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Showing 501 to 520 of 1962 Records
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2017 (3) TMI 1463
Addition made u/s. 14A - Held that:- We find that there is no dispute that the assessee was having sufficient interest free funds available with it for making the investments in shares. It is equally true that the assessee could not demonstrate the nexus between the interest free funds and the purchases of shares. In our considered opinion and to meet the interest of justice, the disallowance u/s. 14A should be made to the extent of the exempt income claimed by the assessee. We, accordingly, direct the A.O. to restrict the disallowance to the extent of exempt income. Ground no. 1 is partly allowed.
Addition of undisclosed income - AO has calculated the average rate of "on money" charged on the bookings and sale made by the appellant by dividing the entire on money received inrespect of bookings / sales made by the total area sold - Held that:-VThe power of the assessing Officer to raise valid queries on the basis of the facts or unusual features noticed by him must be conceded. The features noticed by him in the assessees’ business certainly constitute a starting point of inquiry. They are, however, not to be taken as evidence or material showing any suppression or understatement of the sale price. If on further probe, the assessing Officer was able to unearth any evidence or material on the basis of which actual suppression of the sale price could be found, then the additions made on that basis would be valid. But it is not open to him, merely on the basis of what he perceives to be the market conditions, to make additions to the sale price or the profits, without any evidence of understatement.
In our considered opinion, the Assessing Officer has drawn a presumption that all the units booked after 07.10.2009 must have also fetched on money to the assessee. The A.O. has not made any further enquiry to substantiate or justify his presumption. The A.O. has not pointed out a single transaction in the books of accounts as not properly accounted for in the books vis-à-vis the details furnished by the assessee.No doubt, the assessee has made disclosure of additional income of ₹ 9 crores for the conveyance done and bookings done for the period between 01.04.2009 and 06.10.2009 but this by itself cannot prompt the A.O. to presume that the assessee must have done the same thing which he has done prior to 07.10.2009 - Decided in favour of assessee
Disallowance of interest expenditure claimed u/s. 36(1)(iii) - Held that:- A.O. has not disputed the fact that the assessee has sufficient interest free funds, therefore, the ratio laid down by the Hon’ble Supreme Court in the case of Munjal Sales Corporation (2008 (2) TMI 19 - Supreme Court ) squarely apply. Further, we find that the A.O. has questioned the commercial prudence of the assessee which is against the ratio laid down by the Hon’ble Supreme Court in the case of S.A. Builders Ltd. (2006 (12) TMI 82 - SUPREME COURT ) wherein the Hon’ble Supreme Court has held that the businessman alone can decide the reasonableness or business expediency of the expenditure. We, further find identical additions were deleted in an earlier assessment years. - Decided in favour of assessee
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2017 (3) TMI 1462
Addition u/s 68 - un-explained cash deposits by the assessee in Mahila Vikas Co-operative Bank - assessment u/s 153A - Held that:- On perusal of the assessment orders, we find that additions have not been made with the help of any seized material, therefore this judgment of Hon’ble High Court in the case of Saumya Constructions Pvt. Ltd [2016 (7) TMI 911 - GUJARAT HIGH COURT ] is squarely applicable on the facts of the present appeals. The additions in the absence of any seized material are not sustainable.
Accordingly we allow the appeals of the assessee and delete additions, in all these assessment years. As far as A.Y. 2004-05 is concern, one of the grievance of assessee is that Ld. CIT(A) has relegated the matter to the assessing officer for verifying the cash book in order to ascertain the source of cash deposit of ₹ 25,15,816. The Ld.CIA(A) has no such power. The Ld. Counsel, for the assessee has pointed that while giving effect to order of Ld.CIT(A) Assessing Officer did not make any additions and therefore otherwise the issue would become an academic one. Considering this development, we do not deem it necessary to upset the order of CIT(A) in A.Y. 2004-05. On this issue, otherwise also additions are not based on seized material and they are not sustainable. - Decided in favour of assessee.
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2017 (3) TMI 1461
Valuation - erection, commissioning & installation of the electricity transmission towers being supplied by the electricity recipient - whether the cost of the tower supplied by the Electricity Board is required to be added in the assessable value? - Notification No. 15/2004-ST and Notification No. 1/2006-ST dated 01.03.2006. - Held that: - the issue is squarely covered by the larger Bench decision of the Tribunal in favor of the appellant in the case of Bhayana Builders Pvt. Ltd. vs. CST, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] where it was held that the value of the goods and material supplied free of cost by a service recipient to the provider of the taxable service, being neither monetary or non-monetary consideration paid or flowing from the service recipient, accruing to the benefit of the service provider, would be outside the taxable value of the goods amount charged under the said notification - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1460
Valuation - includability - out of pocket expenses incurred by the appellant and reimbursed by the service recipient - Held that: - It is fairly well settled that service tax is liable only on the value of consideration received for providing the services. Out of pocket expenses which are in the nature of the conveyance, travel, mobile expenses etc. cannot be included for purpose of levy of service tax - issue needs to be remanded to the original adjudicating authority who is directed to consider the documents which will be submitted by the appellant and extend the benefit of deduction of out of pocket expenses after verification of the original documents - appeal allowed by way of remand.
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2017 (3) TMI 1459
Levy of tax - commission received as sub-broker - Held that: - the sub-broker who received commission from the main broker while main broker has paid the service tax on commission received by him cannot be once again subjected to service tax - reliance placed in the case of Commissioner of Central Excise, Kanpur Vs P.K. Khandelwal & Company and others [2016 (1) TMI 391 - CESTAT ALLAHABAD] where it was held that when the main broker has paid service tax then the commission received by the sub-broker shall not be subjected to levy of Service Tax - appeal dismissed - decided against Revenue.
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2017 (3) TMI 1458
Classification of service - Construction Services - classified under Commercial or Industrial Construction Services or works contract services? - Held that: - it appears that the entire construction services are meant for educational institutions or for the welfare of the State which are not commercial or industrial in nature - the institutions, being established solely for educational, religious, charitable, health, sanitation etc., are exempted from the Service Tax, but, when the Government construction is used for commercial or industrial purposes like shops and houses etc., then the same is within the clutches of the Service Tax - we remand the matter to the original authority for examining the nature of each entity for which the construction was made whether the same falls under the “Commercial or Industrial Construction Services” or not - appeal allowed by way of remand.
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2017 (3) TMI 1457
Short payment of tax - Erection, Commissioning & Installation Service - works contract service - Renting of Immoveable Property - Construction of Residential Complex Service - Held that: - SCN is vague as it does not state the premises on the basis of which demand have been proposed under ‘erection, commissioning and installation service’. Without there being a finding of erection of any such commercial flats/residential complex - The SCN is also vague on account of not giving bifurcation of the demand year wise and category wise - so far demand of ₹ 15,48,599/- is concerned the same relates to laying of cables or electrical wires including poles for the same alongside or under the road and such work was not taxable to Service Tax in view of Circular dated 24-05-2010 - the demand of ₹ 5,88,991/- with respect to work done in the nature of internal and external wiring in the residential houses/duplexes, there is no element of any construction of a commercial/residential complex as defined under the provisions of the Service Tax Act. Accordingly, demand of ₹ 5,88,991/-, is also set aside - for work done for Indian Railway Welfare Organization, in view of the fact that the work had been completed before 30-10-2004, there is no question of levy of any tax for the same under ECIS, which have become taxable with effect from 01-06-2005 - there is no element of suppression, fraud or any mala-fide on the part of the appellant and they have not concealed information or made any misstatement of facts before the Revenue. At the very first instance, the proprietor of the appellant has deposited the admitted tax liability and the issue being wholly interpretational, extended period of limitation is not attracted - appeal allowed - decided in favor of appellant-assessee.
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2017 (3) TMI 1456
Penalty - reverse charge - For the purpose of raising capital, appellant have received the services of non-resident institutions i.e. a person who has established a business or has a fixed establishment in a country other than India - The period in dispute is 18.04.2006 to 30.11.2007 - Held that: - recipient in India became liable to service tax for the service received from abroad only from 18.04.2006, after the enactment of Section 66A - this was the first time, since 18.04.2006, that the services provided by the appellant was brought under the service tax net. This was the initial period and first year, hence, the appellant was not aware of the provisions. However, soon after knowing about the liability, the tax was paid along with interest - Moreover, the appellant is an Agency of the government under Article 12 of the Constitution and no individual interest is involved. When it is so, there is no justification for levy of penalty - reliance placed in the case of INDIAN NATIONAL SHIPOWNERS ASSOCIATION Versus UNION OF INDIA [2008 (12) TMI 41 - BOMBAY HIGH COURT] - appeal allowed - decided in favor of assessee.
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2017 (3) TMI 1455
Business Auxiliary Service - Held that: - this issue had come up for consideration before this Tribunal in the case of Ferro Scrap Nigam Ltd. vs CCE, Raipur, [2014 (1) TMI 1049 - CESTAT NEW DELHI], where it was held that the said activity does not amount to manufacture and such order stands accepted by the Revenue, it has to be held that there was no production of goods.
Cargo Handing Service - Held that: - the same is squarely covered in favour of the assessee-Respondents by the ratio laid down in the case of Commissioner of Central Excise vs Manoj Kumar, [2012 (9) TMI 941 - ALLAHABAD HIGH COURT], where The sugar bags were not to be loaded or unloaded for any movement outside the factory on public roads, on any ships, aeroplane or trucks for onward movement to any destination. The activities will fall within the meaning of transportation of goods, and would certainly not be included in the definition of Cargo Handling Service which is the service exigible to Service tax.
Appeal dismissed - decided against Revenue.
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2017 (3) TMI 1454
Refund claim - denial on the ground that the appellant has not submitted any document required under Rule 4A of the Service Tax Rules, 1994 and debit notes is not sufficient document for the purpose - Held that: - in the assessee’s own case, on the identical set of facts, the claim was already allowed - matter remanded to the original authority to decide the issue afresh after examining the documents which can be produced by the appellant again - appeal allowed by way of remand.
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2017 (3) TMI 1453
Refund in cash - the appellants have filed the refund claim in respect of same duty amount which was deposited by M/s Escorts (TED) as per the order of the Settlement Commission - whether the refund claim filed by the appellants would amount to re-opening of the order of the Settlement Commission? - Held that: - during the material time, both M/s Escorts (TED) and Escorts Ltd. (TD), later known as AMG (Tractor Plant), were having common central excise registration and therefore seeking of the refund by Escorts Ltd.-AMG (Tractor Plant) paid by M/s Escorts (TED) would not only nullify the terms of the settlement, it would also be tantamount to re-opening and vitiating the proceedings of the Settlement Commission, which are conclusive in terms of Section 32F(7). Accordingly, the refund claim of ₹ 3,84,01,009/- filed by M/s Escorts Ltd- AMG (Tractor Plant) would be hit by proviso of Section 32F(7) and 32F(9) as also 32M of the Act and is therefore not sustainable on that ground.
Whether cash refund is allowed? - Held that: - The refund claim for differential duty was filed in 2005 under Rule 57E but the said Rule was not in existence at that point of time. Hence, the relief sought by appellants under Rule 57E is not available to the appellants even by virtue of provision of Section 38A ibid.
Appeal dismissed - decided against appellant.
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2017 (3) TMI 1452
SSI Exemption - clubbing of clearances - Held that: - both the units are separate, so clearance of the goods cannot be clubbed - matter remanded for re-examination of the facts.
Valuation - demand u/s Section 4A on the only ground that impugned products were sold through the appointed dealers and there were no direct sale to the industrial consumers - declaration u/r 34 - Held that: - the assessee has failed to file the declaration u/r 34 of the Standard of Weights and Measures (PC) Rules, 1977. When it is so, then in both the appeals, we restore the matter back to the Commissioner to examine the issue in the light of the above observations denovo.
Penalty not imposable - matter on remand - appeal allowed by way of remand.
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2017 (3) TMI 1451
Penalty u/s 11AC of CEA,1944 - clearance of Copper Strips, a raw material for manufacture of the Transformer, to their another unit, on reversal of the credit availed on the inputs - Revenue's case is that what cleared by them being input not as such but a processed one, therefore, the duty should be paid - Held that: - it was a mistake on the part of the excise clerk to ascertain the correct duty liability in as much as the inputs which were procured, later processed and became semi-finished goods, even though cleared to their sister unit, did not remain as such, hence the assessment of duty ought to have been made by determining its value applying Rule 8 by adopting CAS-4 method and not by reversing credit availed - the appellant after being pointed out by the audit and issuance of SCN, discharged the entire amount of duty and interest which is recorded by the Ld Commissioner (Appeals) in the impugned order. Thus, in absence of suppression of facts or mis-declaration, penalty u/s 11AC of CEA, 1944 cannot be sustained - appeal allowed - decided in favor of assessee.
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2017 (3) TMI 1450
Input service credit - outdoor catering service provided by the canteen contractor to the employees - wilful suppression of facts - penalty - Held that: - there is a positive act on the part of the appellant as they went on collecting the charges from the employees and also availing the Cenvat Credit in respect of the same - The burden of taking Cenvat Credit properly has been cast on the assessee under CCR, 2004 and the same was not discharged properly. In such a situation, the extended period can be invoked.
As for the penalty imposed on the appellants, the period involved in these SCN is from April, 2006 to March, 2008 and April, 2008 to December, 2008. The penalty has been proposed u/r 15 read with Section 11 AC in the first SCN and u/r 15(3) for second SCN. As rightly pointed out by the Ld. Advocate, Rule 15(1) and 15(2) ibid are not applicable in their case as the same pertain to inputs and capital goods. Rule 15 (4) of the credit Rules applies to provider or output services. Hence, the appellants are liable to penalty u/r 15 (3) of the CCR. Penalty is therefore, reduced to ₹ 4000/- i.e. ₹ 2000/- each.
Appeal allowed - decided partly in favor of assessee.
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2017 (3) TMI 1449
Refund claim - unjust enrichment - the prices were reduced retrospectively, therefore, the appellant's buyer issued debit notes to the appellant for non payment of duty on account of reduction of price - Held that: - the buyer has issued the certificate that they have not availed the cenvat credit of differential duty on account of subsequent reversal of price of the goods and they have not paid any differential duty to the appellant. To that effect the certificate has been issued by the buyer that differential duty has not been paid to the appellant. In the absence of any contrary views, the debit notes issued by the buyer is evidence to pass the bar of unjust of enrichment - reliance was placed in the case of Commissioner of Central Excise, Madras Versus M/s Addison & Co. Ltd. [2016 (8) TMI 1071 - SUPREME COURT] - the appellant is entitled for refund claim and as they have passed the bar of unjust enrichment - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1448
Benefit of N/N. 245/83 dated 13-09-1983 - eligibility for discount - P&P medicines - denial of benefit of notification on the ground that the appellant while claiming the discount of the price list have withheld vital information in as much as they have not submitted the documents showing the medicines has been specified in the DPCO 1987 and not declared at the footnote of the price list that the medicines figured in DPCO - Held that: - the departmental authority have been approving the price list from time to time, despite knowing that, the appellant have shown DPCO prices in the price list and claimed the discount of 15% in terms of Notification No. 245/83. If at all the authority has any doubt regarding the DPCO price, nothing prevented the department to call for necessary documents before approval of the price list. In the notification, there is no condition that price list with reference DPCO 1987 is required to be submitted - there is no suppression of the fact on the part of the appellant in as much as they have correctly declared all the details required in their price lists - Though the department is empowered to re-open the approval of price list, however the same can be done within one year or as the case may be five years depending on the facts whether there is any suppression of fact on the part of the appellant.
There is no suppression of fact, therefore it was only normal period of one year available to the department to re-open the approval of price list which the department failed to do so and therefore entire demand raised for the extended period is time barred.
Appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1447
Captive consumption - Valuation of goods - assessable value of the spun yarn at the spindle stage - N/N. 35/1995-CE dated 16.03.95 - Held that: - the issue has already been settled in their favor in their own case JCT LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, JALLANDHAR [2015 (1) TMI 889 - CESTAT NEW DELHI], where it was held that Since doubled/multi folded yarn is cleared for captive consumption within the factory for manufacture of fabrics the cost of widing, singeing and doubling/multi folding gets included the cost of fabrics which is cleared on payment of duty. Duty on cost of these processes cannot be charged at single yarn stage by including the cost of these processes in the value of yarn at the spindle stage - the impugned order qua demanding duty from the appellant is set aside and consequently, that part of the order is allowed.
As the appellant has not pressed the issue for consideration of the refund claim, therefore, on the said ground the appeal is dismissed as not pressed.
Appeal disposed off - decided partly in favor of assessee.
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2017 (3) TMI 1446
Clandestine manufacturing and removal - manufacturer of Pan Masala & Gutkaha - the appellant was operating their factory for about 12 hours instead of the stated 10 hours in the declaration and accordingly could have estimated the production or excess production during the additional 110 minutes - demand - Held that: - the whole demand have been raised by way of wild guesswork. The SCN does not disclose finding of any excess stock, than declared stock in the statutory records. The whole demand has been raised on the basis of estimated extra minutes of production per day, which is beyond the scope of the scheme of Act and the Rules - demand set aside - appeal allowed - decided in favor of assessee.
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2017 (3) TMI 1445
CENVAT credit - inputs which were found short during the course of final appraisal of the stock taking of the assessee - Held that: - there is no allegation against the respondent for diversion of inputs as such, in some cases inputs were found excess and in some cases inputs were found short i.e. to the small variation of 0.05% of the total inputs received - shortage of minor quantities i.e. 0.05% of the total inputs is within permissible limit - similar issue came up before this Tribunal in the case of Maruti Udyog Limited [2004 (6) TMI 155 - CESTAT, NEW DELHI], wherein it was held that If the shortages are within the tolerance limits fixed by an efficient management and certified to as within the norms by qualified accounting professionals, it would be unreasonable and unfair for tax authorities to take a different view - credit allowed - appeal dismissed - decided against Revenue.
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2017 (3) TMI 1444
SSI Exemption - branded goods of other person cleared on payment of duty - Held that: - in the case of CCE, Chennai Vs. Nebulae Health Care Ltd. [2015 (11) TMI 95 - SUPREME COURT], the Hon’ble Apex Court has held that if the branded goods have been manufactured at on behalf of the principle and same has been cleared on payment of duty, in that circumstances, for their own clearances, assessee is entitle for payment of exemption Notification - benefit allowed - appeal allowed - decided in favor of appellant.
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