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Showing 441 to 460 of 1328 Records

• 2014 (4) TMI 889
  

  Computation of deduction u/s 80HHC of the Act – Exclusion of sales tax and excise duty – Whether the Tribunal is right in directing the Assessing Officer to exclude excise duty and sales tax from the total turnover computing deduction u/s. 80HHC, even after insertion of Section 145A of the Act - Held that:- The decision in Commissioner of Income-Tax Versus Lakshmi Machine Works [2007 (4) TMI 202 - SUPREME Court] followed - The Tribunal has not committed any error in holding that the components of sales tax and central excise do not form part of sale proceeds for the purpose of Section 80HHC of the Act despite insertion of Section 145A of the Act – Decided against Revenue.

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• 2014 (4) TMI 888
  

  Disallowance u/s 94(7) of the Act - Short term capital loss on sale of mutual funds – Held that:- The assessee during the relevant year under consideration had bought and sold units or mutual funds of Birla Basic Indu. Sel. Sec. Fund and Reliance Vision Fund - A perusal of information with respect to transaction set out against SL No. one would show that the record date is 19.01.2007 and the date of purchase is 19.10.2006 which is within a three months from the record date - The assessee received by way of dividend on 19.01.2007 - The sale of the said securities took place on 23.01.2007 which was also within a period of three months from the record date, i.e. 19.01.2007 - the purchase date as well as the date of sale was not in consensus with the statutory period of time prescribed by section 94(7) – thus, there was no reason to interfere in the order of CIT(A) – Decided against Assessee.

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• 2014 (4) TMI 887
  

  Existence of Permanent establishment - DTAA between India and UK - Whether the stay of the seconded employees of the assessee for more than 90 days in India, engaged in providing managerial services to JCB India, constitute Services Permanent Establishment (P.E) - Held that:- TTA provides not only for the supply of IP Rights by the assessee to JCB India but also to depute its personnel for rendering services in connection with such IP Rights - The assignment of personnel by the assessee is not independent of TTA - the assessee was not to appoint and select some personnel for sending to JCB India, but was to depute its technical personnel on assignment basis - the supply of personnel on assignment basis is a part and parcel of the overall TTA read with IPAA and not de hors.

  Relying upon Dit (International Taxation) Versus Morgan Stanley And Company Inc. [2007 (7) TMI 201 - SUPREME Court] - there is no quarrel on the duration of stay of such personnel of the assessee which admittedly is more than ninety days within the twelve-months period - This position was duly admitted by the assessee before the Assessing Officer and such position has not been denied - all the requisite conditions for attracting the mandate of Art.5(2)(k)(i) stand satisfied inasmuch as there is furnishing of services including managerial services and such services are other than those taxable under Article 13 (Royalties and fees for technical services) - such services are rendered within India - services are rendered by the assessee through its employees and activities continued for a period of more than ninety days within twelve months period - JCB India constituted a service P.E of the assessee in India – the order of the CIT(A) set aside and the matter remitted back to the AO.

  Whether royalties/fees for technical services is taxable under Article 7 as held by the AO or Article 13(2) – Held that:- The amount of royalty and consideration for rendering of services by the employees of second category do not fall in para 6 of Article 13 and are hence chargeable to tax as per para 2 of Article 13 of the DTAA - As both these amounts make up the total consideration, its splitting into two parts, viz., towards royalty and employees of the second category has become academic, which would otherwise have been required if one of such components had fallen under para 6 of Article 13 for the computation of income as per Article 7 of the DTAA - In so far as fees for technical services for rendering of services by the employees of the first category is concerned, this falls under para 6 of Article 13 - Once the amount falls under para 6, it would automatically stand excluded from para 2 of Article 13 and would find its place under Article 7 of the DTAA.

  The amount of royalties or fees for technical services assumes the character of 'Business profits' on its arrival in Article 7 - Such amount will intermingle with other business profits, if already available as per Article 7 and will shed its character of royalty or fees for technical services in so far as the computation of income and its taxation under the DTAA is concerned - It is totally misleading to construe the amount of royalties and fees for technical services coming through Article 13(6) to Article 7 as retaining the same character as was there under Article 13 - the consideration for rendering of services by the employees of the first category is chargeable to tax under Article 7 of the DTAA and as such the provisions dealing with the computation and the taxation as provided under Article 7 shall apply pro tanto - separate details of receipts and actual expenses incurred for earning them are not available on record – thus, the matter is remitted back to the AO for fresh determination of the amount of income in terms of Article 7.

  The services rendered by the employees of the first category, being eight deputationists, constituted service PE of the assessee in India - The order holding is overturned and the view taken by the AO is restored - The second ground about the direction of the CIT(A) that the entire amount should be considered as royalty and not as business income is partly allowed – Decided partly in favour of Revenue.

  Levy of Interest u/s 234B of the Act – Held that:- The decision in DIT v. Jacabs Civil Incorporated [2010 (8) TMI 37 - DELHI HIGH COURT] followed - as the assessee included the amount of royalty and fees for technical services in its total income – the assessee is relieved from any interest liability u/s 234B of the Act – Decided in favour of Assessee.

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• 2014 (4) TMI 886
  

  Upholding of Penalty u/s 271(1)(c) of the Act - Time barred penalty proceedings – Matter remanded back from High Court - Held that:- The decision in CIT v. Reliance Petroproducts Ltd. [2010 (3) TMI 80 - SUPREME COURT] followed - The disallowance of expenses was made out of P&L A/c which was filed by the assessee along with its return of income - the expenses were disallowed by the AO and were allowed by CIT(A) which were further disallowed by the ITAT which itself shows that there was two possible views on the additions and various decisions as relied upon by the Ld AR has held under these circumstances the penalty u/s 271(1)(c) cannot be imposed - mere non acceptance of a claim for expenditure cannot tantamount to furnishing of inaccurate particulars of income – Decided in favour of Assessee.

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• 2014 (4) TMI 885
  

  Premium paid for the leasehold rights – liability to deduct TDS u/s 194I of the Act – Held that:- The decision in The ITO (TDS) 3 (5), Versus M/s. Wadhwa & Associates Realtors Pvt. Ltd. [2013 (9) TMI 261 - ITAT MUMBAI] followed - the premium is not paid under a lease but is paid as a price for obtaining the lease, it proceeds the grant of lease - it cannot be equated with the rent which is paid periodically - the payment made to MMRD is also for additional built up are and also for grating free of FSI area, such payment cannot be equated to rent - the word Rent does not include premium paid for additional FSI or lease hold rights - payments were made to MMRDA for additional build up area and lease hold rights - such payments cannot be termed Rent and therefore provisions of section 194 I are not applicable – thus, the order of the FAA upheld – Decided against Revenue.

  Applicability of section 201 and 201(1A) of the Act – Held that:- The letter dated 04.05.2007 MMRDA had informed the assessee that it had approved the proposal of offer of allotment of the plot of land for construction of two level underground car park with ground above - Lease was offered for a periods of 80 years - the transaction has to be held a lease and that provisions of section 201(1) and 201(1A) are not attracted for non-deduction of tax at source – thus, the order of the FAA set aside – Decided in favour of Assessee.

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• 2014 (4) TMI 884
  

  Denial of refund claim - Whether appeal u/s 86 lies before the tribunal or revision to be filed before the government - Jurisdiction of tribunal - Revenue contends that a specific reference of Section 35EE (of the Central Excise Act) precluded an appeal under Section 86, and that the remedy available to the assessee was a revision to the Central Government - Held that:- Parliament always intended that an appellate remedy should be available in respect of refund and rebate claims. That power was exercisable by the CESTAT. The amendment of Section 83, in 2012 did not disturb the appellate remedy, i.e Section 86; the amendment did not limit the appellate power in any manner whatsoever. It is a settled position of law that exclusion of jurisdiction of courts and tribunals should be by way of express provisions, or through necessary intendment. - amendment to Section 83 by making a specific reference to Section 35EE of the Central Excise Act, did not make any difference to the nature of jurisdiction exercisable by the CESTAT under Section 86; it continued to possess jurisdiction to decide on matters pertaining to rebate and refund.

  Since CESTAT did not decide the matter on merits, its decision – holding that it lacked jurisdiction- is set aside. The CESTAT shall consequently decide the merits of the appeal pending before it, after hearing the parties. - Decided in favor of assessee.

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• 2014 (4) TMI 883
  

  Waiver of pre deposit - Held that:- We have not the slightest doubt that having filed the proceeding before the tribunal, the petitioner ought to have pursue the same with all seriousness. Repeated adjournments were neither justified nor can be found and fault with the tribunal in not adjourning the proceedings time and again. Nevertheless, in facts of the case when it is pointed out to us that at-least on the last occasion the reason pressed was sickness of representative of the petitioner and when by an ex-parte order, pre-deposit of sizeable amount of ₹ 1 crore came to be imposed, in our opinion, the petitioners deserve one last opportunity to argue the petition for waiver of pre-deposit on merits before the tribunal. This however, cannot be done unconditionally. The petitioner must pay reasonable heavy cost for availing such an opportunity.

  In facts of the case, therefore, orders dated 2.8.2013 and 3.12.2013 passed by the tribunal are set aside, the proceedings are placed back before the tribunal for consideration on merits and disposal in accordance with law. For such purpose, tentatively we fix the date of 21.4.2013 before the tribunal. This is only in order to ensure that no fresh notice shall have to be served to the parties of such proceedings. It is made abundantly clear that if on such date the tribunal wishes to reschedule the hearing, it would be absolutely open for the tribunal to do so - Decided partly against assessee.

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• 2014 (4) TMI 882
  

  Demand of service tax - recovery of service from third party - barely two days after the show cause notice, the department wrote two separate letters to M/s.Reliance Industries Limited and M/s.Essar Oil Limited, both service recipients from the petitioners calling upon them to make service tax payment - Held that:- The petitioners have raised several disputes including the dispute that some of the services having been provided in the special economic zone areas, service tax is not applicable. We are not judging the validity of such contentions. All that we are suggesting is that when the show cause notice was issued by the department to which the petitioners have raised their objections, recoveries without adjudication of such disputed taxes was simply not permissible in law. We notice that section 73C of the Finance Act 1994 allows the department to make provisional attachment of the properties of the assessee during the pendency of the proceedings under section 73 or 73A of the Act for the purpose of protecting the interest of the Revenue. Such provision cannot be activated for seeking recovery even before adjudication.

  Recovery of unpaid tax is to be made as per section 87 of the said Act which provides for the power and procedure for such recoveries - within two days of issuance of show cause notice, the respondents issued recovery orders against the customers of the petitioners, which in our opinion, was not simply permissible - However, assessee directed to make service tax payment - Decided partly in favour of assessee.

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• 2014 (4) TMI 881
  

  Denial of refund claim - Banking and other Financial Services - appellant had collected this amount from M/s.Tamil Nadu Electricity Board @ 8% for the services rendered during 1.4.2003 to 30.5.2003. Subsequently, they have refunded the amount to TNEB which was originally collected in excess and filed the refund claim - Held that:- it is seen from the adjudication order that the appellant placed copy of the trial balance as on 31st March 2004 wherein they have claimed the amounts sought for refund as 'receivables'. The appellant by their letter dt. 16.2.2005 submitted that they have refunded the amount to the TNEB towards excess collection of service tax for the period from 1.4.2003 to 13.5.2003. On perusal of the adjudication order, it is not clear that as to whether TNEB refunded the amount to the appellant. In my considered view the matter is required to be examined by the original authority afresh in the light of the decision of the Hon'ble Rajasthan High Court in the case of A.K. Spintex Ltd. (2008 (11) TMI 89 - RAJASTHAN HIGH COURT) and the Tribunal's decision in the case of TFL Quinn India Pvt. Ltd. (2011 (8) TMI 989 - CESTAT BANGALORE). Accordingly, the impugned orders are set aside and appeal is allowed by way of remand - Decided in favour of assessee.

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• 2014 (4) TMI 880
  

  Rate of Tax - Imported "electronic equipments’ – Classification - The "electronic equipment’s imported by Assessee, whether come within the term "machinery" referred to in the schedule of U.P. Tax on Entry of Goods into Local Areas Act, 2007, which has come into force w.e.f. 01.11.1999 – "machinery" – Item 2 of schedule of Act, 2007 - Held that:- In totality the instruments referred to above imported by assessee constitute and satisfy the term "machinery" and its parts (including spare parts) and, therefore, the view taken by authorities below cannot be said to be erroneous – Relying upon Commissioner of Income Tax, Madras Vs. Mir Mohammad Ali, [1964 (4) TMI 12 - SUPREME Court] – SC held that a diesel engine itself is a machinery.

  The mere fact that such a device is considered to be an "electronic equipment" would not make any difference for the reason that the term "electronic" means that it is operated by flow of electrons - In common parlance the term "electronic" is applied to a system or appliance which is operated by a flow of electron - In McGraw-Hill, Dictionary of Scientific and Technical Terms (Second edition), the term "electronic" has been defined as pertaining to electron devices or to circuits or systems utilizing electron devices, including electron tubes, magnetic amplifiers, transistors, and other devices that do the work of electron tubes - This Court considered the items in question which have been imported by assessee, hence has no hesitation or doubt in holding that these items form "machinery" used for the purpose of transmission of voice from one place to another and this process is called telecommunication – Therefore, items imported by assessee are taxable, since covered by Item 2 of the schedule of Act, 2007 - The order of Tribunal is confirmed - The revision being devoid of merit, is dismissed – Decided against assessee.

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• 2014 (4) TMI 879
  

  Validity of Revision Order – Evasion of Tax - Whether on the basis of suppression of turnover, the assessee; the second seller of goods taxable at the point of first sale, could be mulcted with the liability to pay tax, since the evasion of tax would be by the first seller – Suppression of turnover - Penalty - Held that:- What the review petitioner seeks is to review the final order passed in Revision on the basis of a penalty order passed by the Intelligence Officer is passed in total disregard to the final order passed in Revision; though the said order was specifically noticed and read by the Intelligence Officer – The matter cannot be covered under jurisdiction conferred u/s 41(7) - The review petitioner contends that he has discovered new and important facts, which were not within the knowledge of the review petitioner and hence could not be produced by him - The orders relied on, being the assessment order and the penalty order passed against the alleged first seller, were even at that point of time (i.e., at the time of filing the review), reversed in appeal and revision.

  The revisional order is of the year 2007 and the appellate order is of the year 2008, both long before the consideration of STR by this Court - The review petitioner then relied on a subsequent order passed by the Intelligence Officer on remand, wherein the procedure contemplated under the Act was given a complete go-by and attempt was also made to reverse the findings rendered in the final order passed by this Court in STR; which was done on the false pretext of complying with the directions of this Court to re-do the matter afresh - There is absolutely no reason to review the order passed in S.T.Rev.No.11 of 2007 - The review petition is dismissed - Decided against assessee.

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• 2014 (4) TMI 878
  

  Permission for further transshipment – Representation capacity of transporter - Whether the transporter is person aggrieved and is entitled to release of goods, which have been detained and seized and can file representation and appeals against the orders – Held that:- Section 48(7) does not only refer to dealer, it also refers to the person in-charge of the vehicle and that would include a driver or transporter as well - Section 52 of the Act also uses the same words, namely the person in-charge of the vehicle to carry such documents as may be prescribed failing which it shall be presumed that the goods carried thereby are meant for sale within the State – Section 55 (1) (15) (iv) provides for penalty at 40% of the value of the goods on a person being a transporter or hirer of a vehicle, who prepares a goods receipt by showing false destination of goods outside the State.

  A transporter may carry the goods of several dealers and may be from States other than the neighbouring States, which may be far away in destination from the State of UP - It will be extremely unjust for owner of the goods to apply for release of the goods in the State of UP - The Legislature has used the words "any person aggrieved" and which would include the driver or the transporter of the vehicle - No need to go into the merit of the seizure inasmuch we find that the petitioner has a right to make a representation under the proviso to 47(7) for release of the goods, which have been seized by the respondents and if he is still aggrieved to file an appeal u/s 57 in Tribunal - The amendment application is allowed - In view of the order proposed to be passed, no reply is required to be given by the State respondents to the amended paragraphs – Decided in favour of Assessee.

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• 2014 (4) TMI 877
  

  Nature of the transaction - paper transactions - sales of raw skins - Transfer of consideration to sister concern - whether taxable sale or not - Held that:- Decision in State of Karnataka Versus Azad Coach Builders Pvt. Ltd. and another [2010 (9) TMI 879 - SUPREME COURT OF INDIA] followed –Tribunal`s order cannot be accepted solely on the basis that the financial transactions with any finance company would ultimately decide the character of the transaction between the purchaser and the seller - All the dealings that the finance company had would be the arrangement that the dealer had with the finance company for bill discounting - Beyond that, the agreement with the finance company could be taken in as the basis for deciding whether at all there was any transaction of purchase or sale between the parties.

  The assessee does not deny the fact they had issued invoices in the name of the assessee herein in respect of the sale of dressed skins - The question as to whether there had been a taxable sale or not must be looked at from the facts other than the bill discounting transaction and the purchase ledger extract – This does not supply the necessary proof that the assessee had no transaction at all except as a paper transaction - When the assessee was confronted with the documents, the proper course for the assessee was to place necessary materials to show that these transactions were only paper transactions - In the absence of any such proof and the burden not being discharged by the assessee, we have no hesitation in restoring the assessment – Plea of the assessee that in the matter of calculating penalty, the AO ought not to have taken in the AST liability to work out the penalty at 150% - Decided partly in favour of revenue.

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• 2014 (4) TMI 876
  

  Denial of rebate claim - Violation of principle of natural justice - Held that:- Impugned order passed is in violation of the Principles of Natural Justice. The notice was issued on 01.09.2007. 7 days' time has been allowed to file the reply. Certain documents had been relied upon in the show cause notice. In paragraph 19 of the writ petition, it is stated that the said show cause notice has been received by the petitioner on 3rd September, 2007, therefore, the petitioner has 7 days' time to file the reply. According to the petitioner, the reply was filed on 10.09.2007. In paragraph 24 of the writ petition, it is stated that the reply of the show cause notice was filed on 10.09.2007. Para 24 of the writ petition has been replied by 24 of counter affidavit, wherein filing of reply on 10.09.2007 has not been disputed. It is unfortunate that even though, the reply was received on 10th September, 2007 but in the impugned order, it is alleged that no reply has been filed and no request has been made for the personal hearing - Matter remanded back - Decided in favour of assessee.

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• 2014 (4) TMI 875
  

  Review application - Held that:- Court while deciding the appeal vide order dated 02.07.2007 has remanded back the matter to the Tribunal for reconsideration. This Court has not condoned the delay and when the matter came up for consideration before the Tribunal. Tribunal following the decision of the Apex Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur (2007 (12) TMI 11 - SUPREME COURT OF INDIA) has held that Commissioner (Appeals) is empowered only to condone the delay of 30 days and not beyond that, in terms of Section 35 of the Central Excise Act, 1944 and Section 5 of Limitation Act, 1963 does not apply. Therefore, even if it is taken that the decision of this Court is binding upon the parties, it will not help the applicant because no positive view condoning the delay has been taken by this Court and matter has been remanded back for reconsideration. Thus, Tribunal has to decide the appeal in view of the law laid down by the Apex Court - Decided against the assessee.

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• 2014 (4) TMI 874
  

  Waiver of pre-deposit - Penalty under the provisions of Rule 26 of the Central Excise Rules, 2002 - Held that:- main noticee M/s. Banco Ltd. had settled the issue by paying the duty liability and the interest thereof before the issuance of show cause notice and the excise authorities have accepted such settlement and the adjudicating authority has given the benefit of provisions of Section 11A(2B) of the Central Excise Act, 1944 for non imposition of penalty on the main noticee - proceedings against the main noticee being concluded, and the show cause notice being common to all noticees, the co-noticee need not be charged with any penalty under provisions of Rule 26 of the Central Excise Rules, 2002. I find that the appellant has made out a prima facie case for the waiver of the pre-deposit of the amounts involved. Accordingly, application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Following decision of the case Tikam P. Bhojwani [2011 (3) TMI 893 - CESTAT, AHEMDABAD] - Stay granted.

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• 2014 (4) TMI 873
  

  Waiver of pre-deposit - Availment of CENVAT Credit - Held that:- as regards the service tax paid on canteen service, housekeeping service and repairing of motor vehicles, prima facie credit seems to be available to the appellant as these are required for the purpose of conducting the business activity. There are various case laws which have decided as to these services are eligible as input services - appellant needs to be put to some condition at least in respect of the input credit availed by him on the commission agents invoices which indicated service tax paid. On specific query from the bench, ld. counsel submits that the service tax credit availed on the services rendered by commission agent comes to approximately Rs.2.50 lakhs - Conditional stay granted.

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• 2014 (4) TMI 872
  

  Waiver of pre deposit - Availment of CENVAT Credit - Held that:- Prima facie, I find that in this case the only ground on which the department seeks to denying the Cenvat credit to the appellant is that the activity of the supplier M/s Tata Ryersons does not amount to manufacture and as such the amount paid by the supplier to the department in respect of clearances of the cut CR sheets is not central excise duty. Prima facie, I find that there is no evidence that the assessment of duty at the end of M/s Tata Ryersons has been reviewed. It is well settled law that Cenvat credit to a manufacturer in respect of certain inputs received by him cannot be denied by his Jurisdictional Central Excise Authorities by seeking to review the assessment at the end of the supplier [Apex Court’s judgment in the case of CCE vs. MDS Switchgear Ltd. reported in {2008 (8) TMI 37 - SUPREME COURT }]. In view of this, the impugned order does not appear to be correct and, as such, the appellant have a strong prima facie case in their favour. The requirement of pre-deposit of Cenvat credit demand, interest and penalty is, therefore, waived for hearing of the appeal and recovery thereof is stayed till the disposal of the appeal - Stay granted.

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• 2014 (4) TMI 871
  

  Non-Compliance with Judgment & Direction of Supreme Court – Requisite information w.r.t. 212 unclaimed waste containers - Non-filing of Personal affidavits – Non-incineration of containers – Contempt proceedings - Whether there are containers which are hazardous and are yet to be incinerated - Held That:- Judgment in Research Foundation for Science, Technology and Natural Resource Policy v. Union of India and Ors. [2012 (7) TMI 263 - SUPREME COURT OF INDIA] followed - This Court is informed that 212 containers are lying with damaging contents of waste oil and various other wastes – This Court expressed their distress at the attitude of the Central Government and all related agencies because they did destroy 133 containers after the judgment rendered earlier by this Court in Research Foundation for Science v. Union of India and Anr. - The said judgment also mentioned the existence of other 170 containers with which are presently concerned - For the reasons best known to them nothing has been done by the Government about these containers all these years – SC directed that these affidavits will be filed on or before 17th February, 2014 and the matter to be listed on 18th February, 2014 – Decided in Favour of appellants.

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• 2014 (4) TMI 870
  

  Bar of Limitation – Refund of Special additional customs duty (SAD) - Notification no. 102/2007-Cus – Absence of limitation period in the original Notification - Can period of limitation for preferring refund claims, specified in the amending notification be made applicable with retrospective effect, in absence of a limitation period in the original Notification in respect of goods imported prior to the issue of the amending notification – Held That:- In the absence of specific provision of Section 27 being made applicable in the said notification, the time-limit prescribed in this section would not be automatically applicable to refunds under the notification - With the introduction of the circular and then amended notification (No. 93), the Customs authorities started insisting that such limitation period which was prescribed w.e.f. 01.08.2008 by notification became applicable - There is a body of law that essential legislative policy aspects period of limitation being one such aspect cannot be formulated or prescribed by subordinate legislation.

  Relying upon Khemka and Co. Private Ltd. v. State of Maharashtra [1975 (2) TMI 91 - SUPREME COURT OF INDIA] - In matters which deal with substantive rights, such as imposition of penalties and other provisions that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or rules cannot prevail or be made, in such cases - The imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail - This Court holds that the amending notification must be read down to the extent that it imposes a limitation period - Decided in favour of assesse.

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