TMI Tax Updates - e-Newsletter
February 10, 2016
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Wealth tax
Indian Laws
TMI SMS
Highlights / Catch Notes
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Income Tax:
Addition of cess on green leaf - deduction on cess paid on green tea leaves has to be allowed on 100 per cent, of the composite income under the Income-tax Act, 1961, and not on 60 per cent, of the agricultural income - HC
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Income Tax:
Scope of Section 2(47)(v) r.w.s. 53-A of the Transfer of Property Act, 1882 - JDA entered by assessee - Tribunal and the authorities below were not right in holding the assessee-appellant to be liable to capital gains tax in respect of remaining land measuring 13.5 acres for which no consideration had been received and which stood cancelled and incapable - HC
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Income Tax:
Interest u/s 234A - Board has clarified that no interest u/s 234A is chargeable on the amount of self assessment tax paid by the Assessee before the due date of filing of return of income - matter remanded back - HC
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Income Tax:
Addition on account of short term capital on sale of gala - sale of gala was part of relevant block of assets as per the provisions of section 43(6) and short term capital gain was to be computed in accordance with section 50 - AT
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Income Tax:
Foreign exchange gain taxability - restatement of foreign currency loan - AO directed to grant deduction of notional exchange loss in the subsequent assessment years - AT
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Customs:
Revision in All Industry Rates (AIR) of Duty Drawback of various items - Amendment in the Notification No. 110/2015-Customs (N.T.), dated the 16th November, 2015 - Notification
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Customs:
Refund of SAD - SAD had been paid, not in cash, but by utilising the DEPB scrip - scope of circular - Circular issued by the CBEC could not have imposed an additional restriction for availing of the exemption in terms of the Notification No. 102/2007-Cus issued under Section 25(1) of the Act. - HC
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Service Tax:
Refund - input services - duty paying documents - so long as the documents (debit notes) reveal the essential details like registration no service provided, service recipient, value of taxable service, refund cannot be rejected merely because the documents are debit notes. - AT
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Service Tax:
Refund - period of limitation - delay of 2 days because of the intervening Saturday and Sunday and the claim was filed on Monday. - refund allowed - AT
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Service Tax:
Condonation of delay in filing an appeal before Commissioner (Appeal) - writ petition - the law does not come to the aid of indolent, tardy or lethargic litigant. The conduct of the petitioner would dissuade us from entertaining these petitions - HC
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Central Excise:
Duty liability - Manufacturing activity or not - It is necessary for the original authority to examine the processes carried out category wise and to give finding on such process resulted in production of totally a new identifiable and marketable product falling under specific classification in tariff. - original authority failed to follow the procedure - demand set aside - AT
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Central Excise:
Area based exemption - notification No. 50/03-CE dated 10.6.2003 - denial of benefit as the appellant was not having electricity connection or DG set installed at the time of investigation - The supplier of DG set (on rental basis) has also gave the statement that he has given DG set on rental basis to the appellant - benefit of exemption allowed - AT
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Central Excise:
SSI Exemption - calculation of aggregate value in regard to exempted goods is clearly worded and does not give reason for any doubt - appellant seems to be making an effort to mix both these conditions together and put forward a plea that there was a confusion whether exempted goods have to be included while calculating the aggregate clearances applicable for the preceding financial year - there has been suppression of facts on the part of the appellant - demand confirmed - AT
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VAT:
When no express power has been conferred on the first appellate authority to pass an order of interim injunction/protection, in our opinion, by necessary implication and intendment in view of various pronouncements and legal proposition expounded above and in the interest of justice, it would essentially be held that the power to grant interim injunction/protection is embedded in Section 62(5) of the PVAT Act - HC
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VAT:
Issuance of C-Forms - the purchases were not entered in the purchase register to be maintained in Form DVAT-30; the purchases were not shown in the documents produced before the Special Auditor when - it is a case of bonafide mistake - revenue directed to issue the C-Forms - HC
Articles
Notifications
Customs-
23/2016 - dated
9-2-2016
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Cus (NT)
Tariff Notification in respect of Fixation of Tariff Value of Edible Oil, Brass, Poppy Seed, Areca Nut, Gold and Sliver
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22/2016 - dated
8-2-2016
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Cus (NT)
Revision in All Industry Rates (AIR) of Duty Drawback of various items - Amendment in the Notification No. 110/2015-Customs (N.T.), dated the 16th November, 2015
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21/2016 - dated
8-2-2016
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Cus (NT)
Amendment in the Notification No.35/2007-CUSTOMS (N.T.), dated the 26th April, 2007
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20/2016 - dated
8-2-2016
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Cus (NT)
Appoints the Additional Director General(Adjudication), Directorate of Revenue Intelligence, Mumbai
FEMA-
F. No. K-11022/65/2015-Ad.ED - dated
5-2-2016
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FEMA
Superseded notification number S.O.44(E), dated 8th January, 2008,
Indian Laws-
F.NO.20/6/2015-FT(PT.7) - dated
3-2-2016
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Indian Law
Gold Monetisation Scheme -2015
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F. No. 5/18/2015-CS - dated
2-2-2016
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Indian Law
Appoints Shri Devender Kumar Sikri as the Chairperson of the Competition Commission of India
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2016 (2) TMI 278
Addition of cess on green leaf - whether production of green leaf which is 100% agricultural activity and not an admissible deduction under income chargeable ? - Held that:- In Jorehaut Group Ltd. -Vs- Assistant Commissioner of Income-Tax reported in (2006 (12) TMI 98 - GAUHATI High Court) followed the view expressed in Assam Co. Ltd. v. Union of India, [2005 (3) TMI 63 - GAUHATI High Court] wherein it was held that the deduction on cess paid on green tea leaves has to be allowed on 100 per cent, of the composite income under the Income-tax Act, 1961, and not on 60 per cent, of the agricultural income - Decided in favour of the assessee.
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2016 (2) TMI 277
Validity of assessment u/s 153 C - Held that:- In the present case, there is no doubt that it was only on 24th March 2009 that the AO of the Assessee received the documents seized and it was on that date a notice under Section 153C (1) was issued and served upon the Assessee. Consequently, this Court finds no legal error in the conclusion of the ITAT that notice under Section 153C (1) could not have been issued for AYs 2001-02 and 2002-03. - Decided in favour of assessee.
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2016 (2) TMI 276
Addition on account of excess allotment of area while purchasing development rights from Hindustan Candle Manufacturing Co.Pvt.Ltd. - eligibility of sec 80IB - ITAT upholding the deletion the addition by CIT(A) - Held that:- As both the CIT (Appeals) and the Tribunal, have in their orders, rendered a finding that the Respondent – Assessee had fulfilled all conditions laid down in Section 80 IB(10) of the Act for housing project. Consequently, the entire profits from the housing project would be entitled to deduction thereunder. Thus, even if the amount of ₹ 1,32,000/- is added to the profits of the Respondent – Assessee as contended by the Revenue it would have no impact on the tax payable as the entire profit including the addition made would be entitled to deduction under Section 80 IB(10) of the Act. In the above view, the response to question (C) as proposed by the Revenue in the facts of the present case would be academic. Accordingly, it does not give rise to any substantial question of law, thus not entertained.
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2016 (2) TMI 275
Scope of Section 2(47)(v) r.w.s. 53-A of the Transfer of Property Act, 1882 - JDA entered by assessee - Whether “possession” as envisaged by Section 2(47) (v) and Section 53A of the Transfer of Property Act, 1882 was delivered, and if so, its nature and legal effect? - Held that:- The issues involved herein have already been decided by this Court in C.S.Atwal vs. The Commissioner of Income Tax, Ludhiana and another [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT ] to held that perusal of the JDA dated 25.2.2007 read with sale deeds dated 2.3.007 and 25.4.2007 in respect of 3.08 acres and 4.62 acres respectively would reveal that the parties had agreed for pro-rata transfer of land. No possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.2.2007 so as to fall within the domain of Section 53A of 1882 Act. The possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of a transferee. Further Section 53A of 1882 Act, by incorporation, stood embodied in section 2(47)(v) of the Act and all the essential ingredients of Section 53A of 1882 Act were required to be fulfilled. In the absence of registration of JDA dated 25.2.2007 having been executed after 24.9.2001, the agreement does not fall under Section 53A of 1882 Act and consequently Section 2(47)(v) of the Act does not apply. In view of cancellation of JDA dated 25.2.2007, no further amount has been received and no action thereon has been taken. It was urged that as and when any amount is received, capital gains tax shall be discharged thereon in accordance with law. In view of the aforesaid stand, while disposing of the appeals, we observe that the assessee appellants shall remain bound by their said stand. The issue of exigibility to capital gains tax having been decided in favour of the assessee, the question of exemption under Section 54F of the Act would not survive any longer and has been rendered academic. The Tribunal and the authorities below were not right in holding the assessee-appellant to be liable to capital gains tax in respect of remaining land measuring 13.5 acres for which no consideration had been received and which stood cancelled and incapable. - Decided in favour of assessee.
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2016 (2) TMI 274
Interest under Section 234A determined before taking notice of self assessment payment under Section 140A - Held that:- In the absence of any statutory provision made for reducing such amount paid towards self assessment tax, the Authorities proceeded to levy interest on the entire amount de hors the payment of ₹ 40 lakhs made by the Assessee towards the self assessment tax before the due date of filing of return of income. A similar question was considered in the case of Pranoy Roy [2008 (9) TMI 150 - SUPREME COURT ] wherein considered by the Central Board of Direct Taxes in Circular No.2/2015 dated 10.2.2015 and the Board has decided that no interest under Section 234A of the Act is chargeable on the amount of self assessment tax paid by the Assessee before the due date of filing of return of income. This circular was not available at the time of the Tribunal deciding the matter. Accordingly, we are of the view that the Tribunal had no occasion to examine the case of the Assessee in the light of the Circular No.2/2015 dated 10.2.2015 and its applicability thereof to the present case. Hence, it would be appropriate for us to remand the matter to the Tribunal to examine the issue of payment of interest under Section 234A of the Act on the amount of self assessment tax paid by the Assessee before the due date of filing of return of income in the light of the Judgment of the Apex Court in the case of Pranoy Roy [supra], as well as the Circular No.2/2015 dated 10.2.2015. Matter is remitted back to the Tribunal to address on these issues and to pass appropriate orders in accordance with law after providing an opportunity of hearing to both the parties leaving open all the contentions
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2016 (2) TMI 273
Settlement Commissioner adjudication - whether the Settlement Commission on receipt of an application under Section 245C, and on receipt of the report called for from the Commissioner of Income Tax, adjudicate on the report so filed and assign reasons in order to allow the application to be proceeded with? - Held that:- Settlement Commission has satisfied itself that the application of the assessee has made, what is claimed as, a full and true disclosure of the income which has not been disclosed before the Assessing Officer; the manner in which such income has been derived and the additional income tax payable on such income. No procedural violation is caused by the Settlement Commission. It has only taken a prima facie view that the application is not invalid. A final order will necessarily have to be passed under Section 245D(4) only after obtaining the report of the Commissioner under Rule 9 of the 1987 Rules and after being satisfied that there is full and true disclosure by the applicant.
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2016 (2) TMI 272
Penalty notice u/sec. 271(1)(c) - Held that:- Non initiation of proceedings u/sec. 271(1)(c) of the Act or non imposition of penalty u/sec. 271(1)(c) for concealment and furnishing of inaccurate particulars of income as they are independent and separate proceedings. The AO had also found as a finding of fact that it was established on record that the assessee has shown a bogus liability in the books of account and even the AO was able to go into further detail that even bearer cheques were issued which were "self cheques" and the amount was withdrawn by the assessee himself and even subsequent amounts were debited to the account of the creditor on several different dates showing payment to have been made by cash to the said creditor - Dee Jay Steels, New Delhi, all amounts below ₹ 20,000/-. All such findings of fact noticed by all the three authorities being essentially finding of fact, in our view the impugned order of the Tribunal is well reasoned and is not required to be interfered with as no perversity is noticed. We find no substantial question of law involved in the instant appeal.
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2016 (2) TMI 271
TDS u/s 194-IA - Payment on transfer of certain immovable property other than agricultural land - Held that:- If the provision contained in Section 194-IA as extracted noticed, the obligation on the transferee to deduct 1% of the sale consideration towards TDS had come into effect only on 01.06.2013. If that be the position, as on 02.03.2012 when the petitioner in the instant case as the transferee had paid the amount to the transferor, there was no obligation in law on the petitioner to deduct the said amount. If this aspect of the matter is kept in view, even though the provision had come into force as on the date of presentation of the sale certificate for registration, the petitioner having parted with the sale consideration much earlier, was not expected to deduct the amount and produce proof in that regard to the Sub-Registrar. It is no doubt true that in respect of the said amount the third respondent would have the right to recover the taxes due. But, in the instant case, the communication as addressed from the third respondent to the first respondent could not have been held against the petitioner in the circumstance stated above. In the peculiar circumstances of the instant case, where the petitioner being an auction purchaser had paid the entire sale consideration much earlier to the provision coming into force, the endorsement dated 04.12.2013 requiring the petitioner to deduct the income tax and indicating that the registration would be made thereafter cannot be sustained.
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2016 (2) TMI 270
Addition on account of short term capital on sale of gala - Held that:- The factory gala sold by the assessee was part of the blocked assets in the business of the assessee who was engaged in the business of manufacturing of self adhesive labels and stickers. The said gala remained the part of the block of fixed assets of the assessee. However, the assessee did not claim and depreciation on the said gala because the same was given on rent during the 2 years i.e. AY 2007-08 and AY 2008-09. In the AY 2009-10 the said gala was sold and the sale proceeds in respect of the said gala was treated in accordance with the provisions of section 50 of the Act by reducing the said consideration from the block of asset pertaining to factory gala and no short term capital gain had resulted from the said sale as the WDV at the year end worked out at ₹ 29,33,290/- before depreciation and after taking opening WDV plus additions and sale during the year. We also find that the ld. AO treated the sale of gala as sale of short term asset and denied the benefit of blocked of assets u/s 43(6) and of special provisions u/s 50 for calculating capital gain in case of depreciable assets. The short term capital gain was calculated at ₹ 60,42,693/- by applying the provision of 50C of the Act. In our opinion the ld. CIT(A) had rightly reversed the action of AO by holding that sale of gala was part of relevant block of assets as per the provisions of section 43(6) and short term capital gain was to be computed in accordance with section 50 of the Act. Thus we do not find any infirmity in the order passed by the CIT(A). We, therefore, dismiss the appeal of the revenue by upholding the order of CIT(A). - Decided against revenue
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2016 (2) TMI 269
Claim of exemption u/s 10(23FB) - Held that:- In the instant case, there is no dispute with regard to the fact that the Registration granted to the assessee as Venture Capital Fund has not been withdrawn by the SEBI. Further, there is no material to show that the SEBI has alleged or stated that the assessee has not fulfilled any of the prescribed conditions. Hence, we are of the view that the tax authorities are not justified in rejecting the claim for exemption u/s 10(23FB) of the Act. The amendment brought into section 10(23FB) by the Finance Act, 2007 with effect from 1.4.2008 shall have prospective operation. In our view, it may not be appropriate to examine the scope or effect of amendment brought in the above secion w.e.f. 1.4.2008. Suffice to say that the interest income of the assessee shall also be entitled to exemption u/s 10(23FB) of the Act for the year under consideration. Hence any income of the venture capital fund set up to raise funds for investments shall be exempt for the year under consideration. Thus the assessee cannot be denied exemption u/s 10(23FB) - Decided in favour of assessee
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2016 (2) TMI 268
Deemed dividend u/s 2(22)(e) - Held that:- As first appellate authority has examined the meaning of the expression “a company in which the public are substantially interested" within the meaning of the provisions of sec. 2(18) of the Act read with the relevant provisions of the Companies Act. There should not be any dispute that the provisions of sec 2(22)(e) are attracted only if the loan or advance is received from a company in which public are not substantially interested. Since the ADIPL does not fall in the category of “company in which public are not substantially interested”, we are of the view that the Ld CIT(A) was justified in holding that the provisions of sec. 2(22)(e) are not attracted. - Decided in favour of assessee
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2016 (2) TMI 267
Inclusion of demobilization revenue in gross receipts for the purpose of computing tax u/s 44BB - Held that:- The view taken by the AO that the demobilisation revenue pertaining to the entire period of 36 days is includible in the revenue u/s 44BB of the Act is supported by the two decisions EMGS Project Office Vs. DDIT [2012 (11) TMI 584 - ITAT DELHI ] and CIT Vs. Sedco Forex International Drilling Inc [2007 (9) TMI 196 - UTTARAKHAND HIGH COURT ]. Accordingly, we do not find any infirmity in the decision taken by him on this issue and accordingly affirm the same. Rejection of claim for deduction of credit note issued - Held that:- We are of the view that the assessee is not entitled to claim deduction of ₹ 11.65 crores from the gross amount of the contract, since it is a case of adjustment of payments receivable/payable between the parties. Though it is stated that the deduction has been claimed to the extent of ₹ 7.96 crores, we notice that the assessee has actually claimed deduction of ₹ 11.65 crores. The claim of the assessee may be admissible, if the income is computed u/s 28 to sec. 43 of the Act. Since the income is computed as per the provisions of sec. 44BB of the Act and since the said section provides a deeming fiction for computing the profits and gains of provisions, the claim of the assessee is not admissible. Accordingly, we do not find any merit in the contentions of the assessee and accordingly reject the same. Interest u/s 234B and 234C - Held that:- We set aside this matter to the file of the assessing officer with the direction to compute the interest u/s 234B and 234C of the Act in accordance with the ratio laid down by the jurisdictional High Court in the case of NGC Network Asia LLC (2009 (1) TMI 174 - BOMBAY HIGH COURT ).
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2016 (2) TMI 266
Foreign exchange gain taxability - restatement of foreign currency loan - foreign currency loan which has been recognized in the profit and loss account in accordance with Accounting Standard 11 (AS 11) issued by the Institute of Chartered Accountants of India (ICAI) - Held that:- The Loan agreement clearly mentions that the loan is meant for general corporate purposes only which means it is meant for revenue account. If it is meant for any capital investment, then the loan agreement would have been differently worded specifying the purpose of making the investments and in which case, the loan would be categorized as a specific purpose loan. But in the instant case, it is mentioned as general corporate purposes meaning – that the loan is meant for general business purposes of the assessee. The amounts advanced to Usha Martin Telematics Ltd is meant for business purposes of the assessee and has to be construed as amounts lent in the ordinary course of business only . The business of the assessee itself is making investments in other companies. We hold that just because no interest income is derived in this transaction, the character of the transaction for business purposes (i.e the loan utilization on revenue account) would not change. Hence the argument of the Learned AR that the utilization of borrowings is made on capital account is not appreciated. Once this is lost, then the decision of Woodward Governor case (2009 (4) TMI 4 - SUPREME COURT ) would automatically come into play on which point, the counsels of both the sides are agreeable. The concept of prudence has been considered in the judgement of supreme court in Woodward Governor case. Once the utilization of borrowings are held to be on revenue account, then the resultant exchange gain or loss at the end of the year due to restatement of foreign currency loan would automatically take the revenue receipt / expenditure as the case may be. However, we find that the assessee had incurred exchange losses due to restatement of the subject mentioned foreign currency loan at the end of the year in subsequent assessment years and had not claimed as deduction as it is notional in nature in line with the consistent stand taken by the assessee. In this regard, we deem it fit and appropriate in the interest of justice and fair play, to give directions to the Learned AO to grant deduction of notional exchange loss in the subsequent assessment years to be in consonance with our findings hereinabove. Otherwise, it would only result in revenue trying to blow hot and cold simultaneously. Accordingly, the ground raised by the revenue is allowed subject to the direction contained hereinabove.
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2016 (2) TMI 265
Levy of fees under section 234E - intimation issued under section 200A in respect of processing of TDS - Held that:- As decided in case of Wonder Waves Entertainment Pvt Ltd [2015 (10) TMI 2477 - ITAT AHMEDABAD ] the issue in all these appeals is now squarely covered in favour of the assessee by the decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Limited vs. DCIT [2015 (6) TMI 437 - ITAT AMRITSAR] adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A. As intimation under section 200A, raising a demand or directing a refund to the tax deductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed, and as the related TDS statement was filed on 19th February 2014, such a levy could only have been made at best within 31st March 2015. That time has already elapsed and the defect is thus not curable even at this stage. In view of these discussions, as also bearing in mind entirety of the case, the impugned levy of fees under section 234E is unsustainable in law. We, therefore, delete the impugned levy of fee under section 234E of the Act. - Decided in favour of assessee.
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2016 (2) TMI 264
Interest under S.234B and S.234C - non payment of advance tax - whether CIT(A) has erred in deleting the interest charged u/s. 234B ? - Held that:- We are concerned with the previous year commencing on 1.4.2009 and ending on 31.3.2010. As per the decision in the case of Ajantha Pharma Ltd. V/s. CIT (2010 (9) TMI 8 - SUPREME COURT) assessee was entitled to deduction under S.80HHC for the purpose of computation of book profit under S.115JB of the Act, and therefore, assessee need not have to pay advance tax. It is also not in dispute that the amendment was brought with retrospective effect by the Finance Act, 2010 nullifying the effect of the above Apex Court decision. Thus, prior to 31.3.2010, assessee could not have foreseen the retrospective amendment of law, and hence, assessee company cannot be expected to do the impossibility of paying advance tax as per the law not on the field as on 31.3.2010. Under identical circumstances, courts have held that interest under S.234B and S.234C need not be charged merely because there was variance between book profit computed based on retrospective amendment. The Learned Departmental Representative has not placed any decision of the higher forum wherein a contrary view has been taken on this issue. Having regard to the circumstances of the case, we are of the view that the order passed by the CIT(A) does not call for interference. - Decided against revenue
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2016 (2) TMI 263
Disallowance of sales promotion expenses - AO disallowed by invoking Explanation to Section 37(1) and CBDT Circular dated 1-8-2012 - Held that:- As receiving of gifts by doctors was prohibited by MCI guidelines, giving of the same by manufacturer is not prohibited under any law for the time being in force. Giving small gifts bearing company logo to doctors does not tantamount to giving gifts to doctors but it is regarded as advertising expenses. As regards sponsoring doctors for conferences and extending hospitality, pharmaceuticals companies have been sponsoring practicing doctors to attend prestigious conferences so that they gather contemporary knowledge about management of certain illness/disease and learn about newer therapies. We found that the disallowance was made by the AO by relying on the CBDT Circular dated 01.08.2012 onwards. However, the Circular was not applicable because it was introduced w.e.f.01.08.2012. i.e. assessment year 2013-2014, whereas the relevant assessment year under consideration is 2010-2011 and 2011-2012. Accordingly, we do not find any merit in the disallowance - Decided in favour of assessee Addition on account of forfeiture of warrant application money - Held that:- As found that warrants were converted into shares, however, money contributions did not contribute these warrants into shares, therefore, their contributions were forfeited which was treated by assessee as capital receipts. The issue is squarely covered by the decision of Travencore Rubber & Tea Company Ltd. (2000 (3) TMI 5 - SUPREME Court). The case laws relied on by the AO are not applicable to the facts of the instant case, which has elaborately dealt by the CIT(A) in his order. Furthermore, tax effect in the appeal filed by the revenue, as per Circular No.21/2015, dated 10th December, 2015, is less than ₹ 10.00 lacs, therefore, the appeal of the revenue is not maintainable.- Decided in favour of assessee Disallowance u/s.14A r.w.rule 8D - Held that:- No merit for the disallowance so made u/s.14A, when there is no exempt income during the year under consideration.- Decided in favour of assessee
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2016 (2) TMI 262
Allowability of deduction u/s 80IA - Held that:- We find that the assessee company commenced a distinct industrial undertaking for the generation of power. It is an undisputed fact that the premises of this undertaking are distinct from the paper unit as separate building was constructed vide approval No.TM/9997/6 dated 4.4.2001 issued by the Chief Inspector of Industries, Chennai, at S.F.No.279, 277, 278 and 276 at Nallur Village, Pushpathur Panchayat, Palan Taluk, Dindigul District. Separate technology is used and loan was also obtained from Lakshmi Vilas Bank, Udumalpet Branch. The lower authorities are not correct in holding that the power plant was not a distinct unit. The true principle as laid down in the case of Textile Machinery Corporation Ltd., Vs. CIT [1977 (1) TMI 3 - SUPREME Court] directly and squarely applies to the facts of the case. In the instant case, the true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is all the same a new an identifiable undertaking separate and distinct from the existing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business. For the assessment years 2007-08 and 2008-2009, the lower authorities for co-generation plant granted deduction u/s.80IA of the Act. They impliedly agreed that the new machinery and plant have been installed under separate premises and it is not appropriate to deny the same deduction for the assessment year 2009-2010. To constitute reconstruction, there must be transfer of assets of the existing business to the new industrial undertaking. In our opinion, generation of power unit is separate and distinct undertaking for which separate approval was obtained and it cannot be said that splitting of existing business structure. Therefore, in our considered opinion, the lower authorities are not correct in denying the deduction under section 80IA of the Act - Decided in favor of the assessee
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2016 (2) TMI 261
Use of Foreign Comparables - TPA - Held that:- Foreign comparables (i.e. UK comparables) can be taken into account for carrying out FAR analysis and benchmarking of the assessee’s international transactions with its Associated Enterprise’s for determining those Arm's Length Price. It is also accordingly held that the selection of Indian comparables by the Transfer Pricing Officer is not accepted. In view of the fact that the Transfer Pricing Officer has not examined the comparability of the UK comparables chosen by the assessee, he is directed to do so and if the assessee’s comparables do not stand the test of comparability, the Transfer Pricing Officer may carry out his own search for fresh comparables and select the same, only after affording the assessee adequate opportunity of being heard and to file details/submissions in this regard, which shall be duly considered by the Transfer Pricing Officer before taking a final decision in the matter. With these observations, we restore the matter of the transfer pricing adjustment of provision of services to the file of the Assessing Officer/Transfer Pricing Officer. It is accordingly ordered. - Decided partly in favour of assessee for statistical purposes.
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Customs
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2016 (2) TMI 247
Refund of SAD - SAD had been paid, not in cash, but by utilising the DEPB scrip - scope of circular - whether ultra virus to the notification - whether, in the garb of circular issued by the Central Board of Excise and Customs (‘CBEC’) New Delhi, the benefit granted under a notification issued in terms of Section 25(1) of the Customs Act, 1962 (‘Act’) can be modified or amended. - Notification No. 102/2007 - what the circular stated was that refund of the SAD, which was liable to be made upon fulfilment of the conditions of Notification No. 102/2007-Customs, would not be in cash but re-credited to the relevant DEPB scrips which were used for making payment of the SAD. However, even this proposed system of re-crediting DEPB scrip was unable to be given effect to. The Director General of Foreign Trade (‘DGFT’) which issued the DEPB scrips apparently had no mechanism for re-crediting them through the electronic data interchange (‘EDI’) system. Held that:- Although it is sought to be projected that the circulars which are subject matter of the challenge in the present petitions were issued to streamline the procedure and to remove ambiguities, in fact what the circulars seek to amend is Notification No. 102/2007-Customs itself by introducing an additional condition for being entitled to refund, which condition does not find place in Notification No. 102/2007-Customs. Circular Nos. 6/2008, 10/2012 and 18/2013 issued by the CBEC could not have imposed an additional restriction for availing of the exemption in terms of the Notification No. 102/2007-Cus issued under Section 25(1) of the Act. An amendment to a notification issued in exercise of the powers under Section 25 (1) of the Act has to be brought about only by issuing another notification under that provision. Inasmuch as the circulars under challenge seek to impose an additional restriction for grant of refund of the SAD under Notification No. 102/2007-Customs, they are ultra vires of the Act and cannot be legally sustained. - refund to be allowed - Decided in favor of assessee.
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2016 (2) TMI 246
Import of duty free goods for manufacture and export - Non fulfilment of the export obligations under the Import Export Pass Book Scheme - Notification No.117/88 - Held that:- the Court is of the view that the show cause notice dated 24th August, 1991 alleging violation of non-fulfilment of the export obligation by the Petitioner as per Notification No. 117/88-Cus., dated 29th March, 1988 was misconceived as there was no obligation on the Petitioner to comply with any ‘quantity’ norms for export. The only requirement was in terms of value, which the Petitioner fulfilled. - Decided in favor of appellant.
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Corporate Laws
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2016 (2) TMI 243
Winding up petition - Held that:- On the basis of the material on record, the petitioner has succeeded, in primafacie establishing its case, especially, as the respondent-Company has not denied that it was liable to make the payment for the goods supplied by the petitioner which, according to it, was made to M/s.Unisilk Limited. Considering all the above aspects and as no material has been produced on record substantiating the claim of the respondent-Company regarding the mutual agreement between the parties to make the payment through M/s.Unisilk Limited, in the view of this Court, the petition deserves to be admitted. The Registry is directed to notify the present petition for final hearing on 10.03.2016. The admission of the petition shall be advertised in the English daily newspaper “The Times of India”, Ahmedabad Edition and the Gujarati daily newspaper, “Jansatta”, Ahmedabad Edition. The Official Liquidator attached to this Court is appointed as the Provisional Liquidator of the respondent-Company and is directed to take over the charge and possession of the assets of the respondent-Company and to prepare an inventory of the office premises, books of accounts and all other assets of the respondent-Company, as required. At this stage, a request is made by Mr.Niral Mehta, learned advocate for the respondent-Company that the petition may not be advertised for a period of two weeks. The request is granted in the interest of justice.
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2016 (2) TMI 242
Scheme of Amalgamation sanctioned. As directed that the petitioner shall preserve its books of accounts, papers and records and shall not dispose of the records without the prior permission of the Central Government under Section 396A of the Companies Act, 1956. Filing and issuance of drawn up order is hereby dispensed with and all the authorities to act on a copy of this order along with the Scheme duly authenticated by the Registrar, High Court of Gujarat. The Registrar, High Court of Gujarat shall issue the authenticated copy of this order along with Scheme as expeditiously as possible.
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Service Tax
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2016 (2) TMI 259
Refund - input services - duty paying documents - improper invoices not being in the proper form as per the provisions of Rule 4A of the Service Tax Rule 1994 as they did not contain complete details - Held that:- so long as the documents (debit notes) reveal the essential details like registration no service provided, service recipient, value of taxable service, refund cannot be rejected merely because the documents are debit notes. Refund of service tax paid on THC Charges, REPO Charges, BL charges, DDC Charges and hollage charges is admissible in as much as the same are the port services. - Decided in favor of assessee.
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2016 (2) TMI 258
Refund - specified services requires for authorised operation in the Special Economic Zone (SEZ) - period of limitation - - Notification No. 9/2009 ST, dated 03.03.2009. - The appellant has contended that the ground of rejection namely non-submission of list of authorised operations - Held that:- Refund cannot be denied merely for procedural lapse - if otherwise assessee is eligible to get refund, it should be allowed - Decision in the case of Intas Pharma Ltd vs. C.S.T. - [2013 (7) TMI 703 - CESTAT AHMEDABAD] followed. Period of limitation - As regards the issue of time-bar the appellant has contended that in one case there is a delay of 2 days because of the intervening Saturday and Sunday and the claim was filed on Monday. Further the Assistant/Deputy commissioner had power to condone the delay in terms of para 2 (f) of notification No. 9/2009 - ST - Held that:- Having regard to the nature of refunds and quantum of delay, we are of the view that the delay not being unreasonable deserved o be condoned in terms of the aforesaid para 2(f) of Notification No.9/2009-ST. Refund allowed - Decided in favor of assessee.
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2016 (2) TMI 257
Waiver of pre-deposit - Erection, commissioning or installation service during the period prior to 1.6.2007 for Delhi Metro Rail Corporation Ltd. - ambit of Section 65(105)(zzd) of the Finance Act, 1994 and consulting engineer service enumerated under Section 65(105g) of the Finance Act, 1994 prior to 1.6.2007 - Held that:- the conclusion is prima facie irresistible and compelling that the appellant had executed works contract, which is not taxable prior to 1.6.2007. - stay granted.
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2016 (2) TMI 256
Refund claim for the unutilized CENVAT Credit - Export of Information Technology Software Services - Held that:- It is noted that after 1.4.2011, the words “in relation to business” have been removed. From the facts on record and the definition of “input service” given above it is clear that the input services in question have got nexus with the output service viz., IT Software Services which are being exported by the appellant. Matter remanded back with the direction that original adjudicating authority will examine the documents produced with reference to the quantum claimed as refund in case of “works contract service” by the appellant.
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2016 (2) TMI 255
Condonation of delay in filing an appeal before Commissioner (Appeal) - writ petition - jurisdiction to entertain a writ petition under Article 226 of the Constitution - Held that:- In the present case, quite apart from the petitioner presenting the appeal beyond the period what the Commissioner could condone, had simply not responded to the show-cause notice issued by the adjudicating authority. We have noticed that after receipt of show-cause notice, for months together, petitioner filed no reply. The order of adjudication came to be passed more than a year later. At no point of time, the petitioner either filed a reply or even participated in the adjudication proceedings. The adjudicating authority has recorded that, several notices for personal hearing were issued under registered A.D., despite which, neither the petitioner nor its authorized representative ever appeared before him. Surely, the law does not come to the aid of indolent, tardy or lethargic litigant. The conduct of the petitioner would dissuade us from entertaining these petitions. - Decided against the appellant.
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Central Excise
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2016 (2) TMI 254
Cenvat credit on the basis of the endorsed bill of entry - Is endorsed bill of entry a valid document for claiming cenvat credit? - Held that:- In this case it is not disputed the receipt of the material and duty paid on that. Further as find that in the case of Akzo Nobel Coatings (India) Ltd. vs. CCE, Bangalore reported in 2013 [2012 (11) TMI 1021 - CESTAT BANGALORE ] the appellant is entitled for cenvat credit on the basis of endorsed bill of entry which, is a valid document for availing cenvat credit and therefore allow the appeals by setting aside the impugned order. - Decided in favour of assessee
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2016 (2) TMI 253
Duty demand on waste/scrap of packing materials cleared from the factory - Held that:- The dispute in the present appeal is squarely covered by the decision of the Tribunal in the case of International Tobacco Co. Ltd. vs. CCE, Ghaziabad [2003 (10) TMI 171 - CESTAT, NEW DELHI] wherein held that there is force in the submissions of the learned Advocate that no process of manufacture has been taken by them so as to attract the Central Excise duty on such waste of the paper arising during the course of manufacture of the cigarettes. The Revenue has not controverted the contention of the learned Advocate for the appellants that there is no provisions in Cenvat Credit Rules, 2001 providing for payment of duty on waste and scrap, which has arisen during the manufacture of the finished product. Such a provision had existed in the erstwhile Rule 57F of the Central Excise Rules, 1944. In view of this, the impugned order is not sustainable. Accordingly, we set aside the order and allow the appeal. - Decided in favour of assessee
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2016 (2) TMI 252
Duty under the Compounded Levy Scheme confirmed - refusal of payment of duty under normal scheme - Held that:- We hold that under the facts and circumstances, the appellant had not made/expressed option for paying tax for the financial year 1998-99 under the compounded levy scheme. As such, no tax can be demanded under the provisions of Section 3A read with Rule 96ZP(3). We accordingly set aside the impugned order on the issue of abatement also. We hold in favour of the appellant that as proceedings were pending on 11.5.2001, the proceedings stood abated, following the rulings of Hon'ble Gujarat High Court in the case of Krishna Processors [2012 (11) TMI 954 - GUJARAT HIGH COURT ].
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2016 (2) TMI 251
Demand of duty on the goods clandestinely removed from the factory premises - Held that:- There is enough evidence to indicate that the goods were cleared clandestinely without payment of duty by appellant No.1 to various purchasers. On that account there is no case; imposition of penalty on Shri Champsi M. Shah, find that appellant has no case and it has to be held that the first appellate authority as well as the adjudicating authority are correct in coming to such conclusion. At this juncture, the prayer of the learned Counsel needs to be addressed as to consider the amount indicated as cum-duty value. The said plea of the learned Counsel is strongly supported by the judgement of Amit Agro Industries Ltd. (2007 (3) TMI 14 - SUPREME COURT OF INDIA ). As also in the case of CCE v. Maruti Udyog Ltd. (2002 (2) TMI 101 - Supreme Court) wherein the ratio has been that any amount collected on which duty is demanded needs to be considered as cum-duty value. Respectfully following the same, the value indicated in the show-cause notice has to be considered as cum-duty and duty liability needs to be quantified working back on appellant No.1 accordingly. Appellant having discharged the entire duty liability and the interest thereof, considering the amount collected as cum-duty value is to be accepted. The penalty imposed under Section 11AC should be the equivalent amount of duty as re-quantified and to be discharged by appellant No.1. As regards the penalty on Shri Champshi M. Shah, it has been correctly imposed under the provisions of Rule 26 of the Central Excise Rules, 2002.In short, except for the modification of holding that the value as cum-duty value and reworking of demand of duty, appeals are rejected.
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2016 (2) TMI 250
Duty liability - Manufacturing activity or not - activity of cutting and welding of steel angles - galvanizing steel items - Job work - Held that:- Regarding the demand of duty from the appellant for galvanizing work done by the job worker, the original authority stated that certain processes like cutting welding were done before they are sent to galvanizing. This observation has not been supported by the original authority with source. Further, observation of the original authority that it is the duty of the appellant to follow the procedure for job work notification and to pay duty on final products is not supported by any legal provision. If the job work procedure is not followed then the duty liability is on the person who undertakes the manufacture activity. In the present case, it is the person who undertakes galvanization who is liable to duty, if any. As such, we find that the original authority is in error in his finding. In the statements of the proprietor of the appellant's firm various categories of the items and nature of process undertakes and nature of process undertaken on such items were given. It is necessary for the original authority to examine the processes carried out category wise and to give finding on such process resulted in production of totally a new identifiable and marketable product falling under specific classification in tariff. We find that the original authority has not followed these requirements to arrive at the conclusion of duty liability against the appellants. As such, we find that the impugned order is not sustainable and has to be set aside.
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2016 (2) TMI 249
Area based exemption - notification No. 50/03-CE dated 10.6.2003 - denial of benefit as the appellant was not having electricity connection or DG set installed at the time of investigation - demanding duty along with interest and imposing penalty - Held that:- From the perusal of various documents, we find that appellants have installed machines which are evidence of manufacture of final products and they have license to manufacture from Drugs Controller. All the drugs manufactured also bears batch, year of manufacture. Admittedly, the appellant has cleared some drugs before when DG sets was there and drugs were manufactured before cut of date for availing exemption under the notification in question. The electricity connection was also released on 31.3.2010. This fact is verified from the electricity bill issued to the appellant dated 7.5.2010. Further, during the course of hearing, the appellant has produced a certificate issued by the Department of Industries certifying that commercial production started with effect from 30.3.2010. The supplier of DG set (on rental basis) has also gave the statement that he has given DG set on rental basis to the appellant. On the basis of this statement of supplier, the appellant has filed the affidavit and same has not been controverted by the adjudicating authority with cogent evidence. In the absence of any contrary evidence, the statement of supplier of DG sets (on rental basis) is having evidential value. Further, in this case the Range officer of Central Excise has inspected the factory premises of the appellant and held that appellant is entitled for benefit of exemption notification in question. In these circumstances, we hold that the appellant has rightly availed the exemption under Notification No. 49-50/2003 CE dated 10.6.2003. Demand of duty against the appellant is not sustainable - Decided in favour of assessee.
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2016 (2) TMI 248
SSI Exemption - Interpretation of notification 8/2002-CE dated 01/3/2002 existed prior to the Notification which came into effect on 01/3/2003 - suppression of facts - bifurcation of exempted goods to two categories - Penalty imposed - Held that:- On perusal of both notifications we find that the clause in the Notification pertaining to calculation of aggregate value in regard to exempted goods is clearly worded and does not give reason for any doubt. The condition for availing exemption is the same in both notifications i.e., the aggregate value of clearances of all excisable goods for home consumption by a manufacturer from one or more factories, or from a factory by one or more manufacturers does not exceed 300 lakhs in the preceding year. The value of exempted goods is not to be taken into account for calculating the first clearances of ₹ 100 lakhs. The appellant seems to be making an effort to mix both these conditions together and put forward a plea that there was a confusion whether exempted goods have to be included while calculating the aggregate clearances applicable for the preceding financial year. Moreover, the authorities below have observed that the appellant has bifurcated the exempted goods to two categories. Items like badam-summer sip and Thandai are seen declared in the ER-I return. Whereas certain other exempted goods like Orange Crush, Aam Pannaa, Lime Crush etc. are not declared in the ER-I returns at all. It is the case of Department that if appellants had included these exempted items in their return, then the value of total clearances would have crossed the limit of 300 lakhs and has suppressed certain exempted goods in the monthly returns. The learned counsel though confronted with this issue was not able to give a plausible explanation why the appellant chose not to declare certain exempted items in the ER-1 return, while some exempted items were being declared. We therefore have to endorse the view of the authorities below that there has been suppression of facts on the part of the appellant. This being so, though the duty and penalty was paid before the issuance of show cause notice, we are not inclined to set aside the penalty imposed. With regard to the penalty imposed on Shri M.L. Agarwal, Director, except for his statement there is no other evidence placed before us. There is no evidence that he was directly involved in keeping the accounts. We therefore set aside the penalty imposed.
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CST, VAT & Sales Tax
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2016 (2) TMI 245
Waiver of pre-deposit - power of appellte authority under PVAT to grant interim injunction / protection - Valuation - inclusion of receipts of charges from the customers as meter rent - the receipts of charges from the customers as service line rental had been brought to tax while treating these as meter rent - Activities in respect of generation, distribution and supply of electric energy/electricity power and other allied material to the consumers viz. domestic, commercial and industrial consumers. Held that:- when no express power has been conferred on the first appellate authority to pass an order of interim injunction/protection, in our opinion, by necessary implication and intendment in view of various pronouncements and legal proposition expounded above and in the interest of justice, it would essentially be held that the power to grant interim injunction/protection is embedded in Section 62(5) of the PVAT Act. Instead of rushing to the High Court under Article 226 of the Constitution of India, the grievance can be remedied at the stage of first appellate authority. As a sequel, it would follow that the provisions of Section 62(5) of the PVAT Act are directory in nature meaning thereby that the first appellate authority is empowered to partially or completely waive the condition of pre-deposit contained therein in the given facts and circumstances. It is not to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. Only when a strong prima facie case is made out will the first appellate authority consider whether to grant interim protection/injunction or not. Partial or complete waiver will be granted only in deserving and appropriate cases where the first appellate authority is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the condition of pre-deposit to continue as a condition precedent to the hearing of the appeal before it. Therefore, the power to grant interim protection/injunction by the first appellate authority in appropriate cases in case of undue hardship is legal and valid. As a result, question (c) posed is answered accordingly.
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2016 (2) TMI 244
Issuance of C-Forms - AO rejected the request made by the Petitioner for issuance of C-Forms in relation to the inter-state purchases - the purchases were not entered in the purchase register to be maintained in Form DVAT-30; the purchases were not shown in the documents produced before the Special Auditor when a special audit was conducted for FYs 2010-11 and 2011-12. Held that:- Petitioner is candid that it made a genuine mistake in the figures disclosed in its revised returns for inter-state purchases made by it. It is pointed out that although in the original returns disclosures were made of inter-state purchases, there was a mistake owing to the wrong understanding by the Petitioner of the purchases that pertained to the FY 2010-11. It is stated that the Petitioner went by the date of delivery of the goods rather than the dates of invoices as the date of sale. It is not the case of the Respondents / revenue that the above assertion is factually incorrect. Importantly, the Court does not find it to be the stand of the Respondents that any of the inter-state purchases, that had escaped inclusion in the revised returns, were not genuine transactions. - it is not the stand of the Respondents that the inter-state purchase transactions in respect of which the C-Forms are being asked for by the Petitioner are not genuine. As far as the furnishing of bank statements is concerned, it is stated that the Petitioner has by a letter dated 10th July 2015 furnished the said documents. This was not a case where the Respondent No. 2 was justified in declining to issue C-Forms to the Petitioner. - department directed to issue the C-Forms - Decided in favor of assessee.
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Wealth tax
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2016 (2) TMI 260
Determination of value of the interest of the partners in the firms on the basis of the value of the shares - it was contended that, there was no similar specific provision in the Wealth tax Act or in the Rules that while ascertaining the partner's interest - Held that:- The contention of applicant/assessee partner that value of his interest in a firm cannot be worked out on 31/03/1981 is totally erroneous in the background of scheme of the Wealth tax Act and Rules looked into by us supra. The ending of previous year of the firms on 30/06/1981 has got no relevance as it may show valuation of his interest in firm as on 30/06/1981 and not on 31/03/1981. The computation provisions in the Wealth tax Act and Rules enable and empower the department to assess his interest as partner in the firm even on 31/03/1981 and there is no requirement in law to wait till 30/06/1981 for that purpose. The fact that value of partner's interest as on 31.3.1981 needed determination as per charging provision is not in dispute. Only stand of respective assessee is in absence of a provision to compute it as on 31.3.1981, the charging section can not be invoked. We have not found any lacuna in the Act which allows such an interest of the partner to go unassessed for the period from his valuation date till the end of previous year of his firm. There is complete scheme which enables the Assessing Officer under Wealth Tax Act to proceed to ascertain such valuation of partner's interest on any valuation date ignoring the date on which previous year of his firm comes to an end. - Decided in favor of revenue.
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Indian Laws
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2016 (2) TMI 241
Conviction for Carrying narcotics drug in their baggage while travelling from Jallandhar to Delhi - The charge for offence under Section 21(C) read with Section 8(C) as well as under Section 29 of NDPS Act was framed against both the accused to which they pleaded not guilty and claimed trial. In the instant case, the statement under Section 67 of the Act was written by the appellant - Lydia Ninglianting in her own handwriting while that of the appellant – Sheikh Dilshad was recorded by PW8 – Ms. Parminder Kaur. The appellants were produced before the Court on several dates and at no stage any complaint was made before the Special Judge of any torture or harassment in recording the confession. It is only when their statement under Section 313 Cr.PC was recorded that it was pleaded that no such statement was made by them and they were made to sign documents against their will. In the facts and circumstances of the case, it was rightly observed by learned Special Judge that the statement made by the appellants were voluntarily in nature and could form the basis of convition. Moreover, the conviction was based not only on the basis of statement under Section 67 of the Act but also ample corroborative evidence in the shape of testimony of intelligence officers coupled with the recovery effected from the bags. The impugned judgment and order on sentence does not suffer from any infirmity which warrants any interference.
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