TMI Tax Updates - e-Newsletter
April 20, 2012

Case Laws in this Newsletter:

Income Tax Customs Corporate Laws Service Tax

Articles

1. SERVICE TAX TERMINOLOGY – PART-I

   By: Dr. Sanjiv Agarwal

News

1. Companies in the Aviation Sector Allowed to Avail of ECBS for Working Capital Requirements.

2. Export grows by 21% in April 2011- March 2012 at US $ 303.7 Billion: Commerce Secretary.

3. Allowing ECB for Capital Expenditure on the Maintenance and Operations of Toll Systems for Roads and Highways

4. Liberalization in External Commercial Borrowings (ECB) Policy Relating to Refinancing of Rupee Debt for Power Sector

5. FDI policy - ‘Circular 1 of 2012’

6. HAL Pays RS.699.50 Crore interim Dividend

7. Proposed Disclosure Framework for the Annual Business Responsibility Report Presented to DR. M. Veerappa Moily

8. Order Against Explosive Manufacturers/Suppliers Imposing a Penalty of About Rs.58.83 Crore

9. Order against Medical Equipment Suppliers imposing a penalty of about Rs.3.01 crore.

Notifications

Central Excise

1. 23/2012 - dated 18-4-2012 - CE (NT)

Central Excise (Fourth Amendment) Rules, 2012.

Customs

2. 27 /2012-Customs - dated 18-4-2012 - Cus

Seeks to amend Notification 09/2012 – Customs - Duty free re-import of cut & polished diamonds into India after certification/grading by the laboratories / agencies as notified in the Foreign Trade Policy.

3. 26/2012 - Customs - dated 18-4-2012 - Cus

Seeks to amend Notification 12/2012 – Customs - Prescribes effective rate of duty on import of goods.

4. F.No. 437/13/2012-Cus. IV - dated 17-4-2012 - Cus (NT)

Appointment of Common Adjudicating Authority of M/s M.K. Retail Pvt. Ltd. and M/s M.C. Retail Pvt. Ltd.

5. F.No. 437/09/2012-Cus. IV - dated 17-4-2012 - Cus (NT)

Appointment of Common Adjudicating Authority of Shri Rajesh Kumar Gupta, Proprietor of M/s J.P. Enterprises, J.P. House, Nehru Road, Siliguri.

6. F.No. 437/08/2012-Cus. IV - dated 17-4-2012 - Cus (NT)

Appointment of Common Adjudicating Authority of M/s Chimes Aviation Pvt. Ltd. & Others by the Additional Director General, Directorate of Revenue Intelligence, New Delhi.

FEMA

7. GSR 292(E), - dated 12-4-2012 - FCRA

Amendment in Foreign Contribution (Regulation) Amendment Rules, 2011 -Rule 15, insertion of rule 6A and substitution of rule 24

Circulars / Instructions / Orders

Service Tax

1. DRAFT - F No 201/05/2011-CX.6 - dated 13-4-2012

Revised format for Excise and Service Tax Return- regarding

FEMA

2. 109 - dated 18-4-2012

Authorised Dealer Category II – Permission for additional activity and opening of Nostro account

3. 107 - dated 17-4-2012

Anti-Money Laundering (AML) / Combating the Financing of Terrorism (CFT) Standards - Money changing activities.

4. 108 - dated 17-4-2012

Anti-Money Laundering (AML) / Combating the Financing of Terrorism (CFT) Standards - Cross Border Inward Remittance under Money Transfer Service Scheme.

Customs

5. 11/2012 - dated 12-4-2012

Disposal of confiscated goods – clarification on existing instructions – regarding.

Central Excise

6. 965/08/2012-CX - dated 17-4-2012

Clarification regarding admissibility of Industrial Growth Centres/Industrial Infrastructure/EP Indl. Parks, etc. Units - Exemption from Excise Duty

Highlights / Catch Notes

Income Tax

• Interest Deduction for House Property: Normal and Penal Rates Allowed, But No Deduction for Interest on Interest.

  Case-Laws - AT : Interest claim for deduction u/s. 24(b) in the computation of income from house property - Interest at normal rate allowed - Interest at panel rate allowed - Interest on Interest is not allowed. - AT
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• High Court Reviews Eligibility of Standing Charges for Deduction u/s 80 IC of Income Tax Act.

  Case-Laws - HC : Whether the standing charges payable under the agreement dated 23rd June, 2004 qualify and are eligible for deduction under Section 80 IC - HC
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• Tribunal Finds Assessing Officer's Use of Section 154 for Higher Truck Depreciation Rate Unjustified.

  Case-Laws - HC : Higher rate of depreciation on trucks – the Tribunal was, thus, not justified in holding that the assessing officer had erroneously exercised jurisdiction under Section 154 - HC
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• Industrial Park Registration Sought Under 2002 Scheme for Tax Benefits via Section 80IA of Income Tax Act.

  Case-Laws - HC : An application filed with the Ministry of Commerce and Industries for registration of the industrial park under the Industrial Park Scheme, 2002 to avail of benefits/exemption under Section 80IA - HC
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• Single TDS Certificate for Two Years Raises Double Taxation Concerns; Emphasizes Need for Clarity in Tax Documentation.

  Case-Laws - AT : Double taxation of income - Single TDS certificate for two years - AT
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• Tax Authorities Must Prove Fair Market Value Exceeds Declared Value for Unexplained Investments u/s 69.

  Case-Laws - HC : Unexplained investment u/s 69 - the burden is on the Department to show that the fair market value of the assets as on the date of purchase was more than the value declared by the assessee - HC
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• Supreme Court Expands Definition of "Transfer" Under Income Tax Act, Impacting Slump Sales and Related Transactions.

  Case-Laws - HC : Slump Sale - SC gave definition of “transfer” in Section 2(47) of the Act is inclusive, and therefore, extends to events and transactions which may not otherwise be “transfer” according to its ordinary, popular and natural sense. - HC
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• Notice Issued u/s 153C After Search and Seizure; Assessment Moves to Inspecting Assistant Commissioner for Review.

  Case-Laws - AT : Search and seizure action at the business and residential premises - Notice u/s.153C - the quasi-judicial function of the Income-tax Officer as an assessing authority comes to an end the moment the assessee files objections to the draft order and the power to determine the income of the assessee thereafter gets vested in the Inspecting Assistant Commissioner to whom the Income-tax Officer is required to forward the draft order together with objections - AT
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• Appellate Tribunal Member's Attempt to Frame New Questions Deemed Invalid u/s 255(4) of Income Tax Act.

  Case-Laws - AT : Procedure of Appellate Tribunal – the Accountant Member who is in the minority and had become functus officio wherein he has expressed his inability to give effect to the opinion of the majority and proceeded to frame three new questions to be referred to the President, ITAT again for resolving the controversy cannot be said to be a valid or lawful order passed in accordance with the provisions of section 255(4) - AT
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• Educational Institution Denied Tax Exemption u/s 10(23C)(iiiad) Due to Inactivity During Construction Phase.

  Case-Laws - AT : Educational Institution – exemption denied u/s 10(23C)(iiiad) on ground that institution is not active in field of education - from construction period it is to be stated that educational institution is existing - AT
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• Charitable Trust Loses Tax Exemption as 78% Funds Spent on Religious 'Bhagwat Katha'; Approval Withdrawn u/s 80G(5.

  Case-Laws - AT : Withdrawal of exemption u/s. 80G(5) – Charitable Trust - CIT(A) withdrew approval u/s 80G(5) on finding that Trust has spend about 78% of its total receipt for organizing 'Bhagwat Katha' i.e. activities of religious nature.....- AT
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• Section 92CA(3) Adjustment: Catering Services to Airlines Treated as Single Transaction for Tax Purposes.

  Case-Laws - AT : Adjustment u/s 92CA(3) - providing catering services to different airlines - the food supplied is a basket containing individual items rather than supply of the items individually. Therefore the entire transaction has to be viewed as a single transaction - AT
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• Court Rules Against Assessee: 'Infrastructure Fund' Setup Not a Diversion by Overriding Title, Affects Tax Obligations.

  Case-Laws - AT : Diversion by overriding title - maintaining an "infrastructure fund" to which a fixed portion of its receipts is credited and out of which infrastructure related expenses are incurred - Decided against the assessee - AT
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Customs

• Amendment to Customs Notification 09/2012: Duty-Free Re-Import of Certified Cut and Polished Diamonds into India Approved.

  Notifications : Seeks to amend Notification 09/2012 – Customs - Duty free re-import of cut & polished diamonds into India after certification/grading by the laboratories / agencies as notified in the Foreign Trade Policy. - Ntf. No. 27 /2012-Customs Dated: April 18, 2012
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• Amendment to Notification 12/2012: Changes in Customs Duty Rates on Imports as per Notification 26/2012.

  Notifications : Seeks to amend Notification 12/2012 – Customs - Prescribes effective rate of duty on import of goods. - Ntf. No. 26/2012 - Customs Dated: April 18, 2012
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• Customs Circular 11/2012 Clarifies Efficient, Transparent Disposal Procedures for Confiscated Goods to Prevent Discrepancies.

  Circulars : Disposal of confiscated goods – clarification on existing instructions – regarding. - Cir. No. 11/2012 -Customs Dated: April 12, 2012
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• Common Adjudicating Authority Appointed for M.K. Retail and M.C. Retail Under Notification F.No. 437/13/2012-Cus for Customs Matters.

  Notifications : Appointment of Common Adjudicating Authority of M/s M.K. Retail Pvt. Ltd. and M/s M.C. Retail Pvt. Ltd. - Ntf. No. F.No. 437/13/2012-Cus. IV Dated: April 17, 2012
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• Common Adjudicating Authority Appointed for Customs Cases Involving Siliguri-Based Business Entity, Notification Dated April 17, 2012.

  Notifications : Appointment of Common Adjudicating Authority of Shri Rajesh Kumar Gupta, Proprietor of M/s J.P. Enterprises, J.P. House, Nehru Road, Siliguri. - Ntf. No. F.No. 437/09/2012-Cus. IV Dated: April 17, 2012
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• Common Adjudicating Authority Appointed for Chimes Aviation and Others to Streamline Customs Adjudication Process, per Notification No. F.No. 437/08/2012-Cus. IV.

  Notifications : Appointment of Common Adjudicating Authority of M/s Chimes Aviation Pvt. Ltd. & Others by the Additional Director General, Directorate of Revenue Intelligence, New Delhi. - Ntf. No. F.No. 437/08/2012-Cus. IV Dated: April 17, 2012
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• High Court Orders Department to Pay Rs. 93,622 in Warehousing Fees for Regrind Polycarbonate Imports.

  Case-Laws - HC : Import of regrind polycarbonate - payment of demurrage charges- The Department shall be liable to bear the warehousing charges amounting to Rs. 93,622/- which has been paid by the petitioners - HC
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• Advance Ruling Applications on Import Activities Deemed Non-Maintainable; "Activity" Term Not to Be Narrowly Interpreted.

  Case-Laws - AAR : Maintainability of the applications for Advance Ruling - activity of import has taken place but term activity should not be interpreted in a narrow sense, applicant is not eligible to seek a ruling on its proposed business activity. - AAR
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FEMA

• New Circular Sets AML & CFT Standards for Money-Changing Activities Under FEMA to Combat Illicit Financial Activities.

  Circulars : Anti-Money Laundering (AML) / Combating the Financing of Terrorism (CFT) Standards - Money changing activities. - Cir. No. 107 Dated: April 17, 2012
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• New Guidelines to Strengthen AML/CFT Standards for Cross-Border Inward Remittances under Money Transfer Service Scheme.

  Circulars : Anti-Money Laundering (AML) / Combating the Financing of Terrorism (CFT) Standards - Cross Border Inward Remittance under Money Transfer Service Scheme. - Cir. No. 108 Dated: April 17, 2012
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Service Tax

• New Format for Excise and Service Tax Returns: Key Updates in Circular No. DRAFT - F No 201/05/2011-CX.6.

  Circulars : Revised format for Excise and Service Tax Return- regarding - Cir. No. DRAFT - F No 201/05/2011-CX.6 Dated: April 13, 2012
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• Court Affirms Appeal Dismissal for Non-Compliance with Service Tax Pre-Deposit Order; Compliance is Crucial for Appeals.

  Case-Laws - HC : Non-compliance of pre-deposit order - dismissing the appeal for non compliance of the predeposit order cannot be faulted - HC
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• Cenvat credit approved for service tax on input services for staff colony, plantation, and godown (Oct 2005 - Jan 2007).

  Case-Laws - HC : Cenvat credit - Input services - service tax credit on the input services pertaining to maintenance of its staff colony, plantation and godown for the period October, 2005 to January, 2007. - Credit allowed - HC
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• CENVAT Credit Rules: Rule 7 allows credit claims on invoices predating registration. No prohibition specified.

  Case-Laws - AT : Cenvat Credit - Under the rule 7 of CENVAT credit rules there is no bar denying the credit in respect of the invoices of the period prior to date of the registration - AT
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• Department's Objection to Pre-Increase Service Tax Payment Deemed Unjustified After Accepting Advance Without Issue.

  Case-Laws - AT : Determination of rate of service tax - The department did not take any objection to such payment in advance. So at a later date when the rate went up, there is no reason for the department to turn around and say that the Appellant should not have paid tax in advance - AT
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• Paying Service Tax Before Show-Cause Notice Doesn't Stop Penalty Notice Issuance Under Tax Regulations.

  Case-Laws - AT : Payment of service tax before issuance of SCN - There is no bar to issuance of a show-cause notice for imposing a penalty. - AT
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Central Excise

• Central Excise Rules Amended: Notification No. 23/2012 Streamlines Tax Processes and Enhances Compliance Effective April 18, 2012.

  Notifications : Central Excise (Fourth Amendment) Rules, 2012. - Ntf. No. 23/2012 - Central Excise (N.T.) Dated: April 18, 2012
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• Excise Duty Exemption Clarified for Industrial Growth Centres and Parks under Central Excise Framework.

  Circulars : Clarification regarding admissibility of Industrial Growth Centres/Industrial Infrastructure/EP Indl. Parks, etc. Units - Exemption from Excise Duty - Cir. No. 965/08/2012-CX Dated: April 17, 2012
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• Court Finds Insufficient Evidence to Prove Seized Shoes Were Meant for Sale Without MRP Printing.

  Case-Laws - AT : Non printing of MRP on footwear - footwears were still in factory and from the statement of excise clerk that there are some technical difficulties in printing the MRP it cannot be concluded that the shoes under seizure were going to be cleared without printing the MRP - AT
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• Cenvat Credit Allowed for Excess Captive Electricity: Sale Permitted per Feb 20, 2003 Notification.

  Case-Laws - HC : Modvat / Cenvat Credit - though the generation of electricity is for captive use, if the electricity manufacture is found to be excess, the same is permitted to sell under the notification dated 20-2-2003 - Credit allowed - HC
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• Ferrous waste from worn-out capital goods in manufacturing is dutiable under Central Excise regulations.

  Case-Laws - AT : Dutiability to ferrous waste - Even the part of the capital goods which periodically wear out on account of manufacturing process then such wearing out will be in relation to the manufacturing process. - AT
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• Understanding By-Products vs. Waste: When Valuable Materials Become Disposables.

  Case-Laws - AT : A distinction has to be made between the term ‘by-product’ and the term ‘waste.’ - The by-product would be waste only if it is of no value or negligible value something which the manufacture would want to get rid of - AT
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• Refund Granted for Overpaid Excise Duty Due to Price Deduction Benefit Passed to Customers or Dealers.

  Case-Laws - HC : Refund of excess excise duty paid - depending on the performance of customers/dealers he has passed on the benefit of deduction in the price of the goods. - refund allowed - HC
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VAT

• Court to Decide if Dealer's Delivery Order is a Document of Title Under Central Sales Tax Act, 1956, Section 5(1.

  Case-Laws - HC : Local sale or central sale - Whether delivery order issued by the dealer is not a document of title and therefore, the case of the appellant does not fall under the second limb of section 5(1) of the Central Sales Tax Act, 1956 - HC
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Case Laws:

• Income Tax

• 2012 (4) TMI 351
  Payments made for managerial services in terms of paragraph 4 of Article 13 of the DTAC between India and France - Applicant is a 100% subsidiary of a French company – service agreement on an automatic renewal of its terms for one year at a stretch – assessee contested that managerial services were not included in the concept of “included services” under the India–US Convention and the payments could be understood only as the business income of the French company and the payments to it could not be taxed in India in the absence of that company having a permanent establishment in this country – Held that:- managerial services, within the meaning of paragraph 13 of India- France DTAC, are provided by the French Company to the applicant for a consideration equivalent to the cost incurred by the French Company plus 5% thereof as mark up - services rendered on marketing, on strategy and the training provided to optimize sales techniques all would come within the purview of consultancy services – The services are enduring and they help in promoting the business of the applicant, knowledge and know-how are made available to the applicant. Hence the services agreement are held to be consultancy services are made available to the applicant - in terms of paragraph 2 of Article 13, the tax charged is not to exceed 10% of the gross amount of the fees and the deduction under section 195(1) of the I.T. Act has to be on that basis - contention of assessee on existence of a permanent establishment does not arise in view of the finding that the payments are liable to be taxed as fees for technical services - applicant is required to deduct tax at source under section 195(1) of the Income Tax Act - against assessee.

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• 2012 (4) TMI 349
  Disallowance u/s.40 (a)(ia) on payments made to subcontractors – Held that:- Amendment to the provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 is retrospective from 1.4.2005. - If tax was deductible and was so deducted during the first eleven months of the previous year, that is, up to February, 2005, the disallowance was to be made if the assessee failed to pay it before 31st March, 2005 - provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 is retrospective from 1.4.2005 - assessee had deposited the tax deducted at source on or before the due date for filing return of income u/s.139(1) of the Act and therefore the impugned disallowance deserves to be deleted - in favour of assesee.

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• 2012 (4) TMI 348
  Waiver/ Refund of interest u/s 234A and 234B - Advance Tax - revenue denied the waiver - power u/s 119 - held that:- The first respondent has arrived at a conclusion that the assessee could have fairly and accurately anticipated the income pertaining to financial year 2007-08. The Commissioner has arrived at a conclusion that the majority of expenditure, as mentioned in the tabular chart below paragraph 5, is definite and ascertainable. The said expenditure has actually been incurred within the same year. The assessee maintains computerized books of accounts and they could have made provisions for anticipated expenditure in accordance with the accepted accounting principles. In these circumstances, and when the ultimate conclusion in paragraphs 7 and 8 of the impugned order cannot be said to be either irrational or arbitrary or vitiated to such an extent that no reasonable person would arrive at the same in the given facts and circumstances, that we are unable to interfere with the impugned order in writ jurisdiction. - Decided against the assessee.

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• 2012 (4) TMI 347
  Claim of exemption under Section 54EC - ITAT hold that AO was not justified in invoking Section 50(2) - assessee computed LTCG on the sale of land and having invested the gains in REC Bonds claimed gains as exempt under Section 54 EC of the Act – Held that:- A combined reading of Section 2(11), Section 32(1) and Section 50(2) of the Act shows no depreciation is allowable in respect of land as it is not specifically mentioned as an asset eligible for depreciation - if land is not a depreciable asset and cannot form part of the block of assets in the absence of a rate of depreciation the provisions of Section 50 of the Act cannot be invoked –land as an asset was held for a period of more than 36 months the surplus of the sale price over the indexed cost of acquisition was rightly shown as LTCG AND investment in REC Bonds the entire long term capital gains are exempt under Section 54EC of the Act - against revenue. Cost attributed to the building when it was purchased was only Rs. 68, 00,000/- divided in two properties and the assessee had incurred expenditure on additions to the building up to 31.03.2003 and reckoned from this date the assessee did not hold the property for more than 3 years and, therefore, the sale of land cannot be considered as a sale of a long term capital asset – Held that:- incurred substantial expenditure on additions to the building could well have been because of the compulsions of its business and not because it considered the land to be of considerably low worth compared to the worth of the building. We are unable to appreciate or accept the line of argument adopted by the Assessing Officer – against revenue.

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• 2012 (4) TMI 346
  Arms length price – Reference to TPO - Tribunal deleted the disallowance of the brand fee/ royalty payment while determining the ALP. - Tribunal hold that the royalty/ brand fee payment was justified and held that the TPO was totally wrong in disallowing the same on the footing that the assessee suffered continuous losses. Held that:- There is no reason why the OECD guidelines should not be taken as a valid input in the present case in judging the action of the TPO. - it is not necessary for the assessee to show that any legitimate expenditure incurred by him was also incurred out of necessity. It is also not necessary for the assessee to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in any of the subsequent years. The only condition is that the expenditure should have been incurred “wholly and exclusively” for the purpose of business and nothing more. It is this principle that inter alia finds expression in the OECD guidelines. Even on merits the disallowance of the entire brand fee/ royalty payment was not warranted. The assessee has furnished copious material and valid reasons as to why it was suffering losses continuously and these have been referred to by us earlier. Full justification supported by facts and figures have been given to demonstrate that the increase in the employees cost, finance charges, administrative expenses, depreciation cost and capacity increase have contributed to the continuous losses. - Decided against the revenue.

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• 2012 (4) TMI 345
  Exemption/deduction u/s 10B - extended period of ten years - meaning and scope of the term undertaking - assessee initially established spinning unit in A.Y. 1992-93 and one more spinning unit was added in each of two years namely A.Y. 1996-97 having independent infr-structure, separate plant and machinery being set up with substantial capital investment and having an identifiable output and the profits attributable thereto can be determined. The undertaking existing prior to 1.4.1999 claiming exemption u/s 10B of the Act would be entitled to exemption for the extended period of ten years and deduction under the said sections would be admissible in respect of unit no. 3 and unit no. 4 as well for ten years from the year of start of production in these new units since these units were separate and independent production units. - Decided in favor of assessee. Deduction u/s 10B(4) on export incentives - held that:- Once an income forms part of the business of the income of the eligible undertaking of the assessee, the same cannot be excluded from the eligible profits for the purpose of computing deduction u/s 10B of the Act. As per the computation made by the Assessing Officer himself, there is no dispute that both these incomes have been treated by the Assessing Officer as business income. - the undertaking is eligible for deduction on export incentive received by it in terms of provisions of Section 10B(1) read with Section 10B(4) of the Act - Decided in favor of assessee.

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• 2012 (4) TMI 344
  Whether on the facts and circumstances of the case, depreciation has to be allowed to the assessee while working out deduction under Section 80 HHC and also while working out income under the head Business” even if not claimed “ by the assessee in the return of income - assessee, while computing the total income, did not claim depreciation in respect of the assets used for the purpose of the assessee’s business. The depreciation was also not claimed while claiming deduction under Section 80 HHC of the Act. Further the assessee had while computing profits under Section 80 HHC (3)(c) from export of goods, which included both, own processed ore and trading goods, added losses incurred in export of trading goods to the profit of the business to arrive at adjusted profit of the business - The assessing officer by his order dtd. 17th March 1997 disallowed the depreciation in computing the gross total income of the assessee, but allowed the depreciation while computing deduction under Section 80HHC – Held that: depreciation has to be allowed to the assessee while working out deductions under Section 80HHC and also while working out income under the head business” even “ if not claimed by the assessee in the return of the income Where the profits of trading goods determined under Section 80HHC(3)(c)(ii) after deducting direct and indirect cost of trading goods from the export turnover of trading goods is a loss, then, whether such loss has to be ignored while computing deduction under Section 80HHC(1) of the Act - In the present case, the export turnover of trading goods is Rs.41,50,59,635/and direct/indirect costs are Rs. 35,81,34,588/and Rs.11,14,89,257/respectively. If the export turnover of trading goods amounting to Rs.41,50,59,635/is reduced by the direct and indirect costs amounting to Rs. 46,96,23,845/( Rs.35,81,34,588/+ Rs. 11,14,89,257/), the result would be loss of Rs. 5,45,64,210/. As per Section 80HHC(3)(c)(ii), the amount so determined i.e. Rs. 5,45,64,210/is liable to be treated as profits derived from export of trading goods - Held that: in calculating the profits under Section 80HHC(3)(c)(i), one has to necessarily reduce the profits determined under Section 80HHC(3)(c)(ii) and if there is loss, then, those losses in export of trading goods have to be adjusted cannot be faulted - The same analogy would apply where the assessee has issued a certificate to a supporting manufacturer – Decided in favor of the assessee

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• 2012 (4) TMI 343
  Deduction u/s 10A - SEZ unit - outsourced job work activities - held that:- It is immaterial that whether the work was done by the assessee inside or the outside the SEZ, once the assessee located in SEZ, the assssee is eligible for deduction u/s 10A irrespective of the fact that the work was done inside or outside the SEZ – Decided in favor of the assessee by way of remand to AO. Regarding interest income charged under the head 'income from other sources' - deduction u/s 10A - held that:- Since the issue under consideration is identical to the case of the assessee in AY 2002-03, respectfully following that decision, we uphold the order of the CIT(A) and dismiss the ground raised by the assessee. However, we direct the AO if assessee incurred any expenses to earn the income, the same may be verified and allowed in view of the section 57(iii) of the Act. Regarding inter-unit transfer - AO noticed that the assessee had not considered inter-unit transfer as a part of total turnover – Held that: the AO has not brought any material on record to show that whether the assessee filed appeal before the Tribunal or not in AY 2002-03. Decided in favor of the assessee by way of remand to AO Regarding deduction u/s 14A of the Act - AO noticed that the assessee had total funds available including loan funds were Rs. 55.59 crores as on 31/03/2003, which included loan funds of Rs. 24.34 crores - Held that: similar issue arose before the Tribunal in assessee's case for AY 2002-03 – Decided in favor of the assessee by way of remand to AO

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• 2012 (4) TMI 342
  Jurisdiction of AO u/s 147 - Deductions u/s 80-1A - held that:- The assessee’s own case was comparable as an indicator/factor which should have been taken into consideration and not that of any other assessee for a different period which could not be the foundation or the reason to reopen assessment. - when this high rate of profit is accepted in subsequent assessment years, mere high profit without anything more could not be the ground for reopening assessment. Regarding reopening of assessment on the ground of excess payment of wages - held that:- where the Assessing Officer holds that expenditure on wages of Rs.2,58,040/- was not sufficient to defray the wages of ten or more workers, the observation of the Assessing Officer was wrong. - we cannot accept that the Assessing Officer was right in reopening assessment. - Decided in favor of assessee.

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• 2012 (4) TMI 340
  Disallowance made u/s. 40(a)(ia) – hire charges - TDS u/s 194I or 194C - held that:- before taking a decision on the applicability of TDS u/s. 194C of the Act on a contract, it is required to be examined whether the contract is a 'contract for work' or a 'contract for sale'. TDS shall be applicable only where it is a 'contract for work' as per the principles laid down in para 7(vi)(a) of Circular No. 681, dated 8-3-1994 and Circular No. 13/2006, dated 13-12-2006. - as per Circular No. 558, dated 28th March 1990, the applicability of the provisions of section 194C will have to be examined with reference to the terms and conditions of each contract. - transactions of the assessee will fall under the provisions of Sec. 194-I of the Act, which is effective from 13/7/2006. Since the assessment year involved in this appeal of the assessee is 2006-07, which is prior to the amendment made by the Taxation Laws (Amendment) Act, 2006 w.e.f. 13/7/2006. - Decided in favor of assessee. Unexplained expenditure - Addition of Rs. 33,13,143/- u/s. 69C - There is no dispute to the fact that the payments in question related to the liabilities brought forward from earlier year, i.e. payments were made against the opening balance of liabilities of the assessment year under consideration. In such circumstances, by no stretch of imagination, provisions of sec. 69C of the Act do apply to such transactions. It is also not disputed that the payments have not been entered in the P/L Account and claimed as expenditure. In that view of the matter, we find no infirmity in the order of ld. C.I.T.(A) in deleting the addition of Rs. 33,13,143/- made u/s. 69C of the Act, which is upheld Regarding estimation of gross profit - The ld. C.I.T.(A) has elaborately discussed the issue and came to a reasonable conclusion that net profit @ 3% instead of 4.5% estimated by the ld. A.O. would meet the ends of justice under the facts and circumstances of the case. After careful perusal of the said observation/finding, we are inclined to uphold the direction given by the ld. C.I.T.(A) to the ld. A.O. to compute contract profit @ 3% in place of 4.5% - Decided in favor of the assessee

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• 2012 (4) TMI 338
  Penalty u/s 271 - Whether the appellate authorities were right in holding that the imposition, of penalty by the assessing authority in exercise of power under Sec. 271 (1)(c) of the IT Act 1961 is after satisfying himself that the non-disclosure of income warrants imposition of penalty - held that:- the assessee had filed a return and had disclosed the income. However, later the assessee did file another return in response to the notice issued under Section 148 of the Act and in this return what had not been shown as income earlier but claimed as a cash credit was offered as income. The assessment was concluded on such premises. -In a situation where the assessee admits that a return which had been filed earlier did not disclose a true or full income, which is the case in the present situation, does not warrant proof or burden on the revenue to prove things, as it is well settled legal principle that any proof and manner of proof are all not required when there is an admission. Proof is required where it becomes a contentions issue and person asserting is required to make good his version. But in a situation where it is not contested, but admitted, production of proof is not necessary nor warranted in law. - both the appellate commissioner and the tribunal erred In setting aside the order of the assessing officer levying penalty - Decided against the assessee.

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• 2012 (4) TMI 337
  Order of settlement commission - interest u/s 245D(4) and 245D(6) - held that:- As is evident from the aforesaid procedure laid down u/s 245D of the Act, once the application is admitted, the assessee is required to pay the additional demand on the basis of income disclosed in the application within 35 days of the order of the Commission u/s 245D(1) and in case the demand is not paid within the time allowed interest at prescribed rate is chargeable under 245D(2C). There is no material before us nor there is anything to suggest that in the order of the Settlement Commission that the assessee did not comply with aforesaid order u/s 245D(1) of the Act. Similarly, when the Settlement Commission passes final order under section 245D(4) of the Act, the tax payable in pursuance of such an order is required to be paid by the assessee within 35 days of the receipt of copy of the order and for failure to do so, the assessee is liable to pay interest at the prescribed rate under section 245D(6A). Thus the interest payable under sections 245D(2C) and 245D(6) are in different contexts and are levied independently. Thus, the determination of income by the Settlement Commission is necessarily with reference to the income disclosed in the application filed under the said section in the prescribed form. Moreover, in terms of provisions of sec.245I of the Act, every order of settlement passed under sub-section (4) of section 245D is conclusive as to the matters stated therein and no matter covered by such order, save as otherwise provided in the Chapter XIXA, can be reopened in any proceeding under this Act or under any other law for the time being in force. - Decided in favor of assessee.

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• 2012 (4) TMI 336
  Interest claim for deduction u/s. 24(b) in the computation of income from house property - Normal interest versus penal interest versus interest on interest - allowed at nil by the Revenue as the interest on unpaid capitalized interest is not envisaged for allowance u/s 24(b) – Held that:- the term 'interest' is defined comprehensively u/s. 2(28A) to include on any debt and, more importantly, the same is in respect of 'capital borrowed'. - The word 'capital' is wider in scope than the term 'money', and under appropriate circumstances, as the present one, include part of the debt that the seller, a financial institution, has agreed to extend, on charge of interest, to the assessee– purchaser. The interest deductible is the actual interest payable by the assessee in respect of the capital borrowed, and not one which would have been payable under a different fact setting than the actual one. - the claim must be genuine and not a result of an artifice, arising as a device to inflate the interest expense with tax or other motivation. There is no scope for bifurcating the interest into normal and penal components, as done by the Revenue. The agreement is clear. The capital is to be repaid as per a time schedule. If not paid thereat, additional interest would become chargeable for the period of default, i.e., till the payment of the installment. This would not be interest on interest, but a higher rate of interest on the capital borrowed and, thus, allowable u/s. 24(b) of the Act. Interest at normal rate allowed - Interest at panel rate allowed - Interest on Interest is not allowed.

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• 2012 (4) TMI 335
  Block assessment - Search and seizure - The main contention of the petitioner is that the Assessing Officer has illegally assumed jurisdiction under Section 153C read with Section 153A of the Act, that there was no undisclosed income to be assessed in the petitioner’s hands and therefore a writ of certiorari should issue to quash the proceedings as null and void. - held that:- Once Section 153A is found to be applicable, there will be only one assessment in respect of each of the six assessment years immediately preceding the assessment year - It needs to be appreciated that the satisfaction that is required to be reached by the Assessing Officer having jurisdiction over the searched person is that the valuable article or books of account or documents seized during the search belong to a person other than the searched person - Even if they tend to act unreasonably or under misplaced enthusiasm, there are adequate safeguards which can be availed of by those persons - Writ petition dismissed

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• 2012 (4) TMI 334
  Whether the standing charges payable under the agreement dated 23rd June, 2004 qualify and are eligible for deduction under Section 80 IC of the Income Tax Act, 1961 - The expression “derived from” in taxation laws means something which has direct or immediate nexus with the specified activity, which in the present case means manufacture or production of article or thing - In the present case, in view of words “derived from”, we have to look at the immediate source which has generated or resulted in the said receipt/income - The final conversion charge shall be re-determined based on discussions related to financing cost of equipment, power costs, actual capital cost based on speed of the machine, import duties, etc - The Fixed Charges are the same as defined in Standing Charges in Clause 12 above but the Return of Equity will be considered as 100% instead of 50% - In the present case, the standing charges were payable because Hindustan Lever Limited did not place purchase orders for the normative production possible - The standing charges obviously do not form part of the supply made and are not treated as sale consideration or the price of the goods on which excise duty or the sales tax etc. would be or is payable - Decided against the assessee

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• 2012 (4) TMI 333
  Writ petition - The petitioner had entered into an agreement of purchase of the property dated 19th November, 1995 - The Appropriate Authority came to the conclusion that the land rate had to be computed on the basis of the FAR and adjustment of +35.71% was made on account of the said additional FAR - In the present case, after the order of acquisition dated 29th February, 1996 was passed, the Central Government paid an amount of Rs.42 lacs to the petitioner on 17th March, 1996 and Rs.2.37 crores to the respondent Nos. 3 and 4 on 22nd March, 1996 - It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction - The present writ petition was filed by the purchaser in end of May, 1996, more than two months after the cheques were received and encashed - The agreement to sell records that the conversion charges will be paid by the vendee, i.e., the petitioner. The petitioner had not incurred any such expenses after the agreement to sell dated 19th November, 1995. Form No. 37-I was filed on very next day, i.e., 20th November, 199 - Petition is dismissed

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• 2012 (4) TMI 332
  Higher rate of depreciation on trucks – rectification of error - AO noticed in the return filed that the rate of depreciation claimed by the assessee on trucks at 40% was wrongly allowed as the assessee was not plying trucks owned by it on hire but was utilizing the trucks for its own purposes and hence rate of depreciation applicable was 25% - the Tribunal decided in favor of assessee - Held that:- the assessee was unable to demonstrate with reference to any material that the respondent-assessee was using the vehicles in a business of transportation of goods and the trucks owned by the assessee were being used for public carrier - the Tribunal was, thus, not justified in holding that the assessing officer had erroneously exercised jurisdiction under Section 154 of the Act substantial questions of law claimed above are, therefore, answered in favour of the revenue and against the assessee.

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• 2012 (4) TMI 331
  An application filed with the Ministry of Commerce and Industries for registration of the industrial park under the Industrial Park Scheme, 2002 to avail of benefits/exemption under Section 80IA - petitioner was informed that the date of commencement of park was after 31st March, 2006, their application was not covered under the 2002, Scheme - the 2002 Scheme ended on 31st March, 2006 and the 2008, Scheme was notified on 8th January, 2008 and parks set up on or after 1st April, 2006 but not later than 31st March, 2009 were covered by the said scheme - the petitioner did not fulfil the requirements of 2008, Scheme on the minimum requirement of constructed area required and required minimum number of units - Held that:- when an application was filed on 23rd September, 2006, there was no scheme in place/operation, which had been framed and notified by the Central Government -The 2002, Scheme had lapsed as it was effective, notified and applicable upto 31st March, 2006 - with effect from 1st April, 2006 there was no scheme which had been framed and was gazetted. Therefore, no undertaking could take advantage or benefit of Section 80 IA(4)(iii) of the Act

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• 2012 (4) TMI 330
  Appellate Authorities held that the MODVAT credit should not be added to the income as well as the value of the closing stock for the current assessment year as held by the Assessing Officer – CIT(A) assessing officer should not have rejected the method of accounting employed by the assessee, as it was a standard method of accounting and even as approved by the institute of Chartered Accountants in India and therefore this amount was directed to be deleted – Held that:- follow the view taken by the Income-tax Appellate Tribunal, Mumbai in the case of S.H. Kelkar & Co. Ltd. v. Dy. CIT (1992 - TMI - 58028 - ITAT BOMBAY-A ) and also in the case of Berger Paints India Ltd. v. Dy. CIT (1992 - TMI - 60611 - ITAT CALCUTTA-E ) the assessing officer was not justified in adding the amount on account of MODVAT etc., and therefore upheld the view of the appellate Commissioner and dismissed the appeal of the revenue - deem it proper to remand this matter to the assessing officer on this question, so that the assessee can make good its claim in terms of actual payment etc. disallowance on the ground of obsolescence - the Appellate Authorities held that custom duty paid on goods claimed as irrecoverable and therefore the entire amount of Rs. 9,84,349/- should be allowed as an expenditure despite the assessee not establishing that this amount had become obsolete – Held that:- the understanding and the manner of working out of the extent of obsolescence by the appellate Commissioner was fully justified, having regard to the nature of the business the assessee carried on and the kind of product with which it is dealing with etc – against revenue. Whether the Appellate Authorities were correct in holding that custom duty paid on software and expenses incurred on MRB items should be allowed in full and not at 50% as held by the Assessing Officer and since computer software would become obsolete despite the assessee not producing any proof to claim such obsolescence - Held that:- having regard to the fact that the products got obsolete fairly fast in comparison to the other products in other industry and more so even in the computer industry a software having comparatively lessor shelf life we do not propose to disturb the view taken by the appellate authorities - in favour of the assessee.

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• 2012 (4) TMI 329
  Addition to the regular income as performance incentive received from employer claiming tax deducted at source - reason for the demand is non availability for TDS credit claim - same performance incentive was admitted both in the assessment year 2007-08 and 2008-09, whereas TDS credit is available only for the assessment year 2008-09 – appeal on ground that amount of performance incentive has been taxed twice by the Income Tax Department – assessee submitted that he had aggregated with salary amount, performance incentive of Rs. 4,28,750/- which was given by the said company to him in financial year 2007-08 relevant to the assessment year 2008-09, by mistake as shown in Form 16 issued by the said company – Held that:- If the Income-tax Act authorizes a designated authority to collect tax for State, the same Act always permits the said authority to rectify any proceedings, which has resulted in double taxation - the assessment of Rs. 4,28,750/- to income-tax for the assessment year 2007-08 is against law - direction to the assessing authority to delete the said amount from the assessment relating to the - the appeal of the assessee is to be allowed

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• Customs

• 2012 (4) TMI 328
  Overvaluation of the exported goods - Penalty - Regarding determination of present marketable value - CBEC Circular No.69/97-Cus. dated 08.12.97 - Para 3.b specifically talks about PMV and is up to 150% of AR 4 value no market enquiry requires to be caused but if it is more than 150% of AR 4 price, then market enquiry has to be caused. - held that:- The factual aspect of the purchase of CD ROMs from M/s. Padmini Polymers Ltd, at a price cannot be discarded by the Revenue simply for the reason that the said M/s. Padmini Polymers Ltd. had no domestic sale and even if there is any domestic sale, it was to the tune of just merely 0.5% of the total sales affected by them. It is undisputed that even the 0.5% of domestic sales which were affected by M/s. Padmini Polymers Ltd. were of the value which were the purchase price of M/s. Colourtex. If that be so, the quantum of local sale clearances cannot be determinative factor as to whether the purchase price of M/s. Colourtex of the CD ROMs is incorrect or otherwise.

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• Corporate Laws

• 2012 (4) TMI 341
  Condoning the delay of 427 days in filing SLPs before this Court - Held that: in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions - Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few - Appeals are liable to be dismissed on the ground of delay

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• 2012 (4) TMI 339
  Jurisdiction of High Court - Disputes between the parties pertain to the Board meetings dated 01st December, 2004 as well as 1st March, 2005, AGM dated 30th May, 2005, allegation of - siphoning off funds of appellant-company, allotment of 4250 shares by the Ajay Paliwal faction on 3rd February, 2005, alleged transfer of 5000 shares - held that:- It is clear that Section 10F permits an appeal to the High Court from an order of the CLB only on a question of law i.e. the CLB is the final authority on facts unless such findings are perverse, based on no evidence or are otherwise arbitrary. It is settled law that this Court while exercising its appellate jurisdiction under Section 10F of the Act does not entertain, review or reopen questions of fact save on the ground of perversity. It is pertinent to mention that the Registrar of Companies had produced before this Court the original file maintained by it with regard to the appellant company. The said file contains only the Memorandum and Articles of Association of the appellant company as well as its certificate of incorporation. Consequently, this Court is of the opinion that both the parties have failed to prove the minutes of meeting dated 1st December, 2004. Accordingly, the allocation of additional shares and appointment of three additional Directors by both the appellants and respondents are set aside. The appellants, who constitute a minority shareholding cannot abuse their majority on the Board by completely excluding the respondents from the affairs of the appellant-company and further by converting the majority shareholders into minority. There is also no violation of principles of natural justice as allegation regarding siphoning off funds - except a bald denial of siphoning off funds, neither of the appellants gave any explanation in the CLB with regard to withdrawal of the said fund and/or their usage. Consequently, in the opinion of this Court, the CLB rightly concluded that the denial by the appellants of the allegation of siphoning off funds was bald, lacking in particulars and thus constituted an admission of siphoning off funds on their part. The directions given by the CLB in sub-paras (ii), (iii), (iv), (v), (vi) and (viii) of para 34 of the impugned order are upheld. Instead of directions (i) and (vii) of para 34 of the impugned order, the appellants are directed to restore only the amount of Rs. 7.50 lacs siphoned off from the company's account forthwith. Further, the shareholding of the appellant company shall revert back as it stood as on 30th September, 2004

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• Service Tax

• 2012 (4) TMI 327
  Non-compliance of pre-deposit order - SCN was issued – assessee contented that the amounts received were for procuring orders on behalf of their principals which did not constitute taxable service - appeal before the CESTAT – direction to the assessee to make pre-deposit of Rs. 30,00,000/- for entertaining the appeal - Held that:- contracts entered into by the assessee with various parties do not appear to be simply placing orders and earning commission - the credit notes clearly disclose that the Assessee has directly dealt with the goods in lifting providing of the vehicles and delivery of the goods - the decision of the Tribunal in directing the assessee to make predeposit of Rs. 30,00,000/- out of the demand of Rs. 91,07,006/- and dismissing the appeal for non compliance of the predeposit order cannot be faulted – against assessee.

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• 2012 (4) TMI 326
  Co-operative Society rendering rent-a-cab service under the contract agreement - SCN was issued for the period from 1/4/2000 to 30/9/2004 for demand service tax with further penalty under section 75(A), 76, 77 and 78 – Held that:- the levy of service tax was w.e.f. 1/4/2000 on rent a cab service hence assessee may be unaware with regard to this new levy of tax - there was a confusion over applicability of this levy as appellant a cooperative society rendering under the Contract for many years - there were divergent views of different benches of Tribunal, which added appellant’s confusion - if the appellant had persuaded their right of reimbursement of payment of service tax with the ONGC by way of conciliation and arbitration that fact can not negate them the defense of bona fide belief of applicability of service tax - the appellants were unable to pay the amount on the ground of dispute with the ONGC though they were aware of the levy of service tax in absence of any fraud, misrepresentation, collusion or willful mis-statement or suppression, there is no justification in levying the penalty – in favour of assessee.

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