Income Tax
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Payment for software - payment made in that regard would constitute 'royalty' for imparting of any information concerning technical, industrial, commercial or scientific knowledge, experience or skill as per clause (iv) of Explanation 2 to Section 9(1)(vi) of the Act..... - HC
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FBT - gift - 'Sales Promotion and Publicity' - the expenditure on gifts could not be treated as trade scheme or for promotion of company's product as per clause O of sub-section 2 of section 115WB..... - AT
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Charitable Trust- voluntary accumulations - the charitable trust cannot list all its objects as purposes for accumulation of income under section 11(2)..... - AT
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Disallowances u/s 40A(2)(b) of the Income-tax Act, 1961 - AO being unable to establish the excessiveness or unreasonableness of the payments made by the assessee, when compared with the fair market value of the services rendered by them, the disallowances made were not warranted...... - AT
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The provisions contained in section 11(2) do not in any manner restrict the operation of section 11(1) of the IT Act and the accumulated income, which was less than 15 per cent of the total income.... - AT
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Exemption u/s 10(23C) – Merely on the ground that petitioner is not recognized by the UGC or any Board constituted by the Government of India for imparting formal education in the field of western music and that petitioner is not itself awarding any certificate or degree to the students, it cannot be said that it does not qualify to be an educational institution... - HC
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Penalty u/s 271(1)(c) - Though he is an individual and he is not expected to maintain accounts showing the current assets and liabilities, income etc., his explanation that he was innocent and he was not aware of the legal requirement cannot be accepted.... - HC
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The payment of interest under Section 201(1A) is not penal. Even though default was unintentional, still assessee would be deemed as “assessee in default..... - HC
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Income from House property - the arrears of rent received in the assessment year 2000-01 could not be spread over the previous years, i.e., 1996-97 to 1999-2000.... - HC
Customs
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Refund of 4% Additional Duty of Customs (4% CVD) - 'Cost Accountants' in addition to 'Chartered Accountants' authorized to issue certificate.
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Import of good (in commercial quantity) through banafide baggage is not permissible - It cannot be constituted as bonafide baggage... - CGOVT
DGFT
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Export of 8,300 MTs of white sugar to USA under Tariff Rate Quota. - Cir. No. 90 (RE-2010)/2009-2014 Dated: January 6, 2012
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Allocation of 10,000 MTs of white sugar for the year 2011-12 (October, 2011- September, 2012) for export to EU under CXL Quota. - Cir. No. 89 (RE-2010)/2009-2014 Dated: January 6, 2012
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Amendment in Appendix-3 to Schedule-2 of ITC(HS) Classification of Export and Import Items,2009-14-regarding supply of SCOMET Items from DTA to SEZ. - Ntf. No. 93 (RE-2010)/2009-2014 Dated: January 6, 2012 - DGFT
FEMA
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External Commercial Borrowings (ECB). - Cir. No. 64 Dated: January 5, 2012
Service Tax
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Section 69 of the Finance Act, 1994 - Registration - Conversion of temporary based registration (STC) into PAN based registration. - Cir. No. 15/2011-ST Dated: November 15, 2011
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Just imparting training in certain areas to the Officers of certain organizations does not amount to rendering the service of "Management Consultancy" either directly or indirectly to that organization. .... - AT
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Refund of service tax to include education cess - Education Cess is levied and collected as percentage of service tax, when and wherever service tax is NIL by virtue of exemption, Education Cess would also be NIL. - refund of cess can not be rejected.... - AT
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Cenvat credit on inputs services - the insurance policy to cover loss of profit would come within the expression for 'activities relating to business' in the inclusive limp of the definition of input services.... - AT
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Cenvat credit on inputs - Security services are area specific services - the specific exclusion salt pan from the definition of the term factory which definition is applicable to the Cenvat Rules, the security services which are area specific cannot be treated as input services.... - AT
Central Excise
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Payment of higher duty by an 100% EHTP at the instance of department - claim of refund - provision of unjust enrichment not applicable.... - AT
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Refund of accumulated credit - Rule 5 of CCR - period of 1 year for the purpose of limitation under Section 11B of Central Excise Act, 1944 has to be counted from the date on which final conclusion is reached that the credit cannot be utilized..... - AT
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Manufacturer claimed nil rate of duty on the ground that the same are manufactured without the aid of power - Water is lifted to the water tank with the aid of power and the water so lifted is further used in the manufacture of final product - held that the goods are manufactured with the aid of power .... - AT
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Duty paying documents - cenvat credit is not available on photocopy of the bill of entry when the same has been taken without certifying by the Asstt. Commissioner about loss of the original triplicate copy of the bill of entry.... - AT
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Classification of pleasure vessel – under Rule 3(c) when the goods cannot be classified by reference to Rule 3 (a) & (b) they shall be classified under heading which occurs last in the numerical order among those which equally merit consideration .... - AT
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Suo moto re-credit after reversal of cenvat credit - suo moto refund of excess or twice paid duty cannot be taken and all types of refund claims to have been filed under Section 11B .... - AT
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Rule 6(3)(b) of CCR are not applicable in the case of arising inevitable waste or bye-product fully exempt from duty .... - AT
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CE - Payment of duty on the directions of the preventive officers held as paid under protest – period of limitation of one year is not applicable .... - AT
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Income Tax
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2011 (12) TMI 146
Maintainability of appeal against levy of interest u/s 234A, 234B, 234C – adjustment of cash seized against advance tax liability – date from which adjustment would be effective – adjustment of cash seized from third party against the liability of the assessee - Held that:- Charging of interest under section 234A, 234B, and 234C is very much part and parcel of assessment proceedings and is an order against the assessee to which the assessee denies his liability to be assessed. Therefore, appeal against charging of interest under those sections is maintainable as in the case of an assessment order. The liability to pay the advance-tax constitutes a part of existing liability as per section 132B(1)(i). As per section 132B, the seized assets to be applied to the discharge of existing liabilities. Thus, the cash seized during the course of search is required to be adjusted against taxes due including advance-tax for the purpose of computation of interest u/s 234A, 234B and 234C. The adjustment towards the advance-tax would be from the date when it was seized. Further, cash seized from third party was found to be the cash of the assessee and this fact is not disputed therby, it is adjustable against the demand created on the assessee. Decided in favor of assessee.
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2011 (12) TMI 145
Preemptive purchase by the Central Government u/s 269 UD (1) – alleged undervaluation of property - cost of construction of flat to be received in lieu of consideration taken and its fair market value ignored while valuing property resulting in undervaluation – Petitioners agreed to give possession of the subject property on compliance with the obligations of the Transferee under the Agreement by Appropriate Authority - Appropriate Authority has not tendered the payment to the owners and amount was deposited by the Central Government in the P.D. Account of Appropriate Authority prior to the passing of the impugned orders - Difference in total consideration valued and as stated in order to be payable to transferor - Held that:- By ignoring fair market value of flat during valuation, there was an inherent flaw in the valuation of the said property by the Valuation Officer. Appropriate Authority has mechanically accepted the valuation and on this count alone the impugned orders would stand vitiated. Further Section 269 UF (1) stipulates consideration for such purchase, an amount equal to the amount of the apparent consideration. There was complete non application of mind on the part of the Appropriate Authority in stating in the impugned order that the amount payable was Rs.18,68,430/ when the apparent consideration was admittedly Rs.25,14,480/. Quantum of deposit is invalid Moreover, neither dispute was to title of property nor to the persons who should receive the payment, thereby, conditions mentioned in 269UG(2) and 269UG(3) are not satisfied which permit the Central Government to deposit the purchase price with the Appropriate Authority (instead of tender to the owners). Therefore, the deposit made in the P.D. account of the Appropriate Authority by the Central Government was impermissible and not in accordance with law. In view of the failure on the part of the Appropriate Authority to tender the apparent consideration within the period set out in Section 269UG of the Act, it has to be held that the order passed under Section 269UD(1) of the Act stood abrogated and the property is revested to the Petitioners. - Decided in favor of assessee.
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2011 (12) TMI 142
Imposition of interest u/s 201(1A) – Imposition of penalty u/s 221 - Assessee in default - assessee under a bona-fide belief not deducted/not paid the tax at source in respect of the reimbursements for expenses to its employees – Held that:- The payment of interest under Section 201(1A) is not penal. Even though default was unintentional, still assessee would be deemed as “assessee in default. There is, therefore, no question of waiver of such interest on the basis that the default was not intentional or on any other basis. The question of ‘good and sufficient reasons’ only arises on consideration of proviso to Section 201(1) which negate the possibility of imposition of penalty under Section 221 if the Assessing Officer is satisfied that the person liable had good and sufficient reasons to not deduct and pay the tax in question. Thus, in view of proviso to Section 201(1) no penalty can be imposed on the assessee under Section 221 . The matter is remanded to to the assessing officer for the limited purpose of computing the exact quantum of default and the interest payable under Section 201(1A) of the said Act. - Decided partly in favor of Revenue.
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Service Tax
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2011 (12) TMI 141
Section 66A of the Finance Act, 1994 - liability for period prior to 18.04.06 - Held that:- The order of the Commissioner revising the order of the original authority to demand service tax for the period prior to 17.04.2006 on the recipient of the services in India in the facts and circumstances are not justified in view of the judgment of the High Court in the case of Indian National Shipowners Association Vs. Union of India (2008 - TMI - 32013 - High Court Of Bombay) as conveyed by the Board to the field formations vide Circular dated 26.09.2011 - Decided in favor of assessee.
