Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
May 31, 2016
Case Laws in this Newsletter:
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
TMI SMS
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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CBDT Appoints the 31st day of December, 2016 as the date on or before which a person may make a declaration to the designated authority in respect of tax arrear or specified tax under the Direct Tax Dispute Resolution Scheme, 2016
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The Direct Tax Dispute Resolution Scheme Rules, 2016 - Notification
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Central Government appoints the 1st day of June, 2016 as the date on which Chapter VIII (EQUALISATION LEVY) of the Finance Act 2016 shall come into force - Notification
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EQUALISATION LEVY RULES, 2016 - Notification
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Status of assessee trust - whether society registered under a statute is to be assessed as an Artificial Juridical Person (AJP)? - Held Yes - AT
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MAT - The capital gain arising to an assessee u/s.50 of the Act on a depreciable asset is liable to be excluded from calculation on deemed profit u/s. 115JA of the Act. - AT
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If the hire charges as mentioned in form No. 26AS (as per TDS statement) are to be considered in the current year then the corresponding income as shown in the next year with the relevant expenditure are to be deleted from the next year which seems to be meaningless and un-productive at this stage. - it will result in double taxation of the same income - AT
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TDS - Non-deduction of tax at source on year end provision - the payee is not identifiable at the time of making of provision and further the entire provision has been written back in the next year - No disallowance - AT
Customs
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Smuggling of memory cards in unaccompanied baggage - adjudicating authority has rightly ordered absolute confiscation of the impugned goods - commissioner (Appeals) has erred in allowing releasing of the impugned goods on payment of redemption fine and reduced penalty. - CGOVT
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What is the correct date for filing of the refund claim - original refund claim was filed within time but complete documents were submitted after the cut-of-date - A claim for refund which is wanting certain documents and particulars cannot be a reason to hold that the claim was not filed within time. - AT
VAT
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Activity liable to VAT or service tax - sale of media space for displaying advertisements of its clients - To be decided in view the principles as reiterated in the case of Tim Delhi Airport Advertising Pvt. Ltd [2016 (5) TMI 297 - DELHI HIGH COURT] - HC
Case Laws:
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Income Tax
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2016 (5) TMI 1232
Stay of demand extended beyond 365 days - Held that:- The matter is no longer res integra. While interpreting the provisions of Section 35C(2A) of the Central Excise Act, 1944 which is pari materia to section 254(2A) of the I.T. Act, this Court in Commissioner of Central Excise, Rohtak vs. M/s Voice Telesystem (2016 (1) TMI 1101 - PUNJAB & HARYANA HIGH COURT ) after considering the relevant case law on the point concluded that wherever the appeal could not be decided by the Tribunal due to pressure of pendency of cases and delay in the disposal of the appeal is not attributable to the assessee in any manner, the interim protection can continue beyond 365 days in deserving cases. Reference was made to the judgment of the Apex Court in Commissioner of Customs & Central Excise, Ahmedabad vs. Kumar Cotton Mills Pvt. Limited, (2005 (1) TMI 114 - SUPREME COURT OF INDIA ). Thus ITAT has not acted in contravention of the Second Proviso of Section 254(2A) of the Income Tax Act, 1961 as the combined period of stay has exceeded 365 days - Decided against revenue
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2016 (5) TMI 1231
Exemption u/s. 10(23C)(iiiab) - Held that:- Assessee society has not fulfilled both the requisite conditions for claiming exemption u/s. 10(23C)(iiiab) of the Act. It neither exists solely for educational purpose, nor was it substantially or wholly financed by the Government. Therefore, the CIT(Appeals) was not correct in holding that the assessee is entitled for exemption u/s. 10(23C)(iiiab) of the act. We accordingly set aside the order of CIT(Appeals) and restore the order of Assessing Officer in this regard. - Decided against assessee. Status of assessee trust - whether society registered under a statute is to be assessed as an Artificial Juridical Person (AJP)? - Held that:- From the records available for the AY 2005-06, we find that the status of assessee was shown to be co-operative society. The AO has shown the same status of the assessee in the assessment order on the basis of status shown in the return of income, therefore the AO cannot be held responsible for assessing the assessee under different status. It is also an admitted fact that there would neither be any change in the computation of income nor tax effect, even if the status of the assessee is to be changed from AOP to AJP, because the assessee has already been assessed at the rates applicable to the co-operative societies. It is also noticed from the record that during the AY 2005-06 in the tax computation form, the status of the assessee was shown to be AJP, meaning thereby in the income tax computation form, the AO has assessed the assessee in the status of AJP. Therefore, no grievance of the assessee is left out in the AY 2005-06. For the remaining assessment years, the assessee has not filed the income tax computation form issued by the AO. Therefore, in the absence of this information, we cannot hold conclusively that assessee was not finally assessed in the status of AJP in the income tax computation form.
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2016 (5) TMI 1230
Intimation u/s.143(1) being time barred - Held that:- The copy of order dated 16.02.2012 is on the file which speaks about the finalization of the assessment. There is no iota evidence on the file to which it can be assumed that the assessee received the intimation after the expiry of one year in view of the proviso u/s.143(1) of the Act. Therefore, in the said circumstances the contention raised by the assessee which is not supported by any documents on record, is not liable to be tenable in accordance with law. Hence these grounds are decided in favour of the revenue and against the assessee. Computation of income under section 115JB - non acceptance of loss to the tune of ₹ 1,49,819/- declared by the appellant and in connection with the acceptance to the tune of ₹ 20,57,890/- as capital gain which is infact the capital receipt - Held that:- The receipt which is not in nature of income is not required to be taxed u/s.115JA of the Act and income which is also exempted u/s. 50 of the Act would also remain exempted as per provision of subsection 4 of section 115 JA of the Act. The capital gain arising to an assessee u/s.50 of the Act on a depreciable asset is liable to be excluded from calculation on deemed profit u/s. 115JA of the Act. In view of the said circumstances it is apparent that the capital receipt to the tune of ₹ 20,57,890/- is not liable to be included while determining the profit and loss account and accordingly the income of the assessee is liable to be assessed in accordance with law. Since there is no other ground challenging the figure of amount in the said assessment therefore, we are of the view that the learned CIT(A) has wrongly upheld the finding of the Assessing Officer on this ground, hence the finding of the learned CIT(A) on the point is hereby ordered to be set aside. Concluding this facts that the capital gain exempted under the provision of the law is not liable to be added to the income of the assessee. Accordingly this issue is decided in favour of the Assessee
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2016 (5) TMI 1229
Addition of difference in form No. 26AS showing the gross hire charges and as per the books of accounts of the assessee - Held that:- TDS were deducted by the recipient of service i.e. M/s Punj Lloyd Ltd amounted to ₹ 6,10,41,854/- whereas undisputedly, the assessee accounted only ₹ 5,56,09,575/- thereby resulting into short accounting of the said income to the tune of ₹ 54,32,279/-. The said difference was explained by the assessee to be on account of the reasons that the bills for hire charges were raised in the next year 2010-11 relevant to the AY 20011-12 whereas M/s Punj Lloyd Ltd accounted the expenditure in the current year i.e F.Y. 2009-10 relevant to AY 2010-11 and also deducted TDS thereon. We find merit in the arguments of the ld AR and also note that the whole exercise by the AO is neutral tax unit as the assessee had duly accounted for the difference of ₹ 54,32,279/- in the next financial year and also booked the corresponding expenditure in that year and the return of income was filed accordingly and was also accepted by the AO. We also find merits in the arguments of the ld. AR that the credit of service tax on the hire charges would not be available to the assessee had he booked the said hire charges under the current financial year. Looking to the totality of facts of the case , we are of he opinion that since the assessee has booked the full amount of hire charges as per Form No.26AS into two years and offered the same for taxation though the claim of TDS on the entire hire charges was made in the assessment year 2010-11. In any case, if the hire charges as mentioned in form No.26AS are to be considered in the current year then the corresponding income as shown in the next year with the relevant expenditure are to be deleted from the next year which seems to be meaningless and un-productive at this stage. Even worth noting is fact that the income has been accepted by the department in the subsequent year. We, therefore, are of the considered opinion that since the full amount of hire charges stood offered to tax by the assessee in two years , addition of ₹ 54,32,279/- can not be sustained as it will result in double taxation of the same income. Accordingly, we set aside the order of ld.CIT(A) and direct the AO to delete the addition - Decided in favour of assessee.
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2016 (5) TMI 1228
Non-deduction of tax at source on year end provision - Held that:- Tribunal for the A.Y.2007-08 in assessee’s own case, wherein the Tribunal while relying upon another decision of coordinate bench of the Tribunal in the case of IDBI Vs. ITO, (2006 (7) TMI 248 - ITAT BOMBAY-H ) has held that since the payee is not identifiable at the time of making of provision and further the entire provision has been written back in the next year and the actual amounts paid/credited were subjected to TDS as and when the liability was crystalised or the payments were made and even when the assessee himself had disallowed the entire amount in the computation of income upon which no TDS was deducted, in that event proceeding u/s.201(1) and the levy of interest u/s.201(1A) was not justified. Thus appeals of the revenue relating to disallowance made on account of nondeduction of TDS on year-end and provision are hereby dismissed. - Decided in favour of assessee Non-deduction of tax at source on purchase of traded goods and packing material - Held that:- The provisions of Chapter XVII·B of the Act cannot be said to be applicable on purchase of finished/traded goods Accordingly, there is no default on the part of tile Appellant in complying with the provisions of Chapter XVII-B of the Act while making payment for purchase of finished/traded goods and Purchase of Packing Material without deducting tax at source This ground of appeal is allowed in favour of the appellant. - Decided in favour of assessee
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2016 (5) TMI 1227
Reopening of assessment - Held that:- HC order sustained [2015 (7) TMI 297 - GUJARAT HIGH COURT] - impugned notices under Section 148 of the Act to reopen the proceedings beyond 4 years and within 4 years on the aforesaid ground i.e. on the ground that the payment of purchase price in excess to the SMP has escaped the assessment cannot be sustained and the same deserves to be quashed and set aside. - Decided in favour of assessee.
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2016 (5) TMI 1226
Eligibility for deduction under Section 80 IB denied - manufacturing activity - Held that:- We find that the assessee has not clearly established that the income was derived from manufacturing activities or that the income is directly relatable to the manufacturing activities. The assessee admittedly had trading activity. It is not clear as to whether the income, as indicated above, aggregating to approximately ₹ 30 lacs arose out of activities relating to manufacturing activity. The question no.1, for lack of appropriate evidence, is answered in the affirmative and in favour of revenue.
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2016 (5) TMI 1225
Depreciation on the Tetrapack machine - assets not actually put to use - Held that:- Answering the questions against the revenue has held that the depreciation on the Tetrapack machine, be allowed even if the same is kept ready for use. See Commissioner of Income Tax V/s. Premier Industries (India) Ltd. reported in (2007 (9) TMI 362 - MADHYA PRADESH HIGH COURT ) - Decided in favour of assessee
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2016 (5) TMI 1224
Interpretation of Section 80IB (10) as amended - Held that:- No warrant review of the judgment under consideration on that count, as the interpretation given to the provisions contained in Section 80IB (10) as amended by the Finance (No.2) Act, 2004 which came into force w.e.f. 1.4.2005, would still apply in all cases heard and disposed of together.
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2016 (5) TMI 1223
Reopening of assessment - accommodation entries receipt - Held that:- No addition has been made in respect of the accommodation entry from M/s. Zigma Telecom Private Limited and the additions made are in respect of the parties, which are not mentioned in reasons recorded by the Assessing Officer. Thus, respectfully following the ratio of the judgment of the Hon’ble Delhi High Court in the case of Ranbaxy Laboratories Ltd (2011 (6) TMI 4 - DELHI HIGH COURT ), we are of the opinion that the reassessment proceedings are invalid in law, therefore, we the quash the reassessment proceedings in the case of the assessee initiated by the Assessing Officer. - Decided in favour of assessee.
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2016 (5) TMI 1222
TDS liability on provisions made as at the end of the accounting year - Held that:- The undisputed fact is that the provisions, made at the end of the accounting year are reversed in the beginning of the next year. No payees are identified. The exact amount of liability also cannot be quantified. The provisions are made merely on for Management Information System. In our considered opinion, liability to deduct tax at source does not arise. Assessee-company is not liable to deduct tax at source as no income has accrued in the hands of the payee. - Decided in favor of assessee
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2016 (5) TMI 1221
Registration granted u/s 12A cancelled - whether the CIT is empowered even w.e.f. 01/06/2010 to withdraw registration of trust earlier registered under the provisions of sec.12A of the Act with retrospective effect? - Held that:- It is not the case of the assessee-trust that the conditions specified in sub-sec.(3) of sec.12AA were not present in the present case even from 01/04/2004 till date of the impugned order. As held by us in the foregoing paragraph, the appellant trust has not been carrying on any activity during that period. The assessee had been afforded an opportunity of proving that the objects of the trust are genuine. The appellant could not lead any evidence on record to establish that the appellant trust has been carrying on the objects for which it was set up. Therefore, the argument that there was no opportunity cannot be accepted. - Decided against assessee.
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2016 (5) TMI 1220
Penalty u/s 271 (1) (c) - disallowance of provisions for discount - Held that:- From the order of the First Appellate Authority for the subsequent year i.e. AY 2008-09, we find that the assessee had taken additional ground vide para 9 at page 6 of the appellate order passed under section 250(6) praying before the First Appellate Authority to allow the provision for discount of ₹ 30,95,650/- disallowed in the assessment year 2007-08 for being contingent in nature. Para 3.3 at page 7 of the said order reveals that the assessee had created provisions for ₹ 30,95,650/- and out of which ₹ 8,23,376/- was passed on to the customers and remaining amount of ₹ 22,33,724/- was reversed and offered to tax in assessment year 2008-09. In para 3.5 of the said order, the assessee submitted that in case, the provision for discount is held to be contingent in nature in assessment year 2007-08, actual discount of ₹ 8,23,376/- passed on to the customers in assessment year 2008-09 should be allowed as expenditure in assessment year 2008-09 and further balance of ₹ 22,33,724/- which was suo motu reversed by the assessee in assessment year 2008-09 should not be taxed in assessment year 2008-09 as it has been already taxed in assessment year 2007-08. From para 12 at page 7 of the said order, we find that the ld. CIT(A) allowed the appeal of the assessee by directing the AO not to tax the provision in the subsequent year which was not allowed in the earlier years. Thus we are of the opinion that the penalty imposed u/s 271(1)( c ) and as sustained by the ld.CIT(A) is wrong and against the provision of law. - Decided in favour of assessee
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2016 (5) TMI 1219
Addition u/s 68 - undisclosed cash deposits - Held that:- The assessee has failed to bring on record any material evidence to controvert the findings of the learned CIT(A). We, therefore, see no reason to interfere with or deviate from the findings of the learned CIT(A) that the assessee has failed to satisfactorily explain the source of cash deposits of ₹ 25,93,000/- in his undisclosed bank account with Corporation Bank, Mandvi, Mumbai - Decided against assessee Set off of business loss against the addition u/s 69 - Held that:- No cause for interference with or deviation from the findings of the learned CIT(A) that the assessee’s claim for setting off loss against the income taxed under section 69 of the Act is not tenable - Decided against assessee Disallowance of short term capital gains - Held that:- Business loss of ₹ 15,05,455/-, instead of ₹ 17,60,242/- as claimed by assessee, shall be treated as business loss in futures and options and be allowed to be set off as per the provisions of section 70 to 79 of the Act. No material evidence has been placed before us to controvert this finding of the learned CIT(A).- Decided against assessee Charging of interest under section 234B and 234C is consequential and mandatory and the AO has no discretion in the matter. See Anjum Ghaswala (2001 (10) TMI 4 - SUPREME Court )
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2016 (5) TMI 1218
Disallowance u/s 36 (1) (iii) - interest on loan - Held that:- Assessee had advanced the loans during the normal course of business and therefore interest expenditure was allowable as per the provisions of section 36 (1) (iii)of the Act. The AO has not brought on record anything to prove that expenditure incurred under the head interest was not wholly and exclusively for carrying out the business of the assessee for the year under consideration. Therefore, confirming the order of the FAA, we dismiss the second ground, raised by the AO. - Decided in favour of assessee Disallowance made u/s. 14A - Held that:- In absence of any exempt income no disallowance could be made u/s. 14A of the Act. Considering the facts-like availability of sufficient own funds, non-receipt of exempt income during the year, and strategic investment in the sister concerns we hold that the FAA was not justified in upholding the disallowance. - Decided in favour of assessee Valuation loss treated as speculation loss - Held that:- We find that the assessee had shown interest income of ₹ 23. 78 crores. That in the MOA the main object of the company has been mentioned as financing. As per the settled principle of taxation jurisprudence section 73 is not applicable if the assessee is engaged in Finance business. Thus provisions of section 73 r. w. explanation was not applicable. Therefore reversing the order of the FAA, we decide the effective Ground of appeal in favour of the assessee.
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2016 (4) TMI 1136
Transfer pricing adjustment - selection of comparable - Held that:- As only persistently loss making unit cannot be said as comparable. In this case, the impugned order holds on facts that Capital Trust Ltd. it is not a persistent loss making unit. Therefore, Capital Trust Ltd. is comparable only persistently loss making unit cannot be said as comparable. In this case, the impugned order holds on facts that Capital Trust Ltd. it is not a persistent loss making unit. Therefore, Capital Trust Ltd. is comparable Spanco was essentially involved in activities with regard to Telecom and providing call center services while the Respondent-Assessee was providing financial services. Thus, as the activities of Spanco and Respondent-Assessee are functionally different, they are not comparable Tribunal in the impugned order adopted the same comparable it had adopted in the case of M/s. Carlyle India (2013 (4) TMI 486 - BOMBAY HIGH COURT ) for the purpose of arriving at the ALP in respect of its International Transaction. No substantial question of law arises in this case.
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Customs
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2016 (5) TMI 1212
Seeking exemption from pre-deposit - Section 129E of the Customs Act, 1962 - Entire amount of Customs duty has been recovered prior to filling of appeal with encashment of Bank Guarantee - Held that:- when the encashment of Bank guarantee was to the extent of duty then the Commissioner (Appeals) has still ignored the aforesaid. It happened for the reason that after keeping the appeal pending for ten months without pointing out any defect, it was decided without giving opportunity of hearing to the appellant. As an outcome of which, the order was passed in ignorance of the application regarding exemption from predeposit. The way Commissioner (Appeals) has conducted the appeal, shows ignorance of the material available on record. The condition of pre-deposit get satisfied with recovery of the amount of duty which is much more than 7.5% of the duty imposed on the petitioner herein. Therefore, dismissal of appeal in reference to Section 129E of the Act of 1962 cannot be said to be proper. The impugned order is thus set aside with remand of the case to the Commissioner (Appeals) for its hearing on merit. - Petition allowed by way of remand
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2016 (5) TMI 1211
Validity of Tribunal's order - Confiscation of gold bars recovered and imposition of penalty - suspected that gold bars recovered were of a foreign origin - Held that:- the contention of Mr. Bhardwaj, that the gold recovered from the possession of Nand Kishore Somani, according to the clinical analysis report, contains gold content between 99.94% and 99.96% and also the certificate is a pointer to show that the gold bars could not have been of Indian origin found mo merits for various reasons. Therefore, we need not add to the reasons why the certificate is of no consequence. - Dismissed as unmeritorious
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2016 (5) TMI 1210
Smuggling of memory cards in unaccompanied baggage - Whether the impugned goods as held by the adjudication authority liable for absolute confiscation have been righty allowed to be released on payment of redemption fine and penalty by the Commissioner (Appeals) and whether penalty imposed on the respondents been rightly reduced or not - Held that:- the impugned goods are in commercial/trade quantity and do not constitute bonafide personal effects under Section 79 ibid read with the EXIM policy in force and the passenger neither made a true declaration of the goods nor declared true quantity and value. therefore, he contravened the provisions of Section 77 and 79 of the Customs Act. In terms of CBEC’s Circular No. 29/200-Cus dated 11.04.2000 import of goods in commercial quantity would not be permissible within the scope of baggage rules, ever on payment of duty. The respondent was not eligible to import the impugned goods and were imported in gross violation of the provisions of the Customs Act and Foreign Trade (Development and Regulatory) Act and would appropriately constitute prohibited goods liable for confiscation under Section (i),(I) & (m) ibid. Therefore, government upholds Department’s contortion that absolute confiscation is legally warranted keeping in view the facts and circumstance of the case. The appellate authority had completely ignored the fact that Shri Shamsuddin Malik was the carrier of the impugned goods and he brought the goods on behalf of Shri Didar Singh for monetary gain. The no objection given by Shri Didar Singh to Shri Shamsuddin Malik was nothing but an afterthought to escape from the penal action at the hands of Customs Authorities Government, therefore, holds that in the present case the goods imported by the passenger as a carrier are liable for absolute confiscation as rightly pleaded by the department. Hence, the original adjudicating authority has rightly ordered absolute confiscation of the impugned goods and that the commissioner (Appeals) has erred in allowing releasing of the impugned goods on payment of redemption fine and reduced penalty. Government further notes that commissioner (Appeals) in his order has held that since the baggage rate of duty was levied on the impugned goods which inbuilt contains the provision of penalty also, it justifies the reduction of penalty amount imposed by the adjudicating authority. Government is not inclined to accept the averments of appellate authority as the baggage was cleared under rule 9 of Baggage Rules, 1998 as amended which deals with the provision for clearance of unaccompanied baggage wherein the baggage rate of duty is liveable which was statutory requirement under the Customs Act, 1962. Government further observes that facts on record clearly established the collusion in outright smuggling activities by Shri Didar Singh with Shri Shamsuddin Malik (main accused) and his abetment of such actions and both have indulged in smuggling of goods by way of outright concealment and mis-declaration as part of unaccompanied baggage. Therefore, the justification of appellate authority in reducing the penalty is not tenable and Government restores the penalty amount as imposed by the original authority on both the respondents. - Revision applications allowed in favor of revenue.
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2016 (5) TMI 1209
What is the correct date for filing of the refund claim - Whether the date should be taken as 11.1.2013 as contended by the appellant herein or 28.11.2013 which is the date of resubmission of the application by the appellant or whether 12.11.2014 as decided by the adjudicating authority - Held that:- the appellant had filed refund claim dt.11.1.2013 on 23.1.2013. A claim for refund which is wanting certain documents and particulars cannot be a reason to hold that the claim was not filed within time. The conclusion arrived at by the Commissioner (Appeals) holding that the appellant had filed the refund claim only on 17.9.2014 which was received in this case on 9.10.2014 is based on OIO. and has been filed beyond the stipulated period of one year from the date of issue of the OIO for final assessment, is in my opinion not correct. The consequential rejection of the appeal as time barred under Section 27 of the Customs Act, 1962 is also incorrect. The Hon'ble Madras High Court in the case of Sashun Pharmaceuticals Ltd. Vs Jt. Secretary, M.F. (D.R), New Delhi [2013 (8) TMI 200 - MADRAS HIGH COURT] has held that original filing of the claim is to be reckoned for the purpose of limitation. Therefore, the finding that claim of refund is time barred is contrary to the judgement of the Hon’ble Madras High Court and is therefore set aside. The matter is being remanded to the original authority to examine the aspect of unjust enrichment. - Appeal allowed by way of remand
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Service Tax
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2016 (5) TMI 1217
Invokation of extended period of limitation - Section 80 of the Act - Imposition of penalty under Section 78 of the Act - Business Auxilliay Service - Appellant was not aware of service tax liability and were under the bonafide belief that ICICI bank will take care of tax liability, if any - Held that:- from the facts, it is clear that appellants are aware of the tax liability and did pay some amounts towards service tax under BAS category. It goes to show that they have chosen not to report the full receipt of money to discharge the tax liability. Further, the appellant’s plea that their payment of the sub-agents should be deducted from the gross value is also not supported by any legal provisions. To invoke the provisions of Section 80 the appellant should show reasonable cause for non-payment of service tax in time but no such reasonable cause could be established in the present case. The taxability of the service rendered by the appellant is not subject matter of doubt or interpretation during the material time. In fact the Board’s clarification issued on 20/06/2003 itself makes it clear that there is no room for doubt for the period subsequent to the said clarification. - Decided against the appellant
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Central Excise
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2016 (5) TMI 1216
Seeking direction for grant of Excise Registration Certificate from date of application - Default in payment of excise duty and interest by erstwhile owner - Attachment of property - Held that:- petitioner has already withdrawn his application and is further willing to pay the amount of interest if he is granted liberty of making payment in twenty four installments. The application is pending consideration with the authority concerned. Therefore, we direct the authority to appropriately consider and decide the application made by the petitioner for payment of interest in twenty four installments. It would be expected from the authority concerned that if nothing adverse exist, the prayer made may be accepted. In that case and on payment of interest, the authority would further consider for Excise Registration Certificate from the date of application. It is however made clear that if the prayer for payment of interest in installments is accepted, the authority would obviously be at liberty to calculate the interest of the intervening period over the amount of interest and thereupon to make installments. - Petition disposed of
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2016 (5) TMI 1215
Imposition of penalty - Delay in payment of duty - Whether penalty imposable under Rule 27 or under Rule 25 of the Central Excise Rules, 2002 - Held that:- in view of the judgment made by the High Court of Gujarat in the case of Commissioner of C. Ex. & Customs versus Saurashtra Cement Ltd. [2010 (9) TMI 422 - GUJARAT HIGH COURT], the penalty could not be levied under Rule 25 of the Rules. - Appeal disposed of
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2016 (5) TMI 1214
Monetary limit for entertaining an appeal - High Court limit is ₹ 15,00,000/- - Demand is less than ₹ 15,00,000/- - Held that:- the appeal is disposed of as the amount involved in the present case is less than the monetary limit prescribed for preferring an appeal before the High Court. However, in case there is any error in the computation of the demand involved or if for any reason, the instruction is not applicable, it would be open for the appellant to seek revival of the appeal. - Appeal disposed of
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2016 (5) TMI 1213
Whether the order of refund sanctioned by the JAC is in accordance with Rule 5 of Cenvat Credit Rules 2004 read with Notification No. 5/2006 dated 14.03.2006 and whether the Order-in-Appeal has traversed beyond the grounds of appeal authorized in the review order of the Commissioner of Central Excise under Section 35E(2) of the Act and finally whether for recovery of an erroneous refund, the department is required to issue a show-cause notice under Section 11A or not - Held that:- the Assistant Commissioner has sanctioned the refund claims after satisfying himself with regard to the conditions as contained in the Notification 5/2006 dated 14.03.2006 and there is no infirmity in the orders granting refund whereas the Commissioner (Appeals) has wrongly observed that the original authority has failed to bring on record in the impugned order whether the input/input services are used in relation to the manufacture of exported goods. Therefore, the appellants have furnished all the relevant documents to the satisfaction of the sanctioning authority and the sanctioning authority in all the refund orders has clearly held that the appellants have fulfilled all the conditions stipulated in the Notification No. 5/2006 dated 14.03.2006 and there are no legally sustainable ground on which the validly sanctioned refund orders should be set aside and therefore the findings returned by the Commissioner (Appeals) on merit are set aside. it is also found that the impugned order is beyond the grounds on which the permission was granted to prefer an appeal in the review order which is not permitted by law. Therefore, I do not consider it appropriate to record a finding on this point once the appellant is succeeding on merit and therefore I do not think it appropriate to decide this issue in this case when the appellant is otherwise entitled to the relief on merit and therefore I hold that the impugned orders are unsustainable in law and are set aside. - Decided in favour of appellant
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CST, VAT & Sales Tax
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2016 (5) TMI 1208
Activity liable to VAT or service tax - sale of media space for displaying advertisements of its clients - Demand of VAT and imposition of penalty - Section 33 of the DVAT Act - Default assessment under Section 32 - Agreement entered to transfer of the right to use various display sites - Petitioner paying service tax under Finance Act by considering it as services rendered - Held that:- there is a considerable merit in the Petitioner‟s contention that levy of Service Tax and Value Added Tax are mutually exclusive. The question whether the transaction entered into between the Petitioner and its clients can be constituted as a 'sale' within the meaning of Section 2(1)(zc)(vi) ibid is required to be answered keeping in view the principles as reiterated by this Court in the case of Tim Delhi Airport Advertising Pvt. Ltd. v. Special Commissioner –II, Department of Trade & Taxes & Ors. [2016 (5) TMI 297 - DELHI HIGH COURT]. Accordingly, the impugned default assessment orders and notices of penalty are set aside and the matter is remanded to the VATO to consider it afresh in the light of the principles as reiterated in Tim Delhi Airport Advertising Pvt. Ltd. (supra). The penalty orders under Section 86 (14) of the DVAT Act are also set aside. - Petition disposed of
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2016 (5) TMI 1207
Seeking non-adoption of coercive measures for recovering the amount of commercial tax as assessed and also direction to take a decision on the application filed by the petitioner under Section 53(7) read with Section 53(8) of the Uttarakhand Vat Act, 2005 - Petitioner submitted that there is no administrative member in Commercial Tax Appellate Tribunal and, therefore, its appeals cannot be heard, in accordance with law. Held that:- a direction is, issued to the State Government through Principal Secretary (Finance), Government of Uttarakhand, Dehradun as well as to the Commissioner (Commercial Tax) to initiate the process of appointment of an administrative member of Uttarakhand Commercial Tax Appellate Tribunal at Haldwani, at the earliest possible but not later than four weeks of receipt of certified copy of this order. Registry of the Court is directed to send a copy of this order to the Principal Secretary (Finance), Government of Uttarakhand as well as to the Commissioner (Commercial Tax) forthwith. Operation of the impugned recovery citations shall remain stayed. - Petition disposed of
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