TMI Tax Updates - e-Newsletter
January 8, 2014

Case Laws in this Newsletter:

Income Tax Customs Service Tax Central Excise CST, VAT & Sales Tax Indian Laws

Articles

1. FORMS/RETURNS TO BE SUBMITTED/FILED UNDER THE PROVISIONS OF FINANCE ACT, 1994

   By: DR.MARIAPPAN GOVINDARAJAN

2. Clarification on availing excise duty exemption on substantial expansion by existing unit in J&K

   By: Bimal jain

News

1. India And Korea Share A Common Vision Towards Building An Equitable And Just Politico-Economic International Order: FM

2. Rules Regarding the Salaries, Allowances, etc. of the Chairperson and Other Members of the National Company Law Appellate Tribunal Notified

3. RBI’s Financial Literacy Material for Bankers Now in Regional Languages

4. RBI Working Paper Series 1: Regulation Must keep Pace with Changing Dynamics of Commodities Market

5. RBI Reference Rate for US $ and Euro

6. RBI releases Report of the Committee on Comprehensive Financial Services for Small Business and Low Income Households

Notifications

Central Excise

1. 01/2014-CX - dated 8-1-2014 - CE (NT)

CENVAT Credit (First Amendment) Rules, 2014.

Circulars / Instructions / Orders

FEMA

1. Press Note No. 1 (2014 Series) - dated 8-1-2014

Review of the existing policy on Foreign Direct Investment in the Pharmaceuticals Sector.

Highlights / Catch Notes

Income Tax

• Section 53A: Vendor/Landlord Loses Rights If Construction Exceeds 30-Month Period Plus 6-Month Grace.

  Case-Laws - AT : When time is essence of the contract, and the time schedule is 30 months to complete construction with additional grace period of 6 months, it cannot be said that such a contract confers any rights on the vendor/landlord to seek redressal under Section 53A of the Transfer of Property Act - AT
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• Disallowance u/s 40(a)(ia): JV for government contracts not a subcontract with its constituents u/s 194C.

  Case-Laws - AT : Disallowance u/s 40(a)(ia) - TDS u/s 194C - There is no sub-contract between JV and the constituents and since the JV has been formed only to procure contract works from the Government and the contract is being executed by the constituent partners in their sharing ratio 60:40 as per the terms of JV, it cannot be said that the JV is a contractor and its constituents are sub-contractors - AT
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• Poultry Feed Industry Recognized as Manufacturing u/s 80IB(4) of Income Tax Act, Not Non-Manufacturing.

  Case-Laws - AT : Once the Central Govt. accepted in principle that poultry feed is an eligible industry u/s 80IB(4); then the very same industry cannot be considered as non manufacturing industry under sub sections (3) and (5) of Sec 801B - AT
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• Court Rules Unexplained Cash Credit Valid; Large Withdrawal Assumptions Without Evidence Deemed Incorrect.

  Case-Laws - AT : Unexplained cash credit - To presume huge withdrawal was spent by the assessee in the absence of any evidence of its utilization would be a wrong presumption - deposit of cash accepted as duly explained - AT
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• Assessing Officer's Inconsistent Capital Gains Approach: LTCG Loss Disallowed, CIT(A) Fails to Address Issue.

  Case-Laws - AT : Disallowance of Long Term Capital Loss – AO cannot accept the sale price for purpose of computation of STCG and reject for computation of LTCG - CIT(A) is silent on this divergence/ inconsistency - AT
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Customs

• High Court Rules Additional Month Wait for Palm Oil Goods Release Not Unreasonable in Customs Detention Case.

  Case-Laws - HC : Detention of goods - Import of palm oil - when the appellant could wait for a period of three months there is no difficulty for it to wait for another one month and so - HC
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• Dispute Over Assessable Value of Imports: Department's Failure to Consider Royalty Impact on Pricing Raises Concerns.

  Case-Laws - AT : Determination of assessable value of the goods imported - No effort was made by the Department to ascertain enhancement of royalty/licence fees by reducing the price of the imported items - AT
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Service Tax

• Service Tax Paid with Interest Pre-Show Cause Notice; No Penalty u/ss 76, 77, or 78 Imposed.

  Case-Laws - AT : Penalty under Section 76, 77 or 78 - respondents got themselves registered with the Revenue suo motu and paid the service tax along with interest before the issue of the show cause notice - no penalty - AT
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• Cenvat Credit Denied: Dismantling a Plant Not an Input Service Due to Lack of Tangible Output.

  Case-Laws - AT : Disallowance of Cenvat credit - dismantling of plant by no stretch of imagination can be held to be input service. Normally input gives rise to tangible output without ending in no output. - AT
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• Pasteurization of milk is classified as manufacturing, exempting it from service tax under business auxiliary services.

  Case-Laws - AT : Business auxiliary services - Pasteurisation of milk - prima facie process of pasteurisation is a manufacturing activity not liable to service tax - AT
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Case Laws:

• Income Tax

• 2014 (1) TMI 351
  Disallowance u/s 40a(ia) and u/s 36(1)(iii) of the Act of the Act - TDS on payment of freight charges not deducted as per section 194C of the Act – Held that:- The freight details submitted by the lorry operators 'hamali' is nothing but TDS - In some of the vouchers, the 'hamali' was replaced by TDS and each were written as freight vouchers and TDS was deducted at 3% and are clear from the lorry freight vouchers/letters filed by the assessee - In majority of these lorry freight vouchers, the total freight payment on each bill did not exceed Rs.20,000 and the provisions of section 40a(ia) have no application - After considering the paper book filed by the assessee, the total freight charges mentioned is Rs.18,969/-, TDS Rs. 568/- and only balance of Rs.18401 - the assessee has to pay to the lorry operator - it is mentioned as 'loading hamali' - So far as this aspect is concerned, the CIT(Appeals) has observed that instead of TDS, it was mentioned as 'loading hamali' and it has to be treated as TDS only – order of the CIT(A) upheld – Decided against Revenue. Advances made to sister concern through current account – Held that:- The assessee is in the business of running rice mill, which is a propriety concern - The assessee is also a partner of another rice mill namely M/s. Maharaja Modern Rice Mill - The assessee has advanced an amount - The Assessing Officer has disallowed the interest paid on the advance amounting on the ground that the advance made by the assessee is not for the business purpose - When the assessee and her sister concern both are propriety concern and in the same line of business, when certain funds were advanced to the sister concern for the purpose of business, there is no reason for the Assessing Officer to come to such a conclusion that the advances were not relating to business - He has not mentioned anything in his order that advances are not relating to business – Decided against Revenue.

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• 2014 (1) TMI 350
  Applicability of Section 41(1) of the Act – Waiver of Interest not allowed as deduction can be taxed u/s 41(1) of the Act or not - Held that:- Following Iskraemeco Regent Ltd. v. CIT [2010 (11) TMI 43 - Madras High Court] - The assessee has received waiver of interest as OTS during the assessment year 2005-06 - to apply section 41(1), the assessee should have claimed earlier year any benefit and allowed by the Assessing Officer - section 41(1) of the Act cannot be applied. Application of Section 28(iv) of the Act – Held that:- Following of Ravinder Singh v. CIT [1993 (3) TMI 41 - DELHI High Court] - the assessee has received the interest waiver which is payable to bank - This is a cash benefit received by the assessee - Therefore, section 28(iv) has no application to assessee's case – Decided against Revenue and in favour of Assessee.

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• 2014 (1) TMI 349
  Applicability of Section 50C of the Act Held that:- CIT(Appeals) considered the issue whether section 50C is prospective or retrospective - the actual dispute is the date of transfer of the property for determination of fair market value - The CIT(Appeals), without considering this important aspect, simply went on whether section 50C of the Act applies prospective or retrospective - Whether the transfer is effected on 26.10.2001 or 22.10.2003 has to be seen in the light of the original agreement entered into upon the assessee - The CIT(Appeals) has not considered the agreement and he also not considered the payment made before registration - no copy of the agreement /sale deed executed by the vendor and vendee has been placed on record - order passed by the CIT(Appeals) set aside and the matter remitted to the CIT(A) for reconsideration. Exemption u/s 54 of the Act Held that:- The assessee has claimed exemption under section 54 of the Act - The assessee has sold the Visweswarapuram property, which is in dispute for the purpose of determination of fair market value on 22.10.2003 - He has purchased the property at Chamiers Road [Chamiers Road property] and sale deed was executed on 15.07.2002 - The CIT(Appeals) without examining the facts in correct prospective, simply following some case law decided the issue - Even the assessee has not explained as to how the property was purchased prior to the date of sale of Visweswarapuram property is eligible for exemption under section 54 - The issue requires reconsideration afresh order of the CIT(A) set aside and the mater remitted back to CIT(A) for reconsideration. Mandatory requirement of notice u/s 251(2) of the Act - Income enhanced without giving notice Held that:- CIT(Appeals) has enhanced the cost of acquisition without issuing notice to the assessee - As per section 251(2), before enhancing any income, a prior notice should be given to the assessee order of the CIT(A) set aside and the matter remitted for reconsideration Decided in favour of Assessee and Revenue both.

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• 2014 (1) TMI 348
  Disallowance of Depreciation u/s 32 of the Act – Fulfillment of Conditions prescribed for claiming depreciation – Held that:- The assessee has the ownership of the vehicle, the assessee has filed temporary registration certificate issued by the Transport Authorities and also the Permanent Registration Number before the Assessing Officer - Under the Income Tax Act, to allow the claim of depreciation, the assessee has only to prove that he has put the vehicle to use before the relevant date - If the vehicle is used in contravention of the Rules provided by the respective Transportation Department, it would not effect the claim of depreciation under the Income Tax Act - It is for the respective transportation department to take action for the contravention of its Rules but the Income Tax authorities cannot disallow the claim of depreciation – thus, the claim of depreciation of the assessee allowed at the prescribed rates – Decided in favour of Assessee.

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• 2014 (1) TMI 347
  Disallowance of labour charges – Held that:- Held that:- The assessee’s turnover is more than statutory limit which necessitates its accounts to be statutorily audited - The assessee has filed the audited accounts before the Assessing Officer and explained that due to shifting of his office and residence it is not possible for the assessee to produce all the material in support of its claim of expenditure - The Assessing Officer has not doubted the authenticity of the accounts maintained by the assessee - when an assessee makes a claim, it is for the assessee to substantiate the claim with necessary evidence to the satisfaction of the Assessing Officer - the assessee has not been able to substantiate its claim in its entirety along with necessary evidence before the Assessing Officer or before the CIT(A) - the activity involves engagement of large number of both skilled and unskilled labour and that the assessee may not be able to get independent evidence/vouchers in respect of engagement of unskilled labour – Thus, the disallowance of labour charges restricted to 10% of the total labour expenses claimed by the assessee. Disallowance of cost of materials – Disallowance u/s 40(a)(ia) of the Act - Held that:- There may be certain miscellaneous items, for which the assessee may not be able to obtain the bills or vouchers while it also cannot be ruled out that the assessee might have inflated the expenses - some disallowance is justified but disallowance of 50% of the expenses is excessive – thus, the disallowance restricted to 15% of the unsubstantiated cost of materials. Verification of claim - Machinery and vehicles hire charges – Held that:- The CIT(A) has no power to remand the issue to the Assessing Officer for verification – thus, the matter remitted to the AO for fresh adjudication – Decided partly in favour of Assessee.

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• 2014 (1) TMI 346
  Disallowance of commission - Held that:- The Court fails to understand why Mr Vinod has not even filed his IT returns if huge amounts of commission was received, as claimed by the assessee company - The stand of the assessee before the Assessing Officer was that these amounts were paid to the employees of Beverages Corporation and retail outlet employees and in the remand report when the statement of Mr. Vinod came to be recorded it was the commission paid to him during those years - The very role played by Mr. Vinod in the affairs of the company and also the amount said to have been paid by him to the Managing Director, all looks very suspicious - The authorities were justified in rejecting the stand of the assessee - The amounts claimed were paid as commission but to whom paid becomes a very doubtful issue - The Assessing Officer and Tribunal was justified in disallowing the claims made by the assessee – Decided against assessee.

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• 2014 (1) TMI 345
  Unexplained cash credit - Held that:- As per section 68 - The reference to ‘any sum’ which is found to be ‘credited’ in the assessee’s book for any particular year can mean only one thing, i.e. the actual sum found in the books for the concerned previous year and which is unexplained - If the profits reported by the assessee are not accepted on the basis of the supporting accounts, the ITO can process such profits by estimation after rejecting the books - For separate heads of income such as profits, capital gains, etc., which would involve reporting of accounts maintained on an elaborate basis and also detailing expenditure etc., the Assessing Officer may have the discretion to reject accounts and arrive at the income on the basis of estimation - There cannot be any estimate for section 68, even if for the rest of the accounts, such an exercise is validly undertaken - This is for the simple reason that the expression ‘any sum’ refers to any specific amount and nothing more – Decided in favour of assessee.

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• 2014 (1) TMI 344
  Whether the agricultural land given for development is a capital asset u/s 2(14) - Held that:- The objects of the assessee company in the Memorandum of Association clearly spelt out the activities to be carried out by the assessee company for which the company has been incorporated - This shows that the assessee would be doing real estate business and the land owned and purchased by it before the Development Agreement was entered into was clearly for the purpose of commercial transaction - The developer was aiming to build an integrated township and for this purpose the company also acquired the adjoining land for giving the same for development to the MAK Projects Limited - No prudent person would invest substantial amounts for acquiring dry agricultural lands while the output on account of agricultural activity is meagre compared to the investment, it sought for the conversion of land for non agricultural purposes from the appropriate authorities, and the land shed its character of agricultural land once it has entered into development agreement for an integrated township with MAK Projects Pvt. Ltd. - The asset in question is not an agricultural land. The impugned land was converted from agricultural purposes to non-agricultural purposes by permission from competent authority - The registration of supplementary Development Agreement cum GPA was executed on 4.1.2007 though it was presented for registration on 15.12.2006 - The registration was delayed awaiting approval from RDO for land conversion and only after the approval was received on 27.12.2006 the document was registered on 4.1.2007 and at the time of registration of Development Agreement, the land was no more remained as agricultural land and it was non-agricultural land by valid conversion on approval from the competent authority - Decided against assessee. Whether there is transfer on account of development agreement cum GPA u/s 2(47)(v) - Held that:- As per the provisions of Transfer of Property Act - Following Chaturbhuj Dwarkadas Kapadia v. CIT [2003 (2) TMI 62 - BOMBAY High Court] - 'willingness to perform' for the purposes of Section 53A is something more than a statement of intent; it is the unqualified and unconditional willingness on the part of the vendee to perform its obligations. Unless the party has performed or is willing to perform its obligations under the contract, and in the same sequence in which these are to be performed, it cannot be said that the provisions of Section 53A of the Transfer of Property Act will come into play on the facts of that case - Unless provisions of Section 53A of the Transfer of Property Act are satisfied on the facts of a case, the transaction in question cannot fall within the scope of deemed transfer under Section 2(47)(v) of the IT Act. The transferee was not willing to perform its obligations in the financial year in which the capital gains are sought to be taxed by the Revenue - The condition laid down under Section 53A of the Transfer of Property Act was not satisfied in this assessment year - The transferee's 'willing to perform' the contract is ascertainable in the assessment year, as stipulated expression under Section 53A of the Transfer of Property Act, its contractual obligations in this previous year relevant to the present assessment year - The Development Agreement based on which the impugned taxability of capital gain is imposed by the AO and upheld by the CIT(A), cannot be said to be a "contract of the nature referred to in Section 53A of the Transfer of Property Act" and, accordingly, provisions of Section 2(47)(v) cannot be invoked. The assessee has not received any consideration, and there is no evidence brought on record by the Revenue authorities to show that there was actual construction taken place at the impugned property in the previous year relevant to the assessment year under consideration - There is no evidence to show that the right to receive the sale consideration was actually accrued to the assessee - Without accrual of the consideration to the assessee, the assessee is not expected to pay capital gains on the entire agreed sales consideration - When time is essence of the contract, and the time schedule is 30 months to complete construction with additional grace period of 6 months, it cannot be said that such a contract confers any rights on the vendor/landlord to seek redressal under Section 53A of the Transfer of Property Act - This agreement cannot, be said to be in the nature of a contract referred to in Section 53A of the Transfer of Property Act - The provisions of Section 2(47)(v) will not apply in the situation. The assessee has not carried on the adventure in the nature of trade so as to bring the income under the head 'income from business'. This is so, because the assessee has not sold any undivided share in the landed property to the developer in the year under consideration. The assessee remains to be the owner of the said property and the land was put for development for the mutual benefit – Decided in favour of assessee.

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• 2014 (1) TMI 343
  Disallowance u/s 40(a)(ia) - Held that:- The modus of obtaining the Government contracts, the sequence and frequency of execution of the contracts clearly show that the assessee as a partnership firm secured contracts and given to its partners with a collective responsibilities and liabilities jointly and severally liable towards the owners for the execution of the contracts in accordance with the contract of the business as per clause (g) of the partnership deed - They have demarcated the nature of the contracts into principal contracts and sub-contracts for the purpose of identifying the work handled by the partners and for the purpose of accounting contract receipts and payments. In order to establish a relationship of contractor and sub- contractor, it is necessary to show that the parties have acted in such a manner conducive to uphold a contractor-sub contractor relationship when there is a strong case of interlacing of finance and funds, interdependence of responsibilities, interconnection of activities - There is no basis for coming to a conclusion that there existed a relationship of contractor vis-a-vis sub-contractor – As per section 20 of the Indian Contract Act of 1872 - Where both parties to an agreement are under a mistake as to a matter of fact, essentially to the agreement, the agreement is void - The formats of the agreement entered into with the partners and the styling of accounts prepared by them are products of mistakes of fact, and therefore, the agreement is not to be relied on to hold that the assessee is acting in the status of contractors vis-a- vis sub-contractors. The question of TDS in the present case cannot be considered only on the basis of the agreements entered into between the assessee and its partners - The liability u/s 194C(2) is cast on the assessees only when they are in fact and in substance acting in the relationship of contractors and sub contractors - When the said provision relating to deduction of tax at source is not applicable for the assessee for the reasons stated above, violation u/s 40(a)(ia) does not arise - Payments made under the nomenclature of "sub- contractors" are not liable to be disallowed. There is no sub-contract between JV and the constituents and since the JV has been formed only to procure contract works from the Government and the contract is being executed by the constituent partners in their sharing ratio 60:40 as per the terms of JV, it cannot be said that the JV is a contractor and its constituents are sub- contractors - Decided in favour of assessee.

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• 2014 (1) TMI 342
  Unexplained investment - Held that:- The Department cannot challenge deletion of additions arising out of estimation of income at 28%, unless challenging the decision of the CIT(A) on rejection of books of account - If the Department wants to challenge the deletion of additions arising out of estimation of income, first, it has to challenge the decision of the CIT(A) on rejection of books of account by Assessing Officer, that the rejection of books of account is not at all warranted - Decided against Revenue.

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• 2014 (1) TMI 341
  Income from sale of shares - Business income or capital gains - Held that:- The assessee has been treating such income as capital gains - Except in the impugned assessment year, the Assessing Officer in all other assessment years, prior and subsequent, has accepted the dealings in shares as investments only by assessing the gain there from as either long or short term capital gain - Consistency has to be maintained with regard to the assessability of gain from sale of shares - The Assessing Officer has not at all spelt out what are the distinguishing features which provoked him to take a different view in the impugned assessment year - He has not at all considered the facts at depth and has approached the entire issue in a superfluous manner - Following Spectra Shares and Scrips Pvt. Ltd. Vs. CIT [2013 (6) TMI 173 - ANDHRA PRADESH HIGH COURT] - Whether a particular activity is in the nature of investment or trade is purely a factual issue and would depend upon the particular facts involved in each case - Considering the totality of facts and circumstances in assessee’s case and applying the tests laid down in case of Spectra Shares and Scrips Pvt. Ltd - The finding of the CIT (A) in holding the dealing in shares by the assessee as its investment and directing the Assessing Officer to assess it as income under the head capital gain is most reasonable and appropriate - Decided against assessee.

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• 2014 (1) TMI 340
  Whether the assessee is engaged in the manufacture of a production of an article so as to be eligible for deduction u/s 80IB - Held that:- In Notification No. SO 627 (E) dated 04.08.1999 the Central Government has recognised poultry and cattle feed industry, to be an eligible industry u/s 80 IB (4) - Once the Central Government notified the poultry 'feed industry u/s 80 IB (4) then there is a tacit admission that it is engaged in "manufacture or production of an article" - Once the Central Govt. accepted in principle that poultry feed is an eligible industry u/s 80IB(4); then the very same industry cannot be considered as non manufacturing industry under sub sections (3) and (5) ' of Sec 801B - Following assessee's own case for A.Y. 2007-08 - The assessee is engaged in manufacturing of poultry feeds and that the assessee is engaged in the manufacture or production of an article - The assessee's eligible undertaking itself was independently carrying out the complete activity i.e. from mixing, grinding till the pelletisation - The raw materials once consumed cannot be reconverted into the same position - Its utility gets changed - The prime raw materials such as, maize, soya oil, rice bran, etc. can no more be regarded to be the rice bran, soya oil, maize - Decided against Revenue.

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• 2014 (1) TMI 339
  Whether profit upon sale of DEPB license shall be eligible for deduction u/s 80IB - Held that:- Following M/s Sarraf Export, RIICO Industrial Area, Sardarsahar, Churu V/s ITO, Ward-2, Churu [2014 (1) TMI 319 - ITAT JODHPUR] - In view of the newly inserted clause (iiid) in Section 28 of the Act w.e.f. 01-04-1998 - Any profit on the transfer of the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme under the export and import policy shall be entitled to deduction u/s 80IB - Decided in favour of assessee.

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• 2014 (1) TMI 338
  Disallowance u/s 14A - Held that:- The assessee has not derived any dividend income - A perusal of the income expenditure account of the assessee clearly shows that the assessee does not have any income which does not form part of the total income - It is also noticed that the ld. CIT(A) has taken into consideration the fact that the investment in the shares of subsidiary company was only for the purpose of having control over the business affairs of the subsidiary company which was being maintained as subsidiary company for specific business purposes of the assessee - The assessee has also not incurred any interest expenditure attributable to the said investment in the shares - Provision of Section 14A read with Rule 8D does not apply to the assessee's case - Decided against revenue.

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• 2014 (1) TMI 337
  Validity of reassessment u/s 147 - Held that:- The ld. CIT(A) in his order without giving any reasons adjudicated the issue in a very cryptic manner and had upheld the reopening - The ld. CIT(A) had extracted all the facts and also called for Remand Report wherein the ld. AO has revised the figure of Rs.36,68,915/- to Rs.86,83,246 - The ld. CIT(A) had adjudicated the issue of reopening and had upheld the reopening of the assessment though admittedly the order could have been more in detail - The issue of reopening as also the issues in the appeal can be restored to the file of the ld. CIT(A) for passing a speaking order on the issue of reopening as also in regard to granting of the assessee opportunity to recompute the deduction u/s 80HHC of the Act, if the reopening was held against the assessee - The issue was restored for fresh adjudication.

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• 2014 (1) TMI 336
  Validity of reassessment u/s 147 - Held that:- The Investigation Wing has prepared the list of beneficiaries who have taken accommodation entries from person/firm engaged in the racket of providing accommodation entries which includes the name of Bimla Devi - The present assessee is Maya Gupta and not Bimla Devi - In the chart, only the value of entry taken is mentioned but the nature of entry whether it is a bogus gift, loan or share capital money is not mentioned - No reference is made to any statement given by any accommodation entry provider or any documentary evidence found from their premises which indicated any accommodation entry being taken by the assessee – Following Signature Hotels P. Ltd. [2011 (7) TMI 361 - Delhi High Court] - The information on the basis of which the Assessing Officer had initiated proceedings under Section 147 was vague and uncertain - The learned CIT(A) rightly held that the reopening of assessment was not valid – Decided against Revenue.

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• 2014 (1) TMI 335
  Method of revenue recognition in business of real estate development - Held that:- Following assessee's own case for the A.Y. 2006-07 - Ld. CIT(A) has deleted the similar addition - Assessee has been following particular system of accounting for revenue recognition which has been mentioned in the Accounting Policies filed alongwith the return of income for the year under consideration as well as for earlier years - When assessee has been following the particular system of accounting consistently, Assessing Officer has chosen to depart from the accepted method of accounting of the assessee without putting forth the cogent reasoning - In respect of properties for which the addition has been made in this year, the sales has been recognised in the subsequent years - Following CIT vs. Excel Industries [2013 (10) TMI 324 - SUPREME COURT] - When in earlier asstt. years the revenue accepted the order of the tribunal in favour of the assessee, then Revenue cannot be allowed to flip flop on the issue and it ought let the matter rest rather than spend the tax payers money in pursuing litigation for the sake of it - In the subsequent accounting year, assessee has disclosed the income and paid tax thereon and if the rate of tax remained the same in the present asstt. year as well as in the subsequent asstt. year, the dispute raised by the Revenue was entirely academic or at best may have a minor tax effect – Decided against Revenue.

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• 2014 (1) TMI 334
  Unexplained cash credit - Held that:- The assessee has furnished the date-wise cash balance and each and every deposit in the bank account is shown to be out of the cash balance with the assessee - The opening cash balance as per the cash account is Rs. 9,13,080/- and the closing cash balance of the year is Rs. 12,50,983 - The same is duly reflected in the balance sheet ended on 31st March, 2007 and 31st March, 2008 respectively - When in the electronic filing of the return there is no provision for filing of the balance sheet, then non-furnishing of the balance sheet cannot lead to the presumption that there was no cash in hand with the assessee - The assessee is a professional whose returned income is more than Rs. 18 lakhs - The inference of the Assessing Officer that the amount withdrawn by the assessee from the bank has been utilized for household expenditure or other expenses is without any basis - The total withdrawal by the assessee is more than Rs. 44 lakhs and in the absence of any material to presume that such huge cash withdrawal has been spent by the assessee would be incorrect - Some of the withdrawals are of huge amount, say, Rs. 7,00,000/-, 10,50,000/- (Rs. 4,90,000 + Rs. 5,60,000) - To presume such huge withdrawal was spent by the assessee in the absence of any evidence of its utilization would be a wrong presumption – The Tribunal is of the opinion that the entire cash deposit in the bank is duly explained by the assessee – Decided against Revenue.

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• 2014 (1) TMI 333
  Maintainability of Application - Recall of order – Held that:- Assessee contended that correct facts were not provided by the authorities below and also by the Tribunal - The perusal of the records of Miscellaneous Application reflect no such synopsis having been annexed with the Miscellaneous Application by the assessee or the counsel of the assessee - Following Bhawarlal C.Bafna V ACIT [2002 (6) TMI 40 - MADRAS High Court] - adjournments are not matter of right and once many adjournments are taken, the Tribunal could take note of conduct of the party and refuse the adjournment in its discretion - the Tribunal was correct in refusing to grant further adjournment as the matter had been adjourned on several occasions - the assessee has failed to point out any defect in the order passed by the Tribunal – Decided against Assessee.

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• 2014 (1) TMI 332
  Disallowance of Long Term Capital Loss – Held that:- The purchase and sale of the shares were done through banking channels - there is no evidence in passion of the Assessing Officer that the assessee received higher amount of consideration than what is disclosed by the assessee -the Revenue cannot disturb the computation of capital loss filed before the Assessing Officer – Following KP Varghese Versus Income-Tax Officer, Ernakulam, And Another [1981 (9) TMI 1 - SUPREME Court] - the onus is on the Revenue - Assessing Officer accepted the sale price of the same shares where computation of short term capital gains was furnished - He has not given any reasons why the assessee’s stand was accepted in case of short term capital gains while he was rejecting the same for long term capital loss - such dichotomous and divergent approach by the AO is unsustainable in law as it raises issues relating to principle of consistency - Only sale price is accepted and allowing of indexation benefits is consequential issue and the assessee is rightly entitled to such benefits legally – Thus, the loss emanated is legally allowed. CIT(A) have not dealt with the issues in details after obtaining replies of the assessee and after considering the arguments of the assessee – the reasoning is just adequate enough to create a suspicion but inadequate to sustain the additions as done by the CIT(A) - On such inadequate reasons, the transactions of sale of shares to Mrs. Manorama Rathi cannot be considered as ingenuine transactions - CIT(A) should have analysed why AO accepted the same sale price when comes to computation of short term capital gains, where the benefits of indexation are not available and reject for computation of LTCG - AO cannot accept the sale price for purpose of computation of STCG and reject for computation of LTCG - CIT(A) is silent on this divergence/ inconsistency – Order of the CIT(A) set aside and the matter remitted back to the CIT(A) for re-adjudication – Decided in favour of Assessee.

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• 2014 (1) TMI 331
  Validity of Jurisdiction u/s 263 of the Act - Income considered as ‘income from house property’ – Already treated to tax under the head‘income from business and profession’ - Held that:- The sharing of the space of the assessee by the PGHH came up for discussion during the original assessment proceedings - Despite the accrual of income to the assessee, assessee did not offer the same to the taxation and caused loss to the Revenue - the legal issue on the validity of the proceedings u/s 263 of the Act is dismissed as not pressed – Decided against Assessee. There was absence of relevant discussion on the business nature or otherwise of the said receipts - the direction in the present form of the CIT-8, Mumbai is premature – thus, the issue is kept open for examination by the AO during the fresh assessment proceedings giving effect to the review order u/s 263 of the Act - In case, the AO is of the opinion that these receipts have to be brought to the tax under the head ‘profits and gains from business or profession’, the allowable expenses of business nature are required to be allowed as claimed by the assessee – Decided partly in favour of Assessee.

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• 2014 (1) TMI 330
  Disallowance of depreciation on fixed assets u/s 32 of the Act - Disallowance of carry forward of business loss and unabsorbed depreciation – Held that:- Following CIT Vs. Institute of Banking Personnel [2003 (7) TMI 52 - BOMBAY High Court] - the depreciation is allowable even on those assets which have been allowed as deduction when the assets was purchased for the purpose of computing application of income - this doesn't amount to double deduction but computing of applicable income only - The claim of depreciation is allowable even on those assets which have been allowed as deduction when the assets was purchased for the purpose of computing application of income of the Society – Decided against Revenue.

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• Customs

• 2014 (1) TMI 369
  Detention of goods - Import of palm oil - whether the impugned order is such which requires admission under Section 130 of the Customs Act, 1962 - Held that:- The goods are lying since 12.06.2013 and the Tribunal rendered its judgment on 26.09.2013. Against the decision of the learned Tribunal, the appellant, at the first instance, approached the writ jurisdiction of this Court on 19.11.2013. When the writ Court dismissed the said proceedings holding that appeal lies, the present appeal has been preferred. Be that as it may, the appellant approached the Tribunal in September 2013 waiting for three months. We think when the appellant could wait for a period of three months there is no difficulty for it to wait for another one month and so - findings of the learned Tribunal at the interlocutory stage will not be binding on the hearing of the appeal, because the approach of the final hearing of the appeal is completely different from that in case of an interlocutory application. We, therefore, direct the Tribunal to decide the matter as early as possible preferably within a period of one month from the date of communication of this order - Decided partly in favour of assesssee.

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• 2014 (1) TMI 368
  Exemption from basic customs duty - Customs Notification No.51/2000-Cus - Duty Exemption Entitlement Certificate - Surcharge of 10% of the Basic Customs Duty - Held that:- levy may include both imposition of a tax as well as assessment. Section 28 of the Customs Act envisages issue of demand by proper officer for duty not levied or short levied. Surely a customs Officer cannot make demand duty over and above what is levied by the Parliament - for the purpose of levying such additional duty of customs under section 3 (1) of Customs Tariff Act, it is not the excise duty as per the Central Excise Tariff which is being taken into account. Where there are exemptions from excise duty granted unconditionally, the rates resulting after giving effect to such exemption is considered as excise duty for the time being leviable on like articles. In fact, there are many cases, where even in the case of conditional exemptions, the court have held that rates as applicable after giving effect to such notifications has to be considered as duty leviable on like goods in India. Government has already issued notification 51/2000-Cus dated 27-04-2000 exempting anti-dumping duty for imports against Advance Licenses - when it was decided that the importer was not eligible for exemption under notification 64/88-Cus the appellants were given opportunity to claim alternative notification 65/88-Cus wherever such plea was taken - it is proper to remand the matter to the adjudicating authority to examine the eligibility to notification 51/2000-Cus dated 27-04-2000. The impugned orders of lower authorities are set aside and the matter is remanded to the adjudicating authority to decide on the benefit of notification 51/2000-Cus dated 27-04-2000 - Decided in favour of Revenue.

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• 2014 (1) TMI 367
  Determination of assessable value of the goods imported - Import of automobile parts - Application of Rule 9(l)(c) - Held that:- payments of royalty/licence fees was entirely relatable to the manufacture of brake liners and brake pads (licensed products). The said payments were in no way related to the imported items. In the present case, no effort was made by the Department to examine the pricing arrangement. No effort was made by the Department to ascertain whether there exists a price adjustment between cost incurred by the buyer on account of royalty/licence fees payments and the price paid for imported items. No effort was made by the Department to ascertain enhancement of royalty/licence fees by reducing the price of the imported items. In the circumstances, we find no infirmity in the impugned judgment of the Tribunal. In this case, the Department has gone by TAA alone. On reading TAA in entirety, we are of the view that there was no nexus between royalty/licence fees payable for the know-how and the goods imported for the manufacture of licensed products. The Department itself has invoked Rule 9(1)(c) - Following decision of Commissioner of Customs v. Ferodo India Pvt. Ltd. [2008 (2) TMI 12 - Supreme Court] - Decided in favour of assessee.

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• 2014 (1) TMI 366
  Confiscation of goods - Imposition of redemption fine - Difference in address given in the bill and address given in the IEC - Import of second hand capital goods - Held that:- it is the Revenue who is making the allegation of non-production of specific licence and as such on the face of the fact that the goods in question were admittedly old and used, it was for the Revenue to show that the same required specific licence for import. Admittedly the policy circular issued by DGFT is to the effect that no restriction is applicable on import of second-hand capital goods which are freely importable without a specific licence - Admittedly the Revenue has treated the appellants as the importer of the goods, when the goods stand released to them. As such the above technical objection should not result in confiscation of the goods or in imposition of penalties upon them - Decided in favour of assessee.

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• Service Tax

• 2014 (1) TMI 363
  CENVAT Credit - Refund claim - nexus between the inputs/input services and the output GTA service - Denial of refund claim - Commissioner allowed refund claim - Held that:- The Cenvat Credit Rules, 2004 does not distinguish between a deemed service provider and an actual service provider. Wherever service tax liability is required to be discharged, credit of tax paid on the inputs/input services can be utilised. This Tribunal in a number of cases has held that input service credit can be utilised for discharging duty liability on GTA services by the recipient of the service - Decided against Revenue.

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• 2014 (1) TMI 362
  Demand of service tax - Security services - Penalty u/s 76 & 78 - Service provided to PSU - Held that:- assessee has been prompt in paying the service tax in respect of other customers other than BSNL, which is a Government of India undertaking. From the explanation offered and his subsequent conduct, it is obvious probably entertaining a genuine doubt, whether the service tax is payable in respect of a service rendered to BSNL, a Government of India undertaking as they did not pay any service tax, in turn, he did not pay the service tax and after issue of show cause notice, demanded BSNL to pay service tax which they did not pay, but in order to avoid penal consequence, he has paid the tax at the earliest in two installments - it is appropriate that in this case provisions of Section 80 of Finance Act, 1994 is required to be invoked in favour of the appellant. Accordingly the appeal is allowed by way of setting aside the penalties imposed under Sections 76 and 78 of the Finance Act, 1994 - Decided in favour of assessee.

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• 2014 (1) TMI 361
  Demand of service tax - Security staff provided to BSNL - Invokation of extended period of limitation - Imposition of penalty - Valuation of service - Whether the services provided by the assessee can be considered as security services or these are manpower Supply Services - Held that:- Ongoing through the agreement it is very clear that assessee is required to provide security guards to M/s. BSNL. Security guards also expected to be in Army Uniform while on duty. The responsibility of character etc. of the guards remains with the assessee. Assessee is expected to submit bill including their wages to M/s. BSNL and BSNL in turn paid to the assessee. The fact that the assessee is expected to disburse the amount of wages in presence of BSNL official will not made a difference on the nature of service or amount of service tax to be paid. Personal supplied are expected to work as security guard, and ensure security of articles and equipments in the building and offices. Keeping in view the agreement and the definition of the security agency as stipulated under Section 65 (79)of the Finance Act, 1994, we have no doubt that the service provided by the assessee is that of security agency - wages of security guards will form part of the assessable value as far as security agencies service is concerned. Assessee had taken the registration and also filing the returns wherein all the details were being indicated. We also note that the assessee a Retd. Army officer was not collecting any service tax form his client even on the service charges. Keeping in view peculiar facts and circumstances of the case, we find that ingredients to invoke the extended period are absent in the present case. Accordingly, we set aside the demand which is beyond the normal period of limitation. We also observe that only a part of the demand i.e. from October 2004 to March 2005 will remain within the normal period of limitation. The demand within the normal period is confirmed. We also consider the case to be fit for waiving the penalty by exercising the power under Section 80 of the Finance Act, 1944 - Decided partly in favour of Revenue.

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• 2014 (1) TMI 360
  Penalty under Section 76, 77 or 78 - Suppression of facts - Benefit of Exemption Notification Nos. 9/2003-ST and 24/2004-ST - Held that:- respondents got themselves registered with the Revenue suo motu and paid the service tax along with interest before the issue of the show cause notice and the respondents were under bona fide belief and genuine doubt whether or not the courses run by the respondents could be treated as vocational courses. In view of the above, we find no infirmity in the impugned order whereby the lower authority invoked the provisions of Section 80 of the Finance Act - Decided against Revenue.

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• 2014 (1) TMI 359
  Demand of service tax - Authorized Service Station - Use of logo of M/s Tata Motors on the job-card - Use of software system SIEBEL of M/s Tata Motors - Whether the appellant can be considered as an ‘Authorized Service Station' of M/s Tata Motors as per Section 65(9) of the Finance Act, 1994 - Held that:- appellants are carrying out repair, reconditioning/restoration of the motor vehicles manufactured by M/s Tata Motors. From the documentary evidence available on record and also from the statements recorded under Section 14 of the Central Excise Act, 1944 of the officials of the appellant firm, it is clear that the appellant is undertaking the after sales service of the vehicles manufactured by M/s Tata Motors not only during the warranty period but also afterwards and it is also seen that 13 employees of the appellant firm have undergone training from M/s Tata Motors for undertaking the services and repairing of the vehicles manufactured by M/s Tata Motors. Inquiry conducted with M/s Tata Motors revealed that though M/s Pandit is a dealer for the vehicles manufactured by M/s Tata Motors, they had a private arrangement with the appellant and since the appellant was providing satisfactory services to the customers of Tata Motors, they had not objected to the services being rendered by the appellant. The letter also reveals that they have provided full access of the software namely, CRM and SIEBEL, to the appellant for tracking and providing after sales services to consumers. The letter also reveals that M/s Tata Motors were aware that their brand name has been used by the appellant on their job-cards and other stationery and it has never been objected to by M/s Tata Motors. We have also perused the job-card issued by the appellant which clearly reveals that the appellant has claimed themselves to be ‘authorized workshop' of Tata Motors in the job-cards issued by them to the customers and also in the job-slips and the bills for the services undertaken by them. From these evidences available on record, it is clear that the appellant has been functioning as an ‘Authorized Service Station' of M/s Tata Motors and, therefore, the services rendered by the appellant is prima facie classifiable under the category of "Authorized Service Station". Appellant had declared before the department that they are not an authorized service station and it was in that context, it was clarified by the department that they need not get registered as an authorized service station. However, it was also mentioned that they should get registered with Service Tax Department if the circumstances changed. This clarification given is a conditional one based on the information provided by the appellant and when the appellant started rendering services as an authorized workshop of M/s Tata Motors, it was incumbent upon them to bring the same to the notice of the department, which has not been done in this case. Therefore, the allegation of suppression of facts raised against the appellant is prima facie sustainable - Prima facie case not in favour of assessee - Conditional stay granted.

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• 2014 (1) TMI 358
  Stay application - Reversal of CENVAT Credit - Security services - Held that:- appellant has paid to the security provider the amount raised by them for the services rendered. The said invoices also indicate that the Service Tax charged by the service provider to the appellant. We find that the appellant cannot be faulted with for availing Cenvat credit of Service Tax paid for which he has already made the payment to the service provider. Non-payment of the Service Tax liability by the service provider to Government agency, prima facie, cannot be held against the appellant. Hence, we find that the appellant has made out a prima facie case for waiver of pre-deposit of the amounts involved. Accordingly, the application for waiver of pre-deposit of balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.

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• 2014 (1) TMI 357
  Disallowance of Cenvat credit - Dismantling of plants - Penalty u/s 11AC - Held that:- dismantling of plant by no stretch of imagination can be held to be input service. Normally input gives rise to tangible output without ending in no output. Nothing more to add for no legal basis advanced by the appellant to show that the activity in question was relevant, indispensable and intimately connected with manufacture or in relation to manufacture or providing output service. When the basic requirement of Rule 2(l) of Cenvat Credit Rules, 2004 was not satisfied, the appellant is not entitled to Cenvat credit - there is no observation in the appellate order about existence of ingredients of Section 11AC of Central Excise Act, 1944 to lend credence to Rule 15 of Cenvat Credit Rules, 2004. It appears to be an interpretation error by the appellant without any mala fide to abuse Cenvat credit. Therefore, there shall not be penalty in respect of the disallowance of Cenvat credit - Decided partly in favour of assessee.

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• 2014 (1) TMI 356
  Waiver of pre-deposit of Service Tax - Penalty u/s 76, 77 & 78 - Renting of the property - Held that:- appellants are co-owners of the property, any income received from such property needs to be apportioned individually to the co-owners and the co-owners liability to Service Tax has to be ascertained based upon the benefit of SSI Notification No. 6/2005, dated 1-3-2005 - appellants have made out a prima facie case for waiver of pre-deposit of the amounts involved - Stay granted.

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• 2014 (1) TMI 355
  Business auxiliary services - Pasteurisation of milk - Held that:- prima facie process of pasteurisation is a process necessary to make milk marketable to the consumer and is covered by the Chapter 6 and Chapter 4 of Central Excise Act, 1985. Therefore, we find it proper to grant waiver of pre-deposit of dues arising from the impugned order, for admission of appeal. It is ordered accordingly and there shall be stay on collection on such dues during the pendency of the appeal - Stay granted.

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• 2014 (1) TMI 354
  Demand of service tax - construction of residential complex - Tax paid by contractor - Assessee acting as developer - Held that:- eligibility for CENVAT credit for tax cannot be claimed to have been paid by Sabari Constructions since the appellants have not produced any valid proof of such payment - Conditional stay granted.

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• 2014 (1) TMI 353
  Refund claims of Service Tax - Terminal handling charges and repo charges - Notification No. 41/2007-S.T. - Held that:- show cause notice was issued on 24-12-2008 and appellant replied to the show cause notice on 25-12-2008 and the Range Officer had submitted the verification report on 7-1-2009, whether the matter was referred to Range Officer for verification after the reply was received or not is not clear from the facts of the case in respect of appeal No. 311/2010. However, the discussion would reveal that the documents were not complete and information was not sufficient to sanction the refund. The revisionary show cause notice is on a totally new ground that the appellant is not at all eligible for the refund since the Service Tax was paid in respect of services not notified under Notification No. 41/2007-S.T - However following precedents - Decided in favour of assessee.

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• 2014 (1) TMI 352
  Extension of time - Time for pre deposit - Held that:- it is proper to extend the date to 22nd September, 2011 for compliance - date of compliance as 22nd September, 2011 and the parties be communicated about such order forming an integral part of the orders pronounced yesterday - Decided in favour of assessee.

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• Central Excise

• 2014 (1) TMI 329
  PSC sleepers supplied at rate lower than the approved rate - Waiver of Pre-deposit – Held that:- The approval of price list has been dispensed with w.e.f.1.4.94 and the clearance documents like, invoices/gate passes were accepted on the basis for determination of assessable value - the price at which the goods were sold after 1994, would be relevant for determination of the assessable value under Section 4 of the Act in view of the amendment to Rule 173C of erstwhile Central Excise Rules, 1944 - the applicants are able to make a prima-facie case in their favour – Pre-deposits waived till the disposal – Stay granted.

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• 2014 (1) TMI 328
  Violation of provisions of Cenvat Credit Rules, 2004 – Cenvat credit availed on different plant – Waiver of Pre-deposit - Held that:- In view of the definition of ‘Input Services’ as well as the ‘Capital Goods’, the cenvat credit ought to have been availed on the capital goods as well as input services used in or in relation to the manufacture of intermediate product at their COB Plant - The applicants, instead of availing the said cenvat credit at Kaliapani Unit, had availed the same at their Balasore Unit, which prima-facie, is contrary to the procedure laid down under the Cenvat Credit Rules, 2004 - the applicants are directed to deposit 25% of the Cenvat Credit amount as pre-deposits – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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• 2014 (1) TMI 327
  Admissibility of cenvat credit availed against the invoices received – Waiver of Pre-deposit – Held that:- Revenue contended that even though they have received the invoices, the goods mentioned in the invoices had never been crossed the border and they had not received the goods in their factory - the inputs must not have been used in or in relation to the manufacture of final product - The determination of the issue rest on the appreciation of evidences collected by the Department and rebutted by the applicant - the applicants have already deposited an amount of Rs.10.00 lakhs – assessee has made a fair offer to deposit another Rs.7.00 lakhs – the assessee is directed to make pre-deposit of Rupees seven lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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• 2014 (1) TMI 326
  Waiver of pre-deposit of penalty under Rule 15(2) of CENVAT Credit Rules, 2004 r.w. Section 11 AC of the Central Excise Act, 1944 – CENVAT credit availed on input and input service used in the generation of electricity - Held that:- The applicant availed the credit on the inputs, input services and capital goods used in the generation of electricity and partly used the same for the non-duty paid finished goods - The audit party during the verification of records detected the irregularity of availment of the credit - The applicant reversed the entire credit along with interest immediately upon detection by the audit party - Prima facie, the deposit of duty and interest is sufficient for waiver of pre-deposit of penalty - Pre-deposit of penalty waived till the disposal – Stay granted

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• 2014 (1) TMI 325
  Eligibility for cenvat credit - MS angles, beams, TMT bars, channels used for the fabrication of capital goods and structures in the factory premises - Waiver of Pre-deposit – Held that:- The appellant has made out a prima facie case for the waiver of the pre-deposit of the amounts involved only on the ground of limitation as during the relevant period i.e. March 2006 to April 2009 - an assessee is eligible to avail cenvat credit on MS angles, beams, channels etc. if they are used in the factory for fabrication of machinery – Following Vandana Global Versus CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ] - there can be bonafide belief of the appellant for availing the cenvat credit – Pre-deposits waived till the disposal – Stay granted.

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• 2014 (1) TMI 324
  Goods cleared by EOU to DTA - Benefit of the Export Import Policy to made available without having valid permission from DGFT – Held that:- The issue is arguable one and needs to be considered from various angles - the DGFT have not given a clean chit to the appellant as regards the permission for DTA clearance - invocation of extended period of time is incorrect - as an EOU, appellant has been regularly filing the returns with authorities which indicated clearance effected, from their EOU - the show cause notice issued to the appellant would cover demand within the limitation period – Assessee is directed to deposit an amount of Rs.5 lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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• 2014 (1) TMI 323
  Adjournment due to unavoidable circumstances – Restored stay petition and appeal – Waiver of Pre-deposit – Held that:- The stay petition is of 2010 and the stay petition was heard with other stay petition filed and assessee was directed to deposit some amount - On compliance of which, the appellant was granted a waiver – but the assessee did not comply with the order - the appellant moved an application for restoration of appeal which was heard on 12.03.13 and the stay petition and appeal was restored - Since this is a restored stay petition and appeal, the adjournment sought by the appellant’s declined - Following Shri Mafatlal Harkchand Shah Versus Commissioner of Central Excise Ahmedabad [2013 (12) TMI 217 - CESTAT AHMEDABAD] - appellant directed to deposit an amount of Rs.1,00,000 as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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• 2014 (1) TMI 322
  Waiver of Pre-deposit – Held that:- Rs.1.13 Crores stands paid by them - the amount submitted is sufficient for the purpose of Section 35 F – rest of the pre-deposit waived till the disposal. The applicant was using the brand name of GTM - He is prima facie required to pay the duty on their products - M/s. Gurukripa consumer Care Products directed to deposit the entire duty amount as pre-deposit till the disposal – stay not granted. The stay application of Shri Pranayadutta Shukla - He is only a dealer, who was purchasing the goods from M/s. Gurukripa Consumer Care Products and selling them to GTM Teleshopping Pvt. Ltd. All these transactions are on paper – there was no justifiable reasons for imposition of penalty upon him – Decided partly in favour of Assessee.

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• 2014 (1) TMI 321
  Denial of Cenvat credit - Channels, beams, joists, round, angles, plates used in supporting structural – Waiver of Pre-deposit - Held that:- Following Vandana Global Ltd. vs. CCE, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ] - the issue is disputable issue of factual position - the applicant directed to deposit 50% of the duty as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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• 2014 (1) TMI 320
  Ineligible cenvat credit - Only the basis of paper transaction - Inputs did not move from Delhi to Ahmedabad - Waiver of Pre-deposit – Held that:- In various other assessees who were also covered under the same investigation, the Bench has granted an unconditional stay and produces copy of the orders – there was no reason to deviate from order –the applicants waived the pre-deposits till the disposal – Stay granted.

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• CST, VAT & Sales Tax

• 2014 (1) TMI 364
  Rate of tax - Purchase of goods during the course of inter-state trade - Tax at the rate of 14.5% in respect of sale from October 2012 or at the rate of 4% as prescribed under the Composition scheme - Held that:- petitioner has not been granted an opportunity of putting forth its case before the department. It was therefore stated that the petitioner may be granted an opportunity to put forth its case before the 2nd respondent before any precipitative action is taken in the matter - petitioner is at liberty to file its objections to the impugned notice dated 6.12.2013 within 15 days from today. If objections are filed to the impugned notice, the 2nd respondent or the competent authority is directed to consider the same, in the light of the relevant provisions of the Act and Rules and having regard to the nature of business carried on by the petitioner and thereafter to pass a speaking order. Till then, the respondents are directed not to take any precipitative action pursuant to the impugned notice - Decided in favour of assessee.

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• Indian Laws

• 2014 (1) TMI 365
  Partition of HUF - Title to property - Requisite Court fees - HUF Property - Whether the suit is properly valued for the purposes of Court Fee and whether proper court fee has been affixed on the plaint in light of the plaintiff s claim that she is in constructive possession of the suit property - Held that:- plaintiff herself had valued the suit premises at Rs. 40 lakhs, but has affixed the court fees of Rs. 19.50 - court fees that is filed is apparently deficient. As per Section 7 of the Court Fees Act, the plaintiff is required to pay the court fees on one-fourth share claimed by her. Thus, the plaintiff was required to pay the court fees at Rs. 10 lakhs being one-fourth of the value of the suit premises. Whether the suit property is self-acquired/HUF property of the father - Held that:- From the Assessment Order dated 31.03.1972 of the Assessment Year 1972-73, it is seen that the plaintiff’s father had declared some income from the suit premises in the status of HUF. It is also seen therefrom that the HUF came into existence under the assessee’s declaration made on 23.05.1966 on an affidavit. The Income Tax record of the subsequent year upto the Assessment Year 1999-2000 would evidence that the plaintiff’s father had been filing Income Tax Returns and been assessed to Income Tax as Karta of HUF. Suit premises was initially acquired by the plaintiff’s father in his own name and it was in those circumstances that the suit premises continued to be assessed to property tax in his individual name than that of HUF. The payment of property tax by any means does not create any right or title in the name of the assessee. Filing an eviction case by the plaintiff’s father in his own name instead of the HUF, can also be said to be only for the convenience. In any case, the partition could only be filed by him in his name, being the Karta of HUF. The conclusion comes out to be that the suit premises was the HUF property of the plaintiff’s father, with he being the Karta thereof till his death. Plaintiff is entitled to one-fourth share in the suit premises. This will however be conditional to the payment of deficient court fees by the plaintiff as indicated above, which she would be required to deposit within four weeks from the date of this order - Decided partly in favour of Plaintiff.

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