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Showing 501 to 520 of 1439 Records
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2015 (7) TMI 942
Validity of Reopeing of assessment - Income assessed under wrong head - Held that:- Though it is the contention of the assessee that in the past the interest income on inter corporate deposits has been assessed as business income on the ground that the assessee has been engaged in the business of financing, bill discounting and inter corporate deposits, however, we find that the assessee in its written submissions dated 07.10.11 made to the Income Tax Officer has fairly admitted that the interest on fixed deposit with bank of ₹ 1,150/- and interest on IT refund of ₹ 4,580/- had inadvertently remained to be offered as income from other sources. The Ld. AO, while reopening the assessment, has also considered the said interest on bank deposits and interest with IT refund and has formed the opinion that the said income was assessable under the head “Income from other sources”. Since this fact of assessment of above income under the wrong head has also been admitted by the assessee, hence the order of the AO forming his opinion for reopening the assessment particularly in relation to the above said interest income on bank deposits and IT refund can be held to be justified. - Matter remanded back - Decided partly in favour of assessee.
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2015 (7) TMI 941
TDS from salary u/s 192 - Disallowance of deduction u/s 80C - short deduction of tax at source from payment of the salary - Interest u/s 201(1 A) - CIT(A) allowed claim for subsequent assessment years - Held that:- CIT(Appeals) in subsequent assessment years as noted and following the judgement of the High Court [2015 (4) TMI 272 - PUNJAB AND HARYANA HIGH COURT] allowed appeals of the assessee. The ld. CIT(Appeals) noted in these orders that the Provident Fund accounts of the employees of the assessee University are to be maintained by the office of CAG and consequent action to be taken qua transfer of funds from private Trust to the CAG. The contribution made by the employees is to be treated as contribution to Government Provident Fund and deduction under section 80C is allowable to these employees. The ld. CIT(Appeals), in view of the judgement of the Hon'ble High Court held that the assessee cannot be treated as assessee in default and accordingly, allowed the appeal of the assessee. - order of the ld. CIT(Appeals) cannot be sustained. The assessee, therefore, cannot be held to be assessee in default and accordingly, the orders of authorities below are set aside - Decided in favour of assessee.
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2015 (7) TMI 940
Penalty u/s 271 - Furnishing of inaccurate particulars of income of assessee - Held that:- CIT(A) has rightly held that the disclosures made by the assessee in this regard were bona fide and were not false or fanciful. We find that Ld. CIT(A) further observed that the assessee did not file inaccurate particulars of income in claiming deduction of the aforesaid amount. Therefore, the penalty levied by the Assessing Officer under section 271(1)(c) of the Act was rightly deleted by the Ld. CIT(A). In view of the above, we are of the view that no interference is called for in the well reasoned order passed by the Ld. CIT(A), hence, we uphold the same. - Decided against Revenue.
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2015 (7) TMI 939
Disallowance of depreciation on electrical installation - The assessee had claimed depreciation @ 15% on the electrical installations and further additional depreciation of 10% - Assessing Officer held that the electrical equipment was eligible for depreciation only at 15% as the same fell within the “electrical fittings” which were required for the power distribution to the plant and machinery - Held that:- A perusal of the items as mentioned in page 2 of the assessment order for the assessment year 2006-07, which are substantially the electrical items in respect of the claim of depreciation, shows that these are items which form part of the plant and machinery. These items are not simple electrical fittings, for example industrial cables, power distribution board, control cabin, converter panel, etc. do not have standard alone function. They are part of the plant and machinery. The electrical fittings as mentioned by the Income Tax Rules on which depreciation is specified at 10% are such items which can function on a standard alone basis such as fan, light and the attachments thereto representing wires, switches, etc. The items which have been mentioned in page 2 of the assessment order clearly are not simple electrical fittings. These go to form part of the plant and machinery. Consequently the same would have to be held to be eligible for depreciation at the rate provided for plant and machinery. - electrical installation was to be treated as part of plant and machinery for depreciation at the specified rate provided for plant and machinery. Revenue has not been able to dislodge this specific finding of the ld. CIT(Appeals), consequently the finding of the ld. CIT(Appeals) on this issue stands confirmed. - Decided against Revenue.
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2015 (7) TMI 938
Revision u/s 263 by CIT(A) - regarding service tax issue - Held that:- This is by now settled position of law that if there is lack of enquiry by the Assessing Officer or if there is lack of application of mind by the Assessing Officer, the assessment order is erroneous and prejudicial to the interest of Revenue and in those situations, the learned CIT can exercise his powers u/s 263 of the Act.
A very general query was raised by the Assessing Officer in his questionnaire dated 16/12/2010 and the assessee was asked to file copy of service tax account and copy of challans in order to enable the Assessing Officer to verify as to whether the payment was made or not but there is no query as to whether the service tax payment is allowable expenditure or not because the receipt were accounted for by the assessee after reducing service tax there from as has been stated by learned CIT in his notice and Learned A.R. of the assessee could not point out any defect in the reply available on pages 28 to 31 of the paper book also. There is no reply regarding service tax aspect and therefore, in our considered opinion, there is complete lack of enquiry on service tax aspect by the Assessing Officer.
Commission payment aspect - Held that:- Assessing Officer has very much raised a query regarding services rendered by commission agents with documentary evidence. But in the reply of the assessee, he has furnished copy of agreement and copy of commission bills along with the details of provisions of commission on handling charges, TDS, date of payment of TDS etc. but there is no evidence furnished by the assessee before the Assessing Officer regarding services rendered by the commission agents. Hence, in our considered opinion, there is lack of application of mind by the Assessing Officer even after making query and therefore, in the facts of the present case, the exercise of the revisionary power by learned CIT u/s 263 appears to be proper. - Decided against assessee.
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2015 (7) TMI 937
Revision u/s 263 by CIT(A) - sources for the deposits found in the SB Account with Axis Bank have not been examined and enquired into, as in the absence of details for sources for deposits in the SB Account, the Assessing Officer ought to have added back the total deposits found in the bank account u/s. 69 instead of making peak addition u/s. 68 - Held that:- The cash summary prepared and furnished by the assessee also does not indicate the source of cash receipts/inflow shown therein on various dates. The information and material furnished by the assessee before the Assessing Officer therefore, was not sufficient to apply peak credit theory for the purpose of making addition on account of cash deposits found to be made in the bank account of the assessee with Axis Bank, and as rightly concluded by the learned Commissioner, the order passed by the Assessing Officer under S.143(3) making addition by applying wrongly the peak redit theory without enquiring in to all the relevant aspects was erroneous as well as prejudicial to the interests of the Revenue, calling for revision under S.263.
The direction given by the learned Commissioner to the Assessing Officer in his impugned order is very specific to reassess the income for the year under consideration after carrying out necessary enquiries in his order. It is thus not a case where the learned Commissioner can be said to have kept the scope of the fresh assessment wide open, as sought to be contended by the learned counsel for the assessee.The impugned order of the learned Commissioner is accordingly upheld - Decided against assessee.
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2015 (7) TMI 936
Addition treating business loss as speculative loss in respect of loss on account of forex derivative contracts (Exotic Cross Currency Option Contracts) - Held that:- Explanation to sec.73 creates a deeming fiction by which among the assessee, who is a company, as indicated in the said Explanation dealing with the transaction of share and suffer loss, such loss should be treated to be speculative transaction within the meaning of sec.73 of the Act, notwithstanding the fact that the definition of speculative transaction mentioned in sec.43(5) of the Act, the transaction is not of that nature as there has been actual delivery of the scrips of share. As per the definition of sec.43(5), trading of shares which is done by taking delivery does not come under the purview of the said section. Similarly, as per clause (d) of sec.43(5), derivative transaction in shares is also not speculation transaction as defined in the said section. Therefore, both profit/loss from all the share delivery transactions and derivative transactions are having the same meaning, so far as sec.43(5) of the Act is concerned. Again, in view of the fact that both delivery transactions and derivative transactions are non-speculative as far as sec.43(5) is concerned, it follows that both will have the same treatment as far as application of Explanation to sec.73 is concerned. Therefore, aggregation of the share trading profit and loss from derivative transactions should be done before the Explanation to sec.73 is applied.
Both trading of shares and derivative transactions are not coming under the purview of Section 43(5) of the Act which provides definition of “speculative transaction” exclusively for purposes of section 28 to 41 of the Act. Again, the fact that both delivery based transaction in shares and derivative transactions are non-speculative as far as section 43(5) is concerned goes to confirm that both will have same treatment as regards application of the Explanation to Section 73 is concerned, which creates a deeming fiction.
From the above decision of the Calcutta High Court in the case of Baljit Securities Pvt. Ltd. cited [2014 (6) TMI 475 - CALCUTTA HIGH COURT] the issue stands covered in favour of the assessee. However, we make it clear that total transaction considered for determining this business loss from derivative transactions cannot be more than the total export turnover of the assessee for the assessment year under consideration and if the derivative transaction is in excess of export turnover, then that loss suffered in respect of that portion of excess transactions to be considered as speculative loss only as that excess derivative transaction has no proximity with export turnover and the Assessing Officer is directed to compute accordingly. This ground is allowed as indicated above. - Decided in favour of assessee.
Treating the capital of the firm introduced by the partner by cash as unexplained income u/s.68 - Held that:- If any capital is introduced by the partner, the assessee shall prove the identity of the partner, genuineness of the transaction and credit worthiness of the partner. In the present case, if the partner confirmed the introduction of the capital from their account then the burden cast upon the assessee is discharged as held by the Andhra Pradesh and Telangana High Court in the case of CIT vs. M. Venkateswara Rao, [2015 (3) TMI 153 - ANDHRA PRADESH HIGH COURT]. Accordingly, in the interest of justice, we remit the issue back to the file of the Assessing Officer with a direction to the assessee to place necessary evidence confirming the capital contribution by above partner before the Assessing Officer. This issue is remitted back to the file of the Assessing Officer for fresh consideration. - Decided in favour of assessee for statistical purposes.
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2015 (7) TMI 935
Deduction claimed u/s.80IA on turbine division denied - assessee company was engaged in manufacture of paper and production of electricity from windmills constructed co-generation building during financial years 2003-04 and 2004-05 to house the new Turbine cum boiler unit to produce steam and electricity - Held that:- The true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is all the same a new an identifiable undertaking separate and distinct from the existing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business. For the assessment year 2008-2009, the lower authorities for co-generation plant granted deduction u/s.80IA of the Act. They impliedly agreed that the new machinery and plant have been installed under separate premises and it is not appropriate to deny the same deduction for the assessment year 2009-2010.
The new unit had power as the main product and apart from servicing the captive consumption in the paper unit also could service the other power requirements. The pricing of power is also subjected to the various power tariff prescriptions. It can be clearly seen that the new undertaking is therefore not formed by the splitting up of the old undertaking. There is no case also made out by the lower authorities that the new undertaking is formed by the splitting up of the existing business. Further, the Supreme Court in the case of Textile Machinery Corporation (1977 (1) TMI 3 - SUPREME Court ) wherein held that new unit established by the assessee for manufacturing articles used as intermediate products in the old division, which the assessee was buying from the market earlier, is not reconstruction of business already in existence. To constitute reconstruction, there must be transfer of assets of the existing business to the new industrial undertaking. In our opinion, generation of power unit is separate and distinct undertaking for which separate approval was obtained and it cannot be said that splitting of existing business structure. Therefore, in our considered opinion, the lower authorities are not correct in denying the deduction under section 80IA of the Act. - Decided in favour of assessee.
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2015 (7) TMI 934
Sale of agricultural land - AO treating the income from sale of agricultural land as business income also upheld by CIT(A) - assessee claimed the same as exempt from income tax treating the same as agricultural land which is situated at a distance of more than 8 kms from the limit of any municipality - Held that:- There is no dispute to the fact that the land sold in question are agricultural lands. We do not find logic behind the argument of the Revenue that the assessee is definitely a man of means and there was no compelling circumstance to sale the land and therefore, such income has to be taxed as business income. In our opinion, if any income is otherwise exempt from tax as per the statute, the same cannot be brought to tax merely because assessee is a man of means or that the money so obtained has been utilised for some business in an organised manner etc. It is for the assessee to decide his affairs in the way he likes and the Revenue has no business to direct or advise the assessee to manage his affairs. We find an identical issue had come up before the Tribunal in the case of the brother of the assessee wherein the Assessing Officer treated the surplus from sale of agricultural land as business income which was held by the CIT(A) as exempt being surplus from sale of agricultural land.
Since in the instant case the assessee has sold the agricultural land in the year 2005 which were held by him for more than 7 years except in one case where the same was held for about 4 years, the details of which are extracted at para 11 of the impugned order and since there is also no dispute to the fact that the assessee was deriving regular agricultural income from the same land and further considering the fact that the Assessing Officer in the assessment order for A.Y. 2008-09 passed u/s.143(3) on 27-12-2010 has accepted the claim of the assessee that gain on sale of agricultural land at ₹ 96,61,250/- is not liable to tax and no addition has been made in orders passed u/s.143(3) for A.Yrs. 2001-02 and 2003-04, therefore, we are of the considered opinion that the CIT(A) was not justified in bringing to tax the surplus on sale of agricultural land as business income. - Decided in favour of assessee.
Treating agriculture income as undisclosed income under section 69A - Held that:- The agricultural income shown by the assessee during the impugned assessment year appears to be on the higher side. It is also an admitted fact that out of the total gross receipt of ₹ 7,69,115/- the assessee has received only an amount of ₹ 3 lakhs in cheque and the balance amount has been received in cash. The expenses claimed by the assessee are also unverifiable. Considering the totality of the facts of the case and the past records net agricultural income of ₹ 4,00,000/- for the impugned year, in our opinion, will meet the ends of justice - Decided partly in favour of assessee.
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2015 (7) TMI 933
Rejection of the books of accounts - assessment order under section 144 r.w.section 145(3) - Held that:- The defects pointed out by the AO are of such a nature, which authorize him to harbour a belief that true income of the assessee cannot be deduced from those accounts. For example, the assessee had adopted incorrect method of accounting with regard to the purchases and sale of licence premium in trading and profit & loss account. The assessee has been showing such sales in profit & loss account, but it has not been recognizing any opening and closing stock of licence premium. It is quite difficult to cross verify such an item. The electricity expense are manufacturing expenses, these must have been debited to manufacturing account, whereas, the assessee has debited in the profit & loss account. Therefore, considering the concurrent findings of both the authorities on this issue, we do not see any reason to interfere in the order of the CIT(A) on this issue in rejecting books of accounts - Decided against assessee.
Disallowance of labour charges - AO allowed labour charges at the rate of ₹ 240 per carat. This disallowance of ₹ 60/- per carat is multiplied with the total carats of diamonds, then the addition, therefore, worked out to ₹ 45,44,029/- - Held that:- even if this disallowance is confirmed, then the assessee will not be burdened with any tax liability, because the moment the expenses will be disallowed, its profit ratio will increase and it will claim deduction under section 80HHC at an higher amount. Therefore, for the purpose of taxability, it is an academic issue and revenue neutral. Respectfully following the order of the ITAT in the Asstt.Year 2002-03, coupled with the fact that ultimately this issue will not bring any tax to the Revenue, we allow this ground of appeal partly, and confirm the adhoc disallowance of ₹ 10 lakhs, which is in the same ratio, as made and confirmed in the Asstt.Year 2002-03 - Decided partly in favor of assessee.
Valuation of closing stock - AO took the value of the diamond at cost - Held that:- There is no dispute with regard to the proposition that closing stock is to be valued either at the market price or at cost, whichever is lower. The working given by the assessee before the CIT(A) as well as before us in the paper book is altogether an unscientific calculation, because, the assessee has reduced the cost by sale value of the items sold. Whereas, it ought to have reduced the cost by the cost of items sold. In sale value, profit is also embedded. Therefore, the method of the assessee in working out the balancing figure is not correct. The learned First Appellate Authority has rightly rejected the contentions of the assessee. We do not find any merit in this ground of appeal. It is rejected. But, we direct the AO to give credit of this addition in the opening stock of the diamonds in the next year. - Decided against assessee.
Disallowance of labour expenses - Held that:- After due consideration of the record, and well reasoned findings recorded by the AO, pointing out defects in the details maintained by the assessee, we are of the view that the CIT(A) has rightly upheld the disallowance - Decided against assessee.
Ee-computation of the deduction under section 80HHC after excluding the job work receipts from the total turnover - Held that:- The ld. CIT(A), after taking into consideration the job work receipt, commission, interest etc. directed the AO to reduce 90% of net receipts from the eligible profit while working out the deduction admissible under section 80HHC of the Act. In our opinion, the ld.CIT(A) has appreciated the controversy in right perspective and does not call for any interference. The order of ld.CIT(A) is in line of latest decision of Hon’ble Supreme Court in the case of ACG Associates Capsules Ltd. Vs. CIT [2012 (2) TMI 101 - SUPREME COURT OF INDIA] . In view of the above discussion, we do not find any merit in this appeal. - Decided against revenue.
Addition on account of valuation of closing stock of rough diamond - Held that:- As far as purchase of diamond is concerned, there is no dispute. Thus, the invoices are of no help for the assessee. Similarly, as far as the transmission of rough diamonds from Mumbai to Surat, is also not a relevant fact for deciding this issue. The assessee is required to demonstrate on the basis of day-to-day stock register in quality-wise, that a particular rough diamond were purchased by it were consumed in manufacturing. The remaining diamonds in the closing stocks are directly linked to a particular purchase invoice. There is no such details maintained by the assessee. It is not cross-verifiable. The chart prepared by the assessee is self-styled, just mentioning about the availability of one lot of diamonds in the closing stock. The ld.CIT(A) has appreciated the controversy in right perspective, and has gone through the stand of the assessee. Therefore, we do not find any reason to interfere in the order of the ld.CIT(A) on this issue. - Decided against assessee.
Value of rejected diamonds - AO has adopted the value on net realized average value of rejection as accepted by CIT(A) - Held that:- No error in the method adopted by the AO. He valued the rejected diamonds at net realized average value, whereas, the assessee did not disclose any basis. Therefore, we do not find any error in the order of the CIT(A). - Decided against assessee.
Addition of closing stock of polished diamonds - Held that:- The value of the closing stock has to be adopted by the assessee either at market price or at cost, whichever is lower. The AO has adopted the average cost for the purpose of value of the closing stock. We have upheld the same in the Asstt.Year 2003-04. Relying upon our order in the earlier part of this order, we do not find any reason to interfere with the order of the CIT(A). - Decided against assessee.
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2015 (7) TMI 932
Accrual of income - Contribution received from the members - whether is to be assessed in the year of receipt or assessee is to be permitted to spread over, over a period of five years? - whether CIT(A) has erred in confirming the addition received as capital contribution from members for discharge through effluent channel constructed by the assessee? - Held that:- As decided in earlier years of assessee's own case [2010 (10) TMI 717 - ITAT, Ahmedabad] a clear right is given by the assessee-company to the members to utilise its capital facilities for a period of 99 years for discharge of agreed quantities of effluent. Thus the one-time membership fee is not in fact in return for any obligation or services rendered by the assessee in one year. It is a receipt in advance for an obligation to be rendered in future. Thus it cannot be said that income has actually accrued to the assessee in one year even though it might have received it in one year. Mere receipt does not ensure accrual unless an equivalent part of the agreed services by the receiver is rendered. - Following the decision of Asst. CIT v. Mahindra Holidays and Resorts (India) Ltd. (2010 (5) TMI 524 - ITAT, CHENNAI) we hold that the assessee was justified in deferring the revenue for taxation for four years.
Respectfully following the above order of the ITAT, we set aside the issue as far as determination of taxability of the receipts received in this year to the file of the AO. The ld. AO shall re-work the amount out of the contribution received in this year on the basis of the Tribunal’s findings in the Asst.Year 2001-02. In other words, the receipt received by the assessee during the accounting period relevant for this assessment year is also to be spread over, over a period of five years. The total receipt cannot be assessed in this year.
Enhancement made by the ld.CIT(A) is concerned, we do not find any error in the order of the ld.CIT(A), because, the assessee ought to have shown that the amount as income on the basis of claim made in earlier years, i.e. whatever amount representing the alleged 1/5th ought to be offered for taxation in this year. The ld.First Appellate Authority has rightly made the enhancement. - Decided partly in favour of assessee for statistical purposes.
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2015 (7) TMI 931
Liability to deduct TDS for the payments made to subcontractors u/s 194C - Tribunal merely relied upon the absence of a written contract to hold that there is no relationship of a subcontractor between the assessee and M/s. SMC Infrastructure Pvt. Ltd. and M/s. Ambika Enterprises and allowed assessee's appeal - Held that:- The tribunal found that the assessee is an Association of Persons(AOP). The association comprises of M/s. SMC Infrastructure Pvt. Ltd. which is a company incorporated under the Indian Companies Act, 1956 and M/s. Ambika Enterprises which is a proprietary firm. The association was for the purposes of bidding for contract of the Thane Municipal Corporation. It is the association which placed its bid and was eventually awarded the contract by the Thane Municipal Corporation on 16th November, 2004. The Tribunal noted this admitted fact in para9 of the order under challenge and found that the contract received from Thane Municipal Corporation was made over to the two entities noted above. The work was carried out by these two entities. The amount was received after the work was carried out and the same was handed over to the members to enable them to execute the contract. The association has neither kept any commission of its own nor any profit. The association comprising of these two members/partners joined together for the purposes of executing the project. It is in such circumstances, that no inference of any sub contractorship can be drawn. It is not correct to say that the Tribunal insisted on any written contract evidencing such relationship. The Tribunal noted the admitted facts and found that there is no subcontract or relationship of a subcontractor emerging from this undisputed factual position. It is in these circumstances, that it is correctly held that section 194 C(2) of the Income Tax Act has no application to the facts of the assessee's case. - Decided in favour of assessee.
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2015 (7) TMI 930
CENVAT Credit - input services - inclusion part - Credit availed on Civil Construction service - inadmissible services or not - Held that:- If, the said services were not covered by Rule 2(l), it would not have been necessary to introduce the amendment. It is clear, therefore, that prior to the amendment the setting up of a factory premises of a provider for output service relating to such a factory fell within the definition of ‘input service’. The amendment of 2011 is not retrospective and is not applicable to the respondents’ case. - Each limb of the definition of input service can be considered as an independent benefit or concession exemption. If an assessee can satisfy any one of the limbs of the above benefit, exemption or concession, then credit of the input service would be available. This would be so even if the assessee does not satisfy other limb/limbs of the above definition. To illustrate, input services used in relation to setting up, modernization, renovation or repairs of a factory will be allowed as credit, even if they are assumed as not an activity relating to business as long as they are associated directly or indirectly in relation to manufacture of final products and transportation of final products upto the place of removal.
The Tribunal rightly did not agree with the Commissioner’s findings that the services in question had been used for brining into existence an immovable property and not for the manufacture of the final product. The said services cannot be said to be remotely connected to the final product as observed by the Commissioner. - Decided against assessee.
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2015 (7) TMI 929
Denial of CENVAT Credit - Imposition of penalty - They also contended that excess utilized credit was paid back in cash and that even before the issue of shown cause notice. So no extended period was invokable nor was rule 15(2) of Cenvat Credit Rules 2004 or Section 11AC consequently no penalty was imposable. - Held that:- Commissioner (Appeals) has examined the issue in detail and concluded the issue in favour of revenue. Fraud has clearly manifested and has also been admitted. Extended period has rightly been involved. Penalty is also imposable as intent to defraud the revenue is very clear. Since both dutiable and exempted products were being manufactured, credit availment was to be restricted to 20% of ₹ 372126.69/-. - Decided against the assessee.
Appellant has also raised the issue of refund of excess amount. There is no such issue discussed in Commissioner (Appeals)'s Order. In present grounds of appeal also, no specific calculation is pointed out fortifying their claim for refund. This issue has also not been vehemently taken up in earlier stage. There are no indications on record whether these calculations were provided and specifically elaborated. In absence of these factors being reflected, I am unable to appreciate the quantifications in this regards. Further no evidence is coming on record whether refund claim was specifically pleaded with Commissioner (Appeals). Accordingly no order is warranted on this issue at the stage of appeal before tribunal. - Decided against assessee.
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2015 (7) TMI 928
Waiver of pre deposit - Classification of service - whether the activity of re-rubberizing of print rollers would attract service tax under the category of ‘management, maintenance and repair service' or under ‘business auxiliary service' - Held that:- Decision in the case of Zenith Rollers Ltd. Vs CCE Noida [2013 (12) TMI 620 - CESTAT NEW DELHI] followed wherein it was held that, the service to be falling under the category of ‘business auxiliary services'. If that be so, there would be exemption to the said activity in terms of Notification No 14/2004-ST.
Appellants have also approached the Authority for Advance Ruling (AAR) who vide their decision as reported in [2009 (3) TMI 57 - AUTHORITY FOR ADVANCE RULINGS] has held against the appellant.
The Tribunal's decisions shall be applicable to the disputed issue which is for the period not covered by the A.A.R. judgment. - stay granted
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2015 (7) TMI 927
Waiver of pre deposit - construction service - whether service tax has to be paid for different types of services rendered to TTD - Held that:- no evidence has been produced by the appellant to show that the activities undertaken relate to agriculture. The show-cause notice was issued in this case on 31.05.2012, whereas the demand for reworking of agricultural land relates to the year 2008-09. Therefore, it becomes necessary to examine whether appellants have sufficient grounds to consider it as agricultural work or not, which would require the details of agreement, the kind of work undertaken etc. to be considered, which in our opinion may not be necessary at this stage since it would consume a lot of time. Having regard to the overall facts and circumstances, we waive the requirement of pre-deposit and grant stay against recovery of dues during the pendency of appeal. - Stay granted.
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2015 (7) TMI 926
Waiver pre deposit - GTA Service - appellants provide transportation services for the iron ore to their customers - Held that:- Appellant cannot be considered either as a consignor or consignee. Therefore the Notification No. 32/2004 which requires the receiver of service to pay the tax in respect of GTA service is not applicable to them. Moreover the only observation of the Commissioner is that there is no evidence and there is no correlation between each consignment note raised by the transporter, amount received by the appellant and the tax paid by the consignee namely the service receiver. In our opinion in view of the above observations, such a requirement does not arise. Therefore prima facie appellants have made out a case for complete waiver of pre-deposit. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.
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2015 (7) TMI 925
Penalty under Section 112(a) of the Customs Act, 1962 - Evasion of duty - Undervaluation of goods - Held that:- from a plain reading of provisions of sub-section (n) and (o), it is clear that these provisions are not applicable to the case. In fact Section 111(n) deals with transit/transhipment of goods. Section 111(o) deals with a situation where certain claim is claimed subject to some condition and subsequently the said condition is not followed. In the present case, it is not a situation. In fact, the impugned goods were never cleared from Customs therefore claiming exemption does not arise. Consequently, the provisions of Section 111(n) and (o) are not applicable to the facts of this case. - Any Bill of Entry was yet to be filed by the appellants to clear the subject import. The first occasion for an importer to declare or misdeclare particulars of the goods imported by him is at the stage of filing Bill of Entry. He cannot be held liable for any misstatement of particulars in Bill of Lading or Import manifest. Hence, as rightly contended by the appellants, the finding of misdeclaration against them is untenable. In this case, the investigating agency (DRI) also ventured into an inquiry as to what should be the assessable value of the goods and as to whether the importer had misdeclared the value of the goods. The importer never filed any Bill of Entry declaring the value and other particulars of the goods. Hence it is absurd for the DRI to have ventured to such an exercise. Surprisingly, this absurdity was sustained by learned Commissioner in the impugned order.
As the appellant has not filed any Bill of Entry neither placed order for supply of the impugned goods to the supplier/exporter, the penalty under Section 112(a) of the Customs Act is not imposable on the appellant. - Impugned order is set aside - Decided in favour of assessee.
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2015 (7) TMI 924
Revocation of CHA License - forfeiture of the security deposit - contravention of Regulation 13(a) - held that:- There is no allegation made by the appellant as urged before us that proper procedure of inquiry was not followed or there has been any violation of the principles of natural justice either by the Inquiry Officer or by the adjudicating authority. The only contention is that the evidence adduced by the appellant has not been properly appreciated and the punishment of revocation for the contravention of the CHALR, if any, is grossly disproportionate to the offence committed. - As regards the charge of contravention of Regulation 13(n) of non-discharge of their obligations with utmost speed and efficiency, Shri C.H. Menon in his confessional statement has admitted to non-verification of the correctness of the classification declared in the bills of entry handled by Mr. Ashley. Later on it was found that M/s. J.M. Traders and M/s. Kirmi Expo had misdeclared the classification of laminated sheets imported by them and this position has been admitted by the importers themselves before the Settlement Commission. If that be so, the appellant CHA could not be said to have discharged his duties and obligations with any efficiency at all. It is thus evident that the appellant has been grossly negligent in the discharge of his statutory functions. As regards the charge of contravention of Regulation 13(k), it is an admitted fact on record that the charged CHA did not maintain any import or export register showing details of the consignments handled by them and the dockets maintained by them were incomplete and they did not have the authority letters in many cases and the CHA delivery challans for having delivered the goods to the importers after clearance by the Customs.
A case of sub-letting of licence by CHA, obtaining Customs pass for non-employees, removal of goods without obtaining authorisation from importers was considered by the Hon’ble High Court of Gujarat in OTA Kandla Pvt. Ltd. [2011 (3) TMI 801 - GUJARAT HIGH COURT]. The Hon’ble High Court upheld the contention of the Revenue that sub-letting amounted to transfer of CHA licence and refused to interfere with the punishment of revocation of CHA licence awarded by the Commissioner of Customs, the Licensing authority. - Further decision in the case of Commissioner of Customs v. Worldwide Cargo Movers [2006 (11) TMI 281 - BOMBAY HIGH COURT] followed - no reason to interfere with the decision of the Adjudicating authority - Decided against the appellant.
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2015 (7) TMI 923
Evasion of duty - Import of used photocopier components of foreign origin - High Court dismissed the petition filed by Revenue for non prosecution against the decision of Tribunal [2008 (12) TMI 451 - CESTAT, CHENNAI], wherein Tribunal held that The Notification No. 19/90-Cus. (N.T.), dated 26-4-1990 issued by the Central Government had conferred the powers of Commissioner of Customs on the ADG, DRI and his jurisdiction was specified as “whole of India”. Though the Additional Director General, DGCEI was invested with the powers exercisable by a Commissioner of Customs, Notification No. 31/2000-Cus. (N.T.) did not indicate the territorial jurisdiction of ADG, DGCEI, Chennai.
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