TMI Tax Updates - e-Newsletter
April 28, 2014
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Highlights / Catch Notes
Income Tax
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TDS - with effect from 13/07/2006, payment by the assessee towards hire charges on hire purchase agreement to be liable for TDS u/s 194I of the Act - AT
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Deletion of disallowance of interest AO directed to bring the interest earned, on diversion of fund from assessee's CC account to the SB accounts of family members, to tax in the hands of the assessee - AT
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Refusal for best judgment assessment whether AO can refuse to do a best judgment assessment, even though the assessee himself has admitted that his accounts are not full and complete? - Held yes - HC
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Eligibility for exemption u/s 10B - When a DTA unit is converted into 100% EOU unit, there is neither a transfer nor a creation of a new business to attract section 10B(2)(iii) - exemption allowed - HC
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Deemed dividend u/s 2(22)(e) - Assessee rightly contended that the nature of the transactions has to be decided on the basis of true nature of transactions and not as per nomenclature given in the books - AT
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Existence of Permanent establishment - services are rendered by the assessee through its employees and activities continued for a period of more than ninety days within twelve months period - JCB India constituted a service P.E of the assessee in India - AT
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Premium paid for the leasehold rights liability to deduct TDS u/s 194I - the word Rent does not include premium paid for additional FSI or lease hold rights - not equated with rent - no TDS - AT
Customs
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Jurisdiction & Power of DGFT Price Fixation Notification Impugned notification dated 13-5-2013 issued by DGFT for fixation of tariff value cannot be sustained therefore set aside. - However tariff value fixed by CBEC sustained - HC
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Jurisdiction - Pre-deposit - For approaching the Settlement Commission - The minimum condition of pre-depositing before the Settlement Commission remains intact - HC
Corporate Law
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Protection u/s 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 - If the action filed by the respondent bank in the nature of proceedings and not a suit, protection under Section 22(1) would not be available, especially, when the appellants are guarantors - SC
Service Tax
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Business Auxiliary Services - Export - When Reserve Bank of India permits that the same can be received in Indian Rupees through FIRC, in that situation, benefit of export allowed - AT
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Demand of service tax - services rendered by the mandap keepers as a caterer would also be liable to service tax under the category of Mandap Keeper Services'. - AT
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Demand of service tax - commercial coaching or training center service - development of personality and any personal skills - Penalty waived while confirming the demand of service tax - AT
Central Excise
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Rebate claim - Notification No. 93/2004-Cus dated 10.09.2004 - Application of corrigendum notification - a corrigendum will relate back to the order of the order in which correction has been made - HC
Articles
Notifications
Case Laws:
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Income Tax
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2014 (4) TMI 904
Disallowance of hire charges u/s 40(a)(ia) of the Act Whether it is interest or not on hire purchase contract The decision in CIT Vs. M/s M.G. Brothers Finance Ltd. [2014 (1) TMI 1590 - ANDHRA PRADESH HIGH COURT] followed - the payment made by the assessee on account of hire purchase transaction and payment of finance charges/hire charges cannot be construed as interest so as to deduct TDS u/s 194A of the IT Act - to that extent, the CIT(A) justified in observing that section 40(a)(ia) is not applicable - but, the insertion of Explanation 1 to section after amendment of section 194A by Taxation Laws (Amendment) Act, 2006, with effect from 13/07/2006, payment by the assessee towards hire charges on hire purchase agreement to be liable for TDS u/s 194I of the Act thus, the AO is directed to recomputed the disallowance u/s 40(a)(ia) in the light of the amended provisions, which came into effect from 13/07/2006 Decided partly in favour of Revenue. Disallowance of mobilization advance paid to JV Held that:- The payment of interest is the income of the JV and if this included as income in the JV as income, assessee has not deducted the tax in view of the amended provisions of section 40(a)(ia) of the Act, wherein it was held that second proviso to section 40(a)(ia) inserted by the Finance Act, 2012 with effect from 01/04/2013, which is clarificatory in nature and the benefit of the same should be applied restrospectively Relying upon as held by the Cochin Bench in the case of Antony D. Mundackal Vs. ACIT [2013 (12) TMI 67 - ITAT COCHIN] thus, the AO is directed to see whether JV has paid tax on the income or not on this income and decide the issue in accordance with law Decided in favour of Revenue.
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2014 (4) TMI 903
Deletion of disallowance of interest Debit balance maintained for short period Validity of Direction made by the CIT(A) Held that:- The CIT(A) agreed that there is a commercial expediency to transfer the funds from assessee's CC A/c to SB accounts of assessee's family members with the same Bank but, the CIT(A) accepted such diversion only for short period of 10 days and he directed to disallow interest for balance period the direction of the CIT(A) is not proper - Once the CIT(A) observed that there is commercial expediency to divert the funds from assessee's account so as to oblige the request of the Bank to boost up their deposit position, the interest earned on such diversion to the accounts of family members should be the income of the assessee rather income of the family members thus, the AO is directed to bring the interest earned, on diversion of fund from assessee's CC account to the SB accounts of family members, to tax in the hands of the assessee Decided partly in favour of Assessee.
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2014 (4) TMI 902
Validity of notice issued u/s 148 of the Act Proceedings initiated after four years - Addition made as unexplained cash credits Held that:- The AO have not applied his mind at all, which is evident from the several observations made by him in his order and in the notice issued u/s 148 of the Act AO assumed that the assessee intended to convert the unexplained cash through the route of capital gains, even after several years the assessee did not sell the shares, as stated by the assessee - the shares were demated and available in the name of the assessee but no mention was made at any stage of the proceedings on this aspect though the shares were purchased at a particular price and service tax, commission, etc. have been paid based on the rate for which it was purchased. The assessee had declared the investments in the books of account and even if the AO is of the opinion that the assessee has invested more than what is recorded in the books the differential amount can at best be treated as unexplained investment u/s 69B of the Act - the AO could not have assumed jurisdiction to reopen the assessment proceedings, that too beyond a period of four years, unless it is with the sole intention of bringing the case under the purview of section 149(b) of the Act, it is not permissible in law - what cannot be done directly cannot be done indirectly - AO having initiated the reassessment proceedings after a lapse of four years from the end of the relevant assessment year thus, the reassessment proceedings are bad in law also, the addition and assessment made on the strength of proceedings set aside Decided in favour of Assessee.
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2014 (4) TMI 901
Validity of framing single assessment for entire period Validity of order passed - Held that:- The Tribunal rightly held that the order u/s 154 has been set aside in appeal and the order has attained finality, resulting that the order passed granting permission to adopt the previous year ending on 30th June stood valid - there is no justification in taking a different view in the matter the very basis of passing two assessment orders does not survive, thus, there is no error in the order of the Tribunal the assessment made for the A.Y.1989-90 for the period is in consonance with the amended Section 3, which stood amended by the Taxation Laws (Amendment) Act, 1987 the amendment was applicable to the assessment year 1989-90, there is no ambiguity in adopting the period of assessment from 1.1.1987 to 31.3.1989 Decided against Revenue.
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2014 (4) TMI 900
Direction to complete the Assessment Order cancelled u/s 154 of the Act Held that:- The decision in Commissioner of Income Tax, Bareilly and Others vs. M/S. Rampur Distillery & Chemical Co. Ltd. [2014 (4) TMI 901 - ALLAHABAD HIGH COURT] followed The CIT(A) has directed the AA to pass the order for the period of 27 months -The Assessing Authority passed the assessment order in pursuance of the order of CIT(A) u/s 251 of the Act and in pursuance of the order arising from the assessment order, the appeal has been decided by CIT (A) and by the Tribunal thus, it is not upon to the Revenue to raise the issue again Decided against Revenue. Deletion of disallowance of interest Held that:- Following the decision in Commissioner of Income-Tax And Another Versus Radico Khaitan Ltd. [2004 (9) TMI 37 - ALLAHABAD High Court] the conditions u/s 36(1)(iii) of the Act have been complied with thus, the assessee-company was entitled to full allowance of the amount of interest paid by it on borrowed capital - Decided against Revenue. Deletion of disallowance u/s 37(1) of the Act Held that:- the club membership fees for employees incurred by the assessee is business expense u/s 37 of the Act Decided against Revenue. Deletion of investment allowance on distillery unit Held that:- Following the decision in Commissioner of Income-Tax And Another Versus Radico Khaitan Ltd. [2004 (9) TMI 37 - ALLAHABAD High Court] In view of the specific provisions contained in sub-section (2A) of section 32A of the Act, investment allowance is not admissible in respect of the plant and machinery installed for the purpose of manufacturing any of the items mentioned in the Eleventh Schedule Decided in favour of Revenue.
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2014 (4) TMI 899
Refusal for best judgment assessment whether AO can refuse to do a best judgment assessment, even though the assessee himself has admitted that his accounts are not full and complete? - Accounts audited u/s 44AB of the Act Rejection of books of accounts Held that:- There were over 1000 sundry creditors of which the assessee had got the confirmation letters from nearly 264 parties and in respect of 84 of parties, the assessee itself pleaded that the creditors were not traceable - when the assessee could produce the materials of confirmation in respect of the some of the creditors and could not produce any such evidence from 84 parties, - The assessee had shifted its stand to have the assessment done to its desire which cannot be approved - the assessee had stated that they had not maintained the books of accounts particularly with reference to the stock - accounts were audited by a qualified Chartered Accountant as required u/s 44AB of the Act - With the material particulars available as to the income of the assessee, it could be understood as to how the assessee could insist on a best of judgment assessment only for gaining certain tax benefits thus, no substantial question of law arises for consideration Decided against Assessee.
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2014 (4) TMI 898
Validity of re-assessment u/s 147 /148 of the Act ex-parte assessment order - Interim order for stay passed Filing of return - Held that:- Without going in the question that whether the order has been received on 29.03.2006 or prior to the passing of the order, it has been decided that the petition is to be disposed of asking the assessee to file the return in compliance of the notice u/s 148 of the Act for the A.Y. 1998-99 The assessing authority may provide the copy of the reasons recorded and it will be open to the petitioner to challenge the initiation of the proceedings and to participate in the proceedings. In case, if the petitioner files any objection on the initiation of the proceedings, the assessing authority may decide the objection before proceeding with the case. - ex-parte order set aside and the matter is remitted back to the AA Decided in favour of Assessee.
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2014 (4) TMI 897
Eligibility for exemption u/s 10B of the Act Structures of industry to be included or not - Whether the Tribunal is right in holding that the structure of the industry constitutes building and is not eligible to be included in computing the plant and machinery for the purpose of determining the eligibility u/s 10B of the Act Held that:- Following Commissioner of Income Tax V. Heartland KG Information Ltd. [2013 (9) TMI 375 - MADRAS HIGH COURT] to attract Section 10B favourably to an undertaking, such undertaking should not be formed by transfer to a new business any machinery or plant previously used for any purpose - even if there be transfer of machinery previously used for any purpose is transferred, the total value of the machinery at plant so transferred should not exceed 20% of the total value of the machinery used in the business. When a DTA unit is converted into 100% EOU unit, there is neither a transfer nor a creation of a new business to attract section 10B(2)(iii) of the Act - there is no specific prohibition to an industrial unit formed by transfer of entire business, there is no transfer at all to a new business and what was already in existence as a DTA unit, by reason of the recognition granted by the statutory authority, it became a 100% EOU unit - Thus the status granted to a DTA unit as a 100% EOU unit does not result in a transfer or splitting up or re-construction of a business already in existence so as to fall u/s 10(2)(iii) of the Act - going by the Circular No.1 of 2005 dated 06.01.2005.17 clarifying the stand that the DTA unit on conversion to 100% EOU unit eligible for exemption under Section 10B of the Income Tax Act also thus, the order of the Tribunal is set aside Decided in favour of Assessee.
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2014 (4) TMI 896
Partial Deletion made u/s 69B of the Act Unexplained investment in house property Reliance placed upon DVOs report Held that:- Following Goodluck Automobiles Pvt. Ltd. v. Assistant Commissioner of Income tax [2012 (9) TMI 157 - Gujarat High Court] - There is nothing in the assessment order to suggest that the AO had any doubt regarding the cost of construction or that he was not satisfied regarding the correctness or completeness of the books of account - the only reason for making the addition u/s 69 of the Act is that there is a difference in the cost of construction as determined by the Valuation Officer and as shown by the assessee - At no stage of the assessment proceedings does the AO appear to have mentioned that the books of account are defective or that the cost of construction as shown in the books of account is not the true cost of construction - unless the books of accounts are rejected, the AO cannot make a reference to the Valuation Officer - The reference made to the Valuation Officer, not being in consonance with the provisions of law was invalid - the report made by the Valuation Officer pursuant to such an invalid reference could not have been made the basis for addition u/s 69 of the Act no substantial question of law arises for consideration - Decided against Revenue.
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2014 (4) TMI 895
Validity of re-assessment order u/s 143(3) r.w.s.147 of the Act Allowability of claim of deduction u/s 80IB of the Act Contracts for erection, commissioning and pressure die casting Held that:- The original assessment u/s 143(3) of the Act was completed on 22.09.2003, disallowing the claim for deduction u/s 80IB of the Act - if there is any mistake in granting relief to the assessee u/s 80IB of the Act in the order, the only order that could be the subject of Revision would be the order dated 18.05.2005 and not the order passed on 22.09.2003, which was the subject matter of appeal before the Tribunal at the instance of the Revenue on 22.06.2007 and the order of the Tribunal had also attained finality - if the Revenue is questioning the quantum of relief granted to the assessee, the order available for revision would be the order dated 18.05.2005 - this is not subjected to any revision u/s 147 of the Act, the Revenue would not be justified in sustaining its plea on its jurisdiction to revise the order u/s 147 of the Act Decided against Revenue.
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2014 (4) TMI 894
Assessment u/s 153C - Addition of income from business and jewellery business - Whether the Tribunal is right in confirming the estimated addition of income from business and jewellery business - Held that:- Tribunal held that there was sufficient evidence found at the time of search to show that assessee was having substantial gold and silver jewellery business apart from what was returned by the assessee in books of accounts and there was surplus stock of more than Rs.95 lakhs and odd and the assessee was unable to establish that admission made by him at the time of search was not correct - the AO was justified in estimating the income of the assessee from jewellery business for various years - the AO did not give any reduction for the income returned in the regular returns - Tribunal held that the additions made however took note of the materials gathered and hence were to be sustained - thus, the Tribunal directed the AO to exclude the income of Rs.1,05,528/- and Rs.89,702/- returned by the assessee in the returns filed for 2000-01 and 2001-02 while confirming the addition. CIT(A) was justified in taking the view that the excess stock found at the time of search could be considered for assessment only in the assessment years relevant to the previous year in which the search was conducted the Tribunal directed the AO to ensure that the amount was included in the income of the assessee in the assessment the issue is a pure question of fact - there was no factual error in the order passed or no perversity shown in the finding of the Tribunal thus, the appeal cannot be admitted Decided against Assessee.
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2014 (4) TMI 893
Deletion made u/s 28(iv) of the Act Benefit to the assessee by the allotment of shares Held that:- The Tribunal has found that the allotment is made much prior to the performance of M/s. Reliance - when the assessee was not having any direct business relations or not having carried out any business with M/s. Reliance Communications either in the past or during the year, then the assessee cannot be said to be having any business or professional relationship with M/s.Reliance Communication Ltd. - Reliance Communication and Reliance Group of Companies are independent entities and even for taxation purposes, they are separate and independent - the finding of fact that section 28(iv) has no application, is based on all the materials produced and which have been noted by the Tribunal - once the Tribunal has come to a conclusion that section 28(iv) has no application, then, any further aspect of the matter need not be probed or investigated thus, no substantial question of law arises for consideration Decided against Revenue.
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2014 (4) TMI 892
Validity of direction to compute LTCG Sale of 50% undivided right Valuation adopted by the DVO Held that:- The report of DVO was not available to the AO - it was taken into consideration while adjudicating the appeal by CIT(A) during the course of first appellate proceedings - The assessee had also relied upon certain sale instances, and this fact has been admitted by CIT(A) - CIT(A) has not given any reason to deviate from the sale instances relied upon by the assessee and has simply observed that the report of valuation carried out by DVO is fair and reasonable thus, it would be proper if the additional evidence filed by assessee is admitted and the issue is remitted back to the AO for redetermination of the FMV of the flat and garage as on 1.4.1981 after giving assessee reasonable opportunity of hearing Decided in favour of Assessee.
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2014 (4) TMI 891
Deemed dividend u/s 2(22)(e) of the Act Loans and advances made by the company to the firm Held that:- No amount was advanced by the firm to the partners and there was credit balance in the accounts of the partner and at no point of time there was debit balance in the account of the partners from the bank book - there were transactions between the firm and company in the ordinary course of business and no amount received by the firm had been utilized in giving advance to any of the partners, including this assessee - CIT(A) has concluded that the firm in the present year as well as in the previous year has received trade advances from the company for supply of particular type of guwar gum powder thus, the transactions between the company and firm are business transactions and amounts advanced by this company to the firm is only advance for business purpose and not as loan. Assessee rightly contended that the nature of the transactions has to be decided on the basis of true nature of transactions and not as per nomenclature given in the books Relying upon Prakash Cotton Mills P. Ltd. Vs. CIT [1993 (4) TMI 3 - SUPREME Court] - the transactions were for the benefit of the shareholders who were also partners in the firm - it cannot be said that the amounts constitute a dividend even under the deeming provisions the provisions of section 2(22)(e) of the Act are not attracted - the payments were normal business transactions thus, there is no infirmity in the order of the CIT(A) Decided against Revenue.
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2014 (4) TMI 890
Validity of CIT(A)s action Dismissal of appeal against order u/s 200A of the Act AO is directed to take corrective action - The CIT(A) on the one hand has dismissed the appeal of the deductor assessee by holding that the order passed by the Assessing officer u/s 200A of the Income-tax Act, 1961 is not appealable u/s 246A of the Income Tax Act, 1961 and on the other hand has given direction to the Assessing officer to take corrective action to rectify the mistakes in the order within two months either through the ITD System or manually Held that: -As per the clear provisions of I.T. Act, if assessee chooses to proceed with the legal remedy provided by the Act, the AO has to decide the issue in accordance with law, even if there is no direction of the CIT(A) - The net effect of the direction of CIT(A) is to the effect that if the assessee files rectification application the AO will decide the same in accordance with law - The direction of the CIT(A) to assessing officer (TDS) to give appeal effect within 2 months of the receipt of order has no consequence inasmuch as the entire process will start only after application is filed by the assessee the CIT(A)s directions are ineffective and do not create any legal binding the assessee has various remedies under Income-tax Act - To seek remedial action, there cannot be any estoppel over that remedial right in accordance with law - If the assessee chooses to take a remedial action as a rule of law AO has to decide the same in accordance with law - In view of assessees agreeing that appeals were not maintainable, the revenues appeals are allowed Decided in favour of Revenue.
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2014 (4) TMI 889
Computation of deduction u/s 80HHC of the Act Exclusion of sales tax and excise duty Whether the Tribunal is right in directing the Assessing Officer to exclude excise duty and sales tax from the total turnover computing deduction u/s. 80HHC, even after insertion of Section 145A of the Act - Held that:- The decision in Commissioner of Income-Tax Versus Lakshmi Machine Works [2007 (4) TMI 202 - SUPREME Court] followed - The Tribunal has not committed any error in holding that the components of sales tax and central excise do not form part of sale proceeds for the purpose of Section 80HHC of the Act despite insertion of Section 145A of the Act Decided against Revenue.
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2014 (4) TMI 888
Disallowance u/s 94(7) of the Act - Short term capital loss on sale of mutual funds Held that:- The assessee during the relevant year under consideration had bought and sold units or mutual funds of Birla Basic Indu. Sel. Sec. Fund and Reliance Vision Fund - A perusal of information with respect to transaction set out against SL No. one would show that the record date is 19.01.2007 and the date of purchase is 19.10.2006 which is within a three months from the record date - The assessee received by way of dividend on 19.01.2007 - The sale of the said securities took place on 23.01.2007 which was also within a period of three months from the record date, i.e. 19.01.2007 - the purchase date as well as the date of sale was not in consensus with the statutory period of time prescribed by section 94(7) thus, there was no reason to interfere in the order of CIT(A) Decided against Assessee.
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2014 (4) TMI 887
Existence of Permanent establishment - DTAA between India and UK - Whether the stay of the seconded employees of the assessee for more than 90 days in India, engaged in providing managerial services to JCB India, constitute Services Permanent Establishment (P.E) - Held that:- TTA provides not only for the supply of IP Rights by the assessee to JCB India but also to depute its personnel for rendering services in connection with such IP Rights - The assignment of personnel by the assessee is not independent of TTA - the assessee was not to appoint and select some personnel for sending to JCB India, but was to depute its technical personnel on assignment basis - the supply of personnel on assignment basis is a part and parcel of the overall TTA read with IPAA and not de hors. Relying upon Dit (International Taxation) Versus Morgan Stanley And Company Inc. [2007 (7) TMI 201 - SUPREME Court] - there is no quarrel on the duration of stay of such personnel of the assessee which admittedly is more than ninety days within the twelve-months period - This position was duly admitted by the assessee before the Assessing Officer and such position has not been denied - all the requisite conditions for attracting the mandate of Art.5(2)(k)(i) stand satisfied inasmuch as there is furnishing of services including managerial services and such services are other than those taxable under Article 13 (Royalties and fees for technical services) - such services are rendered within India - services are rendered by the assessee through its employees and activities continued for a period of more than ninety days within twelve months period - JCB India constituted a service P.E of the assessee in India the order of the CIT(A) set aside and the matter remitted back to the AO. Whether royalties/fees for technical services is taxable under Article 7 as held by the AO or Article 13(2) Held that:- The amount of royalty and consideration for rendering of services by the employees of second category do not fall in para 6 of Article 13 and are hence chargeable to tax as per para 2 of Article 13 of the DTAA - As both these amounts make up the total consideration, its splitting into two parts, viz., towards royalty and employees of the second category has become academic, which would otherwise have been required if one of such components had fallen under para 6 of Article 13 for the computation of income as per Article 7 of the DTAA - In so far as fees for technical services for rendering of services by the employees of the first category is concerned, this falls under para 6 of Article 13 - Once the amount falls under para 6, it would automatically stand excluded from para 2 of Article 13 and would find its place under Article 7 of the DTAA. The amount of royalties or fees for technical services assumes the character of 'Business profits' on its arrival in Article 7 - Such amount will intermingle with other business profits, if already available as per Article 7 and will shed its character of royalty or fees for technical services in so far as the computation of income and its taxation under the DTAA is concerned - It is totally misleading to construe the amount of royalties and fees for technical services coming through Article 13(6) to Article 7 as retaining the same character as was there under Article 13 - the consideration for rendering of services by the employees of the first category is chargeable to tax under Article 7 of the DTAA and as such the provisions dealing with the computation and the taxation as provided under Article 7 shall apply pro tanto - separate details of receipts and actual expenses incurred for earning them are not available on record thus, the matter is remitted back to the AO for fresh determination of the amount of income in terms of Article 7. The services rendered by the employees of the first category, being eight deputationists, constituted service PE of the assessee in India - The order holding is overturned and the view taken by the AO is restored - The second ground about the direction of the CIT(A) that the entire amount should be considered as royalty and not as business income is partly allowed Decided partly in favour of Revenue. Levy of Interest u/s 234B of the Act Held that:- The decision in DIT v. Jacabs Civil Incorporated [2010 (8) TMI 37 - DELHI HIGH COURT] followed - as the assessee included the amount of royalty and fees for technical services in its total income the assessee is relieved from any interest liability u/s 234B of the Act Decided in favour of Assessee.
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2014 (4) TMI 886
Upholding of Penalty u/s 271(1)(c) of the Act - Time barred penalty proceedings Matter remanded back from High Court - Held that:- The decision in CIT v. Reliance Petroproducts Ltd. [2010 (3) TMI 80 - SUPREME COURT] followed - The disallowance of expenses was made out of P&L A/c which was filed by the assessee along with its return of income - the expenses were disallowed by the AO and were allowed by CIT(A) which were further disallowed by the ITAT which itself shows that there was two possible views on the additions and various decisions as relied upon by the Ld AR has held under these circumstances the penalty u/s 271(1)(c) cannot be imposed - mere non acceptance of a claim for expenditure cannot tantamount to furnishing of inaccurate particulars of income Decided in favour of Assessee.
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2014 (4) TMI 885
Premium paid for the leasehold rights liability to deduct TDS u/s 194I of the Act Held that:- The decision in The ITO (TDS) 3 (5), Versus M/s. Wadhwa & Associates Realtors Pvt. Ltd. [2013 (9) TMI 261 - ITAT MUMBAI] followed - the premium is not paid under a lease but is paid as a price for obtaining the lease, it proceeds the grant of lease - it cannot be equated with the rent which is paid periodically - the payment made to MMRD is also for additional built up are and also for grating free of FSI area, such payment cannot be equated to rent - the word Rent does not include premium paid for additional FSI or lease hold rights - payments were made to MMRDA for additional build up area and lease hold rights - such payments cannot be termed Rent and therefore provisions of section 194 I are not applicable thus, the order of the FAA upheld Decided against Revenue. Applicability of section 201 and 201(1A) of the Act Held that:- The letter dated 04.05.2007 MMRDA had informed the assessee that it had approved the proposal of offer of allotment of the plot of land for construction of two level underground car park with ground above - Lease was offered for a periods of 80 years - the transaction has to be held a lease and that provisions of section 201(1) and 201(1A) are not attracted for non-deduction of tax at source thus, the order of the FAA set aside Decided in favour of Assessee.
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Customs
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2014 (4) TMI 909
Validity of Tribunal Order Reduction in Pre-deposit for hearing appeal Improper Classification of goods - Whether the majority opinion of CESTAT requiring pre-deposit of 50% duty is justified Held That:- There appears to be a conflict within the department itself as to the proper classification of goods i.e. whether they are to be cleared under tariff heading 8443 32 70 or 8443 32 60 - One Member of the CESTAT was of the opinion that the extended period of limitation was not properly invoked, is in the opinion of this Court sufficient for Tribunal to have made an order granting substantial relief - This Court is of the opinion that the impugned order to the extent it requires deposit of 50% of the amount should be modified - Instead assessee should be permitted to deposit 20% of the amount as a pre-condition subject to which its appeal may be heard Decided partly in favour of Asseessee.
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2014 (4) TMI 908
Jurisdiction & Power of DGFT Price Fixation Notification Fixation of Tariff Value of Betel nut - Non-fulfillment of the policy condition of notification - Policy to import betel nut Issuance of Show cause notice - Section 111(d) of the Customs Act, 1962 - Article 166 of the Constitution Purpose of the Act - Imposition of penalty - Section 112 - Held That:- Judgment in Dattatreya Moreshwar v State of Bombay[1952 (3) TMI 32 - SUPREME COURT]followed - Clauses (1) and (2) of Article 166 are directory only and non-compliance with them does not result in the order being invalid and that in order to determine whether there is compliance with these provisions all that is necessary to be seen is whether there has been substantial compliance with those requirements - Relying upon S. MIRA COMMODITIES PVT. LTD. Versus UNION OF INDIA [2008 (9) TMI 213 - MADRAS HIGH COURT] - The DGFT functions as a limb of the Central Government and not as a delegatee and mere non-mentioning of the specific source of power does not invalidate the entire executive action. Merely by revising the rate in the garb of the amendment to a circular which has been quashed and set aside by the High Court cannot be done by way of an amendment of the policy u/s 5 of the FTDR Act - Paragraph 2.1 of the Foreign Trade Policy, 2009-2014 clearly provides the import and export, to be free except, where regulated by Foreign Trade Policy or any other law in force - It further provides that the Item wise export and import policy shall be notified by the DGFT as amended from time to time - According to the respondent, Paragraph 2.6 of the policy empowers the DGFT to adopt and enforce any measure under the principles of restrictions through a notification The aforesaid parameters set forth therein does not satisfy the imposition of conditions by way of revision of rate from ₹ 75/- to 110/- per kg and above - Therefore, the DGFT even as a delegatee is not empowered to put a condition by revising the rate as a condition to import. Impugned notification dated 13-5-2013 issued by DGFT for fixation of tariff value cannot be sustained therefore set aside. - Decided in favor of assessee. Fixation of tariff value by the Customs Department - Notification dated 25-6-2013 - Held that:- The contention of the petitioners that the Board cannot fix the tariff value is unacceptable and runs contrary to the intendment of the legislation. - Except that the impugned notification does not stand on the anvil of wednespury principle and the principle of proportionality, it is not averred in the writ petition, the said notification lacks subjectivity - The power to frame the tariff value is entirely depend upon the satisfaction of the Board and the question of sufficiency of the ground which forms such satisfaction cannot be gone into unless it is demonstrated that it is extraneous to the scope and purpose of the statute - Relied upon Barium Chemicals Ltd. -vs- Company Law Board [1966 (5) TMI 36 - SUPREME COURT OF INDIA] It would be deciphered from the impugned notification that the authorities took note of the trend of the value of such or like goods and, therefore, the presumption lies in favour of upholding the notification - This Court, therefore, does not find that the impugned notification, which is issued in exercise of the power u/s 14(2) can be invalidated on the grounds taken by Assessee - Decided against the assessee. Maintainability of writ petition filing after submitting reply to the Show Cause Notice - Held that:- The petitioners have not only challenged the show cause notice after giving reply but have also challenged the impugned notification dated 13th May, 2013 and 25th June, 2013 which forms the basis of the issuance of the said show cause notice. There is no impediment in maintaining the writ petitions even after filing of the reply. - Following decision in the case of Suttons & Sons Pvt. Ltd; vs Union of India & Ors [1994 (2) TMI 298 - HIGH COURT OF CALCUTTA]; writ petition is maintainable - Decided in favor of assessee.
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2014 (4) TMI 907
Jurisdiction of Settlement Commission - Customs duty Mis-declaration - Smuggling and Confiscation of Gold & Coins in India - Scope of Section 127B of the Customs Act, 1962 u/s 124 - Penalty u/s 112 and 114AA of Act Whether Section 127B bars the jurisdiction of the Settlement Commission for cases of mis-declaration - Held That:- Relying upon Union of India vs. Hoganas India Ltd & Ors [2005 (7) TMI 14 - HIGH COURT OF JUDICATURE (BOMBAY)] A restrictive interpretation cannot be given to Section 127B - The words "or otherwise" which appear u/s 127B after the words "short levy on account of misclassification" would mean similar acts like misclassification - Principle of ejusdem generis would apply - There was no mandate to limit the jurisdiction of the Settlement Commission in such a manner - Providing an unduly narrow interpretation to Section 127B to nip its jurisdiction at the bud does not cohere with the text or context of the provision - Applications concerning mis-declaration are admissible u/s 127B. Pre-deposit - For approaching the Settlement Commission Show cause notice - Whether application can be entertained without having to pay duty - Principle of ejusdem generis Interpretation of Statutes - Clause (c) of the first proviso to Section 127B Held that:- Clause (c) to the first proviso mandates a pre-condition to approaching the Settlement Commission - The duty "accepted by" the applicant must be paid, before the matter can even be considered by the Settlement Commission - A levy u/s 28-which authorizes a show-cause for duties not levied earlier-includes interest u/s 28AB - Thus, clause (c) requires that the applicant must deposit the duty he accepts to be the liability, along with interest - This means that it is not necessary for the show cause notice to propose a liability amount for it to be 'due' under clause (c) - The Court notices that the self-assessment standard is also prescribed in Section 28(b), as an alternative to the duty ascertained by the Revenue. Relying upon Jagdish Cancer and Research [2001 (8) TMI 113 - SUPREME COURT OF INDIA] - Once served with a show-cause notice u/s 124, the proper officer u/s 28 cannot simultaneously issue a notice This does not mean that minimum duty is not payable on approaching the Settlement Commission u/s 127B - The customs duty, either the amount required by a Section 28(b), or the amount self-assessed u/s 124 notice, must be paid under clause (c) - The minimum condition of pre-depositing before the Settlement Commission remains intact - Even in cases where there is a notice u/s 124, which does not propose a customs duty, the applicant must self-assess the liability and pay such amount as a pre-condition. Opportunity to approach the Settlement Commission is a sort of concession given by the government to errant assessees to enable them to come clean - This opportunity is hedged in by certain conditions, one of which is that the assessee shall pay the additional amount of customs duty accepted by him along with interest due u/s 28AB - An assessee is permitted to approach the Settlement Commission subject to inviolable conditions, the proper and complete compliance with which cannot be compromised or condoned in any manner - Even on this score the petitioner has to fail - This Court clarifies this judgment leaves open the parties contentions on other grounds, including the applicability of Section 123 by way of the third proviso to Section 127B, which may be considered by the Settlement Commission, if advanced by the parties Decided against assessee.
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Corporate Laws
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2014 (4) TMI 906
Protection u/s 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 - whether the appellants who are Directors and Guarantors of a sick company and are entitled to get the protection of Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 - Held that:- Appellants, who are the guarantors, can obtain the protection of Section 22(1) of SICA only if the action filed by the bank comes within the ambit of the term suit. If the action filed by the respondent bank in the nature of proceedings and not a suit, protection under Section 22(1) would not be available, especially, when the appellants are guarantors - term suit have to be confined in the context of sub-section (1) of Section 22 of SICA to those actions which are dealt with under the Code and not in the comprehensive over-arching proceedings so as to apply to any original proceedings before any legal forum. The term suit would apply only to proceedings in civil court and not actions or recovery proceedings filed by banks and financial institutions before a Tribunal such as DRT - Decided against appellant.
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2014 (4) TMI 905
Winding up - Overriding preferential payment - enforceable charge on the assets of the company in liquidation - Held that:- appellant cannot claim that the order dated 15th April, 1987 created an enforceable charge on the assets of the company in liquidation. We are of the opinion that the learned counsel for the respondents are quite right in their submissions that an injunction was issued only to ensure that the company in liquidation does not further encumber or create charges in favour of third parties over the assets of the company in liquidation. In our opinion, neither the interim order dated 15th April, 1987 nor the undertaking given pursuant thereto can be said to be a charge on the assets of the company in liquidation. In the face of the directions given by this Court in the case of Oil and Natural Gas (supra) wherein this Court had directed that the ONGC is at liberty to take immediate steps to recover the charges due from the respondents in the light of the judgment. This Court did not direct that in view of the undertaking dated 27th May, 1987 the respondents have created enforceable charge in favour of ONGC. Furthermore, it is a matter of record that even the ONGC did not consider itself to be a secured creditor. At the time when the Ambica Mills Co. Ltd. came under the jurisdiction of the Official Liquidator, none of the two options adverted to earlier was exercised by ONGC. The plea of being a secured creditor is clearly an afterthought. Therefore, in our opinion, the judgments rendered by the learned Single Judge and the Division Bench of the Gujarat High Court do not call for any interference - Decided against appellant.
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Service Tax
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2014 (4) TMI 922
Maintainability of appeal - Denial of rebate claim - Section 35B - Held that:- Sec.35EE is in respect of revision by Central Government under the Central Excise Act. In Sec.83 of the Finance Act, the provisions of Sec.35EE of the Central Excise Act were included amending thereby revision lies to the Central Government whereas as per Sec.86, it covers appeal to the Appellate Tribunal - There was specific provision which provides that the Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeal and making orders under the Central Excise Act. We find that as per Sec.35B of the Central Excise Act, the Tribunal has no jurisdiction to hear the appeal filed against the order passed by the Commissioner( Appeals) in respect of the rebate-claim - There was specific provision which provides that the Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeal and making orders under the Central Excise Act. We find that as per Sec.35B of the Central Excise Act, the Tribunal has no jurisdiction to hear the appeal filed against the order passed by the Commissioner( Appeals) in respect of the rebate-claim. We find force in the contention of the Revenue that the appeal is not maintainable - Decided against assessee.
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2014 (4) TMI 921
Business Auxiliary Services - Export - Receipt in INR through FIRC - Non Receipt of remuneration towards their services in convertible foreign exchange as per Rule 3(2) of the Export of Services Rules, 2005 - Held that:- only objection of the Revenue is that the payment towards the service rendered by the respondent has not been received in convertible foreign exchange. When Reserve Bank of India permits that the same can be received in Indian Rupees through FIRC, in that situation, I am convinced with the argument advanced by the learned Advocate for the respondent that the payments have been received through proper channel. Prima facie, in these circumstances, the Revenue has failed to make out a case for stay of operation of the impugned order - Stay denied.
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2014 (4) TMI 920
Demand of service tax - Mandap Keeper Services - Bar of limitation - Held that:- services rendered by the mandap keepers as a caterer would also be liable to service tax under the category of Mandap Keeper Services'. The decision relied upon by the consultant of the hon'ble High Court of Karnataka is with reference to Outdoor Catering Services' rendered in an aeroplane and the other decision of the Tribunal in the case of Daspalla Hotels Ltd it is in respect of evidence relied upon by the appellant with regard to VAT paid on the value of food and beverages sought to be taxed under Convention Services'. In the present case, the demand is not under any of these services but on Mandap Keeper Service' and as can be seen from the decision of the hon'ble apex Court in the case of Tamil Nadu Kalyana Mandapam Assn. (2004 (4) TMI 1 - SUPREME COURT OF INDIA), service tax liability is attracted in case the mandap keeper also perform catering services. Appellant did not declare to the department the non-inclusion of food charges in the consideration received nor did they declare the receipt of consideration in the ST-3 returns. Thus, there is a willful mis-statement of facts with an intent to evade tax on the part of the appellant. Therefore, the extended period of time has been rightly invoked to confirm the Service Tax demand and we hold accordingly. As regards the penalty imposed under Section 78, the penalty under the said Section would apply only when there is a suppression of facts or willful mis-statement of fact with an intent to evade Service Tax on the part of the assessee. In the present case, from the records, it is clearly seen that prior to 1.4.2005, the appellant was discharging Service Tax correctly in accordance with law by paying Service Tax on the entire consideration received for both catering charges as also banquet hall charges w.e.f. 1.4.2005, the assessee deliberately split up the charges by issuing the separate bills by splitting into catering charges and banquet hall charges. This conduct of the assessee clearly reveals the intention to evade payment of Service Tax on the charges collected as catering charges. Therefore, penalty under Section 78 is clearly imposable. However, penalty under both Section 76 and 78 are not imposable after 10.5.2008 when the provisions were amended. Therefore, for the period after 10.5.2008, no penalty would be imposable under Section 76 of the Finance Act, 1994. Matter has to go back to the adjudicating authority for re-computation of the Service tax demand and re-determination of consequential interest and penal liabilities - Decided partly in favor of the assessee.
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2014 (4) TMI 919
Demand of service tax - commercial coaching or training center service - development of personality and any personal skills - Penalty under Sections 76, 77 and 78 - Held that:- activity of the appellant is liable to tax under the provisions of the Finance Act, 1994 as section 65 (27) of the Act provides imparting of coaching or training in any skill or knowledge or lessons on any subject or field other than sports. Thus, the activity of the appellant is squarely covered under the category of commercial coaching or training' and liable to Service Tax. Waiver of penalty u/s 80 - Appellant is not engaged in providing commercial coaching as ordinarily understood i.e. coaching for particular exams or training in the subject like Engineering or Management etc. Further, the appellant being a non-profit organization established under Section 25 of the Companies Act, had reasonable belief that they are not a commercial institute or training centre, which issue was clarified by the Finance Act, 2010 by insertion of explanation with retrospective effect. It is also relevant that several decisions were rendered in favour of the assessees under similar facts and circumstances of being non-profit or charitable in nature. Such cases were challenged before the Apex Court. The Apex Court, during the pendency of the appeals in view of the amendment by the Finance Act, 2010 remanded the appeals for fresh adjudication in view of the amendment. Thus, it is found that there is no contumacious conduct or active disregard of the provisions of law in complying with the provisions of the Act or Rules. Thus, penalties imposed under Sections 76, 77 and 78 are set aside, there being reasoned cause for non-compliance and non-payment of tax as provided under Section 80 of the Act. Penalty waived while confirming the demand of service tax - Decided partly in favour of assessee.
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Central Excise
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2014 (4) TMI 914
Duty demand - Whether the amount of central excise duties which is for the period prior to 2005, can be recovered from the petitioner or not - Held that:- In pursuance of the notice referred herein above, the petitioner has filed the reply, on which no order has been passed and without passing any order, the respondent no. 1 proceeded to attach 300 bags of sugar, which was not justified. However, in view of the interim order on furnishing of security, 300 bags which were attached, have been released in favour of the petitioner - the writ petition is disposed of directing the respondent no. 1 to adjudicate the issue whether the petitioner is at all liable for the payment of excise dues which accrued prior to 28th May, 2005. The petitioner is directed to file certified copy of this order before the Assistant Commissioner within a period of two weeks and the respondent no. 1 is directed to pass appropriate order in accordance with law after giving opportunity of hearing and considering the submissions of the petitioner by a reasoned order in accordance with law. In case, if on adjudication, it is found that the petitioner is not liable for the payment of any central excise dues, the securities furnished by the petitioner be discharged - Decided in favour of assessee.
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2014 (4) TMI 913
Duty demand - Option given under Rule 96ZO(3) - whether the Assessing Authority can exercise the discretion to levy the lesser amount of penalty than the amount provided under Rule 96 ZO(3) - Held that:- The validity of Rule 96 ZO is not under consideration before us. The default is also not in dispute. Admittedly, the appellant has not deposited the amount within the specified period and has deposited the amount along with the interest beyond the specified period, therefore, the appellant is liable for the penalty under Rule 96 ZO(3). The Assistant Commissioner has levied the penalty at Rs.20,000/-. - wherein it has been held that Rule 96(ZO(3) provides the levy of equal amount of penalty to the duty short paid/unpaid and authority has no discretion to impose the penalty lower than the amount of duty involved - Decided against assessee.
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2014 (4) TMI 912
Condonation of delay - Held that:- On perusal of averments made in the application, it reveals that it is a case of negligence and latches on the part of the office of the Union of India and on the part of the office of Assistant Commissioner as well. The limitation for filing appeal is 180 days, which is quite sufficient. It is unfortunate that during the aforesaid period, the appeal could not be properly prepared and filed. The reason given in the application are not supported by any documents and affidavit. Therefore, the same cannot be accepted. - In paragraph 6 of the application it is stated that appeal was presented before the Registry on 20.02.2006, which is wrong. In fact, on 20.02.2006, it was got reported by the Stamp Reporter and has been presented on 06.03.2006. There is no explanation for further delay from 20.02.2006 to 06.03.2006 - Condonation denied.
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2014 (4) TMI 911
Denial of rebate claim - Application of corrigendum notification - Notification No. 93/2004-Cus dated 10.09.2004 - Held that:- it is not the case of application of an exemption notification itself but the effect of corrigendum notification issued in respect of an earlier exemption notification admitting apparent omission therein necessitating the issuance of correction/ corrigendum notification. Therefore, principle applied herein would be different - corrigendum notification dated 17.05.2005 itself says that it is a corrigendum in notification dated 10.09.2004 and, therefore, there is no reason to treat this corrigendum effective from the date the notification dated 10.09.2004 was issued wherein this corrigendum (correction) has been made. The respondents-authorities having taken a contrary view, therefore, have committed a manifest error of law - The revisional order dated 24.08.2009 confirming Commissioner (Appeals) order as also the Commissioner (Appeals) order dated 22.11.2006, are hereby quashed and the orders granting rebate passed by Assistant Commissioner are hereby restored and confirmed - Decided in favour of assessee.
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2014 (4) TMI 910
Stay application - appeal is admitted or the following two questions of law : (i) Whether in the case, where the rate of duty is specific, the place of removal would be factory gate or the customer premises. (ii) Whether the authorities below have confirmed the demand after dis-allowing the credit on an issue, which was not proposed in the show-cause notice Till further orders of the court, the operation of the order dated 18.11.2013, so far it relates to remand shall remain stayed.
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CST, VAT & Sales Tax
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2014 (4) TMI 918
Whether the impugned judgment pertaining to the exemption under the KST Act even after holding that the amount collected by the petitioner from its customers as deposit in the case does not amount to collection of tax' is sustainable in law Validity of judgment Withdrawal of Exemption Scheme - Sale of All Steel Radial Tyres for heavy vehicles (Trucks & Buses) - Collection of tax Held that:- There was no question of assessee collecting tax from the customers between 01.01.2000 and 08.10.2000 as deposit - Since during this period in view of withdrawal of the exemption vide Notification dated 01.01.2000, the customers were liable to pay tax and it was rightly collected by the petitioner and deposited with the Department - That appears to be the reason why in the Government Order dated 25.10.2000 it is stated that eligibility for exemption from payment of tax would be available if the tax is "not collected" on sale of All Steel Radial Tyres for heavy vehicles (Trucks & Buses) - Admittedly, in this case, the tax was collected by assessee and it was deposited with the Department and therefore, they cannot seek any benefit whatsoever of the Government Order dated 25.10.2000 - The authorities below have considered and appreciated the contentions urged on behalf of the petitioner in proper perspective and this Court do not find any reason to interfere with the same Decided against Assessee.
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2014 (4) TMI 917
Deduction of tax at source by Railways from their bills for the work executed by the petitioner in relation to the work contract u/s Section 47 - Held that:- When the remedy of filing an application is provided under Section 47 then it is this statutory remedy which must be resorted to assessee in order to resolve the dispute of the nature raised herein rather than to take recourse to the extraordinary remedy of writ petition under Article 226 of the Constitution in the High Court Assessee granted liberty to take recourse to the remedy available to them u/s 47(b)(i) Petition disposed off Decided against assessee.
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2014 (4) TMI 916
Whether the Appellate Authority can interfere in the order passed by the Assessing Authority that the penalty imposed is excessive, whether such view is sustainable in view of Section 78(5) of the RST Act - Held that:- Judgment in Guljag Industries Versus COMMERCIAL TAXES OFFICER [2007 (8) TMI 344 - SUPREME Court] followed - The compliance of the provisions of the Act, have to be carried in letter and spirit and when there is requirement of carrying declaration form with the goods then the mere plea that the respondent was not aware of the fact of Notification, is not proper such a generalised user of word were not aware is not sufficient - compliance of Rule 53 ought to have been made - The Rice falls in the category of notified goods thus there was requirement of carrying declaration form with the goods - The dealers ought to have carried the declaration form with the goods and came heavily on the dealers who though carried the declaration form but were blank or/and incomplete - Such declaration forms were non-est and Department was correct and justified in imposing penalty u/s. 78(5), whereas it is a non carrying of the declaration form - If declaration form is produced later on, on demand then plea of the assessee could be accepted but neither there was a request by the respondent-assessee nor he produced the declaration form - The revision petition is allowed - The impugned orders passed by the lower Appellate Authorities are quashed and set-aside and reversed - The order of imposition of penalty passed by the ACTO (FS), is maintained - The stay application also stands disposed of Decided in favour of Revenue.
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2014 (4) TMI 915
Liability of entry tax to the manufacturer of sugar or the taxing department and for releasing the same in view of the policy and notification issued in exercise of powers u/s 4 (B) of the U.P. Tax on Entry of Goods Act, 2000 exempting form entry tax on non-levy sugar manufactured in a new unit effect of exemption being taken away - Held that:- The State has not been able to indicate any supervening public interest, which required the scheme to be withdrawn and that the petitioners are entitled to the limited protection of the exemptions at this stage, which they were enjoying on the date when the policy is said to have been revoked i.e.4th June, 2007 Directed that no coercive steps shall be taken against the petitioners for realization of the administrative charges, entry tax, VAT and purchase tax, till the date of listing - writ petition dismissed Decided in favour of assessee.
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