Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
January 4, 2016
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Highlights / Catch Notes
Income Tax
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Deemed dividend u/s 2(22)(e) - non deduction of TDS - looking to large number of adjustment entries in the accounts between two entities, the amounts were not in the nature of loan or deposit, but merely adjustments, application of section 2(22)(e) of the Act would not arise - HC
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Clarification on the question of liability to deduct tax at source arising out of the amended section 194A w.e.f 01.06.2015 - TDS on interest on payment of compensation awarded by the Motor Accident Claims Tribunals to the claimants - This Court would not act as advisory jurisdiction in abstract. - HC
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Additional Depreciation u/s 32 - claim of 10% (50% of 20%) in the first year and balance 10% in the second year - the balance 10% additional deduction can be availed in the subsequent assessment year, otherwise the very purpose of insertion of Clause (iia) would be defeated because it provides for 20% deduction which shall be allowed. - HC
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Disallowance of set off of brought forward loss from transfer of short-term capital asset against gains arising from transfer of long-term capital asset - provisions of Section 74(1)(a) clearly stipulates that carried forward losses arising from transfer of shortterm capital asset can be set off against income from capital gains assessable for the assessment year in respect of any other capital asset - AT
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Gain arising on sale of agricultural land - exemption u/s 2(14) denied - assessee has held the impugned agricultural lands as investment only and not as stock in trade, and hence they cannot be categorized as “Capital asset” within the meaning of sec. 2(14) of the Act - AT
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MAT computation - exclusion of income of SEZ unit while computing Book Profit u/s 115JB - book profit computed under section 115JB will not include income of SEZ Unit - AT
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TDS u/s 195 - non deduction of TDS on leasing charges paid to the non-resident company - In view of the DTAA, lease rental received by M/s Crono Containers Ltd, from the assessee is not taxable in India, therefore, there is no liability for the assessee to deduct tax u/s 195 of the Act - AT
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Disallowance of key man insurance premium paid - it is not known how the payment of ₹ 10 lakhs towards premium is going to protect the assessee-company from adverse financial effects in case of unexpected death of the Managing Director. When the assessee-company is not eligible to make a claim since the keyman insurance policy holder is holding more than 51% of the shares in the company, this Tribunal is of the considered opinion that such a expenditure was not for business purposes. - AT
Indian Laws
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Any payment to non-resident if taxable in India, TDS will be deducted @20% in absence of PAN
Service Tax
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Refund of service tax - period of limitation - whether protest is required to submitted at every time of making payment of service tax - Held No - it is not understood why the department had been insistent on separate written protest for each payment against the said services which were not liable for payment of service tax. - AT
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Levy of service tax on incentive received - the same is more in the nature of a prize money for a good performance by the appellant and are in no way linked to the value of the services. - AT
Central Excise
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Duty demand - Manufacture of transmission assembly - Captive consumption - during the period 1996-1998, the tractors with capacity of less than 1800 cc were exempt - demand set aside on the ground of period of limitation as it is not sustainable to allege suppression of facts or wilful mis-statement on the part of the appellants - AT
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Cenvat Credit - assessee is entitled to Cenvat credit on services received in the manufacture of absolute alcohol or rectified spirit, which have been further used for manufacture of denatured spirit, cleared on payment of duty - AT
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Duty demand - shortages in inputs received and goods which are part of work in progress - the finding that cenvat credit available on ingots is to be reversed is without any basis and, in any case, the final confirmation of demand of duty on castings using such finding is totally misplaced - AT
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Cenvat Credit - input used for manufacture of capital goods to be used captive - Mere allegation that impugned goods are used in foundation or construction platform is not sufficient to deny the benefit - AT
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Confiscation of goods where the duty has been set aside on the ground of period of limitation - othing survives for holding that the goods are liable to confiscation. - AT
VAT
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Recovery of tax when the appeal is pending before the appellate authority - deposit of 50% dues followed by Bank guarantee - appeals are to be disposed of within a stipulated time and the recovery proceedings shall be kept in abeyance till the disposal of the appeals - HC
Case Laws:
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Income Tax
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2016 (1) TMI 85
Reopening of assessment - Held that:- Assessing Officer had pressed in service two elements for issuing notice for reopening. First was with respect to the disallowance of expenditure under section 14A of the Act. Such issue was examined by the Assessing Officer in the original order of assessment and made suitable disallowances. The Tribunal therefore, correctly held that any reconsideration of the issue would only amount to change of opinion. With respect to the second element namely, of non addition of FBT benefit tax while considering the book profit for the purpose of section 115JB of the Act, the Tribunal noted that the CBDT in the circular dated 29.8.2005 clarified that FBT is an allowable deduction for computation of book profit under section 115JB of the Act. That being the position, the Tribunal was correct in holding that the reopening was invalid. - Decided in favour of assessee
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2016 (1) TMI 84
Deemed dividend u/s 2(22)(e) - non deduction of TDS - ITAT cancelling the order passed u/s 201(1) and 201(A) - Held that:- Commissioner as a matter of fact found that the payments were not in the nature of current adjustment. There was movement of fund both ways on need basis. The transactions in the nature of loans and advances are usually very few in number whereas in the present case, such transactions are in the form of current accommodation adjustment entries. The Commissioner therefore, held that the transactions were not in the nature of loans and advances. The Revenue carried the matter in appeal. The Tribunal concurred with the view of the CIT (Appeals) and held that the amounts were not in the nature of Inter Corporate Deposits and were therefore, not to be treated as loans or advances as contemplated in section 2(22)(e) of the Act. The issue is substantially one of appreciation of facts. When the CIT(Appeals) as well as Tribunal concurrently held that looking to large number of adjustment entries in the accounts between two entities, the amounts were not in the nature of loan or deposit, but merely adjustments, application of section 2(22)(e) of the Act would not arise - Decided against revenue
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2016 (1) TMI 83
Clarification on the question of liability to deduct tax at source arising out of the amended section 194-A - Tax Deducted at Source in view of the amendment introduced in Section 194A by Finance Act, 2015 with effect from 01.06.2015 - writ in the nature of mandamus - Held that:- This Court would not act as advisory jurisdiction in abstract. Surely, the insurance companies have access to expert legal advise. As an agency required to deduct tax at source under the Act, it is their duty to avail of such legal advise and follow the requirements of statute. Unless and until a concrete case comes before the Court where not only declaration of two interpretation of law but consequential directions can also be issued, we would not undertake the exercise of interpreting statutory provisions for advising the insurance companies as to how they should manage their affairs in the changed scenario under the amended statutory provision. - Decided against assessee
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2016 (1) TMI 82
Penalty under Section 271(1)(C) - concealed income as detected by the Department during the survey - ITAT deleted the penalty - notice under Section 148 of the Act was issued, finding no other alternative the assessee surrendered income to avoid penal consequences - Held that:- Since admittedly the revised return for the said assessment year was filed by the assessee before issuance of notice under section 148, we are of the view that the order of the Tribunal requires no interference. The judgement in CIT v. Smt. Sova Bajoria (1997 (12) TMI 88 - CALCUTTA High Court ), relied on by Mr.Bhowmik is inapplicable as therein the assessee had filed the second revised return after the assessment proceedings had begun, unlike the case in hand, where the proceedings under section 148 were yet to begin.The appeal is not admitted. - Decided against revenue
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2016 (1) TMI 81
Additional Depreciation u/s 32 - claim of 10% (50% of 20%) in the first year and balance 10% in the second year - Whether the Tribunal is correct in extending the benefit of Section 32(1)(iia) of the Act to the next assessment year when the income tax Act does not provide for such carryover, thereby violating the legal principles of "cassus omissus" which states that the courts cannot compensate for what the legislature has omitted to enact? - Held that:- The language used in Clause (iia) of the said Section clearly provides that "a further sum equal to 20% of the actual cost of such machinery or plant shall be allowed as deduction under Clause (ii)". The word "shall" used in the said Clause is very significant. The benefit which is to be granted is 20% additional depreciation. By virtue of the proviso referred to above, only 10% can be claimed in one year, if plant and machinery is put to use for less than 180 days in the said financial year. This would necessarily mean that the balance 10% additional deduction can be availed in the subsequent assessment year, otherwise the very purpose of insertion of Clause (iia) would be defeated because it provides for 20% deduction which shall be allowed. Beneficial legislation, as in the present case, should be given liberal interpretation so as to benefit the assessee. In this case, the intention of the legislation is absolutely clear, that the assessee shall be allowed certain additional benefit, which was restricted by the proviso to only half of the same being granted in one assessment year, if certain condition was not fulfilled. But, that, in our considered view, would not restrain the assessee from claiming the balance of the benefit in the subsequent assessment year. The Tribunal, in our view, has rightly held, that additional depreciation allowed under Section 32(i)(iia) of the Act is a one time benefit to encourage industrialization, and the provisions related to it have to be construed reasonably, liberally and purposively, to make the provision meaningful while granting additional allowance. We are in full agreement with such observations made by the Tribunal. - Decided in favour of assessee
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2016 (1) TMI 80
Disallowance of set off of brought forward loss from transfer of short-term capital asset against gains arising from transfer of long-term capital asset - Held that:- As seen from the explanatory notes to Finance Act, 2002 , the loss arising from transfer of short-term capital asset can be set off against any capital gains, whether short-term capital gains or long-term capital gains . It further stipulated that the anomaly existing due to long-term capital gains being subject to lower rate of tax, are hence-forth allowed to be set off only against long-term capital gains. Hence, the contentions of Revenue in this respect as advanced in this appeal cannot be accepted. Similarly , the contention of the revenue that short-term capital loss cannot be set off against long-term capital gains due to difference in tax rate can also not be accepted because of the provisions of Section 74(1)(a) of the Act which clearly stipulates that carried forward losses arising from transfer of shortterm capital asset can be set off against income from capital gains assessable for the assessment year in respect of any other capital asset. Assessee company has rightly claimed the set off of brought forward loss arisen from the transfer of short-term capital asset incurred during the assessment year 2009-10 to be set off against the gains arising from transfer of long-term capital asset earned during the previous year relevant to the assessment year 2010-11 which has been wrongly denied by the A.O. and confirmed/sustained by the CIT(A). Hence, we set aside the orders of authorities below and direct for allowing the set off. - Decided in favour of assessee
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2016 (1) TMI 79
Gain arising on sale of agricultural land - exemption u/s 2(14) denied - Held that:- In the instant case, it is an admitted fact that the land was an agricultural land. The absence on the part of the assessee to carry on agricultural activities shall not support the case that the assessee intended to hold the same as trading asset. Accordingly, we are of the view that the absence of agricultural activity, per se, will not be useful to determine the intention of the assessee. the intention of the assessee at the time of purchase of lands cannot be held to be holding the same as stock in trade. Accordingly, we agree with the contentions of the Ld A.R that the assessee has held the impugned agricultural lands as investment only and hence they cannot be categorized as “Capital asset” within the meaning of sec. 2(14) of the Act. Hence the gains arising on sale of the same is not liable for taxation under the provisions of the Act. Even though the assessee has initially declared the same as short term capital gain, yet the same is required to be corrected, since there is no estoppels against the law. Accordingly, we set aside the order of Ld CIT(A) and direct the AO to exclude the gains arising on sale of impugned land from the total income of the assessee for the year under consideration. - Decided in favour of assessee
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2016 (1) TMI 78
Ad hoc disallowance of advertisement and sales promotion expenses - Held that:- It is undisputed fact that percentage of expenses on advertisement and sales promotion with reference to sale of substantial increase compared to preceding year. In immediate preceding year, these expenses were at 10.96% on sale and in current year it increases at 14.11% on sale. The reply submitted by the assessee further shows that in A.Y. 2006-07 and this ratio has increased at 16.05% but no disallowance has been made by the Assessing Officer. Even the assessee’s sale has gone down from ₹ 454 crores in preceding year i.e. 2005-06 to ₹ 412 crores in A.Y. 2006-07. Therefore, there is no correlation between the expenses incurred and sale increased or decreased. The assessee incurred these expenses for penetration of the market and to increase the sale with the help of experts in the line of marketing. It is not necessary that the expert opinion always worked in positive line. The assessee is a multinational company and their share holders are not directly involved in the ordinarily activity of the business of the company. The assessee has submitted all the details of advertisement and sales promotion expenses in CD form and in form of hard copy it was rendering into around 600 pages on for details. Each and every voucher has been maintained by the assessed as there is an audit has been made by the auditor and not qualifying comment had been made by him under this head. The ld Assessing Officer also even not made any addition in A.Y. 2006-07 under this head where the ratio of expenses increased up to 16.05%. In other year also i.e. A.Y. 2007-08 and 2009-10, the ld Assessing Officer has not disallowed any amount from this head on the ground that the assessee had not incurred these expenses wholly and exclusively for the business purposes - Decided in favour of assessee.
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2016 (1) TMI 77
MAT computation - exclusion of income of SEZ unit while computing Book Profit u/s115JB - Held that:- In view of the decision of the co-ordinate bench of the Tribunal in assessee's own case [2012 (12) TMI 491 - ITAT MUMBAI ] holding that book profit computed under section 115JB will not include income of SEZ Unit, we do not see any infirmity in the order of the learned Commissioner (Appeals) in directing the Assessing Officer to exclude the income of the SEZ Unit while computing book profit under section 115JB of the Act. - Decided against revenue.
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2016 (1) TMI 76
Penalty u/s 271(1)(c) - unexplained investments in relation to jewellery found during the course of search action - Held that:- There is no dispute that quantum addition has been deleted by the Tribunal, therefore, in our humble opinion, the ld. Commissioner of Income tax (Appeals) is not justified in confirming the penalty. Admittedly, the impugned order is dated 07/10/2013, whereas, the order of quantum addition of the Tribunal is dated 31/07/2015, meaning thereby, the order of the Tribunal was even not even existence. Our view further finds support from the decision and the ratio laid down in CIT vs S.P Viz Construction company (1988 (10) TMI 24 - PATNA High Court ) and K.C. Builders vs ACIT (2004 (1) TMI 7 - SUPREME Court). We are of the view where the penalty for concealment or furnishing inaccurate particulars was levied and after deleting the quantum addition, there remains no basis at all for levying the penalty. Ordinarily, penalty cannot stand in itself if the addition made in the assessment itself is set aside or cancelled by the superior authority/Court. The penalty cannot stand by itself because false result may be produced by the falsity of one or more of the constituent items in the return. The word ‘inaccurate particulars’ would cover falsity in the final figure and also the constituent elements or items. They simply would mean inaccurate in some specific or definite respect whether in the constituent or subordinate items of income or the end result. Concealment or furnishing inaccurate particulars implies some deliberate act on the part of the assessee in withholding the true facts from the authorities. Since, the basis of levying penalty remains no more in existence, after deletion of quantum addition, therefore, from this angle, the stand of the ld. Commissioner of Income tax (Appeals) is not sustainable. - Decided in favour of assessee.
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2016 (1) TMI 75
TDS u/s 195 - disallowance of export sales commission paid to non-resident - non deduction of TDS - disallowance u/s 40(a)(i) - CIT(A) deleted the disallowance - Held that:- In the present case, the assessee has not established the facts on record that the non-resident has rendered services at abroad and there is no business connection in India by producing relevant records, viz., either agreement entered into by the assessee with them or correspondence took between the parties. Without examining these details, we are not in a position to decide the nature of services rendered by the non-resident agent. Therefore, it is appropriate to remit the entire issue back to the file of the AO with direction to the assessee to prove that it was sales commission towards procurement of orders from abroad. Accordingly, the entire issue is remitted back to the file of the AO for fresh consideration and the AO is directed to make necessary enquiry regarding the nature of services rendered by the non-resident agent and the payments made thereof. - Decided in favour of revenue for statistical purposes.
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2016 (1) TMI 74
Reopening of assessment u/s 147 - assessee has not filed any details with regard to payment made to non-resident and the details of tax deducted at source - Held that:- Even after a specific questionnaire was issued to the assessee by the Assessing Officer during the course of regular assessment proceedings, the assessee could not furnish the name of the recipient, nature of payment and the details of tax deducted at source. Therefore, as rightly found by the Assessing Officer, there was a negligence on the part of the assessee in furnishing fully and truly all the material facts relevant for completing the assessment.There is no discussion about the expenditure incurred by the assessee with regard to payment of lease rentals to non-resident and the claim of depreciation. Therefore, it is obvious that the Assessing Officer has not formed any opinion with regard to this issue. When the Assessing Officer has not formed any opinion, it cannot be said that there was a change of opinion as found by the CIT(A). - Decided against assessee Disallowance of marketing commission fees paid to overseas parties - Held that:- The claim of the assessee is that the assessee has taken container on lease and used the same for his leasing business. The copies of the agreement entered into between the assessee and M/s ABC Containers Pvt. Ltd. Colombo, for taking containers on lease or the services to be provided by M/s ABC Containers Pvt. Ltd. Colombo, are not furnished either before the lower authorities or before this Tribunal. The CIT(A) confirmed the addition made by the Assessing Officer on the ground that the assessee has not established that the commission paid to non-resident company was for soliciting business outside India. Therefore, it is obvious that in the absence of any material before the lower authorities, the payment of commission to M/s ABC Containers Pvt. Ltd. Colombo was disallowed. This Tribunal is of the considered opinion that giving one more opportunity to the assessee to produce necessary material before the Assessing Officer may not prejudice the interest of Revenue in any way. The orders of the lower authorities are set aside and the issue of disallowance is remitted back to the file of the Assessing Officer. - Decided in favour of assessee by way of remand. TDS u/s 195 - non deduction of TDS on leasing charges paid to the non-resident company - Held that:- Sub clause (4) of Article 9 clearly says that clause (1) and (2) of Article will apply to income of an enterprise of a Contracting State from the use, maintenance or rental of containers. In this case, the non-resident company, M/s Crono Containers Ltd, UK, admittedly, leased out the container to the assessee and the assessee is paying lease rentals for use of the container belonged to M/s Crono Containers Ltd, UK. Therefore, the lease rental of the container is subjected to tax in the Contracting State namely, UK, in view of Article 9 of the DTAA. It is well settled principles of law that DTAA will prevail over the domestic law namely, Indian Income-tax Act. It is open to the parties to take advantage of the beneficial provisions under the Income-tax Act, 1961, in view of sec. 90(2) of the Act. In view of the DTAA, lease rental received by M/s Crono Containers Ltd, from the assessee is not taxable in India, therefore, there is no liability for the assessee to deduct tax u/s 195 of the Act - Decided in favour of assessee. Disallowance domestication expenses - Held that:- It is not in dispute that the marine container does not belong to the assessee. In fact, the container was taken on lease from M/s Crono Containers Ltd, UK. The nature of expenditure which was claimed as domestication expenses are customer domestication, transportation cost, lease rentals, survey, handling charges etc. When the assessee has taken the marine container on lease, the assessee is duty bound to maintain the container and keep the same to be fit for use. It is also not in dispute that the container taken on lease was in turn used by the assessee in its leasing business. Therefore, as rightly found by the CIT(A), the expenditure incurred by the assessee in the nature of customer domestication, transportation cost, lease rental, survey etc. are regular and recurring expenditure therefore, it is in the revenue field.- Decided in favour of assessee. Disallowance u/s 14A - CIT(A) restricted the disallowance to 2% - Held that:- CIT(A) restricted the disallowance to 2% of the gross exempted income. It is not in dispute that Rule 8D is not applicable for the year under consideration, therefore, this Tribunal is of the considered opinion that the CIT(A) has rightly restricted the disallowance to 2% of the exempted income. This Tribunal do not find any infirmity in the order of the CIT(A). - Decided against revenue Disallowance of key man insurance premium paid - CIT(A) deleted the disallowance - Held that:- As rightly contended by the ld. Counsel, the keyman insurance policy is only to protect the company from adverse financial effects in case of unexpected death of Managing Director. But when the assesseecompany knows very well that no claim could be made on the death of the Managing Director, Shri Bijoy Poulose since he was holding more than 51% of the shares in the company, it is not known how the payment of ₹ 10 lakhs towards premium is going to protect the assessee-company from adverse financial effects in case of unexpected death of the Managing Director. When the assessee-company is not eligible to make a claim since the keyman insurance policy holder is holding more than 51% of the shares in the company, this Tribunal is of the considered opinion that such a expenditure was not for business purposes. The assessee-company has paid the amount knowing fully that they cannot claim any compensation on the death of the Managing Director, Shri Bijoy Poulose. Under those circumstances, such a claim cannot be allowed while computing the total income. The CIT(A) has proceeded on a footing that the insurance company accepted the proposal of the assessee-company and issued the policy. However, he failed to consider that the policy was issued under certain restriction one of which is that the insured person should not hold more than 51% shares of the company. Since this restriction clause was not taken into consideration by the CIT(A), this Tribunal is unable to uphold the order of the CIT(A). Accordingly, the order of the CIT(A) is set aside and that of the Assessing Officer is restored.- Decided against assessee
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2016 (1) TMI 73
TDS u/s 195 - payment to non-resident - TDS either @ 10% or @ 20% - assessee in default - assessee has not produced the Permanent Account Number of the recipients for deducting tax @ 10% - the ld. Representative submitted that the ‘non-resident’ means a person who is not a resident in India. In this case, admittedly, the recipients are not residents in India, therefore, there is no obligation to obtain Permanent Account Number u/s 139A of the Act. Since there was no obligation to obtain Permanent Account Number, according to the ld. Representative, sec. 206AA of the Act is not applicable. Held that:- If the recipient has no taxable income in India then the question of deduction of tax may not arise for the year under consideration. In that case, there is no question of deduction of tax either @ 10% or @ 20%. When the income received by a resident or non-resident, as the case may be, is taxable in India, tax has to be deducted under the provisions of Chapter XVII of the Act. Sec. 206AA of the Act also falls in Chapter XVII. In view of the specific provision in sec. 206AA which provides for deduction of tax @ 20% wherever the recipient failed to furnish the Permanent Account Number, this Tribunal is of the considered opinion that in view of the language used by the Parliament “notwithstanding anything contained in any other provisions of this Act”, sec.206AA would override the other provisions of the Income-tax Act, including sec.139A of the Act. Since admittedly the amount received by the recipient is taxable in India, this Tribunal is of the considered opinion that in the absence of any Permanent Account Number, tax has to be necessarily deducted @ 20%. Therefore, the CIT(A) has rightly confirmed the order of the Assessing Officer treating the assessee as an ‘assessee in default’ - Decided against assessee
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2016 (1) TMI 72
Income from cash deposits - CIT(A) treated as assessee’s business turnover in part and balance as income from other sources - Held that:- CIT (A) was justified in treating ₹ 20 lakhs of cash deposits as assessee’s business turnover since the assessee admitted income of ₹ 7,69,907/- is accepted by the Ld. Assessing Officer. On a turnover of ₹ 20 lakhs, if ₹ 7,69,907/- is treated as net profit, it amounts to Net Profit ratio of 38.5% (7,69,907 x 100 ÷20,00,000) which is fairly acceptable. The Ld. Assessing Officer treatment of ₹ 10 lakhs turnover from the assessee’s waste cotton business would mean that the assessee’s Net Profit ratio is 77% (7,69,907 x 100 ÷10,00,000) which is totally illogical because such profit cannot be derived from cotton waste business. Therefore, we hereby confirm the order of the Ld. CIT (A) on this issue. - Decided against revenue Depreciation claim on windmill - CIT(A) granting 80% deposit on WDV method instead of 7.69% on straight line method in accordance with Section-32(1) Explanation-2 read with Rules 5 (1A) - Held that:- CIT (A) directed the Ld. Assessing Officer to grant depreciation to the assessee as claimed in his return of income filed on 25.05.2009 for the relevant assessment year by following the decision of the Chennai Bench of the Tribunal in the case of M/s.K.K.S.K. Leather Processes P Ltd. Vs. ITO (2009 (11) TMI 556 - ITAT MADRAS-D ) wherein it was held that option under Rule 5(1A) may be exercised in the income tax return filed within the due date and it is not necessary to file options separately, we do not find it necessary to interfere with the order of the Ld. CIT (A) because the Ld. CIT (A) has only followed the decision of the Chennai Bench of the Tribunal. Therefore, we hereby confirm the order of the Ld. CIT (A) on this issue. - Decided against revenue Penalty u/s 271(1)(c) r.w.s. 250 against the cash deposit - CIT(A) deleted penalty - Held that:- In the assessment order the Assessing Officer could not bring any evidence on record to say that to cash deposits were from unexplained sources. It cannot be conclusively prove that the cash deposits were from undisclosed sources. It cannot be concluded as concealed income. In view of this the Assessing Officer is directed to delete the penalty levied on cash deposits. - Decided against revenue
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2016 (1) TMI 71
Reopening of assessment - addition of capital gain - Held that:- Return of income was duly processed and accepted u/s 143(1). Later on, ITO, E 20(3)(4) Mumbai issued a letter dated 03.07.2008 requiring the assessee to furnish certain information which included details of transaction of sale and purchase made by the society in respect of immovable property. In reply, the assessee had submitted the entire details vide letter dated 18th July,2008 and 4th August, 2008 giving the entire details of permission sought from Dy. Registrar Co-op Society authorizing the sale of FSI, and also gave the copy of direction of the Dy Registrar to utilize the fund for ‘specific purpose’. After having received this information, the assessee’s case was not selected for scrutiny and time limit for issuance of notice u/s 143(2) had expired on 30.09.2008. Again a summon was issued by the Investigation on 27.01.2010, mainly requiring the assessee to furnish copy of income-tax return furnished for the last five years and bank statement. Again in response to said summon, the assessee submitted all the requisite details. Now, after all these exercise of seeking information which was already there on record and without there being any tangent material coming on record, the assessee’s case was sought to be reopened on the ground that assessee has received ₹ 1 crore during the relevant financial year from sale of FSI and the entire amount claimed as deduction cannot be allowed. There is no reference in the ‘reasons recorded’ about any material or information coming on record to show that assessee’s claim for deduction is either not tenable or is incorrect and therefore, income chargeable to tax has escaped assessment. Here it is not a question of purely “change of opinion”, on the ground that earlier assessment was completed u/s 143(3) albeit the issue is, when the assessee has made full disclosure in the return of income which has been enquired upon by the Department twice and no further action has been taken, then, without there being any contrary or adverse material on record, reopening u/s 147 can be made without any tangent material indicating escapement of income. There cannot be “reason to believe” on the same set of facts and record, which has been subjected to examination by different Departmental authorities. - Decided in favour of assessee
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2016 (1) TMI 70
Applicability of section 50C on lease hold rights - CIT(A) deleted the addition - Held that:- As the assessee was having only lease hold rights for a period of 60 years, he cannot be considered to be the owner of the property so as to compute capital gain by adopting the market value as per the provisions of section 50C of the Act. In the aforesaid view of the matter, we agree with the decisions of the learned Commissioner (Appeals) in deleting the additions made on account of long term capital gain. - Decided against revenue Short term capital gain in respect of transfer of factory shed - Held that:- the assessee also agreed that certain additional evidences were produced before the learned Commissioner (Appeals) for the first time, however, he submitted that not giving opportunity to the Assessing Officer to examine these evidences had no effect on the ultimate decision of the learned Commissioner (Appeals). Therefore, the Revenue's contention that there is violation of section 46A should not be accepted. Having considered the submissions of the parties, we are of the view that the learned Commissioner (Appeals) has violated provisions of rule 46A by considering additional evidence produced by the assessee without affording an opportunity to the Assessing Officer to examine the same. That being the case, without entering into the merits of legality / validity of computation of short term capital gain, we restore the matter back to the file of the Assessing Officer for deciding afresh after considering all the evidences produced by the assessee and only after due opportunity of hearing to him - Decided in favour of revenue for statistical purposes.
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2016 (1) TMI 69
Addition on the consultancy charges paid to sister concern - CIT(A) deleted the addition - Held that:- As argued by the ld. Departmental Representative that no details are available as to why the present assessee has received the amount on behalf of the sister concern i.e. East Cost consultant from M/s. Commercial Buildwell Pvt. Limited. The facts brought on record do not suggest the reason for the same and services rendered by East Cost consultant to M/s. Commercial Buildwell Pvt. Limited. Being so, in our opinion, it requires re-examination of the issue. We are not in a position to express any opinion regarding the nature of service rendered by East Cost consultant and in the absence of the reason for receipt of the above amount by the assessee on behalf of the East Cost consultant, from M/s. Commercial Buildwell Pvt. Limited. Accordingly, we are not in a position to uphold the of the Commissioner of Income Tax (Appeals) and accordingly this issue is remitted back to the Assessing Officer for fresh consideration. - Decided in favour of revenue by way of remand. Addition being the sale of ancestral property reminded as unexplained - CIT(A) deleted the addition - Held that:- It was brought on record by the Commissioner of Income Tax (Appeals) that the assessee has received this amount from his brother Shri. P. Srinivasan as loan for which the assessee had paid interest thereon. Further, the name of the assessee's mother is typed instead of assessee's brother, is only a typographical error which is to be condoned. Since the assessee's brother Shri. P. Srinivasan has confirmed the loan given to the assessee and the transaction was routed through banking channel, the identity of the lender is proved as well as the genuineness of the transaction. Accordingly, the deletion of addition made by the Commissioner of Income Tax (Appeals) is justified. - Decided against revenue Addition on the cash deposit with Axis Bank being unexplained cash deposits - CIT(A) deleted the addition - Held that:- As narrated by the Commissioner of Income Tax (Appeals) the funds transactions are duly reflected in the books of accounts of the assessee and the assessee also explained the parties from whom the funds were received. Hence, these deposits cannot be claimed as unexplained deposits. In our opinion, the findings of the Commissioner of Income Tax (Appeals) is justified and the same is confirmed. - Decided against revenue
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Customs
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2016 (1) TMI 55
Rectification of mistake - Maintainability - Bar of limitation - Held that:- matter of limitation is squarely covered by the decision of the Hon'ble High Courts of Karnataka and Delhi in the two citations given by the learned AR - ROM application is dismissed due to filing of the same beyond the time limit prescribed under the law - Decided against assessee.
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2016 (1) TMI 54
Penalty u/s 114A and 112 - Held that:- There is only one noticee to whom the show cause notice was issued and adjudication order also has been passed in respect of same noticee i.e. M/s. Star Audio. Revenue has not shown that more than one person/company is involved in the imported goods, therefore it is clear that penalty has been imposed under Section 114A of the Customs Act on the noticee, M/s. Star Audio, therefore appeal is rejected on this count. - Section 114A proviso clearly provides that if penalty has been imposed under Section 114A then no penalty is imposable under Section 112 or 114 - as the goods are not available for the confiscation the question of penalty in lieu of redemption fine does not arise. - Decided partly in favour of assessee.
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2016 (1) TMI 53
Condonation of delay - Delay of 78 days - Held that:- Reason for delay of filing appeal is that Shri Sunil Kumar K., Manager EXIM was under medical treatment for quite long time. We find that no supporting documents were filed alongwith the application. Hence, the application for condonation of delay of filing appeal is rejected - Condonation denied.
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2016 (1) TMI 52
Levy of appeal fee where no duty is involved - dispute is related to classification only - Maintainability of appeal - Held that:- Impugned Order relates to classification only. There is no Order confirming duty or interest or penalty. Therefore, relying on the Larger Bench decision in the case of Glyph International Ltd. vs. Commissioner of C. Ex. &ST, Noida [2013 (8) TMI 17 - CESTAT NEW DELHI] we hold that no fees is payable - Appeal is maintainable.
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2016 (1) TMI 51
Waiver of pre deposit - Held that:- High Court has reduced the predeposit to ₹ 5 lakhs and to report compliance within eight weeks. The order of the Hon’ble High Court [2015 (12) TMI 1034 - MADRAS HIGH COURT] should have been complied on or before 21.6.2015. Since the appellant’s have not complied with the order of the Hon’ble High Court, the appeal is dismissed for non-compliance under section 129E of the Customs Act, 1962. - Decided against Assessee.
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Corporate Laws
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2016 (1) TMI 44
Restraining the Appellants from selling 20,14000 shares of United Breweries Limited (the NDA shares) which were furnished as security under the Non-Disposal Agreement dated 12/11/2011 - appeal against the order of injunction granted by the learned Single Judge delivered in favor of Kingfisher Airlines Limited - maintainability of appeal - Held that:- no prima facie case has been made out by the Plaintiffs for grant of any interim relief and Plaintiff No.1 - United Breweries (Holdings) Limited was duty bound to pay the recompense amount and upon its non-payment of the said total short-fall of ₹ 146 crores, Defendant No.1 - 3i Infotech Trusteeship Services Limited became entitled to sell these shares to recover the said short-fall and to whom Plaintiff No.1 - United Breweries (Holdings) Limited has given Power of Attorney to sell in the event of default being committed by it. Non-payment of short-fall and recompense amount clearly constituted the event of default under clause 9.1 and 10 of the LPA which also has been incorporated under clause 3.1(h ) of the NDA. It is well settled that recitals alone do not spell out the intention of the parties but terms and conditions of the contract and intention of the parties have to be taken into consideration for arriving at any conclusion. The interest component could be converted into equity shares and the loan component would be reduced to 403.72 crores with interest. However, both these components have been fully secured; the loan component by the pledged shares and the top-up shares and equity component by the Fixed Deposit of margosa and 20,14,000 shares of United Breweries Limited which could be sold in the event of default. The questions are answered as follows:- (1) Whether 20,14,000 shares of UBL furnished as security (NDA shares) under Non-Disposal Agreement dated 12/11/2011 was available as security in favour of the Appellants for the payment of their recompense claim arising under Clause 10.1 of the Loan Purchase Agreement dated 21/12/2010? - Held Yes. (2) Whether the Appellants' recompense claim was capable of being collateralised or secured? - Held Yes (3) Whether the NDA shares were given in lieu of top-up obligation under clause 4.1.3 of the Loan Purchase Agreement only? - Held No. Decided in favor of appellant bank.
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Service Tax
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2016 (1) TMI 68
Refund of service tax - period of limitation - whether protest is required to submitted at every time of making payment of service tax - Held that:- there was a continuing deemed protest by the appellant for the service tax paid for the subject services namely authorized free services for the automobiles sold under warranty and the charges for the said warranty of services had been taken from the customers at the time of sale/purchase of the vehicles and on which amount sales tax/VAT had been paid to the State Govt Authorities. When the department has already paid the refund amount for the same services for the two periods as the service tax was not chargeable, it is not understood why the department had been insistent on separate written protest for each payment against the said services which were not liable for payment of service tax. The appellant is entitled to this refund of this amount of service tax, which was not due to the exchequer. - Decided in favor of assessee.
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2016 (1) TMI 67
Valuation - inclusion of value of free supply - works contract - activity of blast hole drilling, controlled blasting with shock tube initiation, excavation, loading, transportation and dumping etc. of over-burden - Held that:- value of diesel supplied by the service recipient free of cost to the assessee, who was providing site formation services, would not be a component of the gross value charged for services provided for the purpose of computation of tax under Section 67 of the Finance Act. - Decided in favor of assessee. Nature of bonus received conservative and efficient use of diesel and explosives - levy of service tax on such incentive received - Held that:- the incentives given by M/s Singareni are for appreciating the appellants performance in utilizing less quantum of oil and explosives. In fact the said incentives were not even known at the time of performance of the service and are always calculated subsequent to the completion of the service. As such it can be safely concluded that the same is more in the nature of a prize money for a good performance by the appellant and are in no way linked to the value of the services. As such we find no justification for including the same in the value of the services and to confirm service tax on the same. - Demand set aside - Decided in favor of assessee.
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2016 (1) TMI 66
Clearing and forwarding agent (C&F agent) services - appellant is a distributor of Indian petrochemicals Corporation Ltd. - Scope of the distributor agreement entered by IPCL and the appellant - Held that:- appellant is required to function as distributor and is required to sell the products at a price as per the list price and remit the sale proceeds to IPCL appellant is responsible for discharge of all sales tax liability as dealer under the relevant clause; is required to sell the products as per distribution norms of IPCL; required to disclose as distributor and effect sales of products of IPCL on appellants own bills. Identical issue in respect of a distributor of IPCL. In more or less of the same kind of agreement was considered by the Tribunal (in majority decision) in the case of Hardik Industrial Corporation [2011 (9) TMI 494 - CESTAT, AHMEDABAD].
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Central Excise
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2016 (1) TMI 65
Denial of CENVAT Credit - manufacture of Packaging Materials - Denial of credit on various input services namely CHA, Banking, Mobile Bills, Pest Control Service, Courier Service and Shipping Service - Held that:- CENVAT credit was denied on various input services namely CHA, Banking, Mobile Bills, Pest Control Service, Courier Service and Shipping Service etc. By the impugned order, the Commissioner (Appeals) observed that these services are not covered within the definition of input service under Rule 2 (l) of CENVAT Credit Rules, 2004. It has also observed that the appellants had not provided any documents such as factory/export invoices, CHA bills, Banking bills, Mobile bills etc. - in the case of Cadila Healthcare Ltd. (2013 (1) TMI 304 - GUJARAT HIGH COURT) allowed the input service credit namely Technical Testing and Analysis Service, Technical Inspection and Certification Service, Courier Service etc. Further the case laws cited by the learned advocate, held that all the input services are admissible for CENVAT credit. Hence, the appellants are eligible to avail the CENVAT credit on these items. The purported Show Cause Notice proposed to deny CENVAT credit on these items and it would not covered with the definition of the input service. The Tribunal and the High Court in various decisions held that these are the input services are covered within the definition of input service. So, the finding of the Commissioner (Appeals) has no force. In any view, the Department is always at liberty to verify the documents. - Decided in favour of assessee.
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2016 (1) TMI 64
Duty demand - Manufacture of transmission assembly - Captive consumption - during the period 1996-1998, the tractors with capacity of less than 1800 cc were exempt - Extended period of limitation - Held that:- single assembly line had eliminated the emergence of various intermediate products for separate accounting and listing, and integrated assembly line is a continuous seamless process finally resulted in the manufacture of tractors. As such it is not sustainable to allege suppression of facts or wilful mis-statement on the part of the appellants with reference to non payment of central excise duty on transmission assembly manufactured and consumed by them. The whole marketability and taxability was settled, only by the Apex Court Change over to integrated assembly line resulted changes in the classification list filed in July, 1994 when certain items indicated in the earlier classification list are not mentioned in revised list. This cannot be construed as wilful mis-statement on the part of the appellants. The reason for revised classification list has been explained in the covering letter of the appellants. Finally, we find that non payment of duty during the impugned order cannot be attributed to wilful conduct of the appellants as tax liability on such items was subject matter of dispute and settled only by the Apex Court. As such, if at all, it can be a mistake which is common to both department and the appellant and in such situation no extended period can be invoked and no penalty can be imposed on that ground. - Impugned order is set aside - Decided in favour of assessee.
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2016 (1) TMI 63
Cenvat Credit - input services used in intermediate exempted goods - manufacture of rectified spirit an exempt product which have been further used in the factory of the respondent for manufacture of denatured spirit, which is cleared on payment of duty - Held that:- in cases where intermediate product comes into existence, even though no duty is paid on the intermediate product as it is exempted from the duty or is chargeable to nil rate of duty, credit will still be allowable so long as duty is paid on the final product. The issue is squarely covered on all four by the ruling of the Honourable High Court and Supreme Court as relied on by the ld. Counsel for the respondent. In this view of the matter I hold that the respondent assessee is entitled to Cenvat credit on services received in the manufacture of absolute alcohol or rectified spirit, which have been further used for manufacture of denatured spirit, cleared on payment of duty. - Decided in favor of assessee.
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2016 (1) TMI 62
Duty demand - shortages in inputs received and goods which are part of work in progress - Held that:- They are contesting the findings of the Commissioner (Appeals) in paras 6.1 and 7 of the impugned order. We find that apart from arriving at contradictory findings regarding work-in-progress, the Commissioner (Appeals) failed to consider the explanation offered by the assessee about the accounting process and clearance of all production to 100% EOU. No cross verification on receiptient's end or analysis of accounting process as explained by assessee has been done by the lower authorities. The stock of work-in-progress keeps on changing during the manufacturing process from one stage to another. A combined examination of items in various stages of processing is required. No finding has been recorded on this as well as on the claim of certain destructive tests carried out by assessee - Commissioner (Appeals) held that no clandestine clearance of castings has been evidenced, he upheld demand of duty on castings without any reasoning. His finding that cenvat credit available on ingots is to be reversed is without any basis and, in any case, the final confirmation of demand of duty on castings using such finding is totally misplaced. - Decided in favour of assessee.
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2016 (1) TMI 61
Denial of CENVAT Credit - Capital goods - goods claimed to have been manufactured using these items are not capital goods, but structural items used for erection and installation of capital goods - Held that:- Onus whether the impugned items were inputs used for manufacture of final products is on the respondents/assessee - Revenue has not adduced any evidence to show that these items were used in making of structures embedded in the earth for support of machinery or the building. So also there is no case that it was used for construction of factory shed, or laying foundation. The Technical Certificate shows the quantity of these items used for making of storage tank for raw material, conveyor system, kiln cooler & chimney, Transfer Chutes, Intermediate Bin and Storage Tank for products. These goods are covered under Chapter 84 of the CETA 1985. The respondents have established that the steel items were not used for laying foundation or for building supporting structures and therefore the facts of the instant case, in my view, is outside the purview of application of the principle laid in Vandana Global Case (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ). - Decided against Revenue.
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2016 (1) TMI 60
Denial of CENVAT Credit - Fraudulent credit - credit on invoices without actual receipt of goods - Held that:- Appellants company neither received the inputs nor cleared final products and the entire transactions were only on paper with an intention to pass on irregular modvat credit to their buyers. We find in the present case as the transactions are only on paper and as such, the credit availed without receipt of inputs and credit utilization without clearance of final products will only pass on the undue benefit or credit with reference to buyers from respondent for such fictitious clearance of final products who in turn could have availed cenvat credit. In other words, as the appellants admittedly have not manufactured any item relevant to the present case, the question of payment of such duty on final products does not arise. As such, the passover of credit by them to a third party becomes crucial for full compensation of revenue loss due to this illegal acts. In this situation, we find that the credit of duty utilized for purported clearance of final product by the appellants resulting in cenvat credit availment by buyers stands recovered at the buyers end as admitted by both the sides. The appellants in the written submissions submitted that the full amount of cenvat credit in the improper paper transactions stand recovered along with 25% of penalty in pursuance of stay order of the Tribunal. The plea of the appellants is that concessional penalty of 25% should be available to them as the full duty involved (irregular credit) stand recovered - appellants are eligible for reduced penalty of 25% in terms of proviso to section 11 AC - Appeal disposed of.
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2016 (1) TMI 59
Cenvat Credit - input used for manufacture of capital goods to be used captive - Exemption under Notification No. 67/1995-CE dated 16/03/1995 - steel structures which are emerging are not capital goods - CENVAT Credit - Held that:- All the frames are essential 'accessory' of that machine with which it is installed. The third group is consist of chimney and flue duct. Chimney is used for emission of fumes and gases and flue duct is used for holding transferring gases for their emission through chimney. They are essential 'accessories' in the respondent plant. Therefore, all the 'impugned goods' as mentioned above are covered in the scope of term 'accessories' in the definition of capital goods at clause (ii) of Rule 2 (b) of the Cenvat Rules because they are specifically designed, fabricated/manufactured as per specific technical requirements and they are technological necessity of the plant for the manufacture of Iron and steel products in respondent's factory and they are essentially required for running the plant and machinery. Since no evidence has been adduced to establish that these goods have not been used in the factory of manufacturer and therefore the respondent has complied with the condition of Rule 2 (b) of Cenvat Rules that "such goods should be used in the factory of the manufacturer of final product" It is not possible to compare Steel Support Structures of Conveyors to Crane Girder, Crane Column in as much as the later items are very much part or accessories necessary for functioning of the Crane, Mere allegation that impugned goods are used in foundation or construction platform is not sufficient to deny the benefit in view of specific and categorical findings of both the lower Authorities. - Decided against Revenue.
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2016 (1) TMI 58
Availment of Cenvat Credit of service tax - GTA Service - Held that:- provision of Rule-3 of Cenvat Credit Rules, 2004, read with Rule-9 of Cenvat Credit Rules were sought to be applied for denying to the Cenvat Credit on the ground that TR-6 challan is not a proper document for availing Cenvat Credit - authoritative judicial pronouncement (unreported) of the Jurisdictional High Court on the same issue, in favour of the assessees, we hold that the impugned order cannot be found faulty. - Decided against Revenue.
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2016 (1) TMI 57
Confiscation of goods where the duty has been set aside on the ground of period of limitation - Held that:- if the entire duty liability has been set aside, confiscation of the goods which are seized from the appellant's premises, does not stand good any more. In view of the fact that demand of duty, holding that the goods were manufactured and liable to duty, has been set aside and as the said order is not unconnected from the impugned order, nothing survives for holding that the goods are liable to confiscation. - Decided in favor of assessee.
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2016 (1) TMI 56
Review Petition against the order [2015 (5) TMI 447 - SUPREME COURT] - We find no error much less apparent in the order impugned. The review petition is, accordingly, dismissed. - In that case, while upholding the demand, levy of penalty was set aside.
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CST, VAT & Sales Tax
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2016 (1) TMI 50
Detention of goods - Compounding fees - Held that:- Goods were accompanied by form JJ describing the nature of movement is for processing by the supplier and the delivery challan also contained the reason for the movement namely return of goods. The quantity of the goods and the approximate value of the goods and the nature of goods were clearly mentioned in the form JJ and the delivery challan. The address of the consignor and the address of the consignee was also clearly mentioned in the form JJ and the delivery challan and since, the goods are supported by form JJ.No.737 dated 30.09.2015 along with Delivery Challan No.008 dated 30.09.2015 and the goods were returned back to the seller only for the purpose of processing, the petitioner has not committed any violation as stated by the first respondent. - since the second respondent being the Assessing Authority also made as a party here, it is always open to the second respondent to take appropriate action against the petitioner, if any violation found out and pass necessary orders in accordance with law. When such being position, there is no justifiable reason for detaining the goods in the check post. Hence, this Court finds it appropriate to direct the first respondent to release the goods forth with. - Decided in favour of assessee.
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2016 (1) TMI 49
Recovery of tax when the appeal is pending before the appellate authority - deposit of 50% dues followed by Bank guarantee - Penalty - Held that:- Petitioner has paid 25% of the disputed tax for the respective assessment years at the time of filing the appeals. Further, as directed by the Appellate authority, the petitioner also made payment of another 25% of the disputed amount. The petitioner has also furnished bank guarantees for the balance tax amount and penalty wherever applicable for all the assessment years. However, according to the learned counsel for the petitioner, the extension of stay petitions filed by the petitioner were not heard. In the meantime, on 08.10.2015, the 1st respondent herein issued a notice directing the petitioner to produce stay orders, in the absence of which, recovery action will be initiated. Since the revenue of the department is very much safeguarded by remitting 50% of the disputed tax for all the assessment years as well as furnishing bank guarantee for the remaining 50% of the disputed tax and penalty wherever applicable, which are still in force, this Court is of the view that the appeals are to be disposed of within a stipulated time and the recovery proceedings shall be kept in abeyance till the disposal of the appeals. - Petition disposed of.
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2016 (1) TMI 48
Cancellation of registration certificate - petitioner firm filed incorrect returns declaring taxable turnover as exempted turnover - Held that:- Before passing the impugned orders of assessment, the objection letter as furnished by the petitioner on 13.01.2015 and received by the authority on 18.01.2015, has not been considered by the assessing officer. The specific prayer made by the petitioner with regard to supply of certain copies of documents was also turned down by the officer concerned and no such reference is made in the impugned order. - Additional Government Pleader (Taxes), appearing for the respondent would, on instructions, fairly submit that though the objection dated 13.01.2015 was received from the petitioner by the respondent, inadvertently, the same was not considered by him. - Matter remanded back - Decided in favour of assessee.
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2016 (1) TMI 47
Stay application - short payment of VAT - imported goods were held to be not accounted for - Held that:- We do not find that the Tribunal's order raises any substantial question of law. The discretion has been exercised reasonably and not arbitrarily or capriciously. The principles which are laid down in the decision of M/s Banara Valves Ltd. have been thus applied. If the order passed by the Tribunal is discretionary and it has adverted to necessary and requisite materials, then, we do not find that it has in any manner brushed aside the legal principles. Whether the assessment made by the Assessing Officer is correct or not will have to be decided by the 1st Appellate Authority at the hearing of the Appeal. The Appellant will get opportunity to place relevant facts, figures and materials before the Authority at that time. However, there can not be and in the peculiar facts and circumstances an unconditional stay of recovery of taxes. That is how the rights and equities have been balanced by the Tribunal. - Decided against assessee.
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2016 (1) TMI 46
Revision of assessment - Best Judgment assessment - Section 22(6) - Held that:- As seen from the best of judgment order as well as the impugned order, there were 8 discrepancies pointed out. Out of them, the appellant/ assessee has chosen to admit their liability in respect of three items. In respect of three other items, the Assessing Officer granted relief in favour of the assessee. Hence, what was left behind was only two issues out of the total of six. - The appellant claims that they have the books of accounts and proof. Therefore, we are of the considered view that by granting one opportunity to the appellant to produce the records before the Assessing Officer upon the payment of some portion of the tax demanded, ends of justice will be met. - Appeal disposed of.
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2016 (1) TMI 45
Revision of assessment orders - Bar of limitation - revision of the assessment year 2007-08 was issued after the expiry of more than seven years - Held that:- Petitioner(s) on receipt of the notice had filed the writ petitions in this Court challenging the same to be without jurisdiction. In some of the cases, the petitioner(s) had neither filed any objection/reply to the said notice nor raised the pleas as have been raised in the instant writ petitions before the competent authority. - there is no justifiable reason to interfere with the notice under challenge. However, we clarify that the proper course of action for the noticee is to file detailed and comprehensive objection/reply and to raise all the pleas as have been raised in the writ petitions. In case any objection/reply is filed by the petitioner(s) within a period of two weeks from the date of receipt of the certified copy of the order, the revisional authority shall decide the same within a period of six weeks - Petition disposed of.
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Indian Laws
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2016 (1) TMI 43
Denial of legal representation of the Petitioner-Company through its advocate to appear before the Redressal Grievance Committee - whether such denial amounts to denial of reasonable opportunity of defending itself and violation of principles of natural justice? - Held that:- The Petitioner is not entitled to be represented by a lawyer and therefore principles of natural justice will not be violated if the Petitioner is heard without being represented by a lawyer. However, in the peculiar facts and circumstances of the case and to avoid further delay, we permit the Petitioner to appoint an Advocate to represent the Petitioner provided the Petitioner gives an undertaking that hearing of the matter would be concluded in one day. We accordingly direct the State Bank of India to inform and coordinate with the Petitioner and decide the date of hearing at the earliest. Petitioner has agreed in principle that the hearing will be concluded in one day.
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