Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
January 31, 2014
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Highlights / Catch Notes
Income Tax
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Deemed dividend - Trade advance which are in the nature of money transacted to give effect to commercial transaction would not fall within the ambit of the provisions of section 2(22)(e) - AT
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Provisions of section 40(a)(ia) do not override the provisions of section 201 – assessee is liable to TDS on interest payments, even if it has not claimed the same as deduction while computing total income - AT
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Deduction u/s 80IB(10) - The assessee is not expected to fulfil the conditions which were not on the statute when such approval was granted to the assessee - HC
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The assessee has collected the funds from the public/depositors, who have deposited the money to earn interest - This amount is capital which will be utilized to earn income - HC
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Merely because while carrying out the activities for the purpose of achieving the objects of the Trust, certain incidental surpluses were generated, would not render the activity in the nature of trade, commerce or business - HC
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While computing the profits of the said unit, the turnover of other 10A units cannot be added to arrive at the total turnover of the business as stipulated under Sub Section (3) of Section 80HHE - HC
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Cancellation of registration of a trust on the ground that the activities of the trust or institution are not genuine or are not being carried out in accordance with the objects of the trust or institution cannot be construed as a conferment of arbitrary power to the Commissioner. - HC
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If the amount of AMP expenses is disallowed by processing under both the sections, that is 37 and 92, there can be no scope for again reverting to section 37(1) as it will amount to double addition - AT
Customs
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Duty Drawback - Merchant exporter - disallowing Central Excise portion of the drawback, in terms of the adjudicating authority and revisional order is hereby set aside - HC
Service Tax
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Service Tax Audit under EA-2000 - for the purpose of audit, the material can be collected either by the officer authorized by the Commissioner or by the Auditor himself. But, audit will be performed only by the Chartered Accountant - HC
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Constitutional validity - Levy of the service tax on the works contract and Ready-mix Concrete - The provisions clearly relate only to the service component of the composite contracts - decided in favor of revenue - HC
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Assessable value - reimbursements of expenses - inputs used in rendering services cannot be treated as reimbursable costs. - AT
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Valuation - Service of manpower supply - Assessee paid tax on the portion of the service charges retained by the appellants - the appellants are liable to pay service tax on the gross amount received - AT
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Whether construction of hospital is a commercial or industrial construction - appellant cannot be prima facie faulted for having entertained a bonafide belief that their activity was not taxable - AT
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Activity undertaken by the service provider involves radiation and convection using equipments like spraying ejector, steam ejector, nozzles with hoses and air compressors is not taxable as consulting engineer service - AT
Central Excise
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Rejection of rebate claim - Rule 18 - NTF No. 19/2004-CE(NT) - Period of limitation of 6 months - the delay is only of about two months. The Commissioner should have considered the reasons for the delay in a liberal manner - HC
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Insertion of Explanation in the notification no. 16/97 CE - Whether Retrospective of Prospective - Whether Clarificatory or declaratory - held as prospective in nature - HC
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Panel Board and PVC cables which do not participate in the manufacturing process and are only used for producing or processing of any goods eligible for Cenvat Credit as capital goods - HC
Case Laws:
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Income Tax
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2014 (1) TMI 1547
Deletion made u/s 2(22)(e) of the Act –Trade advances treated as deemed dividend - Held that:- The trade advances do not fall within the ambit of section 2(22)(e) of the Act as the business transactions are outside the purview of section 2(22)(e) of the Act - The word "advance" which appears in the company of the word "loan" could only mean such advance which carries with it an obligation of repayment - Trade advance which are in the nature of money transacted to give effect to commercial transaction would not fall within the ambit of the provisions of section 2(22)(e) of the Act - This interpretation would allow the rule of purposive construction with noscitur a sociis – Relying upon Commissioner Of Income-Tax Versus Nagindas M. Kapadia [1988 (12) TMI 89 - BOMBAY High Court] - the Court excluded from the ambit of "dividend", monies which the assessee received towards purchases – there was no infirmity in the order of CIT(A) and the same is upheld– Decided against Revenue.
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2014 (1) TMI 1546
Addition made u/s 68 of the Act – Bogus transactions - Held that:- The Board's instruction No. 5/2008 dated 15-5-2008 is referred wherein monetary limits and other conditions for filing departmental appeals (In Income- tax matters) before Appellate Tribunal, High Courts and Supreme Court were specified - an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above - Filing of appeal in such cases is to be decided on merits of the case - The instruction will apply to appeals filed on or after 9th February 2011 - The present appeal has been filed by department on 21.10.2011 and the tax effect in this appeal is Rs.2,89,860/-, and the instructions of CBDT are applicable and the appeal filed by department is liable to be dismissed as the tax effect in this appeal is below Rs.3 lakhs – Decided against Revenue.
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2014 (1) TMI 1545
Interpretation of section 92C(2) of the Act – Held that:- The CIT(A) has granted relief to the assessee for a sum of Rs.1,21,74,468/- being 5% of the margin of international transactions and such deduction is allowed as standard deduction - The assessee has not been able to explain the delay in filing cross objections - the delay in filing the cross objections cannot be condoned - even while deciding departmental appeal on the basis of retrospective amendment which was not there when first appellate authority has decided the issue – matter remitted back to the CIT(A) for fresh adjudication to deletion of TP adjustment, which the revenue is contesting only on the basis of retrospective amendment. We consider it appropriate to restore the entire issue regarding TP adjustment to the CIT(A) with a direction to re-adjudicate the same by taking into account the aforementioned amendment as well as the other grievances of the assessee on T.P adjustment by giving the assessee a reasonable opportunity of hearing – Decided partly in favour of Revenue.
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2014 (1) TMI 1544
Revision u/s 263 of the Act made - Disallowance of expenses u/c 36(1)(ii) of the Act – Deduction claimed u/s 10B of the Act – Held that:- The decision in Commissioner of Income-tax vs Sunil Kumar Goel [2005 (1) TMI 34 - PUNJAB AND HARYANA High Court] and in Appropriate Authority, Ahmedabad, And Another Versus Hindumal Balmukund Investment Company Private Limited. And Others [2001 (7) TMI 6 - SUPREME Court] followed - a speaking order must speak for itself and a reference to show cause notice is called for - It is also well settled principles of law that judicial order shall speak for itself and the reason for the conclusion reached in the judicial order shall contain in the order itself - Reason for a decision cannot be substituted or supplemented by way of an affidavit or otherwise - the assessing officer has not applied his mind to the claim made by the assessee towards payment of commission to managing director, whole time director and vice president (marketing) - application of mind does not reflect in the assessment order – there was no infirmity in the exercise of revisional jurisdiction u/s 263 of the Act by the Administrative Commissioner - the assessing officer shall independently examine the claim made by the assessee towards commission to managing director, whole time director and vice president (marketing) without being influenced by any of the observations made by the Commissioner – Decided against Assessee.
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2014 (1) TMI 1543
Demand raised u/s 201 of the Act – Interest charged u/s 201(1A) of the Act – Non-deduction of TDS u/s 194A of the Act - Held that:- The Government shall not be entitled to recover the said amount, if the recipient has declared the said amount as his income in the income tax return filed by him and paid the tax due - Thus, it is seen that the objective of provisions of sec. 201 is only to compensate the Government for the failure of an assessee to deduct or pay the TDS amount - The provisions of sec. 40(a)(ia) and sec. 201 operate on different objectives - the provisions of sec. 40(a)(ia) do not override the provisions of sec. 201 of the Act – thus, the assessee is liable to deduct tax at source on interest payments, even if it has not claimed the same as deduction while computing its total income, in which case the revenue is entitled to initiate proceedings u/s 201 of the Act for such failure - The assessee has failed to adduce any evidence to show that the recipients of interest amounts have declared the same in their income tax returns and paid tax due – the order of the CIT(A) upheld – Decided against Assessee.
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2014 (1) TMI 1542
Deduction u/s 80IB(10) - Held that:- Relying upon the decision in CIT v. Anriya Project Management Services (P.) Ltd. [2012 (5) TMI 196 - KARNATAKA HIGH COURT] - The amendment in the definition of built-up area as inserted by the Finance Act, 2005 was prospective in nature to be effective from 01.04.2005 - Amendment provision would have no application to housing projects, which were approved by the local authority prior to 1.4.2005 in calculating 1500 sq. feet of residential unit. The assessee is expected to complete the project as per the approved plan at a particular point of time and the assessee is not expected to fulfil the conditions which are not in existence at the relevant point of time - The assessee was to complete the project on or before 31-3-2009 - The assessee made request with the Competent Authority on 5-11-2008 that the project has been completed and completion certificate may be issued - If the same is not issued by the Competent Authority the assessee should not be penalized for the same unless and until some contrary facts are brought on record evidencing that the assessee contravened the conditions contained in the approval granted by such Competent Authority - The assessee is not expected to fulfil the conditions which were not on the statute when such approval was granted to the assessee - Decided against Revenue.
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2014 (1) TMI 1541
Nature of deposit receipts - Capital or revenue - Held that:- The assessee has shown 20% deposits as revenue receipt, but later, it was claimed as capital receipt - Relying upon decision in CIT vs. Sahara Investment India Ltd [2003 (11) TMI 57 - ALLAHABAD High Court] - When a person deposits some money in a bank that amount does not become the income of the bank but rather it becomes the capital of the bank in the form of borrowed capital - Income is ordinarily that which flows out of capital - The assessee has collected the funds from the public/depositors, who have deposited the money to earn interest - This amount is capital which will be utilized to earn income - The money deposited is nothing but the capital in nature - Decided against Revenue.
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2014 (1) TMI 1540
Undisclosed income - Held that:- The cash was duly reflected in cash book, which was found in Computer hard disc seized by ADIT(Investigation) - The CIT(Appeals) accepted the submission of the representative of the Assessee - When the CIT(Appeals) was satisfied on such factual aspect and the ITAT has also upheld the order of the CIT(Appeals) - There is no substantial question of law before court - Decided against Revenue.
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2014 (1) TMI 1539
Charitable activity - Applicability of proviso to section 2(15) - activity of breeding milk cattle; to improve the quality of cows and oxen and other related activities. - AO observed that, considerable income was generated from the activity of milk production and sale. - Held that:- The objects of the Trust clearly establish that the same was for general public utility and for charitable purposes - Profit making was neither the aim nor object of the Trust - Merely because while carrying out the activities for the purpose of achieving the objects of the Trust, certain incidental surpluses were generated, would not render the activity in the nature of trade, commerce or business - As clarified by the CBDT in its Circular No. 11/2008 dated 19th December 2008 the proviso aims to attract those activities which are truly in the nature of trade, commerce or business but are carried out under the guise of activities in the nature of ‘public utility’ - The facts and circumstances of each case are different - Decided against Revenue.
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2014 (1) TMI 1538
Whether the turnover of the undertaking eligible for deduction under Section 10A be included in the total turnover for deductions u/s 80HHE - Held that:- As per section 80HHE(3) - In order to determine the profits derived from the export of computer software the amount shall be the amount which bears to the profits of the business, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee - The total turnover of the business referred to under Sub-Section(3) cannot be construed as the total turnover of the business carried on by the assessee - The total turnover refers only to the business carried on under Section 80HHE namely the business of software - Neither the profits of Section 10A units nor the turnover of 10A units could be added to find out the profit from export of computer software under Section 80HHE. Once the assessee has been given the benefit of total exemption from payment of tax under Section 10A in respect of these two units to which Section 10A is attracted, neither the profit and gains of that business nor the turnover of that business could be added to the business of which Section 10A is not applicable - The third unit of the assessee is eligible for deduction in respect of export turnover of computer software under Section 80HHE – While computing the profits of the said unit, the turnover of other 10A units cannot be added to arrive at the total turnover of the business as stipulated under Sub14 Section (3) of Section 80HHE – Decided against Revenue.
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2014 (1) TMI 1537
Addition on account of inflation of expenses - Held that:- The assessing authority should have directed only the excess amount and not the entire amount to be added – The entire amount cannot be said to be bogus - It is a mistake committed by the assessing authority, which is also confirmed by the appellate authority - The Tribunal has not properly appreciated the case of the revenue in proper prospective – From the statement of Nagaraju and the other material on record it can be inferred that the assessee incurred expenditure but he has inflated the figure - Cheques have been issued to the employees who are also having their accounts in the very same bank and they have encashed the cheques either through their account or they have collected the cash from the banks - The amounts paid to the employees represent the amounts in excess of the actual expenses - The reasoning given that the vouchers are prepared after the financial year and voucher payment is made by cheques and therefore, genuineness of the cheques cannot be doubted and does not represent the inflation is incorrect - The payments are made to the sister concern are supported by the material on record, which shows that they have encashed the cheques but no corresponding entries are recorded in the accounts to show that what is the actual expenditure incurred – The Managing Director of the assessee company has admitted the mischief of inflated figures - The entire amount cannot be treated as inflated figure and added to the income of the assessee – Only the inflated part be added – Partly allowed in favour of assessee.
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2014 (1) TMI 1536
Whether respondent CIT has right to cancel the registration granted to the appellant trust u/s 12AA - Held that:- Even after grant of registration under Section 12A of the Act, if the Commissioner is satisfied that the activities of such trust or institution are not genuine or are not being carried out in accordance with the objects of the trust or institution, he is entitled to pass orders cancelling the registration after granting opportunity. Bombay High Court in the case of Sinhagad Technical Education Society [2012 (3) TMI 262 - BOMBAY HIGH COURT] pointed out that the effect of the provision is to cancel the registration of the trust when the activities of the trust are not genuine or are not being carried out in accordance with the objects of the institution and such law cannot be regarded as a retrospective alteration of the law. It was further held that cancellation of registration of a trust on the ground that the activities of the trust or institution are not genuine or are not being carried out in accordance with the objects of the trust or institution cannot be construed as a conferment of arbitrary power to the Commissioner. In the assessee’s case, the Commissioner of Income-tax found that 1971 society had not filed return of income which suggests that there were no activities undertaken by the said 1971 Society/Association - After the new trust was formed in 1987 viz., "Sri Vidya Mandir Trust", the 1971 Society does not have any objects and even if the Society has any other objects, those objects ceased to exist after registration of the 1987 Trust, when all its assets and liabilities were transferred and all activities ceased - Sub Section (3) of Section 12AA of the Act has to be strictly followed and the authority has to deal with even those cases having registration granted to the trust under the erstwhile provision – The CIT was justified in cancelling registration granted to trust – Decided against assessee.
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2014 (1) TMI 1535
Power to review / recall its own order - Eligibility for deduction u/s 80IB - Held that:- The Tribunal has remanded the matter to the file of AO for re-examining of details of claim made by the assessee - The Tribunal is a final fact finding authority and in view of Court the order of the Tribunal is correct and conscious decision have been made by them - It is well settled that statutory authority cannot exercise power of review unless such power is expressly conferred - There is no express power of review conferred on this Tribunal. Even otherwise, the scope of review does not extent to re hearing of the case on merit - The Tribunal could not readjudicate the matter under section 254(2) - The scope and ambit of application of section 254(2) is very limited restricted to rectification of the mistakes apparent from the record - Power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified - Decided against petitioner.
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2014 (1) TMI 1534
Income from sale of shares - Capital gains or business income - Held that:- The assessee has been investing in shares in earlier years and Revenue has accepted the same as income from capital gains - Following the Rule of Consistency the same should be accepted in this year also - In the absence of any material change, the Revenue should not have taken a different view - Decided against Revenue. Interest income - Income from business or income from other sources - Held that:- The assessee has been disclosing interest income consistently as business income - The department has also accepted the same and completed the assessment u/s 143(3) of the Act accepting interest income as business income for the AYs 2003-04, 2004-05 and 2005-06 - There is no change in circumstances of the year under consideration - The CIT(A) has rightly treated the interest income as business income and we confirm the same - Decided against Revenue. Applicability of Rule 8D - Held that:- Relying upon the decision in Godrej & Boyce Mfg. Co. Ltd. vs. DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] - Rule 8D of the Rules as inserted by the I. T (Fifth Amendment) Rules, 2008 w.e.f. 24.3.2008 is prospective and not retrospective - Since the assessment year involved is 2007-08 therefore I hold that Rule 8D will not apply - In certain recent decisions Hon'ble ITAT Kolkata it has been held that expenses to the tune of 1% of the exempt income can be disallowed u/s. 14A - Decided against Revenue. Disallowance of interest payment u/s 14A - Held that:- The payment of interest amounting to ₹ 92,69,529/- has direct nexus and is directly attributable to a particular income, i.e., business income on shares sold held as stock-in-trade - The provisions of Rule 8D(2)(ií) are very clear that the expenditure on account of payment of interest would be covered in the said Rule only if it ís not directly attributable to any particular income or receipt - The interest payment cannot be considered under Rule 8D(2)(ii) - The CIT(A) has rightly deleted the addition - Decided against Revenue.
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2014 (1) TMI 1533
Unexplained deposits - Held that:- The said transaction is a normal business transaction of hire purchase of a vehicle - The payment was received from one in instalments against the hire purchase agreement, which was furnished by the assessee - A further sum was also received from two parties for purchase of vehicle but the transaction could not be materialed - The amount was returned through account payee cheque - The above transactions were duly confirmed by the persons, their income tax returns and bank statements were also filed by the assessee - Decided against the Revenue. Unexplained capital addition - Held that:- The capital has been introduced by way of loan from partners and gift received - Only confirmation from lenders/ donors will not be a sufficient proof of the transactions - It is the onus of the assessee to prove the genuineness of the capital introduced in the firm - The creditworthiness of the lenders/ donor has not been properly examined - The issue has been restored for fresh adjudication by AO.
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2014 (1) TMI 1532
Deduction of tax at source u/s 194C or 194I - Held that:- Relying upon the decision in ITO (TDS) vs. Indian Oil Corporation (Marketing Division) [2011 (11) TMI 31 - ITAT, DELHI] - The arrangement for transportation of petroleum products was essentially a contract for transportation of goods and not an arrangement of hiring of vehicles. In view thereof, tax is required to be deducted at source from the payments to the carrier in terms of provisions of section 194C and not under section 194I - Decided against Revenue.
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2014 (1) TMI 1531
Disallowance of loan credit - Held that:- The CIT(A) passed the order without giving sufficient time to the assessee to file paper book and concludes that the assessee is not interested in prosecuting the appeal and the appeal can be dismissed at the outset - The Tribunal has now restored the matter to the file of AO for fresh adjudication.
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2014 (1) TMI 1530
Whether rental income be treated as Business Income or Income from House Property - Held that:- Decision of co-ordinate bench of the Tribunal in SICOM LIMITED Versus Dy. Commissioner of Income Tax [2014 (1) TMI 1413 - ITAT MUMBAI] followed - Immediately after acquiring the property, the property was not occupied by the assessee for its own use for its business and was let out from the time it was acquired on leave and license basis for a longer period of 33 months each time - The assessee has let out the property by the leave and license agreement dated 31.07.2006 for a further period of 33 months upto 31.01.2009 - The assessee has let out the property for the longer period w.e.f. 21-07-2002 by way of leave and license agreement - The assessee was not involved in day to day management or maintenance of the premises and except giving the property on leave and license basis, there are no complex commercial activities involved in this agreement - rental income has to be treated as income from house property - Decided against assessee. Advisory fees - Held that:- A sum of ₹ 28.32 lakhs had been wrongly booked twice in the accounts of the assessee - The assessee has been taxed twice on this income - The issue has been restored for fresh adjudication. Municipal taxes relating to preceding financial year - Held that:- If the expenditure incurred towards additional municipal taxes and actually paid by the assessee has been disallowed in the subsequent assessment year on the reason that the same were prior period expenses, then the claim must be considered during the financial year under consideration - The issue has been restored for fresh adjudication. Disallowance under section 14A - Held that:- Following Rule of consistency the disallowance has been restricted to 1% of the administrative expenses as decided by the Tribunal in earlier years - Decided in favour of assessee. Write-off of bad debts - Held that:- The assessee was engaged in activity of purchase and sale of shares as business - The loss on shares is thus business loss liable to be written-off u/s 36 - Decided in favour of assessee.
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2014 (1) TMI 1529
Pricing adjustment from total Advertisement, Marketing and Promotion (AMP) expenses - Held that:- Relying on the decision in LG Electronics India Pvt. Vs. ACIT [2013 (6) TMI 217 - ITAT DELHI] - The expense in connection with the sales which do not lead to brand promotion cannot be brought within ambit of 'Advertisement, Marketing and Promotion expenses' for determining the cost/value of international transactions' - The expenses which are in the nature of discount are outside the purview of total composition of AMP expenses for the purposes of determination of their ALP - Decided in favour of assessee. Component of AMP expenses - Held that:- The amount was in the nature of reimbursement of salary paid to sales staff of dealers/distributors, but no material has been shown to substantiate this contention - The correct nature of this amount is not clear - The issue has been restored for fresh adjudication for ascertaining the correct nature of this amount. Disallowance as per section 37(1) - Held that:- The overall AMP expenses are required to be processed as per the mandate of the LG Electronics [2013 (6) TMI 217 - ITAT DELHI] to find out the amount spent towards brand building for the foreign AE and then making addition by way of TP adjustment with appropriate mark-up - The total AMP expenses are segregated into two classes, one benefiting the assessee's business and two, benefiting the foreign AE by way of promotion of the brand. Once the total amount of AMP expenses is processed through the provisions of Chapter X of the Act with the aim of making TP adjustment towards AMP expenses incurred for the foreign AE, or in other words such expenses as are not incurred for the assessee's business, there can be no scope for again reverting to section 37(1) qua such amount to make addition by considering the same expenditure as having not been incurred `wholly and exclusively' for the purposes of assessee's business. - The AO was not justified in observing alternatively that a sum of ₹ 180 crore and odd is not allowable as per section 37(1) of the Act - The issue has been restored for fresh adjudication.
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2014 (1) TMI 1528
Unexplained investment - Held that:- the assessee had been providing short-term advances to various third parties and the amount being returned back by the parties was again being given to others - Relying on the decision in ITO vs Madan Lal Mittal [2006 (5) TMI 305 - ITAT DELHI] - The peak credit could be added in such circumstances - The same amount cannot be taxed multiple times - Decided against Revenue. Excessive deduction u/s 80C - Held that:- The CIT(A) has not considered the issue in proper manner - There was a fresh evidence before the CIT(A)which has not been confronted to the AO - The issue has been restored for fresh adjudication.
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Customs
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2014 (1) TMI 1527
Import of fitness equipment - Under valuation of products - appeal against the order of Customs and Central Excise Settlement Commission - Held that:- Commission did not consider the submissions of the parties at all while dealing with the import from the US, in calculating the freight and insurance component. Para 19 of the impugned order shows that the Commission accepted the petitioner’s argument on this score. However, what are the reasons that impelled the Commission to reject the petitioner’s submissions in para 22 are not known. This opinion betrays an ex-facie error. This does not amount to the petitioner ventilating the grievance by which it is seeking to dissect the findings of fact choosing to retain what is in its favour and rejecting what is not. Simply put, the Commission’s order is silent on the aspect with what the petitioner is aggrieved. Consignments which are in respect of identical goods though from different sources, while there could arguably be justifiable reasons to take a differential approach, in the absence of any spelt-out or considered reasons discernable to the Court or reader, such differential treatment would amount to discrimination – plainly clothing this Court with jurisdiction on this score - matter is accordingly remitted to the Commission limited on this aspect. The Commission shall indicate its position after giving notice to the parties and granting such hearing as is warranted in law - Decided in favour of assessee.
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2014 (1) TMI 1526
Duty Drawback - restriction to allow Cenvat Credit - Merchant exporter - readymade garments purchased from the open market - Circular No. 54/2001-Cus dated 19.10.2001 and Circular No.16/2009-Cus dated 25.05.2009 - Whether the demand is to be sustained in view of para(iv) of Circular 17/97-Cus. and para (vi) of Circular 64/98 though these are not relied upon in SCN - Held that:- We are not inclined to confirm such huge liability for past periods based on Circulars which were in the knowledge of the department and which were not implemented. We would like to rely more on the legal provisions. The only legal provision relied upon is Rule 3 of the drawback Rules. We agree with the interpretation to this Rule given by the Board in Circular 16/2009-Cus. The argument that this interpretation is applicable from date of issue of Circular 16/2009-Cus. Is repugnant to logic because the Rule has remained the same except for amendment on 13-7-2006, to take care of incidence and rebate of Service Tax - Following decision of COMMISSIONER OF CUSTOMS (EXPORT) Versus KULTAR EXPORT [2012 (10) TMI 79 - DELHI HIGH COURT] - order, disallowing Central Excise portion of the drawback, in terms of the adjudicating authority and revisional order is hereby set aside - Decided in favour of assessee.
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2014 (1) TMI 1525
Change in classification of goods - Assistant Commissioner followed the non-speaking order passed by the Commissioner - Held that:- It is seen that neither the order of the Assistant Commissioner passed on the Bill of Entry is appealable before the Tribunal inasmuch as the appeal against the same lies before the Commissioner (Appeals), nor the note-sheet order of the Commissioner which stands followed by the Assistant Commissioner is in appealable form. In any case, we note that the Assistant Commissioner has simply followed the note-sheet instructions of the Commissioner without grant of any opportunity to the appellants to contest the same. As such we deem it appropriate that the proper officer passes a fresh assessment order after extending an opportunity to the appellant to contest the same - Decided in favour of assessee.
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2014 (1) TMI 1524
Restoration of appeal - COD clearance not taken - Held that:- no clearance is required to be taken for pursuing appeal before the Tribunal, the fact that Revenue had not applied for such clearance, will not change the legal position. It is also admitted that there is no time limit for applying to the Committee on Disputes for seeking such clearance. As such, the above fact will not make any difference - Appeal restored.
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2014 (1) TMI 1523
Demand of Additional Duty of Customs u/s 116 - Import of HSD oil - Benefit of Notification No. 43/2002-Cus., dated 19-4-2002 - Held that:- On a perusal of Notification No. 43/2002-Cus., we find that it did not grant exemption from payment of additional duty of Customs leviable under the Finance Act, 1999 as rightly held by the authorities below. As an exemption notification has to be strictly construed, the grounds raised in this appeal are untenable - Decided against assessee.
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Corporate Laws
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2014 (1) TMI 1522
Winding up of company - Inability of PPCL to pay its debts in terms of Section 434(1)(a) - HDFC had not yet amended the petition to bring it under Section 434 (1) (c) of the CA - Held that:- there is no pleading that the notice was sent at the registered office of PPCL by speed post and was not returned unserved and that, therefore, it should be deemed to have been served on PPCL. Consequently, it is not possible for the Court to proceed on that basis and conclude that the company should be deemed to be unable to repay its debts. It cannot be said that the requirement of Section 434 (1) (a) of the CA has been satisfied in the present case - There was sufficient time for HDFC to have done so considering that the DB’s order was passed more than two months ago. Further, there was sufficient time for HDFC to have filed an application to amend the petition on the basis of the information available in the balance sheet of PPCL as on 31st March 2010 and reserve its rights to add further averments on the basis of the information it could have sought from PPCL through the Court - HDFC has not been able to make out a case for proceeding against PPCL under Section 434 (1) (a) of the CA. The orders dated 15th February 2013 and 1st May 2013 are recalled - The OL is directed to restore the possession of the premises, assets and records taken over by him to PPCL through its Managing Director within one week - Decided against Petitioner.
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Service Tax
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2014 (1) TMI 1562
Service Tax Audit under EA-2000 - power to conduct audit - The petitioners-assessees objected and also challenged the vires of Rule 5A(2) of the Service Tax Rules, 1994 interalia on the ground that the provision of Rule 5(A)(2) are contrary to the provision of Section 72 of the Service Tax Act - Held that:- section 72A is applicable, where the assessee is not maintaining the books of account properly to ascertain the liability of the service tax. To determine the correct tax, books will have to be examined and if need be, audited by a qualified Chartered Accountant - accounts will be audited by a Chartered Accountant or a Cost Accountant to be appointed by the Commissioner. In Clause-(2) to Section 72-A of above, it is mentioned that the Chartered Accountant or Cost Accountant will submit a report duly signed and certified by him to the said Commissioner. In Clause-(4), it is mentioned that "the person liable to pay tax shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under sub-section (1) and proposed to be utilized in any proceeding under the provisions of this Chapter or rules made thereunder". Copy of the audit report may be made available to the assessee and a proper opportunity will also provided to him, as per law. It is Commissioner on whose behalf, the officer will collect the material and the Auditor will perform the audit. In any case, the final report duly signed by the Chartered Accountant will be submitted to the Commissioner. In case of Government Autonomous Body, the function of the audit has been assigned to the Comptroller of Auditor General of India - in case of private assessee, the Commissioner will refer the matter to an officer to collect the material or Chartered Accountant for the purpose of audit. Thus, for the purpose of audit, the material can be collected either by the officer authorized by the Commissioner or by the Auditor himself. But, audit will be performed only by the Chartered Accountant - Thus there is no inconsistency in Rule 5A and Section 72-A of the Finance Act, 1994. The said provision is not arbitrary. The manner for conducting the audit is as per the accounting standard provided by the Institute of Chartered Accountant of India. The audit report will be made available to the assessee, as per law - Decided against Appellant.
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2014 (1) TMI 1558
Constitutional validity of Section 65(105) (zzd), Section 65 (105) (zzq) and Section 65 (105) (zzzh) of the Finance Act, 1994 - Levy of the service tax on the works contract and Ready-mix Concrete - Held that:- impugned three provisions pertain, to composite contracts involving erection, commissioning or installation services, commercial or industrial construction as well as construction of residential complexes. Such composite contracts may have service as well as supply components. It is an accepted position that, insofar as the sale/supply of materials is concerned, they fall under Entry 54 of List II of the Seventh Schedule to the Constitution of India and, therefore, fall within the exclusive domain of the State Legislature. This is, of course, to be read with Article 366 (29-A) of the Constitution. It is, therefore, clear that Parliament cannot legislate in respect of the sale of goods component involved in such a composite contract. Service tax, however, falls within the exclusive domain of Parliament. This is under the residual Entry 97 of List I of the Seventh Schedule to the Constitution. We do not find any encroachment by Parliament on the powers of the State Legislature to impose a tax on the sale of goods. The provisions clearly relate only to the service component of the composite contracts referred to in the impugned provisions - The grievance of the petitioner with regard to assessment and computation cannot be equated with the challenge to the constitutional validity of the impugned provisions. It is open to the petitioner to raise issues of computation before the appropriate Adjudicating Authority/Appellate Authority and demonstrate the extent to which service tax can be imposed on the services that are provided by them. To be clear, it is open to the petitioner to demonstrate the extent of the service element included in the composite contract and to pay service tax only on that component - petitioner manufactures the ready-mix concrete and either supplies it to third parties or uses it in its own works. It is not the entire ready-mix concrete which is to be taxed under the provisions of service tax but, only the service element in relation to the use of the ready-mix concrete which would be amenable to service tax - Consequently, the impugned provisions are valid but, are to be applied in the different manner - Decided against assessee.
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2014 (1) TMI 1557
Outdoor catering service - Suppression of facts - Delay in payment - Penalty u/s 78 - Invokation of Section 73 - Applicant was not discharging the service tax liability promptly but they were paying service tax along with interest as applicable with delays ranging from 1 day to 293 days in different months - Held that:- allegations regarding suppression or other ingredients in terms of Section 78 were not raised in the show cause notice. This confirms the position that this is only a case of delay in payment of service tax and not a case of suppression of information - Decided in favour of assessee.
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2014 (1) TMI 1556
Assessable value - Whether the reimbursements are to be taken into consideration while arriving at the assessable value for the purpose of service tax - Held that:- tax has to be paid on the gross amount received - what are costs for inputs services and inputs used in rendering services cannot be treated as reimbursable costs. There is no justification or legal authority to artificially split the cost towards providing services partly as cost of services and the rest as reimbursable expenses - Following decision of Sri Bhagavathy Traders V. CCE, Cochin [2011 (8) TMI 430 - CESTAT, BANGALORE] - Decided against assessee.
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2014 (1) TMI 1555
Valuation of service - Service of manpower supply - Assessee paid tax on the portion of the service charges retained by the appellants - Assessee excluded labour wages and other amount received from the textile mills and SSC Board - Held that:- Section 67 of the Finance Act provides that the assessee is liable to pay service tax on the gross amount received in respect of the service provided. In the present case, the service is of supply of manpower - The appellants are receiving the gross amount in respect of the labour supplied to the service recipient hence in view of the provisions of Section 67 of the Finance Act, the appellants are liable to pay service tax on the gross amount received - Decided against assessee.
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2014 (1) TMI 1554
Penalty u/s 76 & 78 - Simultaneous penalty u/s 76 & 78 - Clearing and Forwarding Agents Services - Goods Transport Agency Services - Whether penalty under Section 76 is imposable when the penalty under Section 78 has been imposed under the Finance Act - Held that:- penalty was imposable under both Section 76 and 78 separately even if offence were committed in the course of same act - Following decision of Bajaj Travels Ltd. Versus Commissioner of Service-tax [2011 (8) TMI 423 - DELHI HIGH COURT] - Decided in favour of Revenue.
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2014 (1) TMI 1553
Demand of service tax - Commercial or industrial construction services - Whether construction of hospital is a commercial or industrial construction - Held that:- In view of the clarification issued by the Board at the time of introducing levy on the impugned service and also different classifications being adopted by the State Governments for approvals, the appellant cannot be prima facie faulted for having entertained a bonafide belief that their activity was not taxable. Therefore, we consider it proper to waive the requirement of pre-deposit for hearing the appeal - Stay granted.
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2014 (1) TMI 1552
Rectification of mistake - Change in cause of title - Held that:- Registry is directed to correct the cause title insofar as the words written Commissioner of Central Excise, Chennai IV Commissionerate would be substituted by Commissioner of Service Tax, Chennai. The assessee is also directed to mention the correct cause title in further proceedings - Rectification granted.
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2014 (1) TMI 1551
Demand of service tax - Denial of CENVAT Credit - Refund of Cenvat Credit - Assessee 100% Export Oriented Unit - Service Tax Registration Certificate not submitted - Whether the refund claimed by the respondent for certain unutilized amount of CENVAT credit taken on input services which were claimed to have been used for export of output service during the material period can be denied on the sole ground that they had not taken registration before the date on which the output service was introduced as a taxable service - Held That:- Following decision of mPortal India Wireless Solutions (P.) Ltd. Versus Commissioner of Service Tax [2011 (9) TMI 450 - KARNATAKA HIGH COURT] - Stay denied.
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2014 (1) TMI 1550
Denial cenvat credit of Service tax paid on warehousing outside India under reverse charge - Waiver of Pre-deposit – Held that:- As per the Board’s Circular dated 27-6-2008, credit cannot be denied - Prima facie the applicants are entitled to CENVAT credit on services tax – Pre-deposits waived till the disposal – Stay granted.
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2014 (1) TMI 1549
Cenvat credit availed - Services of manpower supply used for development and maintenance of the green belt – Waiver of Pre-deposit – Held that:- The permission given to the appellant by the Ministry of Environment for expansion of their production capacity is subject to condition that the appellant unit maintains 33% of the plant area as green belt - Since this is the statutory requirement and without fulfilling the same, the appellant unit would not be allowed to carry out manufacturing activity, the services of manpower supply used for the maintenance of the green belt have nexus with the manufacture of the final product – thus, they would be eligible for Cenvat credit - Following Millipore India Ltd. v. CCE, Bangalore-II [2008 (11) TMI 97 - CESTAT, BANGALORE] and Kirloskar Oil Engines Ltd. v. CCE, Aurangabad [2010 (6) TMI 210 - CESTAT, MUMBAI] – the order for denial of the Cenvat credit and imposing penalty on the appellant, is set aside – Decided in favour of Assessee.
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2014 (1) TMI 1516
Demand of service tax - Receipt of consulting engineer service or work order - Held that:- as per the provisions of Section 65(31) of the Finance Act, 1994, ‘consulting engineer' means any professionally qualified engineer or an engineering firm who either directly or indirectly render any advice, consultancy or technical assistance to a client in one or more disciplines of engineering - provider of service has not provided any advice on consultancy or technical assistance rather as per the work order, the provider of service has undertaken the activity of cleaning of para xylene plant and the activity undertaken by the service provider involves radiation and convection using equipments like spraying ejector, steam ejector, nozzles with hoses and air compressors - Decided against Revenue.
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Central Excise
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2014 (1) TMI 1561
Rejection of rebate claim - Rule 18 - Notification No. 19/2004-C.E. (N.T.), dated September 6, 2004 - Period of limitation of 6 months - Held that:- On a reading of the Notification No. 40/2001 there is nothing to show that the time stipulation cannot be extended retrospectively, after the export, having regard to the facts of a particular case. The benefit of drawback has, in numerous case, been allowed notwithstanding the delay in export. This in itself shows that the respondent authorities have proceeded on the basis that the time stipulation of six months is not inflexible and the time stipulation can be condoned even at the time of consideration of an application for refund/drawback - When there is proof of export, the time stipulation of six months to carry out export should not be construed within pedantic rigidity. In this case, the delay is only of about two months. The Commissioner should have considered the reasons for the delay in a liberal manner. It would perhaps be pertinent to note that an exporter does not ordinarily stand to gain by delaying export. Compelling reasons such as delay in finalization and confirmation of export orders, cancellation of export orders and the time consumed in securing export orders/fresh export orders delay exports - What is important is, the reason for delay. Even after export extension of time may be granted on the same considerations on which a prior application for extension of time to carry out export is allowed. If there is sufficient cause for the delay, the delay will have to be condoned, and the time for export will have to be extended. In my view, in considering the causes of delay, the Commissioner would have to take a liberal approach keeping in mind the object of the duty exemption, which is encouragement of exports - The impugned revisional order is set aside and quashed - Decided in favour of assessee.
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2014 (1) TMI 1521
Waiver of pre deposit - Whether the Hon'ble Tribunal was justified in demanding Rs. One lac in compliance of section 35F of the Central Excise Act 1944 on the Application pending before the Commissioner (Appeals) specially when the Commissioner (Appeals) had dispensed with the condition of predeposit prior to remand - Held that:- appellant had an order of dispensation of pre-deposit of the amount in its favour during the pendency of the proceedings before the Commissioner (Appeals). The Tribunal found it appropriate to remand the proceedings back to the Commissioner (Appeals) for reconsideration. Save and except recording the submission of the revenue that a direction for deposit should be made, the Tribunal has not furnished any independent ground for modifying the position which obtained during the pendency of the proceedings before the Commissioner (Appeals). Hence, though the Tribunal undoubtedly did have the power under Section 35-C to issue an appropriate direction while remanding the proceedings, no reason has been furnished by the Tribunal for ordering the deposit - Commissioner (Appeals) directed to decides the appeal on merits - Decided party in favour of assessee.
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2014 (1) TMI 1520
Availment of CENVAT Credit - Area of the factory as well as the consumption of electricity does not suggest manufacturing of the final products, as shown by the petitioner, for which CENVAT Credit is availed - Non compliance of pre deposit order - Held that:- There is no quarrel to the proposition that it is within the discretionary powers of the Tribunal to grant total waiver of the duty demanded and the penalty levied provided it records the reasons relating to undue hardship of the applicant as well as safeguard the interest of the revenues. If the decision of the Tribunal is accepted by the department in some other cases and have been uniformly applied, taking a different view, without indicating the factual difference and/or the special facts may lead to unsettle the settled proposition. From the show cause notice as well as the finding made by the Tribunal it would be evident that the authorities found that there is existence of a factory with plants and machinery. What is stated by the department is that the aforesaid plants, machinery and other infrastructure cannot support the manufacturing activities to such a large extent as has been shown by the petitioner to have been done during the relevant period. Therefore, in view of the aforesaid facts, this Court does not find that it could at all be said that there was never any manufacturing activities undertaken by the petitioner in the said factory but leads to presumption that some manufacturing activities have been undertaken and in absence of any cogent and counter evidence it would further lead to a presumption that the closure was made, as has been contended by the petitioner - approach of the Tribunal, in dealing with the application for waiver of the pre-condition deposit, is not at all appreciable. This Court, therefore, quashes and sets aside the order dated 24th February 2012. Since the second order dated 15th May 2012 is dependent upon the order dated 24th February 2012, the same cannot stand independently and is also accordingly quashed and set aside - Decided in favour of assessee.
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2014 (1) TMI 1519
Insertion of Explanation in the notification - Whether Retrospective of Prospective - Whether Clarificatory or declaratory - Whether the Tribunal is right in holding that the Explanation to Notifications 16/97CE dated 1.4.97 and 38/97 dated 27.6.97 would have prospective effect, in spite of settled position of law that any Explanation to a Rule or Section is only clarificatory in nature and would have retrospective effect - Held that:- inputs as well as the finished goods manufactured by the assessee answer the description of the 'specified goods' - for the purposes of computing the aggregate value of clearances under the notification, the clearances of excisable goods which are chargeable to 'nil' rate of duty or which are exempted from the whole of duty of excise leviable thereon by any notification issued under sub-rule (1) of Rule 8 of the Rules shall not be taken into consideration. In this case, as the finished goods are, admittedly, exempted under Notification Nos.155/1986, 160/1986 and 124/1988, the value of the exempted finished goods will have to be excluded in arriving at the aggregate value for the purposes of the notification. Rationale behind the insertion is that when the specified goods are chargeable to nil rate of duty or exempted under any notification, as the case may be, the specified goods used as inputs are not treated as exempt under clause (c) of Paragraph 3, in which event, they should form part of the aggregate value of clearance. Thus the question of further relief being granted by excluding the inputs from the aggregate value was sought to be set right, so that the notification prescribing the slabs would be more meaningful, but till such time such insertion was made and in the absence of any specific provision restricting the scope on the specified goods with reference to their chargeability to nil rate of duty or exempt from the whole of duty under any other notification, paragraph 3, as it existed during the relevant point of time, cannot, in any manner, be read down - notification No.69 of 1997 dated 03.12.1997 inserting clause (f) in Explanation to paragraph 5 is only prospective in nature and consequently would not be of any relevance to the case on hand - Decided against Revenue.
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2014 (1) TMI 1517
Availment of CENVAT Credit - Whether the items Panel Board and PVC Cables which do not participate in the manufacturing process can be said to fall within the definition of Capital goods under Rule 57 Q of the Central Excise Rules, 1944, at the relevant time and accordingly availed credit as provided under the said Rule - Held that:- "goods" which are mentioned in the question referred to us would come within the term "capital goods" envisaged in this provision and therefore the assessee is entitled for the MODVAT credit on these items. Indeed the definition of "capital goods" is comprehensive in nature and therefore we do not have any scintilla of doubt in our mind that Panel Board and PVC cables which do not participate in the manufacturing process and are only used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final product would be included in "capital goods" and hence the assessee is entitled for MODVAT credit on these items - Following decision of CCE v. Jawahar Mills Ltd. [2001 (7) TMI 118 - SUPREME COURT OF INDIA] - Decided against Revenue.
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CST, VAT & Sales Tax
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2014 (1) TMI 1560
Maintainability of appeal u/s 78 - Held that:- it is required to be noted that what was challenged before the learned Tribunal was the order passed by the Commissioner in exercise of suo motu revisional powers under Section 75 (1)(a) of the Act. The Commissioner did not exercise the revisional powers on any application and as stated above exercise the suo motu revisional powers. Under the circumstances considering Section 75(1)(b) of the Act against the order passed by the Commissioner passed in exercise of suo motu revisional powers only revision application before the learned Appellate Tribunal was maintainable and therefore, as such the learned Appellate Tribunal rightly entertained the revision applications and has rightly passed the impugned judgment and order in exercise of the revisional jurisdiction. That being so considering Section 78(1) of the Act and as the impugned order passed by the learned Appellate Tribunal is passed in revision applications shall not in appeal and therefore, Tax Appeal before this Court under Section 78(1) of the Act would not be maintainable. Considering Section 78(1) of the Act an appeal shall lie to the High Court from every order passed in Appeal by the Tribunal. In view of the above, it is held that the present appeals preferred under Section 78(1) of the Act would not be maintainable - Following decision of State of Gujarat v. Shakti Containers [2014 (1) TMI 674 - GUJARAT HIGH COURT] - Decided against Revenue.
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2014 (1) TMI 1559
Rejection of books of account - Determination of turnover of the applicant - Non summoning the records of the excise department despite specific request merely on the basis of surmises and conjectures - Held that:- assessee had tried to place an agreement with other parties and had also produced copies of the agreements, which were not duly signed and simply on the ground that the place of settlement or agreement and issue of the stamp paper was not shown in some cases, were not acceptable as evidence to proof that the assessee was not the holder of the trade mark - matter be remanded to the assessing authority to reconsider the matter on the three questions above. He may give to the assessee an opportunity of hearing to the assessee to lead evidence that he may have to establish its case. On remand the matter may be examined and decided within a period of three months from the date of production of a certified copy of this order being placed by the assessee - Decided in favour of assessee.
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2014 (1) TMI 1518
Demand of license fees - Petitioner at the time of application for grant of liquor licence had submitted a plan wherein the areas including the bar area were distinctly shown. On the basis of the said application, the licence in the category of L-5 was granted and the licence specifically mentioned "Orbit Bar" attached to dining hall of "Orbit, Mandarian and Gulnar Restaurants" - However, Orbit Bar was located on the ground floor in the centre of Hotel Janpath and on three sides around the Bar, there was space for restaurants and on the fourth side there was a passage. The entire area where the bar and the restaurants were situated were interconnected and there was no door fixed to separate them from each other - Collector of Excise held that the licencee was required to deposit licence fee for two other restaurants. Held that:- Order dated 08.05.1992 and the consequent memorandum dated 09.06.1992 are not sustainable. The order dated 01.04.1985 was passed pursuant to the first show cause notice that had proposed two actions. Firstly, deletion of two out of three restaurants and secondly recovery of additional licence fee for the period the three restaurants were run by the petitioner as attached to the ORBIT Bar in terms of the licence granted by the respondents - Collector of Excise only deleted names of the two restaurants that had been inadvertently allowed and treated as attached with the 'Orbit Bar'. No penalty or direction for payment of any licence fee for the said two restaurants was passed. Adjudicating authority upon examination and due consideration, did not think and consider appropriate to levy penalty, or direct deposit of any additional licence fee. To this extent proceedings were dropped, in favour of the petitioner. Apparently the authority felt that the error or mistake was of the department and no fault could be attributed to the petitioner. The order dated 01.04.1985 was complied with and had become final. The order did not find wrong doing on the part of the petitioner but holds that the restaurants were added inadvertently - while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially. The Collector of Central Excise while adjudicating upon the first show-cause notice was clearly performing quasi judicial function. There is no power of review conferred upon the Collector of Central Excise to review the order dated 01.04.1985 of the nature passed on the first show-cause notice. The collector thus could not have issued a second show cause notice and that also after a gap of about 5 years. The first show-cause notice required the Petitioner to show-cause as to why additional license fee be not charged but the same was not charged and this amounted to dropping of the show-cause notice to that extent. The Order dated 01.04.1985 also records that the three restaurants were inadvertently attached to the bar - order dated 08.05.1992 and the consequent demand raised by the respondents vide memorandum dated 09.06.1992 are not sustainable and are hereby set aside. In case, the petitioner has paid or deposited any amount pursuant to the interim order of this Court dated 19.06.1992 for stay of the memorandum dated 09.06.1992, the petitioner shall be entitled to refund of the same with interest @ 12% per annum - Decided in favour of assessee.
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Indian Laws
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2014 (1) TMI 1548
Request for information - Inspection of documents - Right to information - Held that:- The files to be shown to him for inspection are also those which clearly deal with both these subjects, once again, as on the reference dates. The Appellant is not entitled to see any other file except exactly those which deal with both the subjects and with reference to the dates mentioned by him. It is the duty of the CPIO to find out the exact files and to show him, and secondly, if required, to provide the photocopies of relevant records - The Right to Information (RTI) Act provides for the appointment of up to 10 Information Commissioners. If this is deemed to be the sanctioned strength, the vacancy on a particular date will be calculated with reference to the number of Information Commissioners already in position on that date. Similarly, the staff strength of the CIC is sanctioned by the appropriate government. Therefore, the vacancies in various categories of staff on any reference date can be worked out by subtracting the number of staff already in position from the total number sanctioned. Inspection must be completed in a reasonable time period. Be that as it may, in the present case, if there are files which have not been inspected due to whatever reason, those must be shown to the Appellant for inspection. We would, therefore, like to direct the CPIO to invite the Appellant on any mutually convenient date within 15 working days of receiving this order and to place before him the remaining files, strictly relevant to the information sought, for his inspection. Needless to say, after such inspection, if the Appellant would choose to get the photocopies of some documents, the same should be provided to him free of charge - Decided in favour of appellant.
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