant can be used for payment of tax for any service - Decided in favour of assessee.
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2013 (11) TMI 1455
Demand of service tax - Goods Transport Agency (GTA) service - Denail of abatement under Notification No. 32/2004-ST dated 3.12.2004 and No.1/2006-ST dated 1.3.2006 - Held that:- CBEC vide Circular dated 27.7.2005 clarified that a declaration by the GTA in the consignment note issued, may suffice for the purpose of availment of abatement by the person liable to pay service tax - declaration by the G.T.A. on the consignment note is not in mandatory terms, and is to the effect that such declaration by the G.T.A. on the consignment note may suffice. In other words, it is open to the discretion of the learned authorities under the Act to consider other mode and manner of evidence to consider the claims of the benefit of abatement. Sample copies of the certificates issued by the G.T.A., which were furnished before the learned Adjudicating Officer while claiming refund, are on record, and appears to the effect that such abatement had not been claimed by G.T.A. We are of the view that the same had adequate evidentiary value in a situation of confusion created by the authorities by issuance of the redundant circular dated 30-3-2005 - Following decision of CCE, Patna Vs. H.T. Media [2011 (4) TMI 172 - Patna High Court] - It is appropriate that the matter should be remanded to the Commissioner (Appeals) to decide the appeal on merit - Decided in favour of assessee.
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2013 (11) TMI 1454
Demand of service tax - Business Auxiliary Service - Grinding of wheat into wheat products - Manufacture under Section 2(f) - Held that:- Commissioner of Customs & Central Excise Coimbatore Zone as well as Director (CX.1), of Ministry of Finance, Department of Revenue had a view that conversion of ‘wheat’ into ‘wheat products’ like maida, suji etc., amounts to manufacture. It is noticed that the demand of service for the subsequent period was set aside by the Commissioner (Appeals), Madurai. Hence, the demand of tax under the service tax, prima facie, is not sustainable. Accordingly, the pre-deposit of tax along with interest and penalty is waived till the disposal of the appeal - Stay granted.
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2013 (11) TMI 1453
Service tax on computer software - Notification No.20/2003-ST - Maintenance of computers, computer systems or computer peripherals - Held that:- Notification No.20/2003-ST provided exemption for maintenance of computers, computer systems or computer peripherals. Computer software was not exempted by the said notification. So its withdrawal cannot result in levy of service tax on computer software as argued by Revenue - explanation appearing under the meaning of the term management, maintenance or repair defined by Section 65(105) (zzg) of Finance Act, 1994 specifies that goods includes computer software. The explanation operates like a charging provision from 1-6-2007 incorporated into law by Finance Act, 2007 - appellants shall not be brought to the ambit of tax for the period 9-7-2004 to 30-9-2005 when the explanation was inserted to the above section w.e.f. 1-6-2007 by Finance Act of 2007 - Following decision of VGL Softtech Ltd. Vs Commissioner of Central Excise, Jaipur [2013 (11) TMI 1462 - CESTAT NEW DELHI] - Decided in favor of assessee.
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2013 (11) TMI 1452
Demand of service tax - Classification of service - Service tax not paid in respect of contract dated 21.12.2003 under Site Formation, Clearance, Excavation, Earthmoving and Demolition services under Section 65(97a) - Excavation, Earthmoving and Demolition services - Held that:- activity undertaken by the appellants is excavation and removal of O/B waste and mining of ore. We also note that there is only one contract with the appellants showing the scope of work as excavation and removal of O/B waste and mining of ore. This activity starts from excavation and ends at mining of ore. We find that this is a composite activity and cannot be split into two separate parts for levy of service tax - removal of over burden and excavation of ore is undertaken for mining of ores only and activity does not fall under Site Formation and Excavation and Earth moving and Demolition service - Decided in favour of assessee.
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2013 (11) TMI 1451
Validity of assessment u/s 263 – Held that:- The Assessing Officer did not make proper enquiry which was expected from him considering the facts of the case - He has simply examined the cash deposit in the books of account without examining any aspect of manufacturing and trading account - The order of the learned CIT is upheld to the extent that the assessment order passed by AO is erroneous and prejudicial to the interest of the Revenue.
Suppression of sales – Held that:- The CIT did not properly consider the assessee's written submission - No defects have been pointed out by the CIT in the regular books of account maintained by the assessee - Unless the defect is pointed out and books of account are rejected, there is no question of estimation of any production and sales – The issue is restored for fresh decision.
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2013 (11) TMI 1450
Interest on enhanced compensation - Held that:- Following CIT v. Ghanshyam HUF [2009 (7) TMI 12 - SUPREME COURT] - Interest u/s 34 is interest and is not part of compensation - Following Rama Bai v. CIT [1989 (11) TMI 2 - SUPREME Court] - The interest accrued to the assessee has to be spread over on an annual basis right from the date of delivery of possession till the date of the order of the Court on time basis - Decided against Revenue.
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2013 (11) TMI 1449
Reopening u/s 147 where assessment subsequent to issuance of intimation u/s 143(1) - Held that:- The AO reopened the cases on the basis of documents attached with the return of income - There was no other material from which the Assessing Officer had arrived at the conclusion that income of the assessee had escaped assessment - Following CIT v. Orient Craft Ltd. [2013 (1) TMI 177 - DELHI HIGH COURT] - Reopening in the cases processed u/s 143(1) is not permissible if there is no tangible material which came to the possession of Assessing Officer subsequent to issue of intimation u/s 143(1) - The Assessing Officer reached the belief that there was escapement of income "on going through the return of income" filed by the assessee after accepting the return under Section 143(1) without scrutiny - This is nothing but a review of the earlier proceedings and an abuse of power by the Assessing Officer - The reopening u/s 147/148 was not justified as Assessing Officer had no other documents/information other than the annexure attached with the return of income and therefore though returns were processed u/s 143(1) the reopening has been done on the change of opinion which is not permitted under the law - The reopening has been held to be not legal and assessment order has been quashed - Decided in favour of assessee.
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2013 (11) TMI 1448
Assessee aggrieved - appeal before tribunal - whether a partner can be aggrieved person for an order against the Partnership Firm - Held that:- The aggrieved assessee is one who is liable to pay tax in terms of the order against which the appeal is preferred - The CIT (A) has held that the UK firm – PONP is taxable in India and the share of profits of the appellant is exempt from income under Section 10(2A) - Once the partnership firm is taxable in India then the appellant's would become liable to pay tax under Section 188A - When an assessment order is passed in respect of the partnership firm, partners would be liable to pay tax not paid by the partnership firm by virtue of the order of CIT(A) - Decided in favour of assessee.
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2013 (11) TMI 1447
Re-assessment u/s 147 - Held that:- The reasons to believe recorded refer to the information which was provided and made available to the assessing officer - If the assessee wanted to challenge and question that the information received from the Directorate of Income Tax vide letter dated 2.3.2006 as not specific or vague, such plea or contention should have been raised before the Tribunal. The nature and character, what was contained and formed part of the information is primarily factual - The assessee has not raised this aspect before Tribunal - The AO had received specific information from the specialized wing of the Department, DIT(Inv) - The nature of information was specific - Decided against assessee.
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2013 (11) TMI 1446
Validity of assessment order - the assessee has passed away - legal representatives - Held that:- The presence of son of assessee in assessment proceedings cannot raise an inference that he represented the entire estate with consent of other legal representatives, as to acquiesce in the assessment proceedings - The estate of the assessee was represented by fore legal heirs - Decided against Revenue.
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2013 (11) TMI 1444
Revision u/s 263 on the ground that Proper enquiry not conducted by the AO - Held that:- The order of the AO shows that he has verified various details and documents produced before him and have also verified books of account - The Assessing Officer has not only taken into account all the details, but also granted disallowance and addition wherever he found that the same are required to be given - The Tribunal have recorded this fact in his order - Following Rajesh Goel and Sons v. C.I.T. [2008 (12) TMI 430 - ITAT AGRA] - Decided against Revenue.
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2013 (11) TMI 1443
Depreciation - Held that:- Following assessee's own case - Depreciation is allowed on all the trucks as the trucks were given to hirers on the same date when they were purchased and taken delivery - Decided against Revenue.
Hiring receipts - Held that:- The assessee is liable to tax only in respect of the income part. The assessee has rightly shown 50% of the amount received as assessee has received 50% towards purchase price and 50% towards lease income - Decided against Revenue.
Unexplained cash credit - Held that:- The assessee has not taken any deposits from the said 5 parties but has made repayment of deposits taking in the earlier years - The repayment was made by cheques - The repayment cannot be said to be unaccounted payment on the part of the firm - In the absence of any contrary material brought on record by the revenue against the aforesaid finding of the learned CIT(A) - Decided against Revenue.
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2013 (11) TMI 1442
Income of minor - additions u/s 69 - Held that:- The children filed returns under Amnesty Scheme, which had been accepted by the Assessing Officer, treating their separate income as such this amount was not liable to be added in the income of the assessee - Decided against Revenue.
Cash found during search - Held that:- The statement of independemt witnesses were taken on record - They had sold their agricultural land and received sale consideration which was lying with them in their house - They advanced money to the assessee as they wanted to purchase the land of the assessee - The sale deeds executed by the witnesses were also brought on record - It was proved that money was received by them - These witnesses were cross examined by the Revenue - Decided against Revenue.
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2013 (11) TMI 1441
Interest on amount in P.D. account – Held that:- The amount adjusted was lying in P.D. Account of Commissioner of Income Tax (Appeals), Jaipur - There is statutory provisions that interest shall be payable on such amount then that cannot be ignored on the ground that it will cast an extra burden of the Government - There is nothing on record to suggest that the petitioner was responsible for unreasonable delay. On the other hand seizure of the money of the petitioner was held as illegal as such he was illegally harassed and his money was blocked for his no fault as such statutory liability for payment of interest of the Revenue cannot be absolved on the so called extra burden - The respondents are directed to pay the interest on the remaining amount u/s 244A of the Income Tax Act, 1961 to the petitioner – Decided in favour of petitioner.
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2013 (11) TMI 1440
Sale of shares – Capital gain or business income – Held that:- Following Commissioner of Income Tax, Kanpur vs. Shri Atul Kanodia [2010 (10) TMI 109 - ALLAHABAD HIGH COURT] - CIT(A) directed the AO to treat the profit on sale of shares as capital gain instead of income from business as assessed by the Assessing Officer - No dispute that shares had been held by the assessee for long time and were shown in the balance sheet separately as investments - Income is capital gains – Decided against Revenue.
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2013 (11) TMI 1439
Condonation of delay – Held that:- The Tribunal in the case of another group company, namely, M/s Kamakhya Fresh Foods Ltd., Ghazipur had condoned the delay on the ground of illness of very same Director Sri S.K.Rai - It was not proper for the Tribunal to decline condonation of delay in the similar facts and circumstances of the present case – Following Bharat Auto Center, Lanka,Ghazipur Versus Commissioner of Income Tax, Varanasi and another [2005 (7) TMI 46 - ALLAHABAD High Court] - The delay in filing the appeal was condoned considering the same to be sufficient – Decided in favour of assessee.
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