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Case Laws
Showing 381 to 400 of 1558 Records
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2017 (2) TMI 1180
Revision u/s 263 - capital gain account shown by the assessee is actually saving bank account and the assessee could not have deposited the amount in a savings bank account - Held that:- This proposition of the ld. Principal CIT is incorrect as per the Capitals Gains Accounts Scheme 1988 vide Notification No. G.S.R. 724 (E), dated 22nd June, 1988. Thus it is clear that the deposit shall be in the form of savings deposit, therefore, the proposition of the ld. Principal CIT do not test the CBDT notification.
No proof of payment made for acquiring land is on records - Held that:- Though the expenses relate to the construction of a house property. In our considered opinion to claim the exemption u/s.54 of the Act, the assessee has to construct a house property within the stipulated period of time. Obviously, the purchase of land will be either antecedent to the construction or simultaneous to the construction. In any case, the purchases of land do not entitle the assessee for the exemption u/s. 54 of the Act. Therefore, we fail to understand when the land was purchased earlier to the start of construction how this can trigger the provisions of Section 263 of the Act.
No merit in the order of the ld. Principal CIT made u/s. 263 - Decided in favour of assessee
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2017 (2) TMI 1179
Unexplained cash deposit in the bank account - Held that:- In the present case there is no doubt about the identity of the person who has given a gift of ₹ 1720000/– to the assessee but the creditworthiness of the mother of the assessee and genuineness of the transaction is not established by the assessee. Furthermore, as per the statement of the assessee. Thus, total sale price of the jewellery allegedly sold by his mother for assessment year 2007 – 08 is ₹ 17,20,000/- then neither the Ld. CIT appeal nor the assessing officer has examined the wealth tax aspect in the hands of the mother of the assessee. This is also required to be examined specifically with respect to the fact that assessee is a salaried employee and drawing a meager salary of ₹ 110000/-and has entered into a transaction of depositing and withdrawal in cash from his bank account and receiving used gift from his mother.
Moreover with respect to deposit of cash in the bank account out of withdrawal in cash in past, in absence of verification of cash book along with reasons of withdrawal and holding cash on hand in the hands of salaried person, these facts are required to be brought on record. Thus in the interest of justice we set aside the order of the Ld. CIT appeal and restore the matter back to the file of the Ld. assessing officer to examine the cash deposited by the assessee by withdrawing in cash with the cash book with reasons for such huge withdrawal and deposits and also the fact of sale of gold by the mother of the assessee to the private parties by examining those private parties with respect to the date of sale, quantity of gold sold, rates at which it is sold as well as the fact of cash payment made by them.
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2017 (2) TMI 1178
Addition u/s 14A - Held that:- The assessee has made a disallowance on its own by filing return of income in response to notice under section 148 of the act of a sum of ₹ 2 Lacs. The Ld. assessing officer has not recorded any satisfaction that how the estimate made by assessee is incorrect. In view of this we also disapprove the action of the Ld. assessing officer that without recording any satisfaction about the correctness of the claim of the assessee he has straightway proceeded to apply rule 8D of the income tax rules 1962 which is a mandatory requirement. On that count also appeal of the revenue fails.
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2017 (2) TMI 1177
Valuation - Benefits of N/N. 15/2004-S.T., dated 10-9-2004 - denial of benefits on the ground that the appellants have not included the value of the pipes and other materials provided by the service recipient - Apex Court admitted the appeal against the decision of the tribunal (2015 (9) TMI 1533 - CESTAT AHMEDABAD) after condoning the delay
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2017 (2) TMI 1176
Classification of service - Business Auxiliary Service or not? - Customer Care Services (inclusive of pantry, maintenance, security, housekeeping, hospitality, etc) to the occupants of the premises on behalf of their client, IHC - Sharing of revenue and expenses - The Gross Operating Receipt (GOR) obtained from the facilities are to be shared between the contracting parties viz. the appellant and IHC, in a fixed percentage - agreement lists out expenses to be reimbursed by IHC subject to a ceiling of 10% of GOR.
Held that: - such arrangement is not liable to service tax under BAS. The overall scope of the agreement indicates that it is not for rendering of service by one to another. Rather a common pool of resources required for running and maintaining the facilities of IHC successfully was attempted in terms of the agreement and the gross revenue is also shared showing the common intent. For such situation, we do not find a service provider service recipient relationship liable to service tax.
Looking at it in another angle, it can be seen that even if there is promotion of business of facilities of IHC, as already noted, the increased income is always shared by both the parties. In such situation, it will involve self service also. Admittedly, any promotion or marketing of IHC facilities will directly benefit the appellant as GOR is shared.
Mandap keeper service - benefit of abatement - Held that: - the appellant is eligible for abated rate of duty as they have reversed the cenvat credit availed during the material time, fully. As such, the bar on claiming on such exemption is no more applicable.
Appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1175
Cargo handling services - Held that: - The nature of work indicates that the cargo is to be unloaded from the truck or loaded into the truck for inward or outward movement apart from bags to be handled for internal movement, stacking and storage. Such nature of work is covered by the tax entry cargo handling service - the scope of the work as listed in the schedule to the agreement brings it within the ambit of cargo handling service - appeal dismissed - decided against appellant.
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2017 (2) TMI 1174
Printing and preparation of flex boards and subsequent delivery and mounting it in the required premises - whether the activity amounts to taxable activity under the category of advertising agency service or not? - Held that: - printing of flex boards based on the contents supplied by the customer will not be covered by the scope of advertising agency service - the respondent at no stage is involved with work of conceptualizing, visualizing and creating advertisement which is essential and basic ingredient to cover the activity under advertising agency service for tax liability - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1173
Services of site formation for the coal mines - whether fall within the category of site formation category or mining services? - Held that: - the appellants are involved in services of site formation for the coal mines of South Eastern Coal Fields Ltd. - the appellants do not have work order for any mining of coal. The terms of the contract are clear to the effect that they make the site fit and ready for coal mining. Coal extraction is not the work given to the appellant - service tax with interest upheld.
Penalty - Held that: - non-payment of service tax in time is due to the fact that service recipient not paying the amount as per contractual arrangement with large number of such contractors - the appellant took up the matter with the service recipient, along with various other contractors involved in same type of work, regarding service tax liability - it is fit case in revoking provisions of Section 80 for waiver of penalties imposed on the appellant - penalties waived.
Appeal allowed - decided partly in favor of assessee.
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2017 (2) TMI 1172
Time limitation - party intended to avail inadmissible credit, suppressed the facts from the Department - is extended period of limitation invokable? - Held that: - Tribunal has not at all looked into the question, whether it was a case of extended period of limitation in respect whereto a finding was already recorded by Commissioner against Assessee - Matter is remanded to Tribunal to consider the question, whether there was a suppression of material fact by Assessee - appeal allowed by way of remand.
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2017 (2) TMI 1171
Extended period of limitation - reliance upon the earlier circular subsequent to the amendment in the notification - Evasion of duty - Notification No.10/97-CE dt.01/03/1997 - Held that: - If the matter is to rest on the ultimate fact finding conclusion for which the Tribunal is the final fact finding authority, there would not be any question of law which may arise for consideration, since the present appeal has to be limited to question of law only and not on the question of fact, unless there is any perversity in the finding of fact recorded by the Tribunal.
In our view, if there was change in the language of the Notification dated 16.03.1995, possibly the matter may stand on a different footing and different consideration. But when the very language is kept intact and there is only addition in the number of units, it cannot be said that the clarification of the Central Board of Customs & Central Excise dated 27.06.1992 referred to herein above shall be wiped off or nullified by the Notification dated 16.03.1995.
In view of the above, if the language in the earlier Exemption Notification dated 01.03.1986 and the Exemption Notification dated 16.03.1995 were the same and the instructions issued by the Central Board of Customs & Central Excise would also co-relate. In any case, it cannot be said that there was any suppression or that there was any intention to evade the duty - Appeal dismissed - Decided against the revenue.
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2017 (2) TMI 1170
CENVAT credit - penalty on the ground that the appellant had wrongly reversed 8%/10% on the value of intermediate exempted product i.e. Ether Solvent Tech and not on the value final exempted product i.e. Ether Anaesthetics IP/BP - whether penalty of ₹ 1,00,000/- confirmed under Rule 15 of CCR 2004 is justified when the amount has already been paid and not disputed - Held that: - in absence of any suppression mis-declaration, misstatements, etc. when penalty u/s 11AC of CEA,1944 on the appellant is set aside, and no sub-rule u/r 15 of CCR, 2004 is specified in confirming penalty, penalty imposed under the said Rule cannot be sustained - Further, in absence of any other penal provision invoked in the SCN and imposed on the appellant in the impugned Orders, penalty cannot be imposed on the appellant.
Appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1169
Manufacture - drawing of wire whether amounts to manufacture or not? - recovery u/s 11D - Held that: - From the plain reading of the Section 11D, the amount u/s 11D can be recovered only in a case where the assessee collected any amount in excess of duty assessed or determined and paid on any excisable goods from the buyer of such goods, in any manner, as regards duty of excise. Therefore, even if any excise duty the assessee collected from the buyers of the goods and if the same has been paid to the Government's account, Section 11D has no application - In the present case, the duty was assessed by the respondent and the same was paid to the Govt. account. Therefore, no amount remained to be paid to attract Section 11D - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1168
Valuation - Job work - The Revenue tried to apply the same price of the principal on the clearance of goods from the job-worker i.e. appellant, for the reason that the appellant has manufactured the goods on loan license basis - Held that: - there is no different law for the manufacture of the medicaments and manufacture of other goods as regard valuation of the goods. Therefore, merely because the appellant has manufactured medicaments on loan license basis, the valuation principle cannot be discarded - appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1167
Interest u/s 11AA - whether the interest under Section 11AA was recoverable particularly when in the earlier show-cause notice, the same interest was demanded under Section 11AB and the same was dropped for a part period as Section 11AB was not existing prior to 28.9.1996?
Held that: - before 28.9.1996, the interest was chargeable u/s 11AA. Though initially it was proposed u/s 11AB but subsequently by issuance of fresh SCN, the interest was demanded u/s 11AA. There is no restriction that as regards recovery of interest once the SCN was issued, another SCN cannot be issued. Limitation does not apply in case of recovery of interest. Section 11AA provides for charging the interest - the demand of interest upheld.
Imposition of penalty u/r 25(1) of the CER, 2002 - Held that: - appellant had the bona fide belief that the interest is not chargeable once the proceedings for the interest for the same period has been dropped in the earlier proceedings - the imposition of penalty of ₹ 20,000/- is not correct.
Appeal disposed off - decided partly in favor of appellant.
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2017 (2) TMI 1166
Valuation - Bromadiolone Cake - clearing in bulk quantity to their service division - valued as per Rule 6(b)(ii) of Central Excise Valuation Rules, 1975 or not? - Held that: - the goods supplied to service division and the goods sold in the market, there is clear distinction depending upon the packing. One product i.e. Bromadiolone Cake - 0.005% is in the same packing, therefore, the price of comparable goods is available. However, the respondent had admittedly paid the duty on the said product - the demand of duty paid on the product namely, Bromadiolone Cake-0.005% upheld.
As regards other goods, since no comparable package of the goods which was supplied in the service division are available, therefore, the valuation of the goods was correctly done by the respondent under Rule 6(b)(ii) of Central Excise Valuation Rules, 1975.
Appeal disposed off - decided partly in favor of Revenue.
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2017 (2) TMI 1165
100% EOU - Refund claim - Rule 5 of CCR - job-work - the tax was raised against the assessee by way of debit notes instead of invoice, whether the credit should be denied on this basis? - Held that: - the identical question was the subject matter of the Tribunal's decision in the case of Shree Cement Ltd. Vs. CCE Jaipur [2013 (3) TMI 79 - CESTAT NEW DELHI], Wherein it was observed that substance is more important that the format and the denial of credit on the basis of the debit notes, instead of invoices, cannot be appreciated and Upheld - Appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1164
Sugar export quota - it appears that the said assessee had not exported the quantity of sugar quota allotted to them but had diverted the same for home consumption i.e. sold in India - Held that: - similar issue came up before this Tribunal in respect of others in the order dated 30/07/2015, the assessees appeals were allowed and demands were set aside - appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1163
Manufacture - whether the the respondent's activity of cutting, stamping and packing from coil to the pieces amounts to manufacture? - Held that: - the activity is confined to cutting of wire from coil form. Even though it is stamped and packed the activity does not amounts to manufacture.
Mere straightening of stainless steel wire and cutting into required sizes does not amount to manufacture - In the present case also the similar activity have been carried out by the respondents - demand not sustainable.
Appeal dismissed - decided against Revenue.
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2017 (2) TMI 1162
CENVAT credit - denial on the ground that the activity of drawing of wire from thicker to thinner gauge does not amount to manufacture - Held that: - the assessee is permitted to avail the Cenvat credit on the duty paid goods for carrying out remaking, refining, reconditioning or for any other reason and after any of the said process even if not amounting to manufacture when the goods is cleared then the duty has to be paid equal to Cenvat Credit availed on receipt of duty paid input - the respondents have taken credit on the duty paid on wire rodes and after the process of drawing they have paid duty determined on clearances on the transaction value - Cenvat Credit is legally admissible.
Appeal dismissed - decided against Revenue.
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2017 (2) TMI 1161
Imposition of penalty u/s 11AC of CEA, 1944 - the issue of payment of duty was in doubt - Held that: - The Hon'ble Supreme Court in the case of Devans Modern Breweries Ltd. Vs. Commissioner of Central Excise, Chandigarh [2006 (8) TMI 15 - SUPREME COURT OF INDIA] holds that penalty u/s 11AC of CEA, 1944 is imposable if non-payment of duty involves fraud, collusion, willful misstatement or suppression of facts with 'intent to evade' - there are no malafides involved and the issue of liability of duty on the subject goods during the relevant period was not free form doubt - penalty set aside.
Interest - Held that: - when the duty has not been paid on time, the interest is payable for the period till the duty is paid. Consequently there cannot be any relief admissible to both the appellants for non-payment of interest.
Appeal disposed off - decided partly in favor of appellant.
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