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Showing 481 to 500 of 1389 Records

• 2014 (7) TMI 910
  

  Admission of appeal – AO was of the view that no business activity carried – Telecommunication service – Held that:- The Tribunal was of the view that the assessee did not start providing telecommunication services in the period relevant to the AY 1996-97 - whether or not the assessee started providing telecommunication services in any year, has to be decided in the assessment proceedings for that year in the light of the relevant facts and circumstances obtaining in that assessment year alone – Relying upon New Jehangir Vakil Mills Co. Ltd. Versus Commissioner of Income-tax [1963 (4) TMI 60 - SUPREME COURT] - Tribunal was rightly of the view that the AO materially erred in reopening the issue – there was no reason to interfere with the order of the Tribunal - The appeal is admitted on the remaining two issues as to entitlement of deduction u/s 80IA and allowability of expenses as license fees u/s 37(1) – Decided partly in favour of Revenue.

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• 2014 (7) TMI 909
  

  Exemption u/s 11 and 12 – Investment being 5% - Whether the Appellate Authorities were correct in holding that the investment made would be less than 5% of the capital of the assessee if the borrowed amount is treated as capital and the investment is made in furtherance of the objective of the Trust and exemption u/s 11 and 12 should be granted – Held that:- If the funds invested in a concern in which any person referred to in section 13(3) has substantial interest, does not exceed 5% of the capital of that concern, the exemption u/s 11 and 12 of the Act shall not be denied - The word used is 'Capital' of the concern, the word 'Capital' has not been defined under the Act.

  Relying upon Commissioner of Wealth Tax Vs. Lallubhai Gordhandas Charitable Trust [1999 (9) TMI 85 - GUJARAT High Court] - especially while granting the benefit to the charitable institution, when the legislature consciously provided for the funds of the Trust by way of investment and they have fixed a limit of 5%, by placing an interpretation which is contrary to the expressed words, benefits cannot be denied to the assessee - computation is to be made for investment by charitable trust - The word "capital" of the concern should be understood as the total capital of the concern - Both the Tribunal and the Appellate Authority were justified in holding that the capital of the concern with regard to a company cannot be considered as only a share capital – no substantial question of law arises for consideration – Decided against Revenue.

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• 2014 (7) TMI 908
  

  Manipulation of bank account - AO has computed the peak deposits in each bank and half of the amount was taxed in the hands of the assessee and rest of the amount was taxed in the hands of his brother – Held that:- CIT(A) rightly held that the deposits in these accounts can be made by foreign remittances / drafts - Shri Mohd. Mohsin in his statement u/s. 132(4) had also given details and the reason for the possession of bank passbooks / cheque books - The accounts seized at the time of search were NRE accounts - Since inception when the raid was conducted, the assessee's stand was that the purpose of having all those accounts was to issue presigned cheques for charity - assessee and his brother had no connection with those bank accounts - they have not derived any benefits from those accounts – revenue has not established any nexus of the accounts with the business activity of the assessee - only foreign remittance was permissible to transfer the funds in NRE account - CIT(A) was right in holding that the addition was merely on a conjecture that the bank accounts belonged to "poor and gullible" relatives of the assessee, the deletion is upheld – Decided against Revenue.

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• 2014 (7) TMI 907
  

  Adjustment of book profits – Held that:- CIT(A) has considered the sources of borrowed funds during the year - None of the loans have been utilized for the investment into shares of the companies - provisions of sub-clause (ii) of Rule 8D(2) are very clear on this wherein it has been provided that only interest expenditure is required to be considered which is not directly attributable to any particular income or receipt - there was no error in the findings of the CIT(A) in so far as interest expenditure of ₹ 16.22 crores is concerned – Decided against Revenue.

  Applicability of section 14A r.w Rule 8D - Non-consideration of balance interest and administrative expenses – Held that:- There is no mention of Special Purpose Vehicle in the assessment order nor the AO has given any findings on the net worth vis-à- vis investments of the assessee- the fact relating to the Special Purpose Vehicle was not before the AO, the matter is remitted back to the AO for fresh adjudication – Decided in favour of Assessee.

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• 2014 (7) TMI 906
  

  Re-Assessment Proceedings u/s 148 – Reassessment initiated u/s 115WG – Held that:- The return was processed u/s. 115WE(1) of the Act -The return was accompanied by statutory report wherein it was specifically mentioned that the assessee has not considered the expenses on account of conference and meeting, business promotion Telephone-mobile expenses, Travel expenses, lodging and boarding expenses for FBT - the expenses have not been considered for the levy of FBT because they are legitimate business expenditure and not pertaining to welfare of employees and hence not liable to FBT u/s. 115WA of the Act.

  The reasons disclosed by the AO that there was escapement of income on going through the return of FBT filed by the assessee after he accepted the return u/s. 115WE(1) without scrutiny and nothing more - there is nothing in the reasons recorded to show that any tangible material had come into the possession of the AO subsequent to the issue of intimation - Relying upon CIT Vs Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA] - even in the cases of assessment u/s. 115WE(1), the reopening of the assessment cannot be made unless there is some new tangible material evidence to support the reopening of the assessment - the notice issued u/s. 115WG is set aside – Decided in favour of assessee.

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• 2014 (7) TMI 905
  

  Jurisdiction of Order u/s 201(1)/201(1A) – Obligation to deduct TDS u/s 194A on interest accrued on deposits - Applicability of section 194A for site restoration fund - Interest has been credited by SBI on SRF a/c which has been opened by ONGC with it as per the provisions of section 33ABA - the nature of receipt is to be decided at the first instance - The interest accruing to SRF a/c is income of ONGC and the deeming provision as per third proviso to section 33ABA(1) of treating it as deposit is essentially application of income - ONGC is accounting for the interest in its P&L A/c and then claiming deduction of deposit which includes the interest accrued on SRF a/c - The deeming fiction contemplated in third proviso is for the purposes of section 33ABA only and cannot be extended beyond the purpose for which it has been inserted in section 33ABA.

  It is the nature of receipt being interest, which triggers the applicability of provisions of section 194A and if the assessee was claiming for no TDS then it should have obtained certificate u/s 197 for non-deduction/ at lower rate - The interest income does not loose its character merely because of the deeming provisions u/s 33ABA treating the accrued interest being treated as deposit - the nature of a receipt is to be decided at first instance; and secondly, this sub-section does not make the withdrawals chargeable to tax till the account is not closed - It is not the case of assessee that when withdrawal is made on closure of account, then also the amount withdrawn is to be subjected to TDS - this sub-section refers to entire credit balance lying in this account and not only the accrued interest - section 33ABA(5) brings to tax the amount which was earlier allowed as deduction.

  The deposits contemplated u/s 33ABA need not necessarily come from business of extraction or production of petroleum or natural gas because of the word used 'consisting' in sub-section (1) of section 33ABA - The deposits can be made from any other source of income also - no parity can be drawn between interest accruing to SRF a/c and the withdrawals made u/s 33ABA(5) which are assessable as business income - it cannot be held that interest accrued on SRF a/c was not chargeable to tax in the year of accrual – thus, the provisions of section 194A are not applicable – Decided against Revenue.

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• 2014 (7) TMI 904
  

  Payment of pension and gratuity funds u/s 43B – Expenses not debited to P&L A/c – eligibility for deduction u/s 37 – Held that:- CIT(A) was of the view that the purpose of S.43B is to ensure that the employer does not retain the amount with himself, after making certain statutory deductions in connection with the welfare of the employees - It is to plug such delayed/non-payment of deducted amount, S.43B was introduced - since the assessee has made the payment before the due date for the filing of the return, assessee is entitled for deduction, and disallowance in terms of S.43B was not warranted - CIT(A) noted that the amount is allowable as a business expenditure under S.37 of the Act – Relying upon Joint Commissioner of Income-tax (Assts.), Spl. Range 3, Hyderabad Versus Lamtuff Plastics Ltd. [2006 (1) TMI 535 - ITAT HYDERABAD] - irrespective of the method of accounting followed by the assessee, and the fact that the assessee has not debited the payments made towards gratuity and pension fund to Profit & Loss Account, disallowance made by the AO in terms of S.43B is not warranted – Decided against Revenue.

  Amount spent on Andhra Rural Development Trust – Expenses for the purpose of business or not – Held that:- The expenditure claimed by the assessee treated as expenditure having been incurred by the assessee in discharge of its corporate social responsibilities, which also facilitated the business of the assessee, and hence allowable as deduction under S.37(1) of the Act – Following the decision in THE COMMISSIONER OF INCOME TAX, BANGALOR & OTH. Versus M/s INFOSYS TECHNOLOGIES LTD [2013 (7) TMI 451 - KARNATAKA HIGH COURT] - thus, the amount spent by the assessee-bank, was not only in discharge of corporate social responsibility to train the rural youth, but also to indirectly to promote its own business, since the rural youth trained were its prospective clients, as the bank also intended to extended credit facilities to such unemployed youth for starting their own enterprise – there was no infirmity in the order of the CIT(A) – Decided against Revenue.

  Expenses on public issue u/s 35D – Held that:- CIT rejected the claim of the assessee, observing that the assessee is not an industrial undertaking and as such it is not entitled to claim deduction in respect of such expenditure – Following the decision in Andhra Bank Ltd. Versus Dy. Commissioner of Income- tax, Circle - 1(1), Hyderabad [2013 (10) TMI 415 - ITAT HYDERABAD] - order of the CIT(A) is upheld – Decided against Assessee.

  Provision for bad debts u/s 36(1)(viia) – Held that:- CIT(A), after considering the provisions of S.36(1)(viia) of the Act, and also the CBDT's Instruction No.17/2008 dated 26.11.2008, upheld the disallowance made by the AO - Following the decision in Andhra Bank Ltd. Versus Dy. Commissioner of Income- tax, Circle - 1(1), Hyderabad [2013 (10) TMI 415 - ITAT HYDERABAD] – Decided against Assessee.

  Premium paid to LIC towards leave encashment policy – Held that:- The payment of the premium is not an expenditure of the nature described in Sections 30 to 36 - Section 43B contains non-obstante provision and there in Clause (f) payment by the assessee as employer in lieu of any leave to the credit of its employees has been recognized as a revenue expenditure – The expenditure has been certified as an expenditure not for personal expenses of the assessee and that the same is wholly and exclusively for the purpose of the business or profession of the assessee - relying upon CIT V/s. Nainital Bank Ltd. [2014 (1) TMI 449 - UTTARAKHAND HIGH COURT] – Decided in favour of Assessee.

  Expenses on earning to tax free income under Rule 8D – Held that:- The assessee itself has disallowed an amount being two months' salary of offers and staff working in Investment Department under S.14A – AO has not properly appreciated the facts of the case and has mechanically applied Rule 8D - profit or loss has to be considered under the head 'business or profession' and the claim of expenses are to be considered under the head 'business' and provisions of S.14A and Rule 8D are not applicable - the disallowance offered by the assessee itself in terms of S.14A, working out to almost 2%, is quite reasonable and in consonance with the view taken by the Tribunal for the preceding year – Decided in favour of Assessee.

  Interest on Agricultural loan – Held that:- CIT(A) is not justified in equating the amount receivable from Government of India through Agriculture Debt Waiver and Relief Scheme, 2008 and credited to Profit & Loss Account with the provision for bad and doubtful debts, which is governed by the provisions of S.36(2)(v) – the amount merely on the basis of credit made to the Profit & Loss Account, cannot be brought to tax in the year under appeal – Relying upon CIT V/s Bokaro Steel Ltd. [1998 (12) TMI 4 - SUPREME Court ] - mere entries in the Profit and Loss Account and the books of account cannot clinch the issue with regard to taxability of an income - It is only such entries, which reflect the real income which can be brought to tax, in the relevant assessment year – Decided in favour of Assessee.

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• 2014 (7) TMI 903
  

  Miscellaneous expenses disallowed – Proof and proper verification – Held that:- The extent the expenditure claimed is not properly vouched, the manner and extent of such booking of expenditure can be examined, even probed, by the A.O., to arrive at a finding as to the extent of over-booking or inflation that attends the same, or can be reasonably attributable thereto - The assessee claiming proper substantiation, the entire case as built on surmise - The nature of the expenditure forming part of the impugned expenditure in the main suggests otherwise, making it all the more incumbent on the assessing authority to state his case explicitly - it is a clear case of non-application of mind by, in fact, both the authorities, by the first appellate authority being equally de hors and without reference to any specifics – there was non-discharge of the burden of proof on it by the assessee, leading to a state of factual indetermination, there was no basis to hold that in the instant case, the Revenue’s case being without reference to the primary facts, and imbued with a complete lack of objectivity, so that no prima facie case is made out for us to consider a set aside for fresh determination – Decided in favour of Assessee.

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• 2014 (7) TMI 902
  

  Penalty u/s 271(1)(c) - Failure to prove that income from property arisen due to systemic activity – Held that:- The assessee is in the business of taking the property on lease and further leasing out the same then treating the rental income as business income is a bonafide claim of the assessee though the same was not accepted by the AO - The issue of treatment of rental income as income from house property is highly debatable issue and rejection of such claim by the AO by taking a different view does not ipso facto lead to the conclusion that the assessee has furnished inaccurate particulars of income or concealed the particulars of income - rejection of claim would not tantamount to concealment of particulars of income or furnishing of inaccurate particulars of income warranting levy of penalty – Relying upon COMMISSIONER OF INCOME TAX-I, MUMBAI Versus M/s BENNETT COLEMAN & CO LTD [2013 (3) TMI 373 - BOMBAY HIGH COURT] - assessee has furnished and disclosed all relevant particulars regarding the income from letting out of the property - assessment of income under a different head by the AO resulting in disallowance of expenditure would not justify levy of penalty u/s 271(1)(c) particularly when the assessee is in the business of taking the property on lease and then letting out the same on sub-lease – Decided against Revenue.

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• 2014 (7) TMI 901
  

  Disallowance u/s 14A r.w. Rule 8D – Held that:- As decided in DCIT Versus Subhkam Monetary Services (P) Ltd. [2012 (5) TMI 310 - ITAT, Mumbai], the same has been followed - the matter has been remitted back to the AO with the direction to compute disallowance to be made u/s 14A of the Act on a reasonable basis by following the decision GODREJ AND BOYCE MFG. CO. LTD. Versus DEPUTY COMMISSIONER OF INCOME-TAX AND ANOTHER [2010 (8) TMI 77 - BOMBAY HIGH COURT] - the provisions of Rule 8D is not applicable to the instant year – Decided in favour of Assessee.

  Purchase and sale of shares treated as STCG and not business income – Held that:- CIT(A) has reversed the decision of the assessing officer by following his order passed for the immediately preceding year - the contention of the assessee is that the facts that prevailed in the immediately preceding year are materially different from the facts available in the instant year – there was not be any dispute that the question whether the income arising on sale of shares is assessable as Capital Gains or Business Income may be required to be examined every year by following various criterion illustrated by the Courts - assessee has filed additional evidences, they are required to be examined at the end of the AO – thus, the matter is remitted back to the AO for fresh adjudication – Decided in favour of Revenue.

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• 2014 (7) TMI 900
  

  Extension of stay of outstanding demand – Held that:- The Jurisdictional High Court, has held that the variation / modification in the terms of earlier stay granted by the Tribunal should not be disturbed as there has been no change in the facts and circumstances, when the original stay was granted - prima-facie the issue involved has not been settled finally against the assessee and also that there is no material change in the facts and circumstances of the case, the stay should be extended - the assessee has never sought any adjournment during the hearing of the appeal and it is only the Department which has been seeking adjournments from time to time - There is no fault on the part of the assessee for conducting the appeal – thus, the outstanding demand for the AYs is stayed for a further period of six months or passing of the order by the Tribunal in the appeal, whichever is earlier – Stay granted.

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• 2014 (7) TMI 899
  

  Foreign exchange system services provided - Article 13 Indo-UK DTAA – Royalty under clause (iva) of Explanation 2 to 9(1)(vi) – Held that:- Assessee is facilitating its clients to use its system and application programming interface which is subscriber interface for use with the related services includding Autoquote service - assessee is also providing the equipments with pre-loaded software to its subscribers and network used for provision of the services - it is clear from the terms and conditions of the contract between the parties that it is subscriber who is using the information and system of the assessee for their commercial/business purposes - the portal having system of matching the request along with the computer and internal access to the clients constitute integrated commercial equipment which performs complex functions of processing the request, providing information and facilitates the transaction of purchase and sale of foreign exchange by matching the demand and supply - The platform of transacting the purchase and sale is commercial equipment allowed to be used by clients/subscribers for commercial purposes - The payments made by Indian clients/subscribers to the Assessee for use and right to use of such equipment and information for processing their request of purchase and sale of foreign exchange constitute royalty.

  By allowing the use of software and computer system to have access to the portal of the Assessee for finding relevant information and matching their request for purchase and sale of foreign exchange amount to imparting of information concerning technical, industrial, commercial or scientific equipment work and payment made in this respect would constitute royalty - the income received by the assessee from the Indian Banks is in the nature of royalty - once the receipt has been decided as royalty in nature then there is no need to go into the question of assessee having PE in India - the provision of para 6 of Article -13 cannot be invoked in case when the receipt is found as royalty in terms of Article - 13(3) of the DTAA and assessee has not admitted any PE in India – Decided against Assessee.

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• 2014 (7) TMI 898
  

  Estimation of annual value of house property – Rent received disregarded - tax authorities have considered the value of property only for determining the Annual Rental value - Held that:- Charge u/s.22 is not on the market rent but is on the annual value and in the case of property which is not let out, municipal value would be a proper yardstick for determining the annual value - If the property is subject to rent control laws and the fair rent determined in accordance with such law is less than the municipal valuation, then only that can be substituted by the municipal value - the AO has determined the Fair rental value in both the years by considering the value of investment of the flat - CIT(A) has slightly reduced the same in AY 2006-07 and confirmed the same in AY 2007-08 - the tax authorities have considered the value of property only for determining the Annual Rental value – Relying upon Dy. CIT Versus Reclamation Realty India Pvt. Ltd.[2010 (11) TMI 477 - ITAT, MUMBAI] - the Standard rent / Municipal rateable value has to be considered as fair rental value - the rent received by the assessee is more than the municipal rateable value - the rent received by the assessee has to be taken as the Annual value u/s 23 of the Act – order of the CIT(A) set aside – Decided in favour of Assessee.

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• 2014 (7) TMI 897
  

  Search assessment u/s 153A – No incriminating materials found during search – Held that:- Assessment of income in case of search u/s 153A is to assess or reassess income for specified period – CIT(A) found that no specific seized document, much less incriminating, has been found, seized or brought on record by the AO in case of the assessee pertaining to the year - CIT(A) noticed that in the assessment order the AO has made discussion about list of 61 dummy concerns with bank accounts, undisclosed bank accounts & unaccounted business transactions pertaining to K.S. Oils Ltd., but none of them belongs or pertains to the assessee for the year under consideration nor there is any material on record proving assessee’s connection with the dummy concerns or undisclosed bank accounts or unaccounted transactions.

  Relying upon All Cargo Global Logistics Ltd. vs. Deputy Commissioner of Incometax, Central Circle-44 [2012 (7) TMI 222 - ITAT MUMBAI(SB)] - AO referred the material/incriminating material in respect of the group, K.S. Oils Limited as noted by the CIT(A) in his order - not a single document has been pointed out relating to the assessee even after specifically asked by the assessee - no incriminating documents or material were found during the course of search in the case of the assessee - Revenue has failed to point out any contrary material to the facts recorded and finding given by the CIT(A) - the additions are not warranted in the hands of the assessee - assessee has filed return for the AY under consideration in due course on 21.10.2004 declaring income which is same as per return filed u/s. 153A on 16.09.2011 after the search operations on 11.03.2010 - there are no pending proceedings to be abated, therefore, routine additions are not warranted - CIT(A) has rightly decided the issue in favour of the assessee – Decided against Revenue.

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• 2014 (7) TMI 896
  

  Calculation of book profits u/s 115JB - Interest expenses disallowed as unascertained liability - Held that:- Whether the interest liabilities constitutes ascertained one or not is also linked to the issue of rejection of books of accounts as the books of account is the basis for computation of book profits u/s 115JA of the Act - Following the decision in Hitesh S. Mehta Versus DCIT Central Circle- 23, Mumbai [2013 (10) TMI 1065 - ITAT MUMBAI] - the issue is to be remitted back to the CIT (A) for fresh adjudication – Decided in favour of assessee.

  Interest u/s 234A, 234B and 234C – Applicability of interest on notified persons - Held that:- The issue relating to the deduction of interest expenditure is remitted to the CIT (A) for fresh adjudication – thus, the liability of the assessees u/s 234A, 234B and 234C depends upon the proposed adjudication of the CIT (A) in the set aside proceedings – Decided in favour of Revenue.

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• 2014 (7) TMI 895
  

  Utilization of CENVAT Credit for payment of service tax - cenvat credit by the respondents earned on the inputs received for manufacture of excisable goods towards payment of service tax for "Business Auxiliary Service" - Held that:- the respondents are not only a manufacturer of excisable goods but also the provider of output services and both the activities are carried out in the same premises.

  Respondents are eligible for availment of input credit, they can utilize the cenvat credit available with them either for payment of excise duty on the final products or for payment of service tax on the output services as stipulated in the sub-rule (4) of Rule 3 of CCR 2004. The restrictions on utilization of cenvat credit stipulated in the CCR relates only for specific type of duties i.e. education cess on excisable goods or payment of educational cess on output services. There is no restriction for utilization of common input credit availed on the inputs and also on input services for payment of excise duty or service tax - there is no infirmity in the order of Commissioner (Appeals) in holding that utilization of input cenvat credit availed by the respondents for payment of service tax on the output service of Business Auxiliary Services rendered by them - Decided against Revenue.

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• 2014 (7) TMI 894
  

  Cenvat credit - Rent-a-cab service - Revenue contends that rented cabs were not exclusively used for the purpose of providing output service - Held that:- Commissioner has given a categorical finding that the cabs in respect of which credit has been taken were used for providing output service which would clearly make the impugned credit admissible. In the grounds of appeal submitted by the Department they have merely stated that the impugned cabs were not exclusively used for the purpose of maintenance etc. but have not given any evidence to that effect. The Commissioner (Appeals) also observed that Revenue had not given any evidence contrary to the submissions of the appellants - no infirmity in the impugned order - Decided against Revenue.

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• 2014 (7) TMI 893
  

  Demand of service tax - Transportation of effluent through pipeline or conduit - Whether appellant is liable to payment of Service Tax on the services of transportation of effluent through pipeline or conduit to M/s Heavy Water Project (HWP) on some consideration under Section 65(105)(zzz) - Held that:- As per definition of ‘goods’ given in Section 65 (50) of the Finance Act, 1994 the meaning of ‘goods’ for the purpose of Service Tax law has to be as assigned in Clause (7) of Section 2 of the Sales of Goods Act 1930. As per the provisions of Section 2(7) of Sales of Goods Act 1930 the goods has to be a category of ‘movable property’. Movable property in general trade parlance is considered as a property in goods which can fetch certain price. In the present facts and circumstances of the case the effluent discharge facility is for disposal of a waste which is not being purchased by any person but is only being disposed of by utilizing the services of the appellant. As the relevant facilities/services of transportation provided by appellant are not the ‘goods’ as defined in Section 2(7) of the Sales of Goods Act 1930, the same cannot be considered as a service provided for transportation of goods as per Section 65 (105)(zzz) of the Finance Act, 1994 read with Section 2(7) of Sales of Goods Act 1930 - Decided in favour of assessee.

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• 2014 (7) TMI 892
  

  Recovery of service tax arrears - challenge to the Show Cause notice on the ground that they have not received the said notices and they have been despatched to different address and they came to know about the same only in the first week of May, when the 2nd respondent declined to pay the amount for the work done by them. - Held that:- it is crystal clear that though the address of the petitioner has been mentioned wrongly in all the correspondence, they have been duly acknowledged by the petitioner with signature and rubber stamp. - Further, it appears that the petitioner themselves have written a letter to the department on 2.5.2014 stating that they are prepared and willing to deposit the necessary service tax within a given time. Therefore, nothing more need to be added. - petitioner directed to remit service tax wi thin 2 months. - writ petition disposed of.

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• 2014 (7) TMI 891
  

  Clim of refund by the recipient of services - excess service tax was paid by the service provider - difference due to downgrade revision in price - unjust enrichment - period of limitation - The case of the revenue was that it was the service provider, namely RGTIL which alone was entitled to file a claim before the Commissionerate concerned and RGTIL had recovered the service tax amount from various recipients. - Held that:- once the finding of the adjudicating authority that the claim for refund was filed within the period of limitation of one year under Section 11B was not challenged by the revenue before the first appellate authority, such a ground cannot be urged for the first time in an appeal before this Court. As a matter of fact, the ground was not even urged in the form of a cross objection before the Tribunal.

  The assessee is the recipient of the taxable service provided by RGTIL and had borne the incidence of service tax. Hence, the assessee is entitled to claim a refund of excess service tax paid consequent upon the downward revision of the transmission charges payable by the assessee to RGTIL in terms of the determination made by the Regulatory Board.

  The fact that the assessee has not passed on the burden has been amply established in the order of the adjudicating authority. - no merit in the case of revenue - Decided against the revenue.

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