TMI Tax Updates - e-Newsletter dated: December 8, 2016 - with Direct Tax, Indirect Tax and GST Updates and Updates on FTP, FEMA, IBC & Corporate Laws etc. published on TMI with Latest Case Laws

Pricing Login

Tax Management India. Com
Law and Practice : Digital eBook
Research is most exciting & rewarding

For Sales / Support:
WhatsApp

9911796707

Case Laws Acts Notifications Circulars Classification Forms Manuals Articles News D. Forum Highlights Notes

TMI - e-Newsletter TaxTMI Excess Input Tax Credit penalty appeal dismissed... TaxTMI Income Tax Assessment Notice Issued by... TaxTMI Excessive delay in issuing show cause notice &... TaxTMI Rectification: Show Cause Notice quashed for period... TaxTMI Investor locked into long-term capital gains bonds;... TaxTMI Funds received by assessee overlooked during... TaxTMI Cash deposits explained through VAT returns, cash... TaxTMI Customs duty dispute: Imported goods classified as... TaxTMI Appointment of adjudicator for corporate penalties... TaxTMI Undisclosed investments, agricultural land... TaxTMI Taxpayer's victory: AO's order upheld, PCIT's... TaxTMI Non-resident Singapore firm's software licensing... TaxTMI Excessive transport expenses deduction and TDS... TaxTMI Importer imports "Ground Colemanite (B2O3 40%)... TaxTMI Bank penalized for delayed reporting of high-value... TaxTMI Latest Case-Laws TaxTMI Latest Notifications + Circulars TaxTMI GST Council Decisions TaxTMI

Follow us:


Tax Updates - TMI e-Newsletters

Home e-Newsletters Index Year 2016 December Day 8 - Thursday ← Older Newer →
TMI e-Newsletters FAQ
You need to Subscribe a package.
Newsletter: Where Service Meets Reader Approval. TMI Tax Updates - e-Newsletter December 8, 2016 Case Laws in this Newsletter: Income Tax Customs Corporate Laws Service Tax Central Excise CST, VAT & Sales Tax Indian Laws TMI SMS The cancellation charges recovered cannot be held to be the consideration for providing business exhibition services - No service tax News Demonetisation: ED enquiry operations at 50 banks Implementation of NPOP Review of policy on globalization New Licensing Policy for Tobacco Fifth Bi-monthly Monetary Policy Statement, 2016-17 RBI Reference Rate for US $ In order to facilitate the move towards cashless transactions, the Government has directed the banks to install an additional one million new PoS terminals by 31st March 2017;. 2,73,919 camps organized to open banks accounts for unorganized labour in which 24.54 lakh accounts opened Notifications Money Laundering 5/2016 - dated 6-12-2016 - PMLA Prevention of Money-laundering (Appeal) Amendment Rules, 2016 Circulars / Instructions / Orders Companies Law 13/2016 - dated 5-12-2016 Clarification Regarding Filing of Offline Challans with IEPF Authority under Companies Act Highlights / Catch Notes Income Tax Conversion of the partnership firm into a Private Limited Company - notwithstanding the non-compliance with clause (d) of the proviso of Section 47(xiii) of the Income Tax Act by premature transfer of shares, the said Company is not liable to pay capital gains tax - HC Visit to Get Source Registration granted to the society u/s 12A(a) cancelled - 50% fees exemption has been granted to few students - The objections raised are without any basis and material on record and therefore, the registration cancelled by CIT is not justified - HC Visit to Get Source Eligibility of section 54F benefit - whether benefit will not be available if the residential house is purchased or constructed by the assessee outside India? - benefit of section 54F before its amendment can be extended to a residential house purchased outside India. - HC Visit to Get Source Customs Import of drawings and designs for construction activity of various hotels - whether drawings and designs are goods so as to attract duty liability under customs act? - Held Yes - AT Visit to Get Source Classification of Bleaching Earth V2 Super Galleon - Bleaching earth may or may not be Decolourising earth but Chapter Heading 382090 covered Activated Natural Mineral Products wherein the goods can be classified - AT Visit to Get Source Recovery of duty - there is no dispute as to the fact that the Phosphoric Acid imported is for manufacture of fertilizers. When there is no dispute as to the short receipt of the Phosphoric Acid in the shore tank, the demand of duty cannot sustain - AT Visit to Get Source Corporate Law Nomination - The object of the provisions of the Companies Act is not to either provide a mode of succession or to deal with succession. The object of the Section 109A is to ensure that the deceased shareholder is represented by some one as the value of the shares is subject to market forces - HC Visit to Get Source Service Tax The cancellation charges recovered by the appellant cannot be held to be the consideration for providing business exhibition services - The same are thus not liable to service tax - AT Visit to Get Source Imposition of penalties - business auxiliary services - whether period of limitation can be invoked in the cases where section 80 has been invoked? - Held No - AT Visit to Get Source Business Auxiliary Services - while the consideration is based on the quantum of sale, the services provided is not ‘sale or purchase of goods” but is in the nature of customer care on behalf of Venco/VRB - exemption under notification No.13/2003 not allowed - Demand confirmed - AT Visit to Get Source Refund claim - service tax was wrongly paid - The refund claim filed after one year from relevant date, i.e. from the date of payment of service tax in the present case is clearly time barred - refund cannot be allowed - AT Visit to Get Source Central Excise Remission of duty on loss of goods - cement and cement clinkers - it can be safely concluded that the shortage is due to transit loss - demand set aside - AT Visit to Get Source Valuation - job work - The main appellant (Avtec) are liable to pay differential duty due to revised valuation of FOC materials supplied by GMI. - AT Visit to Get Source Levy of duty - fly ash bricks - various sales invoice of the impugned goods clearly mention them as ‘fly ash bricks’. Admittedly in the common trade parlance the product cleared by the appellant are nothing but fly ash bricks - demand of duty confirmed - AT Visit to Get Source Refund claim u/r 5 of the CENVAT Credit Rules, 2004 - clearances to SEZ - the date on which the goods entered the SEZ can be taken into consideration for ascertaining the relevant date - AT Visit to Get Source VAT Classification - rate of tax - though tyre and tubes can certainly be said to be parts and accessories, to be fitted in a motor vehicle, without which a motor vehicle cannot run on the road, but there is a specific Entry for tyre, tube and flaps, which is very specific with a rate of 4% - HC Visit to Get Source Case Laws: Income Tax 2016 (12) TMI 363 Sum received in excess on account of exchange gain - revenue receipt or capital receipt - Held that:- There can be no doubt that the project receivables as on 31st March, 1991 remained blocked for about 11 years. There was no chance of its recovery. Therefore, the project receivables, bearing the character of revenue, lost their character and became a capital investment. Only thing that happened during the period between 31st March, 1991 and the current year is that during the assessment year 1995-96 the assesse wrote off the debt. By writing off the debt the assesse did not cease to be a creditor of the Iraq Government. Therefore, when the money was realised it partook the character of a capital receipt. We are, as such of the opinion that the view taken by the learned Tribunal is a correct view in deleting the addition with regard to the gain on account of exchange fluctuation in relation to foreign projects receivable from Iraq treating it, as Capital receipts and not revenue receipts as assessed by the assessing officer - Decided in favour of assessee Capital receipt liable to capital gains - Held that:- The assesse continued to remain a creditor in a sum of ₹ 45 crores approximately though the cost of acquisition in his books of accounts had become zero by virtue of writing off the debt. The right to recover was transferred as a consequence whereof profit to the tune of ₹ 38 crores accrued. In the circumstances, all that he had to do was to refund, the benefit of bad debt received by him, under Section 41(4) of the Income Tax Act and to offer the balance sum on account of long term capital gain. In this case, the income could not have accrued to the assesse if the debt was not due from the Iraqi Government. We are, as such of the opinion that the entire balance sum of ₹ 38 crores approximately are taxable as long term capital gain without deduction of any cost of acquisition because the cost of acquisition had become zero by having been written off. The accounting entry which the assesse might have made is altogether irrelevant. 2016 (12) TMI 362 Disallowance being interest paid to the bank u/s 36(1)(iii) read with Sec.37(1) - Held that:- It is clear that the CIT (Appeals) has on the basis of factual matrix found that the loan was taken. However, by way of subsequent repayment, actual interest was paid as ₹ 5,92,840/-. Therefore, the addition made by the Assessing Officer was deducted. However, the Tribunal in para 15 has gone on a different point which was never germane in the order of the Assessing Officer or the order of CIT (Appeals) and, therefore, on the premise that the loan which was advanced was not a loan but investment. In our considered opinion, that was not the foundation of the reasoning adopted by the Assessing Officer, therefore, the reasoning adopted by the Tribunal in para 15 is not permissible in law. The above finding given by the Tribunal is clearly contrary to material available on record and perverse and hence the order impugned passed by the Income Tax Appellate Tribunal is set aside. We restore the order of CIT(Appeals) and hold that in the facts of the present case, the addition made by the Assessing Officer requires to be deleted and the payment made to the bank by way of interest on loan is required to be allowed as provided under section 36(1)(iii) read with Section 37(1) of the Income Tax Act. - Decided in favour of assessee 2016 (12) TMI 361 Interest on borrowed funds - disallowance of interest - Held that:- The respondent placed reliance upon the decision of this Court in Commissioner of Income Tax Vs. Reliance Utilities and Powers Ltd.[2009 (1) TMI 4 - BOMBAY HIGH COURT ] wherein this Court has held that where the assessee has its own interest free funds available then it should be presumed that the investment has been first made out of interest free funds. This submission of the respondent assessee has been recorded in the impugned order of the Tribunal. However, we find that the same has not been considered while dismissing the respondent assessee's appeal. This non-dealing with the decision of this Court in Reliance Utilities and Power Ltd. (supra) by the Tribunal even after recording the reliance upon the same by the respondent assessee would make the impugned order suspect. Ex facie, it is a breach of principles of natural justice. Thus, the question is answered in the negative i.e. in favour of the appellant assessee and against the Revenue. The impugned order dated 19th July, 2013 is set aside and the entire appeal is restored to the Tribunal for fresh disposal in accordance with law. 2016 (12) TMI 360 Conversion of the partnership firm into a Private Limited Company - premature transfer of shares - revocation of exemption from Capital gains tax - Held that:- AAR has in a very reasoned Order, has taken a view that no capital gains accrued or attracted at the time of conversion of the partnership firm into a Private Limited Company. In part IX of the Companies Act, therefore, notwithstanding the non-compliance with clause (d) of the proviso of Section 47(xiii) of the Income Tax Act by premature transfer of shares, the said Company is not liable to pay capital gains tax. These findings have been arrived at essentially looking into the fact that there was revaluation of assets at the time of conversion of the firm M/s. Anandeya Zinc Oxides Private Limited. The said finding of fact has not been disputed by the learned Counsel appearing for the Petitioners and, as such, the finding of the learned AAR that there was no capital gains in the transaction in question cannot be faulted. It is also to be noted that even immediately after such conversion in question from the partnership firm into a Private Limited Company, the assessment with regard to the income of the new Company as well as of the respective partners were filed and there was no objection or grievances raised by the Assessing Officer that any capital gains had to be paid on account of the incorporation of the Company in terms of the said provisions. The transfer of shares in favour of the Respondent by the erstwhile partners who were shareholders of M/s. Anandeya Zinc Oxides Private Limited and such partners/share holders are liable to pay capital gains even if acceptable, would not affect the decision passed by the learned AAR whilst coming to the conclusion that there were no capital gains at the time of incorporation of the new Company by the said partnership firm. The contention of the Petitioner that in view of the violation of clause (d) of Section 47(xiii), the exemption from capital gains enjoyed by the Assessing firm upon conversion into a Private Limited Company, ceases to be in force cannot be accepted. We have already examined that there are no capital gains which have accrued on account of such incorporation. In such circumstances, we find that the said contention of the learned Counsel appearing for the Petitioner that in view of the transfer of the capital assets or intangible assets, there are capital gain tax payable by the transferee Company, cannot be accepted. As pointed out herein above, there was no capital gains payable at the time of the incorporation of the Company from the erstwhile partnership firm. Maintainability of application under Section 245(N) of the Respondents - Held that:- The question as to whether capital gains are liable to be paid or not in terms by the transferee Company being a non resident Company, the Respondent herein, would be a matter which would come within the scope of advanced ruling in terms of the said depreciation. Considering the said observations and taking note of the findings of the learned AAR, we find that there is no case made out for interference by this Court under Article 226 of the Constitution of India. The Petitioners were given an opportunity by the learned AAR and the contentions raised were duly considered whilst passing the impugned Orders. We find no reason to interfere in the impugned Orders passed by the learned AAR. 2016 (12) TMI 359 Penalty u/s. 271(1)(c) - Held that:- None of the authorities have held that the Applicant-Assessee had not furnished all details of expenditure as well as income in its return with the necessary details. Merely because the Applicant-Assessee's a claim, was disallowed in the earlier Assessment Year would not by itself debar it from making a claim in a subsequent Assessment Year. There is no estoppel against law. The aforesaid fact coupled with the fact that the Assessing Officer while passing an Assessment Order, appears to have been satisfied with the claim that deferred revenue expenditure was a bonafide claim after necessary disclosure. This is self evident as he did not initiate any penalty proceedings under Section 271 (1)(c) of the Act. It is a settled position in law as held by the Apex Court in CIT v/s. Reliance Petroproducts [2010 (3) TMI 80 - SUPREME COURT ] – where all details of expenses and income had been furnished in its return, mere disallowing a claim of expenditure would not by itself lead to the conclusion that there has been concealment of income and/or filing of inaccurate particulars, warranting penalty under Section 271 (1)(c) of the Act. - Decided in favour of assessee 2016 (12) TMI 358 Eligibility for deduction under Section 80HHC on interest received - allowing/netting of interest paid - Held that:- As in view of clause (baa) of Section 80 HHC, the assessee is entitled to get net income under Section 80 HHC. In that view of the matter, the issues are answered in favour of the assessee and against the department. 2016 (12) TMI 357 Registration granted to the society u/s 12A(a) cancelled - whether Tribunal is justified in holding that the object and purpose of assessee Samiti are charitable falling u/s.2 (15) and further directing the CIT to allow registration u/s.12A ?- Held that:- On perusal of the material on record, we find that the assessee has utilized the surplus funds in acquiring the capital/fixed assets for the school and for making the fixed deposits in the bank and income arising from the said fixed deposits has been included in the receipts in each year for utilizing the same for incurring the expenditure for the society/school and /or for acquiring the capital/ fixed assets. As regards providing of fee educational material and books, financial aid, hostel and medical aid to the poor students, the assessee has submitted the explanation at page 4 of ld. CIT order that 50% fees exemption has been granted to few students. Therefore, in the circumstances and facts of the case, the assessee society is running its activity for the purposes for which it was registered. The objections raised are without any basis and material on record and therefore, the registration cancelled by him is not justified - Decided in favour of assessee 2016 (12) TMI 356 SIC company - Benefit of exemption from Capital Gains Tax - granting extension of the time for set off the carry forward losses - whether claim can be denied to an undertaking sought to be revived by the BIFR - Held that:- There is no denial of the fact that the company has shown profitability. Its liability to redeem the preference shares is in the future. In the circumstances, the possibility of its incurring losses in the event of payment of capital gains tax cannot be ruled out. That such losses might arise could also be within the normal course of any normal business enterprise’s functioning. In the circumstances, the view of the respondents that exemption from payment of capital gains tax is not warranted cannot be held illegal. The Court is aware, at the same time that in the assessments completed till date, the petitioner’s liability had not in one sense been crystallized. The remand to the income tax authorities on three occasions led to fresh orders based upon fresh assessment of the facts and circumstances on each occasion. Having regard to these peculiar facts, a direction is issued to the respondents not to charge interest or penalty on the capital gains tax amounts in the circumstances of the case for the duration that the matter remained pending in these proceedings and all prior proceedings. The writ petition is allowed in terms of the directions in the preceding paragraph even while upholding the liability to pay capital gains tax. 2016 (12) TMI 355 Levy of penalty under Section 271(1)(c) - whether this was a case of bonafide mistake and not a case of conscious concealment or furnishing of inaccurate particulars? - Held that:- This is not a case where the Assessee has made full and complete disclosure of all facts and its claim on facts as disclosed has not been accepted. This is a case where the Assessee has filed inaccurate particulars of income which led to concealment of income chargeable to tax. It is also to be noted that in absence of reopening of the Assessment by the Assessing Officer on detection of non inclusion of ₹ 34 lakhs as a part of its closing stock, the aforesaid amount would have escaped income to tax. This is so as the Appellant – Assessee had not even made any attempt to file a revised return prior thereto or even suo motu bring it to be notice of the Assessing Officer that there was mistake in filing original return and tax on ₹ 34 lakhs is payable. The Supreme Court in Union of India and Others Vs. Dharmendra Textile Processors and Others [2008 (9) TMI 52 - SUPREME COURT] has held that Section 271(1)(c) of the Act indicate an element of strict liability on the assessee for concealment or filing inaccurate income. Wilful concealment is not an essential ingredient for attracting civil liability of penalty as is the case in prosecution under Section 276C of the Act. The Court held that penalty under Section 271(1)(c) of the Act is in the nature of civil liability and mensrea is not necessary. The decision cited by the petitioner of the Kerala High Court in India Sea Foods (1995 (2) TMI 9 - KERALA High Court) is no longer good law in view of the Supreme Court's decision in Dharmendra Textile Processors (supra). Thus all authorities have come to concurrent findings of fact that the Appellant – assessee has filed inaccurate particulars of the income. - Decided against assessee 2016 (12) TMI 354 Addition on the basis of reassessment notice - reasons to believe - ITAT felt that the reopening was unwarranted - Held that:- The expression “reason to believe”, was the subject matter of extensive discussion by full bench of this court reported as Commissioner of Income Tax vs. Kelvinator of India Limited(2002 (4) TMI 37 - DELHI High Court ). The full bench laid down by reasoning prepositions as to what can constitute valid “reason to believe”. The Supreme Court considered the correctness of that judgment. The court held that the information received by the assessing officer after completion of assessment alone is “the sound foundation for exercising the power under Section 147 read with Section 148”. In these circumstances, the arguments of the revenue that the previous contrary ruling in ALA Firm’s case (1991 (2) TMI 1 - SUPREME Court ) continues to govern the field cannot be countenanced. The judgment in ALA Firm’s case (supra) concerned an assessment for the year 1961-62. Section 147 was amended in 1989. Consequently, the declaration of law in ALA Firm’s case (supra) was of the pre-existing law. The law as exists was dealt with in Kelvinator of India Limited’s case (supra) which has pronounced the correct position decisively. So far as the judgment in Giri Lal’s case (2016 (8) TMI 1010 - SUPREME COURT) goes, the court notices that the assessee had challenged the reopening – which was rejected by the High Court. The order as it were is a mere confirming one and has not discussed or dealt with the previous authority in Kelvinator of India Limited’s case (supra) which is a judgment in terms of Article 141 of the Constitution and per se binding having regard to the larger bench composition. No substantial question of law 2016 (12) TMI 353 Addition of Long Term Capital Gain - applicability of provisions of section 50C to transfer of land and building, being a leasehold property - Held that:- Tribunal followed its decision in Atul G. Puranik vs. ITO [2011 (5) TMI 576 - ITAT, Mumbai] which held that Section 50C is not applicable while computing capital gains on transfer of leasehold rights in land and buildings. As Revenue, states that the Revenue has not preferred any appeal against the decision of the Tribunal in the case of Atul Puranik (supra), thus, it could be inferred that it has been accepted. As held in Apex Court in UOI vs. Satish P. Shah (2000 (12) TMI 5 - SUPREME Court ) has laid down the salutary principle that where the Revenue has accepted the decision of the Court/Tribunal on an issue of law and not challenged it in appeal, then a subsequent decision following the earlier decision cannot be challenged. Further, it is not the Revenue's case before us that there are any distinguishing features either in facts or in law in the present appeal from that arising in the case of Atul Puranik (supra). - Decided against revenue 2016 (12) TMI 352 Revision u/s 263 - erroneous order or not - assessment of income - the subject amount of Rupees Six crores was credited to the personal account of the assessee - Held that:- There is a categorical finding of the learned Tribunal that the subject amount of Rupees Six crores has been credited into the bank account of the respondent represents the income of M/s. Britto Amusement Pvt. Ltd. and has to be added in its hands. The learned Tribunal also noted that the assessment were centralized and the same Assessing Officer has taken a view and accepted the stand taken by the said Company that such amount were to be assessed in the hands of the private company. Taking note of the said observations of the learned Tribunal and the findings of facts which have not been assailed by the learned counsel for the appellant and as the subject amount admittedly has been assessed in the name of the said Private Limited Company, the question of interfering in the impugned order passed by the learned Tribunal would not at all be justified. The substantial question of law proposed by the appellant as such would not arise in the present appeal taking note of the findings of the learned Tribunal 2016 (12) TMI 351 Eligibility of section 54F benefit - whether benefit will not be available if the residential house is purchased or constructed by the assessee outside India? - Held that:- The Tribunal has wrongly interpreted section 54F of the Income-tax Act by holding that the assessee should purchase the residential house situated in India. Prior to amendment to section 54F of the Act, the only condition stipulated was investment in a residential house. When the section 54F of the Income-tax Act was clear and unambiguous, there is no scope for importing into the statute the words which are not there. Such importation would be not to construe but to amend the statute. If there is any defect in the Act, it can be remedied only by the legislation and not by judicial interpretation. In the present case the assessee has purchased the residential house in U.S.A. out of the sale proceeds of the plot in India and thus she has fulfilled the conditions of section 54F of the Income-tax Act before its amendment by the Finance (No. 2) Act. Moreover, when the language of a taxing provision is ambiguous or capable of more meanings than one, then the court has to adopt the interpretation which favours the assessee. Section 54F of the Act before its amendment was clear that the assessee should investment in a residential house. The language of section is clear and unambiguous. Therefore, we cannot import into the statute the words 'in India’ as interpreted by the authorities. Thus, taking into consideration the above facts, we are of the opinion that benefit of section 54F before its amendment can be extended to a residential house purchased outside India. In that view of the matter, the appeal is allowed. The order of the Tribunal is set aside. We answer the question in favour of the assessee and against the revenue. 2016 (12) TMI 350 Genuineness of the Commission paid to the commission agent - Non deduction of TDS - Held that:- It is not disputed that the commission paid to Mrs. Sita Ram Parodkar has been assessed to tax by the Revenue. Both the authorities upon appreciating the evidence on record has found that the Revenue has failed to establish that the transaction was not genuine. In fact, the amount paid by the respondent to the said commission agent has not been disputed as admittedly such amount was taxed at the hands of the said Assessee. In such circumstances, we find that the question of interference in concurrent finding of fact on this aspect would not be justified. In the present case, it is not disputed that the said company M/s. De Long Minerals and Logistics is not having any establishment in India. It is also not established that any income of the said company is assessed in India or any tax is paid on that count in India. In such circumstances, the observations of the Apex Court relied upon by this Court in the judgment of Commissioner of Income Tax V/s. Gujarat Reclaim & Rubber Products Ltd. (1980 (8) TMI 2 - SUPREME Court ) would be squarely applicable to the facts of the present case. - Decided in favour of assessee 2016 (12) TMI 349 Deduction u/s. 37(1) - contribution to the Pune Bench of the Institute of Chartered Accountants of India towards construction of a administrative building of the said branch - Held that:- From the record we found that the Pune Branch of the Western India Regional Council (the branch) of the Institute of Chartered Accountants of India (ICAI) had proposed to construct a building for locating its administration office including an auditorium, information technology centre, reading room facilities, pantry, cafeteria and parking facilities for the members and students of the institute.We also found that for the said purpose the Pune Branch had set up Pune Branch Building Fund and, the Institute has received approval under Section 80 G of the Income Tax Act, 1961 ref. O.DIT (E) 2005-06 T. 1041/1001 valid up to 31st March, 2009. Assessee firm has major presence in Pune around half of its compliance clientele and 30-40% of the revenues are generated from Pune. The Hon’ble Supreme Court in the case of S A BUILDERS (2006 (12) TMI 82 - SUPREME COURT ) reiterated the proposition that the expression "commercial expediency" is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency.In view of the above discussion, we can conclude that if the claim is allowable u/s 37(1) itself there is no case for proceeding to Chapter VIA which applies to all assessees whether or not they are carrying on business or profession. Thus we direct the AO to allow the contribution made by assessee under Section 37(1) of the Act. - Decided in favour of assessee. 2016 (12) TMI 348 Addition u/s 68 - unexplained possession of jewelry and cash - Held that:- Once the assessee has produced prima facie relevant material and documentary evidences of the entries in the balance sheet, then the onus shifts upon the AO for carrying out some kind of inquiry or verification of the evidences filed and explanation furnished. In the context of Indian social customs, the gifting of cash and jewellery from parents, grandparents, relatives, near and dear ones cannot be ruled out. The jewellery and cash received at the time of marriage for a woman is considered to be “Stridhan” which is even recognized under law. Therefore, the presumption and pre-ponderance of probabilities goes in favour of the assessee that she was in possession of the jewellery and cash. The assessee's explanation and evidence have not been dislodged by the AO by bringing any contrary material on record. The AO has proceeded to make the entire addition u/s 68 of the Act simply on the basis of presumption and assumptions which has been confirmed by the ld. CIT(A). IThus the lower authorities have failed to carry out any inquiry or verifications to justify the various additions made u/s 68 of the Act. Accordingly, we reverse the order of ld. CIT(A) and direct the AO to delete all the additions. - Decided in favour of assessee 2016 (12) TMI 347 Admission of Additional Evidence - Held that:- It is a matter of record that at para 3.1 of the impugned order, the learned CIT(A) has noted that in the course of appellate proceedings the assessee submitted additional evidence in the form of copies of ledger accounts and vouchers, which were forwarded to the Assessing Officer (AO) under rule 46A of the I.T. Rules, 1962 for making necessary enquiries/verification and report thereon. It is also recorded that the AO submitted the remand report dated 24.06.2010 in the matter. In these circumstances, we find no merit in the assessee’s contentions that the additional evidence put forth was not admitted or considered by the learned CIT(A) and accordingly dismiss ground No. 1. Disallowance out of Administrative Expenditure - Held that:- Most of the expenses under the head ‘administrative expenses’ incurred for advertisement, audit fees, computer expenses, inspection fees, licence fees, municipal taxes, printing and stationery, property tax, rent, professional and legal fees, sundry expenses for fire extinguisher, office telephone and postage, sales promotion, etc. would appear to us to be expended for the assessee’s business purposes, since admittedly nothing adverse has been reported in respect of any such claim by the AO in remand proceedings. As submitted by the assessee, the element of personal expenditure is admittedly embedded in the telephone expenses for residence (viz. ₹ 32,817/-) and charity/donation (Rs. 14,000/-). In these factual circumstances of the case, as discussed above, we hold that expenditure on donations of ₹ 14,000/- and about 20% of the telephone expenses of residence (approx. ₹ 6,500/-) could be justifiably be considered as having been expended for personal or /and non business purposes. We, therefore, sustain the disallowance of administrative expenses to ₹ 20,500/- (i.e. ₹ 14,000/- on account of donation plus ₹ 6,500/- out of residential telephone/postage expenses) as against ₹ 50,000/- disallowed by the AO. The AO is accordingly directed. - Decided in favour of assessee partly Income from Letting out of Bakery shop - Held that:- Respectfully following the decision of the Hon'ble Bombay High Court in the case of Dudhsagar [2014 (8) TMI 691 - BOMBAY HIGH COURT] which is factually similar to the case on hand and is squarely applicable, we hold that the income earned by the assessee from letting out of bakery alongwith equipments required to manufacture bakery products and shop alongwith furniture, fixture and kitchen equipments for running and sale of bakery products, is to be assessed as ‘income from others sources’/‘business income’ as declared by the assessee and consequently reverse the orders of the authorities below holding the same to be exigible to tax under the head ‘income from house property’. Capital gains on Relinquishment of Tenancy Rights - Held that:- Admittedly as per the recitals in the agreement and the confirmation of the builder, possession of the said properties by the assessee and the builder were made over/taken over simultaneously by both parties only on 30.12.2006 and not before that. Therefore, in this factual matrix of the case, in our view, the capital gains arising on relinquishment of tenancy rights by the assessee is not exigible to tax either substantially or protectively in the period under consideration, i.e. A.Y. 2006-07, but in the period relevant to A.Y. 2007-08. The fact that the assessee has declared the capital gains on relinquishment of tenancy rights in the said property in its return of income for A.Y. 2007-08, which has been accepted in order under section 143(1) of the Act dated 14.03.2009 is not disputed by Revenue; and rightly so. In the factual and legal matrix of the case as discussed above, we are of the considered view that the capital gains on relinquishment of tenancy right by the assessee is not exigible to tax in the year under consideration, i.e. A.Y. 2006-07 as held by the authorities below and direct the AO to delete the addition made to the assessee’s income on this account. Charging of Interest under sections 234B and 234C - Held that:- The charging of interest is consequent and mandatory and the AO has no discretion in the matter 2016 (12) TMI 346 Eligibility of deduction under section 80P(2)(a)(i) - CIT(A) holding that the status of the assessee is Cooperative Society and directing the Assessing Officer to allow deduction - Held that:- For the assessment years under consideration, by following the decision of the Tribunal for the assessment years 2008-09 and 2010-11 ld. CIT(A) has directed the Assessing Officer to allow the deduction under section 80P(2)(a)(i) of the Act. The ld. DR could not controvert the above findings of the Tribunal or filed any higher Court decision having modified or reversed the findings of the Tribunal. Respectfully following the above decision of the Coordinate Bench of the Tribunal, we find no reason to interfere with the orders of the ld. CIT(A) on this issue and thus, the ground raised by the Revenue is dismissed for both the assessment years. Floating provision for NPA, loss on redemption of securities and bad debts written off claim - Held that:- On perusal of the assessment order, we find that even though the assessee has not made claim of deduction in the return of income, the Department has taken the benefit of assessee’s ignorance and rejected the claim made during the course of assessment proceedings. If the assessee is legally entitled to claim a deduction, in view of the directions given by the CBDT vide its Circular No. 14 [XL-35] of 1955 date 11.04.1955, the Assessing Officer should have considered the genuineness of the claim and granted relief to the assessee which he is legally entitled to. However, in this case, during the course of assessment proceedings, the assessee has made the claims, which was not originally claimed in the return of income, but, the Assessing Officer has rejected the claim of the assessee since the assessee has not made such claim in the return of income. Under these circumstances, we direct the Assessing Officer to consider the claims of the assessee after verifying the record with regard to its admissibility, genuineness and decide the issues in accordance with law after allowing sufficient opportunities of hearing to the assessee. Accordingly, the ground raised by the assessee is allowed for statistical purposes. 2016 (12) TMI 345 Depreciation on assets of assessee trust - Held that:- In this case, as no business undertaking was held under trust as provided under Section 11(4) & (4A) of the Act. The assessee is claiming depreciation in respect of asset which was used as tool for carrying out charitable object of the institution. When the asset was used as tool for carrying out the object of the charitable institution, such activity cannot be construed as a business or profession of the assessee. Therefore, Section 32 of the Act is not applicable in this case. See case of The Music Academy Madras, Chennai [2016 (5) TMI 165 - ITAT CHENNAI ] - Decided against assessee. Customs 2016 (12) TMI 320 Levy of duty - drawings and designs - imported by the appellant for construction activity of various hotels - whether drawings and designs are goods so as to attract duty liability under customs act? - Held that: - The issue as to whether drawings and designs are goods or otherwise, is now settled by the apex court in ASSOCIATED CEMENT COMPANIES LTD. Versus CC [2001 (1) TMI 248 - Supreme court of India] wherein it has been held that drawings and designs are goods. Respectfully following the same judgment, we hold that drawings and designs imported in all these appeals are goods liable to customs duty. Valuation - correct value or levy of customs duty - Held that: - the adjudicating authority after perusing the contract came to a conclusion that the total consideration, compensation paid by the appellant to overseas party to US $3,45,000 needs to be reduced to $35,000 which was not in respect of drawings and designs, was for inspection and installation. We find this impugned compensation is for research and concept design, preparation of plan elevation, and furnace specification and preparation of loose furnishing specification. In our considered view, all these three items as mentioned in the contract would fall under the category of drawings and designs, hence the adjudicating authority was correct in holding that these amounts are to be considered as transaction value for discharge of customs duty - However, since in other orders, the adjudicating authority has given a further deduction of 10% from the transaction value, the same ratio needs to be applied in this case also. Accordingly, out of total US $3,10,000 further 10% discount is to be granted to appellant and transaction value has to be arrived accordingly and the duty liability to be reworked out. The entire agreement talks about preparing drawings and designs for activity for hotels and rooms. In our view, the contracts are not composite contracts. In order to consider them as composite contract, clause of the scope of work is read; in all these contracts appellant had contracted for drawings and designs only j hence the plea of the Id. counsel that 1/3rd of the value of the contractual compensation should be considered for discharge of customs duty is not acceptable and the proposition is rejected. In our view, the adjudicating authority has been fair to extend 10% of the contracted compensation as abatement in respect of these contracts for arriving at the correct value for discharge of customs duty. We do not find any unreasonableness in the order passed by the adjudicating authority. In view of this, we uphold the impugned order in all these appeals and reject the appeals on valuation issue. Imposition of penalty - Held that: - In our view during the relevant period in question, the issue of whether drawings and designs have to be considered as goods for levy of customs duty was in dispute and had to be decided by the apex court. In view of this, visiting the appellant with penalty is unwarranted. Accordingly, penalties imposed on the appellant are set aside. We uphold the demand of the customs duty and the interest thereon as indicated herein above and set aside the penalties - appeal disposed off. 2016 (12) TMI 319 Revocation of CHA licence - benefit under the Duty Exemption Pass Book (DEPB) scheme - misdeclaration of exports - Held that: - A licencing system, with stringent requirement of authorization and issue of passes, is of little avail if it fails in enforceability. Not only was a shipping bill, signed by an unauthorized person, allowed to be filed but it is stated authoritatively that the unauthorized person was present at the examination of the cargo. It is surprising that such person, lacking credentials, was allowed access to customs areas and indeed allowed to participate in proceedings. If such be the ease of insinuation, the contention of the appellant that they were unaware of the illicit use of their licence is acceptable as within the realm of the possible. It would appear that there is no let or hindrance to any person filing a bill of entry or shipping bill without the knowledge of the broker whose authority is usurped. In these circumstances, we find no merit in the acceptance of the report of the inquiry officer by the licencing authority as sufficient grounds for revocation of licence and forfeiture of security deposit. Independent inquiry was not carried out before proceeding with penalty under regulation 20 of Customs Brokers Licencing Regulations, 2013. Action was based on evidence that was seemingly sufficient for initially imposing penalty under section 114 of Customs Act, 1962 but found to be inadequate in appellate proceedings. The evidence that was the foundation of the penalty having been discredited in its hierarchical progression, its tertiary use in proceedings under the Regulations, itself a vitiating factor, lacks sanctity. Appeal allowed - decided in favor of appellant. 2016 (12) TMI 318 Classification of imported goods - Bleaching Earth V2 Super Galleon - classified under CTH 250820 or under CTH 380290 - Held that: - the Grounds of Appeal of the department is not contraverting the same by any other evidence in the support of department. It is also to be noted that the appellant had filed bill of entry by describing the product as bleaching earth V2 Super Galleon and claimed classification under 250820. The Chapter Heading of 250820 describes the product that may fall under the sub-Heading which are Decolourising earth and Fuller s earth. In our view the product imported by appellant Bleaching earth may or may not be Decolourising earth but Chapter Heading 382090 covered Activated Natural Mineral Products wherein the goods can be classified. In the case in hand, there is nothing on record to show that samples of the imported goods were drawn and analysed to arrive at a conclusion that these products are Activated Natural Mineral. In the absence of any cogent evidence to show that the product would merit classification under Chapter Heading 382090, we hold that the impugned order is correct and does not require any interference - appeal dismissed - decided against Revenue. 2016 (12) TMI 317 Revocation of CHA licence - Implementation of order - Held that: - There is absolutely no respect for the CBEC circulars or the CBLR 2013. This data appears to be just the tip of the iceberg as the revenue is seeking further time of 8 to 12 months just to compile the data of other such files regarding delay in processing - Learned Departmental Representative submits that they be given another chance to move the Hon'ble High Court for hearing of the stay petition as soon the Hon'ble High Court reopens after Deepawali vacation - Matter adjourned to allow Revenue to mention the matter before the Hon’ble High Court. 2016 (12) TMI 316 Recovery of duty - import of Phosphoric Acid - whether quantity received short by the appellant of Phosphoric Acid during the period 1991 to 1995 needs to be subjected to customs duty by denying the benefit of exemption Notification claimed? - Held that: - I have perused the Notifications 166/76, 236/89, 121/92, 265/92 & 24/94 and find that the said notification specifically notification No. 24/94 and earlier one Notifications exempt Phosphoric Acid from customs duty if they are imported for manufacture of fertilizers. In the case in hand, there is no dispute as to the fact that the Phosphoric Acid imported is for manufacture of fertilizers. When there is no dispute as to the short receipt of the Phosphoric Acid in the shore tank, I find that the demand as raised by the Revenue was correctly dropped by the adjudicating authority. The reliance placed by the lower authority on the CBEC Circular No. 96/2002 dated 27.12.2002 is correct proposition of law and has been affirmed by the Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. [2000 (7) TMI 313 - CEGAT, MUMBAI]. Appeal rejected - decided against Revenue. 2016 (12) TMI 315 Revocation of CHA licence - Implementation of order - Held that: - There is absolutely no respect for the CBEC circulars or the CBLR 2013. This data appears to be just the tip of the iceberg as the revenue is seeking further time of 8 to 12 months just to compile the data of other such files regarding delay in processing - Learned Departmental Representative submits that they be given another chance to move the Hon'ble High Court for hearing of the stay petition as soon the Hon'ble High Court reopens after Deepawali vacation - Matter adjourned to allow Revenue to mention the matter before the Hon’ble High Court. Corporate Laws 2016 (12) TMI 309 Composite Scheme of Arrangement - Held that:- The requirements of the provisions of sections 391 to 394 of the Companies Act, 1956 are satisfied. The Scheme appears to be genuine and bonafide and in the interest of the shareholders and creditors. This Court, therefore, allows the Petitions and approves the Scheme, which includes reductions of the securities premium account of Montecarlo Limited. The Scheme is hereby sanctioned. The prayers made in the respective Company Petitions are granted. 2016 (12) TMI 308 Entitlement to the beneficial ownership of the shares or securities to nominee of a holder of shares or securities - Transfer of shares - Nomination of shares - whether the view taken by the learned Single Judge in the case of Harsha Nitin Kokate v. The Saraswat Cooperative Bank Limited and Others [2010 (4) TMI 614 - HIGH COURT OF BOMBAY ] that since the nomination is shown to be correctly made by assessee's husband who was the holder of the Suit shares, the Plaintiff would have no right to get the shares of her deceased husband sold or to otherwise deal with the same is correct? - Held that:- There is no material difference between Subsection (3) of Section 109A of the Companies Act and Subsection (1) of Section 6 of the Government Savings Certificates Act, 1959 as well as Subsection (2) of Section 45ZA of the Banking Regulation Act, 1949 which start with nonobstante clause and seek to provide that nomination will override the disposition whether testamentary or otherwise. The said provisions seek to exclude all other persons except the nominee. Section 109B of the Companies Act does not advance the case of the Appellants any further. Section 109B does not suggest that on nomination being made by a deceased shareholder of a Company, his nominee becomes the owner of the shares to the exclusion of all other legal heirs. In the present case, we find that the provisions of Section 109A and in particular Subsection (3) thereof are not materially different from the provisions of Subsection (1) of Section 6 of the Government Savings Certificates Act, 1959. Subsection (2) of Section 45ZA of the Banking Regulation Act, 1949 is also similar to Subsection (2) of Section 109B. The same is the case with Byelaw 9.11 of the Depositories Act,1996. Even assuming that the format of the nomination requires attestation as required by a will under the Indian Succession Act,1925, the nomination does not become a testamentary disposition. Therefore, the decision of the Apex Court in the case of State of Himachal Pradesh and Others v. Ashwani Kumar and Others [2015 (11) TMI 1610 - SUPREME COURT] is of no help to the Appellants. The nominee does not get absolute title to the property subject matter of the nomination. The reason is by its very nature, when a share holder or a deposit holder or an insurance policy holder or a member of a Cooperative Society makes a nomination during his life time, he does not transfer his interest in favour of the nominee. It is always held that the nomination does not override the law in relation to testamentary or intestate succession. The provisions regarding nomination are made with a view to ensure that the estate or the rights of the deceased subject matter of the nomination are protected till the legal representatives of the deceased take appropriate steps. None of the provisions of the aforesaid Statutes providing for nominations deal with the succession, testamentary or nontestamentary. The object of the provisions of the Companies Act is not to either provide a mode of succession or to deal with succession. The object of the Section 109A is to ensure that the deceased shareholder is represented by some one as the value of the shares is subject to market forces. Various advantages keep on accruing to shareholders. We hold that there was no reason to take a view which is contrary to the view taken in the long line of the decisions of the Apex Court on interpretation of provisions regarding nominations. Hence, the view taken in Kokate's case is not correct. We answer the first question in the negative. Also the issue of the effect of nomination made by the testator cannot be gone into by the Testamentary Court in the probate proceedings. Service Tax 2016 (12) TMI 344 Valuation - Business Exhibition Services - For providing the said services the appellant is arranging for the booths, which are being booked by its customers. Some of the customers, after booking the booths, proceed for cancellation of the same. For cancelling the booth already booked by their customers, the booking amount is being refunded to them after deducting certain cancellation charges. The dispute relates to the said cancellation charges retained by the appellant - Held that: - the same are being retained by the appellant from the initial amounts given to them for booking a booth, when the same is subsequently cancelled by the customer and the amount is refunded to them. Admitted position, which emerges is, that no booths are ultimately rented out by the appellant to their customers. As explained, such cancellation charges are for putting the appellant into inconvenience by initially booking the booths and subsequently cancelled. In as much as no service stand provided by the appellant to their customers and for which purpose no consideration was ever received by them, we are of the view that the cancellation charges recovered by the appellant cannot be held to be the consideration for providing business exhibition services. The same are thus not liable to service tax. Imposition of penalty - extended period of limitation - Held that: - In the absence of any positive evidence produced by the Revenue to show that the penalty amount recovered by the appellant from the booth violators was not being made leviable to tax on account of any malafide, we find no justifiable reasons to invoke the longer period of limitation. As such we hold that in as much as the entire demand is beyond the normal period of limitation, same is hit by the bar of limitation and is not sustainable. Demand set aside - appeal allowed - decided in favor of appellant-assessee. 2016 (12) TMI 343 Taxability - reverse charge mechanism - whether it was justified in holding that the appellants were procuring the services of foreign agent on commission basis and were required to discharge their tax liability on reverse charge basis in terms of provisions of 66A of the Finance Act, 1994, which were introduced with effect from 18.04.2006? - Held that: - reliance placed on the decision of the appellant's own case RSWM Ltd. Vs. CCE [2016 (11) TMI 1363 - CESTAT NEW DELHI], where similar issue was decided, and it was held that 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. In as much as the issue stands decided in the appellant’s own case, we set aside the penalty by extending the benefit of Section 80 of the Finance Act, 1994 and confirm the demand along with interest as not contested - appeal disposed off - decided in favor of assessee. 2016 (12) TMI 342 Imposition of penalties - business auxiliary services - whether period of limitation can be invoked in the cases where section 80 has been invoked? - Held that: - Tribunal in its number of cases observed that where the penalty under Section 80 of the Act has not been imposed by extending the bona fide belief on the part of the appellant, the extended period would not be invokable in as much as the same ingredients are required for invocation of extended period of limitation. Such references can be made in the case of Sankhla Udyog Vs. CCEST, Jaipur [2014 (12) TMI 614 - CESTAT NEW DELHI] as also to the decision in the case of BSNL Vs. CCE, Ahmedabad [2008 (12) TMI 87 - CESTAT, AHMEDABAD]. The appellant is a public sector under taking, being a State Govt. enterprise, in such a case allegation of wilful mis-statement, suppression of facts or deliberate contravention of Rule with an intention to evade the duty payment cannot be made. Tribunal has observed the same in the case of CCE, Allahabad Vs. Bharat Yantra Nigam Ltd. [2014 (7) TMI 370 - CESTAT NEW DELHI]. The extended period is not available to the Revenue. However, a part of the demand falls within the limited period, which would be re-quantified by the adjudicating authority - appeal disposed off - decided partly against Revenue. 2016 (12) TMI 341 Demand - Business Auxiliary Services - Promotion, marketing and selling of chicks - Veterinary services - Laboratory Analysis and Testing services - exemption under Notification No.13/2003 dated 20/06/2003 as commission agent - invocation of section 80 - Held that: - the appellants have agreed to provide veterinary services and laboratory testing and analysis charges not only to VHPL but also to customers. In view of the above, it is apparent that the appellant not only providing services to Venco but also to the customers of Venco on behalf of Venco - It is seen that the exemption Notification No.13/2003 provides exemption to business auxiliary services provided by a commission agent from the service tax leviable thereof. However, the said notification clearly defines the commission agent to mean a person who causes sale or purchase of goods on behalf of another person for a consideration which is based on quantum of sale or purchase. In the instant case, it is clear that while the consideration is based on the quantum of sale, the services provided is not ‘sale or purchase of goods” but is in the nature of customer care on behalf of Venco/VRB. Thus, the notification No.13/2003 is not applicable in respect of Veterinary services and Laboratory Analysis and Testing services - the demand is sustainable. However, it needs to be limited to the quantum of service provided to customers of Venco/VRB. In so far as services are received by Venco/VRB it will not fall under business auxiliary service. Invocation of section 80 - Held that: - It is seen that there is no doubt that part of the services provided under Veterinary services and Laboratory Analysis and Testing services was in the nature of customer care services specifically covered under the definition of Business Auxiliary Services. The Commissioner has in his order stated that since the period of dispute pertains to July 2003 to September 2004 when business auxiliary services was just brought into tax net. The benefit has been extended. We find that in the definition of business auxiliary services, there is no doubt that the service provided to a third party on behalf of the client is specifically covered leave no scope for doubt - invocation of Section 80 is incorrect. Appeal disposed off - decided partly in favor of Revenue. 2016 (12) TMI 340 CENVAT credit - whether the ground that inputs services received, which was common to both the activities i.e. services provided and trading of goods and since trading activity was not taxable under the Central Excise Law and Service Tax Law, the benefit of cenvat credit was not available to the noticee, is justified? - Held that: - the appellant's main contention is that the alleged trading activity is intimately connected with their core business activity of 'Erection Commissioning & Installation Services' as well as 'Maintenance & Repair Services' and also to their business of manufacturing of dutiable goods. Two purchase orders, submitted in support of their claim, were admittedly not produced before the adjudicating authority as well as Commissioner (Appeals). It would therefore be appropriate that the said two purchase orders are examined by the lower authorities so as to give a ruling on the contention made by the appellants - the matter is remanded to the adjudicating authority to examine the purchase orders and related documents submitted by the party and to adjudicate the case afresh after giving fair opportunity to the appellants - appeal allowed by way of remand. 2016 (12) TMI 339 Demand of tax with interest and penalties - amounts received by appellant from various financial institutions for organizing customers to secure loan for vehicles from those Institutions - appellant has already discharged the service tax liability and interest thereof - Held that: - Since the appellant has already discharged the service tax liability and the interest thereof on the taxability of the amount received from the financial institutions under "Business Auxiliary Service", we upheld the same. As regards the penalties, it is correctly pointed by learned Consultant as the issue was being disputed and had to be settled by the Larger Bench, we find that this is a fit case to invoke the provisions of Section 80 of the Finance Act, 1994. By invoking the provisions of Section 80 of the Finance Act, 1994, we set aside the penalties imposed on the appellant. Appeal allowed - decided in favor of appellant-assessee. 2016 (12) TMI 338 Refund claim - service tax was wrongly paid - Section 66A of the Finance Act, 1994 was introduced w.e.f. 18.04.2006 and therefore service received from outside India prior to 18.04.2006 are not liable for service tax - whether the denial of refund claim on the ground of limitation as the refund claim was filed after the stipulated time period of one year from the relevant date as provided under Section 11B of Central Excise Act, 1944, justified? - Held that: - We find that the refund was sought for an amount of service tax paid by the appellant on the services received by them from the person located in the foreign country. We do agree that the service tax was not payable on such services by the appellant for the period prior to 18.04.2006, i.e. before enactment of Section 66A of the Finance Act, 1944. However the issue involved in the present case that in the case where the appellant filed the refund claim after one year from the relevant date (date of payment of service tax), whether limitation of one year as provided under Section 11B, will apply or otherwise. We find that at the time of payment even though the service tax was not payable but the appellant paid the amount as service tax only. Therefore the refund thereof is governed by the provisions of Section 11B of the Central Excise Act, 1944. The Ld. Counsel relied upon various decisions. However some of the judgments were given under the writ jurisdiction by the High Court under Articles 226 and 227. The Hon’ble Supreme Court in the case of Union of India Vs. Kirloskar Pneumatic Company [1996 (5) TMI 87 - SUPREME COURT OF INDIA] held that under the writ jurisdiction High Court cannot direct the customs authority to ignore the time limit prescribed under Section 27 of the Act. The refund claim filed after one year from relevant date, i.e. from the date of payment of service tax in the present case is clearly time barred. We therefore upheld the impugned order - appeal dismissed - decided against appellant-assessee. Central Excise 2016 (12) TMI 337 CENVAT credit - procurement of input from 100% EOU - The EOU cleared inputs to the appellant by paying duty under Serial No. 3 of the Notification No. 23/2003-CE dated 31.03.2003 - whether the appellant is entitled to CENVAT credit? - Held that: - In this case the payment of duty under serial no. 3 of notification 23/2003 is not disputed by the parties. The duty cost on the appellant is to verify that the 100% EOU has paid duty under sr. No. 3 of the said notification when the duty has been paid under sr. No. 3 of under notification 23/2003-CE, the same is sufficient to entitlement to the credit to the appellant. In that circumstance, I hold that the appellant has correctly availed the cenvat credit. Therefore, the impugned order deserves no merits, hence set aside - CENVAT credit allowed - appeal allowed - decided in favor of appellant-assessee. 2016 (12) TMI 336 Demand - clandestine removal - Held that: - The case of the Revenue is based only on the presumption that there is no production loss of inputs. Admittedly, fly ash which is input for manufacturing were cement is of such nature that it cannot be used 100% as input in manufacturing of the cement, therefore, the basic presumption of the Revenue is that there is no wastage or loss erroneous. Further, I find that no positive evidence has been produced on record by the Revenue to allege clandestinely excess manufactured cement and clearance of cement - the allegation of the clandestinely manufacture of goods and clearance of cement is not sustainable. Appeal allowed - decided in favor of appellant-assessee. 2016 (12) TMI 335 Denial of CENVAT credit - caffeine Anhydrous - the appellant availed the cenvat credit on service tax paid on the services provided by the contractor under the category of Business Auxiliary Services, in relation to dismantling of pipe line and on Civil Works done by the contractor to the tune of ₹ 3,22,492/-. The appellant also availed cenvat credit of ₹ 1426/- of service tax paid on commission paid on bookings of air ticket/ travel agent and Rsn 3,805/- of the amount of sale tax the appellant also availed cenvat credit on ₹ 1,020/- without any invoices - whether the appellant is entitled to CENVAT credit? Held that: - The cenvat credit of ₹ 3,22,492/- has been availed in the activity of dismantling of pipe line and Civil Works. I have gone through the definition of input services as per Rule A(I) of the CCR, 2004 and hold that as the appellant has availed cenvat credit on the dismantling of pipe line and Civil Works for change of dismantling of pipe line in their factory, therefore, as these services has been availed by the appellant for renovation of pipe line, therefore, the appellant has correctly availed the cenvat credit of ₹ 3,22,492/- The appellant has availed the cenvat credit of ₹ 1426/- and ₹ 1,020/- but they have not produced any evidence for payment of service tax on that amount, therefore, the appellant is not entitled to take cenvat credit of ₹ 1426/- and ₹ 1,026/-. Further, the appellant has availed inadmissible cenvat credit of ₹ 3805/- on sale tax part shown in the invoices as the amount of ₹ 3805 is not amount of the services tax, therefore, on the said amount the appellant is not entitled to take cenvat credit. In result, cenvat credit on these amounts i.e. (Rs.1426.00+1026.00+3805) the appellant is denied. As the appellant has availed inadmissible cenvat credit of (Rs.1426+3805 +1020) without any cover of invoices therefore, the appellant is liable to be penalised for availment of cenvat credit. As the appellant has paid the amount of inadmissible cenvat credit availed along with interest, therefore, penalty is reduced to 25% of the demand i.e. 25% of (Rs. 1426+3805+1020). Appeal disposed off - decided partly in favor of appellant-assessee. 2016 (12) TMI 334 Demand - wrongful availment of CENVAT credit - housekeeping and gardening maintenance services - Held that: - I find that the issue is no more res-integra and covered by the judgment of Tribunal in the case of Maruti Suzuki Ltd.[2015 (10) TMI 113 - CESTAT NEW DELHI], where it was held that services such as cleaning/maintenance of garden/trees, plantation, etc. are used to control the pollution created by the industry and the same could be considered as input services used in relation to manufacture of final product - appeal allowed - credit allowed - demand set aside - decided in favor of appellant-assessee. 2016 (12) TMI 333 CENVAT credit - forged invoices - Held that: - I find that the only objection raised by the Department in disallowing CENVAT Credit on the disputed invoices/documents was that these invoices/documents being initially in the name of M/s Lekar Pharma Loan Licensee of the Appellant and not in the name of the Appellant, CENVAT Credit cannot be admissible. I find that the Appellant later corrected the invoices/documents from the input supplier by incorporating their name; besides the said inputs/input services were received and utilized in the manufacture of final products. In the result, the impugned order being devoid of merit is set aside - appeal allowed - decided in favor of appellant-assessee. 2016 (12) TMI 332 Appropriation of amounts - sanctioned rebate amount appropriated towards demand claim - Held that: - I find that the Adjudicating Authority, while disposing the rebate claim though sanctioned it, but appropriated the said amount against the demand confirmed in some other case; Appeal against which was pending before the first Appellate authority. Further, I find subsequently, the Ld. Commissioner(Appeals) set aside confirmation Order of the Adjudicating authority by its order dt 7.12.2012. Thus, in my view, appropriation of the rebate claim does not survive. In the result, the order passed by the Commissioner (Appeals) is upheld and Revenue’s appeals being devoid of merit, accordingly dismissed - Decided against Revenue. 2016 (12) TMI 331 Remission of duty on loss of goods - cement and cement clinkers - shortage in the quantity of cement clinker exported - natural/normal/unavoidable handling/transit loss? - whether the appellant is liable to pay duty on the short quantity of cement clinker which was cleared from their factory and declared to have exported as per ARE-1 documents? - Held that: - The department does not allege that the shortage occurred due to any positive act on the part of the appellant like fraud/clandestine removal. In such circumstances, it can be safely concluded that the shortage is due to transit loss. The case law UP State Cement Corporation Ltd. [1996 (4) TMI 139 - HIGH COURT OF JUDICATURE AT ALLAHABAD] uphold that there is a chance of shortage due to transit loss in the case of cement clinker. Therefore, I do agree with the contention put forward by the appellant that the shortage was due to transit loss/natural causes - demand not sustainable - appeal allowed - decided in favor of appellant-assessee. 2016 (12) TMI 330 Valuation - inclusion in the cost of the final product, various charges like testing charges, conversion charges, administrative expenses and notional profit while arriving at assessable value - Held that: - We find that the demand is for the period from May 1995 to 24.09.1997. The demand was raised only on the captive by consumed M.S. Pipes and Shells as the value arrived on cost consideration method. The Department initially raised the dispute in the year 1997 and the appellant has deposited duty amount of ₹ 34,07,750/-. Therefore it was not known whether the value is correct or otherwise. Specifically the matter was referred to the Special Audit and accordingly, vide show-cause notice dated 15.12.2000 the demand of differential duty was raised. The appellant is a Maharashtra State Government Corporation; M.S. Pipes is manufactured and used for the Government projects. Therefore the Corporation is not meant for making any product manufactured by them, is not sold in the commercial market but only meant for use of the Government project. Therefore in our considered view the Government entity cannot make payment of duty. Extended period of limitation - Held that: - For the purpose of invoking extended period, the assessee should have intent to evade payment of duty with fraud, suppression of fact, collusion etc. The intention of evasion of tax imposed by the Finance Ministry does not exist accordingly there is no ingredient exist either for the Company or promoters of the Company benefited intentional to evade payment of duty. In present case the appellant being a Government Organisation whether the gain or loss of Government entity, therefore cannot be any intention or evasion, there is no policy of the Government to indulged in such activity of evasion of duty. Moreover the valuation dispute was raised in the 1997 and the appellant as per their calculation paid the differential duty therefore if it is sought payment of duty the Department have issued a show-cause notice within normal period of limitation. In the show-cause notice for the period from May 1995 to 24.09.1997 was issued on 15.12.2000 which is much after the normal period of one year therefore the entire demand is time barred as proviso to Section 11A. As per the above discussion and the facts and circumstances, we are of the view that the demand is not sustainable being time barred. Since we decide the matter on limitation action, we do not feel necessary to decide the issue of valuation. The impugned order is set aside and the appeal is allowed. 2016 (12) TMI 329 SSI exemption - clubbing of clearances - whether the assessee is required to include the value of goods supplied to O.E. Manufacturer for the purpose aggregate value in a particular financial year or otherwise in order to become eligible for SSI exemption under Notification No. 1/93-CE dated 28.02.1993? - Held that: - reliance placed on the judgement of the case of Vir Rubber Products PO Ltd. Vs. Commissioner of Central Excise, Mumbai-III [2015 (4) TMI 353 - SUPREME COURT], whereby the Hon'ble Supreme Court has held that the appellant is entitled for exemption Notification No. 1/93-CE dated 28.02.1993 as amended by Notification No. 59/94-CE. In view of this judgment, the impugned order is became nonest. Since the matter came to rest on merit itself in view of above Hon’ble Apex Court judgment, we do not incline to go on the issue of re-quantification and limitation raised in the present appeal. We therefore set aside the impugned order and allow the appeal filed by the appellant. 2016 (12) TMI 328 CENVAT credit - recovery of credit availed with interest and equal penalty imposed u/r 15(4) of CCR, 2004 read with Section 11AC of the CEA, 1944 - Input Service used in or in relation to the trading activities - Held that: - I find that the authorities below has not recorded any reasoning on the facts and evidences by which it could be concluded that the appellant had availed Cenvat Credit on Input Services used by them for trading activities during the relevant period by resorting into suppression or mis-declaration of the facts. No doubt the inadmissibility of credit taken by the appellant came to the notice of the Dept during the course of audit, but, that itself, in my opinion, cannot be the circumstance and be construed as availment of credit by way of suppression or mis-declaration of facts. In the result, the impugned order modified and the appeal is partly allowed to the extent of imposition of penalty - appeal disposed off - decided partly in favor of appellant-assessee. 2016 (12) TMI 327 Demand - CENVAT credit - Engineering Consulting services - suppression of facts - Held that: - It is clear from the facts in the first round of litigation both the authorities below had held the issue in favour of appellant holding that appellant is eligible for credit. the judgment relied by appellant also, it was held that credit cannot be denied and that, at the most, it would be procedural lapse. Further there is no discrepancy with regard to the amount of credit availed or the service tax paid on such services. The error if any, is that instead of the appellant's second unit availing/utilizating the credit, the appellant has availed and utilized the credit. The submission made by the learned counsel for the appellant is that the situation is one revenue neutrality as the credit could have been availed by the second unit. Although Department contends that the contravention has come to light only on audit of records, it has to be again stated that on the issue whether appellant is eligible for credit there are divergent views as in the first round of litigation both the authorities held that appellant is eligible for credit. Further as per the definition of input service, the manufacturer is eligible to take credit and not the factory. Therefore the error, if any, is only procedural lapse which cannot be concluded to be suppression or misrepresentation of facts with intent to evade payment of duty. In view thereof, I am of the view that there is no evidence to establish any positive act on the part of the appellant for suppression, fraud or misrepresentation of facts with intent to evade payment of duty. CENVAT credit allowed - appeal allowed - decided in favor of appellant. 2016 (12) TMI 326 Demand - clandestine removal - inputs and finished goods in the statutory records were found in the order - Held that: - the main allegation for denial of credit to the respondent is the statement of She R.K Gupta, proprietor of M/s R.K. Enterprises who has stated that he has not supplied the goods and issued the cenvatable invoices to avail inadmissible cenvat credit but the respondent have proved on the basis of evidence that they have received the goods and the records were found in their premises in order. Further, no corroborative evidence produced by the Revenue for non receipt of the inputs in the factory of the respondent. Moreover, the respondents have received the goods through second stage dealer accompany the goods and invoices. The Revenue has also failed to prove flow back of money for none receipt of the goods. This is the fact on record the goods have been used in manufacture of final product which have been cleared on payment of duty. In the absence of any contrary evidence, the cenvat credit cannot be denied to the respondents relying on the decisions in the case of Garima Enterprises [2009 (1) TMI 230 - PUNJAB & HARYANA HIGH COURT]. The respondents have taken cenvat credit correctly and no proceedings were warranted against the respondents. Consequently, no penalty is imposable on the respondents - appeal dismissed - decided in favor of respondent-assessee. 2016 (12) TMI 325 Condonation of delay - reason for delay not shown - Held that: - I find that Commissioner(Appeals) has power under the statue to condone the delay of 30 days. Since it is refund matter there is no reason for appellant to delay the appeal and reason stated by the appellant for delay also appears to be correct. Appeal could not be dismissed only for the delay in filing appeal as not condoning the delay is as taking away the right of appeal. Considering the facts and circumstances and reason for delay in filing appeal before the Commissioner(Appeals), I set aside the impugned order and remand the matter to the Commissioner(Appeals) to decide the appeal a fresh on merit - appeal allowed by way of remand. 2016 (12) TMI 324 Valuation - job work - duty paid material received by principal (GMI)(raw material supplier) and credit taken on same by appellant, on which GMI paid duty and use the credit for payment of duty on various goods manufactured on job work basis and cleared back to GMI - Held that: - the value of FOC materials could be only determined by GMI and it is not at the hands of Avtec to ascertain the background details of how GMI arrived at such value. Avtec received the materials along with covering invoices showing value and duty payment. Having bonafidely taken into account such value and also availed the credit of such goods, the said value has been added while arriving at the final value of intermediate goods. In such situation, we find that the question of fraud, suppression etc. cannot be invoked against Avtec. GMI on realizing that certain components of value like customs duty, freight etc. were not added while arriving at the value for FOC materials have done the same on their own and paid the differential duty. Here, as rightly contended by the appellants duty paid is going to Avtec as a credit and again coming back as a credit to GMI when intermediate goods are received back. In such situation, we find the question of fraud, misrepresentation may not be sustainable. As such, we hold that that differential duty paid by GMI on FOC materials has correctly paid. However, the self adjustment of certain other excess payment against such differential duty is not permissible under the provisions of law and the same is not being contested by the appellants. We find, considering the facts and circumstances of the case, while we uphold the differential duty paid on FOC materials, imposition of penalty on this ground is not sustainable. Royalty fees - loading of 3% in the value of FOC materials on the ground of royalty fees paid by GMI to ISUZU - GMI entered into an agreement with ISUZU for drawing and specification and paid royalty charges for this - Held that: - We find that the loading at 3% is arrived at on the basis of total sale price of Cars vis a vis total royalty paid to ISUZU by GMI. We find that 3% loading is without any reason or logic as could be seen from finding of the Original Authority. We find that SCN proposed 3% as a round figure and added that this will be subject to revision on production of certificate of Cost Accountant by Avtec or GMI. However, the impugned order noted that no such documents was produced and hence, 3% was loaded. We find that such summary loading in the value of excisable goods in terms of Rule 6 is not legally sustainable. Accordingly, we set aside the said finding in the impugned orders and remand the matter to the original authority to arrive at the correct quantum of loading to be made for the design and drawing supplied by GMI to Avtec who manufactured the products on job work. The main appellant (Avtec) are liable to pay differential duty due to revised valuation of FOC materials supplied by GMI. However, no adjustment of other excess paid amount on different grounds is permissible - the penalties imposed on the appellants are set aside. The original authority shall recalculate the exact quantification for loading towards drawing and design supplied by GMI to Avtec - appeal allowed by way of remand. 2016 (12) TMI 323 Levy of duty - fly ash bricks falling under Central Excise Tariff Heading 68159910 - Held that: - We note that admittedly the bricks cleared by the appellant contained more than 48% of fly ash by weight. The appellants in various communication to the jurisdictional officer categorically admitted that in general and common language they call ESP dust as ‘fly ash’. The percentage of content of such fly ash which is manufactured and cleared by them has also been provided by the appellants only. There various sales invoice of the impugned goods clearly mention them as ‘fly ash bricks’. Admittedly in the common trade parlance the product cleared by the appellant are nothing but fly ash bricks. Now to consider the appellant's claim regarding such fly ash not being generated by burning the fuel, we note that coal is being used by the appellant in the manufacture of sponge iron. During the process of manufacture, ash particles are generated which were collected in electrostatic precipitator and later used in the manufacture of bricks. These facts have not been disputed. As such we find no reason to interfere with the findings of the original authority regarding the excise duty liability on fly ash bricks. Cross examination of the chemical examiner - Held that: - no report of chemical examiner has been relied upon by the original authority. In fact it is recorded that the chemical examiner informed that it is not possible to ascertain percentage content of fly ash from the fly ash bricks. As such we find the submission of the appellant on this account is without merit. The original authority also denied the concessional duty rate to the fly ash on the ground that the condition mentioned in the Notification 5/2009-CE has not been fulfilled by the appellants. We note that the records to be maintained and the returns to be filed in this regard has not been complied with by the appellant and hence at this stage we find no reason to interfere with the findings of the original authority. Extended period of limitation - Held that: - inspite of engaged in the manufacture of fly ash bricks and marketing the same in the said name, the appellants did not file any return for the said product. Their submission that the extended period is not applicable in the present case is not tenable. Appeal rejected - duty levied - decided against assessee. 2016 (12) TMI 322 Benefit under two notifications - N/N. 29/04-CE dated 09.07.2004 - N/N. 30/2004 - whether the assessee is eligible for exemption under Notification 30/04-CE in its specific reference to the condition of non-availment of input credit stipulated in the Notification? - Held that: - the Original Authority had recorded that though the clarification issued by the Boards Circular is clear the appellant reversed the credit after utilization and that too under protest. He held that such reversal is in violation of Boards Circular and findings of the Hon’ble Supreme Court in Bombay Dyeing Ltd.[2007 (8) TMI 2 - Supreme Court]. The Original authority declined to consider the fact that reversal of credit in the present case will satisfy the condition of the Notification. Appeal allowed - decided in favor of assessee. 2016 (12) TMI 321 Refund claim u/r 5 of the CENVAT Credit Rules, 2004 read with N/N. 5/2006 - CE (NT) dated 14.03.2006 - clearances to SEZ - accumulated credit - limitation bar - As seen from Rule 5 noticed above, the said Rule does not specify any time limit; but lays down that refund is subject to such safeguards, conditions, and limitations notified by the Central Government. Clause 6 of the Notification No. 5/2006 dated 14.03.2006 states that the refund is subject to the time limit prescribed in Section 11B of the Central Excise Act, 1944. Thus the refund claims were rejected on the ground that they were filed beyond the expiry of one year from the relevant date. Held that: - reliance placed on the decision of the case of CCE Vs Celebrity Designs India Pvt Ltd. [2015 (3) TMI 660 - MADRAS HIGH COURT] where it was held that the refund claim filed beyond the period of one year from the relevant date is time barred. The question then arises what is the relevant date? - Held that: - Sub clause (ii) of Section 11 B (B) (a) states that if the goods are exported by land, the date on which such goods pass the frontier would be the relevant date. Therefore the date on which the goods entered the SEZ can be taken into consideration for ascertaining the relevant date. The appellant appears to have accordingly computed the period of limitation and contends that some amount would fall within time. The dates of the goods crossing the frontier / entering the SEZ as shown in the table requires verification. Therefore, I am of the view that the matter can be remanded to the original authority to verify whether claim with regard to any export would fall within the period of limitation, if the relevant date is reckoned as the date when the goods entered the SEZ. Whether the factory is closed down, the reasons for closing down, the dues and liabilities if any, etc., has to be verified by the department when the assessee/appellant puts forward a refund claim for the reason of closure of unit. At the fag end of the case, the appellant cannot contend that the unit is closed down and that therefore entire amount has to be refunded overlooking the period of limitation. Therefore this prayer of the appellant that refund is to be granted as the unit is unoperational/ closed down is not acceptable, and hence disallowed. Matter is remanded to the adjudicating authority to verify whether claim in respect of any export would be within the period of limitation, taking the relevant date being the date when the goods entered the SEZ - appeal allowed by way of remand. CST, VAT & Sales Tax 2016 (12) TMI 314 Revision of assessment - non submission of C-Forms and dis-allowance of exemption on the aspect of export sale - whether the Appellate Authority can entertain an appeal against a revised order? - Held that: - This issue was considered by this Court in the earlier writ petition in the case of Artis Leathers Versus The Assistant Commissioner (CT) , The Appellate Deputy Commissioner (CT) (FAC) [2016 (9) TMI 824 - MADRAS HIGH COURT] where it was held that as against the order of rectification passed resulting in the modification of the original order passed, the assessee has the right of appeal before the appellate forum. The writ petition is allowed, the impugned order is set aside and the petitioner is directed to represent the appeal before the second respondent, within a period of 10 days - decided in favor of petitioner. 2016 (12) TMI 313 Dsallowance of the stock transfer effected by the petitioner in their depot Tada, which is in the State of Andhra Pradesh - whether inter-state sale or stock transfer? - Form-F - Held that: - the respondent has misdirected itself in not posing a right question for arriving at a correct conclusion. Had the respondent examined the correctness of Form-F Declaration and conducted an enquiry, by making necessary verification, then the respondent would have arrived at a correct conclusion and on account of the fact that the enquiry was not conducted, it has resulted in an erroneous order being passed. For all the above reasons, this Court is of the considered view that the impugned orders are not sustainable and call for interference. The matter is remanded to the respondent to conduct enquiry, examine the correctness of the Form-F Declaration and afford an opportunity of personal hearing to the petitioner - petition allowed by way of remand. 2016 (12) TMI 312 Set off of tax - the respondent assessee is a manufacturer and purchased raw material during the assessment year 1994-95 after paying full tax @ 4% and as per the Notification, claimed set off @ 2.5% on such purchases made within the State of Rajasthan. Originally the Assessing Officer allowed the said set off, however, the same was reopened and in the reassessment order, after taking into consideration the objections, allowed set off of 1% only - Held that: - The Tax Board, in my view, has rightly considered the Notification dt 27.3.1995 and admittedly raw material purchased was used in the manufacture of iron and steel within the State of Rajasthan, and the rate in respect thereof could not exceed 1.5% as per the above Notification dt 6.3.1991. Admittedly the said Notification was in force and operative for the relevant assessment year and has been rescinded later- on, on 27.3.1995 by Circular No.726. The Tax Board has rightly applied the said Notification and in my view as well, once the Notification has correctly been applied, no question of law can be said to arise out of the impugned order as it is a finding of fact - petition dismissed - decided against petitioner. 2016 (12) TMI 311 Classification of goods - tyre, tubes and flaps - parts and accessories - rate of 1% should be applied in accordance with Entry No.8 of the Notification dt 24.3.2005 or 4% as prescribed in Entry No.19 - Held that: - though tyre and tubes can certainly be said to be parts and accessories, to be fitted in a motor vehicle, without which a motor vehicle cannot run on the road, but there is a specific Entry for tyre, tube and flaps being Entry No.19 as quoted hereinabove, which is very specific with a rate of 4%. Once there is a specific rate separately ascertainable of the commodity in dispute, in my view the same shall supersede the other Entries, if any. Taking into consideration the aforesaid Notification and the clear description of the items in dispute, in my view no ambiguity is noticed in the said Entry and both, the Tax Board as well as Additional Commissioner, have rightly come to the said conclusion. It may be true that if there is ambiguity, the benefit should be passed on to the dealer/manufacturer/producer - a bare perusal of the Notification does not show any ambiguity or doubt so that any benefit could be conferred on the petitioner - petition dismissed - decided against petitioner. 2016 (12) TMI 310 Exemption from payment of tax on rice sold in the course of inter- State trade/commerce - payment of full tax on paddy from which rice is manufacture - Held that: - reliance placed in the judgement of the case of CTO v. M/s. Nav Bharat Rice & General Mills [2000 (3) TMI 1044 - RAJASTHAN HIGH COURT] where it was held that the petitioner was entitled to avail the benefit of Notification No.25 (Annexure/6) u/s. 8(5) of the CST where direction was not to pay any tax on the sales of rice made in the circumstances in which the petitioner has made - petition dismissed - decided in favor of assessee. Indian Laws 2016 (12) TMI 307 Notices under the provisions of SERFAESI Act challenged - prayer to direct the respondent Bank to release working capital in favour of the petitioner No.2. - Held that:- In view of the remedy available, this Court is not inclined to entertain the petition for the sole reason that petitioners have alternative statutory remedy available of preferring Appeal under Section 15 of the SERFAESI Act, 2002 before the Debt Recovery Tribunal. Section 17 of the Act, as amended by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016, entitles an aggrieved person to prefer Appeal. It is trite that the High Court exercising jurisdiction under Article 226 of the Constitution would be loath to entertain the petition straightway when aggrieved person has got an alternative statutory remedy. The remedy before the Tribunal is not only statutory remedy available, it is efficacious remedy where the parties can lead evidence in support of their case. All the contentions which are sought to be raised in this petition by the petitioners could well be raised and agitated in the Appeal before the Tribunal. The matter is under commercial realm. In such cases, rule of availment of alternative statutory remedy has to be adhered to steadfast. 2016 (12) TMI 306 Confiscation of a seized car - involvement in a case under Section 55(a) of the Abkari Act - Held that: - if the owner of the vehicle is unable to establish that the person in charge of the vehicle had taken all reasonable and necessary precautions against use of the vehicle for commission of any offence, the vehicle is liable to be confiscated, even if the same had been used for commission of the offence without his knowledge. In the instant case, going by the admitted case, the offence is alleged to have been committed by the person in charge of the vehicle. When the person in charge of the vehicle himself is an accused, the petitioner cannot avoid an order of confiscation on the ground that the offence has been committed without his knowledge. There is yet another reason also for me to come to the said conclusion. Exts.P1 and P3 orders indicate that Biju, to whom the vehicle has been entrusted, was an accused in a similar case earlier also, where the allegation is that he possessed 3570 litres of spirit. The petitioner has no case that his wife was not aware of the involvement of his brother in a similar case at the time when the vehicle was entrusted to him. As such, even if it is assumed that the wife of the petitioner was the person in charge of the vehicle, it cannot be said that she had taken all reasonable and necessary precautions against use of the vehicle for commission of offences under the Act while entrusting the vehicle to the brother of the petitioner. Exts.P1 and P3 orders, in the circumstances, are in order. The writ petition is without merits and the same is, accordingly, dismissed. Decided against petitioner-assessee.
← Older Newer →

Quick Updates:

What's New:
Latest Case Laws

What's New:
Latest Notifications

What's New:
Latest Circulars

F: Stock damaged in recent floods

F: GST on Solar Plant

A: PENALTY ON DIRECTORS CONTRAVENING EXPORT REGULATIONS UNDER FOREIGN EXC...

A: Difference between “License” and “Royalty”

A: Penalty proceedings under Section 130 of the CGST Act cannot be initia...

N: Inland Container Depots for loading and unloading of goods - Seeks to ...

C: Guidelines to Stock Exchanges, Clearing Corporations and Depositories

T: Supreme Court Upholds Validity of Re-Assessment Notices Issued During ...

F: Transfer of ITC without filing ITC-02

F: assessment order

F: INTERMEDIARY SERVICES OR EXPORT SERVICES

H: Revision: Hospital receipts verified, partial refunds & fees paid subs...

F: ITC Issue in case of Acqusition of Company in Insolvency

H: Goods matched documents like e-way bill and invoices; detention order ...

H: Goods Inspection Matches E-Way Bill, Lack of Tax Evasion Intent Quashe...

H: Income tax reassessment validity: AO initiated proceedings u/s 147 ins...

H: Reassessment Rules Interpretation: Taxpayer Wins Over Accommodation En...

H: Sale-purchase loss disallowed unreasonably by tax officer, commercial ...

H: Building sale value can't determine depreciation; actual consideration...

H: Loan to equity conversion attracts income tax on excess share premium ...

H: Property purchase: Joint owners pay via banking channels before regist...

H: Tax exemption limit for leave encashment: Local authorities' employees...

H: Tax assessments beyond 6-year limit quashed, satisfaction note lacked ...

H: Cash found in lockers linked to temple trust and educational foundatio...

H: Microphone Tech Classification: Functionality Over Technology.

H: Exemption from Social Welfare Surcharge on duty-free imports via scrips.

H: Claim for performance pay not an operational debt under IBC; Multiple ...

A: Director Identification Number

A: No GST is applicable for the services provided by the Director under p...

A: Income Tax Act Revamp (Comprehensive Review): Status and Suggestion on...