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Case Laws
Showing 401 to 420 of 1389 Records
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2014 (7) TMI 990
Exemption u/s 11 - Accumulation of income - Amount added being less that 15% of total income – Specified funds u/s 35AC - Held that:- the copies of the past assessment orders reveal that the assessee has been treated as a public charitable trust in the earlier years – there was no basis for arriving at a conclusion that the assessee is engaged in the business of setting up and running of vocational training so as to presume that the assessee as a business entity in the year - Following the decision in ASSTT DIRECTOR OF INCOME TAX Versus STERLITE FOUNDATION (FORMERLY KNOWN AS VEDANTA FOUNDATION)[2013 (12) TMI 1056 - ITAT MUMBAI] - the assessee has not diverted any specified funds of 35AC projects towards non specified projects whereas the aseesee has spent corpus donation for 35AC projects and the same cannot be the basis for denying the benefits of exemption as the latter is not prohibited by the provisions of the Act – Decided in favour of Assessee.
Donation made to another charitable trust – Held that:- According to the CBDT circular No.1132 dated 5.1.1978, the payment of a sum by one charitable trust to another for utilisation by the donee trust towards its charitable objects is proper application of income for charitable purposes in the hands of the done trust and the donor trust will not lose exemption u/s 11 of the Act - Following the decision in ASSTT DIRECTOR OF INCOME TAX Versus STERLITE FOUNDATION (FORMERLY KNOWN AS VEDANTA FOUNDATION) [2013 (12) TMI 1056 - ITAT MUMBAI] - the charitable trust will not lose its exemption u/s 11, if it passes some money to another charitable trust, for utilisation by the donee trust towards its charitable purposes – thus, the order of the CIT(A) is set aside – Decided in favour of Assessee.
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2014 (7) TMI 989
Additional disallowance u/s 14A r.w. Rule 8D – Held that:- The available funds with the assessee are far more than the borrowed funds & that the borrowings of the company in the immediately preceding year which has substantially come down which means that the investments have been made out of interest free funds i.e. assessee’s own funds - Following the decision in The Assistant Commissioner of Income Tax, Cir. 4(2), Versus M/s. Intime Spectrum Securities Ltd. [2012 (8) TMI 303 - ITAT, MUMBAI] - Therefore no disallowance can be made u/s. 14A - Decided in favour of assessee.
Disallowance of foreign travelling expenses – Held that:- The CIT(A) has allowed entire travelling expenditure for trips to Dubai and 50% of expenditure for trips to other places considering the submission that assessee is also engaged in the business of financial activities including leasing financial and advisory services and that the Directors had visited Dubai to study real estate market - as the issue in the year under question is same the same order is to be followed – Decided in favour of assessee.
Disallowance of STT as capital expenses – Held that:- The assessee in this case is neither the purchaser nor the seller - He is merely a collecting agent of STT on behalf of the Government - the assessee has both collected the amount and paid the same to the Government - assessee being a broker has neither purchased shares on its own nor sold shares on its own - It was only an intermediary - section 40(a)(ib) of the Act does not get attracted in this case nor section 88E benefit can be extended to the assessee - Following the decision in M/s A.K. Equities Pvt. Ltd. Vs. ITO [2010 (2) TMI 1115 - ITAT MUMBAI] - Only when the purchaser or the seller claims a deduction of STT paid, then only 40(a)(ib) is attracted – Decided in favour of Assessee.
Disallowance of bad debts – Held that:- The AO has disallowed the part claim of the assessee on the ground that the claim should be after adjusting all receivables by the assessee against the clients by sale of holdings by the assessee belonging to the clients - assessee has made the claim that the amount written off by the assessee pertaining to the outstanding receivables after considering any sale of client's holding and this fact has been examined by the CIT(A) - the amount of ₹ 2.92 crores was the balance after recoveries from the margin money/shares of the debtors and nothing has been brought on record by the AO to rebut the said claim of the assessee – Following CIT Vs. Shreyas S. Morakhia [2010 (7) TMI 455 - ITAT MUMBAI] – Decided in favour of Assessee.
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2014 (7) TMI 988
Deduction u/s 54F – Computation of total income – Compensation of land building from National Highway Securities - Held that:- The AO has allowed deduction on account of cost of acquisition of land and no deduction u/s.54F was given on the amount invested in construction of residential house - The compensation money received by him along with the loan amount was invested in the same building and when he constructed the house, there was no provision of plant and estimate - assessee has constructed the house which is evident from the copy of certificate of valuation by Municipal Engineer and moreover, assessee has requested the AO to call for the Engineer, who has given the certificate - AO has not called any information from the Municipality and he has disallowed the claim - the burden was shifted upon the AO to verify the genuineness of the certificate, which he has not done - no further opportunity may be given to the AO and the claim of the assessee u/s.54F of the Act is allowed – Decided in favour of Assessee.
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2014 (7) TMI 987
Accrual of income / cash system of accounting - difference between income booked and as per TDS certificate - Suppression receipt – Held that:- CIT(A) was rightly of the view that it has been certified by the tax auditors that the assessee was having cash system of accounting - CIT(A) has observed that money has been retained by the principal – there was no mistake in the order of the CIT(A), as the difference amount was retention money with the principal "HIL" and the assessee was following cash system of accounting, and that the CIT(A) has directed the AO to withdraw the credit of TDS granted to the assessee to the extent it pertains to the income not offered for tax - the order of the CIT(A) is upheld – Decided against Revenue.
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2014 (7) TMI 986
Additional depreciation on windmill for generation of power and electricity u/s 32(1)(iia) – Activity neither manufacture or production of any article or thing – Held that:- Following the decision in CIT vs. Hi Tech Arai Ltd. [2009 (9) TMI 60 - MADRAS HIGH COURT] – the provision does not state that the setting up of a new machinery or plant, which was acquired and installed up to 31st March, 2002 should have any operational connectivity to the article or thing that was already being manufactured by the assessee - the contention that the setting up of a wind mill has nothing to do with the industry, namely, manufacture of oil seeds etc. is totally not germane to the specific provision contained in s. 32(1)(iia) – Decided against Revenue.
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2014 (7) TMI 985
Benefit of Exemption notification to the product Playing Cards - Notification No.02/2011-CE - Rate of duty 5% (now 6%) - playing cards are Sports goods or not - Held that:- The plain interpretation of said notification would indicate that the appellant is eligible to avail the said benefit of notification if his product falls under Chapter 95. In the case in hand, there is no dispute that the appellant’s product Playing Cards is classifiable under Chapter 95 and more specifically under Chapter sub-heading No.95.04.
The issue of the benefit of exemption claimed under notification in respect of playing cards as sports goods has been settled by the Tribunal in Esbee Playing Card Co (1996 (12) TMI 147 - CEGAT, NEW DELHI) - benefit of exemption allowed - Decided in favor of assessee.
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2014 (7) TMI 984
Reversal of cenvat credit - capital goods cleared as such to their sister unit - duty paid on the transaction value, which is less than the depreciated value - scope of the term 'as such' - Held that:- there is merit in the Revenue’s appeal and the respondents are liable to pay the differential duty as confirmed by the adjudicating authority on the depreciated value of the used capital goods cleared as such to their sister unit.
Levy of penalty - held that:- Revenue has not put forth any valid grounds on the suppression of facts. - penalty waived - demand of duty and interest confirmed - Decided partly in favor of revenue.
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2014 (7) TMI 983
Demand of interest - whether appellants herein are required to be saddled with the interest under the provisions of un-amended Section 11AB before 11.05.2001 of the erstwhile Central Excise Act, 1944. - Held that:- the demands which are arising for the clearances prior to 11.5.2001, the interest under section 11AB shall be payable w.e.f. 11.05.2001 if the payments have been made on or after 11.5.2001 and for the clearances effected from 11.05.2001 the interest under section 11AB shall be paid from the date of duty payable on such clearances and we hold accordingly.
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2014 (7) TMI 982
Suppression of facts - extended period of limitation - Cenvat Credit - capital goods - goods falling under chapter 84 - doors, false ceiling, compactor for document keeping, sheets for roofing, flooring for finished goods storage area, tube light fittings, etc. - The issue of admissibility of Cenvat Credit on certain items and support structures was the subject matter of litigations between the manufacturers and the department. Conflicting views were being expressed by various courts as claimed by the appellant before the first appellate authority. The issue on admissibility of such items was finally decided by the Larger Bench in the case of M/s. Vandana Global Limited Vs. CCE, Raipur (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)). In the realm of conflicting interpretations given by various benches of CESTAT and other courts, it cannot be held that there was any suppression / misstatement on the part of the appellant with intention to evade any duty. - extended period cannot be invoked. - Decided in favor of assessee.
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2014 (7) TMI 981
Transport of goods from one airport to another - benefit of Notification No.29/2005-St - transport of export cargo from the airport to airport - Held that:- notification talks about providing of the services in relation to transportation of goods while in the case in hand the issue regarding transportation of goods between two air ports and rendered to another agency i.e. FedEx or as the case may be. Since the issue requires deeper consideration and needs to be appreciated from various documents on record, we find that the appellant has to be put to some condition for hearing and disposing the appeal on merit - appellant has not made out a prima facie strong case for complete waiver of the amounts involved - stay granted partly.
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2014 (7) TMI 980
Cargo Handling Service - Service in respect of amounts collected for Barge operations, collection of Ocean Freight, Air Freight, Transportation charges etc. - Non consideration of submissions of assessee - Held that:- Commissioner has left the analytical work to analyse the case of the department, the ground taken in the show-cause notice, reply submitted by the assessee and basis for the conclusion, to the Tribunal - request made by the learned counsel that the matter be remanded at this stage for fresh decision with a direction to record all the submissions, consider them vis-a-vis facts as emerging from the records, apply precedent decisions, if any, cited by the assessee or available to the Commissioner etc. and pass a well reasoned order whereby it would be possible for the appellate authority to consider whether the basis for reaching a conclusion adopted by the original authority is sound and whether the demand can be confirmed or not - Matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 979
Stay application - Waiver of pre deposit - Held that:- Appellant requested for keeping matter pending till similar petition gets decided - There is no logic for such request - appellant directed for 50% amount as pre deposit - Conditional stay granted.
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2014 (7) TMI 978
Club or association service - Whether the amount recovered from the members who opt for membership (with land) towards cost of land and handed over to M/s. Amrutha Estates (according to appellants) has to be levied to service tax under ‘club or association service’ or not - Held that:- If the actual amount reflected in the sale deed is less than what is shown as transferred to the sister company by the appellant, as submitted by the learned AR, it would amount to collection of membership fee in the name of land which would be inappropriate and incorrect in view of the fact that appellants have no grievance about paying service tax for membership fee during the relevant period. That being the situation, in our opinion, it would be in the interest of justice and fairness to require the appellants to produce the sale deeds.
It would be sufficient if the appellants give all the names of members with land who have been provided membership (with land). The Commissioner can select approximately 10% or below at random and in respect of those members if the appellants produce sale deeds and the relevant extracts of books of accounts so that Commissioner can verify and satisfy himself with the amount shown as collected for sale of land and transferred to the sister company is actually equal to the amount reflected in the sale deed - in case appellant is not able to produce a few sale deeds in respect of selected members, Commissioner may select some other name at random - Matter remanded back.
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2014 (7) TMI 977
Waiver of penalty u/s 80 - penalty u/s 77 - penalty under Section 76 & 78 were waived already - Assessee already paid tax but amount was not appropriated - Held that:- merely because the Commissioner did not appropriate the amount, it cannot be said that the amount has not been realized by the Government or has not gone into consolidated fund of Government of India - if an assessee is able to show that he has paid the amount into Government treasury and produces copies of the challans and in the absence of a finding to the contrary taking a view that challans are forged or bogus or refund has been claimed subsequently and received, in such cases we have to take a view that assessee has paid the amount whether it is appropriated by the adjudicating authority or not - what is required to be shown is that the amount has been paid and just because an appropriation has not been made and an officer fails to do this, we cannot take a view against the assessee especially in the absence of an appeal filed by the Revenue - Decided in favour of assessee.
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2014 (7) TMI 976
Validity of revision order - Violation of provision of Section 84 (4) - Held that:- If an issue is pending in appeal, the revisional jurisdiction under Section 84 could not be exercised. Since the appellant had preferred an appeal against the entirety of the adjudication order dated 22.2.2007 which included imposition of penalties thereunder as well and the issue regarding validity of imposition of penalty was equally the subject matter of appellate proceedings pending before the appellate Commissioner since 25.5.2007, the date on which the appeal preferred to that authority had culminated in the order dated 29.8.2007 dismissing the appeal, the initiation of revisional proceedings is unsustainable. - Following decision of Union of India vs. Inani Carriers [2008 (11) TMI 79 - RAJASTHAN HIGH COURT] and C.C.E. vs. Shiva Builders [2011 (4) TMI 34 - HIGH COURT OF PUNJAB AND HARYANA] - Decided in favour of assessee.
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2014 (7) TMI 975
Cargo handling service - providing manpower services - Assessee contends that lifting, stacking and loading of sugar bags’ were done by the persons who were on the pay roll of the Appellant - Held that:- essentially the present demand is for services use for transporting goods within the factory and also for manpower supplied for manual assistance at various points of loading system using conveyer system though there may be a small part of the service which may be in the nature of manual loading of cargo into railway wagons or trucks which may come within the meaning of ‘Cargo Handling Service.’ In the facts of the case the service’, rendered by Appellants cannot be considered as Cargo Handling service in view of the decisions in the case of S.B. Construction Co. [2006 (8) TMI 28 - HIGH COURT OF JUDICATURE FOR RAJASTHAN (JODHPUR)] and Modi Construction Company - [2008 (6) TMI 22 - CESTAT, KOLKATA ].
There is nothing in the Show Cause Notice to even suggest that there was a positive act on their part to suppress or wilfully misstate any facts to evade service tax. Indeed, as is evident from the various judicial pronouncements, there had been confusion regarding what is cargo handling or even as to what is cargo. In the wake of the appellant’s belief that their activity was not cargo handling, their not taking service tax registration or not filing return is understandable. In these circumstances, it is difficult to sustain the allegation of suppression or wilful mis-statement of facts with intent to evade service tax - Decided in favour of assessee.
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2014 (7) TMI 974
Intellectual property rights for allowed user of its brand name - manufacture of ‘country liquor; from spirit on job work basis - Held that:- on appreciation of the clauses of agreement with the evidence on record, it is evident that no ‘Intellectual Property Service' have been given by the appellant. The arrangement/agreement between the appellant and M/s Talreja Trade are for ensuring maximum production and sale of C.L. so as to maximize profits for both the parties. The minimum guarantee of profit per month given or assured by the agent to the appellant have been misunderstood as ‘Royalty' which is not the fact. The ground of limitation is also allowed in favour of the appellant. - Decided in favour of assessee.
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2014 (7) TMI 973
Waiver of pre deposit - Business Auxiliary Service - realization of money due - book adjustment by the client would amount to receipt of consideration or not - there was opening dues from AASL to IAL amounting to ₹ 134.53 crores. By Mar 2007 this amount increased to ₹ 306.75 crores. This is the reason why the appellant is contesting that they have not realised the monies due from AASL - Held that:- explanation in section 67 of Finance Act, 1994 defining value of taxable services inserted with effect from 18-4-2006 - There is no such clear provision for period prior to 18-4-2006. But when money is deducted by one person from amounts due to another in the hands of the former and such adjustments are agreed upon, it is to be considered that payment has been made by the latter to the former.
In the instant case IAL was receiving payments through the mechanism of deduction from amounts due to AAIL in the hands of IAL. The fact that the operations of AAIL resulted in loss and the losses were absorbed by IAL cannot negate the fact that at the time of rendering the services consideration thereon was received. So we are not in prima facie, agreement with the argument that IAL had not received payment for services rendered.
Considering the fact that the appellant is a national carrier under the ownership of Government of India presently facing serious financial difficulties and in view of the overall appreciation of the issues involved as analyzed above - unconditional stay granted.
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2014 (7) TMI 972
Port service - wharfage charges - under-valuation - receipt of additional consideration - Non inclusion of amount which was to be granted as rebate to M/s. UCL for discharge of service tax liability and the amount received by them as lease rent for waterfront charges and lee way facility given to M/s. UCL - Invocation of extended period of limitation - Penalty u/s 76, 77 & 78 - Held that:- Neither of the two conditions for being a port service is being fulfilled. Except for the ownership of the waterfront, GMB had no role to play. The entire port with infrastructure was built by M/s. UCL Ltd. and would be owned and operated also by M/s. UCL Ltd. under BOOT scheme. Thus, no service of whatsoever nature has been rendered by GMB, which may fall under the category of port service. No service has been rendered by them in relation to a vessel or goods. Just because ₹ 20 has been charged by GMB from M/s. UCL Ltd. under the head wharfage charges and GMB has paid service tax on the same under the category of port service, it cannot be said that the service rendered, if at all, by GMB was a port service.
There is no estoppel against the law - except for the ownership of waterfront, GMB does not own anything. The port and the infrastructure thereon vests in M/s. UCL Ltd. and this is permissible under Indian Law as there can be two owners, one for the waterfront and another for port and infrastructure thereon. The law in India is that land can belong to one and building thereon can be of other person as compared to law in U.K. wherein building vests in the owner of the land - in the absence of any port service having been rendered by GMB, the question of charging differential service tax under the category of port service does not arise at all. The show-cause notice has not invoked any other head for taxing the service, if any.
Renting of immovable property - allowing the user of waterfront for construction of port and infrastructural facility - Held that:- it can reasonably be concluded that allowing the user of the water front by M/s. GMB to M/s. UCL Ltd. was allowing the use of immovable property by GMB to M/s. UCL Ltd., and hence, ₹ 20 charged by GMB to M/s. UCL Ltd. at the most was on account of renting of immovable property. Just because the said charge were linked to the number of ships, it will not convert the same into port charges because basis of quantification or measurement is not relevant while deciding on the nature of the charges.
Valuation - Held that:- Even if it is assumed that the grant of licence to use waterfront is a port service, appropriate tax on the "gross amount" actually charged by GMB for such service has already been discharged. - Applying the definitions of "gross amount charged" and "money" to the present case, it is evident that the only amount received by GMB is the amount equivalent to 20 per cent. of the usual wharfage charges, as the remainder 80 per cent. was rebate or a discount offered by GMB. - It is not in dispute that the remainder amount which was offered as rebate was not paid back to GMB either as "deduction from account" or "credit note" or "debit note" or by book adjustment.
Even if the capital expenditure incurred for development of waterfront is regarded as "construction", the next logical question that will arise is whether the entirety of such construction is liable to be included in the value. - it is the absence of such a machinery provision itself sufficient indication that the Legislature did not intend to tax that transaction.
The Revenue's case is even otherwise illogical and absurd as it seeks to assess the services rendered by GMB with reference to the normal wharfage charges which it recovers from users at the full-fledged ports developed and operated by GMB, such as the Kandla Port. This is clearly illogical as in the present case the service rendered by GMB was limited and confined to the grant of licence to use the waterfront for which it charged a limited amount (20 per cent. of the usual wharfage). Considering the limited nature of the service rendered, GMB could only charge a limited consideration. This amount, which happens to be 20 per cent. of the usual wharfage charge, is the amount actually paid and in the absence of any book adjustment or deduction from the account constitutes the "gross amount" actually charged for the service - any amount collected after April 1, 2008 by Gujarat Maritime Board, can be considered as statutory levy only and service tax liability thereon may not arise - impugned order is unsustainable and is liable to be set aside - Decided in favour of assessee.
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2014 (7) TMI 971
Writ of Certiorarified Mandamus - Call for records - Violation of principle of natural justice - Held that:- Irrespective of the submissions made by either counsel, without going into the merits of the matter, based on the circulars dated 29.06.1999 and 28.02.2001, issued by the Commissioner of Commercial Taxes, Chennai, petitioner is directed to pay 10% of the tax within four weeks from the date of receipt of a copy of this order. On such payment, the respondent is directed to consider the representation of the petitioner dated 03.05.2014 on re-submission together with the Form-C and Form-H declaration forms and re- open the assessment and receive the declaration forms and pass orders in accordance with law, within a period of four weeks thereafter - Decided against assessee.
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9911796707
