Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
February 6, 2014
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
TMI SMS
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Method of accounting - under the law there cannot be even two views possible that the assessee can adopt different system of accounting for bringing to tax the interest subsidy under the head "Income from business or profession" - AT
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Charitable purpose - If the income is not applied for charitable activities and this factual aspect is not established, the registration does not help otherwise - HC
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Charitable purpose - the application of the fund is not made for charitable activity but for construction of the building, which again does not directly reflect the charitable activities - HC
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Income from hoarding whether income from business or income from other sources - income of Municipal Corporation - taxable as income from other sources and exempt u/s 10(20) - HC
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Deemed Dividend u/s 2(22)(e) - Whether the company was dealing in lending of money - during the relevant time, the company had not given any loan to any other person other than the Managing Director - additions confirmed - HC
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Nature of Income - assessee was instrumental in the election victory of certain candidates and that as a mark of admiration, some amount was given to the assessee - taxable as business income - HC
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Rejection of application for approval u/s 10(23C)(vi) - even though technically it should have been filed after April 30, 2013, but it makes no difference inasmuch as the application reached before the competent authority within time - HC
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Slump sale - Whether slump sale could be treated as 'noncompete fee' and not liable to tax as a capital receipt - it should be treated only as a capital receipt and not a revenue receipt - HC
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Expenses incurred to obtain deposits from the tenants by initiation of legal action was only in furtherance of the said business objective and, therefore, the expenditure would also be relatable to the same - HC
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Valuation of building - Revenue was unable to justify that when the books of account were not rejected, how the matter could be referred to the DVO for assessing the value - HC
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Depreciation - In the business, temporary stoppage of manufacturing process would not disentitle from the assessee's claim of depreciation in respect of the said block of assets - AT
Customs
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The goods in question is used and Reconditioned Fuji Frontier 370 Printer Processor with Standard Accessories' but not Hazardous waste - classifiable under heading 9010 - AT
Corporate Law
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Rules can always be used to supplement the provisions of the Act though they certainly cannot be in derogation of the specific provisions of the Act. - HC
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Abandonment of trademark application - Failure to respond to objection raised over trademark registration application - the Act does not contain a prohibition against treating the application to be abandoned - HC
Service Tax
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Valuation - in the break-up, the details of the raw materials supplied and its value, have been mentioned. Thus, prima-facie, at this stage, it would be difficult to say that no sale of the materials was involved - stay granted - AT
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Waiver of pre deposit - Job work - business auxiliary service - manufacturing bulk drugs on job work basis. - Stay granted. - AT
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Condonation od delay - proof of service/proof of delivery of the communication on the assessee is an integral component of facts relevant to an inference as to the date of communication. - AT
Central Excise
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Duty demand - sizing and warping machines which is assembled at site - whether manufacturing activity or not - demand set aside on the ground of jurisdiction and extended period of limitation - AT
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Valuation Quantity discount - even if where the sale is through related person and the goods are specified goods in terms of 4A it is section 4A which would be attracted for the purpose of assessment - AT
VAT
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Levy of purchase tax - assessee has provided new TV sets in lieu of the old TV sets - even exchange/barter will fall within the definition of sale / purchase - HC
Case Laws:
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Income Tax
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2014 (2) TMI 192
Deletion of various expeses made - Freight recoverable, repacking charges, excess freight charges, dead freight, reimbursement of salary Held that:-The penal freight charges was actually paid to the Railways for over-loading of railway wagon and it was in the nature of excess freight for compensation of over-loading - the excess freight is not penal in natue and there is no violation of any statutory provisions - Even the dead freight of was deducted by Bokaro Steel Plant due to under weighment of railway wagons, which means that quantity of goods dispatched was lower than the optimum permissible limit - It means that CIT(A) has rightly deleted the addition The reimbursement of salary, bonus etc. of the staff employed by an associate concern and for the services utilised for the purpose of its business - Revenue even now before us has not contented that there was no services rendered Decided against Revenue. Disallowance u/s 40(a)(ia) of the Act deposit of TDS after the due date but before filing of return u/s 139(1) Held that:- The decision inRB Jodha Mal Kuthiala Versus Commissioner of Income-Tax, Punjab, Jammu And Kashmir And Himachal Pradesh [1971 (9) TMI 2 - SUPREME Court] followed - The provision which has inserted the remedy to make the provision workable, requires to be treated with retrospective operation so that reasonable deduction can be given to the section as well - In view of the authoritative pronouncement of the Supreme Court, the court cannot decide otherwise - the amendment in the provisions of section 40(a)(ia) of the Act by Finance Act, 2010 is remedial and curative in nature and TDS paid on or before the due date of filing of return u/s. 139(1) of the Act, deduction in respect to the amount on which TDS is so paid, is allowable - the TDS was paid before due date of filing of return u/s. 139(1) of the Act by the assessee Decided in favour of Assessee.
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2014 (2) TMI 191
Jurisdiction to entertain the petition - Held that:- CIT has not given any finding on merit, whether the interest subsidy has to be assessed during the impugned assessment order or not the Tribunal does not have any jurisdiction to examine the issue in an appeal filed against the order passed u/s. 263 of the Act. Method of accounting - Held that:- the assessee has adopted mercantile system of accounting method for computation of the income under the head "Income from business or profession". But for computing the income under the same head of income from interest subsidy, the assessee has adopted the cash system, which is not permissible or sustainable. In our opinion, under the law there cannot be even two views possible that the assessee can adopt different system of accounting for bringing to tax the interest subsidy under the head "Income from business or profession". Doctrine of Merger - merger of the issues - Revision u/s 263 of the Act Held that:- if we look into Explanation (c) of section 263 of the Act, it is apparent that Explanation (c) empowers the CIT to execute power u/s. 263 of the Act on such matter as has not been considered and decided in appeal. The issue relating to whether the interest subsidy is chargeable on receipt basis or on accrual basis has not been decided by the CIT(A). - the submission made by the Ld. AR does not have any legs to stand. In view of this - the CIT has rightly exercised his jurisdiction u/s. 263 of the Act. - order of CIT confirmed - Decided against the assessee.
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2014 (2) TMI 190
Deduction for bonus shares written back Held that:- Only because the returns for the AYs. 1997-98 & 1998-99 were not submitted by the assessee, the provision written back had been disallowed by the AO - As said expenditure representing the bonus relating to the AYs. 1997-98 & 98-99 had never been claimed, in any earlier assessment years, he has allowed the same. Penalty contribution to ESI fund debited to P&L Account Held that:- A perusal of the regulations 31A of the Employees' State Insurance (General) Regulations, 1950 clearly shows that interest on contribution due, but not paid in time is compensatory in nature. In fact, regulation 31C of the ESI Regulations 1950 uses the word penalty, whereas regulation 31A is for simple interest on contribution due, but not paid in time - CIT(A) was right in law in deleting the addition made by the AO on account of interest on delayed payment of contribution to ESI. Deletion made u/s 43B of the Act Interest on sales tax Held that:- CIT(A) has deleted the addition representing interest on sales tax being prior period liability Relying upon Lakshmandass Mathuradas vs. CIT [1997 (12) TMI 16 - SUPREME Court] - the findings of the CIT(A) on the issue is on a right footing and does not call for any interference Decided against Revenue. Deletion made on employees' contribution to PF & ESI Allowability of delayed payment u/s 36(1)(va) r.w 2(24)(x) of the Act Held that:- CIT(A) has rightly deleted the addition by following Alom Exrusion Ltd Vs. CIT [2009 (11) TMI 27 - SUPREME COURT]. Miscellaneous expenses - Genuineness of expenditure Held that:- The AO has made an adhoc disallowance out of the miscellaneous expenses and brokerage without pointing out any specific defects in the accounts maintained by the assessee or vouchers produced - the CIT(A) was right in law in deleting the adhoc disallowance made by the AO. Deletion of addition made on account of CST Allowability of claim u/s 43B of the Act Held that:- Assessee has taken into consideration the fact that Govt of West Bengal Industrial Reconstructing Department has passed an order on 23-08- 2003, which has sanctioned sales tax loan in favour of the assessee and also has been directed in the same order to be paid in favour of the Commissioner of Commercial Taxes for clearing the liability of sales tax and interest thereon - the amount has been fully paid and in view of provisions of section 43B of the I.T Act 1961 the same is allowable in the year of payment being AY 2004-05 - CIT(A) is on a right footing and does not call for any interference Decided against Revenue.
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2014 (2) TMI 189
Rectification of mistake u/s 154 of the Act - Validity of Order Deduction for interest waived not allowed Held that:- The rectification of mistake apparent on the record can be allowed by the department which includes amendment of any intimation or deemed intimation under sub-section (1) of Section 143 of the Act - it was a case of short fall in payment of tax - This short fall was calculated properly and correctly based on the return of income declared by the assessee - there was no mistake or error apparent on the face of record in the intimation sent by the department indicating the exact short fall of tax to be paid - This cannot be treated as a mistake apparent on the face of record to compel the department to amend the intimation. The mistake on the part of the appellant assessee in not challenging the assessment order for 2004-2005 and not filing revised return for 2005-2006 has led the assessee to this situation - The entire difficulty in which the appellant is put in is on account of his mistake which cannot be treated as a mistake apparent on the face of record so far as the intimation sent by the department and the same cannot be allowed to be rectified treating it as a mistake in the intimation of the department thus, the Tribunal was justified in rejecting the claim of the appellant assessee Decided against Assessee.
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2014 (2) TMI 188
Deduction u/s 80HHC of the Act - Whether the order of the assessing officer diminishing the export turnover by reducing the foreign commission and thereby reducing the claim under section 80HHC of the Income Tax Act in accordance with law Held that:- As long as the export turnover indicated in the return of income is as per the definition of 'export turnover' under the explanation, there was no reason for the assessing officer to place reliance on the terms of contract between the assessee and the agent in order to deduct the commission amount from the export turnover thus Commissioner of Income Tax (Appeals) and the Tribunal were justified in rejecting the method of calculation adopted by the assessing officer and allowing the exporter assessee to include commission paid to the agent in the export turnover Decided against Revenue.
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2014 (2) TMI 187
Charitable purpose - Nature of Investment made in immovable property Corpus fund - Application of Section 13(1)(bb) of the Act - Whether the investment made in immovable property was not for charitable purpose despite the provisions of Section 11(5) of the Income Tax Act, 1961 treating such investment as application for charitable purpose Held that:- in order to get the benefit under Sections 11 and 12, factually it has to be established that income derived from property held under trust wholly for charitable or religious purposes to the extent to which such income is applied to such purposes - If this factual aspect is not established, the registration does not help otherwise - the application of the fund is not made for charitable activity but for construction of the building, which again does not directly reflect the charitable activities - Even on the record, it does not appear that the assessee had intended to apply the future income, which might be derived from the building so constructed -Tribunal has passed just and correct order there was no reason to interfere as there was no question of law arises which is required to be decided Decided against Assessee.
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2014 (2) TMI 186
Income from hoarding whether income from business or income from other sources - income of Municipal Corporation- Held that:- The Corporation merely charges licence fees to regulate granting licences for putting up hoardings in its property - If the Corporation, permits hoardings to be put up in its property by issuing licences, for which it charges licence fees and also charges licence fees from the owners allowing hoardings to be put up in their private properties, the same cannot be said to be business activity of the Corporation - Such licence fees are collected for regulating the activity of putting up hoardings to ensure that it does not damage the public safety and does not offend the public morality and decency - The collection from such licence fees is less than 1% of the total revenue of the Corporation - The view of the Tribunal that such income was not business income, but must be income from other sources, was justified - Decided against Revenue.
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2014 (2) TMI 185
Deemed Dividend u/s 2(22)(e) of the Act - Whether the company was dealing in lending of money or dealing in the business of lending of money and whether such business amounts to a substantial part of the business of the company Held that:- There is a clear finding by the assessing officer as well as the appellate authorities that the company basically invest in shares and debentures and earns income by way of interest and dividend thus, when the assessing officer forms an opinion based on the materials on record that the company was fully engaged in activities like investing in shares and debentures and earns income by way of interest and dividend, in the absence of any other materials, a different finding is not possible - Certain materials had been produced to indicate that subsequent to the assessment year, certain loans were given to other persons - Since the Tribunal and the first appellate authority have considered the entire facts of the case and confirmed the order of the assessing officer - there is no material to indicate that the appellant is entitled for the benefit of exclusion as stated in Section 2(22)(e)(ii) of the Income- tax Act Decided against Assessee.
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2014 (2) TMI 184
Nature of Income - the assessee was instrumental in the election victory of certain candidates and that as a mark of admiration, some amount was given to the assessee - whether business income Held that:- The amounts were paid when certain candidates were elected in the election as stated by the assessee This has to be treated as an income from business - As without rendering service, there was no question of assessee getting such amounts from the persons alleged to have given such amounts to the assessee - The Tribunal on a re-appreciation of the evidence as well as the legal issues involved in the matter concurred with the view expressed by the appellate authority as well as the assessing officer there was no substantial question of law arises for consideration in the appeal Decided against Assessee.
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2014 (2) TMI 183
Notice issued u/s 143(2) of the Act - Search u/s 132(1) of the Act Belated return filed on protective basis Held that:- The Income-tax Appellate Tribunal has passed the order on June 27, 2002, where a direction was issued to pass the fresh assessment order, but till date, no order has been passed by the Assessing Officer - after a lapse of considerable time, no assessment order can be passed as the proceedings are time barred as per section 153B proviso 2(a), the limitation for the reassessment is one year, which has already been expired as back as in the year 2003 - now there is no occasion for initiation of the proceedings of reassessment/scrutiny pertinent to the assessee for the assessment year 1985-86 notice set aside and the order to issue refund passed Decided in favour of Assessee.
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2014 (2) TMI 182
Rejection of application for approval u/s 10(23C)(vi) of the Act Registration of Educational Institution Held that:- The application filed on behalf of the petitioner was not for the awarding exemption for the year 2011-12 but for the assessment year 2012-13 - even though the application for exemption for the financial year 2012-13 was filed before September 30, 2013, even though technically it should have been filed after April 30, 2013, but it makes no difference inasmuch as the application reached before the competent authority within time there was no substance in the submission made on behalf of the revenue that in any such situation, the revenue were well within rights to reject the application as pre-mature thus, the revenue is directed to consider the application filed for seeking exemption for the financial year 2012-13 Decided in favour of Assessee.
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2014 (2) TMI 181
Scope of Section 2(22)(e) of the Act Deemed dividend - Unsecured loan received as Intercorporate deposits Held that:- For the assessment year 2003-04 landed before learned Tribunal, counsel for both the Revenue and the assessee conceded that the issue involved in the appeal has already been adjudicated upon and decided in CIT v. Sharman Woolen Mills Ltd. [2011 (9) TMI 752 - PUNJAB AND HARYANA HIGH COURT] wherein it has been held that loan advanced to the assessee-company cannot be treated as dividend in terms of section 2(22) (3) of the Income-tax Act, if the assessee is not a shareholder of the lending company. For the assessment year 2004-05, the Tribunal while dismissing the appeal of the Revenue, simply took note of the fact that the issue in dispute already stands decided by the learned Tribunal in favour of the assessee's in his own assessment year 2003-04 the appeals do not warrant any indulgence on facts which aspect has been duly taken care of by the CIT(A) and ITAT thus, there was no substantial question of law arising in the present two appeals for adjudication Decided against Revenue.
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2014 (2) TMI 180
Entitlement for benefit u/s 10(22) of the Act Held that:- It may be possible that for one assessment year, an educational institution existed solely for educational purpose and the self-same institution may exist in some other financial years not solely for educational purpose - In the event for a particular assessment year, the institution does not exist solely for educational purpose, then the benefit of section 10(22) of the Act is not available to the institution for that assessment year - There is no contention that, during the relevant assessment years, the appellant-assessee had any other activity apart from the activities associated with educational purposes. Relying upon Aditanar Educational Institution v. Addl. CIT [1997 (2) TMI 3 - SUPREME Court] - The Tribunal has not done anything wrong by pronouncing that during the relevant years, the assessee was not entitled to the benefit of section 10(22) of the Act - The case of the assessee under section 11 is applicable in relation to the assessment year 2000-01. The fact remains that the assessee, when went before the Commissioner of Income-tax (Appeals), it had taken a plea that it is entitled to the benefit of section 11 of the Act, if it is held that it is not so entitled under section 10(22) of the Act the matter remitted back to the CIT(A) for consideration of the case of the appellant for benefit under section 11 of the Act for the assessment year 2000-2001 Decided in favour of Assessee.
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2014 (2) TMI 179
Deletion of disallowance on account of bad debts - Capital expenditure incurred Amount written off as business expenditure Advances made to sister concern Business loss OR business expenditure Held that:- The amounts in question were incurred by the assessee for the business expediency of the wholly owned subsidiary companies and when it is not disputed that there existed a business nexus between the assessee and the subsidiary companies, such expenditure should be treated as having been incurred for the purpose of business and directly relatable to the business of the assessee and thus eligible for deduction as business expenditure in their return of business income - The assessing authority and the Commissioner of Income-tax (Appeals) failed to appreciate the claim in proper perspective. The Tribunal has given a cogent and convincing reasons for reaching a finding of fact that expenditure incurred was directly relatable to the business of the assessee and should be allowed as business expenditure Relying upon T. R. F. Ltd. v. CIT [2010 (2) TMI 211 - SUPREME COURT] and Director of Income-tax (International Taxation) v. Oman International Bank [2009 (2) TMI 54 - BOMBAY HIGH COURT] - it was sufficient to record in the books as an irrevocable debt and not necessary for the assessee to establish that the debt had become irrevocable - as long as the debt established and written off in the books the assessee is not required to establish that it was a bona fide and not based on commercial wisdom or expediency Decided against Revenue. Slump sale - Whether slump sale could be treated as 'noncompete fee' and not liable to tax as a capital receipt Held that:- The decision in CIT v. Real Image P. Ltd [2012 (7) TMI 48 - MADRAS HIGH COURT] and Guffic Chem Pvt. Ltd. v. CIT [2011 (3) TMI 6 - Supreme Court] followed - the receipt in the nature of a non-compete fee should be treated only as a capital receipt and not a revenue receipt there was no infirmity in the order passed by the Tribunal in setting aside the order of the authorities below and treating the whole non-compete fee as capital receipt not liable to tax Decided against Revenue.
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2014 (2) TMI 178
Deductibility of Licence fee - Whether the Tribunal was right in holding that the licence fee paid to M/s. RPG Enterprises Ltd. can be deducted as business expenditure Held that:- Assessee by availing of service benefits from the group resource company availed of valuable benefit, for their business operations and that the payment of licence fee to M/s. RPG Enterprise Ltd. by the respondent-assessee was towards their share of actual expenses incurred by M/s. RPG Enterprises Ltd. - the expenditure incurred by the respondent-assessee towards the licence fee payment to M/s. RPG Enterprises Ltd. were relatable to the business expediency and profits of the respondent-assessee and that the benefits availed of by the assessee from the service of the group resource company was tangible and justified - The decision in CIT v. Shambhu Investment Pvt. Ltd. [2001 (3) TMI 77 - CALCUTTA High Court] followed - It is settled law in so far as the scope, power and ambit of the High Court in exercise of jurisdiction under section 260A of the Income-tax Act - a transaction or an arrangement which is perfectly permissible and which may have the effect of reduction of tax burden need not be seen with tainted disfavor Decided against Revenue. Nature of Expenses - Whether the expenditure is to be allowed as a deduction from business income as it is incurred in connection with lease of property, income from which is assessed under the head 'Income from house property and the legal expenses incurred in connection with obtaining a security deposit from a client can be treated as business expenditure merely because such deposit amount was utilised for business purposes Held that:- There was a direct and proximate nexus between the legal expenses incurred and the business carried on by the assessee The decision Orient Beverages Ltd. v. Asst. CIT [1993 (9) TMI 151 - ITAT CALCUTTA-E ] followed - the legal charges and other expenses incurred by the assessees for their property division was allowable as a deduction in computing the profits and gains of business as the expenses resulted in substantial savings in business expenses of the assessee. The assessee has derived income under various heads of income and one of the income was on account of development of property - The expenses incurred to obtain deposits from the tenants by initiation of legal action was only in furtherance of the said business objective and, therefore, the expenditure would also be relatable to the same - The Revenue has not placed any material on record to persuade to come to a different conclusion - there is no infirmity or illegality in the orders and there exists no substantial question much less any question of law on the issue Decided against Revenue.
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2014 (2) TMI 177
Validity of revision made u/s 263 of the Act Held that:- The Tribunal has committed grave error muchless material irregularity and proceeded to pass the order - in respect of the applicability of TDS provision, the Assessing Officer has obtained all the information of labour charges, felting charges and moulding charges and found that the TDS provision is not applicable to these expenses - The reasoning given by the CIT is just and proper as nowhere it is mentioned that the enquiry made by the Assessing Officer has resulted in error in the order and the assessee has given complete details and the Assessing Officer has applied his mind to the relevant material and facts. There are small labourers or machine repairers who were hired under emergent conditions and payments made to them and contended that these are expenses which are really incurred - there is no application of mind on the part of the assessing authority - he is justified in issuing a direction to the assessing authority to redo the matter afresh and pass appropriate orders in accordance with law there is no reason to interfere with the order passed by the Commissioner of Income tax - The matter is remitted back to the assessing authority for fresh adjudication Decided partly in favour of Revenue.
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2014 (2) TMI 176
Valuation of building - Reference made to DVO - Whether the Revenue was justified in referring the matter to the DVO for assessing the value of land and the cost of construction of building of Chohan Resorts Held that:- Revenue was unable to justify that when the books of account in respect of cost of construction have been maintained by the assessee and the same were not rejected, how the matter could be referred to the DVO for assessing the value - Wherever the books of account are maintained with respect to the cost of construction, the matter can be referred to the DVO after the books of account are rejected by the Revenue on some legal or justified basis - In the absence of the same, the reference to the DVO cannot be upheld there was no substance in the appeal Decided against Revenue.
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2014 (2) TMI 175
Deletion made u/s 10(23C)(vi) of the Act Deletion made on vehicle expenses Held that:- The Assessing Officer disallowed the claim of the assessee for the reason that the order passed by the ITAT, Jaipur Bench for restoring the registration u/s 12AA of the Act had been challenged before the Hon'ble High Court but nothing is brought on record to substantiate that the said order has been set aside or reversed - the Assessing Officer while calculating the application of income had not considered the application towards capital expenditure, however, admitted in his remand report that if the capital expenditure was to be considered the application of income was at 96.29% of the income/receipts, therefore, the assessee fulfilled the conditions - the AO failed to bring any material on record that the notification dated 23/3/2007 of the CBDT for granting exemption u/s 10(23C)(vi) of the Act had been rescinded - CIT(A) was fully justified in deleting the addition made by the Assessing Officer Decided against Revenue.
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2014 (2) TMI 174
Heads of income - Income from house property OR business income - Held that:- The tribunal has given a definite and clear finding of the assessee providing, apart from built-up space, a range of services and facilities, which are intrinsically linked to the letting of the building, specifying the machinery deployed, so that it is a case of composite letting. Further, though the services stand provided per different agreements, they cannot be considered as de hors and separate from each other inasmuch as they form part of a single arrangement there was no reason for any change in the consistent view adopted by the tribunal Relying upon Sultan Brothers (P.) Ltd. vs. CIT [1963 (12) TMI 4 - SUPREME Court] - the assessment of the gross receipt as business income is directed. Re-computation of the disallowance u/s.14A of the Act Held that:- The decision in Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] followed - a statutory disallowance is warrented, which had to be made toward both direct and indirect expenditure, observing the assessee to have incurred administrative expenditure and financial charges - there is no cause for any grievance to either side - The A.O. has to be satisfied with the assessee's claim u/s.14A, and compute the disallowance in a reasonable manner both qua direct as well as indirect expenditure, giving his definite findings Decided partly in favour of Assessee.
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2014 (2) TMI 173
Deletion made of capitalization of capital expenditure u/s 37(1) of the Act Software expenses Held that:- The decision in CIT - I Versus ACL Wireless Ltd. [2013 (12) TMI 1160 - DELHI HIGH COURT] followed - There has to be recurring expenditure which has to be incurred in the said business to ensure sale of the software,for removal of obstructions, restrictions or disabilities on the sale - The determination should be based upon consideration of facts and circumstances and by applying principles of commercial trading and business expediency Decided against Revenue. Deletion made of capitalization of license fee Fees paid as Royalty Held that:- The decision in Income Tax Officer Versus M/s ACL Wireless Wireless Limited [2014 (1) TMI 1305 - ITAT DELHI] followed - the expenditure in question was incurred as a matter of routine, for the business and commercial expediency of the assessees business Decided against Revenue. Deletion made u/s 40(a)(ia) of the Act TDS not deducted Held that:- The assessee claimed that he did deduct the tax at source and deposited the same with the Government of India before the due date for filing of the return - the claim of the assessee needs to be factually examined - order set aside and the matter remitted back to the AO - Decided in favour of Revenue. Addition made for Non-deduction of TDS Application of Section 9 of the Act - Held that:- The decision in CIT Vs. Angelique International Ltd. - [2013 (10) TMI 17 - DELHI HIGH COURT] followed - payments in the form of a commission or discount to the foreign party were not chargeable to tax in India under section 9(1)(vii) of the Act - in the relevant accounting year tax did not have to be deducted - The deletion of disallowance under section 40(a)(i) was justified Decided against Revenue.
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2014 (2) TMI 172
Revision u/s 263 of the Act - Set off of brought forward unabsorbed business losses against income from interest, commission and sale of assets holding that these income are not assessable under the head "income from business" Held that:- CIT wanted that the Assessing Officer should make re- verification, therefore, it cannot be said that the assessment order passed by the Assessing Officer was without making proper enquiry and when the Assessing Officer has taken one of the possible view, it cannot be said that the assessment order passed by the Assessing Officer was erroneous or prejudicial to the interest of the revenue. Relying upon CIT Vs. Green World Corporation [2009 (5) TMI 14 - SUPREME COURT OF INDIA] - the jurisdiction exercised by the revisional authority pertains to his appellate jurisdiction - while making the orders of assessment the Assessing Officer should be bound by the statutory circulars issued by the CBDT but it is another thing to say that the assessing authority exercising quasi-judicial functions, keeping in view the scheme contained in the Act, would lose his independence to pass an independent order of assessment - When a statute provides for different hierarchies providing for forums in relation to passing of an order as also appellate or revisional order, by no stretch of imagination can a higher authority interfere with the independence which is the basic feature of any statutory scheme involving adjudicatory process the CIT was not justified in setting aside the assessment order by invoking the provisions of Section 263 of the Act order set aside and decided in favour of Assessee.
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2014 (2) TMI 171
Depreciation - temporary suspension of manufacturing process Held that:- The concept of temporary suspension of manufacturing process does not in any way affect the claim of depreciation in so far as once it is accepted that particular plant and machinery has been put to use by the assessee and such plant and machinery is owned by the assessee, then the value of that plant and machinery adds to the block of assets under the head 'Plant & Machinery' - Once the said block of assets/plant & machinery is granted depreciation, then such depreciation on the plant & machinery becomes continuous allowance until and unless the business itself is discontinued. In the assessee's case, there is no discontinuance of business. In the business, temporary stoppage of manufacturing process would not disentitle from the assessee's claim of depreciation in respect of the said block of assets - Decided in favour of Assessee.
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Customs
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2014 (2) TMI 170
Import of Used and Reconditioned Fuji Frontier 370 Printer Processor with Standard Accessories - Confiscation of goods - Hazardous waste - Classification of goods - Penalty u/s 112 - Held that:- Goods in question are not waste and scrap of electrical or electronic assemblies. The goods in question is used and Reconditioned Fuji Frontier 370 Printer Processor with Standard Accessories'. The same is used for developing photo films as well as digital printing as per the catalogue on record therefore the impugned order whereby it has been held that the goods in question is a Hazardous Waste is not sustainable. As per the catalogue the machine in question is capable of developing films and thereafter printing the photographs as per the catalogue. The machines in question is capable of developing photo films and also capable of digital printing service and digital data processing service and same manner as the film process operation. The Revenue wants to classify the same under chapter 84 of the Tariff which covers automatic data processing machine and units thereof. The appellant before the adjudicating authority also claim the classification under heading 9010 of the Customs Tariff which covers the apparatus and equipment for photographic film. Therefore, the goods are classifiable under heading 9010 of the Customs tariff - Decided in favour of assessee.
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2014 (2) TMI 169
Illegal clearance of goods - Attempt to clear goods from ICD Dhannad, Indore for re-transport to Mumbai for sale thereof by the appellant who was not the owner - Provisional release of goods - Held that:- black money was in circulation against the transactions and those transactions appear to be hawala one which calls for serious investigation to protect interest of the Revenue and the economy. It was also observed by the Committee that in the past no remittance was made. Further observation of the Committee throws light that Manjit Singh has no means to make huge import but appears to be a bubble to give shelter to the evaders. It also appears that there was an organized bid to conceal real importers of various goods causing prejudice to the interest of Revenue. We also surprise why the goods are not cleared in Navsheva but brought to Dhannad, Indore for clearance and after clearance the goods are sent to Mumbai for sale - provisional order dated 5.11.2013 shall be kept in abeyance till further order of Tribunal - Decided in favour of Revenue.
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2014 (2) TMI 168
Violation of principles of natural justice - Enhancement in declared value of bills of entry - Held that:- Bills of Entry were assessed by enhancing the declared value in the Bills of Entry without assigning any reasons and also without issuing any show-cause notice to the respondents. Section 17 of the Customs Act, 1962 deals with the assessment of the Bill of Entry. Although the Bills of Entry were assessed summarily but Section 17(5) of the Customs Act provides that if the Bill of Entry is assessed summarily, the adjudicating officer shall pass a speaking order within 15 days of such adjudication. Admittedly, the same has not done in these cases. The said orders have been challenged by the respondents before the Commissioner (Appeals). The Commissioner (Appeals) observed that neither show-cause notices have been issued to the respondents nor any speaking order has been passed following the procedure of Section 17(5) of the Customs Act along with the provisions of Valuation Rules, 2007. Therefore, he sets aside the adjudication orders - Decided against Revenue.
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2014 (2) TMI 167
Enhancement of interest on refund of pre deposit - Revenue granted interest @6% whereas assessee contends that interest should be 12% - Held that:- The refund of pre-deposit has been given to the Appellant consequent to the Order of the Honble High Court of Calcutta. The Honble High Court has ordered to refund the pre-deposit to the Appellant with applicable interest. The lower Adjudicating Authority has granted a refund along with the interest @ 6% - Commissioner (Appeals) has dealt with the applicability of interest in view of the Honble Supreme Courts decision in ITC Ltd. [2004 (12) TMI 90 - SUPREME COURT OF INDIA], as per the Notification No. 75/2003-Cus. (N.T.), dated 12-9-2003 issued under Section 27A of the Customs Act, 1962 prescribing the interest @ 6%. The Appellant has not produced anything contrary to the above - Decided against assessee.
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2014 (2) TMI 166
Permission for procurement of raw material duty free from DTA for export of manufactured goods to countries - Whether goods procured duty free from DTA by a DTA unit for manufacture of finished goods when cleared to a unit in SEZ shall amount to export - Held that:- Without going into any other detail a bare perusal of clarification issued by Board vide Circular No. 29/2006-Cus., dated 27-12-2006 clarifying that Section 2(m) of SEZ Act, 2005 envisages that supply of goods or providing services, from DTA to a SEZ unit or a SEZ developer shall constitute export - Decided against Revenue.
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Corporate Laws
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2014 (2) TMI 165
Abandonment of trademark application - Failure to respond to objection raised over trademark registration application - Opportunity of hearing before abandoning application - Held that:- though the Act does not provide for treating the application to be abandoned on account of the applicant not responding to the objections or proposal of the Registrar in terms of sub-rule (1) of Rule 39, there is no inconsistency between the Act and the Rule since, the Act does not contain a prohibition against treating the application to be abandoned on such a ground and the Rules can always be used to supplement the provisions of the Act though they certainly cannot be in derogation of the specific provisions of the Act. Rule 39 (2) of the said Rules in my view serves a salutary purpose by requiring the applicant to respond promptly to the communication received from the Registrar in terms of sub-rule (1). Provisions of Section 101 of the Act read with Rule 106 of the Rules do enable the Registrar to extend the time prescribed in sub-rule (2), in appropriate cases. Since the Registrar may is competent to extend the time in appropriate cases, it would be difficult to say that the provisions of sub-rule (2) are mandatory. The basic principles of natural justice require that before the Registrar treats an application to be abandoned on account of failure of the applicant to respond to his objection or proposal sent under sub-rule (1) of Rule 39 he must necessarily give a show cause notice/opportunity of hearing to the applicant before treating the application to have been abandoned. In the cases where the Registry has treated the application as abandoned on account of failure of the applicant to produce evidence, the Registrar shall give a notice to the applicant requiring him to produce his evidence in support of the application for registration and in case no evidence is produced, he shall decide the application for registration on its merits, instead of treating the same to have been abandoned. If evidence is produced by the applicant in support of his application the Registrar shall proceed to adjudicate upon the application in accordance with law - Decided in favour of Petitioner.
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Service Tax
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2014 (2) TMI 203
Waiver of pre-deposit of service tax - Penalty u/s 78 - security agency services - Held that:- despite security services, they, rendered other services also, which were not taxable during the relevant period and corresponding invoices also support the said facts. We also find that the applicants have deposited an amount of Rs.9,60,814/- against the confirmed demand. In these circumstances, the applicants are able to make out a prima-facie case for waiver of dues adjudged, accordingly, predeposit of all dues adjudged is waived and its recovery stayed during pendency of the appeal - Stay granted.
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2014 (2) TMI 202
Waiver of pre-deposit of service tax - Valuation - Equal amount of penalty imposed under Section 78 - Repairing and maintenance of engines of aircrafts - Whether the components, parts etc. procured by the Ministry of Defence independently and supplied to the applicants involve sale under Notification 12/2003-ST dated 20.6.03 read with the definition of sale prescribed under Rule 2 (h) of the Central Excise Act, 1944 and accordingly, be excluded from the gross taxable value of service charges - Held that:- in the break-up, the details of the raw materials supplied and its value, have been mentioned. Thus, prima-facie, at this stage, it would be difficult to say that no sale of the materials was involved, hence, fall outside the scope of Notification No.12/2003-ST dated 20.6.03. In these circumstances, the applicants are able to make out a prima-facie case for total waiver of dues adjudged, accordingly, predeposits of dues adjudged in all the cases are waived and its recovery stayed during pendency of the Appeals - Stay granted.
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2014 (2) TMI 201
Waiver of pre-deposit of service tax - Penalty under Section 78 - Tour operator services - Held that:- applicants never contested that the services provided by them to M/s Durgapur Steel Plant, were not taxable rather, they admitted their service tax liability, as demanded in the show-cause notice - they had already submitted their bills to M/s DSP for realizing the service tax amount on work-order basis and on receipt they would pay the same. He only requested to take a lenient view while deciding the case since there was no malafide intention at their end - applicants could not make a prima-facie case for total waiver of pre-deposit of dues adjudged against them - Conditional stay granted.
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2014 (2) TMI 200
Waiver of pre-deposit of Service Tax - Penalty imposed under Section 78 - Tour Operator Service/Rent-A Cab Operator Scheme and Cargo Handling Service - service tax not collected from the customers - Mistake of law - Held that:- neither in the Show Cause Notice nor in the impugned Order, the amount relating to Tour Operator Service and Cargo Handling Service had been separately mentioned and the respective service taxes were not accordingly demanded. The ld. Advocate disputed the demand of service tax of cargo handling service, as according to him, no such services were rendered by the Applicant during the relevant period - Assessee directed to make pre deposit - Conditional stay granted.
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2014 (2) TMI 199
Waiver of pre-deposit of service tax - Availment of CENVAT Credit - Recovery of proportionate cenvat credit of GTA services involved on these iron ore fine and coal fine - Held that:- Revenue claims that since the iron ores were sold as such without being used in the manufacture of products, proportionately the cenvat credit availed on GTA services for bringing iron ore to the factory were required to be reversed under Rule 3 (5) of Cenvat Credit Rules, 2004 - applicants are able to make out a prima-facie case for total waiver of duty and penalty, hence, pre-deposit of all dues adjudged is waived and its recovery stayed during pendency of the appeal - Following decisions of Commr. of Central Ex., Chandigarh I Vs. Punjab Steels [2010 (7) TMI 252 - PUNJAB AND HARYANA HIGH COURT] and Chitrakoot Steel & Power Pvt. Ltd. Vs. Commr. of Central Excise, Chennai [2007 (11) TMI 135 - CESTAT, CHENNAI] - Stay granted.
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2014 (2) TMI 198
Waiver of pre-deposit of tax - Denial of CENVAT Credit - Held that:- CENVAT credit was denied to the applicants who are engaged in the manufacture of finished leather. They received the services of various foreign commission agents for marketing purposes and paid tax and also availed credit. The demand of Rs.4.48 lakhs was raised denying CENVAT credit under Rule 5 of Taxation of Services (provided from outside India and received in India) Rules, 2006 - applicant is not entitled to avail credit on the tax paid on service rendered by their foreign commission agents - Prima facie, it appears that they have not produced the documents in respect of denial of credit of Rs.1.20 lakhs - Conditional stay granted.
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2014 (2) TMI 197
Waiver of pre deposit - Demand of service tax - Management, Maintenance or Repair Service of a National Highway median - Held that:- there is no prima facie case against the demand barring the demand of Rs. 55,96,089/-. In other words, no prima facie case has been made out against demand of service tax and education cesses totaling to approximately Rs. 1.2 crores. In the absence of evidence of financial hardships, the appellant directed to pre-deposit - Conditional stay granted.
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2014 (2) TMI 196
Waiver of pre deposit - Job work - business auxiliary service - manufacturing bulk drugs on job work basis. - Held that:- the invoices which has been raised by the appellant on the principle, talks about the receipt of compensation charges and processing of the goods on behalf of the client, and they were under the impression that the activity falls under the category of Business Auxiliary Service but the activity in which they are engaged, since amount to manufacture, they are exempted from the Central Excise duty. - prima-facie appellant has made out a case for the waiver of pre-deposit of amounts involved - Stay granted.
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2014 (2) TMI 195
Condonation od delay - Copy of adjudication order not received - Proof of service - Held that:- On an inter active application of the provisions of sub-section (1) and (2) of Section 37(C) the conclusion is compelling that where Revenue seeks to serve an adjudication order by sending it through by registered post, proof of service/proof of delivery of the communication on the assessee is an integral component of facts relevant to an inference as to the date of communication. The ld. Commissioner (Appeals) has inferred, from the fact of the adjudication order having been sent by registered post that there was a delivery of the registered post to the assessee. This inference suffers from a factual vacuum viz. proof of delivery - appellate order rejecting the appeal on the ground of bar of limitation is unsustainable - matter remanded to the Commissioner (Appeals), Jaipur for consideration of the appellant's appeal on merits - Decided in favour of assessee.
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2014 (2) TMI 194
Waiver of pre deposit - Demand of service tax - erection, commissioning or installation service - management, maintenance or repair service - Held that:- appellant were executing works awarded by the main contractor and that the latter had paid service tax. Where they could prove this claim, the adjudicating authority granted the benefit. No further proof is forthcoming and therefore, prima facie, the appellant cannot be absolved of tax liability on the above ground. There is no plea of financial hardships in this application. But there is a plea of limitation against the impugned demand - Assessee directed to make a pre deposit - Conditional stay granted.
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Central Excise
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2014 (2) TMI 164
Violation of provisions of Rule 8(3A) of Central Excise Rules, 2002 - Penalty u/s 11AC - Delay in duty payment Availment of CENVAT Credit - difference of opinion - Held that:- matter referred to larger bench with the following questions: Whether payment of duty arising out of default, is to be paid thought Cenvat credit and pre-deposit of penalty is to be restricted to Rs.5,000/- held by Member (Judicial) based on judgment of Hon'ble Gujarat High Court in the case of Saurashtra Chemicals. - Or Whether payment of duty arising out of default, is to be paid through cash/current account as per provisions of Rule 8 and Rule 8(3A) based on Gujrat High Court Judgment Harish Silk Industries [2013 (6) TMI 83 - GUJARAT HIGH COURT] and Hon'ble Madras High Court judgment in the case of Unirols Airtex Vs. Assistant Commissioner Coimbatore [2013 (12) TMI 1398 - MADRAS HIGH COURT] and in view of mis-presentation and fraud, pre deposit of Rs.25 lakhs is to be directed as held by Member (Technical).
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2014 (2) TMI 163
Duty demand - sizing and warping machines which is assembled at site - whether appellant is required to discharge the Central Excise duty on the machines parts of which were cleared on payment of appropriate duty and got assembled at the site of their purchasers, are liable for Central Excise duty as fully manufactured in the hands of main appellant - Held that:- it transpires that the adjudicating authority has erred in coming to conclusion that he is empowered to the demand duty on sizing machines, which are assembled and comes into existence at the site of the buyers of the appellant which are situated beyond jurisdiction of adjudicating authority / the Commissioner of the Central Excise, Ahmedabad -I. In our view, the adjudicating authority has totally misread the provisions in as much as, he has recorded no findings on this specific averments, while it is admitted that sizing machines to come to existence, various parts are purchased by the appellant from outside and delivered by such sellers directly at the site of assembling. Appellants were informing the Department regarding the activities of manufacture of sizing machines / items thereof. We also find that appellant had informed the Department about the purchase of various parts which are required for erection / assembling of sizing machine at their customers premises - The said correspondence clearly demonstrate that the appellant had not suppressed any facts from the Department; we are of considered view that there cannot be any demand by invoking extended period of limitation, in respect of demands on manufacturing of sizing machine - Decided in favour of assessee.
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2014 (2) TMI 162
Penalty under Rule 26 of the Central Excise Rules, 2002 and Rule 209A of the Central Excise Rules, 1944 - violation of principles of natural justice - Held that:- relied upon documents were not sent by the Revenue at the known postal address of the appellants and the same were being called for from the office of the adjudicating authority, Assistant Commissioner, Division III, Surat vide letter F. No. (Ch.54)15-02/OA/2003 dated 26.02.2009. Accordingly, the case is required to be remanded back to the original adjudicating authority for deciding the matter in de-novo proceedings after providing the relied upon documents and opportunity of personal hearing to the appellants. However, the main appellant is also required to be put to certain condition so that appellants also co-operate in the adjudication proceedings in a time bound manner without any further delay - Decided partly in favour of assessee.
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2014 (2) TMI 161
Classification of goods - Additional evidence adduced - Along with written submissions they have also enclosed product literature in respect of the products - Assessee prayed that these additional documents be taken on record and considered while determining the classification of the goods impugned in these appeals - Held that:- only if the Bench considers that additional evidence is necessary for determination of the issue in hand they need to be admitted at all - Tribunal has not asked the appellant to produce any of these documents. As regards the product literature, these are already available on record as part of the expert opinion tendered and is relevant for classification of the products. The affidavit now filed by the employee of the appellant firm or by the buyers of the goods are not at all relevant for determination of the classification issue. However, the product literature, which is already on record and forms part of the expert opinion tendered by the appellant will be given due consideration while determining the classification matter - Miscellaneous application as not maintainable - Decided against assessee.
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2014 (2) TMI 160
Denial of CENVAT Credit - Appellants are engaged in the activity of manufacture of moulds and dies and also undertaken the activity of repairing the same - Held that:- whatever duty has paid by the appellants while received the moulds and dies for repairing purpose they have taken the credit which are entitled to them as per Rule 16 of CENVAT Credit Rules, 2002. In these circumstances, I do not find any merit in the impugned order and hold that as the appellants are discharging duty equivalent or more than the credit availed by them therefore they are not require to reverse the credit taken on the moulds and dies. In these circumstances, the impugned order is set aside - Decided in favour of assessee.
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2014 (2) TMI 159
Rule 21 of CESTAT (Procedure) Rules, 1982 - Ex-parte order - whether the Respondent could take Cenvat credit of service tax paid in respect of input services received, on the basis of documents called debit notes issued by service provider - Rule 9 of the Cenvat Credit Rules, 2004 - Held that:- Assessee is entitled to take credit on the basis of 'debit notes' as the same is having all the particulars required to be mentioned in the invoices. Therefore, following the ratio of the decision in the case of Grasim Industries Ltd. (supra), I allow the credit taken by the appellant and set aside the impugned order - Following decision of CCE vs. Grasim Industries ltd. [2011 (7) TMI 944 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2014 (2) TMI 158
Denial of CENVAT Credit - credit of differential duty paid on the bulk lubricating oil manufactured and cleared from Turbhe unit to the Kukshet unit and credit was taken on the strength of invoices - Held that:- As this Tribunal has remanded the matter back to the adjudicating authority for demand of duty against Unit No.1 of the appellant and the same is prejudice. Therefore, impugned proceedings at this stage are not warranted. Therefore, the impugned order is set aside and the matter is remanded back to the adjudicating authority to follow the consequences of the matter pending against Unit No.1 - Decided in favour of assessee.
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2014 (2) TMI 157
Valuation Quantity discount not available on goods contained in Multi-pack MRP printed on the multi-pack will be taken for purpose of section 4A - Whether the clearance of colour TV sets by M/s. Prisma Electronics by paying duty under Section 4A of the Act was appropriate or they were required to discharge duty liability in terms of section 4 of Central Excise Act - Held that:- MRP was adopted by M/s. Dixon Technology (India) Pvt. Ltd for further sale of the Televisions to M/s. Elecot. As such, it is not a case where the MRP was subsequently enhanced in the hands of buyers - even if where the sale is through related person and the goods are specified goods in terms of 4A it is section 4A which would be attracted for the purpose of assessment - this is sole reason adopted by the Commissioner for denial of section 4A assessment, we set aside the impugned order - Decision in the case of Indica Laboratories Pvt. Ltd. vs. CCE [2007 (5) TMI 19 - CESTAT,AHMEDABAD] followed - Decided in favour of assessee.
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2014 (2) TMI 156
Denial of rebate claim - Recovery under section 11A - Interest u/s 11B - Held that:- Initially the rebate claims were sanctioned in this case. Subsequently, it was noticed that excess rebate has been sanctioned of the duty paid on portion of value which was in excess of section 4 value i.e. Transaction value. The demand of Rs. 3,76,111/- was confirmed along with interest. Commissioner upheld the order-in-original but allowed re-credit of said amount in the Cenvat credit account once the recovery was effected in PLA/cash - duty paid on portion of value which does not form part of transaction value was rightly held as not rebatable under Rule 18 of Central Excise Rules, 2002 as the rebate is admissible in respect of duty paid on value of exported goods determined under Section 4 of Central Excise Act, 1944 - Decided against Appellant.
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2014 (2) TMI 155
Demand of duty - Loss of goods beyond 0.5% of allowable limit along with applicant interest - Bar of limitation - Held that:- There is a time-limit prescribed under section 35EE for filing Revision application which has not been followed in this case. As such the ratio of said judgement of apex court is squarely applicable to this case. The revision application is thus clearly time-barred and liable to the rejected without going into the merits of the case - under Section 129DD of Customs Act the condonable period is 3 months and beyond that the revisionary authority has no jurisdiction to receive the Revision Application, even for the purpose of condoning the delay. The order passed by Revisionary authority under challenge before the High Court was quashed. Provision of 35EE of Central Excise Act, 1944 is identical to provision of 129DD of the Customs Act, 1962. As such the observation w.r.t. Section 129DD of the Customs Act, 1962 will be applicable for Section 35EE of Central Excise Act - Department had filed appeal after lapse of almost four years. Department initially wrongly filed appeal before CESTAT against the order of Commissioner (Appeals) - Decided against Revenue.
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CST, VAT & Sales Tax
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2014 (2) TMI 205
Levy of purchase tax - assessee has provided new TV sets in lieu of the old TV sets - Levy of tax on Exchange / Barter purchase - Imposition of penalty - Held that:- The transaction is certainly sale as the assessee was a dealer of Akai TV, has provided new TV sets in lieu of the old TV sets. Therefore, even exchange/barter, in my view, will fall within the definition of sale/purchase as defined under the Act. Had the assessee purchased goods,Assessee purchased goods, which were exempted or had the assessee proved that the initial purchaser, who had come with the old TV set for replacement/exchange by a new TV set had proved that it was a tax paid item, then possibly the contention of the assessee may have had some substance. It has been observed that the assessing officer repeatedly required the assessee to provide basis and evidence as to whether the initial purchaser had paid tax, but it is already on record that despite of repeated time having been allowed, no evidence was placed. Here is a case where neither sale/purchase was recorded in the books of accounts nor even shown in the return of income, neither even the credit notes were entered in the books of accounts, nor were shown in the return of sales tax - the penalty is leviable. Decided against assessee.
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2014 (2) TMI 204
Amendment in eligibility certificate - Jurisdiction of Tribunal - Whether the eligibility certificate issued Under Section 4-A of the Act is liable to be amended by adding a new item - Held that:- assessee was having an eligibility certificate under Section 4-A of the Act in respect of T.V. cabinets. He had started new business of manufacturing of cabinets of speakers in the same premises and as such sought exemption in respect thereof also by making an application for amendment. It is in this context that the court issued the above directions for permitting the assessee to make an application to the authorities concerned who was directed to consider it in accordance with law - authority passing the order under Section 4-A of the Act and issuing eligibility certificate thereof is vested with power if necessary to amend its order and the consequential eligibility certificate in exercise of its inherent power read with Section 21 of the U.P. General Clauses Act, 1904. Thus, the DLC as well as the Tribunal manifestly erred and failed to exercise jurisdiction vested in them in law for considering the application of the assessee for amending the eligibility certificate. An order refusing to permit addition of new goods in the eligibility certificate which is commonly described as an amendment application, virtually amounts to refusal to grant the eligibility certificate and as such is appealable under Section 10 (2) of the Act - impugned orders dated 25.09.2003 and 13.02.2003 passed by the Tribunal and the DLC respectively are set aside and the matter is remanded to the Divisional Level Committee to consider afresh the application of the assessee for the addition of wired chassis as an exempted item in the eligibility certificate in accordance with law as expeditiously as possible - Decided in favour of assessee.
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Indian Laws
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2014 (2) TMI 193
Rejection of application under Sections 65, 74, 78 and 79 of the Evidence Act read with Section 35A of the Act - Held that:- There is no illegality or perversity visible in the order passed by the learned Sessions Judge - if any provision is given in a Special Act which is contrary to the provisions of the general law then the special law shall supersede the provisions of the general law. Under such circumstances, looking at the provisions of Sections 36A and 36B of the Act, the prosecution not only could file copy of the documents as mentioned under Section 36B of the Act but, prove such copies as original. There is no need to file or show the original documents before the trial Court. Under such circumstances, the application of the prosecution appears to be a formality. The prosecution could prove the copies of the documents as mentioned under Section 36B of the Act and therefore, if the revisionary Court has accepted the application filed by the prosecution then no illegality or perversity has been done by the revisionary Court - since there is no basis by which the revision filed by the applicants can be accepted. The present revision is hereby dismissed by confirming the order passed by the revisionary Court - Decided against Revisionist.
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