TMI Tax Updates - e-Newsletter
December 1, 2016

Case Laws in this Newsletter:

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

TMI SMS

• Clandestine removal - use of any of the committee's report for electricity consumption pattern always leads to arbitrariness

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Articles

1. All About New Income Disclosure Scheme to make Demonetisation successful: Proposed Salient Features

   By: Manoj Agarwal

News

1. Committee of Chief Ministers to examine and implement measures to implement digital payment systems

2. Taking Up Issue of IT Industry Visa Problems with US

3. RBI Reference Rate for US $

4. Accounts under PMJDY - Precautions

Notifications

Customs

1. 54/2016 - dated 29-11-2016 - ADD

Seeks to levy definitive anti-dumping duty on “Axle for Trailers” originating in, or exported from People’s Republic of China

2. 142/2016 - dated 29-11-2016 - Cus (NT)

Courier Imports and Exports (Clearance) Amendment Regulations, 2016

3. 141/2016 - dated 29-11-2016 - Cus (NT)

Regarding appointment of Common Adjudicating Authority

Income Tax

4. 107/2016 - dated 28-11-2016 - IT

Income-tax ( 33rd Amendment) Rules, 2016

Service Tax

5. 51/2016 - dated 30-11-2016 - ST

Seeks to amend Place of Provision of Services Rules, 2012 so as to exclude 'online information and database access or retrieval services' from the definition of 'telecommunication services'

Circulars / Instructions / Orders

Income Tax

1. 39/2016 - dated 29-11-2016

Transport, Power and Interest subsidies received by an Industrial Undertaking - Eligibility for deduction under sections 80-IB, 80-IC etc., of the Income-tax Act, 1961- Reg.

Highlights / Catch Notes

Income Tax

• Government Revenue Subsidies Qualify for Deductions Under Chapter VI-A, Counted as Business Profits from Industrial Undertakings.

  Circulars : Revenue subsidies received from the Government towards reimbursement of cost of production/ manufacture or for sale of the manufactured goods are part of profits and gains of business derived from the Industrial Undertaking / eligible business, and are thus, admissible for applicable deduction under Chapter VI-A of the Act.
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• High Court Affirms Right to Offset Charges Against Interest Income, Permitting Deductions for Prior Period Expenditure.

  Case-Laws - HC : Entitlement to set off interest finance and professional and other charges from the interest income for the next assessment year - prior period expenditure - Deduction allowed - HC
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• Section 292C: Documents Found in Searches Presumed Correct, But Not Income of Assessee.

  Case-Laws - AT : The presumption u/s. 292C is a rebuttal presumption. The presumption as envisaged in section 292C is limited to the correctness of the documents found at the time of search or survey, but that presumption has not been extended by the statute to be presumed to be the income of the assessee - AT
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• High Court Rules Assessing Officer Cannot Reassess Depreciation from Asset Revaluation u/s 115J of Income Tax Act.

  Case-Laws - HC : Permission to enhance the depreciation by revaluation of the assets upwards - whether assessee company has shown high depreciation in the Profit & Loss A/c during the year under consideration and defeated the provisions of Section 115J? - AO has not power to revisit - HC
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• Payment u/s 195 Deemed Fees for Technical Services; Assessee Must Deduct Tax at Source.

  Case-Laws - AT : TDS u/s 195 - nature of payment made - reimbursement of expenses or payment towards product development fees to assessee - the payment in question is FTS and consequently the assessee was liable to deduct tax at source - AT
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Customs

• Section 14 Customs Act: Duty Drawback Not Applicable to Exported Carpet Rolls Outside Indian Territory.

  Case-Laws - AT : Duty drawback - carpet rolls - provisions of Section 14 of Customs Act, 1962 (issuance of SCN) are not applicable to goods which have already left the shore of Indian Territory and the export of which has already taken place - AT
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Service Tax

• Service Tax Exemption on Complexes for Personal Use: No Tax If Used as Residence, Rented or Free.

  Case-Laws - AT : If the complex is constructed by a person directly engaging any other person for design or planning or layout and such complex is intended for personal use as per the definition, service tax is not attracted. Personal use has been defined as permitting the complex for use as residence by another person on rent or without consideration. - AT
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• Excess baggage transport by air not taxed under "transportation of goods by air" per Section 65 (105) (zzn) Finance Act 1994.

  Case-Laws - AT : The incidental service of ‘transportation of excess baggage by air’ cannot be charged service tax under the category of service of ‘transportation of goods by air’ as defined under Section 65 (105) (zzn) of the Finance Act, 1994 - AT
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Central Excise

• High Court Criticizes Arbitrariness in Electricity Consumption Reports for Clandestine Removal Cases, Calls for Fair Assessments.

  Case-Laws - HC : Presumptive SCN - Clandestine removal - without experiment is being carried out at the premises of the noticees, use of any of the committee's report for electricity consumption pattern always leads to arbitrariness on the part of the respondent-department - HC
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• CENVAT Credit Valid Despite Lack of Storage Facility; Landlord Confirms Godown Rental to Dealer.

  Case-Laws - AT : CENVAT credit - it cannot be alleged against the appellant that they have received the invoices and not the goods merely on the ground that there was not storage facility specifically when the landlord made a statement that the godown was let out to the dealer. - AT
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VAT

• Submersible Pumps for Agriculture Tax-Free Until June 2006; Now Taxed if Below 5 HP Capacity.

  Case-Laws - HC : HVAT - submersible pump sets used for agricultural purposes fall in Entry 1(D)(9) of Schedule 'B' upto June 30, 2006, hence tax free. From 1.7.2006 onwards pump sets below 5 HP capacity will fall in Entry 71-A in Schedule 'C', hence will be taxable irrespective of its end use - HC
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• Dealers Dispatching Taxable Goods Out-of-State Fall u/s 17(2) of Karnataka VAT Act, Even Without Exempt Sales.

  Case-Laws - HC : If any dealer sells taxable goods and even if he is not selling exempted goods, but, despatches goods outside the State otherwise than by way of sale, he could be considered as falling u/s 17(2) of KVAT - HC
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Case Laws:

• Income Tax

• 2016 (11) TMI 1373
  Income-tax on capital gains accruing from land acquisition compensation and sale of land - how the cost of acquisition is to be worked out for the purposes of deduction of such cost from the receipts so as to arrive at the correct quantum of capital gains exigible to tax? - tribunal thought it proper to determine the cost of acquisition at Rs. 50/- per square yard reversed by HC - Held that:- A declaration in the return filed by the Assessee under the Wealth Tax Act would certainly be a relevant fact for determination of the cost of acquisition which under Section 55(2) of the Act to be determined by a determination of fair market value. Equally relevant for the purposes of aforesaid determination would be the comparable sales though slightly subsequent in point of time for which appropriate adjustments can be made as had been made by the learned Tribunal (from Rs. 70/- per square yard to Rs. 50/- per square yard). Comparable sales, if otherwise genuine and proved, cannot be shunted out from the process of consideration of relevant materials. The same had been taken into account by the learned Tribunal which is the last fact finding authority under the Act. Unless such cognizance was palpably incorrect and, therefore, perverse, the High Court should not have interfered with the order of the Tribunal. The order of the High Court overlooks the aforesaid severe limitation on the exercise of jurisdiction under Section 260A of the Act. That apart, it appears that there was an on-going process under the Land Acquisition Act, 1894 for determination of compensation for a part of the land belonging to the Assessee which was acquired [39 acres (approx.)]. The Reference Court enhanced the compensation to Rs. 40/- per square yard. The above fact, though subsequent, would not again be altogether irrelevant for the purposes of consideration of the entitlement of the Assessee. However, as the determination of the cost of acquisition by the learned Tribunal was on the basis of the comparable sales and not the compensation awarded under the Land Acquisition Act, 1894 (the order awarding higher compensation was subsequent to the order of the learned Tribunal) and the basis adopted was open for the learned Tribunal to consider, we take the view that in the facts of the present case the High Court ought not to have interfered with the order of the learned Tribunal. Thus we are of the view that this appeal should be allowed which we hereby do. The order of the High Court is set aside and that of the learned Tribunal is restored.

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• 2016 (11) TMI 1372
  NRI challenging the assessment order u/s 144 - HC [2016 (5) TMI 948 - ALLAHABAD HIGH COURT] held as not inclined to entertain this petition as the petitioner has an alternative remedy of filing an appeal under Section 246 (1) (a) - Held that:- It appears that the High Court has omitted to take note of the explanation under Section 246 of the Income Tax Act. Therefore, we are of the view that the petitioner should be granted liberty to approach the High Court by way of a Review Petition. We permit the petitioner to file a Review Petition before the High Court within one month from today, in which case, the High Court shall consider the matter on merits.

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• 2016 (11) TMI 1371
  Deduction u/s 80IA - Calculation of the profits from the eligible business - Deduction of losses set off against the profits from other business is to be taken into consideration as held by Tribunal - HC [2015 (4) TMI 678 - KARNATAKA HIGH COURT] held once the set off is taken place in earlier year against the other income of the assessee, the Revenue cannot rework the set off amount and bring it notionally - Held that:- Special leave petition (titled “Assistant Commissioner of Income Tax, Tirupur vs. M/s. Velayudhaswamy Spinning Mills P.Ltd [2016 (11) TMI 373 - SUPREME COURT ] and connected cases filed against the judgment of the Madras High Court has been dismissed. The present case which pertains to a contrary view expressed by the Karnataka High Court will, nevertheless, require a detailed examination as the order of the Court dismissing the special leave petition does not contain any reasons therefor.Hence, we grant leave.

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• 2016 (11) TMI 1370
  Assessment u/s 153(C) - whether ITAT findings that the satisfaction note was flawed and could not withstand scrutiny under Section 153(C)? - Held that:- A plain reading of the note clearly shows that search in the business premises of two individuals was carried out; equally, survey of premises of the assessee was also carried out. In the course of this search of Shri Ved Prakash Bharti – who also was a director and assessee, some pen drives were found and seized. Further documents listed in Annexure A-1 too were seized after their print outs were obtained. These documents detailed cash receipts for the sale of the shops and offices in the assessee’s other concerns. Having regard to all these conspectus of facts, the AO expressed under Section 153C of the Act that the documents so seized “belonged” to the assessee. We are unpursuaded by the assessee’s submissions that the expression “belonged”, in the context in which it was used has to be understood as imputing “relating to”, or any other term. Plainly put, the AO was satisfied that the documents belonged to the assessee in view of what was contained or brought out on a fair reading of their contents. It must not to be overlooked that while construing a document, expressions should not be interpreted too literally as if they are, words, carved in stone or in a Statute - as the ITAT did in this case. For these reasons, we are of the opinion that the ITAT should not have allowed the appeal only on this hyper technical ground with regard to the satisfaction note. Those findings are, accordingly, set aside. ITAT’s decision with respect to the satisfaction recorded by the AO under Section 153C of the Act is set aside. A further direction is issued to the ITAT to hear the appeals afresh on merits uninfluenced by the observations of this Court on the contentions of the parties.

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• 2016 (11) TMI 1369
  Disallowance u/s 14A r.w.r. 8D - Held that:- The language of Section 14A presupposes that the AO has to adduce some reasons if he is not satisfied with the amount offered by way of disallowance by the assessee. At the same time Section 14A (2) as indeed Rule 8D(i) leave the AO equally with no choice in the matter inasmuch as the statute in both these provisions mandates that the particular methodology enacted should be followed. In other words, the AO is under a mandate to apply the formulae as it were under Rule 8D because of Section 14A(2). If in a given case, therefore, the AO is confronted with a figure which, prima facie, is not in accord with what should approximately be the figure on a fair working out of the provisions, he is but bound to reject it. In such circumstances the AO ordinarily would express his opinion by rejecting the disallowance offered and then proceed to work out the methodology enacted. In this instance the elaborate analysis carried out by the AO – as indeed the three important steps indicated by him in the order, shows that all these elements were present in his mind, that he did not expressly record his dissatisfaction in these circumstances, would not per se justify this Court in concluding that he was not satisfied or did not record cogent reasons for his dissatisfaction to reject the AO’s conclusion. To insist that the AO should pay such lip service regardless of the substantial compliance with the provisions would, in fact, destroy the mandate of Section 14A. Thus this Court is satisfied that the disallowance which is otherwise in accord with Rule 8D(c) was justified.

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• 2016 (11) TMI 1368
  Entitlement to set off interest finance and professional and other charges from the interest income for the next assessment year - prior period expenditure - Held that:- The note appended to the computation of income file along with the return by the assessee in this case clearly stated that interest and legal charges were excluded on the basis of the Income Tax Department’s stand in other group cases that they could be included in the case of land and were done by way of “abundant caution” as a disallowance. Having regard to this circumstance and further the fact that other group company cases i.e. Kum Kum Cultivation involved a similar and identical exercise where ultimately the disallowance was set aside by the ITAT, the adoption of the same course of action in this case cannot be said to have been erroneous. Furthermore, in the eventuality of the transaction itself maturing the likelihood of the assessee being permitted to capitalize or include the interest component as part of the cost of land has not been disputed. If such is correct course of action, the reverse situation whereby the transaction does not mature, should also attract a similar treatment that the interest paid but not shown as deductible expenditure for the previous period should be permitted as prior period expenditure. - Decided in favour of the assessee

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• 2016 (11) TMI 1367
  Unaccounted income from sale of property - CIT(A) deleted the addition holding that the seized document does not belong to the assessee - validity of assessment u/s 153C - Held that:- There is no absolute or limited ownership of the assessee over the seized documents apart from the fact that the transactions recorded therein pertain to properties owned by the assessee. Now the requirement under the law is not regarding the ownership of the properties mentioned in the seized document but it is regarding the ownership of the document itself. As there is no intimate connection between the contents of the seized documents and the assessee and neither there is any other corroborative evidence to the effect that the assessee had received the cash portion recorded in the seized document therefore the requirement under the law that the seized document should belongs to the assessee for initiation of proceeding u/s 153C of the IT Act are not fulfilled in the case of the assessee. Therefore, Ld. CIT(A) has rightly held that the addition made based on the papers seized from the computer at the residential premises of Sh. Sandeep Singh Khinda and Smt. Samta Khinda are not in accordance with law and was therefore rightly deleted by the Ld. CIT(A). Also reference to the name of person in the seized document cannot be the basis to come to the conclusion that the document belonged to the said person. Proceedings initiated on the basis of the such assumption u/s. 153C were held to be without jurisdiction. See Vijaybhai N. Chandrani Versus Assistant Commissioner of Income-tax [2010 (3) TMI 770 - Gujarat High Court] - Decided against revenue Addition unaccounted income or receipt during the year under consideration on sale of Property applying Sec 292C - non reference to DVO - Held that:- There is thorough lack of corroborative and confirming evidence and thorough lack of enquiry on the part of AO where all cases were with him only. No attempt is made to make reference to DVO by AO or CIT-A. There is no examination of any concerned witness/party to transaction. Only suspicion has weighed to make the colossal addition. There is no hidden bank a/c so as to transact the given money. There is no bayana agreement or any other adversarial document found during extensive search operation specific to charge made. The charge made against the assessee only resolves around a single piece of Paper which is not handwritten from any of the transacting parties. Even if the document is taken on face value than no gainful premium construction can be taken as neither the seller} nor the buyer is taken on board at the time when this subject paper was found. This paper is out of syllabus for Mr. Sandeep Khinda not being the owner of the property. Section 292C being rebuttable presumption cannot made assessee's burden to be infallable as the same can't be elevated to be proven to the hilt i.e as far as Sudhiksha is concerned, assumption of jurisdiction u/s 153C is concerned to make a document to be belonging to the assessee, presumption u/s 292C can't be resorted i.e belonging to criteria can't be satisfied on the basis of presumption & assumption. As per record Mrs. Sudhiksha Singh another assessee had disclosed this transaction voluntarily in normal course by paying due capital gain u/s 50C read with section 48 i.e there is no sanction & under the present law to tax a seller over & above the given transaction rate which is well considers the applicable rate otherwise sec 50c will become redundant. This can be a fiction in fiction i.e. 292 can't be infused a incorporated in section 50c. In our view, suspicion how grave & strong can't substitute the place of reliable cogent evidence to fasten a tax liability. Thus as in the present case, the detail of the property i.e D-17 Pushpanjali, against which it has been alleged by the Ld AO that" On Money" has been received against the sale of property was never owned by the assessee. However, there is no iota of evidence with the Department to suggest that loose sheet disclose receipts resulting in an undisclosed income on the part of the assessee. Therefore there is no question of assessing any income in the hands of the assessee .- Decided against revenue Protective addition of income - Held that:- CIT(A) has rightly observed that since the source of the investment in cash for Rs. 74 lacs is forming part of the cash of Rs. 3.50 crores which has been held as unaccounted income of Sh. Sandeep Singh Khinda in his appellate order for AY 2007-08, therefore, the amount of Rs. 74 lacs is a case of application of income already brought to tax on substantive basis in case of Sh. Sandeep Singh Khinda. Accordingly, he directed the AO to delete the protective addition of Rs. 74 lacs in the case of assessee i.e. M/s Habitat Royale Projects P Ltd. made by AO. However, as aforesaid, in the case of Sandeep Singh Khinda vide for the assessment years 2007- 08 and 2008-09, we have already deleted the addition of Rs. 3.50 crores and Rs. 17.50 crores respectively, therefore, the question of deletion of addition of Rs. 74 lacs does not arise as the investment in cash for Rs. 74 lacs was forming part of the cash of Rs. 3.50 crores - Decided against revenue

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• 2016 (11) TMI 1366
  Addition under the provisions of section 292C - Unaccounted income - addition u/s 69/69B/69C - ingenuine transaction - Held that:- Here a paper is found during the course of search on 6.11.2008 and assessment of search made by the AO u/s. 143(3) of the Act. In fact AO should have proceeded to act u/s. 153A of the Act. AO should also have recorded his satisfaction in this case u/s. 153A of the Act. Even otherwise, the document shown before us does not have the date of transaction where amount of Rs. 96 lakhs is alleged to have been transferred by appellant to other person. Further the AO has also stated that the transaction is also corroborated by the date of cheque transaction. We do not found any cheque transaction where assessee is involved in the present transaction which is allegedly taxed in the hands of the assessee. Much to say that there was no date of cash transaction as alleged then it is surprised how AO has correlated the date with other transaction. Even otherwise when the assessee had denied the transactions, AO should have examined the recipient of search stated in that document and then confronted the assessee with the same. All these exercise have not at all been carried out by the AO. Furthermore, the presumption stated u/s. 292C of the I.T. Act is a rebuttal presumption. Therefore, when the assessee herself denied any such transaction, it cannot be stated that the actual transaction has taken place between the assessee and the person concerned whose name mentioned therein. Further the Circular No. 24 of 2015 dated 31.12.2015 also supports the case of the assessee that satisfaction should have been recorded in the case of the appellant u/s. 153A of the I.T. Act. Therefore, the Appellant succeeds on the issue of satisfaction in view of the CBDT’s Circular stated above and also on the merit as the sole addition has been based on the document in which one transaction is allegedly sold without mentioning the date and further no corroborative evidence of any investment made by the assessee was found. Further the document is also unsigned and undated, the addition made in the hands of the assessee of Rs. 96 lacs cannot be sustained. Thus we reverse the finding of the Ld. CIT(A) by confirming the addition in the hands of the assessee under the provisions of section 292C - Decided in favour of assessee Addition of unexplained jewellery u/s. 69B - Held that:- Both the authorities below have made the additions and confirmed part addition without any basis and the same is totally based on assumption only which is not sustainable in the eyes of law. It is a settled law that addition on assumption is not permissible under the law. Even otherwise, the Appellant succeeds on the legal issue of satisfaction in view of the CBDT’s Circular as stated above and therefore, the addition is not sustainable in the eyes of law. Hence, we delete the addition confirmed by the Ld. CIT(A) of Rs. 5.67 lacs towards the unexplained jewellery u/s. 69B - Decided in favour of assessee

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• 2016 (11) TMI 1365
  Addition of undisclosed income - cash against the sale of property - Held that:- We find that assessee has sold property no. ES95, Block R & T Nirvana Country, South City -II, Gurgaon during FY 2008-09 for Rs. 60 lacs. It has not made any sales during the FY 2007-08 and that all the payment against sale of this property has been received through cheques and that no other amount has been received by the assessee in cash against the sales consideration of this property. The details mentioned on the right side of page 4 of Annexure A-I of party G- 3 are seem to be some rough working and it is not clear from the details whether these are for purchase /sale/investment in the property ES -95. It also seems that these are some wrongly mentioned figures noted by somebody. In the details below "Chq", figure of 15,700,000.00 is mentioned. As per record, there is no reference of any cash payment on these details and also there is no reference of any payment received or paid in cash on these details. Therefore, the allegation made by AO that a cash payment of Rs. 97 lacs has been made received against this property & out of which Rs. 15 lacs has been paid reed during the financial year 2007-08 is based on mere conjecture & surmises. That the chart does not reveal any such transaction dates/amount pertaining to any year. This is simply a dumb document. There is no other material on record other than this loose paper to corroborate the stand of the department. We find that since assessee has not received paid any amount in cash against the sale of the above property, no unexplained and unaccounted income from unaccounted sources can be attached to the assessee with respect to above transaction. Therefore, the presumption u/s. 292C of the Act is a rebuttal presumption. The presumption as envisaged in section 292C is limited to the correctness of the documents found at the time of search or survey, but that presumption has not been extended by the statute to be presumed to be the income of the assessee. - Decided in favour of assessee.

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• 2016 (11) TMI 1364
  Permission to enhance the depreciation by revaluation of the assets upwards - whether assessee company has shown high depreciation in the Profit & Loss A/c during the year under consideration and defeated the provisions of Section 115J? - Held that:- As decided in Commissioner of Income Tax-II Kanpur Vs. M/S. J.K. Synthetics Ltd. Kamla Tower Kanpur [2015 (10) TMI 397 - ALLAHABAD HIGH COURT] following the decision of the Supreme Court in Apollo Tyres Ltd. Vs. Commissioner of Income-Tax (2002 (5) TMI 5 - SUPREME Court) wherein find from a perusal of the assessment order that the net profit shown in the profit and loss account of the company was prepared in accordance with Parts II and III of Schedule VI to the Companies Act. Once this finding has been given, the Assessing Officer could not go behind the net profit shown in the profit and loss account except to the extent provided in the Explanation to Section 115J of the Act. Provision of Section 115J does not empower AO to embark upon a fresh inquiry in regard to the entries made in the books of account of the company. The Supreme Court has categorically held in Apollo Tyres (Supra) that there cannot be two incomes, one for the purpose of the Companies Act and another for the purpose of income-tax.

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• 2016 (11) TMI 1362
  Transfer pricing adjustment - mandatory comparability analysis - Held that:- Transfer Pricing Officer has also adopted transactional net margin method (TNMM) as the most appropriate method and selected 7 comparables without carrying out FAR analysis of those comparables with the assessee. Therefore there is basic flaw in the transfer pricing mechanism adopted by the ld. Transfer Pricing Officer. Moreover, he has also not given an opportunity to the assessee to comment on the comparables selected by him. The ld. first appellate authority has relied upon the decision of Philips Software Centre (P.) Ltd. [2008 (9) TMI 466 - ITAT BANGALORE-B ] and has held that since the ld. TPO has not mentioned any of the four conditions prescribed u/s 92C(3) of the Act rendering his order void. During the course of hearing the ld. DR has submitted that Hon'ble Karnataka High Court [2009 (2) TMI 832 - HIGH COURT OF KARNATAKA] has stayed the above judgment and therefore, the decision of the first appellate authority is erroneous as it relied on the stayed judgment. The Hon'ble Karnataka High Court vide its order dated 16.02.2009 has stayed the operation of the judgment on which the first appellate authority has relied upon. Though the Hon'ble High Court admitted the several questions of the law but stayed the whole of the judgment of the coordinate bench. Hence, we reject the contention the ld. AR that the decision of the coordinate bench is stayed to the limited extent. In view of above facts it is apparent that ld. first appellate authority vide his decision dated 25.03.2010 relying on the decision of the coordinate bench which was stayed by Hon'ble Karnataka High Court vide order dated 16.02.2009 deserves to be set aside. Hence, we set aside all the four grounds of the appeal to the file of the ld. TPO to determine ALP of international Transactions after giving assessee a proper opportunity of hearing. Addition on account of depreciation on rental assets - Held that:- infirmity in the order of the ld CIT(A) in allowing the claim of deduction of the depreciation to the assessee as assessee owns the assets and also uses it for the purposes of its business. The revenue's another aspect of this ground is that ld CIT(A) has admitted the affidavit of the assessee before him. We have perused the order of the ld CIT(A) wherein the affidavit only says that the assessee has not received any rent or installment on account of these machines. We reject the argument of the revenue as the information in the form audited financial statement is available on record as assessee has not shown any rental income in its profit and loss account and further in its fixed assets schedule it has shown the rental assets. - Decided against revenue Depreciation claimed on computer peripherals - Held that:- CIT(A) has correctly allowed the claim of the assessee of depreciation @ 60% on such assets following the decision of the Hon'ble Delhi High Court in CIT v. BSES Rajdhani Power Ltd [2010 (8) TMI 58 - DELHI HIGH COURT ] - Decided against revenue Disallowance of seminar expenses - Held that:- CIT(A) has held that these are the expenses for the marketing of new products launched by the assessee in the same line of business. They are routine in nature and further the decision of Hon'ble Supreme Court in case of Madras Industrial Investment Corpn. Ltd. v. CIT [1997 (4) TMI 5 - SUPREME Court ] does not apply to the facts of the case. We do not find any infirmity in the order of the ld. CIT(A) - Decided against revenue Allowance of expenditure on display stand - Held that:- CIT(A) has deleted the disallowance after verification of the invoices which demonstrated that expenses were incurred for display panel, banner stand and other kinds of display literature. He therefore held that looking to the nature of the expenditure and durability and longitivity of these items such expenditure is revenue in nature. We find no infirmity in the order of the ld. CIT(A). - Decided against revenue

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• 2016 (11) TMI 1361
  Grant of registration u/s. 12A and approval u/s. 80G denial - denial of claim holding that the aims and objects of the Society are not charitable and activities conducted by the appellant are not genuine - Held that:- From the analysis of the financial statements, we find that the nominal surplus amounts shown above remained with the society and not distributed amongst its. The appellant society has charged fees from students, but the same has been utilized for running of school for education purpose. Therefore, the view of the ld. CIT that society has charged hefty fees from students and hence, operating commercial activities is wrong and not supported by any material on record. The finger raised by ld. CIT on the activities of appellant society and its aims and objects being not charitable is, therefore, based on no good reasons relevant for refusal to grant registration. Therefore, in view of several decisions relied on by the ld. Counsel for the assessee and in the attending facts of the case, we direct the ld. CIT to grant registration u/s. 12A and approval u/s. 80G of the Act as prayed for.

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• 2016 (11) TMI 1360
  Revision u/s 263 - Held that:- In respect of both the issues, i.e., allowing credit of deemed taxes paid on dividend in Oman as well as capitalisation of interest under section 36(1)(iii) detailed enquiries as well as verification have been made by the Assessing Officer. Further it is also not the case of the learned Principal Commissioner of Income-tax that the order is not in accordance with any instruction/direction issued by the Board or is not in accordance with any decision of the honourable Delhi High Court or the apex court of India. Accordingly the order passed by the Assessing Officer cannot be regarded as deemed to be erroneous or prejudicial to the interests of the Revenue under Explanation 2 of the Act. In view of the above, we hold that the impugned order passed by the learned Principal Commissioner of Income-tax under section 263 of the Income-tax Act is without jurisdiction and not sustainable in law. - Decided in favour of assessee

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• 2016 (11) TMI 1359
  Bogus purchases - Held that:- As decided in assessee's own case for immediately preceding A.Y.2005-06 the sale of the assessee is not disputed by AO and ld CIT(A). Thus, evidences are sufficient to show that actual delivery of goods was received by assessee from the said parties. While making the submission, DR for Revenue has not countered any of the evidence placed on record by the assessee. With these observations, we hold that AO made the addition on the basis of mere presumption and the ld CIT (A) also sustained the 25% of addition without giving any reasoning. Therefore, keeping in view the pacularity of facts and circumstances of the case, the entire addition made by the AO deserves to be deleted. Hence, this Ground of appeal raised by the assessee is allowed.

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• 2016 (11) TMI 1358
  TDS u/s 195 - nature of payment made - reimbursement of expenses or payment towards product development fees to assessee - Double Taxation Avoidance Agreement - falling under the ambit of the term FTS - non deduction of tds - assessee treated as 'assessee in default' under Section 201(1) and 201(1A) - Held that:- The payment in question were made by the assessee in respect of research and development and operation towards clinical trial carried out by the Malaysian subsidiary of the assessee. As per the tripartite Memorandum of Understanding (MOU) between the assessee, its Malaysian subsidiary and Cipla, it was agreed upon between the parties that Cipla would make the payment towards product development fees to assessee to be utilized by it for its clinical trial, research and development and operational expenditure in India as well as in Malaysia. There is no dispute that as per the MOU between the parties, the cost of R & D as well as clinical trials undertaken by the assessee and its Malaysian subsidiary was to be borne by Cipla and in turn outcome of the R & D as well as clinical trials will be belonging to Cipla. Thus the outcome product of the R & D as well as clinical trials would not belong to the assessee or its subsidiary but the Cipla had the right over the same. Therefore the Cipla has right to acquire the outcome in the shape of technical information, technology documentation, know how and process involved in all clinical R&D. Though the assessee has reimbursed the expenses to its subsidiary however in case the payment is considered as tax for technical services then the element of profit becomes irrelevant as the gross payment is taxable. Thus it is clear under Article 13(3) of DTAA in question there is no clause of make available and the terms FTS means payment of any kind in consideration for rendering of managerial, technical or consultancy services/provision for services by technical or other personnel. Conducting clinical trials & R&D is clearly a service which is technical in nature therefore providing the outcome of the research to Cipla through the assessee clearly falls under the ambit of the term FTS as per the Article 13 of the DTAA between India & Malaysia. Thus, we do not find any error or infirmity in the orders of the authorities below in holding that the payment in question is FTS and consequently the assessee was liable to deduct tax at source under Section 195 of the Act. - Decided against assessee

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• 2016 (11) TMI 1357
  Additions towards alleged short valuation of closing stock - Held that:- On verification of the details furnished by the assessee, we find that while analyzing the closing stock details, the A.O. has taken raw materials issued for production and goods manufactured for the particular month without considering brought forward stock available at shop floor, which is the reason for arriving at a shortage/excess production loss on monthly basis. Therefore, we are of the opinion that when the books of accounts maintained by the assessee are accepted without any discrepancies, the A.O. was not correct in tinkering with the method of closing stock adopted by the assessee to determine the value of closing stock of raw materials. Hence, we are of the view that the A.O. was completely erred in adopting average price method to determine the closing stock as against the consistent method of accounting followed by the assessee i.e. cost price method to determine the closing stock. Hence, we direct the A.O. to delete additions made towards short valuation of closing stock. Additions towards alleged excess production loss - A.O. made additions towards excess production loss by stating that the assessee has claimed excessive production loss when compared to previous financial year - Held that:- Though the A.O. analysed raw materials consumption according to his own method, the method followed by the A.O. is inconsistent with the accepted principles of calculation of production loss, therefore, in our considered view, the A.O. has completely erred in coming to the conclusion that the stock registers maintained by the assessee are not showing true and correct pictures, when the assessee has clearly demonstrated with necessary evidence that the stock figures declared in the financial statements are tallied with the stock registers maintained in accordance with the Central Excise rules. The A.O. after analyzing raw materials, failed to arrive at a correct figure of production loss instead, proceeded with estimation of production loss based on certain articles published in some magazine which is not a binding nature, ignoring the stock registers furnished by the assessee which are approved by another authority of the revenue department and also certified by a certified accountant under the provisions of Income Tax Act, 1961. Therefore, we are of the view that the production loss estimated by the A.O. is not correct and accordingly, we direct the A.O. to delete additions made towards production loss. Addition towards alleged low gross profit - Held that:- We are of the opinion that the A.O. was incorrect in estimating gross profit by taking in to account average of last 3 years gross profit declared by the assessee, without pointing out any specific error or defect in the financial books of accounts or stock registers maintained by the assessee. The assessee, on the other hand clearly demonstrated with evidences that the quantitative details furnished by the assessee are consistent with the stock registers maintained in accordance with the Central Excise rules. Therefore, we are of the considered view that the A.O. was erred in estimating the gross profit. Hence, we direct the A.O. to delete additions made towards alleged low gross profit.

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• 2016 (11) TMI 1356
  Transfer pricing adjustment - RPT filter application - Held that:- Where the DRP has applied 0% RPT filter and as per the settled position of law by now, the RPT filter should be applied at the rate of 15%, we set aside the order of the AO/TPO and restore back the matter to the file of the AO/TPO for a fresh decision by applying RPT filter of 15%. We also hold that since the matter is going back to the file of the AO/TPO and much development has taken place in the legal position on the TP issue, now the entire matter should be reexamined and decided afresh by the AO/TPO as per the present legal position, which may result into fresh consideration of those comparables which were rejected earlier for some reasons.

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• Customs

• 2016 (11) TMI 1325
  Demand - import of kits containing CDs software - royalty - exemption under Notification No. 6/2006- CE - Held that: - the exemption under serial No. 27 of said notification is available only to software which are developed from basic building blocks resulting in emergence of new software product. However in this case it is a customized software and not specific software and hence not eligible for exemption under the said notification. Valuation - method to be adopted for re-asssement of the assessable value - Held that: - since the identical goods of greatest aggregate quantity are not imported, the recourse to Deductive Value Method i.e Rule 7 of Customs Valuation cannot be taken and therefore recourse has to be taken of Rule 8 (Residual method) of Customs Valuation (Determination of Price of Imported goods) Rules, 1988 by giving reasonable flexibility. The price list of M/s Esys Information technologies and M/s Ingram Micro have been given to the Appellant as relied upon document which acts as a bench mark to calculate the assessable value. We therefore direct the lower authorities that while arriving at assessable value in terms of Rule 8 the appropriate adjustment towards expenses, taxes and profit margins has to be given to the Appellant. Confiscation of goods and Imposition of penalty - Held that: - the confiscation has been ordered in respect of only those Bill of Entries which were provisionally assessed. Further penalty under Rule 112 (a) and Section 114 A has been imposed on the ground of misdeclaration of goods. We find that there is no infirmity in the above observation of the adjudicating authority and therefore uphold the confiscation of goods as well as imposition of redemption fine and penalties. We remand the case back to the adjudicating authority only for the limited purpose of re-quantification of duty by determining the assessable value in terms of Rule 8 of Central Excise Valuation Rules, 1988 after taking into consideration the Appellant’s submission on appropriate adjustment towards expenses, taxes and profit margins - appeal allowed by way of remand.

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• 2016 (11) TMI 1324
  Valuation - incorrect MRP value affixed on the packages - the appellant is a habitual offender and this is the second time he is coming before this Tribunal on identical issue. There is no excuse for not declaring the correct value in the Bills of Entry. He therefore submits that in this case, there is no justification for reduction of redemption fine as was done in the previous case - the mistake happened because of the mistakes in invoices issued by the suppliers on the basis of which they filed bills of entry. He also submitted that the goods are subjected to examination before clearance. He therefore submits that leniency in this case may be shown and the exorbitant redemption fine imposed by the original adjudicating authority may be reduced. Held that: - we find that there is a case for reduction of redemption fine of Rs. 8 lakh imposed by the original adjudicating authority in the peculiar facts and circumstances of the present case. Hence, redemption fine is reduced to Rs. 2,00,000/- (Rupees two lakh only). Impugned Order-in-Appeal is upheld with the said modification - appeal disposed off with some modifications.

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• 2016 (11) TMI 1323
  Duty drawback - carpet rolls - valuation - whether drawback already disbursed was in excess of their admissibility? - shortage of goods - Held that: - the container was not inspected immediately after it was removed from ICD, Bhadohi. The counting of the contents of container was carried out much later after eighteen days of container being out of the control of Officers. For counting contents of the goods at the Gate Way Port several times it was reopened, resealed, & shifted from one container to another. Therefore, it cannot be established beyond doubt that the goods stuffed in containers at the time of sealing of container at ICD, Bhadohi were less than that declared in the said Shipping Bills. The fact also has emerged that when the goods were actually exported after provisional release Overseas importer received 63 rolls less than that declared in the said three Shipping Bills but the valuation of the goods exported through said three Shipping Bills was not reduced by the importer but the less payment by the Sunshine Overseas importer was on account of short delivery of goods. Therefore, the market enquiries conducted in respect of goods which were exported through the said three Shipping Bills is not established to be correct since importer in foreign country has remitted full amount for the quantity received. Further, we find that for the valuation of goods which were exported from 02-02-2004 to 24-06-2008, the Show Cause Notice has resorted to Section 14 of Customs Act, 1962. Section 14 of Customs Act, 1962 empowers valuation of export goods and export goods is defined at Clause 19 of Section 2 of Customs Act, 1962 as the goods which are to be taken out of India to a place outside India. It clearly establishes that the goods which are presented for export are export goods and goods which are exported do not satisfy the definition of export goods. Therefore, provisions of Section 14 of Customs Act, 1962 are not applicable to goods which have already left the shore of Indian Territory and the export of which has already taken place. Therefore, we hold that all the allegations and findings in respect of goods which were exported during the period from 02-02-2004 to 24-06-2008 are totally unsustainable. We also find that the penalty under Section 114 of Customs Act, 1962 cannot be imposed for dereliction duty on the part of the Officers. We, therefore, hold that penalty imposed on Shri Pawan Kumar Singh & Shri S.K. Vishwakarma is not sustainable. We, therefore, hold that it could not be established that at the time of export of goods from ICD, Bhadohi the exporter misdeclared the goods and therefore we hold that penalty imposed on exporter and its Partners Mr. Yadavendra Kumar Roy & Mrs. Rita Roy is also not sustainable. Disbursement of drawback - Held that: - we remand the case to drawback disbursement Authority with a direction to take into account export of the goods really taken place and total remittance that is received for the quantity of goods exported and allow drawback as per provisions of law. We set aside the remaining part of the Order-in-Original impugned and remand to the drawback disbursement Authority for disbursal of drawback on the goods exported through said Shipping Bill No. 702/703/704/DBK/2008 all dated 07-06-2008 on the basis of actual quantity of export and on the basis of actual foreign exchange realized as per the provisions of law. Appeal allowed by way of remand.

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• 2016 (11) TMI 1322
  Claim of exemption on import goods against advance licence - Input stage credit - Rule 57A of the Central Excise Rules - entitlement to the exemption availed under notification No.203/92-Cus dated 19/05/1992 - forged licence - Held that: - the appellant is a transferee of the licences which were issued to the original manufacturer exporter. The said licenses are genuine and there is no allegation that these licenses were procured by forging the documents or the licenses were forged. The licenses were produced by the appellant before the authorities in 1994 while clearing the goods imported and claimed the exemption as per the licenses. It is a case of the Revenue that the appellant is ineligible to avail the benefit of notification No.203/92 as they could have availed the modvat credit on inputs in respect of the materials exported for procuring the advance licenses. While it is a case of the appellant that there is no evidence shown that the original licence holder who was a manufacturer exporter had availed modvat credit. On perusal of the advance licenses which are annexed when the appeal memorandum, we do find strong force in the submissions made by the learned Counsel that these licenses were issued to some other manufacturer exporter who had sold these licenses to the appellants. If it is so, then, in our view demand of custom duty cannot be made against the appellant holding that they have availed modvat credit on the inputs. We find that there is no evidence in the entire records to indicate that the appellant had availed modvat credit on the inputs in order to deny the benefit of Notification No.203/92 dated 19/05/92 - appeal allowed - decided in favor of appellant-assessee.

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• Service Tax

• 2016 (11) TMI 1363
  Service tax liability - commission paid to the foreign commission agents - reverse charge mechanism - period 18.04.2006 to 31.02.2007 - Held that: - the Bombay High Court in the case of Indian National Shipowners Association [2008 (12) TMI 41 - BOMBAY HIGH COURT], clarified the law by their judgement dated 11.12.2008. We agree with the ld. Advocate that prior to declaration of law by the Hon’ble High Court, there was utter confusion in the field and the law got settled only with the said judgement. The period involved in the present case is admittedly prior to the said decision of the Hon’ble Bombay High Court and we find that the appellant deposited the dues on 23.03.2009 i.e. within a period of 3 weeks of declaration of law by the Bombay High Court. We also take note of the decision referred supra, wherein in an identical situation, the provisions of Section 80 were invoked and the benefit was extended to the appellant. Accordingly, we hold that in absence of any malafide on the part of the appellant, the imposition of penalty upon them is not justifiable, the same is accordingly set aside. The demand as also interest stands confirmed as not contested. Appeal disposed off - decided in favor of assessee.

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• 2016 (11) TMI 1355
  Waiver of pre-deposit - Club Association service - Renting of immovable property service - Health Club fitness service - Development & Supply of Content service - GTA service - IPR service - Held that: - prima facie, the demand made in club and association services to the tune of Rs. 1.41 crores is covered by decision of Hon'ble High Court of Gujarat in the case of Sports Club of Gujarat Ltd, Vs. UOI [2013 (7) TMI 510 - GUJARAT HIGH COURT], in favour of the applicant. In respect of the various other services like renting of immovable property as well as GTA services we find that significant amount already stands deposited. Considering overall demand, we are of the view that the amounts already deposited would suffice for the purpose of hearing the present appeals. We waive the requirement of the balance amount of service tax demanded, interest thereon and on the penalty till the disposal of the appeal - stay granted

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• 2016 (11) TMI 1354
  Whether the activity of construction of residential complex by the respondent, in terms of agreement entered into with M/s. Jindal Power Ltd, for the occupation of flats by their employees, would attract Service Tax liability under the category of ‘construction of residential complex’ or not? - Held that: - Reference can be made to the decision of Tribunal in the case of Commissioner of Central Excise, Aurangabad vs. Mall Enterprises [2015 (11) TMI 333 - CESTAT MUMBAI] as also to the decision in the case of Nithesh Estates Ltd. vs. CCE & ST & Cus., Bangalore [2015 (11) TMI 219 - CESTAT BANGALORE], where it was held that From the definition it is quite clear that if the complex is constructed by a person directly engaging any other person for design or planning or layout and such complex is intended for personal use as per the definition, service tax is not attracted. Personal use has been defined as permitting the complex for use as residence by another person on rent or without consideration. Appeal rejected - decided against Revenue.

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• 2016 (11) TMI 1353
  Imposition of penalties u/s 76 and 77 of the FA, 1962 - taxability - reverse charge basis - As per facts on record, the appellant availed the services of foreign commission agent for procuring their orders from various Customers. With the insertion of section 66A in the Finance Act effective from 18.4.2006, the appellant was required to pay the service tax on such services, so received by them, on reverse charge basis - Held that: - I find that whatever Service tax was required to be paid by the appellant, was available to them as cenvat credit. As such, the entire situation is revenue neutral, in which case, no malafide can be attributable to the appellant. Accordingly, I am of the view that imposition of penalty upon them are not justifiable. The same are accordingly, set aside while upholding the service tax and interest as not challenged - appeal allowed - decided in favor of assessee.

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• 2016 (11) TMI 1352
  Refund claim - accumulated service tax paid for various input services - export of services without payment of tax - Scientific or Technical Consultancy Services - Held that: - the credit has been allowed on various services following the decisions as held in various cases, except for fleet management services/ Rent-a cab services. The appellant has claimed refund of credit of service tax paid on Rent-a cab services. The appellant has changed the nomenclature of the services from Rent-a-cab service to Fleet Management Services. Such change of name will not make the appellant eligible for credit because the services are used after 01.04.2011. The definition of input services expressly excludes Rent-a cab service and the appellant has not adduced evidence to prove that how they are eligible for credit on such service. Therefore the claim of credit in respect of Rent-a cab service is disallowed. In regard to other services, I hold that they qualify as input services and therefore are eligible for credit. The appellant having produced sufficient details with regard to the service provider and ISD challans and after verification as conceded by the Ld. AR, I hold that this issue is clarified and solved in favor of assessee. Appeal allowed - decided partly in favor of appellant.

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• 2016 (11) TMI 1351
  Levy of tax - transport of goods by air - the chargeability of service tax on the amount collected from passengers as charges for transportation of their ‘excess baggage’ by the appellant Airline during the period of 10.9.2004 to 13.09.2006, when the service of ‘Transportation of Passengers by Air’ was not under taxable category - Held that: - carrying excess baggage on payment of certain fee/tariffs for the passengers who have opted to use air services of the appellant is an integral part of the main service provided by the appellant. The incidental service of ‘transportation of excess baggage by air’ cannot be charged service tax under the category of service of ‘transportation of goods by air’ as defined under Section 65 (105) (zzn) of the Finance Act, 1994, CESTAT Mumbai in the case Kingfisher Airlines Ltd. Vs. Commissioner of Service Tax, Mumbai [2015 (11) TMI 54 - CESTAT MUMBAI (LB)], where it was held that The excess baggage charges collected by the appellants are an integral part of the main service namely transportation of passengers by air. Therefore, the demand of service tax is set aside. Appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1350
  Refund claim - N/N. 41/2012 ST - export of services - GTA services - Held that: - The Notification No. 41/2012-ST has been issued in terms of Section 93A of the Finance Act, 1994. The notification provides for grant of rebate by way of refund of the service tax paid on the specified services used for export of goods. It is nobody’s case that the GTA services for which the appellant has claimed rebate of service tax under the notification has not been used for export of goods. Consequently, there is no doubt that the appellant falls within the gamut of the notification whose stated purpose is to grant refund of service tax on services used for export. It is not in dispute that the service tax was paid by the appellant and such services have been used for export of the goods by the appellant. Consequently, I am of the view that rebate under Notification No. 41/2012-ST is required to be paid to the appellants - appeal allowed - decided in favor of appellant-assessee.

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• 2016 (11) TMI 1349
  Imposition of penalty u/s 78 - imposition of simultaneous penalty after amendment - section 76 - Held that: - Section 78 has been amended w.e.f. 16/5/2008 according to which simultaneous penalties under Section 76 and 78 of the Finance Act, 1994 cannnot be imposed. In the present case the show cause notice is issued on 11/12/2008 which is after the amendment of Section 78 of the Finance Act, 1994. Therefore, it is held that penalties under Section 78 of the Finance Act, 1994 are not attracted when Section 76 penalty has been imposed upon the appellant. Penalty under Section 78 of the Finance Act 1994 is not sustainable when penalty under 76 of the Finance Act is already paid by the appellant - appeeal allowed - decided in favor of appellant.

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• Central Excise

• 2016 (11) TMI 1348
  Search - Demand - Held that: - As is evident “case” means a proceeding in the Act or any other Act for the levy, assessment and collection of excise duty – (this provision has been incorporated for reference in the relevant provision of Customs Act), pending before an adjudicating authority before which the application under Section 32E is made - In respect of two sets of show cause notices potentially there even could have been six but these do not detract from the fact that investigation was a seamless one in relation to the same trigger, i.e., same search and seizure which took place on 17.07.2014. In that proceeding there was only one cause that resulted in the issuance of show cause notices - Petition allowed.

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• 2016 (11) TMI 1347
  Presumptive SCN - Clandestine removal - Principle of natural justice - Held that: - In view of the aforesaid electricity consumption report, per tonnage, it appears that the variation is from 555 units to 1800 kWH/Per Ton. This is mainly because of the nature of the machinery utilized by the noticee - the electricity consumption pattern as has been given in Annexure- RUD-7, as stated in paragraph 4 of the show cause notice, which is at page no. 63 of this memo of writ petition which reveals that this petitioner has consumed electricity absolutely in consonance with the report given by Joint Plant Committee, constituted by the Ministry of Steel, Government of India and for few months it is even less than that - one could not have been chosen by the respondents, arbitrarily, without carrying out the experiment of consumption of electricity for one ton of manufacturing at the noticee's manufacturing unit - Thus, without experiment is being carried out at the premises of the noticees, use of any of the committee's report for electricity consumption pattern always leads to arbitrariness on the part of the respondent-department - Petition is allowed by way of remand.

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• 2016 (11) TMI 1346
  Demand - Clubbing the turnover - Held that: - certain relationship could be established between the main appellant and M/s Seating Systems which is also not rebutted by the appellant, to make one of the unit as dummy units without legal status and consider all its turnover on account of main appellant is not legally sustainable - These evidences in no way lead to a conclusion that M/s Seating Systems has no legal existence for the purpose of Central Excise - Appeal allowed - Decided in favor of the assessee.

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• 2016 (11) TMI 1345
  Duty under protest - Rule 8 of the Valuation Rules - Sale of sample pack to distributor - Held that: - it appears that an identical issue came up before this Tribunal in the assessee s own case [M/s Bausch and Lomb Eyecare India Pvt. Ltd. vs. C.C.E., Jaipur 2016 (6) TMI 510 - CESTAT NEW DELHI] - wherein it was held that the Revenue's entire case for enhancement of the price is based upon the fact that the distributors were giving the said packs free of cost, as a promotional scheme. Revenue has otherwise not doubted the fact that the consideration received by the assessee from the distributor is not the consideration or something more has flown back - Appeal allowed - decided in favor of the assessee.

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• 2016 (11) TMI 1344
  Clandestine removal of goods - shortage in raw material - shortage in the stock of MS Scrap to the extent of 51.390 MT - shortage in manganese ore to the extent of 485.290 MT - Held that: - It is well settled that the allegation of clandestine manufacture and removal are required to be discharged by the revenue by production of positive evidence. In the absence of the same such allegation cannot be upheld on the basis of assumptions and presumptions. The said legal principle does not require the support of any decision - appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1343
  Recovery of inadmissible CENVAT Credit - shortage of raw materials, Aluminium scrap - whether the appellant is ineligible to avail CENVAT Credit of the aluminium scrap allegedly received short during the period in question? - Held that: - It is undisputed that the aluminium scrap covered under the 14 Bills of Entry were received in container in the factory premises of the appellant and there is no allegation in the show-cause notice nor there are any findings that the said containers were diverted enroute. On to totality of shortages, as in this case, I find that the shortage of 0.0041% of total receipt is during the period in question is very-very negligible. Such negligible shortage cannot be held against appellant for denial of CENVAT Credit of duty paid on the imported inputs. I find that the issue is now squarely covered by the decision of the Larger Bench of the Tribunal in the case of Bhuwalka Steel Industries Ltd. [2009 (11) TMI 177 - CESTAT, CHENNAI [LB]], wherein the Larger Bench has held that the CENVAT Credit cannot be denied only on specific allegations as may indicated in the said order. Appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1342
  Valuation of intermediate products manufactured by the appellant for the principal manufacturer - ITOS Agglomerate - The Revenue held that w.e.f. 1.4.2007, the valuation of the goods manufactured on job work basis on behalf of the principal manufacturer is required to be done in terms of Rule 10 A of Valuation Rules, 2000 - Held that: - the identical issue has been settled by the Tribunal in Advance Surfactants India Ltd. [2011 (3) TMI 1380 - CESTAT, BANGALORE], where it was held that the ratio laid down by the Hon’ble Supreme Court in the case of Ujagar Prints (1989 (1) TMI 124 - SUPREME COURT OF INDIA) will squarely apply i.e. to ascertain the assessable value on the cost of materials plus processing charges. In our view, the appellants have been correctly valuating their products by adopting this method. Appeal allowed - decided in favor of assessee.

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• 2016 (11) TMI 1341
  Whether during the period September, 1999 to August 2004, the demand raised by Revenue on the appellant is sustainable or otherwise on the ground that furnace oil which was procured by assessee was not used as a feedstock and hence not eligible for the benefit of exemption under Notifications No.5/1999, 6/2000, 3/2001 and 6/2002? - period of limitation - Held that: - there is no dispute as to the fact the assessee is engaged in the manufacture of fertilizers and procured furnace oil during the period February 1999 to August 2004 at “nil” rate of duty under various notifications as enumerated in paragraph 3 herein above, claiming exemption on the ground that furnace oil was used as feed stock in the manufacture of fertilizers. We find that the judgment of the Apex Court in the case of GUJARAT NARMADA VALLEY FERTILIZERS CO. Versus COLLR. OF C. EX., VADODARA [2001 (1) TMI 88 - SUPREME COURT OF INDIA] which has settled the law, holding that furnace oil (LSHS) which are used as feed stock in the manufacture of fertilizers cannot be considered as feed stock, hence we find that on merits assessee has no case. Period of limitation - Held that: - It is undisputed that the furnace oil procured by the assessee during the period in question at nil rate of duty, were supplied by the supplier based upon the CT-3 certificate issued by the jurisdictional Range office of respondent asseessee. The Range Office is required to issue the CT-3 certificate after verifying the claim as to a requirement of the material for manufacturing purpose. Based upon such CT-3 certificate the supplier issues material without payment of duty by availing exemption. The entire procurement of the furnace oil as feed stock was in the knowledge of the department hence we find that the demand for the period beyond one year from the date of issuance of show-cause notice is blatantly hit by limitation. In our view the demands raised beyond the period of one year from the date of issuance of show-cause notice needs to be set aside and we do so on the ground of limitation. The demands for the period within one year from the date of issuance of show-cause notice needs to be upheld and we do so and remit the matter back to adjudicating authority to re-quantify the amount of demand on furnace oil but within the period of limitation from the date of issuance of show-cause notice - Since the entire issue is of interpretation of Notification and had to be settled by the Apex Court as also the demand for the extended period has been set aside on limitation, there is no reason for visiting the appellant with any penalties. In view of the above, the penalty imposed is set aside - appeal disposed off.

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• 2016 (11) TMI 1340
  Demand - inputs not received by appellant, hence not eligible for CENVAT credit - Held that: - I am of the considered view that the adjudicating authority is required to examine the newspaper report before denial of credit to the appellant. If there is any truth in the newspaper report, the same may be considered as evidence produced by the appellant for receipt of the inputs. Both sides are real liberty to produce the evidence in their favour to reach to real conclusion whether the appellant has received inputs or not. Thereafter, the adjudicating authority shall decide the issue whether the credit be denied in such circumstances or not - The impugned order is set-aside and the matters are remarked back to the adjudicating authority. The adjudicating authority is directed to examine the evidence produced by the appellant and to examine if any further evidence produced by any of the side within 30 days of receipt of this order and thereafter the adjudicating authority shall examine those evidences and pass appropriate within 60 days.

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• 2016 (11) TMI 1339
  Pre-deposit - Section 35 F of the Central Excise Act, 1944 /Section 129E of the Customs Act,1962 - Held that: - it is mandatory for appeals filed after 06-08-2014 to make pre-deposit of prescribed percentage of duty demanded or penalty imposed before filing appeal, as mandated in Section 35F of the Central Excise Act,1944 / Section 129E of the Customs Act,1962 and as made applicable to Service Tax matters vide Section 83 of Finance Act,1994. There is no provision whatsoever in the said statutory provisions for any waiver, or relaxation or condonation of such pre-deposit for any reason including financial hardship or having good prima facie case on merits etc. The appeals filed by appellants herein above are not maintainable and are rejected in limine.

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• 2016 (11) TMI 1338
  Denial of CENVAT credit - supplier of goods not existed - Held that: - in the matter in hand no investigation conducted at the end of manufacturer/supplier or the transporter to reveal the truth whether manufacturer/supplier has supplied the goods in question to M/s S.K. Garg & Sons or the transporter has transported the goods to the premises of the appellants which is vital evidence to reveal the truth. Further, M/s S.K. Garg & Sons was registered dealer during the impugned period and all the ER-I returns were filed by M/s S.K. Garg & Sons which were accepted by the department. Therefore, in the absence of any corroborative evidence to show that the appellant have not received the goods, it cannot be alleged against the appellant that they have received the invoices and not the goods merely on the ground that there was not storage facility specifically when the landlord made a statement that the godown was let out to the dealer - in the absence of any investigation at the end of manufacturer/supplier or the transporter, the cenvat credit cannot be denied to the appellant. Appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1337
  Clandestine removal of excisable goods - Held that: - I find that the case of the Revenue revolves on the evidence namely diary maintained by Shri Harbans Lal, Dyeing Master and during the course of search, the statement of the partner of the respondent's firm was recorded on 8.6.2000. The statement has been retracted by the respondent within three days and in subsequent statement, he has never admitted the contents of the diary maintained by Shri Harbans Lal, Dyeing Master recovered on 8.6.2000. Moreover, the diary maintained by Shri Harbans Lal, Dyeing Master has not been admitted during the course of investigation by Sh.Harbans Lal. Later on, at the time of adjudicaiton, Shri Harbans Lal has stated that althoUgh the diary has been maintained by him but the contents of the entries of the diary pertained to the respondent and of other parties also. That statement has not been controverted by the Revenue with tangible evidence. Moreover, the respondent supplied the name of the raw material suppliers but all the suppliers have been exonerated by the adjudicating authority. No appeal has been filed against that finding by the Revenue. In that circumstance, there is no evidence to prove clandestine removal of the goods by the respondent as evidence of procurement of the raw material is absent and how the goods transported, the said evidence is also absent - appeal dismissed - decided against Revenue.

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• 2016 (11) TMI 1336
  Removal of input as such - Held that: - removal of input as such by a manufacturer cannot be treated as trading activity and hence allegations in the show cause notice are not sustainable. Therefore, I reject the appeal. The respondent shall be entitled to consequential relief.

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• 2016 (11) TMI 1335
  Demand u/r 25 of the Central Excise Rules, 2002 - challenge to benefit of Notification No. 56/2002-CE dated 14.11.2002. The said notification was amended in the year 2008 wherein the cash refund was restricted for 34% of the value addition - Held that: - I have gone through the show cause notice and the impugned order. In the show cause notice no mala-fide has been alleged against the appellant, therefore, no penalty can be imposed under Rule 25 of the Central Excise Rules, 2002. Admittedly, the provisions of section 11AC of the Act are missing, therefore, no penalty is imposable on them. I find that during the intervening period, the appellant was having sufficient balance in their cenvat credit account/PLA, therefore, they are not liable to pay interest during the intervening period in the light of the decision of Hon'ble High Court of Karnataka in the case of Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT]. Further, I find that the appellants have filed their regular ER-1 returns on 08.02.2013 showing details of availment refund of duty paid through PLA in the intervening period. In that circumstance, a show cause notice was issued to the appellant on 26.02.2014 is time bared in the light of the above discussion. Therefore, I do not find any merit in the impugned order, the same is set aside. Appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1334
  Exemption under Notification No. 6/2006-CE - competitive bidding - Rule 6(3)(b) of Cenvat Credit Rules, 2004 - Held that: - There is no dispute about the fact that in respect of supplied made by a manufacturer against international competitive bidding by availing full exemption under notification No. 6/2006-CE (Sl. No. 91) the provisions of sub rule (1), (2), (3) of Rule 6 are not applicable in view of the provisions of sub-rule (6) of Rule 6. When the appellant had wrongly paid the amount under rule 6(3) of the Cenvat Credit Rules and had requested the Department for its re-credit and thereafter had reminded the department for the re-credit and when in pursuance of their request for re-credit, the same had been allowed by the Assistant Commissioner vide order dated 20.04.2009 just because the appellant had taken the re-credit on their own on 31.03.2008, there would be no justification for imposition of penalty when the Assistant Commissioner vide order dated 20.04.2009 had permitted the re-credit of Rs. 9,80,354/- this credit would be treated as available for the month 2009 and hence there would be no excess utilization of credit during that month. In view of this, the cenvat credit demand and penalty does not appear to be sustainable. Appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1333
  CENVAT credit - input service - Construction Service - Held that: - it has been disputed by the Revenue that the construction services have been availed by the appellant outside the factory or within the factory is to be verified from the Registration Certificate issued to the appellant. Therefore, the matter needs examination at the end of the adjudicating authority. In that view, in the issue of availment of cenvat credit on construction service is remanded back to the adjudicating authority for verification, whether the services have been availed outside factory or within the factory. After verification, the issue is required to be decided. The Cenvat credit of Rs. 3090/- is denied for want of invoice. Address of the service provider was not mentioned on the invoices - Held that: - Later on, the appellant has provided that the address of the service provider. In that circumstance, the adjudication order has to verify whether the address is the proper address of the service provider mentioned in the invoices the same is to be examined by the adjudicating authority. After verification, if it is found correct, the appellant is entitled for cenvat credit. Facilitation Charges Services - Held that: - The contention of the appellant is that these charges have been paid by them .for negotiation of purchase of power. If the said service is with regard to the negotiation of purchase power, the appellant is entitled to avail cenvat credit and the same is to be examined by the adjudicating authority. Business related service namely Consultancy or Vehicle Service - Held that: - fact is to be verified whether all the services pertains to prior to 01.04.2011 or not? If the services pertains to the period prior to 01.04.2011, the appellant is entitled to avail cenvat credit Courier Service - Held that: - he Contention of the appellant is that courier services have been availed for sending urgent sample, documents of purchase or sale of the goods which needs verification at the end of the adjudicating authority, therefore, the adjudicating authority is directed to verify whether the said services have been availed on and after 01.04.2011 and to ascertain the fact that the appellant has availed courier service having nexus with the purchase and sale of the goods. In that case, the appellant is entitled to avail cenvat credit. Admittedly, for the period prior to 01.04.2011, the appellant is entitled to avail cenvat credit on courier service. Cenvat credit sought to be denied on the ground that invoices were not having registration number of the service provider. Later on, the appellant has provided this registration number. This fact is to be verified. The cenvat credit of Rs. 11,69,852/- is allowed subject to verification of registration number. There are several invoices wherein invoices number is given in hand writing. It is not disputed that the services have not been availed and the service tax has been paid by the appellant, therefore, the appellant is entitled to avail the cenvat credit on the said invoices to the tune of Rs. 1,44,190/-. Appeal allowed by way of remand.

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• 2016 (11) TMI 1332
  Denial of CENVAT credit - irregularly credit taken on inputs and capital goods - Rule 7 of CENVAT Credit rules 2002 - Held that: - The eligibility of various inputs and capital goods for the purpose of availment of CENVAT Credit has become more broader over the years pursuant to various judgments of Tribunals and other higher courts including the Hon’ble Apex Court. On going through the impugned orders it is seen that the adjudicating authority has gone into each disputed issue in detail and arrived at well reasoned finding in respect of the amounts of credit allowed by him. We do not find any infirmities in respect of the credits allowed by adjudicating authority in the impugned orders. - decided against Revenue.

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• 2016 (11) TMI 1331
  Demand of differential duty - the appellant had exceeded the small scale industries exemption limit by suppressing the value of the clearances affected which were beyond the threshold limit of Rs. 30 lakhs - Held that: - it is a common knowledge that FRP, PVC and PP line tanks are made out of raw material which fall under chapter 39 i.e. commonly known as plastic. In view of this, we hold that the value of the finished goods manufactured under chapter 39 needs to be excluded from the aggregate value of clearances of any year. As regards the total clearances value, we do find some merits in the submission made in the grounds of appeal by the appellant, as the value seems to include the trading activity also and the work done on job work basis. Revenue has included the value of the job work basis on the tanks constructed /fabricated holding it as manufacture. It is on record that the appellant had been given a job work of construction/ fabrication of tank at the site for which the material was also supplied by the concerned assessee. In our view, revenue authorities have misdirected themselves in including such value in job work in the clearance value of the appellant. Appeal allowed.

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• 2016 (11) TMI 1330
  Denial of CENVAT credit - dealer found non-existent - Held that: - no investigation conducted at the end of manufacturer/supplier or the transporter to reveal the truth whether manufacturer/supplier has supplied the goods in question to M/s S.K. Garg & Sons or the transporter has transported the goods to the premises of the appellants which is vital evidence to reveal the truth. Further, M/s S.K. Garg & Sons was registered dealer during the impugned period and all the ER-1 returns were filed by M/s S.K. Garg & Sons which were accepted by the department. Therefore, in the absence of any corroborative evidence to show that the appellant have not received the goods, it cannot be alleged against the appellant that they have received the invoices and not the goods merely on the ground that there was not storage facility specifically when the landlord made a statement that the godown was let out to the dealer. In the absence of any investigation at the end of manufacturer/supplier or the transporter, the cenvat credit cannot be denied to the appellant - appeal allowed - decided in favor of appellant-assessee.

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• 2016 (11) TMI 1329
  Clearance of defective and rejected goods - In the ER 1 return, appellant were reflecting 98% of their production as prime quality CTD bars and rounds whereas in the commercial sale invoice, the said goods were being cleared as defective - Held that: - I find that entire case of the Revenue is based upon the financial calculation of profit and loss of the manufacturing unit. In fact, Commissioner (Appeals) has observed that circumstantial evidence produced on record leads to inevitable fact that raw material supplier (M/s ASRM) was only selling cenvatable invoices without supply of goods. Inasmuch as no retailer can survive if more than 80% of its final product were held to be defective/rejected/scrap. As regards the present appellant, they have shown receipt and utilization of raw material in their factory and have taken the benefit of Cenvat credit based upon the cenvatable invoices issued by registered dealer. Statements of authorised representative of the appellant as also of the dealer are to the effect that inputs stand supplied to them under the cover of proper cenvatable invoices. Statements of representative of the M/s ASRM is to the effect that during the relevant period lot of their product came out to be defective and rejected and as such, same was sold after discharging the central excise duty leviable thereon. Admittedly, the appellant need the raw material for the production of their final product and if, as per the Revenue, such material has not been received by them from M/s ASRM, they were not in a position to manufacture the final product. Revenue has not shown any alternative source of such procurement of raw material. Appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1328
  Benefit of Notification No.56/02-CE dated 14.11.2002 - rejection of refund claims - as per Notification No. 19/08-CE dated 27.3.2008, the refund claim is restricted to the value addition by the assessee - Held that: - The appellant is located in the State of Jammu and Kashmir and availing the benefit of Notification No.56 /02-CE dated 14.11.2002. The appellant is claiming the refund under the Notification No.56/02-CE dated 14.11.2002 i.e. whatever duty has been paid though PLA is entitled to self refund. The sole reason to deny the credit is that they have not challenged the validity of the Notification No.19/08-CE dated 27.3.2008. Therefore, the refund is not admissible to the appellants. The appellant has produced the order of the Hon'ble Jammu & Kashmir High Court dated 14.11.2013 in OWP No. 1732/2012 wherein the operation of the Notification No.19/08-CE dated 27.3.2008 has been modified vide order dated 21.5.2013 and it is directed the appellants would release to the respondent-entrepreneur 50% of the amount due to them in terms of the judgement of the learned Single Judge, subject to furnishing solvent surety to the satisfaction of the jurisdictional Commissioner within a period of four weeks of their furnishing the said surety. In view of above order of the Hon'ble High Court, the appellant is entitled for refund as per the order of the Hon'ble High Court dated 21.5.2013 - appeal allowed - decided in favor of appellant.

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• 2016 (11) TMI 1327
  Rebate claim - whether sanctioning of rebate claims of the appellants on the inputs cleared as such to SEZ unit is legally correct or not? - Held that: - On perusal of the order of the Commissioner (Appeals), I find that he has discussed Rule 18 of Central Excise Rules, 2002, which deals with rebate of duty by which the rebate claim was filed and Rule 3 (5) of CCR, 2004, by which the appellant had reversed the credit. The case requires clarification as to whether the amount paid under Rule 3 (5) can be treated as duty paid under Rule 3 (6) of CCR 2004, which has not been considered in the impugned orders. Hence, both the appeals are remanded back to the ld. Commissioner (Appeals) to decide the matter afresh on merits - appeal disposed off by way of remand.

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• 2016 (11) TMI 1326
  CENVAT credit on items like on items like channel, plates, copper/aluminum PVC cable, shape and section, gasket etc - manufacturer of sugar and molasses - pollution control equipments - use of bio-gas in manufacture - Held that: - there is no dispute of the appellant having fabricated the biogas plant which is admittedly pollution control equipment. Further, the gas emerging from the biogas plant is also utilized in manufacture of excisable goods. Accordingly, we hold that the appellant is eligible for Cenvat credit for the inputs utilized by them in the manufacture of biogas plant. Accordingly appeal number 2471/2007 is allowed with consequential benefits, if any. In view of the change in the provisions of Cenvat credit and now the credit being available on all the items utilized in the factory of production, we hold that the appellant is entitled to Cenvat credit on all the items in question including welding electrodes. We have been informed that the issue of Cenvat credit on welding electrodes utilized for the purpose of repair and maintenance is pending consideration before Hon’ble Apex Court, but no stay have been granted of the orders of the Tribunals and High Courts wherein credit have been allowed. As we have allowed credit on welding electrodes in several other appeals before this tribunal, for the sake of consistency we allow credit in this appeal also. This appeal is allowed with consequent benefits, if any, to the assessee

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• CST, VAT & Sales Tax

• 2016 (11) TMI 1321
  Taxability of submersible pumps upto 5 HP upto June 30, 2006 and thereafter - Classification of goods - classified under Entry 71A of Schedule 'C' or under Entry 1(D)(9) of Schedule 'B' - Whether submersible pumps are covered under entry 71-A of Schedule C of the Haryana Value Added Tax Act, 2003 amended on 20.6.2006 with effect from 01.07.2006 vide Notification No. S.O. 58/HA/6/2003/S.59/2006? - Held that: - agricultural pump sets were exempted from payment of tax in Haryana whereas other pump sets were taxed @12.5%. On the other hand, tax on such pumps in the neighbouring State was 4%. It was in the light of these facts that the amendment was carried out while adding Entry 71-A in Schedule 'C' taxing pump sets below 5 HP uniformly. It was for the reason that in agriculture normally the pump sets above 5 HP capacity are used - submersible pump sets used for agricultural purposes fall in Entry 1(D)(9) of Schedule 'B' upto June 30, 2006, hence tax free. From 1.7.2006 onwards pump sets below 5 HP capacity will fall in Entry 71-A in Schedule 'C', hence will be taxable irrespective of its end use. Appeals disposed off.

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• 2016 (11) TMI 1320
  Input tax credit - registration of sellers cancelled - selling dealer not paid taxes - Form-W - whether the purchasing dealers can be held liable for non-payment of tax by the selling dealers on account of retrospective cancellation of their registration certificates? - Held that: - this is no longer res intergra as it has been settled by this Court in several decisions. The recent decision on the point is in JINSASAN DISTRIBUTORS v. COMMERCIAL TAX OFFICER (CT), CHINTADRIPET ASSESSMENT CIRCLE,CHENNAI [2013 (4) TMI 615 - MADRAS HIGH COURT] relied upon, wherein it was held that Retrospective cancellation of the registration certificate of the selling dealer can have no effect on the person who acted upon the strength of the registration certificate when it was in force. Selling dealer has not paid taxes - Held that: - This issue was considered by this Court in the case of SRI VINAYAGA AGENCIES v. ASSISTANT COMMISSIONER (CT), VADAPALANI-I ASSESSMENT CIRCLE, CHENNAI AND ANOTHER [2013 (4) TMI 215 - MADRAS HIGH COURT], where it was held that Sub-section (16) of Section 19 states that the input tax credit availed is provisional. It, however, does not empower the authority to revoke the input tax credit availed on a plea that the selling dealer has not paid the tax. It only relates to incorrect, incomplete or improper claim of input tax credit by the dealer. Belated submission of Form-W - Held that: - this Court has taken into consideration the Circular issued by the Commissioner of Commercial Taxes, in Circular No.22/2014 dated 12.05.2014, that even though Statutory Forms such as Form-W are submitted belatedly, that by itself will not be the reason to reject the same. Therefore, to that extent, the respondent was not justified in outrightly rejecting the Form-W, belatedly submitted by the petitioner. Therefore, the matter has to be remanded back to the respondent with a direction to consider Form-W. Petition partly allowed - matter on remand.

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• 2016 (11) TMI 1319
  Whether deduction will be allowed by the assessee through credit note - Rule 31 of the Karnataka Value Added Tax Rules - Held that: - there is no discussion by the Tribunal on the aspect as to whether the burden is ever discharged by contemporaneous record or otherwise through satisfactory material that there was a policy by the manufacturer of giving discount at the end of the month if one reaches to a particular level - Petition allowed by way of remand.

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• 2016 (11) TMI 1318
  Input tax credit - when similar view has already been taken by this Court on identical facts, there is no reason to deviate with the judgment rendered in CTO Vs. M/s. Durgeshwari Food Limited, Shri Ganganagar [2011 (12) TMI 654 - RAJASTHAN HIGH COURT] - the revision petition stands dismissed in the light of judgment rendered in the case of M/s. Durgeshwari Food Limited, Sri Gangangar , with a rider that in case the judgment by Hon'ble Apex Court is decided in favour of the assessee in that case then this revision petition will be governed by the verdict of the Hon'ble Apex Court in SLP in the case of Durgeshwari Food Limited, Shri Ganganagar.

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• 2016 (11) TMI 1317
  Jurisdiction of AO - registration of the respondent assessee was granted by the Commercial Taxes Officer, Circle A, Kota, whereas the penalty was imposed u/s 10A of the Act by Assistant Commissioner, Special Circle, Rajasthan, Jaipur - Held that: - A bare perusal of the section 10A clearly postulates and envisages that the same authority gets power to impose or not to impose penalty who has initially registered an assessee. Since the very imposition of penalty has been held to be improper, therefore, the issue of interest which has been raised by the Revenue, automatically goes away - petition dismissed - decided in favor of respondent-assessee.

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• 2016 (11) TMI 1316
  Entitlement to partial rebate - Section 17 of KVAT Act - Section 17 of KVAT Act states that for partial rebate two conditions should be satisfied, one is that there should be sales of taxable goods and the second is that the dealer should also be making sales of exempted goods under Section 5 of the KVAT Act - As per the petitioner they are not dealing in sales of any exempted goods covered by Section 5 and therefore, Section 17 is wrongly made applicable - Whether the partial rebate scheme under Section 17 read with Rule 131 of Karnataka Value Added Tax Act, 2003 can be made applicable to the case of the petitioner or not? Held that: - The provisions of Section 17 by title itself shows that it is in order to permit partial rebate for input tax credit. Sub-clause(1) of Section 17 provides that one of the requirement is if the dealer makes sale of taxable goods and exempted goods under Section 5. Since as per the petitioner they are not dealing in sales of exempted goods, it can be said that the petitioners are not covered by the provisions of sub-clause(1). However, the language of sub-clause(2) is different - When the petitioner is selling taxable goods and also despatches taxable goods outside the State otherwise than by way of sale and the Tribunal has found that Section 17(2)-partial rebate is available, no error can be said to have been committed by the Tribunal. It is not possible to accept the contention that Section 17(2) would not be applicable to a dealer who sells taxable goods and despatches goods outside the State otherwise than by way of sale - it cannot be said that the Tribunal has committed any error in not considering any substantial question of law more particularly for Section 17 and Rule 131 of the Rules. Petition dismissed - decided against petitioner.

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• Indian Laws

• 2016 (11) TMI 1315
  Restraining the Bank from proceeding further with eauction with respect to the mortgaged property in question - Held that:- Though the original applicant claims to have purchased the mortgaged property in question by registered sale deed on 25.04.2014 and on payment of sale consideration and though according to him when the Bank took the actual, physical possession on 12.06.2014 pursuant to the order psased by the learned District Magistrate under Section 14 of the SARFAESI Act, from the panchnama it appears that at the time when the Bank Officers went to take the possession of the mortgaged property in question, in the month of February 2016, wife of the original owner / mortgagor was present in the bungalow / mortgaged property and the original applicant was not in possession of the mortgaged property in question. From the panchnama it appears that at that time the wife of the original mortgagor after seeing the officers who had came to take the possession ran away. That thereafter the Bank had taken the actual, physical possession by drawing the panchnama and doing the videography. From the aforesaid it can be said that a systematic fraud has been committed by the mortgagor in connivance with the original applicant with malafide intention only with a view to dupe the legitimate dues of the Bank and the realization of large sum of amount by the Bank to the extent of Rs. 3,46,55,433 + further interest charges etc. It is required to be noted that even the original borrower / mortgagor, M/s. Shukan Palace Infrastructure and its partners have duped so many investors who have purchased the residential bungalows in the scheme viz. Shukan Palace – I, Ghatlodiya, Ahmedabad. The possession was taken over from the wife of the mortgagor / mortgagor and not from the original applicant. The aforesaid has not been appreciated by the learned Tribunal while passing the impugned order. Considering the above Tribunal has materially erred in passing the impugned order restraining the Bank from proceeding further with eauction of the mortgaged property which was mortgaged by the mortgagor while taking the huge loan / credit / financial assistance. So far as the submission on behalf of the original applicant that as against the impugned order the petitioner Bank has a statutory remedy available by way of appeal before the Debts Recovery Tribunal, Mumbai and therefore, the present petition may not be entertained is concerned, at the outset it is required to be noted that as such the post of Member/s of Debts Recovery Appellate Tribunal, Mumbai is vacant and there is no incumbent and therefore, the petitioner is justified in approaching this Court. Even otherwise considering the impugned order passed by the learned Tribunal and as observed hereinabove the learned Tribunal has exceeded in its jurisdiction in entertaining the securitization application and passing the impugned order at the instance of the original applicant, the transaction in whose favour is a nullity, we are of the opinion that this is a fit case to entertain the petition and exercise the powers under Article 226 of the Constitution of India. Impugned order passed by the learned Debts Recovery Tribunal – I, Ahmedabad in Securitization Application is hereby quashed and set aside and the petitioner Bank is permitted to proceed ahead with eauction of the mortgaged property in question viz. Bungalow No.15, Shukan Palace – I, Ghatlodiya, Ahmedabad. Rule is made absolute to the aforesaid extent. No costs.

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