TMI Tax Updates - e-Newsletter
January 9, 2014
Case Laws in this Newsletter:
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Wealth tax
Highlights / Catch Notes
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Income Tax:
The assessee was founded for development of Muslim religion, cannot be denied the benefit of registration under section 12AA of the Act on the plea that it was only for the purpose of Muslim religion, as it was for the purpose of a section of the public amounts to an object of general public utility - AT
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Income Tax:
Transfer pricing adjustment in respect of Advertising, Marketing & Promotion (AMP) expenses -The assessee was a full fledge distributor and as such the benefit of AMP expenses did not spill over to the foreign AE - AT
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Income Tax:
The income resulting on account of additions u/s. 68/69 of the Act cannot be considered as income derived from export activities though it is income of export oriented unit - AT
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Income Tax:
Due to the bonafide belief if a person does not deduct the tax while making payment, then there can be no disallowance under section 40(a)(ia) of the Act - AT
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Income Tax:
TDS demanded u/s 154 – Merely because the Department’s system does not indicate the amount of TDS refund, it cannot be held that the assessee should be compelled to deposit the amount once again - AT
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Income Tax:
Rectification of order u/s 254(2) of the act – The tribunal cannot decide whether profit on sale of land is exempt from capital gains on the ground the land is agricultural land, without first establishing that the land was in fact agricultural land - no mistake in the order - AT
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Income Tax:
Penalty u/s 272A(2)(k) of the Act – penalty U/s 272-A(2)(k) could not have been levied on the assessee for the venial breach of the Rule 31-A of the Income Tax Rule - AT
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Income Tax:
TDS u/s 194C or 194I - Contract of service OR Rent for hiring a plant - It will be covered under sec. 194C of the Act because the vehicle has been made available as a matter of service - AT
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Income Tax:
Status of Assessee – Taxability of Profits - Technically, CIT (A) has decided the issue relating to PE - but, in order to have a complete holistic view, it is necessary that all the relevant Articles dealing with the issue are considered by the lower authorities before arriving at any conclusion - AT
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Customs:
Imposition of anti dumping duty - import of acetone originating in or exported from EU, Chinese Taipei, Singapore, South Africa and USA - levy upheld - AT
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Customs:
RE-import - The products which were re-imported have the specifications of flash point of 34.5 deg C as against the minimum requirement of 35 deg C, such a difference can not be considered as minor variation - demand of additional duty of Rs. 2 per liter set aside - AT
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Wealth-tax:
Valuation of immovable property - filing of the valuation report along with the return was not mandatory. Production of the same at the time of hearing was enough. The assessee cannot be denied a right to adduce evidence to substantiate his contention at the hearing - HC
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Service Tax:
When an assessee is contesting the leviability of a tax by filing appeals the entire payment of tax, during the period of contest, is treated as deemed protest and time bar is not applicable in such cases - AT
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Service Tax:
Rejection of refund claim - Demand under Business Auxiliary Service - Job work where principal is liable to pay excise duty - not liable to pay service tax - AT
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Service Tax:
Demand of service tax - Transfer of intellectual property right - Hdemand under ‘scientific and technical service' is not sustainable hence set aside - AT
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Service Tax:
Division of service - goods which were deemed to be sold in the execution of works contract that shall not enter into the purview of the levy of Service Tax - HC
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Service Tax:
Constructions on behalf of the assessee were during the period prior to 1-7-2010 when the explanation was not yet appended to Section 65(106)(zzzh) of the Act, there is no liability on the assessee to remit tax under the then extant legislative regime - AT
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Central Excise:
SSI Exemption - Brand name - Demand - Limitation - if the brand name is being used on two different products, the debarring clause of small scale exemption notification would not get attracted - AT
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2014 (1) TMI 401
Rejection of registration u/s 12AA - Held that:- The assessee, Shia Dawoodi Bohra Jamat Waqf (Kolkata), was earlier known as Dawoodi Bohra Community Wakf, was created vide Indenture dated 09.07.1920 - It was enrolled with the Office of the Commissioner of Wakfs (Kolkata) on 21.11.1979 - Original of the indenture dated 09.07.1920 was produced before the Director of Income-Tax (Exemptions) for his verification - As per the objects of the Waqf, it was engaged in charitable and religious activities - As the Waqf is existing prior to Income-tax Act, 1961, the object beneficial to a section of the public is an object of "general public utility" - To serve as a charitable purpose, it is not necessary that the object must be to serve the whole mankind or all persons living in a country or province - Even if a section of the public is given benefit, it cannot be said that it is not a trust for charitable purpose in the interest of public - Following Ahmedabad Rana Caste Association [1971 (9) TMI 8 - SUPREME Court] - An object beneficial to a particular community of a particular domicile at large along with immigrates of the same community as accepted by the natives according to the custom and usage amounts to a benefit to a section of the public without personal touch, hence an object of general public utility - The assessee was founded for development of Muslim religion, cannot be denied the benefit of registration under section 12AA of the Act on the plea that it was only for the purpose of Muslim religion, as it was for the purpose of a section of the public amounts to an object of general public utility - DIT(Exemption), Mumbai, has granted registration under section 12AA in case of Dawoodi Bohra Mosque At Machhi Bazar Wakf dated 20.09.2006, Jamali Mohallah Dawoodi Bohra Waqf Mumbai dated 06.10.2009 and Dawoodi Bohra Jamat Anjuman-e-Najmi Wakf dated 15.04.2008, as placed on record, which were also having very same objects and indenture - Decided in favour of assessee.
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2014 (1) TMI 400
Whether revenue be recognized on the basis of agreement to sell - Revision of order u/s 263 - Held that:- Following Padmasundara Rao v. State of Tamil Nadu [2002 (3) TMI 44 - SUPREME Court] - Through the Agreement of Sale dated 2.11.2005, the assessee is entitled to receive Rs. 5,01,60,000/- towards sale consideration of the property and it is accrued to the assessee as the assessee has right to receive the same - As the assessee has been following the mercantile system of accounting and the whole amount of sale should be considered as accrued to the assessee - The CIT is justified in directing the Assessing Officer to examine the issue afresh - The Sale Agreement cited supra is not yet cancelled and it is still in force. It is valid and enforceable by law. If there is any dispute it could be settled mutually or before a court of law - During the financial year relevant to assessment year nothing has been brought on record to show that the Sale Agreement has become invalid or cancelled or advance money has been refunded by the assessee to the purchaser - Decided in favour of Revenue.
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2014 (1) TMI 399
Unexplained cash credits - Held that:- As the purchase price for the export entitlements was paid through account-payee cheques, the purchase could not be fully disallowed - One M/s Krishna Enterprises had sold such export entitlements of the same category to M/s Pashupati Fabrics Ltd. at a rate of Rs.8 per sq. mtr - The CIT (A), based on this rate made an inference that any amount paid by the assessee in excess of Rs.8 per sq. mtr. should be disallowed. Genuineness of purchase transactions - Held that:- The material which was purchased from three parties was in due course of business against issue slips which were maintained by the assessee for the issue of raw material for production of finished goods - The CIT (A) also relied on the primary evidence which had been produced by the assessee including the stock-register - Since complete details had not been furnished, the CIT (A) held that certain amount of dis-allowance would be necessary though not entirely - The CIT (A) noted that the average rate paid by the assessee for the purchase of fabrics during the year was Rs.125.35 per mtr whereas the average rate paid in respect of the three disputed parties was Rs.165.40 per sq. mtr - The CIT disallowed the excess amount - Decided against Revenue.
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2014 (1) TMI 398
Estimation of net profit rate - Held that:- The Tribunal has found that for AY 2005-06 where assessment was completed under Section 143(3) of the Act, the AO had adopted a net profit rate of 3.1% (the assessee had declared a net profit rate of 2.1%) whereas for the assessment year under appeal the assessee had declared a net profit rate of 4.5%, the CIT (A) has adopted a rate of 7% - The Tribunal has declined to interfere on the ground that even in the case of a best judgment assessment it is well settled that the Assessing Officer cannot act capriciously and the assessment has to be made on the basis of previous history, local knowledge and the circumstances pertaining to the assessee. Unexplained credit - Held that:- During the stage of the remand proceeding, the assessee had filed by way of affidavits confirmations from the creditors. Subsequently, three remaining creditors had also filed confirmations - The Tribunal has compared the same with the list of sundry creditors in the balance-sheet for the earlier year ending on 31 March 2007 - It has been found that the creditors have provided building material for civil construction work and road roller and JCB machine for the use of the business activities of the assessee - If some outstanding amount was left due at the end of the financial year, which was confirmed by the creditors, this could not be regarded as an unexplained liability - Decided against Revenue.
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2014 (1) TMI 397
Validity of reassessment proceedings - Held that:- A perusal of the earlier order of the Tribunal indicate that no ground was raised challenging re-assessment proceeding - The order of the Tribunal in allowing the appeal was confined to limited issues, which were permitted for reconsideration - The Tribunal has correctly not permitted the appellant to raise the issue after ten years - Subsequent assessment proceeding could not have gone beyond the issues permitted for consideration, for other issues matter had been closed - Challenging the re-assessment proceeding after more than ten years and asking for supply the ground after ten years has rightly not been permitted by the Tribunal - Challenge to re-assessment proceeding ought to have been taken immediately when the assessment was drawn - Neither in the first appeal nor in the appeal before the Tribunal any such ground was taken challenging the re-assessment proceeding - Decided against assessee.
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2014 (1) TMI 396
Validity of assessment u/s 153A - Held that:- Warrant of authorisation u/s 132 was issued in the joint names of three persons, M/s Lahari Constructions, M/s Lahari Infrastructure Ltd and Others - The authority who signed the warrant had information in his possession and had reason to believe that these three persons are in possession of undisclosed assets such as money, bullion etc - He has signed the warrant in the joint names of three persons - The authorizing authority had information in his possession in consequence of which he had reason to believe that undisclosed income is in the possession of M.P.B. Kutumba Rao - If the Authorising Officer intended to search Shri M.P.B. Kutumba Rao himself, he should have issued an independent warrant and search individually for conducting search in his case only - It is not open for the assessing authority to assess Shri M.P.B. Kutumba Rao u/s 153A of the Act on the basis of seized documents seized during the course of search pursuant to the warrant of authorisation which in the joint of names - The provisions of section 153A are not applicable as the warrant was not issued in the name of Shri M.P.B. Kutumba Rao - If the Assessing Officer wanted to make assessment in the case of the assessee, he should have done u/s 153C of the IT Act - Decided against Revenue. Estimation of income u/s 44AD - Held that:- Following M/s C. Eswara Reddy & Co [2011 (1) TMI 1238 - ITAT HYDERABAD] - The assessee has taken contracts from Nagarjuna Construction Company, which, in turn, has taken the main contract from the Government - The estimation of 5% net profit on gross receipts as held by the Tribunal is justified - As per the provision of section 44AD as applicable for the assessment year under consideration and the provisions which are applicable with effect from 1.4.2011 - The deduction available u/s 30 to 38 shall be deemed to have been already given full effect and no further deduction under those sections shall be allowed - No further deduction shall be allowed for depreciation - Partly allowed in favour of assessee. Interest deduction u/s 24 - Held that:- The assessee has furnished certificate given by Oriental Bank of Commerce dated 22/09/2008 regarding the details of payment of housing loan for FY 2007-08 from 01/04/2007 to 31/03/2008 towards principal and interest paid by the assessee - The learned counsel submitted that only after completion of house, repayment has been started and therefore assessee is entitled for deduction towards housing loan interest - The learned DR has not controverted the submissions of the assessee nor brought any contrary material on record to suggest that the submissions made by the assessee are wrong - Decided in favour of assessee. Income from sale of land - Held that:- Following CIT Vs. Intezar Ali [2013 (8) TMI 704 - ALLAHABAD HIGH COURT] - The sale consideration received by the assessee only from the sale of agricultural property is to be treated as income from sale of agricultural land - The Department has not brought anything on record to establish that the amount deposited by the assessee is from other sources - Decided in favour of assessee.
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2014 (1) TMI 395
Arm's length price for purchase of raw material - Held that:- When the services rendered by the MKR is inseparable and composite ie FPF, the TP studies should also be done after considering all the price components of the said services - In ALP studies, the assessee needs to travel extra mile to demonstrate that the “raw material purchase price” of the assessee is at arm”s length after considering the entire cost attributable to the said purchases by the assessee - TPO cannot restrict his TP studies to only to the international transaction of reimbursements. In the fresh TP studies, the assessee needs to consider the composite transactions ie purchase cost incurred by the MKR, finance cost incurred by the MKR, administrative cost incurred by MKR, corporate guarantee commission etc - The duty of the TPO is determine the ALP and not to determine the justification of the said payments claimed by the assessee - The TPO has gone into the justification issues ie if the said reimbursement is rightly paid or not by the assessee - TPO must determine the ALP after merging all the relevant cost segments. His aim should be to determine after making requisite and appropriate adjustments - The MKR is not just a material seller to the assessee - The approach of the TPO cannot be appreciated in accepting - The “international transactions” involving the payment of cost for import of the raw materials and rejecting the reimbursement of the finance cost, interest cost etc amounting to Rs 17.81 cr and not charging of the “corporate guarantee commission” on the MKR - The TPO must determine ALP of the purchase price of the raw material as a whole after considering all the relevant segments of the price ie purchase cost, administrative cost and the finance cost and interest cost, guarantee commission etc. Regarding the principle of “commercial expediency” – Following SA Builders [2006 (12) TMI 82 - SUPREME COURT] – The issue was restored for fresh adjudication - AO/TPO is directed to consider the said judgement and pass a speaking order on this issue.
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2014 (1) TMI 394
Disallowance of telephone and travelling expenses - Held that:- The Assessing Officer while making the disallowance @ 20% of the expenses claimed had not given any specific instance where the expenses were incurred for personal purposes - The ld. CIT(A) while restricting the disallowance @ 10% had also not given any cogent reason - In such type of cases, the personal use on account of telephone and vehicle, cannot be ruled out - It is justified in the eyes of court that to cover the leakage if any and to meet the ends of justice, the disallowance to Rs. 5,000/- is restricted - Partly allowed in favour of assessee. Addition on account of household expenses - Held that:- The assessee explained that a sum of Rs. 1,12,000/- was withdrawn for house hold expenses, however, the Assessing Officer considered only Rs. 87,000/- for the purposes of house hold expenses and excluded the expenses of Rs. 25,000./-, which were incurred by the assessee for the education of the children - The Assessing Officer while estimating monthly expenses @ Rs. 12,000/- has not given any basis - The withdrawal of Rs. 1,12,000/- shown by the assessee for the purposes of house hold expenses, appears to be reasonable considering the size of the family - The Assessing Officer was not justified in making the addition on account of house hold expenses and the ld. CIT(A) was not justified in confirming the action of the Assessing Officer - Decided in favour of assessee. Low G.P. rate declared - Held that:- Ld. CIT(A) directed the Assessing Officer to apply the G.P. rate on the basis of the G.P. rate of immediately two assessment years and the maximum G.P. rate i.e. 7.19% declared by the assessee and accepted by the department in the assessment year 2007-08 was directed to be applied - The view taken by the Ld. CIT(A) was justified - Decided against Revenue. Unexplained cash credit - Held that:- The assessee not only filed the confirmation from the cash creditors, whose accounts were squared up but also produced them before the Assessing Officer who recorded their statement - The Assessing Officer could not bring any material on record to substantiate that the credits were from undisclosed income of the assessee - Following Kanhaiyalal Jangid Vs. ACIT [2007 (1) TMI 496 - HIGH COURT OF RAJASTHAN] - Assessee having filed confirmation from the creditor and having produced the creditor before the A.O. where the creditor affirmed advancement of loan to assessee, no addition u/s 68 could be made in the hands of assessee on the ground that the creditor could not satisfactorily explain the source of loan. Credit balance in account of trade creditors - Held that:- The purchases made from those parties were accepted and even the payments made through banking channel were not doubted, therefore, it cannot be said that the trade creditors were not traceable because the payments were made through banking channel to those parties, which had been accepted - The Assessing Officer had no where established that those were the bogus parties or the amount shown in their names, were bogus. The Ld. CIT(A) was of the view that the provisions of Section 68 of the Act were not attracted to the amounts representing purchases made on credit - In respect of difference in balances of parties the Ld. CIT(A) was of the view that the assessee by showing the higher credit balances had also inflated the purchases which resulted in the reduction of profit - The disallowance has been restricted to this amount - Decided against Revenue.
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2014 (1) TMI 393
Transfer pricing adjustment in respect of Advertising, Marketing & Promotion (AMP) expenses - Held that:- Following LG Electronics India Pvt. Ltd. Vs. ACIT [2013 (6) TMI 217 - ITAT DELHI] - Incurring of AMP expenses towards promotion of brand, legally owned by the foreign AE, constitutes a `transaction' - To determine correct ALP of AMP expenses, the Tribunal listed out 14 parameters which should be examined by the AO/TPO before reaching the final conclusion about the warrant for a TP Adjustment on this score - The first parameter that the AO/TPO should ascertain as to whether the Indian AE is simply a distributor or is holding a manufacturing license from its Foreign AE - The second parameter talks of examining as to whether or not the Indian AE is a full fledge manufacturer and whether it is selling the goods purchased from the Foreign AE as such or is making some value addition to the goods purchased from its Foreign AE before selling it to customers - There is not even a slightest doubt that the special bench order not only applies to a `Manufacturer', but also extends to a distributor, whether he is a bearing full risk or least risk - Such tests are applicable with full vigor to the extent applicable, to the distributors - The assessee was a full fledge distributor and as such the benefit of AMP expenses did not spill over to the foreign AE - Decided in favour of Revenue.
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2014 (1) TMI 392
Whether the amount of credit u/s. 68 is income from business or income from other sources - Held that:- Following Laxmichand Baijnath vs. CIT [1958 (11) TMI 3 - SUPREME Court] - If credits are found in business account of the assessee and the explanation as to the nature and source of account is rejected by the Income-tax authorities, such authorities are entitled to treat the credit as income from business - It cannot be interpreted to mean that in all cases such credits must be treated as income from business - Merely because the assessee is running a business in which are found certain unexplained cash credits, it does not necessarily follow that such credits represent suppressed business receipts and there would be no error of law in regarding the unexplained cash credits as income of the assessee from some independent and unknown sources unless there are strong reasons for connecting the unexplained cash credits with known sources of income of the assessee, there would be no alternative to treating them as income from other sources - When the assessee pleads that the impugned cash credits came out of suppressed profit, it is for him to prove that it is so. The income resulting on account of additions u/s. 68/69 of the Act cannot be considered as income derived from export activities though it is income of export oriented unit unless there is clear evidence that it represents business receipts - The assessee's business is carrying on of export activities in granite slabs and not dealing in unexplained credits - The assessee is not entitled for deduction u/s. 10B of the Act on account of additions made u/s. 68/69 of the Act - Decided in favour of Revenue.
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2014 (1) TMI 391
TDS u/s 194J - Whether payments made for computer software be considered as royalty or not – Held that:- There is no requirement to give specific direction on the applicability of the jurisdictional High Court judgment as it is binding on AO to follow the principles laid down by the Hon'ble jurisdictional High Court - AO is also directed to examine whether the principles laid down by the Hon'ble Bombay High Court in the case of CIT vs. Kotak Securities Ltd [2011 (10) TMI 24 - Bombay High Court] wherein the view that due to the bonafide belief if a person does not deduct the tax while making payment, then there can be no disallowance under section 40(a)(ia) of the Act. - This aspect also should be considered by AO - The issue was restored to the file of AO. Rectification of mistake - Disallowance under section 40(a)(ia) – Whether tax already paid by the deductee be recovered again from the assessee - Held that:- Since provisions of section 40(a)(ia) and section 201 operate in a different context, the Bench thought it fit not to give any specific direction but only to place on record the fact whether the recipient paid the taxes or not - This direction was already given in the order – Thus no direction can be given specifically for application.
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2014 (1) TMI 390
Stay application – TDS demanded u/s 154 – Held that:- Merely because the Department’s system does not indicate the amount of TDS refund, it cannot be held that the assessee should be compelled to deposit the amount once again - It is for the Department to check the error in its system or point out fallacy in the assessee’s claim - There can be no question of penalizing the assessee for no fault committed by it - If the assessee’s contention about the unallowed TDS credit had been incorrect, the A.O. should have made a mention of this in his order u/s 154 - Prima facie, there is unadjusted TDS against the current year’s income - thus, the assesse cannot be pressed to deposit a further sum as has been directed by the AO – rest of the amount waived till the disposal – stay granted.
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2014 (1) TMI 389
Rectification of order u/s 254(2) of the act – Held that:- Assessee contended that capital gains does not arise where the agreement is cancelled subsequently - the ITAT, in their order has merely held that the decisions relied upon by the applicant are not is a mistake in not considering the decision of this Tribunal without discussing the facts though brought to notice of the Hon'ble ITAT - this will amount to review of decision in the order - Under sec 254(2) only patent mistakes are liable to be rectified and not a review of the decision of the tribunal. The entire computation of capital gains in respect of the property under dispute in accordance with law and giving reasonable opportunity to the Assessee set aside - The AO was also specifically directed to consider allowability of relief u/s 54F - When recomputing the capital gains, no doubt the AO has to take into account all components including cost of acquisition, deduction u/s 54F and other related provisions for arriving at taxable capital gains – thus, any further rectification is not required in the order. The tribunal cannot decide whether profit on sale of land is exempt from capital gains on the ground the land is agricultural land, without first establishing that the land was in fact agricultural land - This factum does not appear to have been examined by lower authorities - While the Tribunal does not have the power for enhancement of assessment, it certainly has the power and in fact it is obliged to enquire into all aspects an allowance which is questioned before them – Relying upon Commissioner Of Income-Tax Versus Cochin Refineries Limited [1987 (1) TMI 9 - KERALA High Court] - it cannot be held that profit on sale is exempt from capital gains without first being certain that all the requirements for the provisions of the Act are satisfied - If the lower authorities have not considered one of the aspects required to be satisfied for allowance, the tribunal is well within rights to remand the matter to the files of the AO for fresh consideration in accordance with law - Decided against Assessee.
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2014 (1) TMI 388
Addition proposed by the TPO on account of Technical fee paid to AE – Addition Related to Royalty or charges – Method of Payment – Held that:- The assessee chose CUP as the most appropriate method for this segment and also relied on Government’s directives - the issue was covered by FIPB instructions, where royalty is accepted to be 5% to 8% - on the basis of global study, reliance can be made on one entity, which can be accepted to be CUP, so far as the business of the assessee and its affiliates are concerned, where the TP study identified the uncontrolled transaction of royalty of 10%, against which, the assessee’s payment was at 3%, which can be accepted to be the ALP - the comparables as suggested by the TPO cannot be accepted in the defined segment of the business, which does not have global presence - the assessee has done its business, strictly in accordance with the business agreement with its parent AE and has made the payments also in accordance with the norms as prescribed by the Government of India regulations and FIPB, Ministry of Commerce – the adjustment proposed by TPO reversed – Thus, the assessee’s payment made on account of royalty/license fee to be at arm’s length – Decided in favour of Assessee. Payment on account of research and development – Held that:- The CIT(A) has very categorically observed that, “there is nothing on record to suggest the bench marking the ALP - Even in the records, there is nothing specific, which clearly suggests the bench mark for the addition – FIPB approval cannot be treated as acceptance of arm’s length price more so in view of the specific method prescribed under the Act - thus, the matter remitted to the AO for fresh adjudication. Disallowance of delayed payment - Contribution to PF on account of ESIC and fund – Held that:- The payment have been made before the due date of filing of the return – Thus, the addition cannot be made.
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2014 (1) TMI 387
Penalty u/s 272A(2)(k) of the Act – No deliberate and contumacious default - Assessee contended that TDS submitted in due time – Held that:- Relying upon Section 272-A (2)(k) provides that penalty @ Rs. 100 per day may be levied if the person responsible fails to deliver copy of the statement within the time specified - The delay in uploading was on account of the TIN FC agency and the assessee after submitting the statement before due time had no responsibility to upload the same - Thus penalty U/s 272-A(2)(k) could not have been levied on the assessee for the venial breach of the Rule 31-A of the Income Tax Rule - Following Under Secretary & DDO, Panchayati Raj (Gram Panchayat)[ ITA No.499/CTK/2011 dt.29.6.2012………….] – Penalty levied u/s 272(2)(k) of the Act set aside – Decided in favour of Assessee.
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2014 (1) TMI 386
Deduction u/s 80IA of the Act - Deduction u/s 80IA after reducing amount of depreciation on WEG’s allocated on pro-rata basis – Held that:- deduction under section 80-IA is to be computed after setting off the depreciation relatable to the wind mill against the income earned out of electricity generator which qualified for deduction under sec. 80-IA of the Act. Allowance of eligible and non eligible units - Held that:- It has been excluded from the computation for the purpose of sec. 80IA of the Act – Thus, deduction under section 80-IA is to be computed after setting off the depreciation relatable to the wind mill against the income earned out of electricity generator which qualified for deduction under sec. 80-IA of the Act - assessee has been treating each WEG as a separate unit and claiming the deduction – Following Dalmia Cement (Bharat) Ltd. Versus Additional Commissioner of Income-tax, Range-10, New Delhi [2009 (5) TMI 623 - ITAT DELHI] – The depreciation allowable to each unit whether unabsorbed or present year has to be allocated against the profit of that unit before computing the deduction admissible to the assessee under sec. 80-A – the issue remitted back to the Assessing Officer for recomputation of deduction admissible under section 80-IA of the Act - the deduction should not exceed the ceiling of gross total income – Decided in favour of Revenue. Deletion u/s 40(a)(ia) of the Act – Applicability of Section 194 C of the Act - Nature of Payment – Contract of service OR Rent for hiring a plant – Held that:- Following Commissioner of Income-Tax Versus Prasar Bharti (Broadcasting Corporation of India) [2006 (11) TMI 159 - DELHI High Court ] - According to the contract, the travel agency has to ply the bus for a fixed number of hours - Thus, it is a simplicitor service contract for transportation of the passengers and it falls within the ambit of clause (c), Sr. No.(IV) of explanation appended to sec. 194C - assessee has just hired the transportation facilities which is akin to hiring of a taxi though on regular basis for a fixed number of hours – As per Board’s Circular No. 558 dated 28.3.1990, where a vehicle is given on hire along with provisions of a driver for use of carrying of the passengers for fixed hours than it is a service contract for carrying out the work - It will be covered under sec. 194C of the Act because the vehicle has been made available as a matter of service - it is a service contract and assessee was to deduct tax under sec. 194 C of the Act - The assessee has availed the services of cranes which were operated by the contractee - Assessing Officer has erred in construing that assesse has paid rent and its case falls under sec. 194I of the Act – Decided Against Revenue.
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2014 (1) TMI 385
Status of Assessee – Taxability of Profits - Profits from the operation of ships to be taxable or not in India - Whether the assessee is having a Permanent Establishment in India OR not under Article 5 of AADT – Held that:- The AO has not at all considered the issue regarding PE and CIT (A) has considered the issue with reference to Article 5(6) - Technically, CIT (A) has decided the issue relating to PE and it can be considered with reference to the ground taken by the department - but, in order to have a complete holistic view, it is necessary that all the relevant Articles dealing with the issue are considered by the lower authorities before arriving at any conclusion – The decision of Deputy Director of Income tax (International Taxation) v Thoresen Chartering Singapore (Pte) Ltd. [2008 (6) TMI 227 - ITAT BOMBAY-L] followed – order of the CIT(A) set aside and the matter restored to AO for fresh consideration – Decided in favour of Revenue.
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2014 (1) TMI 384
Deletion of interest expenses – Held that:- The assessee had justifiable reasons for advancing the amounts in its capacity as a prudent businessman - At any rate, notional interest cannot be added to the taxable income - the interest paid by the assessee pertains to the amount of Rs.20 crores borrowed from GE Capital at an interest rate of 7.5% p.a. This amount was directly advanced on the same date to Lakshdeep Investment & Finance Pvt. Ltd. from whom it had received interest @ 10% - no part of the borrowed funds were utilised for giving interest free advances so as to disallow any part of the interest paid by the assessee - The order of the CIT(A) with regard to factum of non-utilisation of the interest bearing funds for giving interest free advances upheld - the Revenue has not able to made out a case for disallowing the claim of interest paid by the assessee – Decided against Revenue.
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Customs
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2014 (1) TMI 383
Imposition of anti dumping duty - import of acetone originating in or exported from EU, Chinese Taipei, Singapore, South Africa and USA - Goods were exported to India from the subject countries below its normal value - Investigation against exports - Held that:- Domestic industry seeking protection of trade measure comprises producers thereof who are required to satisfy either of the conditions mentioned in Rule 2(b) of 1995 Rules to complain dumping and injury for the trade remedy measure. Record revealed that the applicants were the only producers of the subject goods in India and this remained un-refuted by appellant. When DA found that the applicant producers constituted domestic industry he was prima facie satisfied about veracity of the complaint against dumping and injury to the domestic industry. He was of the view that examination of the existence of dumping, degree thereof and effect of such dumping was substantial, for which he initiated investigation on 7.9.206 against subject countries although the application for initiation of investigation was against US, EU, Singapore, Chinese Taipei and South Africa as well as South Korea. The Authority considered that the data provided by the domestic industry was for a period of nine months and that was inadequate to investigate into various aspects of the exports as per standard practice since POI normally comprises a period of twelve months. None of the findings of the DA appears to be without evidence or legal basis. Therefore, it is not possible to impeach the findings in absence of cogent evidence to the contrary brought to our notice by the appellant - when investigation against export from subject country was initiated, the exporters of all those countries were equally treated having their export above de minimus level. But exports from South Korea were below the de minimus level. That made the basis unequal, calling for separate treatment by a separate Notification and investigation. That was rightly done by DA following the basic principle that equals are equally treated. Therefore, the term ‘simultaneous investigation’ is to be read in the context of language employed in 1995 Rules specifying that import of product from more than one country, if subjected to investigation under a Notification, in that circumstance simultaneous investigation is done in respect of exports of such countries and cumulative assessment of the effect of imports from such country is mandated. Therefore, the appellants fail to establish that there was no simultaneous investigation done. The appellant also fails in its contention that there was no cumulative assessment done. The DA acted within the framework of the law for which none of its finding can be disturbed. So also the Customs Notification is not liable to be set aside since that is based on reasons and findings of DA as well as evidence - Decided against assessee.
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2014 (1) TMI 382
Demand of duty - Import/re-import of HSD - the ship which sailed had to be called back on report of independent agency, that the ship tank No. 1C, 3C and 7C was having diesel which was contaminated and not acceptable to the purchaser; the goods were unloaded from these 3 tanks and taken to the refinery for purification - whether the appellant is liable to pay additional customs duty of ₹ 2 per ltr which is levied on imported HSD by the Finance Act 1996. Held that:- marketing of goods which do not conform to standards; are to be considered as not goods; marketing of the same is in violation of laws - if the chemical analysis does not establish that the impugned products were as is sought to be; the adjudicating authority/first appellate authority can not introduce his own theory to categorize it as the same, is being done - The products which were re-imported have the specifications of flash point of 34.5°C as against the minimum requirement of 35°C, such a difference can not be considered as minor variation and the demand for additional customs duty of ₹ 2 per ltr is not sustainable - Decided in favour of assessee.
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2014 (1) TMI 381
Confiscation of goods - Sale of goods in auction - Held that:- adjudicating authority ordered for absolute confiscation of the goods and the same were sold through public auction and the Customs authorities directed the applicant to collect the auction amount - Decided against assessee.
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2014 (1) TMI 380
Confiscation of goods - Demand of differential duty - Imposition of redemption fine - Shortage in stock - Imposition of equivalent penalty - Held that:- goods not seized cannot be confiscated and subsequently released on redemption fine. Redemption fine is possible only in respect of goods seized and confiscated irrespective of the facts that the goods are available at the time of adjudication for confiscation. Goods were not physically seized and therefore, the question of confiscation and subsequent release on imposition of redemption fine do not arise - imposing penalty upon the partner when the penalty has already been imposed upon the firm, does not have any legal support - Decided in favour of assessee.
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Service Tax
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2014 (1) TMI 413
Disallowance of refund claim - Bar of limitation - Unjust enrichment - Tax paid due to mistake of law - Duty paid under protest - Held that:- When duty was paid under protest or when an assessee is contesting the leviability of a tax by filing appeals the entire payment of tax, during the period of contest, is treated as deemed protest and time bar is not applicable in such cases. Further, it is also a case of payment of service tax under mistake of law and as per the case laws relied upon by the appellant in Para - 2 above the present refund claim will not be time barred - aspect of unjust enrichment has not been examined by the original adjudicating authority and the first appellate authority in para 13 of his OIA dt 29/8/2009 has also observed that appellant has not submitted any proof in this regard. In the interest of justice, this matter is required to be remanded back to the original adjudicating authority to decide the issue in the light of principles of unjust enrichment laid down by the supreme court. Appellant will produce all the documentary evidences available with them in support of their claim that the duty refund sought for has not been recovered from any other person - Decided in favour of assessee.
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2014 (1) TMI 412
Rejection of refund claim - Bar of limitation - Mandap Keeper services - Authority to collect service tax - Notification No. 17/2009-ST dated 07/07/2009 - Held that:- export order under Section 51 was given by the Customs officer on 04/01/2009 and the one year period expired on 03/01/2010. The appellant filed the refund application initially on 05/10/2010 for a sum of Rs. 28,685/- and the same was withdrawn and a revised application was filed for a sum of Rs. 99,252/- on 18/01/2010. The lower authorities rejected both the claims as time barred. As seen from the records, the refund claims should have been filed on or before 03/01/2010. Inasmuch as the claim has been filed belatedly, the claim is liable to be rejected in terms of the provisions of the aforesaid notification. All refund claims under the Customs Act, Central Excise Act or Service Tax law have to be considered and granted in terms of the provisions of the said laws and the provisions of general law of limitation will not apply. The provisions which would apply in respect of the refund claim is Section 11B of the Central Excise Act read with Notification No. 17/2009-ST dated 07/07/2009 which lays down a time limit of one year from the date of export. Inasmuch as the claim has been filed belatedly, the claim is time-barred. Accordingly, I do not find any infirmity in the impugned order - Decided against assessee.
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2014 (1) TMI 411
Rejection of refund claim - Demand under Business Auxiliary Service - Job work where principal is liable to pay excise duty - Unjust enrichment - Notification 214/86-CE - Held that:- activity undertaken by the appellant is in respect of machining and flame hardening on forgings and castings received from the principal manufacturer. The appellants are working under the provisions of Notification 214/86-CE. In the show-cause notice the fact is admitted. The activity undertaken by the appellant is a part of manufacturing process and the principal manufacturer was paying duty on the goods processed by the appellants. Therefore we find that the appellants are not liable to pay service tax under the Business Auxiliary Service during this period. In respect of unjust enrichment, we find that the appellant admitted the fact that though the amount of service tax was shown in the invoice but not received by them. In view of the above facts, we find the matter requires reconsideration by the adjudicating authority regarding unjust enrichment. The issue & unjust enrichment is remanded back to the adjudicating authority for consideration and to decide afresh after affording an opportunity of hearing to the appellant - Decided in favour of assessee.
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2014 (1) TMI 410
Consulting engineer service - Penalty u/s 76, 77 & 78 - Held that:- appellant is a State Government organization and there is no intention to evade payment of duty. The appellant was under bona fide belief that as per the provisions of the Indian Electricity Act, 2003, the appellant is performing the statutory duties in respect of generation and supply of electricity - in view of the provisions of Section 80 of the Finance Act, the penalties imposed under the impugned order are set aside - Following decision of Discom Ltd. vs. CCE [2009 (8) TMI 337 - CESTAT, MUMBAI] - Decided in favour of assessee.
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2014 (1) TMI 409
Demand of service tax - scientific or technical consultancy service - Transfer of intellectual property right - Held that:- The appellant permitted M/s. Dhariwal Industries Ltd. to use the trade name “Manikchand” for pan masala, gutka etc. and also the formulae developed by the appellant for the manufacture of pan masala, gutka etc - transfer of intellectual property right comes under the purview of the service tax with effect from September 2004. As per the definition of ‘intellectual property right' provided under Section 65(55a), "intellectual property right" means any right to intangible property, namely, trade marks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright.” In view of the terms and conditions of the agreement under which the brand name and formulae are transferred to M/s Dhariwal Industries Ltd., we find that the demand under ‘scientific and technical service' is not sustainable hence set aside - Decided in favour of assessee.
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2014 (1) TMI 408
Demand of service tax - Penalty u/s 77 & 78 - Demand of initial period - Outdoor catering service - Held that:- respondents are not contesting the demand with interest the same has been paid when the revenue pointed out that respondents are liable to pay tax. The tax and interest has been paid prior to the show cause notice. We find that outdoor catering service comes under the purview of service tax w.e.f. 10.9.2004 and the period of present demand is initial period - As the demand is for the initial period when the service of outdoor catering comes under the purview of service tax, therefore, we find that the respondents are not liable for any penalty in view of the provisions of Section 80 - Decided partly in favour of assessee.
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2014 (1) TMI 407
Waiver of pre-deposit of Service Tax - Construction of Complex Services - Held that:- Appellants are developing and constructing residential complex having more than twelve residential units. The said construction of residential complex was being undertaken by the appellants on their own land with their own resources for selling the same to prospective buyers - when construction of residential complex is for sale of flats and the same are ultimately sold to the customer under the agreement, it cannot be held that there was any service being provided by the builders to their customer even if a part amount of the cost of the flats is being received in advance. It stands held that such advance amount given by the prospective buyer is against sale consideration of flat and building and not for obtaining any service, so as to make an activity as leviable to Service Tax - Prima facie case in appellants favour - Stay granted.
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2014 (1) TMI 406
Waiver of pre-deposit - Held that:- applicant relied upon the Board Circular No. 134/3/2011-S.T., dated 8-4-2011 where it has been directed that field formations are not to initiate proceedings to recover the Education Cess, where ‘whole of Service Tax’ stands exempted under the notification. In view of the above Board circular, prima facie we find that the applicant has a strong case in their favour. Therefore the pre-deposit of the amount of demand is waived and recovery is stayed during the pendency of the appeal - Stay granted.
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2014 (1) TMI 405
Waiver of pre-deposit - Availment of CENVAT Credit - Credit taken on Insurance, Air Fare/Air Tickets, Taxi/Car Hiring, Insurance Charges, Maintenance and Repair Charges - Held that:- Cenvat credit of Service Tax paid on the services availed by the appellant on Air Fares/Air Tickets and Taxi/Car Hiring, Insurance Charges, Maintenance and Repair Charges was in respect of the expenses incurred by them for the logistical purposes of the appellants’ work is for business purposes. This specific plea has been taken by the appellant before both the lower authorities but they have not addressed to this plea in proper perspective. As regards the Service Tax paid on insurance charges, it is seen that the insurance was taken for various stocks lying in different branches and insurance has been taken to protect the assets from fire, theft and also from other damages - Service Tax paid on the above mentioned services are in relation to the business of the assessee - insurance charges paid on the services are in relation to the business of the assessee and Cenvat credit of Service Tax paid on the services cannot be disallowed - Following decision of Stanzen Toyotetsu India Pvt. Ltd. [2008 (12) TMI 118 - CESTAT BANGLORE] - Stay granted.
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2014 (1) TMI 404
Division of service - Whether any composite contract for providing service of complete repair of old and damaged transformer may be divided into service portion and goods portion on the basis of payment of VAT on certain goods used during repair - Held that:- goods which were deemed to be sold in the execution of works contract that shall not enter into the purview of the levy of Service Tax - Decided against Revenue.
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2014 (1) TMI 403
Waiver of pre-deposit of service tax - Technical testing & analysis - Recipient of services from the foreign service provider - Held that:- oods were sent outside India for conducting the test of the said product manufactured by them in India. The testing report, on completion of testing, was received by their parent company in France - applicant has a strong case in their favour. Therefore the pre-deposit of service tax, interest and penalty is waived and recovery thereof is stayed during the pendency of the appeal - Stay granted.
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2014 (1) TMI 402
Construction of complex service - Interest u/s 75 - Penalty 77 & 78 - Tax liability for a period prior to 1-7-2010 - Held that:- constructions on behalf of the assessee were during the period prior to 1-7-2010 when the explanation was not yet appended to Section 65(106)(zzzh) of the Act, there is no liability on the assessee to remit tax under the then extant legislative regime - Following decision of Maharashtra Chamber of Housing Industry v. Union of India [2012 (1) TMI 98 - BOMBAY HIGH COURT] - Decided against Revenue.
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Central Excise
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2014 (1) TMI 379
Clandestine removal of frit – Undervaluation of goods – Waiver of Pre-deposit – Held that:- Two raw material suppliers have accepted to have sold the raw materials to the appellants without billing or under valuing the raw materials - All these evidences needs to be gone into detail to come to a conclusion - the admission made by the authorised signatory of the appellant accepted that there being clandestine manufacturing/ production and clearances in respect of frits is an evidence which cannot be over looked - the appellant has already deposited an amount of Rs. 10 Lakhs during the investigation - M/s. Jaysun Enterprise directed to deposit an amount of Rupees forty lakhs and M/s. Narmada Enterprise to deposit an amount of Rupees twenty five lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – partial stay granted.
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2014 (1) TMI 378
Payment of duty under protest - Delayed refund – Revenue was of the view that no protest was lodged on each and every invoice and no letter of protest was separately filed - Held that:- Following M/s. Power Grid Corpn. of India Ltd. vs. CC, Chennai [2008 (10) TMI 92 - CESTAT, CHENNAI] - considering all the aspects in detail, including the meetings between the representatives of various Ministries as also the fact of late sanction of world bank loan - the issue of time bar will not apply to sanction of refund claim by the Revenue – Decided against revenue.
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2014 (1) TMI 377
Inputs cleared as such – Reversal made for the cenvat credit taken – Held that:- Adoption of assessable value by adopting the value on which the goods were cleared from the depots in terms of Rule 7 of the Valuation Rules is not justified as it is not the assessee who has manufactured the goods - The assessee had cleared the goods to their depots by debiting a particular transaction value and by reversing the amount which was equivalent to the original value of the inputs on which the same were received - the entire modvat credit availed by them was reversed – Following Eicher Tractors vs. CCE, Jaipur [2005 (9) TMI 340 - CESTAT, NEW DELHI ] – Decided against Revenue.
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2014 (1) TMI 376
SSI Exemption - Brand name - Demand - Limitation - Interpretation of statute – Held that:- There is nothing on record to show that the order in appeal of Commissioner (Appeals) was appealed against by the Revenue - if the brand name is being used on two different products, the debarring clause of small scale exemption notification would not get attracted - Following CCE Chandigarh vs. Fine Industreis [2002 (10) TMI 114 - CEGAT, COURT NO. II, NEW DELHI] and CCE Chandigarh vs. M/s. Bhalla Enterprises [2004 (9) TMI 109 - SUPREME COURT OF INDIA] - no malafide suppression or mis-statement can be attributed to the appellant - the major part of the demand is beyond the normal period of limitation, the appeal allowed on the point of time bar – confiscation of goods and imposition of penalty set aside – Decided in favour of assessee.
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2014 (1) TMI 375
Activity manufacture or not - Denial of Cenvat credit – Duty paid on various inputs / raw materials not utilized for payment of duty on the final product - activity of cutting of HR/CR coils of iron and non-allied steel into sheets or slitting into strips – Held that:- As no manufacturing activity was undertaken by the appellant, they cannot be held entitled to avail the Cenvat credit - the appellant has discharged the central excise duty on their final product, by utilizing the Cenvat credit - by debiting the Cenvat credit while paying the duty on their final product, the entire Cenvat credit stand reversed - Even otherwise, it is revenue neutral situation – following COMMISSIONER OF C. EX. & CUS., VADODARA Versus NARMADA CHEMATUR PHARMACEUTICALS LTD.[ 2004 (12) TMI 93 - SUPREME COURT OF INDIA] – order set aside – Decided in favour of Assessee.
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2014 (1) TMI 374
Denial of Cenvat credit – Credit taken on photocopies of Bills of Entry - Waiver of pre-deposit – Held that:- There is factual dispute of utilization of credit - The Commissioner has given a finding that the Bills of Entries were showing their address at Tiruvattiyoor where their Registered Office and one of their factories were functioning at the relevant time - Subsequently the licence for Tiruvattiyoor unit was surrendered - the Commissioner was not satisfied that the goods were received in their Ponneri factory where credit is taken - the applicant is directed to deposit Rupees Twenty lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
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2014 (1) TMI 373
Eligibility for Notification No.5/2006 – Semi finished silver cleared - Waiver of Pre-deposit – Held that:- The appellant’s claim under Sr.No.25 of the Notification No.4/2006 on such silver bars, cannot be denied for simple reason that any exemption which is beneficial to the assessee, has to be extended to them – Following SHARE MEDICAL CARE Versus UNION OF INDIA [2007 (2) TMI 2 - SUPREME COURT OF INDIA] and MANGALAM ALLOYS LTD. Versus COMMISSIONER OF CUS., AHMEDABAD [2010 (4) TMI 493 - CESTAT, AHMEDABAD] - the appellant has made out a strong prima facie case for waiver of pre-deposit of the amounts – Pre-deposits waived till the disposal – Stay granted.
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2014 (1) TMI 372
Waste and scrap cleared from factory without payment of duty – Waiver of Pre-deposit –Assessee contended that they were doing trading in waste and scrap and, as such, the waste and scrap is not the one generated in their factory – various documentary evidences relied upon - Held that:- The issue is contentious and arguable and lot of evidence is required to be gone through for appreciating the above stand of the applicant - the applicant is directed to deposit an amount of Rupees Twenty Five Lacs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
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2014 (1) TMI 371
Eligibility for cenvat credit under Pan Masala Packing Machine Rules – Waiver of Pre-deposit – Held that:- Following M/s SHIV SHAKTI AGRIFOOD PVT LTD Versus COMMISSIONER OF CENTRAL EXCISE, DELHI-I [2012 (9) TMI 742 - CESTAT, NEW DELHI] - the deposit of the entire amount of the duty liability directed – Thus, the appellant is directed to deposit entire amount of the duty liability as pre-deposit – stay not granted.
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2014 (1) TMI 370
Condonation of delay – Delay of 175 days – Held that:- The plea stands taken by the appellant in a very casual manner without making any serious efforts to explain such huge delay of 175 days - Even if the appellant is not in a position to explain each day delay but he is expected to, at-least, advance sufficient reasons and bonafide conduct for condonation of delay - ‘sufficient cause’is required to be applied in a reasonable, pragmatic, practical and liberal manner depending upon the facts and circumstances of the case available in each case – there was no justifiable reasons to condone the delay - The condonation of delay is rejected – Decided against Assessee.
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CST, VAT & Sales Tax
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2014 (1) TMI 414
Tax assessment - Whether a composite sale of running business of the concern would attract the provisions of the Tamil Nadu Value Added Tax Act, 2006, particularly when the Assessing Officer took a stand that the appellants/writ petitioners used to sell some of the assets every year as in the case of sale during the year 2010 treating it as transfer of business as a whole, and the Assessing Officer treated the same as bulk sale of assets liable to tax - Alternate remedy taken - Normal course not adhered to - Held that:- When the facts are in dispute, the writ petition filed under Article 226 of the Constitution of India is not maintainable - if the facts are seriously disputed, no factual finding can be recorded without considering the evidence adduced by the parties. It was not appropriate for the writ Court to exercise its jurisdiction - assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, Since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first - appellants have to approach the appellate authority under Section 51 of the Tamil Nadu Value Added Tax Act, 2006. Want of jurisdiction can also be raised before the appellate authority - Decided against assessee.
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Wealth tax
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2014 (1) TMI 415
Penalty under section 18(1)(c) - Tribunal Upheld penalty but reduced the amount - Prior approval of the requisite authority - Valuation of immovable property - Held that:- Section 7 of the Wealth Tax Act is emphatic which provides that valuation shall be made as provided in Schedule III. Therefore, no other mode of valuation was permissible. The contention that schedule III does not apply to a vacant piece of land is not acceptable. The caption of part ‘B’ of schedule III is “immovable property”. It is difficult to proceed on the basis that the expression does not include a vacant piece of land. If that were the intention of the legislature then the vacant piece of land cannot taxed at all. It is no doubt true that the provisions contained chapter ‘B’ of schedule III refer to a vacant piece of land appurtenant to a building which is not the case before us. Considering that the Act provides for valuation in the manner indicated therein, it is difficult if not impossible to hold that any other mode of valuation is permissible - filing of the valuation report along with the return was not mandatory. Production of the same at the time of hearing was enough. The assessee cannot be denied a right to adduce evidence to substantiate his contention at the hearing. It was the obligation of the Income Tax Officer to indicate in his order that he passed the order after obtaining requisite approval. Since the order passed by the Income Tax Officer does not contain the requisite recital, it has to be held that no such approval was obtained. The order itself is incompetent. An incompetent order is a nullity and the point as regards nullity can be taken at any stage. It can even be taken at the stage of execution. Even if the orders imposing penalty were not set aside by us, which we propose to do, the order could not have been executed - Decided in favour of assessee.
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