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Showing 381 to 400 of 1495 Records
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2016 (6) TMI 1117
Recovery of tax, interest and penalty – waiver of pre-deposit – reference to Tribunal Stay order in the case of Indian School of Business, on identical issue, No. 20771/2014, dated 21-03-2014 – Held that: - the appellant does have a prima facie case for waiver of pre deposit. Therefore, stay of recovery granted till disposal of the appeal – application disposed off – decided against appellant.
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2016 (6) TMI 1116
Disallowance u/s.80IA in respect of Wind Mill business - assessee is engaged in the business of manufacturing and job work in electronically engraved copper rollers and trading of pipes, circles etc. - Held that:- No hesitation in holding that the appellant is entitled to the claim u/s. 80IA on the income derived from wind mill project without notional setting off of losses of earlier years. See Velayudhaswamy Spinning Mills P. Ltd. v. Asst. CIT [2010 (3) TMI 860 - Madras High Court ]
Addition of prior period expenditure - CIT(A) deleted the addition - Held that:- Though the quantity discount was given during the year under consideration but were on account of sales made in earlier years. In our considered opinion, this cannot be considered as a prior period expenditure since the expenditure has been incurred during the year under consideration. We, therefore, decline to interfere with the findings of the ld. CIT(A)
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2016 (6) TMI 1115
Addition of interest of inter-corporate deposits to the chargeable interest under the Interest Tax Act, 1994 - Held that:- The question raised in these appeals is already settled by a judgment of the Delhi High Court rendered in the case of Commissioner of Income-tax v. Visisth Chay Vyapar Ltd., [2011 (8) TMI 783 - Delhi High Court ] wherein, it has been held that the expression ‘advance’ occurring in section 2(7) along with the expression ‘loan’ should take its colour from ‘loan’ and cannot be given wider interpretation to include deposit as well, otherwise, money deposits given for investments, etc., would also qualify as ‘advances’ and interest thereon would become exigible to the Interest-tax Act. Such a situation was never contemplated by the legislature. Hence, inter-corporate deposit is not in the nature of loan or advance within the meaning of section 2(7) and therefore, not chargeable to the interest-tax under section 5. We concur with the view taken by the Delhi High Court in the aforesaid decision and consequently, answer the question in favour of the assessee
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2016 (6) TMI 1113
Addition u/s 68 - VDIS declarations - Held that:- A glance at the bill issued by M/s. Balaji Refinery does show that it was holding a licence. A Look at the purchase bill issued by the concerns show that they were having KST and CST registration numbers. In my opinion, these evidence do tilt the case in favour of the assessees. Assessees had done whatever possible, within their means to show that the gold jewellery sold by them were the same gold declared in VDIS, after converting it into bullion. Assessees had submitted copies of bills issued by M/s. Balaji Refinery which did show similar details of gold jewellery as returned in the VDIS. In such situation we are of the opinion that assessees had discharged their onus to show that the gold sold by them were the same which were declared by them in the VDIS declarations, after conversion. Reasoning given by the AO that antique jewellery would not have been sold by the assessees is only a surmise and cannot dislodge the evidence filed by the assessee. Further there is nothing on record to show that the gold jewellery which were sold by the assessee were antique in nature. In such circumstances, the lower authorities fell in error in disbelieving the source for credits shown by the assessees concerned. Thus have no hesitation in deleting the additions made in the hands of the assessees. - Decided in favour of assessee.
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2016 (6) TMI 1112
Levy of penalty u/s.271(1)(c) - Held that:- As the quantum appeal is still pending before the Commissioner of Income-tax(Appeals), the levy of penalty is also remitted back to the file of the Commissioner of Incometax( Appeals) for adjudicating the same after deciding the quantum addition before him.
Entitlement to exemption u/s 54 - Held that:- We hold that in the present case, the assessee inherited the property on 21.5.2002. The said property was purchased by the assessee’s mother on 12.4.1960. After the death of the assessee’s mother, the property was inherited to the assessee along with other co-owners. Accordingly, the cost of indexation to be applied as on 1.4.1981, after fixing the value of the asset as on 1.4.1981 and it cannot be said that the assessee acquired property under dispute on 21.5.2002 on the death of the assessee’s mother so as to compute the capital gains. In other words, capital gains has to be assessed as long term capital gains by fixing the cost of asset as on 1.4.1981 and thereafter applying the cost of inflation index in terms of sec.49(1)(iii)(a) of the Act. Same view was taken in the case of CIT vs. Manjula J. Shah (2011 (10) TMI 406 - BOMBAY HIGH COURT ). Consequently, the assessee is entitled to exemption u/s.54 of the Act. Accordingly, this appeal of the assessee is allowed.
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2016 (6) TMI 1111
Validity of assessment order and appellate orders for the period 01.04.2009 to 30.10.2013 - challenge to the orders on the ground of limitation, and for violation of principles of natural justice - According petitioner, since the period of limitation under Section 21(4) of the A.P.Value Added Tax Act, 2005 (for short “the Act”) is four years from the end of the period for which assessment is to be made, the assessment order, for the period 01.04.2009 to 31.01.2010, is barred by limitation.
Held that:- The jurisdiction, which this Court exercises under Article 226 of the Constitution of India, is supervisory and not appellate. Under Article 226 of the Constitution of India, this Court would not re-appreciate the evidence on record, or record findings on facts. The orders of the Assessing and Appellate Authorities do not, therefore, necessitate interference, except to the limited extent that the assessment made for the period 01.04.2009 to 31.12.2009 is barred by limitation. To this limited extent, the assessment order is set aside. In all other respects, it is upheld. - Decided partly in favor of petitioner.
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2016 (6) TMI 1110
Validity of recovery proceedings - Benefit of scheme granting reliefs to the sick industries from payment of amount of interest and penalty interest and penalty etc. - GVAT - petitioner has paid the entire amount as per the scheme - later the BIFR has dismissed the proceedings - Consequently recovery notices were issues by the respective authorities on the premises that the benefit of scheme was availed wrongly - petitioners mainly contended that action on the part of the respondent authorities is not only unjust and arbitrary but reflects clear non-application of mind.
Held that:- only because of the fact that BIFR has terminated the proceedings straightway without examining any aspect, the authorities have issued notice and it appears that the impugned action is in clear breach of principles of natural justice. The fact of payment by the petitioner under the scheme which also acknowledged by the authority as reflected from various communications ought to have been considered before issuing impugned notice.
The authorities directed to re-consider the case of the petitioner after granting a reasonable opportunity to the petitioner. It is expected that the respondent authorities before initiating any action in this regard, must grant reasonable opportunity to the petitioner and after hearing pass an appropriate order considering all material which may be produced before it. - decided partly in favor of petitioner.
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2016 (6) TMI 1109
Validity of recovery notice - period of limitation - maintainability of writ petition - notice towards arrears of Sales Tax due from him for the assessment years 1996-97 and 1999-00 was issued after a lapse of more than 2 decades - The petitioner came to know about rejection of the Appeal vide order dated 06.01.2004 only on receipt of statutory notice.
Held that:- No doubt service of notice under Rule 58 is mandatory but when the Appeal is pending against the order passed by the Appellate Deputy Commissioner before the Tribunal, the validity of the orders passed by the 4th respondent and Appellate Deputy Commissioner cannot be gone into at this stage and, at best, the law laid down by the Courts in the above decisions are helpful to the petitioner in the pending Appeal before Tribunal but not in the present case.
In the present case, no statutory violation is pointed by the petitioner except alleged non-compliance of Rule 58, which is the subject matter for decision by the Appellate Tribunal. Therefore, we find that no discretion can be exercised under Article 226 to declare that the orders passed by the 3rd respondent are illegal and arbitrary. - writ petition dismissed - Decided against the petitioner.
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2016 (6) TMI 1108
Import of Intellectual Property Services (IPR services) - Reverse charge - revenue neutral exercise - payment for right to use/enjoy confidential/technical know-how and patents by overseas entities - out of the six different agreement, only the patent in respect of Investa Technologies s.a.r.l., is registered in India under the Patents Act 1970 - Held that:- If an intangible property right was to refer to a right which is recognised by any country, then the legislature would not have used the expression under any law for the time being in force. The legislature would have merely stated that an intellectual property right would mean any right to an intangible property. There would have been no need for it to qualify the same with a recognition under any law for the time being in force
If any inventor does not seek protection of its intellectual property under the Indian laws, the same cannot be regarded as an intellectual property right for the purpose of taxing the grant of right to use such a right. The question whether such a service could be taxed under a different head is irrelevant and does not arise as there is no such case made out in the notice. - there can be no liability to tax under the head of IPR services in respect of an Intellectual Property Right that is not recognised by the law in India.
Insofar as the agreement with Investa Technologies S.A.R.L. is concerned the same was entered into on 14.8.2004, prior to IPR services being brought into the net of service tax w.e.f 10.9.2004. The service itself having been rendered prior to the introduction of the levy, the mere fact that payments for the same were made on a staggered basis over a period of time cannot be a ground for levying service tax merely with reference to the date on which payments were being made.
Further, the entire dispute being revenue neutral, there could have been no intention to evade payment of duty and consequently the extended period of limitation was per se not invokable.
Demand set aside - Decided in favor of assessee.
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2016 (6) TMI 1107
Waiver of pre-deposit - Franchise Service - appellant gave right to use its name for running pre-primary and preparatory schools - scope of the definition of “Franchise” given in Section 65(47) of the Finance Act, 1994 during the relevant period - it was contended that as per one of the condition during the relevant period, franchisee was under an obligation not to engage in selling or providing similar goods or services or process identified with any other person - Held that:- As is seen the demand pertains to the period 1.4.2004 to 15.6.2005 when condition No.IV in the definition of franchise given in Section 65(47) ibid was very much in existence and prima facie is not satisfied. Consequently, in view of precedent CESTAT judgement in the case Saanj and Savera Educational Welfare Trust vs. C.S.T., Delhi [2015 (10) TMI 1053 - CESTAT NEW DELHI], appellant has made out a strong case for full waiver of pre-deposit - stay granted.
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2016 (6) TMI 1106
Refund of service tax paid on Construction of complex service wrongly - period of limitation - payment of service under mistake of law - it is submitted that, appellants carried out such construction activities for themselves and for their own purposes and not for any one else - Held that:- this Tribunal in the case of XL Telecom Ltd [2006 (3) TMI 641 - CESTAT, BANGALORE] has held that even in respect of illegal levy, refund claim has to be filed within the time limit prescribed under the Central Excise Act 1944. The judgments relied upon by the counsel for the appellant is not applicable in the facts and circumstances of this case and moreover the judgment of the Hon’ble Karnataka High Court in the case of CCE Vs KVR Constructions [2012 (7) TMI 22 - KARNATAKA HIGH COURT] was held to be not a good law by the Hon'ble Karnataka High Court in subsequent decision in the case of MCI Leasing Pvt Ltd [2011 (9) TMI 447 - KARNATAKA HIGH COURT]. - Period of limitation of one year is applicable - Decided against the assessee.
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2016 (6) TMI 1105
Implementation of final order of the tribunal - cargo handling service - In the order, Tribunal has upheld the adjudication order to the extent of confirmation of the service tax demand alongwith interest made within the normal period of limitation and has also set aside the penalty imposed in the adjudication order in terms of Section 80 of the Finance Act, 1994. - Held that:- There are no documents available on records to show that the operation of Final order dated 08/12/2011 [2011 (12) TMI 205 - CESTAT, NEW DELHI] of this Tribunal has either been stayed or overruled by any higher Courts. Therefore, the Department is duty bound to implement the order of the Tribunal. As such, in terms of Rule 41 of CESTAT Procedure Rules, 1982, we direct the Original Authority to implement the Final Order dated 08/12/2011 of this Tribunal within a period of three months from the date of receipt of this order.
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2016 (6) TMI 1104
GTA service - claim of exemption where gross amount charged on an individual consignment transported in a goods carriage does not exceed ₹ 750/- or ₹ 1500/- extended period of limitation - appellant have taken categorical stand that they have bonafide belief that exemption of Notification No. 34/2004 is applicable to them in respect of transport of goods if freight per truck load does not exceed ₹ 1500/-. Despite this correspondence the department has issue the show-cause notice on 28th January, 2009 for the period 2006-07, hence the extended period was invoked.
Held that:- The appellant took clear stand that as per their belief they are entitled for the exemption for the reason that only in case of transportation charge exceed ₹ 1500/-, it is chargeable to Service Tax but in the case of appellant, the freight charges ranging from ₹ 750/- to ₹ 1500/-. Moreover, the issue was not free from doubt and the same was finally decided in the case of Bellary Iron & Ores Pvt. Ltd. [2009 (12) TMI 150 - CESTAT, BANGALORE]. In these circumstances, we do not find any suppression of fact on the part of the appellant, hence the demand of longer period by invoking proviso to Section 73(1) is not sustainable.
Demand set aside - Decided in favor of assessee.
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2016 (6) TMI 1103
Levy of service tax under the sub-contract agreement - validity of proof of payment of tax by the principal obtained through RTI - The appellant defended the notice contending that the main contractor NGRI has discharged the service tax liability on the amount received from the client and that therefore they are not liable to pay any service tax under the subcontract agreement. - conduct of drilling shot holes, seismic job services and topographical survey - On behalf of Revenue, the learned AR vehemently argued that appellant failed to establish that service tax liability was discharged by the main contractor, NGRI. That the information/reply received under RTI Act from NGRI is not conclusive proof of payment of tax and cannot be accepted
Held that:- The information / document made available by the Public Information Officer (PIO) is something which is already recorded in the official records of the public office/authority. On receiving application, the PIO just furnishes a copy of the information contained in the records kept in proper custody. Section 3 of RTI Act states that every citizen shall have the right to information and may obtain the same by submitting an application. The information so received shows that NGRI has paid service tax on the same services. The information having been provided by a public office under the provision of Right to Information Act, 2005, I do not find any reason to disbelieve the same.
When main contractor has discharged the service tax liability, there can be no demand against the subcontractor for the same services for the same period - Demand set aside - Decided in favor of assessee.
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2016 (6) TMI 1102
Condonation of delay of 19 years in filing an appeal - Recovery of penalty - it was submitted that, appellant was not in India and was in Oman along with his family. Appellant came to India on 06.11.2010 for a brief period. Appellant through his brother came to know on 30.12.2013 that some Sale Notice has been issued for the Sale of Immovable Property and then he came to India and tried to obtain the copy of the order - It was further submitted that limitation for filing appeal would start from the date of receipt of the copy of the impugned order - Held that:- service of the impugned order dated 30.03.1994 on the appellant has been proved by the Department by producing the acknowledgment signed in proof of the receipt though the signature on the acknowledgment is disputed by the appellant. Appellant also produced the copy of the passport to show that at the relevant time he was not in India. Appellant may not be in India but his agent on his behalf can receive the copy of the order and in law it will be deemed to be the service on the appellant. The law cited by the appellant is not applicable to the facts of the case whereas the law cited by the AR is squarely applicable to the facts of the present case.
The present appeal is barred by time as the same has been filed after the expiry of more than 19 years and that too without seeking condonation - Appeal dismissed.
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2016 (6) TMI 1101
Discrepancy in furnishing of IGM (import manifest or import report) - Goods (transit cargo) were not mentioned in IGM - confiscation of goods and levy of redemption fine - levy of penalty - Held that:- The facts presented by the case do not reveal any fraudulent intention. Further there is no such finding made in the impugned order. The confiscation is on the ground of failure to declare the Lube oil against the Same Bottom Cargo in the Form / IGM. As per sub-clause (3) of Section 30, the officer ought to have given an opportunity to the appellants to amend or supplement the IGM as all other documents are in order.
As there is no fraudulent intention, the confiscation is illegal - redemption fine and penalty waived. - Decided in favor of appellant.
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2016 (6) TMI 1100
Refund of SAD - payment VAT, CST on sales - Revenue says that because of the fiction of self raised in the invoices by the appellant in respect of sales, that created doubt in the minds of the appellate authority. Therefore, refund was denied - Held that:- Once such ingredient of the Sale of Goods Act, 1930 is complied with, in that circumstance, sales can be said to have been effected. Otherwise it is a mere case of stock transfer in the guise of sale. If the authority is satisfied that sale has been effected and appropriate VAT/sales tax thereon has been paid into the Treasury, the appellant cannot be denied refund of Additional Duty of Customs suffered on the imports.
Matter remanded back for verification.
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2016 (6) TMI 1099
Entitlement to cenvat credit on the basis of photocopy of Courier Bill of Entry - Held that:- It is a fact that there is no dispute in the present case regarding the receipt of inputs and payment of duty on the final product and the eligibility of the appellant to avail the cenvat credit on the duty paid on inputs.
The cenvat credit on photocopy of the Courier Bill of Entry cannot be denied as the same is a proper document under Rule 9 of the Cenvat Credit Rules 2004. See Controls & Drives Coimbatore (P) Ltd. Vs. CCE, Coimbatore reported in [2007 (11) TMI 57 - CESTAT CHENNAI ] - Decided in favour of assessee
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2016 (6) TMI 1098
Excise duty on bagasse and pressmud - payment of 5% or 10% of the value of exempted goods, i.e., bagasse and pressmud cleared by the appellant - Held that:- The issue is no more res integra as the bagasse and pressmud arising during the course of manufacturing of sugar. The Hon’ble Supreme Court in the case of UOI Vs DSCL Sugar Ltd., (2015 (10) TMI 566 - SUPREME COURT ) has held that bagasse and pressmud is a non-excisable products.
Thus as the bagasse and pressmud are non-excisable, the question of reversing 5% or 10% of the value of goods does not arise as the common inputs not used in the manufacturing of waste. - Decided in favour of assessee
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2016 (6) TMI 1097
Refund claim - excess excise duty paid due to the failure of computer software cleared to their depots - unjust enrichment - Held that:- We find that so far as admissibility of refund claim is concerned, the records have been checked by the range officers, Deputy Commissioner as well as the Commissioner (Appeals) to their satisfaction. The grounds of appeals do not bring out any infirmity in the facts which have been verified. We do not find any infirmity in the verification done by the lower authorities. In so far as the unjust enrichment is concerned, it is not disputed that the goods were cleared only to their depots. Since the goods have not been sent to third party on the basis of such invoices, it cannot be said that the duty has been recovered from the buyers. In the circumstances, we find that the provisions of unjust enrichment cannot be invoked. - Decided against revenue
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