TMI Tax Updates - e-Newsletter
January 13, 2017
Case Laws in this Newsletter:
Income Tax
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
TMI SMS
Highlights / Catch Notes
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Income Tax:
Rate of withholding tax u/s 195 - non-resident not having PAN - the payment is well covered u/s 115A(1)(b) - special rate of TDS i.e. 11.33% was applicable - TDS @20% is not warranted AT
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Income Tax:
Unexplained cash credit - addition u/s 68 - The revenue cannot blow hot and cold in the same breath since in the scrutiny reassessment the purchases have been accepted, there is no any reason/logic in not accepting the subsequent sales of the shares and treating the receipt of consideration as unexplained cash credit. - AT
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Income Tax:
Revision u/s 263 - mistake in the computation of income - reduction of entire rent received during the year - assessee admitted that related documents were not filed during the assessment proceedings - revision order sustained - AT
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Income Tax:
Transaction of shares - capital gain or business income - AO has not come to finding whether the assessee has carried out repetitive transactions of same share - treated as capital assets - AT
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Income Tax:
Addition under the head notional interest - Charging or not charging of interest is a discretion of an assessee-especially when the advance is made out of interest free funds. - AT
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Income Tax:
It is settled principle of interpretation of fiscal law that taxing statute should be construed strictly. When the provision is free from doubt or ambiguity, there is no need to draw any analogy. If the subject comes within the letter of the provision, then it must be taxed however great the hardship appears to be to the mind of the court. - AT
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Income Tax:
Deduction u/s 54 - property sold was in the sole name of the assessee and the property purchased was in the joint names of the assessee and his wife - the consideration for acquisition of the new asset has flown from the assessee - deduction allowed - AT
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Income Tax:
TDS u/s 194C OR 194J - services provided by highly skilled / technical professionals - supply and installation of HT and LT electrical installation equipments - services for effective and smooth working of the hospital - electrical installation and AMC thereof - TDS was rightly deducted u/s 194C - AT
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Income Tax:
Withdrawal of registration granted earlier u/s 12AA - profit motive - commercial activities - no major expenditure was for direct benefit of farmers - the activities of the assessee are not for the “advancement of any other object of general public utility” and hence is not for charitable purposes u/s 2(15) - AT
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Service Tax:
100% EOU - Refund claim - various input services - these services have clear nexus with the output service provided by the appellant and are very much used by them to provide the output service - refund allowed - AT
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Service Tax:
Demand of service tax on the basis of income-tax return filed by respondents at Jaipur - Departmental authority at Jaipur have no jurisdiction to proceed against the respondent for demanding Service Tax without any evidence of taxable service being provided within their jurisdiction - AT
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Service Tax:
Classification of service - Interior Decorator s Service in terms of statutory definition deals more with advice, consultancy and technical assistance and not on execution of elaborate civil fabrication/construction work. - AT
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Service Tax:
The excess baggage charges collected by the Airlines are integral part of the main service namely, “transportation of passengers by air” and, therefore demand of service tax on such charges cannot be sustained under “Transfer of Goods by Air Service” - AT
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Central Excise:
Refund claim - unjust enrichment - Assessee is entitled for filing a claim for refund on the basis of credit notes raised by him towards turnover discount. - AT
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Central Excise:
Manufacture - deemed manufacture - even after insertion of Chapter Note 3 which does not provide the process of garneting/carding amounts to manufacture the process remain as non-manufacturing activity. - AT
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Central Excise:
CENVAT credit - Payment of duty on non-excisable goods - demand of differential amount between CENVAT credit taken on MS wire and the 8% paid by them on MS wire made out of duty-paid MS wire - demand set aside on the ground of period of limitation - AT
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2017 (1) TMI 682
Levy of penalty u/s.271(1)(c ) - AO in assessment order treated derivative transaction activity as business activity instead of investment activity claimed by the assessee. The AO assessed short term capital gain declared by the assessee as business income from these derivative transaction activities - Held that:- The assessee has declared the income arising out of derivative transaction activity as short term capital gain as against assessed by AO as business income. For this assessee has filed an explanation that assessee was under bonafide belief that the entire activity of share trading earns only capital gain and not business income. It was also the argument of the assessee that he has not indulged into any concealment of income or furnishing of inaccurate particulars of income. The findings of AO are unwarranted that he is in organized business activity but only in this year held the transaction of derivative activity as business. The ld. Counsel for the assessee before us filed complete details of transactions relating to derivative transactions/activities. In view of the above explanation and by going through the case records, we are of the view that the Revenue has not been able to controvert the explanation of the assessee or same is held to be false. In such circumstances, we have no hesitation in deleting the penalty and accordingly the penalty is deleted. - Decided in favour of assessee
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2017 (1) TMI 681
Revision u/s 263 - mistake in the computation of income - reduction of entire rent received during the year - assessee entitled to vacancy allowance - Held that:- The attention of assessee was invited on computation of income for the year ended on 31.03.2011, wherein the assessee has reduced the entire rent received during the year. AR fairly conceded the mistake in the computation of income and further admitted that the assessment is based on the computation of income which is erroneous. We have further drawn the attention of ld. AR of the assessee to the letter dated 02.05.2011 (page no. 20 of PB) which was issued by Estate Consultant certifying that Flat No. 61, Kalpataru Royale, Sion, Mumbai was lying vacant since 2009. On further asking, if this document was filed before the AO, the ld. AR of the assessee, fairly conceded that it was not filed during the assessment proceedings. We may observe that this letter is not sufficient evidence to prove that property was lying vacant since 2009 in absence of other corroborative evidence like electricity or water bills of relevant period. Thus, we instead of going merit and demerit on admissibility of this evidence are of the opinion that even this document required verification at the end of AO. On examination on computation of income and the order of AO, we find that the order passed by ld. CIT fulfills the twin condition of section 263 of the Act i.e. the order passed by AO was erroneous as well as certainly prejudicial to the interest of Revenue. Thus, we do not find any reason to interfere with the order of ld. CIT, hence, the appeal filed by assessee is dismissed.
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2017 (1) TMI 680
Transaction of shares - capital gain or business income - Held that:- AO has not established whether the transactions were continuous and regular besides being systematic as found out in Jaysree Pradip Shah (2010 (2) TMI 695 - ITAT, MUMBAI )wherein it was held that high frequency of transaction of purchase and sale of shares shall be considered a business activity of the assessee if transactions are continuous, regular and systematic and use of borrowed funds for purchase of such shares with short period of holding. We observe that the AO has made scrutiny assessment of the assessee u/s 143(3) of the Act for the A.Y. 2012-13 and 2013-14. The treatment given by the assessee to its capital gains has not been disturbed by the AO for the above two assessment years. Determination of the character of a particular investment in shares or other securities, whether the same is in the nature of a capital asset or stock-in- trade, each essentially a fact specific determination. The AO has not come to finding whether the assessee has carried out repetitive transactions of same share. The AO has also not established whether the transactions were continuous and regular besides being systematic. We follow the decision in CIT vs. Amit Jain (2015 (3) TMI 720 - DELHI HIGH COURT ), CIT vs. Datta Mahendra Shah (2015 (9) TMI 970 - BOMBAY HIGH COURT ) and confirm the order passed by the ld. CIT(A).
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2017 (1) TMI 679
Exemption u/s 80P(2)(a)(vi) - assessee is Co-operative Society and was Federation of Skilled and Unskilled labourers - Held that:- Tribunal for assessment years 2006-07, 2008-09 and 2009-10 held the assessee to be eligible to claim the aforesaid deduction. Assessing Officer also acknowledged that the issue was decided in favour of the assessee by the Tribunal in earlier years. However, since the appeal has been filed before the Hon’ble Bombay High Court against the decision of Tribunal, the said decision was not applied by the Assessing Officer. The CIT(A) however, has granted relief to the assessee since the facts and issue were identical to the facts and issue before the Tribunal. Tribunal further allowed the claim of deduction under section 80P(2)(a)(vi) of the Act to the assessee following earlier decision of the Tribunal in assessment years 2006-07, 2008-09 and 2009-10. The learned Departmental Representative for the Revenue has failed to controvert the findings of CIT(A) and in the absence of the same, we find no merit in the grounds of appeal raised by the Revenue. Following the same parity of reasoning and since the issue is settled in favour of the assessee by earlier order of Tribunal, we uphold the order of CIT(A) and dismiss the grounds of appeal raised by the Revenue.
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2017 (1) TMI 678
Addition under the head notional interest - Held that:- We find that the assessee had advanced loan from its interest free funds and had not charged any interest, that the AO had taxed notional interest in the hands of the assessee without bringing any evidence of charging of interest by the assessee. He has also not explained as to how the interest income accrued to the assessee. In the normal course of its business transaction the assessee had advanced loan and had not charged any interest. Charging or not charging of interest is a discretion of an assessee-especially when the advance is made out of interest free funds. We are of the opinion, that the order of the FAA does not suffer from any legal infirmity - Decided against revenue Disallowance made u/s. 14A - Held that:- We find that the FAA had disallowed the expenditure that was claimed against the exempt income. The basic concept for disallowance u/s. 14A of the Act r. w. r. 8D of the Rules is to deprive the assessee of double benefit i. e. claiming deduction against tax free income. In the case under consideration the FAA has restricted the disallowance to the extent it was claimed against the exempt income. In our opinion there is no need to interfere with his order. So, confirming the same second ground is decided against the AO.
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2017 (1) TMI 677
Applicability of the provisions of Section 43B (b) - whether the provisions of Section 43B as it stands after deletion second proviso thereto by Finance Act, 2003, permitting certain deductions on actual payment, can be applied for allowing the deductions in respect of the employee’s contribution towards the relevant fund or funds received by the assessee not credited to the employee’s account on or before the due date as contemplated under explanation attached to Section 36 (1) (va) but is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of Section 139 in respect of the previous year in which the liability to pay such sum was incurred and the evidence of such payment is furnished by the assessee alongwith such return? Held that:- Adverting to the provisions of Section 43B of the Act, it is pertinent to note that the clause (b) thereof refers to ‘sum payable by the assessee as an employer by way of contribution’ to any provident fund, superannuation fund or gratuity fund or any other fund for the welfare of the employees. As discussed hereinabove, under the relevant statutes, both the employer’s contribution and employee’s contribution is required to be paid by the employer before the due date and therefore, the expression ‘sum payable by the assessee as an employer by way of contribution’ as used in Section 43B (b) cannot be given restricted meaning as suggested by the Revenue so as to include within its ambit, only the employer’s contribution and not the both the employer’s contribution and the employee’s contribution. Thus, we are of the considered opinion that the provisions as incorporated in Section 43B (b) allowing deduction in respect of any sum payable by the assessee as an employer by way of contribution to provident fund etc. include both the employer’s contribution and the employee’s contribution, if the same is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of the income under sub-section (1) of Section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee alongwith such return. The contention sought to be raised by the Revenue that the question with regard to entitlement of the assessee for deduction in respect of the employee’s contribution under Section 43B has not been dealt with in the decisions rendered by the various High Courts is not correct. In some of the decisions, the question with regard to applicability of the provisions of Section 43B vis-a-vis the provisions of Section 36 (1) (va) of the Act dealing with employee’s contribution has been specifically dealt with. Decided in favor of assessee.
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2017 (1) TMI 676
Eligibility under section 10(22A) - Held that:- The disqualification which attaches in absolute terms by virtue of provisions of section 13(1) especially through section 13(3) to the income out of which some benefit flows to a settler/ founder, does not per se apply to institutions covered by section 10(22A) of the Act. In this Court’s opinion this fundamental error led the Tribunal to hold that since Dr. Behl received significant amounts, the entire charitable basis of the assessee stood undermined by reason of Section 13 of the Act. This error persisted for the three assessment years in question. Having regard to the specific nature of the income which till 31.03.1999 could not be included as part of the total income, which the Parliament later subsumed through sections 10(23C) and 12A of the Act (subject to conditions) by deleting section 10(22A), in the present case there was no question of confusion the amount received by Dr. Behl as benefits that could debar the assessee to the eligibility it fundamentally had under section 10(22A) of the Act. Question of law framed is answered against the Revenue and in favour of the assessee
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2017 (1) TMI 675
Disallowance under section 14A to book profits - Computation of tax liability under section 115JB - Held that:- In the present case, clause (i) of Explanation to 115JB(2) permits amount of deduction by the amount withdrawn if any such amount is credited to the P&L A/c only. Proviso to said clause (i) further provides that such reduction is possible only in case the amount of provision is added back to book profits in the year of creation of reserve. It is undisputed fact that this condition is not satisfied by the assessee-company. It is settled principle of interpretation of fiscal law that taxing statute should be construed strictly. When the provision is free from doubt or ambiguity, there is no need to draw any analogy. If the subject comes within the letter of the provision, then it must be taxed however great the hardship appears to be to the mind of the court. Reliance in this regard can be had to the decision in the case of Karamchari Union v. UOI (2000 (2) TMI 11 - SUPREME Court ). Therefore, in our considered opinion, the findings of the CIT(A) are in accordance with settled principles of law and we do not find any reason to interfere with the order of the CIT(A). The amount of disallowance under section 14A should be added back to book profits for the purpose of computing tax liability. However, we make it clear that the amount of addition should be restricted to the actual disallowance made under section 14A read with rule 8D of the IT Rules, 1962. Therefore, we do not find any reason to interfere with the finding of the CIT(A) that this amount is required to be added to the book profits for the purpose of computing tax liability under section 115JB of the Act. Ground No.2(b) is dismissed. Computing the tax liability u/s 115JB - whether amount of capital exempt u/s 10(38) should alone be considered? - Held that:- We hold that the amount of profit eligible u/s 10(38) should alone be considered for the purpose of tax liability u/s 115JB of the Act. The assessee-company is entitled to the benefit of indexation while calculating long term capital gains which are to be considered for the purpose of computing tax liability u/s 115JB of the Act. Allowable deduction u/s 37 - contribution made by the assessee-company to flood relief fund of CM - Held that:- Contribution was made pursuant to the objectives for which the company was set up. The fact that the amount of contribution is eligible for deduction u/s 80G cannot take away the right of the assessee-company to claim it as a deduction u/s 37 of the Act. Furthermore, since the assessee-company is a Government of Karnataka undertaking, the contribution made to the CM Relief Fund cannot be held to be inadmissible. The Hon'ble Supreme Court in the case of Sri Venkata Satyanarayana Rice MillContractors Co. v. CIT (1996 (10) TMI 2 - SUPREME Court) held that any contribution made by an assessee to public welfare found (Andhra Pradesh Welfare Fund) which is directly connected or related with the carrying on of the assessee's business or which results in the benefit to the assessee's business has to be regarded as an allowable deduction under Section 37 (1) of the Act. Addition u/s 14A - Held that:- AO has failed to establish direct nexus between borrowed fund and tax-free investments, no disallowance can be made towards interest u/s 14A of the Act read with rule 8D of the IT Rules. See (CIT vs. Karnataka State Industrial & Infrastructure Development Corpn Ltd.) reported in 2015 (11) TMI 1631 - KARNATAKA HIGH COURT
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2017 (1) TMI 674
Transfer pricing adjustment - ALP adjustment - Held that:- As clarified in the Memorandum explaining the provisions of the Finance Bill 2002 which, while inserting the words “For the purpose of sub section (1) of section 92A” in Section 92A(2), had observed that “It is proposed to amend sub-section (2) of the said section to clarify that the mere fact of participation by one enterprise in the management or control or capital of the other enterprise, or the participation of one or more persons in the management or control or capital of both the enterprises shall not make them associated enterprises, unless the criteria specified in sub-section (2) are fulfilled”. In our considered view, therefore, the assessee and Blue Gems BVBA cannot be said to be associated enterprises. As these enterprises are not associated enterprises, the ALP adjustments in respect of the transactions between these enterprises were wholly unwarranted. For this short reason, and without going any further into the matter, we approve the impugned deletion of ALP adjustment. The plea of the assesse, in cross objection, is upheld and, for that reason, grievance of the Assessing Officer, in appeal, is dismissed as infructuous. Section 68 addition as well as interest expenditure incurred there upon - Held that:- Assessing Officer as well as DDIT (Inv) were first of all of the opinion that although six out of seven entities were based at Mumbai whereas their business were in Surat, they were able to trace all these creditors later on and get statement of their authorised persons recorded in the corresponding proceedings. It is thus not a case of identity dispute. Coming to the capacity aspect of the creditors, the assessee has already proved that its transactions have been routed through banking channel including repayment. We accordingly find no reason to interfere with CIT(A)’s observation hereinabove deleting the impugned section 68 addition as well as interest expenditure incurred there upon. This Revenue’s substantive ground on both these aspects is accordingly declined. - Decided in favour of assessee Disallowance of provision of forward contract payable - whether the entry passed in the books of account in respect of difference in exchange rate cannot be said to be in the nature of notional/unascertained liability - Held that:- The assessee has admittedly made the impugned provision in view of difference in exchange rate as on the date of booking of its forward contract vis-a-vis exchange rate prevailing as on 31.03.2008. It has fortified its claim in view of ABN Amro Bank’s MTM certificate forming basis of the impugned provision. The Revenue fails to dispute that the assessee has followed mercantile system of accounting instead of cash system and it is accordingly supposed to account for all expenses/gains in the P&L account on the said basis. It thus emerges that assessee had sufficient reason to treat the impugned liability arising on account of foreign exchange rate difference so as to make the impugned provision as per the relevant accounting standard issued by the Institute of Chartered Accountants of India. We thus find no reason to restore the impugned disallowance.
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2017 (1) TMI 673
Loss arising out of fluctuation in forward foreign exchange contracts due to adverse movement of foreign currency exchange rate - Held that:- Hon’ble Supreme Court in the case of Woodward Governor India P. Ltd. (2009 (4) TMI 4 - SUPREME COURT) relied upon by the assessee will be applicable as the losses are towards hedging against export receivable in foreign currency outstanding as at year end towards export of polished diamonds undertaken by the assessee and cannot be categorized as notional loss or speculative loss as per provisions of Section 43(5) of the Act. CIT(A) has allowed the loss as deduction while computing income of the assessee being arising out of fluctuation in forward foreign exchange contracts due to adverse movement of foreign currency exchange rate at year end as the said forward foreign exchange contracts are backed by export receivables outstanding as on 31- 03-2009 and we donot find any perversity in the order of learned CIT(A) as learned DR could not point any defect/mistake in the finding of learned CIT(A) , which we confirm/sustain and the grounds raised in the Revenue appeal is dismissed. With Respect to the deduction disallowed by the learned CIT(A) arising out of fluctuation in foreign currency rates on forward foreign exchange contracts which are not backed by the export receivables but are stated to be backed with confirmed export orders against which the assessee had stated to have purchased stock and such stock being held by the assessee as on 31-03-2009 with respect to the confirmed export orders in hand , as against which the exports are stated to be made in subsequent financial year, needs verification by the AO of the contentions of the assessee , and hence interest of justice will be best served if the matter is set aside and restored to the file of AO for verification of contentions of the assessee and for fresh determination of the matter on merit in accordance with our directions as contained in this order .
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2017 (1) TMI 672
Disallowance made out of interest expenditure - Held that:- During the year under consideration the assessee has withdrawn a sum of Rs. 1.70 crores only from out of the bank overdraft account. In the case of Reliance Utilities & Power Pvt. Ltd (2009 (1) TMI 4 - BOMBAY HIGH COURT ) held that the disallowance out of interest expenditure is not called for when the assessee has got sufficient own funds. Further it was held that where the assessee has own funds as well as borrowed funds, a presumption can be made that advances given for non business purposes have been made out of own funds. In our view, the principles laid down in the above said case can be conveniently applied in the instant case also. Accordingly, we hold that withdrawal of Rs. 1.70 crores made by the assessee should be considered as having been made out of capital only. In that view of the matter, we find merit in the contention of the assessee that there is no requirement to make any disallowance out of interest expenditure. Non-granting of deduction of interest paid on housing loan - deduction allowable u/s 24(b) - Held that:- This issue requires fresh examination at the end of the Assessing Officer, since the Assessing Officer himself has changed the character of the Goregaon flat, i.e. as against the claim of the assessee that the Goregaon flat is self occupied property, the Assessing Officer has treated the Prithvi flat as self occupied property. Now, the learned CIT(A), having directed the AO to treat the Goregaon flat as deemed to be let out, has given a finding that the Goregaon flat is not fit for occupation. Hence there is contradiction in the order given by the Ld CIT(A). Due to change in the character of Goregaon flat, the deduction allowable u/s 24(b) requires reconsideration, since the assessee is also putting forth claim for deduction of entire amount of interest expenditure. Under these set of facts, the determination of Annual letting value, if the Goregaon flat is accepted as deemed to be let out, is required to be made. If it is held that the said flat is not fit for renting out, then there is no requirement to treat the same as deemed to be let out. Since there is confusion about the character of flat, we are of the view that these issues require fresh examination. Accordingly we set aside the order passed by the learned CIT(A) on these issues and restore the same to the file of the Assessing Officer with the direction to examine these issues afresh in accordance with the law after affording adequate opportunity of being heard to the assessee.
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2017 (1) TMI 671
Disallowance made under section 14A r.w.s. 8D.- Held that:- The assessee has not claimed any exempt income in this year, therefore, no disallowance can be made - Decided in favour of assessee Disallowance of loss suffered in contract - Held that:- The approach of the Revenue authorities is such that every business venture would only give profit. With this angle, if a transaction is being appreciated, then the circumstances and questions would only give rise to suspicion. On the other hand, stand of the assessee as a businessman is that in such type of projects where everything was depending on getting approval from the Government nothing concrete could be anticipated. To our mind, it is only difference of opinion in appreciating a transaction. After looking into the explanation of the assessee with all other attending circumstances, we are of the view that the assessee had entered into an agreement which was a business venture and suffered loss. It has made payment of contractual liability. Money has been paid through account payee cheque and it did not return to the assessee as pointed out by the ld.counsel for the assessee. In such situation, the AO was not justified to disallow claim of the assessee. - Decided in favour of assessee
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2017 (1) TMI 670
Withdrawal of registration granted earlier u/s 12AA - as per DIT the assessee is not running for charitable purposes, but has been running for the purpose of profit as no major expenditure was for direct benefit of farmers - change in the society’s objectives or the activities carried on by the assessee are in contravention of its objectives - Held that:- The assessee is certifying the seeds on the application of a society or an agent with whom the seed growers have entered into an agreement and who, after securing such certification, sells such seeds to farmers at market price determined by them. The Hon'ble High Court in the assessee’s own case, on similar set of facts (2013 (1) TMI 63 - ANDHRA PRADESH HIGH COURT ) has come to the conclusion that this involves commercial activity as it facilitates trade, commerce or business in the certified seeds being sold by the clients of the society and therefore, the provisions of the proviso to section 2(15) of the Act comes into operation. As examined the nature of the activities carried on by the assessee and held that the activities of the assessee are not for the “advancement of any other object of general public utility” and hence is not for charitable purposes in view of the second limb of the first proviso to section 2(15) of the Act. Respectfully following the decision of the jurisdictional High Court we see no reason to interfere with the order of the DIT (E). - Decided against assessee
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2017 (1) TMI 669
Deduction of withholding tax u/s 195 - non-resident not having PAN - lower rate on payment made to non-resident for quarter 1st of Asst. Year 2001-12 - CIT(A) confirming the action of AO for applying TDS deduction @ 20% as per provisions of section 206A as against TDS deducted by assessee @ 11.33% covered u/s 115A(10(b) - Held that:- Respectfully following the decision of Co-ordinate Bench in the case of Alembic Ltd. vs. ITO (2017 (1) TMI 635 - ITAT AHMEDABAD) and we find that in the case of assessee also payment was made towards fees for technical services to non-resident M/s Honeywell, USA not having PAN through banking channel as approved by RBI and the payment is well covered under the provisions of section 115A(1)(b) of the Act and therefore, special rate of TDS i.e. 11.33% was applicable and was rightly deducted and deposited by the assessee and the provisions of section 206AA of the Act cannot be made applicable to this payment. We, therefore, set aside the order of ld. CIT(A), delete the claim towards short deduction and allow ground no.1 of assessee. Levying of interest u/s 201(1A) of the Act is consequential in nature.
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2017 (1) TMI 668
Revision u/s 263 - Exemption u/s 11 - Held that:- The coordinate bench of this Tribunal while considering the appeal of assessee for AY 2009-10 examined the issue of exemption u/s 11 which may be the subject matter of appeal before CIT(A) or before the Tribunal. and concluded the Ld. DIT do not have the power to consider ‘such matter’ by exercising power under section 263. The Tribunal also examined the second aspect, which is purely academic. The income which was assessed in the original assessment order and the income which is now being sought to be assessed by virtue of order u/s 263. Under both the assessments the surplus amount would be taxed. Hence, no prejudice is caused to the revenue so far as tax effect is concerned, except for the fact that section 11 is being sought to be examined from a different perspective. Thus the ground of appeal raised in the present appeal is squarely covered in favour of assessee. By following the order of Tribunal we hold that the order revised by ld DIT(E) is not prejudicial to the interest of revenue and the same is set-aside by accepting the appeal of the assessee.
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2017 (1) TMI 667
Allowance of deduction u/s. 54 - property sold was in the sole name of the assessee and the property purchased was in the joint names of the assessee and his wife - Held that:- In respect of the issue of purchase of the new asset (flat No. 3205 & 3206 at Oberoi Springs) in the joint names of the assessee and his wife, we find that the provisions of section 54 of the Act do not prohibit the same or mandate that the purchase of the property should be shown entirely in the assessee’s name. In the case on hand even though the wife is shown as joint owner in the sale deed, the AO has not doubted that the consideration for acquisition of the new asset has flown from the assessee; including the loan taken from Kotak Mahindra Bank. In fact, the property is admittedly reflected in the assessee’s Balance Sheet. In this factual matrix of the case, in our considered view, the assessee cannot be denied exemption under section 54 of the Act. See DIT (IT) vs. Mrs Jennifer Bhide [2011 (9) TMI 161 - KARNATAKA HIGH COURT ] - Decided in favour of assessee.
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2017 (1) TMI 666
Denial of exemption under section 11 - Non charitable activity - Held that:- Expenditure incurred on blood donation camps, Free books distribution are purely charitable in nature and therefore these are to be considered application of income. Administrative expenses are basically includes printing & stationery, conveyance expenses, office maintenance expenses which are necessary for running office of the trust. It is not the case of the AO that the assessee has made any business of sale or purchase of property. There is no allegation that activities are not charitable in nature. Expenditure incurred on Eye check up, blood donation camps, Free books distribution are purely charitable in nature and therefore are to be considered application of income. Administrative expenses are basically includes printing & stationery, conveyance expenses, office maintenance expenses and salary expenses which are necessary for running office of the trust. This is not the case of the AO that the assessee has made any business of sale or purchase of property. There is no allegation that activities are not charitable in nature. Thus we delete the addition in dispute and accordingly decide the issue in dispute in favour of the assessee and against the Revenue.
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2017 (1) TMI 665
Rectification of mistake - Validity of proceedings/order under section 154 r.w.s. 143(3) - working of the rebate under section 88E - Held that:- The issue of working of the rebate under section 88E of the Act is highly debatable one and are beyond the purview of the rectificatory provisions under section 154 of the Act invoked by the AO. In this view of the matter, we quash the rectification orders of the authorities below as invalid and bad in law, and consequently allow the assessee’s appeal on the ground. See Banwari Lal Tulsyan [2011 (8) TMI 1249 - ITAT KOLKATA] and Kadar Nath Agarwal [2011 (10) TMI 686 - ITAT KOLKATA] - Decided in favour of assessee
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2017 (1) TMI 664
TDS u/s 194C OR 194J - whether work is of nature of professional or technical services - services provided by highly skilled / technical professionals - supply and installation of HT and LT electrical installation equipments - expenses incurred in respect of advertisement - production/designing of Artwork - services for effective and smooth working of the hospital - electrical installation and AMC thereof - Held that:- No infirmity in the well reasoned order passed by the ld. CIT(A) which we are not inclined to interfere , hence, we hereby hold that the payments made by the assessee to the vendors for the assesses’ work executed by these vendors were towards contractual payment for work done by these vendors as specified in the preceding para’s , and not towards fee for acquiring technical services or professional services as per mandate of Section 194J of the Act, and the assessee has rightly deducted tax at source in respect of above payments under section 194C of the Act .We order accordingly.
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Corporate Laws
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2017 (1) TMI 637
Re-auction - higher amount offered for the same in the previous auction shall be taken as the reserve price for the said properties except in the case of property at Ajmer where the reserve price shall be treated to be ₹ 41,00,00,000/- offered by Shri Rajinder Daga - Held that:- Keeping in view the status report received from Justice Agrawal and the fact that the Income-Tax Department does not oppose the sale of the properties in question provided their rights were suitably protected, we direct that the five properties referred to above shall be offered by SEBI for sale afresh on the following conditions: 1) The price offered by the highest bidder for the five properties except for the property situate at Ajmer shall be the reserve price for the fresh auction to be conducted by SEBI. For the property situate at Ajmer the reserve price shall be taken at ₹ 41,00,00,000/-. We say so because Mr. Vikas Singh, learned senior counsel appearing for the successful bidder for the property at Ajmer submits that he has instruction to match the offer made by Shri Rajinder Daga at ₹ 41,00,00,000/-. 2) In the case of property at Ajmer and so also the four other properties mentioned above, the prospective bidders shall deposit with SEBI forfeitable security equivalent to 25% of the reserve price for the properties mentioned above. The deposit shall be made in the manner stipulated in the notice to be issued by SEBI. 3) Needless to say that in case after deposit of the forfeitable security amount the highest bidder does not make good his offer or does not participate in the auction. The amount so deposited shall be liable to be forfeited. 4) In case any one of the properties, does not attract any bid higher than the one received by SEBI in the first auction, the SEBI shall be free to finalise the sale and to issue the requisite sale Certificate in favour of highest successful bidder in the previous auction. A report on the progress made in the fresh auction shall be filed in this Court within six weeks.
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2017 (1) TMI 636
Scheme of Arrangement - Held that:- In view of the foregoing and upon considering the approval accorded by the members and creditors of the Petitioner Companies to the Scheme; the affidavit filed by the Regional Director, Northern Region, Ministry, of Corporate Affairs; and the circumstance that the objection raised in the affidavit of the Regional Director has been satisfied, there appears to be no impediment to the grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under section 391(2) and 394; 100 to 104 of the Companies Act, 1956. The Petitioner Companies will however, comply with the statutory requirements in accordance with law. A certified copy of the order, sanctioning the scheme, be filed with the ROC within thirty (30) day of its receipt. Resultantly, it is hereby directed that the Petitioner Companies will comply with all the provisions of the Scheme.
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Service Tax
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2017 (1) TMI 663
Transfer of Goods by Air Service - excess baggage charges recovered from passengers - whether, the amount collected by the appellant from passengers on account of the excess baggage carried by it are subject to service tax under section 65 (105) (zzn) ibid? - Held that: - the issue in this case is no more res-integra in view of the decision of the Tribunal in the case of Kingfisher Airlines Ltd. [2015 (11) TMI 54 - CESTAT MUMBAI (LB)], wherein it has been held that the excess baggage charges collected by the Airlines are integral part of the main service namely, “transportation of passengers by air” and, therefore demand of service tax on such charges cannot be sustained under the taxable service defined in Section 65 (105) (zzn) - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 662
GTA services - utilisation of cenvat credit account for payment of tax - prior to the period 19.04.2006, the assessee entitled to utilise cenvat credit account for payment of GTA service and post 19.04.2006, the demand was confirmed and penalties were imposed - Held that: - the assessee has correctly utilised cenvat credit for payment on GTA service during the impugned period - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 661
100% EOU - Refund of unutilised credit u/r 5 of CCR - rejection on the ground of nexus - Held that: - Commissioner (Appeals) has allowed the appeal of the assessee on the basis of the decision of CESTAT, Bangalore in the case of ANZ International [2007 (11) TMI 218 - CESTAT, BANGALORE], where it was held that Rule 5 of the CENVAT Credit Rules provides for refund of Cenvat credit where the appellants are not able to utilize the same - appellants had availed Cenvat credit and they were not in a position to utilize the same for the reason that all the products were exported – as per Rule 5 CCR, they are rightly entitled for the refund of unutilized credit. The learned Commissioner (Appeals) has also held that all the input services are directly used in relation to the processing of iron ore and they are admissible for credit and all the input services fall in the definition of ‘input service’ as contained in Rule 2(l) of the Cenvat Credit Rules. Appeal dismissed - refund allowed - decided against Revenue.
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2017 (1) TMI 660
Composite works contract - construction of residential building in terms of contracts entered into with their clients - extended period of limitation - Held that: - the service tax liability in respect of composite works contract has been settled by the Hon’ble Supreme Court in Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] where it was held that works contract is a separate species of contract distinct from contracts for services simplicitor - It was concluded that there was no charge or machinery to levy and assess service tax on indivisible composite works contract as per Finance Act, 1994 prior to 01/06/2007. The issue needs to be re-examined by the Original Authority afresh. The learned Counsel admitted that for the contracts executed after 01/06/2007, they are liable to service tax under works contract service - appeal allowed by way of remand.
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2017 (1) TMI 659
Valuation - inclusion of reimbursement of expenses - Jurisdiction of high court to entertain writ petition - Delay in filing appeal - time limitation - Held that: - if this Court finds that the authority has passed the order without jurisdiction or has exercised the power in excess of the jurisdiction or by over-stepping or crossing the limit of jurisdiction or that there is failure of justice, or it has resulted in gross injustice, it would be a case falling under the exceptional category for exercising the power under Article 226 of the Constitution and to interfere with the order of the original authority or the appellate authority, as the case may be. Unfortunately the decision of the Delhi High Court in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. v. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT] though was specifically brought to the notice of the original authority in the reply to the show cause notice, in the impugned order of the original authority, there is no reference whatsoever. Under these circumstances, we find that the case may fall in the exceptional category for exercise of the power under Article 226 of the Constitution. The impugned order of the first appellate authority as well as the order of the Tribunal are set aside, on condition that the petitioner deposits the amount of 7.5% of the duty demanded and further pays cost of ₹ 25,000/- to the respondent, within a period of one month from the date of receipt of certified copy of the order. After the aforesaid condition is complied with, the matter shall stand restored on the file of the Commissioner (Appeals) with a further direction that he shall consider the appeal on merits in the light of the observations made by this Court in the above judgment and after giving opportunity of hearing to all concerned.
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2017 (1) TMI 658
100% EOU - Refund claim - various input services - denial on the ground for absence of evidence of usage for business purpose, not clear as to the purpose for which the charges were paid, input services do not impact the quality of export services produced, or input service not having nexus with the output service - Held that: - I am of the opinion that the disputed input services, disallowed by the lower authorities, will merit consideration as input services for the purposes of Rule 2(l) of the Cenvat Credit Rules, 2004, as amended w.e.f. 1-4-2011 and that these services have clear nexus with the output service provided by the appellant and are very much used by them to provide the output service - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 657
Consulting Engineer service - demand on the basis of income-tax return filed by respondents at Jaipur - Held that: - income-tax return cannot be the basis for demanding Service Tax. Jurisdiction - respondent have rendered services outside the jurisdiction of Rajasthan and have discharged the Service Tax in Chandigarh and Lucknow - Held that: - Departmental authority at Jaipur have no jurisdiction to proceed against the respondent for demanding Service Tax without any evidence of taxable service being provided within their jurisdiction. Appeal dismissed - decided against appellant.
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2017 (1) TMI 656
Classification of service - Interior Decorator's Service - Composition Scheme - Works Contract Service - Held that: - the appellants were engaged in various civil works involving supply of materials with reference to preparing the building premises in a particular manner. The work involved are wood frame beveling, partition, lamination, fabrication, door, fixings, plumbing, sanitary work, ceramic work and many such activities. We could not find any indication regarding advice, consultancy, etc. with reference to planning, design or beautification of space. We note that Interior Decorator s Service in terms of statutory definition deals more with advice, consultancy and technical assistance and not on execution of elaborate civil fabrication/construction work. We find that all the contracts in dispute required to be examined by the Original Authority for a fresh decision. One more important issue requires a fresh consideration by the Original Authority. This is with reference to the composite nature of work order as submitted by the appellant. Appeal allowed by way of remand.
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Central Excise
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2017 (1) TMI 655
Refund claim - unjust enrichment - discount - The customer while making the payment deducts the applicable cash discount and so far as quantity discount is concerned, the appellant raises credit note based on the total quantity lifted, if the target quantity is achieved - rejected on the ground that the duty has been passed on to the buyer as the credit note has been issued subsequent to the raising of invoice - Held that: - this issue is no more res integra in view of the recent decision of the Hon’ble Supreme Court of India in the case of Commissioner of Central Excise vs. Addison and Company Ltd. [2016 (8) TMI 1071 - SUPREME COURT], where it was held that the Assessee is entitled for filing a claim for refund on the basis of credit notes raised by him towards turnover discount. The case needs to be remanded back to the original authority to determine whether the principle of unjust enrichment is applicable or not - appeal allowed by way of remand.
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2017 (1) TMI 654
Unjust enrichment - whether the appellant had successfully established the fact that the duty of ₹ 6,66,633/-, claimed as refund and sanctioned by the adjudicating authority had not been recovered from their customers/others? - Held that: - I find that even though the adjudicating authority has sanctioned the refund but had categorically made an observation that the appellant had failed to produce sufficient evidences to establish that the burden of the duty claimed as refund has not been passed to the subsequent persons/buyers - the matter is remanded to the adjudicating authority to decide the issue of unjust enrichment - appeal allowed by way of remand.
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2017 (1) TMI 653
Jurisdiction - maintainability of appeal - Rebate claim - rejection on the ground of limitation prescribed under Section 11B of the CEA, 1944 - Held that: - Whether the rebate claim is returned or rejected, however, it cannot be denied that the issue relates to rebate claims. Therefore, the proper authority to decide the issue, against the order of Ld. Commissioner (Appeals) is the forum prescribed under Section 35 EE of CEA, 1944, and not the Tribunal in view of Section first proviso to Section35B of CEA, 1944 - appeal not maintainable, dismissed - decided against appellant.
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2017 (1) TMI 652
Clandestine removal of EDNs, R-cords/Detonator Fuses, Slurry explosives etc - failure to record the finished goods in the RG-1 register - The allegation of duty evasion against the Appellant company and duty demand against them is based on the documents called incentive sheets from 1995-96 to 1997-98 period, recovered from the residential premises of Shri M.L. Agarwal, Dy. General Manager. Held that: - The quantity of production is to be recorded in RG-1 register after it has reached the stage of completion of manufacture. The goods cannot be considered as fully manufactured unless the quality control is completed and it is properly packed. Moreover, the goods are in the nature of explosives and the Chief Controller of Explosives had laid down strict conditions for quality control as well as packing - incentive sheets cannot be a true reflection of the quantum of explosives manufactured. No investigation appears to have been conducted at the end of the transporter also. Cross-examination of witnesses - Held that: - It is well settled law that cross-examination has to be allowed normally before using such statements for confirmation of demand. If the witnesses do not turn up for cross-examination it is open to the Adjudicating Authority to proceed with the adjudication without relying on those statements. The onus is definitely on the Department to establish manufacture and clearance of such goods and also the receipt of payments. Demand fails - appeal allowed - decided in favor of assessee.
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2017 (1) TMI 651
Valuation of scrap - transportation charges have been deducted twice independently and also with the cost of baling which is considered to be improper as the contract for delivery at the foundry includes the cost of transport - Appellant clears scrap on payment of duty to their own foundry and receives the finished products - revenue neutral exercise - Held that: - We are not certain if the contract/purchase order is reflected, as it is, in the detailed bills raised by the contractor who was awarded the work or whether baling and transporting were separately reflected there. These are aspects that the adjudicating Commissioner should have gone into and rendered a finding; more particularly, in the context of Rule 11 Central Excise (Valuation of Price of Excisable Goods) Rules, 2000. The matter remanded back to the original authority to determine and record reasons for arriving at an assessable value at variance with that adopted by appellant after analysing the components of the costs that are deductible from the price at which market scrap is procured by the foundries - appeal allowed by way of remand.
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2017 (1) TMI 650
CENVAT credit - Payment of duty on non-excisable goods - demand of differential amount between CENVAT credit taken on MS wire and the 8% paid by them on MS wire made out of duty-paid MS wire. - the contention of assessee that MS wires are not non-excisable goods that with acceptance of duty of 8% there is no scope for denial of credit, that bulk of their production is manufactured out of wire rods and that denial of CENVAT credit is contrary to the said Rules, is justified? - Held that: - The scheme of CENVAT credit is erected on the foundation that there is a last person in the chain of trade and commerce who is required to be saddled with the burden of duty without being able to claim any set-off. Such person is the ultimate consumer of the product. The privilege that accompanies payment of specified tax or duty on exempted goods or services under CENVAT Credit Rules, 2004 is intended to ensure that convenience is afforded to manufacturers or service providers who may, owing to some exemption that they may not be interested in claiming, be, yet, compelled to implement administrative measures of separate accounts that are be too cumbersome. On non-excisable goods, the purchaser is not denied the option of paying duty. Consequently, appellant has rightly been denied the facility of payment of the deemed tax/duty to avail CENVAT credit. Extended period of limitation - Held that: - The communication from appellant to the Range on 22nd September 2000 and the direction of the Range to appellant in letter dated 14th December 2001 is claimed as support for this contention made on behalf of appellant. Neither the original authority nor the first appellate authority have considered this aspect and have not rendered a finding on the allegation of deliberate suppression of facts with intent to evade duty even though the claim of limitation was raised in response to the notice - recovery is hit by limitation in section 11A of Central Excise Act, 1944. Appeal allowed on the ground of period of limitation - decided in favor of appellant.
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2017 (1) TMI 649
Manufacture - garnetting of synthetic filament/fibre waste - Held that: - as regards the processing of carding and garneting of textile waste, this Tribunal in the case of Collector of Central Excise v. Amritsar Swadeshi Woollen Mills [1989 (6) TMI 122 - CEGAT, NEW DELHI] has clearly held that the process does not amount to manufacture. Prior to insertion of Chapter Note 3 it was clearly held in Amritsar Swadeshi Woollen Mills [1989 (6) TMI 122 - CEGAT, NEW DELHI] that garneting is not amounting to manufacture. Subsequently, even after insertion of Chapter Note 3 which does not provide the process of garneting/carding amounts to manufacture the process remain as non-manufacturing activity. We are, therefore, of the considered view that the process of garneting/carding of textile waste does not amount to manufacture and hence not liable to duty. Appeal allowed - decided in favor of appellant.
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2017 (1) TMI 648
Maintainability of appeal - Condonation of delay - delay of period beyond 30 days after the 60 days time for filing the appeal before the Commissioner (A) - is the delay further condonable? - Held that: - the impugned order is not sustainable in law as the same has been passed in violation of the Division Bench's decision of this Court dated 20.5.2014 and the same is set aside and the matter is remanded back to the Commissioner (A) to decide the cases on merit - appeal allowed by way of remand.
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2017 (1) TMI 647
CENVAT credit - alleged short found inputs - goods not received into the factory - invoice no. 23 dated 23.04.2009 without receipt of the goods - invoices where goods were returned back - invoice no. 201 dated 31.03.2008 with no record of the consignment passing Churu toll post - Held that: - as regards denial of Cenvat Credit of ₹ 61,14,698/- on alleged short found inputs, the only charge is that the goods were kept in the plot adjacent to the factory premises. The said adjacent plot has been found to be regularized in the name of the appellant company. The appellant company has also intimated to the Revenue about the regularization of the adjacent plot in the name of the appellant - confirmation of the duty and penalty set aside. Cenvat Credit of ₹ 35,47,178/- availed on goods not received into the factory - Held that: - The appellant pleads that they should be called upon to deposit only the interest and 25% of penalty by giving them the benefit of Proviso to Section 11 AC of Central Excise Act, as no option was given to the assessee to pay 25% penalty - When the appellant can legally claim this benefit of payment of 25% penalty only as per provisions of Proviso to Section 11AC of Central Excise Act, the same is hereby allowed to them. Cenvat Credit of ₹ 66,442/- against the invoice no. 23 dated 23.04.2009 without receipt of the goods - Held that: - The assessee company has not been able to disprove the allegation that they took the Cenvat Credit of ₹ 66,442/- without actual receipt of corresponding inputs. The appellant has not placed on record any proof of receipt of subject inputs in their factory premises - recovery of credit with interest and penalty confirmed. Cenvat Credit of ₹ 11,08,524/- taken on invoices where goods were returned back - Held that: - The appellant company gives the proof of the return of goods in the form of letters from the customers or the marking on the invoice itself etc - We do not find any reason and the evidence for non-acceptance of the proof of return of the goods submitted by the appellant company in the form of letter, marking on the invoices GRs etc - credit allowed. Cenvat Credit of ₹ 2,33,694/- taken on invoice no. 201 dated 31.03.2008 with no record of the consignment passing Churu toll post - Held that: - it appears that mere non entry of the consignment at one of the toll posts cannot prove that the goods covered under the subject invoice were not received by the appellant company, unless there are other substantial corroboratory evidences to prove the charge of non-receipt of such goods - there is no material brought on record by the Department in support of allegation - demand dropped. Appeal partly allowed - decided partly in favor of appellant.
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2017 (1) TMI 646
CENVAT credit - various input services - Rule 2(l) of Cenvat Credit Rules, 2004 - AMC for Attendance Monitoring machine - Factory Inspection building stability certificate - PF Audit Fees - Annual Listing fee - Professional services - AMC charges for weighing machine - Renewal of Audit Quality Management System - AMC charges for Photo copier - Depository Service - Held that: - the services availed are definitely in or in relation to the business or manufacturing activity of the appellant or otherwise required to be availed of in view of statutory reasons - These input services are not also disbarred by any of the clauses (A), (B), (BA) or (C) of the Explanation to Rule 2(l) ibid - all these services are very much eligible "input services" - credit allowed. Construction of Overhead tank - Capital Civil Sundry Work - Labour charges for fabrication and erection of DSL system - Held that: - I find that they are in the nature of services relating to construction or execution of works contract or civil structure or part thereof or laying foundation of making of structures for setting up of capital goods which are specifically disbarred by (A) to the Explanation to Rule 2 (l) ibid - the services would not qualify as an eligible input service for the purpose of Rule 2(l) - credit disallowed. Transport & Loading Charges - Held that: - I find that these services relate not only to transportation and loading charges incurred with respect to raw material but also semi-processed as well as final products. There is no individual break up of the categories available and accordingly only for the limited purpose of determining the eligibility of each of the individual services, and also amounts involved in each case, the matter is required to be remanded to the original authority for de novo consideration - matter on remand. With regard to penalty, considering that the entire dispute has emanated on account of interpretational issues, penalty imposed under Rule 15 (1) of the Cenvat Credit Rules, 2004 is set aside. Appeal allowed - part of matter on remand - decided partly in favor of appellant.
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2017 (1) TMI 645
SSI exemption - various parts and accessories manufactured and cleared by the appellants are of air-conditioner and refrigeration machinery - whether the said parts and accessories are entitled for the SSI exemption N/N. 175/86-CE dated 01.03.1986? - Held that: - the classification claimed by the appellant is correct on the basis of Trade Notice No. 78/86 dated 24.10.1986 - the classification of the parts and accessories involved in the present case is decided in favor of the appellant - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 644
Rectification of mistake - Held that: - in identical matters before other co-ordinate Benches of the Tribunal, matter had been remanded to the Commissioner with directions to consider the RSO price as cum-duty price in computing the demand. There is an error apparent on the face of the record which needs to be rectified - all errors rectified - appeal allowed - decided in favor of applicant.
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2017 (1) TMI 643
CENVAT credit - demand of proportionate Cenvat Credit pertaining to the amounts retained from the invoices - Held that: - in case of any amount retained or discounted after the invoices were issued, the credit need not be changed and full credit of service tax paid to the service provider will be eligible for credit - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 642
100% EOU - refund claim u/r 5 of CCR, 2004 - utilization of CENVAT credit - N/N. 5/2006-CE dated 14.3.2006 - refund claim on the ground that appellant being a 100% EOU is not in a position to utilise the CENVAT credit availed on input and input services in terms of provisions of CENVAT Credit Rules 2004 - is refund claim justified? - Held that: - the impugned order is not sustainable in law as all the services involved in the present appeals have been held to be input services by various decisions of the Tribunal and the High Court - refund allowed - appeal allowed - decided in favor of appellant-assessee.
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2017 (1) TMI 641
Recalling of the order - adjudication - Appeal against the decision Union of India And Another Versus Dharampal Satyapal And Others [2013 (10) TMI 238 - DELHI HIGH COURT] - Held that: - the appellants on the previous occasion had submitted that the matter should be thrashed out before the Settlement Commission, but today it is argued that the matter requires to be adjudicated by the adjudicating authority as a show cause notice was issued. A plea of improper advise is canvassed - a cost of ₹ 4 crores therefore, imposed on the appellants.
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CST, VAT & Sales Tax
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2017 (1) TMI 640
Taxability - the goods, namely, roof cladding and steel sheets - whether goods classified under residual entry or not? - the issue involved in these writ petitions is squarely covered by the decision of this Court in W.P.Nos.10356 and 10357 of 2015, dated 20.04.2015, which was filed by the petitioner for an identical relief - Held that: - in respect of the earlier assessments, i.e. for the year 2007-08 and 2008-09, though the impugned orders were set aside and the matter was remanded, in the above referred writ petitions, the matter is still pending consideration before the first respondent. Therefore, the first respondent shall consider all the matters together and pass a speaking order - petition allowed - matter on remand.
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2017 (1) TMI 639
Imposition of penalty u/s 78 (5) - declaration form ST-18A - production of expired Form ST-18A - Held that: - when this court has already taken a view based on the judgment of this court and which has been upheld by the Apex Court then the present petition is also required to be dismissed - penalty withheld - petition dismissed - decided against appellant-petitioner.
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2017 (1) TMI 638
Evasion of tax - central sale - section 6(2) of the Act - constructive delivery of the goods - goods lying with transporter for 41 to 80 days, percepted by respondent that the petitioner were searching for the buyer of goods and intended to evade duty - circular 97-98/13 dt 16.9.1997 - Held that: - when the Commissioner was not justified in stipulating the time frame then the very basis goes out - the authorities were not justified in holding that the goods were lying with the transporter for 41 days to 81 days is well reasoned on behalf of the assessee. Benefit of exemption u/s 6(2) cannot be denied to petitioner - petition allowed - decided in favor of petitioner.
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