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Showing 361 to 380 of 1831 Records
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2017 (5) TMI 1473
Deduction u/s 80IC - filing of return of income within limit limit u/s 139 - time-limit prescribed under Section 80AC.
Held that:- Following questions are framed for determination:
“A. Whether the ITAT was correct in law to allow the deduction claimed by the assessee u/s 80 IC of the Act when the filing of return was admittedly delayed and was against the clear provision of section 80 AC of the Act which stipulates that any deduction u/s 80IC of the Act shall not be allowed if the return of income is filed after the due date as specified u/s 139 (1) and in the case of the assessee the return was filed u/s 139 (4) of the Act which is attracted in case of delayed filing of return?
B. Whether the time-limit prescribed under Section 80AC for claiming any deduction under Section 80IC i.e. on or before the due date specified under Section 139(1) of the Income Tax Act is directory or mandatory?”
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2017 (5) TMI 1472
Determination of the eligibility and qualification criteria for tender - Initial Filter-cum-Qualification Requirement Bid - eligible bidders - Held that:- The expression used in the present clause being “single entity”, understandably, it is inclusive of a private as well as a government owned entity. The unit envisaged as a single entity is thus independent of any combination or formation in the form of a J.V. or a Consortium and thus is visualised to be one integral and composite whole. In such a logical premise, a government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of clause 4.1 of the tender conditions and is to be regarded as single, coherent and homogeneous existence and not a disjointed formation.
The improvement endeavoured by the respondent in its reply affidavit is belied by the records and is unacceptable. No other view or elucidation of the relevant clauses of the tender conditions is at all possible. The interpretation offered by the respondent and endorsed by the High Court in the contextual framework is thus patently impermissible and absurd.
Not only the appellant as the record testifies had offered its responses to the clarifications sought for, its status as a government owned corporation, by no means, has been disputed by MEGA. Further, in the face of its demonstrated structural integrity and functional unity qua its subsidiaries with all consequential legal implications, the apprehension of MEGA that the subsidiary companies of the appellant, if necessity so arises, would not be available for the execution of the project, not being a party to the contract, to say the least, is speculative, unfounded, farfetched and wanting in reason and rationale. Whether the subsidiary companies of the appellant would be responsible for the execution of the work is evinced by the formational specifics and functional dynamics of the appellant and its wholly owned subsidiary companies, as noticed in Consortium of Titagarh Firema Adler SPA (supra) in the affirmative and does not call for further dilation. In the face of a forensic analysis of the decisions cited at the Bar in the above adjudication, it is inessential as well to retraverse the same.
In the wake up of above determination, the impugned disqualification of the appellant on the ground of deficiency, in experience in terms of clause 2.4, is unsustainable in law and on facts being grossly illegal, arbitrary and perverse. As a corollary, the judgment and order of the High Court in challenge is also set-aside. The tender process in view of the above conclusion, would be furthered hereinafter as per the terms and conditions thereof and in accordance with law and taken to its logical end as expeditiously as possible. We make it clear that the present adjudication is confined only to the issue of disqualification of the appellant on the ground of experience on the touchstone of clause 2.4 of the “Eligibility and Qualification Criteria” of “Tender Document” and no other aspect. The appeal is allowed. In the facts and circumstances of the case, there shall be no order as to costs.
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2017 (5) TMI 1471
Order of stay -pending suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law - Held that:- Insolvency and Bankruptcy Code, 2016 will prevail over all other law in force, including the Company Act, 1956 under which winding up proceedings have been initiated.
It appears that the aforesaid provisions have not been brought to the Hon'ble Judge of the Madras High Court. In the circumstances we give liberty to the parties to bring this fact to the notice of the Hon'ble Madras High Court, Chennai. Thereafter, the order of stay is not vacated the Appellate Tribunal will decide the case on merit.
Further as the appellant has already moved before the Hon'ble Madras High Court and have obtained an order of stay on 4' May, 2017 from the High Court, then in such circumstances the appellant will reply as to why the appeal be dismissed, the appellant having already moved before the Hon'ble High Court
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2017 (5) TMI 1470
Penalty u/s 271(1)(c) - claim of excess rate of depreciation on plant, machinery and building - deliberate intention of the assessee to furnish inaccurate particulars of income - Held that:- Held that:- ITAT in cancelling the penalty has gone through the decision in case of Commissioner of Income Tax. v. Dharamshi B. Shah [2014 (7) TMI 98 - GUJARAT HIGH COURT] wherein it was held that penalty under section 271(1)(c) could not be deleted on sole ground that assessee’s appeal in respect of addition on basis of which penalty was levied had been admitted by High Court. In the instant case, the AO has held that the assessee didn’t take into account the relevant provisions of the Act while working out the depreciation. The ld CIT(A) has given a categorical finding that the assessee had disclosed all material facts pertaining to the claim of depreciation admissible under section 32 of the Act. It is thus a case where there is difference of opinion in terms of rate of depreciation in respect of the specified assets. Thus, the subject decision of Hon’ble Gujarat High Court is distinguishable on facts as even on merits, it cannot be held that penalty is leviable in the instant case.”
We are in complete agreement with the view taken by the Tribunal - Decided against revenue
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2017 (5) TMI 1469
Refund of tax due to the assessee - Held that:- We direct the Income Tax Authorities to pay the said amount of ₹ 192.54 crores to the Custodian with interest at the rate of 18% from the date of passing of the refund order within a period of 12 weeks from today.
As made clear that this direction has been given, having regard to the peculiar facts of this case, and shall not be treated as a precedent.
The orders (Ninety) which have already been passed by the ITAT directing the Revenue to re-frame the assessment by taking into account the evidence of books of accounts should be decided by the Assessing Authority within a period of 12 weeks from today.
Sofar as the flats in question are concerned, no steps including selling of the same shall be taken until final distribution is made by the Custodian.
The Custodian is directed to disburse the said amounts to the Banks subject to the usual Affidavit-cum-Undertaking stating therein that the concerned Bank (s) shall bring back the amount or any part thereof, if so directed by the concerned Court, on such terms and conditions as may be directed.
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2017 (5) TMI 1468
Entitlment to deduction claimed under Section 11 - whether the activities of assessee cannot be said to be for"charitable purpose" within the definition of Section 2(15)? - Held that:- assessee is a statutory body Urban Development Authority constituted under the provisions of the Act, constituted to carry out the object and purpose of Town Planning Act and collects regulatory fees for the object of the Acts; no services are rendered to any particular trade, commerce or business; whatever the income is earned / received by the assessee even while selling the plots (to the extent of 15% of the total area covered under the Town Planning Scheme) is required to be used only for the purpose to carry out the object and purpose of Town Planning Act and to meet with expenditure while providing general utility service to the public such as electricity, road, drainage, water etc. and even the entire control is with State Government and even accounts are also subjected to audit and there is no element of profiteering at all, the activities of the assessee cannot be said to be in the nature of trade, commerce and business
The object and purpose for which the assessee is established / constituted under the provisions of the Gujarat Town Planning Act and collection of fees and cess is incidental to the object and purpose of the Act, even the case would not fall under second part of proviso to Section 2(15) of the Act.
Considering all we are of opinion that Tribunal has committed a grave error in holding the activities of the assessee in the nature of trade, commerce or business and consequently holding that the proviso to Section 2(15) of the Act shall be applicable and therefore, the assessee is not entitled to exemption under Section 11 of the Act. For the reasons stated above, it is held that the proviso to Section 2(15) of the Act shall not be applicable so far as assessee-AUDA is concerned and as the activities of the assessee can be said to be providing general public utility services, the assessee is entitled to exemption under Section 11 of the Act. Both the questions are therefore, answered in favour of the assessee and against the revenue.
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2017 (5) TMI 1467
Attachment of bank account - natural justice - without notice to the petitioner, without hearing him and without granting him proper opportunity, the action has been taken and the original order imposing the tax liability dated 31.3.2013 was never served on the petitioner - Held that: - petitioner was not aware on what ground tax liability has been imposed and his right to file the appeal is taken away as the limitation for filing the appeal is already over if the order was passed on 31.3.2013 - against the order dated 31.3.2013, the petitioner has a right to file an appeal before the Commissioner, Appeals, and the petitioner can very well raise all these grounds in the appeal by contending that he acquired the knowledge and got a copy of the order - questions with regard to issuance of the notice, its service and allied issues are left open to be considered by the appellate authority - petition disposed off.
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2017 (5) TMI 1466
Levy of service tax in the State of Jammu and Kashmir - Whether the respondent-Department is entitled to charge service tax in relation to services said to be rendered by Gun testing conducted by Quality Assurance Establishes (SA) Kanpur for the purposes of quality assurance?
Held that: - in the case of M/S Bumrah Gun Works and ors vs. Union of India and ors, OWP No. 1391/2010 decided on 22.11.2016, where a batch of writ petitions on the similar claim was considered by the Division Bench of this Court and disposed of by holding that in terms of Section 64 of the FA, 1994, service tax is not applicable to the State of Jammu and Kashmir. It was also held that the quality testing of guns does not attract the service tax - petition allowed - decided in favor of appellant.
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2017 (5) TMI 1465
Liability of service tax - “market fees” or “mandi shulk” - lease amount - appellant charged “market fee” for issuing licence to traders, agents, factory/cold storage owners or other buyers of other agricultural produce. The appellants also let out land and shops to traders and collected allotment fee/lease amount for such land/shop - Held that: - with the introduction of Negative List Regime of Taxation w.e.f. 1.7.2012, the appellants‟ services were excluded from the tax liability - the appellants, being an Agricultural Produce Marketing Committee, is excluded from the tax liability - Services relating to agricultural produce by way of storage or warehousing are in the negative list.
In respect of shops, premises, buildings, etc. rented/leased out for any other commercial purpose other than with reference to agricultural produce (like bank, general shop etc.), the same shall not be covered by the negative list and the appellants shall be liable to service tax.
The appellants are liable to pay service tax under the category of “renting of immovable property service” for the period upto 30.06.2012 - For the period from 1.7.2012 (Negative List Regime), the appellants are not liable to pay service tax under the said tax entry in respect of shed/shop/premises leased out to the traders/others for storage of agricultural produce in the marketing area. The Negative List will not cover the activities of renting of immovable property for other than agricultural produce - The demands, wherever raised invoking extended period, shall be restricted to the normal period - penalties set aside.
The threshold exemption available to the small scale service provider in terms of the applicable notifications during the relevant years, shall be extended to the appellant on verification of their turnover.
Appeal allowed - decided partly in favor of appellant.
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2017 (5) TMI 1464
Valuation - whether reimbursable out-of-pocket expenses has to be included in the gross value of taxable services? - Held that: - in the case of Intercontinental Consultants & Technocrats [2012 (12) TMI 150 - DELHI HIGH COURT], the Hon’ble High Court of Delhi has held in favor of the assessee thereby observing that the same need not be included in the gross value of taxable services - the appellants are not liable to pay service tax on the reimbursable out-of-pocket expenses - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1463
Refund of CENVAT - denial on the ground that the premises were not registered - Held that: - The Hon’ble High Court agreeing with the views on identical issue of law taken by the Hon’ble High Courts of Karnataka in mPortal India Wireless Solutions Pvt. Ltd. Vs. Commissioner of Service Tax, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], where it was held that Registration not compulsory for refund - appeal dismissed - decided against Revenue.
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2017 (5) TMI 1462
Valuation - it appeared to the Department that they had collected 5% of the list price over and above the value declared in the Central Excise invoice. It was alleged that the said difference thereof relating to 5% of commercial invoice was required to be allowed in the transaction value for payment in terms of section 4(3)(d) of the CEA - Held that: - the very same issue has been decided by this Tribunal in their own case [2008 (2) TMI 105 - CESTAT, CHENNAI], where it was held that discount given was a purely commercial one and admissible for deduction from the list price in determining the assessable value - appeal dismissed - decided against Revenue.
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2017 (5) TMI 1461
Refund claim - unutilised CENVAT credit - rejection of claim on the ground that amount attributable to medical policy taken for the employees is eligible for credit, however, the amount attributable to their family members is not admissible. In absence of documentary evidence with break up details, the credit as a whole on this service was held to be not admissible - Held that: - appellants have categorically declared that they are not recovering any such amount from the employees. The expenditure is borne by the appellants themselves. As such, we find that the claim of the appellant on this credit is sustainable.
An amount of ₹ 5,89,322/- was denied as credit and refund was rejected, in respect of payments made for advertising service, designing service and event management service - Held that: - the appellants have arranged and availed these various services in connection with their business activities and considering the nature of their business and output service, we hold that the credits are available on such services as they are connected to their business of rendering taxable output service.
CENVAT credit - security services provided to clients - parking area for interview and event of the appellant - outdoor catering services - rent-a-cab expanses - Held that: - Since the credit on various input services availed by the appellants were held to be eligible to them, we find that the original authority has to examine that claim for due sanction in terms of the provisions, under which the said claim was filed.
The Original Authority directed to verify the claim filed by the appellant for sanction - appeal allowed by way of remand.
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2017 (5) TMI 1460
Benefit of N/N. 12/2003-ST dated 20.06.2003 - exemption from service tax on the value of materials supplied to the client during the course of service - Held that: - the invoices categorically indicate repair and service charges and supply of material charges separately. The VAT payable and service tax payable as per the applicable rates are shown separately. In view of these factual finding, the eligibility of the appellant for concession under N/N. 12/2003 cannot be denied - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1459
Refund claim - Terminal Handling Charges - Custom House Agents service - denial on account that these are not port services - Held that: - Since the services were availed and utilized within the port for export of goods, irrespective of the classification of the services done by the service provider, the same should merit consideration has “Port Service” - refund allowed.
Banking charges - rejection on the ground that no documentary evidences were produced by the appellant, showing payment of service tax on the charges claimed by the banks - Held that: - Since the appellant submits that it has adequate documents to demonstrate payment of service tax on the bank charges, the matter should be verified by the original authority - matter on remand.
With regard to payment of service tax by utilizing the cenvat credit under reverse charge mechanism, we find that the Tribunal in the case of Kansara Modler Ltd. [2014 (1) TMI 1095 - CESTAT NEW DELHI] had held that as a recipient of service, the service tax payment can be made under reverse charge mechanism by utilizing the cenvat credit - the appellant is eligible for payment of service tax from cenvat account.
Appeal allowed - part matter decided in favor of appellant and part matter on remand.
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2017 (5) TMI 1458
Refund claim - denial on the ground that debit notes are not valid documents in terms of Rule 4A of STR, 1994 and Rule 9 of CCR, 2004 - Held that: - Rule 4A of the STR, 1994 provides the manner of distribution of credit based invoice, bill or challan by the service provider. The said statutory provision also mandates the mode and manner of preparation of such documents. No embargo has been created in the service tax statue for not allowing the refund amount claimed on the basis of debit notes issued by the service provider - the matter should go back to the original authority for verification of the debit notes to be submitted by the appellant - matter on remand.
Time limitation - refund denied on the ground that the same was not filed within 60 days from end of the relevant quarter, during which the goods were exported - Held that: - Since notification dated 06.10.2007 provides for certain conditions for claiming the exemption, the same are required to be strictly followed/ observed by the tax payer. Thus if the refund claim is filed beyond the period of 60 days, the condition of the notification has not been fulfilled. Accordingly, denial of refund on the ground of limitation by the authorities below is proper and justified.
Appeal dismissed - decided against appellant.
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2017 (5) TMI 1457
Jurisdiction of Commissioner of Service Tax, Bangalore for the purpose of payment of service tax - Held that: - the service tax has to be paid separately in the various jurisdictions where branch offices are there even though the Income Tax return is filed consolidated for the entire operations of the appellant's company - the SCN dt. 03/04/2003 and the impugned order passed thereon are not justified inasmuch as the Commissioner of Service Tax, Bangalore has the jurisdiction only to demand service tax, if not paid or short-paid within his jurisdiction. Since it is evident that the total demand of service tax to the tune of ₹ 34 lakhs also covers the service rendered within the jurisdiction of the four branch offices outside Bangalore for which separate registrations have been taken and service tax paid separately, it will be necessary to exclude such demand pertaining to outside jurisdictions.
Commissioner of Service Tax, Bangalore has no jurisdiction to make any demand of service tax in respect of consideration received for jurisdictions outside Bangalore. Consequently demands raised pertaining to outside jurisdictions are set aside and will need to be excluded - the demand has to be restricted to the normal period of limitation - appeal allowed by way of remand.
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2017 (5) TMI 1456
100% EOU - Refund claim of unutilised CENVAT credit - Held that: - it is clear that while arriving the export value, only the value final products and output services exported during the given period, has to be taken into consideration and not the value of the equipment exported. The appellant has failed to substantiate how the value of equipment exported is their final product or output services in the instant case - decided in favor of appellant.
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2017 (5) TMI 1455
Compounded Levy Scheme - manufacture of pattas/patties of Stainless Steel - The issue involved in the present appeals is that the Appendix-II challans submitted by the appellants to the Central Excise Superintendent is not actually a genuine document of duty payment - Held that: - Admittedly, it is the Department, which had certain information regarding such fraudulent activity and based on that, initiated an inquiry. I do not find that the failure of the Department to detect the forgery much earlier should extend the advantage to the appellants. The appellants cannot gain, in any manner, on the basis of a forged document. Even if it is considered, for argument sake, that the Department should have found out the fraudulent activity much earlier, I do not find that the same can be the basis for keeping the appellants totally out of picture with reference to non-payment of duty.
The fact remains that the appellants produced a fraud document claiming duty payment. The department is well within their right to proceed and recover the central excise duty, not paid to the Government.
Extended period of limitation - Held that: - since the documents have been established to be fraud or fake, obviously, the fraud was involved and that was sufficient to extend the period of limitation.
Appeal dismissed - decided against appellant.
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2017 (5) TMI 1454
Valuation - related party transaction - Whether the appellant, manufacturer of CI pipes, fittings etc. have been rightly charged or demanded duty as short paid on the allegation that they have cleared goods to related person at lower value and have undervalued the clearances as compared to other independent buyers?
Held that: - the appellant and the said firm Raj Iron Foundry, Agra are not relatives, one being a limited company registered under the Companies Act and the other being a partnership firm - So far the issue of interconnected undertakings is concerned, there is no such allegation nor any fact is on record, if the two partners of the said Raj Iron Foundry, hold directly or indirectly, not less than 50% of the shares, whether a preference or equity, of the appellant company or exercise control, directly or indirectly, whether as Director or otherwise over the body corporate, as defined under section 2(g) of Monopolies and Restrictive Trade Practices Act, 1969 as made applicable to the definition of “related persons” under the Central Excise Act - neither the allegation of related person is sustainable nor the allegation of interconnected undertakings which although have not been established or averred - appeal allowed - decided in favor of appellant.
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