TMI Tax Updates - e-Newsletter
June 25, 2015

Case Laws in this Newsletter:

Income Tax Customs Corporate Laws Service Tax Central Excise CST, VAT & Sales Tax Wealth tax

TMI SMS

• Notification published on the date when goods were cleared but cannot be enforced before it was offered for sale by the concerned Board - SC

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• Anti dumping duty - while carrying out the best judgment assessment, DA has to base its decision on relevant considerations / material - SC

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• Rule 12 of IT Rules 1962 - Now ITR-1 & ITR-4S can be filed where exempted income exceeds Rs 5000 with Salary Income or House Property Income

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Articles

• GOODS AND SERVICE TAX AS PROPOSED
• ACCEPTANCE OF DEPOSITS BY COMPANIES UNDER COMPANIES ACT, 2013 – PART II

News

• Conversion of Solar Energy Corporation of India (SECI) from Section 8 company to Section 3 company under the Companies Act, 2013 and renaming it as Renewable Energy Corporation of India (RECI).

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• Renewal of Long Term Agreements for Supply of high grade Indian iron ore to Japan and South Korea through MMTC Limited during the three year period from April, 2015 to March, 2018.

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• MOC for bilateral cooperation in the field of Industrial Property (IP) for capacity building, human resource development and awareness generation between India and Japan.

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• RBI Reference Rate for US $

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• ITR 4S - Validation Rules for AY 2015-16

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• ITR-1 - Validation Rules for AY 2015-16

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Notifications

DGFT

• 12/2015-2020 - dated 24-6-2015 - FTP
  Extension of prohibition on import of milk and milk products (including chocolates and chocolate products and candies/ confectionary/ food preparations with milk or milk solids as an ingredient) from China till 23-6-2016.

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Income Tax

• 48/2015 - dated 18-6-2015 - IT
  SECTION 10(46) OF THE INCOME-TAX ACT, 1961 - EXEMPTIONS - STATUTORY BODY/AUTHORITY/BOARD/COMMISSION - NOTIFIED BODY OR AUTHORITY - WEST BENGAL ELECTRICITY REGULATORY COMMISSION SUBJECT TO SOME CONDITIONS.

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• 47/2015 - dated 18-6-2015 - IT
  SECTION 10(46) OF THE INCOME-TAX ACT, 1961 - EXEMPTIONS - STATUTORY BODY/AUTHORITY/BOARD/COMMISSION - NOTIFIED BODY OR AUTHORITY - PUNJAB STATE AIDS CONTROL SOCIETY SUBJECT TO SOME CONDITIONS.

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Indian Laws

• S.O. 998(E).- - dated 10-4-2015 - Indian Law
  De-reservation of SSI items

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Circulars / Instructions / Orders

Indian Laws

• 456CT/PRO-3C/PRO/2012 - dated 28-5-2015
  Extension of the last date of filing Profession Tax Return for the period ending 31/03/2015 in State of West Bengal.

Income Tax

• 05/2015 - dated 23-6-2015
  Upper limit of Clerkage fees prescribed - 10% of the appearance fee and drafting fee subject to a maximum of ₹ 4,375 in a case - Paid for engagement of Standing Counsels to represent the Income tax Department before High Courts and other judicial forums.

Highlights / Catch Notes

Income Tax

• Computation of capital income - Tribunal having held the appellant's agricultural income to be ₹ 9 lacs as against the claim of ₹ 12 lacs - computation of the income at ₹ 9 lacs as against the claim of ₹ 12 lacs cannot be held to be perverse or absurd. - HC
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• Deduction u/s 80-IC - assessee is entitled to only 25% of deduction during the present year because the assessee has already availed the period of full deduction @ 100% in the earlier five years i.e. from assessment years 2004-05 to 2008-09 - AT
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• Disallowance of losses from activity of horse breeding and owning and maintaining race horses - The activity of breeding of horses is similar to that of poultry or piggeries etc. where the animals are bred for the purpose of selling. Section 74A is not applicable for such breeding activity. - AT
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• Non-granting of registration u/s 12A - If the registration is granted to the assessee u/s 12A of the Act, then, it will open pandora's box and everybody will claim exemption from tax, who are incidentally doing some charitable activities in providing parks or roads - AT
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• Entitlement to benefit of deduction u/s. 54F - In the instant case the lease is for a period of 999 years subject to renewal for further period of 999 years. - it cannot be said that the assessee is not the owner of the property. - AT
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• Penalty Order u/s. 271(1)(b) r.w.s. 274 - assessee has never been put to the notice to explain as to why penalty should not be imposed under section 271(1)(b) - penalty waived - AT
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• Time limit for filing revised return had already elapsed. - revised computation submitted by the assessee during assessment proceedings - revised computation was rightly accepted by the CIT(A) - AT
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• The main activity of the assessee was not earning rental income rather it was an activity of trading in the flats. Rental was an incidental income - rental income is to be assessed as business income. - AT
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• Invoking the provisions of Section 172 r.w.s. 163 - The assessment was thus framed almost three years after the end of the relevant previous year. Viewed in this perspective, the impugned order under section 172(4) was indeed barred by limitation. - AT
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• Disallowance u/s 40(a)(i) - 'Export Sales Commission' payments made to the non resident u/s.195 - section 195 would only apply if the payment in question is taxable as income in India and not otherwise - AT
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Customs

• For physical loss, no mens rea is required - Appellant failed to deliver the sealed container from their CFs safely to the gateway port. Therefore, the adjudicating authority had rightly imposed penalty under Section 114 of the Customs Act - AT
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• Effective date and time of effective Rate of Duty - notification may have been published on the date when the goods were cleared, it was not offered for sale by the concerned Board - differential duty cannot be demanded on the basis of such notification - SC
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• Effective date and time of effective Rate of Duty - bill of entry was filed filed on 03.08.2001 - notification was sent for publication after the normal office hours, i.e., much after 5 p.m. on 03.08.2001 - it was not justified and lawful on the part of the Department to claim the differential amount of duty on the basis of said notification - SC
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• Levy of anti dumping duty - noticee did not cooperate in the inquiry or furnishes the requisite material - while carrying out the "best judgment assessment", it is necessary for the Designated Authority to base its decision on the relevant considerations/ material - SC
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Corporate Law

• Charges of oppression and mismanagement - the petitioners have sought cancellation of various Returns filed by the Company with the Registrar of Companies in the year 2010 and 2011. This petition came to be filed on 18/07/2014. However, the Petitioners have not offered any sound and convincing reason as to why they approached the CLB after such inordinate lapse of time. - CLB
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Service Tax

• Denial of refund claim - Bar of limitation - relevant date, if any, for the purpose of Section 11B for refund of CENVAT Credit in case of export of service will be one year from the date of receipt of remittance for the services rendered to the recipient of service outside India. - AT
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• Denial of CENVAT Credit - Belated service tax registration - in absence of a statutory provision prescribing the condition that registration is mandatory, the authorities cannot take the view that the assessee shall not be entitled to the benefit of refund. - AT
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• Valuation - distribution of free of recharge voucher attracts service tax liability - during the relevant period the Explanation as per the Section 67 of Finance Act, 1994 also do not indicate inclusion in that gross value of any cost towards free distribution made by the service provider - AT
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Central Excise

• Denial of CENVAT credit - whatever duty they would have paid and they could claim the same as refund. - it is a case of revenue neutral situation - the allegation of suppression cannot be alleged against the appellants. - AT
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• Whether the retail price was indelibly printed or embarks on the shoes - just because the shoes were supplied to Defence organisation, which according to the Department are institutional buyers it cannot be presumed that no MRP had been printed or embossed on the footwear. - AT
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Case Laws:

• Income Tax

• 2015 (6) TMI 727
  Condonation of delay - Held that:- Tribunal has gone in depth into the various proceedings that had been undertaken by the assessee before approaching the Commissioner of Income Tax (Appeals) for pursuing the appeals and the delay is not on account of the inaction on part of the assessee, but on account of availing remedies before various forums including before the Tribunal, the details of which have already been set out in the order of the Tribunal. Since the assessee has not chosen to pursue two parallel proceedings, the delay in filing the appeals has apparently occurred.

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• 2015 (6) TMI 726
  Computation of capital income - Tribunal having held the appellant's agricultural income to be ₹ 9 lacs as against the claim of ₹ 12 lacs - Held that:- The Tribunal has considered in detail the evidence. The Tribunal for instance considered the income of the Assessee even during the previous years which was substantial. The Tribunal therefore, came to the conclusion that the assessee had been engaged in agricultural activity. The main dispute related to the agricultural activities. In this regard, the Authorities have considered the sales of various items such as wood, wheat, haldi etc. The extent of the lands cultivated was, however, in doubt. Initially the appellant claimed that about 25 acres was taken on lease. The document, however, did not establish the same. Further as noted by the Tribunal also no books of accounts/bills/vouchers have been produced. This was also a relevant factor while testing the appellant's claim. Having considered all these facts, computation of the income at ₹ 9 lacs as against the claim of ₹ 12 lacs cannot be held to be perverse or absurd. This was a question of appreciation of facts. - Decided against revenue.

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• 2015 (6) TMI 725
  Deduction u/s 80-IC - CIT(A) restricting deduction to 25%i instead of 100% claimed by the appellant in the sixth year of operation of new industrial undertaking - Held that:- Before the introduction of section 80IC which is before us for consideration, the deduction to the backward states was available in terms of section 80IB(4). The third proviso makes it clear that after 31.3.2004, this deduction will be available only u/s 80IC. The sub section further makes it clear that deduction would be @ 100% for the first five years and thereafter @ 25%. Further, the first proviso makes it clear that deduction will not exceed 10 consecutive assessment years. The second proviso further makes it clear that in the case of states of North-Eastern regions, the deduction would be @ 100% for all the 10 years. Thus, even in the earlier provision only in case of North-Easter states, the deduction of 100% was allowable for 10 years whereas in the case of states of Himachal Pradesh, the deduction was allowable @ 100% for first five years and 25% for next five years. The careful reading of the form in a serial order would clearly show that the assessee is required to inform the location of the Industry and column (c) specifically ask the assessee to state whether business is a new business? Column (d) clearly ask the assessee whether existing business has undertaken substantial expansion, therefore, there are two categories of business and substantial expansion is possible only in case of existing business. In our opinion, the Ld. CIT(A) has correctly adjudicated this issue. In view of the above detailed discussion we hold that the assessee before us i.e. M/s Hycron Electronics is entitled to only 25% of deduction during the present year because the assessee has already availed the period of full deduction @ 100% in the earlier five years i.e. from assessment years 2004-05 to 2008-09. In this background, we find nothing wrong with the order of Ld. CIT(A) and we uphold the same. - Decided against assessee. Entitlement to deduction u/s 80IC - Held that:- Expression 'derived from' has been used in section 80IC also, therefore, as far as interest received on margin money and interest received on other amounting re not entitled for deduction u/s 80IC and accordingly we confirm the action of the Assessing Of ficer and CIT(A) in this respect . As far as the amount received on foreign exchange fluctuation is concerned, though in case of M/s Ansysco Vs. ACIT(2015 (6) TMI 704 - ITAT CHANDIGARH) it was held that gain from Foreign Exchange Fluctuat ions was directly related to the business activity therefore assessee was entitled to deduction. However the details are not incorporated in the assessment order or in the impugned order, therefore, we set aside the order of Ld. CIT(A) and remit the matter back to the file of Assessing Officer with a direction that if the same relates to the business transact ion on Revenue account, then deduct ion may be allowed on this amount, otherwise the issue may be decided in accordance with law. As far as the issue regarding misc. income and sundry credit balance written back is concerned, this issue was not seriously pressed before us, therefore, action of the Ld. CIT(A) in respect of these two items are also confirmed. Late deposit to Provident Fund and ESIC - Held that:- As in case of CIT Vs. Nuchem [2010 (2) TMI 959 - PUNJAB AND HARYANA HIGH COURT] learly held that if amount have been paid before the due date of filing of return then such dues are allowable. However, we further find that dates of deposits are not available on record therefore we set aside the order of Ld. CIT(A) and remit the matter back to the file of AO with a direction to verify that if amount have been paid before due date of filing of return then the same may be allowed otherwise the issue should be decided in accordance with the law. We may also like to point out that if ultimately disallowance is made on this account then the profit of the assessee would increase and assessee would be entitled to increased deduction under section 80IC as consequences. Disallowance on interest has not been charged from partners - Held that:- Firstly there is no provision for charging of interest in the partnership deed and therefore assessee's firm was not bound to charge interest. Secondly since no interest have been allowed to the partners therefore overall balance of all the partners should have been examined and if such examinations is made then the overall balances in the capital account would be credit balance. Thirdly in any case assessee has already disallowed the sum of ₹ 12,00,000/- on this account. Therefore in our opinion there is no justification for this disallowance and accordingly we set aside the order of Ld. CIT(A) and delete the same. - Decided in favour of assessee. Eligible for deduction u/s 80IC on account technological know-how services - Held that:- The A.O. has also agreed and considered the sum of ₹ 15,00,000/- as not eligible for deduction u/s 80IC on account technological know-how services as agreed by the appellant subject to no penal action. The appellant also agreed for the said addition as income from other sources before the A.O. Since the offer for deduction of ₹ 15,00,000/- from eligible profits u/s 80IC was itself agreed by the appellant subject to no penal provision which the A.O. also agreed, therefore I do not find any defect in the addition made by the A.O. - Decided against assessee.

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• 2015 (6) TMI 724
  Transfer pricing adjustment - adjustment in the arm’s length price(ALP) of international transaction - selection of comparable - Held that:- M/S.Accel Transmatic Limited (seg.), Avani Cincom Technologies Ltd., Celestial labs Limited and KALS Infosystems Ltd. need to be excluded from the list of comparable as decided in ase of First Advantage Offshore Services Pvt.Ltd. Vs. DCIT IT [2012 (2) TMI 478 - ITAT BANGALORE ]. Avani Cincom Technologies Ltd. (‘Avani Cincom’)unusually high profit during the financial year 06-07. The operating revenues increased 63.03% which indicates that it was an extraordinary year for this company. Even the growth of software industry for the previous year as per NASSCOM was 32%. The growth rate of this company was double the industry average, thus accordinglr rejected Celestial Labs Ltd. company was basically/admittedly in clinical research and manufacture of bio products and other products, there is no clear basis on which the TPO concluded that this company was mainly in the business of providing software development services. We therefore accept the plea of the Assessee that this company ought not to have been considered as comparable. KALS Information Systems Ltd. t this company was developing software products and not purely or mainly software development service provider. We therefore accept the plea of the Assessee that this company is not comparable. Accel Transmatic Ltd. to be excluded from the final list of comparable companies for the purpose of determining ALP M/S.Ishir Infotech Ltd. is out-sourcing its work and, therefore, has not satisfied the 25% employee cost filter and thus has to be excluded from the list of comparables And Lucid Software Ltd.nvolved in the development of software as compared to the assessee, which is only into software services. omputation of the net margin for Mega Soft Ltd. Is therefore remitted to the file of the TPO to compute the correct margin by following the direction of the Tribunal in the case of Trilogy E-Business Software India Pvt.Ltd. [] M/S.Infosys Technologies Limited, Tata Elxsi Ltd. (Seg.) & Wipro Limited re not comparable companies in the case of software development services provider. M/S. E-Zest Solutions Ltd., Persistent Systems Ltd., Quintegra Solutions Limited and Third ware Solutions Ltd., this Tribunal in the case of 3DPLM Software Solutions Ltd. (2014 (12) TMI 612 - ITAT BANGALORE ) was pleased to hold that the aforesaid companies are not comparable with a company engaged in Software Development Services such as the Assessee. M/S.Helios & Matheson Information Technology Ltd., we find that the said company has been held to be not comparable with a software service provider like the Assessee . The AO is directed to compute the Arithmetic mean by excluding the aforesaid companies from the list of comparable. According to the learned counsel for the Assessee, if the submissions of the assessee are accepted, then the arithmetic mean of the comparables retained would be within the range of +/- 5% of the Assessee’s Net Margin. Computation of deduction u/s.10A - Held that:- Hon’ble Court in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] held that whatever is excluded from the export turnover should also be excluded from the total turnover for the purpose of computing deduction u/s.10A of the Act.

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• 2015 (6) TMI 723
  Transfer pricing adjustment - CIT(A) allowed partial relief to assessee - selection of comparables - improper application of the RPT filter by the CIT(A) as per revenue - Held that:- It is not in dispute before us that this Tribunal, in the cases of 24/7 Customer Pvt. Ltd. ( 2013 (1) TMI 45 - ITAT BANGALORE), Sony India Private Ltd. reported in (2008 (9) TMI 420 - ITAT DELHI-H ) and various other cases has taken a view that comparables having RPT of upto 15% of total revenues can be considered. In view thereof, the Revenue’s grievance on this issue as projected in ground No.2 has to be allowed. It is held that the CIT(A) ought to have adopted a threshold limit of 15% of the total revenue attributable to related party transaction as ground for rejecting comparable companies. Consequently it is held that comparable companies having RPT upto 15% of the total revenues alone can be excluded. CIT(A) rejected some of the comparable companies chosen by the TPO by applying related party transaction filter - Held that:- The filter of companies dealing in software products and abnormal profits owing to amalgamation of the companies during the relevant period thereby showing abnormal profits was applied to exclude Exensys Software solutions Ltd. Infosys Technologies Ltd., was excluded for reasons of high turnover and high risk profile. Satyam Computer Services Ltd., has to be excluded from the comparable companies for non-reliability of financial data as it was involved in financial scam as relying on Agnity India Technologies v. ITO [2010 (11) TMI 852 - ITAT DELHI ] . Thus CIT(A) rightly excluded Exensys Software Solutions Ltd., Infosys Technologies Ltd., and Satyam Computers Ltd., from the list of comparable companies. - Decided against revenue. Standard deduction of 5% of the arm’s length price allowed to the Appellant by the CIT(A) - Held that:- In view of the substitution of the Second proviso to Section 92C(2) of the Income-tax Act by the Finance (No.2) Act, 2009 t is held that if the difference between the arithmetic mean of the profit margins comparable companies ultimately retained and the profit margin of the Assessee is more than 5% than no deduction under the proviso to Sec.92C(2) of the Act could be allowed to an Assessee. Selection of comparables - Held that:- Having taken note of the difference between the two functions, the Assessing Officer ought not to have taken the companies which are into both the product development as well as software development service provider as comparables unless the segmental details are available. Even if he has adopted the filter of more than 75% of the revenue from the software services for selecting a comparable company, he ought to have taken the segmental results of the software services only. As seen from the annual report of Foursoft Limited which is reproduced at page 7 of the TPO’s Order, the said company has derived income from software licence also and AMCs. As far as Thirdware Software Solution Limited is concerned, we find from the information furnished by the said company that though the said company is also into product development, there are no software products that the company invoiced during the relevant financial year and the financial results are in respect of services only. Thus, it is clear that there is no sale of software products during the year but the said company might have incurred expenditure towards the development of the software products. As far as Flextronics Software Limited is concerned, the method adopted by the TPO to allocate expenditure proportionately to the software development services and software product activity cannot be said to be correct and reasonable. Wherever, the Assessing Officer/TPO cannot make suitable adjustment to the financial results of the comparable companies with the assessee company to bring them on par with the assessee, these companies are to be excluded from the list of comparables. Therefore, we direct the Assessing Officer/TPO to exclude these three companies from the list of comparables. TATA Elxsi Ltd.should be excluded from the list of comparable companies as not comparable with that of a software development service provider such as the Assessee. Gate Global Solutions Ltd., Flextronics Software Systems Ltd., L & T Infotech Ltd. and Infosys Ltd., will have to be rejected applying the upper limit of ₹ 200 crores turnover in view of the decision of the Tribunal in the case of Trilogy E-Business Software India Pvt.Ltd. [2013 (1) TMI 672 - ITAT BANGALORE] The AO is directed to compute the Arithmetic mean by excluding the aforesaid companies from the list of comparable. According to the learned counsel for the Assessee, if the submissions of the assessee are accepted, then the arithmetic mean of the comparables retained would be within the range of +/- 5% of the Assessee’s Net Margin Method of computation of deduction u/s.10A - Held that:- Taking into consideration the decision rendered by the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] it is held whatever is excluded from the export turnover should also be excluded from the total turnover for the purpose of computing deduction u/s.10A of the Act. - Decided in favour of assessee.

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• 2015 (6) TMI 722
  Treatment to Agricultural income - CIT(A) held that the expenditure incurred for earning agricultural income has to be set off against the income from agricultural operations and the resultant loss from agricultural operations was treated as the net disallowance u/s 14A - Held that:- The finding recorded by the ld. CIT(A) has not been controverted by the ld. D.R. by bringing any positive material on record, we, therefore, find no reason to interfere with the findings recorded by the ld. CIT(A) holding that the assessee had earned agricultural income of ₹ 8,01,175/-. With regard to lease rent expenditure of ₹ 26,59,140/- incurred by the assessee, the ld. CIT(A) has disallowed the same on the plea that the expenditure was incurred for earning exempt income. We also find that the lease rent was paid to the directors of the assessee company for leasing the lands to the assessee which deserves to be disallowed u/s 14A of the Act to the extend attributable to earning of exempt income. Revenue ground with regard to additional evidence accepted by the ld. CIT(A) without giving opportunity to the A.O is not acceptable as the A.O. has not given sufficient opportunity to the assessee, insofar as the documents were asked at the fag end of the assessment proceedings, therefore, the assessee could not furnish the same before the A.O. These documents were filed before the ld. CIT(A) who has sent all these documents to the A.O. for his remand report. The A.O. has examined all these documents and sends his remand report. Accordingly, there is no violation of Rule 46A.- Decided against revenue. Disallowance u/s 40(a)(ia) - assessee did not comply with the TDS provisions - expenditure incurred on ship management fees - CIT(A) deleted the addition - Held that:- A.O. has himself certified that the assessee company has complied with the applicable TDS provisions in respect of the expenditure amounting to ₹ 60.42 crores which were genuine and there was no contravention of TDS provisions while making payment for such expenses, we do not find any infirmity in the order of ld. CIT(A). We accordingly do not find any reason to interfere with the finding of ld. CIT(A) deleting the disallowance of expenses incurred on ship management.- Decided against revenue. Disallowance of losses from activity of horse breeding and owning and maintaining race horses - CIT(A) partly allowed the assessee’s claim - Held that:- The activity of breeding of horses is similar to that of poultry or piggeries etc. where the animals are bred for the purpose of selling. Section 74A is not applicable for such breeding activity. The ld. CIT(A) also found that during the remand proceedings, the A.O. reported that income and expenditure pertaining to breeding activity and racing activity were found to be captured under two different accounting codes in respect of both the assessment years. The ld. CIT (A) also found that an amount of ₹ 1.94 crores is recovered on account of livery expenses from other horse owners, who have utilized the stables and other services of the stud farm of the assessee. After considering the remand report and corroborative evidences filed before him, the ld. CIT(A) reached to the conclusion that only the business loss in respect of horse breeding activity amounting to ₹ 1,89,92,554/- was liable to be set off against business income whereas loss of ₹ 1,18,63,894/- is from horse racing activity not eligible for set off against business income in view of provisions of section 74A of the Act. The findings recorded by the ld. CIT(A) are as per material on record, thus we do not find any reason to interfere in the findings of ld. CIT(A) and accordingly we confirm the same. - Decided against revenue. Disallowance of lease rent paid to the directors of the company - Held that:- the assessee company paid lease rent to the directors. The lease rent was paid in respect of land used for agricultural income which is exempt. Since the expenditure was incurred for earning exempt income, the ld. CIT(A) has correctly disallowed the claim u/s 14A of the Act. Accordingly, the additional ground raised by the assessee is dismissed.

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• 2015 (6) TMI 721
  Non-granting of registration u/s 12A - the basic intention of the assessee company is to earn profit out of its activities and to make payment of dividend out of the same to the concerned persons / authorities - Held that:- As seen from the Memorandum of Association and Articles of Association filed by the assessee before us, the object of the assessee cannot be said that it is in the nature of general public utility and the objects stated therein make the assessee a commercial orginsation and there is no stipulation on utilization of income only for the purpose of charitable activities. The assessee being a commercial organisation just like any business entity engaged in the real estate business. The surplus funds generated by the assessee throughout various activities could be distributed as dividend and there is no restriction for declaration of dividend to the members of the assessee company as is evident from the Clause No. 99 of the Articles of Association. As the dominant object of the assessee was not charity, either its commercial activity carried on with profit motive and also there is no clause for application of income for charitable activities including relief to poor, education or medical relief and advancement of any other object of general public utility. There is nothing in this case which provides services to the mankind on charity basis. The argument of the learned counsel is not tenable because a charitable institution provides services for charitable purposes free of cost and not for gain. The object of the assessee is similar to activities performed by big developers, who are earning profit . If the registration is granted to the assessee u/s 12A of the Act, then, it will open pandora's box and everybody will claim exemption from tax, who are incidentally doing some charitable activities in providing parks or roads. The activities of the assessee is nothing but profit making activities for which it is taking money from general public and no charity activities are carried on for the public. Considering all these facts brought on record by the DIT(E), in our considered view, the assessee is not entitled for grant of registration u/s 12A of the Act. Being so, we do not find infirmity in the order of the DITE) in refusing to grant registration u/s 12A to the assessee and accordingly, the order of the DIT(E) is hereby confirmed dismissing the appeal of the assessee. - Decided against assessee.

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• 2015 (6) TMI 720
  Entitlement to benefit of deduction u/s. 54F - long term capital gain on sale of shares invested towards purchase of a flat - allegation of the AO that it is only a lease and not a purchase - Assessing Officer denied the deduction on the ground that the assessee has made the claim under wrong provision and the correct provision is Section 54F - CIT(A) allowed claim of deduction u/s. 54F issue as raised in additional ground - Held that:- Hon'ble Bombay High Court in the case of Pruthvi Brokers and Shareholders P. Ltd. (2012 (7) TMI 158 - BOMBAY HIGH COURT ) has held that an assessee is entitled to raise not merely additional legal submissions before the appellate authorities but is also entitled to raise additional claims before them. The appellate authorities have the discretion to permit such additional claims to be raised. The appellate authorities have jurisdiction to deal not merely with additional grounds, which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. The words "could not have been raised" must be construed liberally and not strictly. There may be several factors justifying the raising of a new plea in an appeal and each case must be considered on its own facts. In the instant case the assessee has already made a claim although under the wrong head. Therefore, we do not find any infirmity in the order of the Ld. CIT(A) allowing the claim of deduction u/s. 54F. Assessee is not the absolute owner of the property since he is a lessee and the lease is for a period of 999 years, we find this issue also stands decided in favour of the assessee by the decision of the Mumbai Bench of the Tribunal in the case of Mrs. Prema P. Shah (2005 (11) TMI 182 - ITAT BOMBAY-J) wherein held that the lease is valid for a period of 150 years, which is in perpetuity and as such, the assessee is as good as absolute owner of the property. In the instant case the lease is for a period of 999 years subject to renewal for further period of 999 years. Further, as per clause 26 of the lease agreement, the assessee enjoys all the rights, i.e. transfer, mortgage, sub-lease etc. Therefore, it cannot be said that the assessee is not the owner of the property. Amount of deduction to be allowed u/s.54F - we find it is an admitted fact that the assessee has not deposited the sale proceeds in the specified bank account till 31-03-2009. The assessee only made payment of ₹ 55,40,625/- till 31-03-2009 towards purchase of flat. Since, in the instant case admittedly the assessee has made payment of ₹ 55,40,625/- till 31-03-2009 which is the due date of filing of return u/s. 139(4), therefore, following the decision Commissioner of Income-tax-II, Chandigarh Versus Ms. Jagriti Aggarwal (2011 (10) TMI 279 - PUNJAB AND HARYANA HIGH COURT) we hold that the assessee is entitled to claim deduction u/s.54F only to the extent of ₹ 55,40,625/- as against ₹ 100,03,125/- allowed by the Ld. CIT(A). As in the instant case the assessee has utilized a part of capital gain towards purchase of flat which is not in dispute. Therefore, we are of the considered opinion that the assessee is entitled to deduction u/s. 54F to the extent of ₹ 55,40,625/- only. - Decided partly in favour of Revenue.

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• 2015 (6) TMI 719
  Addition of prior period expenses - CIT(A) deleted the addition - Held that:-In the facts of the present case there is no reference to any evidence having been considered by the CIT(A) to hold that the expenses stated to be incurred in June 2014 to August 2005 actually pertained to setting up some new business, reference there to is completely missing in the pleadings and the finding. Similarly what is the evidence to show that the specific venture was abandoned is also found missing. Nothing is brought out in the impugned order nor relied upon before us in support of the finding. Accordingly being of the view that the decisions while apply to facts which are yet to be settled, reference to the legal principles laid down therein would be of no relevance. Accordingly in view of the above detailed reasoning the impugned order is set aside and the issue is restored back to the file of the AO with the directions to decide the same afresh in accordance with law after giving the assessee a reasonable opportunity of being heard. - Decided in favour of revenue for statistical purposes. Additional liability due to foreign exchange fluctuations towards the capital cost of metallizer - CIT(A) upholding the illegal addition - Held that:- On a consideration thereof in the face of the arguments of the assessee that on facts, the CIT(A) has not appreciated the issue as it was never the case of the assessee that it is a revenue expenditure. The case of the assessee has always been that this is a loss on account of a capital asset and should be adjusted against the capital account. In the above mentioned factual background, we are of the view that in these peculiar facts and circumstances, it would be appropriate to set aside the impugned order and restore the issue back to the file of the AO to address the issues on facts afresh. The AO is hereby directed to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The arguments of the Ld. AR that issue should be decided on the principle that irrespective of the year the tax rate is the same cannot be accepted as relevant facts need to be addressed. - Decided in favour of assessee for statistical purposes.

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• 2015 (6) TMI 718
  Revision u/s 263 - CIT directing the A.O. to examine the issue that the lease rental incomes from shops/retail space owned by Ambience Hotels & Resorts Ltd. should not be assessed in the assessee’s hands but in the hands of Ambience Hotels & Resorts Ltd.- Held that:- It is now a established proposition of law that for invocation of the provisions laid down under sec. 263 of the Act, both the ingredients i.e. firstly the assessment order must be erroneous and secondly it must be prejudicial to the interest of revenue are to be examined. It appears from the assessment orders that taxability of ₹ 6,27,84,240 in the proper hand in view of the provisions of section 60 of the Income-tax Act, 1961 as well as Section 53A of the Transfer of the Property Act, has not been examined by the Assessing Officer as the issue was linked to both the assessees as it was to be taxed in one hand and effect thereof was to be given in the other hand. Thus, it can be said that in absence of examination/inquiry of the above aspect the assessment orders are erroneous as well as prejudicial to the interest of Revenue. When the learned CIT was setting aside the matter to the file of the A.O. for framing the assessment orders afresh as per the law after examining/making inquiry on the issue, he was not justified and a contradiction in his stand in directing the Assessing Officer to tax the lease income in the hands of the Ambience Hotel & Resorts and reduce the same from Ambience Developer & Infrastructure Pvt., especially when keeping in view the peculiar facts and circumstances of the case and in absence of examination/making inquiry by the A.O., it was a debatable issue as to in whose hand and under what head the lease income is to be taxed. The above findings of Learned CIT typed in bold to tax the lease income in the hands of M/s. Ambience Hotel & Resorts Ltd., and direction to the Assessing Officer to reduce the same income from M/s. Ambience Developers & Infra-structure (P) Ltd. are thus held invalid and are modified by deleting the same. - Decided partly in favour of assesse

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• 2015 (6) TMI 717
  Transfer pricing adjustment - selection of comparable - Held that:- Celestial Biolabs Ltd., Infosys Technologies Ltd., Tata Elxsi Ltd., Wipro Ltd., Kals Information Systems Ltd., Persistent Systems Ltd., Avani Cimcon Technologies Ltd., Thirdware Solutions Ltd., Lucid Software Ltd., Quintegra Solutions Ltd., E-Zest Solutions Ltd. and Softsol India Ltd. are to be excluded from the list of final comparables as to be functionally dissimilar with that of assessee. See case of 3DPLM Software Solutions Ltd.[2014 (12) TMI 612 - ITAT BANGALORE] - Decided in favour of assessee.

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• 2015 (6) TMI 716
  Eligibility to exemption to the assessee u/s. 80P(2)(a)(i) - CIT(A) allowed claim holding that the assessee is a cooperative society and not a co-operative bank and therefore the provisions of section 80P(4) of the Act are not applicable - Held that:- The Hon’ble Karnataka High Court in the case of CIT Vs. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha, Bagalkot, [2015 (1) TMI 821 - KARNATAKA HIGH COURT] has held that a credit co-operative society giving credit to its members is not hit by the provisions of Sec.80P(4) of the Act as it does not possess a licence from RBI to carry on business and is not a cooperative bank. The object of introducing Sec.80P(4) of the Act was not to exclude the benefit extended u/s.80P(1) to co-operative society carrying on the business of providing credit facilities to its members. - Decided in favour of assessee.

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• 2015 (6) TMI 715
  Penalty Order u/s. 271(1)(b) r.w.s. 274 - Held that:- In the present case assessee has never been put to the notice to explain as to why penalty should not be imposed under section 271(1)(b) as there was only an indication in the notice issued under section 142(1) that the failure of the assessee to attend the proceedings on 12/2/2013 would entail the assessee for levy of penalty under section 271(1)(b) of the Act. But that cannot be said to be fulfillment of the requirement of section 274(1) as the same require that assessee should be given reasonable opportunity of being heard and fulfillment of such requirement is absent in the present case. In view of above discussion, we hold that Ld. CIT(A) has committed an error in upholding the impugned penalty in respect of all these years. We delete the impugned penalty in all the years. - Decided in favour of assessee.

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• 2015 (6) TMI 714
  Penalty Order u/s. 271(1)(b) r.w.s. 274 - Held that:- In the present case assessee has never been put to the notice to explain as to why penalty should not be imposed under section 271(1)(b) as there was only an indication in the notice issued under section 142(1) that the failure of the assessee to attend the proceedings on 12/2/2013 would entail the assessee for levy of penalty under section 271(1)(b) of the Act. But that cannot be said to be fulfillment of the requirement of section 274(1) as the same require that assessee should be given reasonable opportunity of being heard and fulfillment of such requirement is absent in the present case. In view of above discussion, we hold that Ld. CIT(A) has committed an error in upholding the impugned penalty in respect of all these years. We delete the impugned penalty in all the years. - Decided in favour of assessee.

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• 2015 (6) TMI 713
  Long Term Capital Gain on sale of shares of BSE Ltd. - revised computation submitted by the assessee during assessment proceedings - Held that:- The CIT(A) has accepted the assessee’s revised computation as per section 55(2)(ab) of the Act. The Assessing Officer had refused the very relief by quoting the case law of Goetze (India) Ltd. (2006 (3) TMI 75 - SUPREME Court) and also the fact that the time limit for filing revised return had already elapsed. This is not the Revenue’s case that the assessee is not otherwise entitled for the relief in question under the provisions of the Act in seeking the impugned recomputation. It only contends that once there was no time left for filing a revised return, the impugned relief ought not to have been granted. A perusal of the case law hereinabove itself clarifies that the same does not impinge upon the jurisdiction of appellate authorities under the Act. Therefore, we refuse to agree with the Revenue’s mere technical plea and affirm the CIT(A) findings under challenge. - Decided against revenue.

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• 2015 (6) TMI 712
  Difference in valuation of closing stock - CIT(A) deleted addition - Revenue argued that the assessee company had not shown any finished or sorted material in the return of income - Held that:- The assessee has placed a paper book containing its audited annual accounts, taxaudit report, certified valuation of stock by expert Lab Technician, invoices for the purchase of raw materials @ ₹ 275/- per MT. Page 32 of the paper book describes sorting of manganese ore in four different rate-wise categories. The assessee has also placed on record all details of raw and sorted material at page 34 of the paper book with all due certificates. There is also due matching of the quantity of the manganese ore before and after being sorted out. The Revenue fails to dispute contents thereof. We draw support from the above said record and hold that the assessee has placed overwhelming material in support of its claim of sorting of the raw material quality wise and valuing the same at cost or market price. We uphold the CIT(A)’s findings in these circumstances and reject the Revenue’s ground. - Decided in favour of assessee.

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• 2015 (6) TMI 711
  Unexplained cash credits u/s.68 - unsecured loans - Held that:- The Revenue strongly refers to the Assessing Officer’s findings. However, we tend to disagree with the same. The creditors’ bank statements maintained with the United Bank of India bearing no. 0521010049760 and 49757 duly proved these loan payments as well as repayments thereof. For instance, the assessee obtained sums of ₹ 4 lacs, ₹ 1 lac and ₹ 2,90,000/- on 27, 28 & 29th March, 2006; respectively. Thereafter, it transferred sums of ₹ 4 lacs and ₹ 3,90,000/- by the very banking channel in the account of Shri Meena/individual. Similarly, the HUF’s bank statement reveals the assessee to have obtained a sum of ₹ 4 lacs on 28.3.2006 and repaid the same on 28.6.2006. The Revenue is unable to controvert this factual position. It refers to the common address of the assessee as well as that of Shri Meena (supra). There is no quarrel about the same. However, the fact also remains that there can be any number of assessees under a single roof. This itself cannot be a ground to invoke section 68 of the Act in absence other corroborative factors. Be that as it may, once creditors’ identity, mode of payment and repayment, assessee’s books of accounts proved the impugned credit transactions, we do not find appropriate to look through the circumstances. The hon’ble jurisdictional high court in Pratapbhai Virjibhai Patel vs. ITO [2014 (3) TMI 152 - GUJARAT HIGH COURT] has upheld a co-ordinates bench order in ITO vs. Counter force [2010 (7) TMI 831 - ITAT AHMEDABAD] deleting a similar addition on the basis of repayment of the impugned credits and supportive ledger account. We reiterate that facts of the present case also do not seem different than those decided by their lordships. Thus when there is no dispute about identity of the creditors, their pan cards, copy of income tax returns, balance sheet, profit and loss accounts are on record along with their cross objections, such an addition does not hold ground. Thus we delete the impugned addition of unexplained cash credit u/s.68 amounting to ₹ 11,90,000/. - Decided in favour of assessee.

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• 2015 (6) TMI 710
  Disallowance of depreciation on the motor car - Held that:- For all practical purposes the car was owned by the company. The expenses have been debited in the accounts of the company. A similar issue had come up in the case of CIT vs. Basti Sugar Mills Co. Ltd. (2002 (5) TMI 27 - DELHI High Court) wherein upheld the allowance of depreciation on the car which was not registered in the name of company but used for the business purposes of the company. Also see CIT vs. Navdurga Transport Co. (1997 (9) TMI 35 - ALLAHABAD High Court). Respectfully following these two decisions, we are of the view that assessee has established that for all practical purposes the car was owned by the company and it was used for the business purposes of the company, therefore, the depreciation is admissible to the assessee on the car. - Decided in favour of assessee. Treating the business loss suffered on sale of basement office as a short-term capital loss and allowed the same to be carried forward by CIT(A) - Held that:- Assessee has never accounted this asset as a stock in trade in the accounts, therefore, it can never claim as business loss on sale of the office premises which is otherwise a capital asset. We do not find any error in the finding of ld. CIT(A). - Decided against assessee. Failure to deposit the PF contribution collected from the employees within the due date provided in the P.F. Act - Held that:- This issue is covered against the assessee by the decision of Hon'ble Jurisdictional High Court in the case of G.S.R.T. Corpn. reported in [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein held that if assessee fails to deposit employees' contribution within the due date provided under the P.F. Act then assessee will not be entitled for deduction. Accordingly, the ld. first appellate authority has rightly confirmed the disallowance. - Decided in favour of revenue. Lease rental income earned from the immovable property - business income OR income from house property - Held that:- The main activity of the assessee was not earning rental income rather it was an activity of trading in the flats. Rental was an incidental income. Similar are the facts of other cases. The main activity of the assessee was not the earning of rental income. The Income-tax Act does not prohibit carrying out earning of rental income as a business income in an organized manner if that be so the income will be assessed as a business income and not under the head 'house property income'. The ld. CIT(A) is not justified in changing the head which was accepted by the AO. In view of the above, the directions of the ld. CIT(A) for taking the remedial action in all other Assessment Years where it is possible as per law is concerned, these directions will automatically be extinguished because rental income in the case of the assessee is to be assessed as business income. Depreciation claim disallowed - Held that:- Ajarmar Flats were purchased by the assessee before 30th September, 2006. Out of 17 flats, 9 flats were actually let out, exhibiting the fact that the asset was ready for use in the business. It is construed that assets were used passively for the purpose of business and, therefore, depreciation is admissible to the assessee. We direct the AO to grant depreciation on the value of these flats. As far as the properties purchased at Eternia Complex is concerned, these purchases were made on 31st March, 2007 i.e. last day of accounting year and the assessee could not bring any evidence on the record demonstrating that these flats were ready for use or giving them on rent. There is no evidence of this on record. Thus there cannot be any passive user of these flats. The assessee is not entitled for depreciation on these assets. We confirm the view of AO on this point - Decided partly in favour of assessee.

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• 2015 (6) TMI 709
  Invoking the provisions of Section 172 r.w.s. 163 - non affording any opportunity of hearing - Held that:- Scheme of taxation 172 lays emphasis the tax object, i.e. the activity which is to be taxed, and not the tax subject, i.e. the person who is to be taxed. Therefore, when a person assumes liability, by filing return under section 172(3) in respect of tax liability under section 172(2), such a liability is qua the taxability of income in respect of the amount paid or payable on account of carriage of passengers, livestock, mail or goods on the ship. The scheme of this Section, in our humble understanding, does not allow such a person to choose being accountable in respect of a particular person, in respect of owner of the ship or in respect of charterer of the ship. If he assumes the liability under section 172(3), it is in respect of the income earned by the activities of the ship. The assessee's claim that he is only responsible for the tax liability of the owner, and not the charterer, is only to be stated and rejected. Having said that, we may also point out that the Assessing Officer himself has assessed the UK based company, i.e. owner of the ship and not the charterer of the ship. By implication, thus, he accepts that the income was earned by the UK based company, and, if that be so, the provisions of Article 9(1) of the Indo UK tax treaty unambiguously provides that "income of an enterprise of a Contracting State (i.e. Tramp Shipping Ltd. UK) from the operation of ships in international traffic shall be taxable only in that State (i.e. UK)". In this view of the matter, and in view of the fact that it has not been the case of any of the authorities below that the income belonged to the charterer based in Bahamas and not the owner based in UK, we are unable to see any legally sustainable reasons to decline the benefit of Article 9 to the assesse before us. The grievance of the assessee must, therefore, be upheld. what would constitute a reasonable time limit? - Held that:- Subsequently with effect from 1st April 2007, the statute itself has considered the period of nine months from the end of the financial year, in which return under section 172(3) is filed, as reasonable time limit within which assessment order under section 172(4) is to be framed. When this time limit is statutorily treated as a reasonable time limit for the returns filed after 1st April, 2007, in our considered view, this time limit can also be treated as a reasonable time limit for the returned filed prior to 1st April 2007 as well. We do so. The assessment under section 172(4) was framed on 29th March 2005, whereas the ship had left Indian port on 29th October 2001. The assessment was thus framed almost three years after the end of the relevant previous year. Viewed in this perspective, the impugned order under section 172(4) was indeed barred by limitation. For this reason also, the assessee must succeed in this appeal. - Decided in favour of assessee.

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• 2015 (6) TMI 708
  Disallowance u/s 40(a)(i) - 'Export Sales Commission' payments made to the non resident u/s.195 - CIT(A) deleted the disallowance - whether the assessee’s commission payments made to its overseas agents in lieu of procuring export orders amount to ‘fee for technical services’ or not u/s 9(1)(vii)? - Held that:- Section 9(1)(vii)(b) has to be taken as part of section 9(1)(vii). Once the former provision stipulating fee for technical services itself is not applicable, latter limb cannot be invoked in isolation. We make it clear that there is no evidence placed on record proving any ‘technical services’ element in procurement of export orders. It is evident that the assessee’s overseas export agents have merely collected export orders in lieu of direct remittances. We find that the hon'ble jurisdictional high court in CIT vs Faizan Shoes Pvt. Ltd. [2014 (8) TMI 170 - MADRAS HIGH COURT] has held in identical circumstances that such an export commission payment does not amount to ‘fee for technical services’. The Revenue heavily relies on the case law of Transmission Corporation of Andhra Pradesh vs CIT - [1999 (8) TMI 2 - SUPREME Court ]. The hon'ble apex court has itself distinguished the said case law in GE India Technology Cen. P. Ltd vs CIT [2010 (9) TMI 7 - SUPREME COURT OF INDIA] in clear terms that section 195 would only apply if the payment in question is taxable as income in India and not otherwise. The said issue stands already decided against the Revenue. - Decided in favour of assessee.

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• Customs

• 2015 (6) TMI 743
  Penalty upon CHA and CFS u/s 114 - smuggling of red sanders - Misdeclaration of goods - Confiscation of goods - Held that:- Xharges levelled against the CHA is that he has failed to discharge the functions as a CHA and no other evidences have been brought out by the adjudicating authority to establish the role of the appellant in the attempt of smuggling of red sanders. By respectfully following the Hon ble High Court s decision (2015 (1) TMI 1032 - MADRAS HIGH COURT), I hold that penalty imposed on the appellant under Section 114 of the Customs Act is not sustainable. Impugned order in respect of this appellant is set aside. Appellant was appointed by the Govt as a Container Freight Station (CFS) in terms of provisions of Customs Act read with public notice issued by the Customs. It is abundantly clear that being a CFS as custodian they are responsible for the receipt, storage and clearance of import and export cargo in their CFS and equally responsible for safety and security of the cargo transshipped from CFS to the gateway port. It is one of the main conditions of appointing the appellant as custodian CFS which is evident as per the bond executed by the appellant before Customs. It is established beyond doubt that the sealed containers were tampered in transit and the goods were replaced with Red Sanders before the container reached the gateway port. Their contention that they are not responsible for change of cargo after exit from CFS is not justified and not acceptable. As per the terms and conditions of Custom House Public Notice No.5/2002 dt. 8.1.2002, it is clearly stipulated that the custodian (CFS) is responsible for any loss/damage/pilferage of cargo/container so moved. Therefore, they cannot plead ignorance. The CFS being custodian of cargo, he is responsible till delivery of the containers to the port. It is pertinent to state that the Govt. has entrusted the work of handling of cargo to a CFS only with a faith that Custodian will perform his duties diligently and in a dedicated manner. Prior to the concept of CFS entire operations of cargo clearance were done only at the port itself which is handled by Port Trust Authority appointed under Port Trust Act. - The role of CFS as custodian of cargo cannot be equated with the role of Custom House Agent and the CFS obligations and roles are entirely different from the role of CHA. For physical loss, no mens rea is required Appellant failed to deliver the sealed container from their CFs safely to the gateway port. Therefore, the adjudicating authority had rightly imposed penalty under Section 114 of the Customs Act. However, taking into overall facts and circumstances of the case, the penalty imposed on the appellant is reduced from ₹ 5 lakhs to ₹ 2,50,000 - Decision in the case of CC Vs Bansal Industries [2006 (9) TMI 58 - HIGH COURT, MADRAS] and Chairman, SEBI Vs Sri Ram Mutual Fund [2006 (5) TMI 191 - SUPREME COURT OF INDIA] followed - Decided partly in favour of appellants.

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• 2015 (6) TMI 742
  Exemption in terms of Notification No.108/95-CE. - Refund claim - Funding by World Bank - Held that:- Problem was being faced by the appellant at various projects and some of matters went in appeal before the Commissioner at other places and were decided in their favour. Revenue challenged the said decisions before the Tribunal. We find that Tribunal vide [2013 (4) TMI 707 - CESTAT NEW DELHI] rejected the appeals filed by Revenue. Another decision in the appellant’s own case is reported as Power Grid Corporation of India Ltd. vs. C.C., Chennai - [2008 (10) TMI 92 - CESTAT - Chennai]. - By following the same, we set aside the impugned order - Decided in favour of assessee.

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• 2015 (6) TMI 732
  Effective date and time of effective Rate of Duty - Effect of notification - bill of entry was filed filed on 03.08.2001 - notification was sent for publication after the normal office hours, i.e., much after 5 p.m. on 03.08.2001. - Held that:- For bringing the notification into force and make it effective, two conditions are mandatory, viz., (1) Notification should be duly published in the official gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In the present case, admittedly, second condition was not satisfied inasmuch as it was offered for sale only on 06.08.2001, as it was published on 03.08.2001 in late evening hours and 04/05.08.2001 were holidays. - Though the notification may have been published on the date when the goods were cleared, it was not offered for sale by the concerned Board, which event took place much thereafter. Therefore, it was not justified and lawful on the part of the Department to claim the differential amount of duty on the basis of said notification. - Decision in the case of 'Harla v. The State of Rajasthan' [1951 (9) TMI 37 - SUPREME COURT] followed - Decided against Revenue.

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• 2015 (6) TMI 731
  Levy of anti dumping duty - designated authority found that Aniline originating in, or exported from, European Union was exported to India below normal value, resulting in dumping - The finding arrived at applying the best judgment assessment - Tribunal set aside the anti dumping duty - Held that:- It is a case where the Designated Authority applied the provisions of Rule 6(8) of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as 'Rules') and determined the anti-dumping duty on the basis of "best judgment assessment". There is no dispute that in those cases where the noticee does not cooperate in the inquiry or furnishes the requisite material, it is open to the Designated Authority to invoke Rule 6(8) and determine the normal value of the product on the basis of "best judgment assessment". This is so held in the case of Designated Authority v. Haldor Topsoe [2000 (7) TMI 77 - SUPREME COURT OF INDIA]. However, while carrying out the "best judgment assessment", it is necessary for the Designated Authority to base its decision on the relevant considerations/ material. Customs, Excise and Gold (Control) Appellate Tribunal has found many loopholes in the exercise carried out by the Designated Authority which prompted the CEGAT not to accept the valuation of goods arrived at by the orders of the Designated Authority - there is no merit in this appeal as we are in agreement with the aforesaid analysis by the CEGAT in the impugned order - Decided against revenue.

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• 2015 (6) TMI 730
  Import of certain medical equipments - Exemption from payment of Customs duty under the Notification No. 64/1988-Customs - Held that:- Tribunal in certain cases has directed the Commissioner to consider the applicability and admissibility of the said Notifications to the assessees and if the notifications are applied the appellant-assessee would only be liable to pay the duty as per the rate fixed by the Central Government at the relevant time. Without entering into the justifiability of the submission, we only direct the Commissioner to consider the rate of duty leviable on the assessee in the backdrop of aforesaid Notifications - condition was imposed for deposit of 40% as a condition to afford opportunity of hearing. - The appellant shall make an application in this behalf within a period of two months along with deposit of 40% of the duty. On making of this application with the deposit, the same shall be considered by the Commissioner within a period of six months. - Decided conditionally in favour of assessee.

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• Corporate Laws

• 2015 (6) TMI 729
  Charges of oppression and mismanagement - Section 397, 398 read with Sections 402 of the Indian Companies Act, 1956 - Several changes in the shareholding pattern and in the composition of the Board of Directors of the Company from time to time by adopting illegal means and without following the provisions of the Companies Act, 1956 - Unexplained delay and lathes in filing application - Held that:- I have come to the conclusion that this company petition is not a bonaflde petition. According to the Petitioners' own case, the alleged acts of oppression and mismanagement were committed in the year 1998-1999. On perusal of the petition, it is further noted that various criminal cases including that of complaints filed under Section 138 of the Negotiable Instrument Act in the year 2000, were filed against the Respondent Nos.2 and 3 with respect to the events and acts since beginning from 1998-1999 purportedly committed by the Respondent No.1. Therefore, it cannot be said that the Petitioners were not aware of these acts. Even, according to the Petitioners' own case, they have also filed a civil suit, bearing Suit No.595 of 2011, in the Court of Civil Judge, Sr. Division, Baroda against the Respondent No.2 and two others to whom the Respondent No.2 has illegally sold the Company's land by misusing forged and fabricating documents. Furthermore, as is seen from the reliefs clause of the petition, the petitioners have sought cancellation of various Returns filed by the Company with the Registrar of Companies in the year 2010 and 2011. This petition came to be filed on 18/07/2014. However, the Petitioners have not offered any sound and convincing reason as to why they approached the CLB after such inordinate lapse of time. It appears that the Petitioners have filed this Petition with ulterior objective with respect to the grievances arising out of the MOU mentioned hereinbefore. On this ground also, the Petition deserves to be dismissed.Petition suffers from acute unexplained delay and lathes. Moreover, the Petition has been filed with collateral purpose. - Application not accepted & accordingly disposed off.

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• Service Tax

• 2015 (6) TMI 749
  Denial of refund claim - Bar of limitation - Held that:- Following the ruling of the Division Bench of this Tribunal in the case of KPIT Cummins Infosystems Ltd. (2013 (7) TMI 124 (CESTAT-Mum)),and Hon'ble M.P. High Court in STI India Ltd. (2008 (10) TMI 246 - HIGH COURT OF MADHYA PRADESH AT INDORE), I hold that limitation will not apply for claim of refund of CENVAT Credit in case of export of service in terms of Section 11B of the Central Excise Act read with Rule 5 of the Cenvat Credit Rules. Further, it is held that the relevant date, if any, for the purpose of Section 11B for refund of CENVAT Credit in case of export of service will be one year from the date of receipt of remittance for the services rendered to the recipient of service outside India. - The adjudicating authority is directed to grant refund other than or rejected amount for non-production of input invoices - Decided in favour of assessee.

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• 2015 (6) TMI 748
  Denial of CENVAT Credit - Belated service tax registration - Held that:- Since the eligibility of the appellant to the cenvat credit on the input services has not been disputed by the Department and the only ground taken for disallowance is on account of non-registration of the service provider, I am of the considered opinion that the same is not a valid ground for disallowance of the benefit of refund, to which, the appellant is legally entitled to. - in absence of a statutory provision prescribing the condition that registration is mandatory, the authorities cannot take the view that the assessee shall not be entitled to the benefit of refund. I also find that placing reliance on the said judgment of the Hon’ble Karnataka High Court, this Bench of the Tribunal in the case of M.L. Outsourcing Services (Supra) has allowed the cenvat credit by holding that registration of premises is not necessary for claiming the cenvat credit. Denial of refund benefit on the courier service, without discussing the nature of utilisation of such service by the service provider cannot be a defensible ground to deny the benefit of refund, especially in view of the fact that the output service has been exported by the appellant. - appellant is entitled for refund of service tax on the disputed input services and accordingly, I set-aside the impugned order - Decided in favour of assessee.

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• 2015 (6) TMI 747
  Denial of refund claim - Input services used in Export of goods - Notification 41/2007-ST. - Held that:- It is very clear that the refund is payable on the taxable services which the exporter receives and uses for export. Further it has been clarified that the procedural violation by the service provider in the instant case the service provider is registered under Business Support Service or Business Auxiliary Service, (as the case may be) needs to be dealt with separately, independent of the process of refund. In other words, the procedural lacunae should not come in the way in granting substantial benefit which has been provided under the notification, which is - Central Board of Excise and Customs has clearly clarified that these services, which are rendered for the export of goods, refund is eligible under Notification 41/2007-ST. The only ground of appeal which has been raised by the departmental authorities is that the said services would not fall under the categories listed under Notification 41/2007-ST. In our considered view, the issue is no more res integra as the hon ble High Court of Gujarat in the case of Commissioner of Central Excise vs. AIA Engineering Pvt. Ltd. [2015 (1) TMI 1044 - GUJARAT HIGH COURT], on similar situation has held in favour of the assessee. This Tribunal in the case of Commissioner of Central Excise, Belapur vs. Pratap Re-Rolling Pvt. Ltd. [2014 (9) TMI 814-CESTAT MUMBAI] has held that the assessee is eligible for refund relying upon the same Board circular. - Decided against Revenue.

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• 2015 (6) TMI 741
  Denial of refund claim - Classification of service - Consulting Engineers Service or Maintenance or Repair Service - Difference of opinion - matter is placed before the Hon'ble President for reference to the Third Member on the following points:- (i) Whether under the facts and circumstances, software will be treated as 'goods' w.e.f. 9.7.2004 in view of clarification vide Ministry of Finance, Department of Revenue's letter F.No. 256/1/2006-CX.4 dated 7.3.2006 read with Circular No. 81/2/2005-Service Tax, which provides that service tax is applicable on 'maintenance or repair of software service' under Section 65(105)(zzg) and also in view of ruling of the Hon'ble Supreme Court in the case of TCS (supra), wherein it was held that software is goods, the appellant have provided taxable services under Section 65(105) (zzg) read with Section 65(64) i.e. 'management, maintenance or repair', being services (i) maintenance of software, (ii) testing services, (iii) re-engineering services under Section 65(105)(r), (iv) consultation and management in respect of ERP software implementation, and accordingly entitled to refund, as claimed, the services being admittedly exported. And As the appellant have rendered taxable services under Section 65(105)(zzg), the appellant have rightly availed CENVAT Credit under Rule 5 of Cenvat Credit Rules, 2004 as held by Member (Judicial). Or 1) Whether refund of Cenvat Credit under Rule 5 of the Cenvat Credit Rules is available when Rule 3 permitted credit on input services only to provider of taxable services. 2) Whether output services provided by the appellant are covered under the taxable service of "Maintenance or Repair" when the activity involved development and designing also of the software. 3) When the Commissioner (Appeals) did not examine all the contracts in order to decide whether the activity is of 'maintenance or repair' only, should not the case be remanded back to him to enable him to examine all the contracts before arriving at a decision on the issue at 2 above.

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• 2015 (6) TMI 740
  Valuation - whether during April 2003 to September 2006 distribution of free of recharge voucher attracts service tax liability or otherwise despite the fact that the recharge voucher are given free of cost to the dealers as consideration for commission. - Held that:- Appellant is discharging the service tax liability under the category of "Telephone Services" on an amount received by them from distributors/dealers for the sale of prepaid SIM Cards; the SIM Cards are sold to the distributors/dealers on MRP and in lieu of the commission payable to them, appellant issues recharge vouchers to that amount which is commission, as free of cost. It is also undisputed that the dealers have recovered the amount as sale of such recharge vouchers from the ultimate subscriber/customer. Value of any taxable service shall be gross amount charged by the service provider for such services rendered by him. In the case in hand, during the relevant period, the appellant herein being service provider has discharged the service tax liability on the prepaid SIM Cards sold by them to the distributors/dealers. The sale of such prepaid SIM Cards on the MRP value is undisputed and discharge of service tax liability for services rendered on such sale is also accepted by revenue. It is to be noted that the recharge voucher are distributed free of cost, appellant has not received any amount towards the recharge voucher, though the distributors/dealers have sold the recharge vouchers. In our view distribution of recharge voucher fee of cost to the distributors/dealers would in a way amount to giving commission to the dealer for the transactions of sale of prepaid SIM Cards for the appellant. It can also be noticed that during the relevant period the Explanation as per the Section 67 of Finance Act, 1994 also do not indicate inclusion in that gross value of any cost towards free distribution made by the service provider. - impugned order is unsustainable and is liable to be set aside - Decisions in the cases of BPL Mobile Cellular (2007 (6) TMI 107 - CESTAT, CHENNAI) and Tata Tele Services Ltd. (2015 (4) TMI 80 - CESTAT MUMBAI) followed - Decided in favour of assesee.

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• 2015 (6) TMI 739
  Outdoor catering service - whether the appellant during the relevant period 10.9.2004 to 31.7.2009 would be covered under the service tax net under the category of outdoor catering service or otherwise - Held that:- A person who supplies directly or indirectly any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose of occasion, is a "caterer". - Appellant is a separate entity in the eyes of law and engages various persons for preparation of food, though, in the premises of their client and also engages different personnel for serving the food. This would indicate that the appellant has not engaged himself in preparing food and serving the same to the employees of Alfa Laval (India) Ltd., though the employees of Alfa Laval (India) Ltd., are the members of the appellant co-operative society. On perusal of the agreement entered by the appellant with Alfa Laval (India) Ltd., we find that Alfa Laval (India) Ltd., had decided to engage specialized services in respect of catering services for their employees and appellant's credential was considered, having demonstrated their expertise in the said activity with their own trained personnel and having offered to undertake the activities relating to the catering service on contract basis, contract was awarded to appellant. On such clear-cut preamble to the contract entered by the appellant with Alfa Laval ((India)) Ltd., appellant cannot claim that they are not provider of the catering service. - reason to interfere with the impugned order. The first appellate authority has already set aside the penalties imposed on the appellant and the Revenue is not in appeal against such order. Accordingly, in the facts and circumstances of the case, the impugned order is upheld - Decision in the case of Indian Coffee Workers Co-op Society Ltd. [2013 (10) TMI 343 - CESTAT NEW DELHI] followed - Decided against assessee.

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• Central Excise

• 2015 (6) TMI 746
  Benefit of Notification No.45/2010-ST dated 20/07/2010 - Applicant executed Civil Construction Foundation Work and Erection of Power Transmission and Sub-Station for Tamil Nadu Electricity Board - Held that:- Tribunal in the case of K. Shanmugavelu Vs Commissioner of Central Excise reported in [2014 (7) TMI 936 - CESTAT, Chennai] set aside the demand of tax for the period May,-06 to May,-07 relating to civil structure to facilitate transmission of electricity. In the present appeal, we do not find any clear finding on the construction of sub-station of Tamil Nadu Electricity Board. Hence, it is appropriate, the matter should be examined by the Adjudicating authority in the light of the Exemption Notification. Accordingly, we set aside the impugned orders. Matter is remanded back to the Adjudicating authority - Decided in favour of assessee.

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• 2015 (6) TMI 745
  Simultaneous exemptions under notification no.29/2004-CE, dt. 09.07.2004 as amended and also notification no.30/2004-CE as amended - Held that:- Decision in the case of M/s. Arvind Ltd. and M/s. Arvind Polycot Ltd. Vs. CCE, Ahmedabad-iii [2014 (6) TMI 271 - CESTAT - Ahmedabad] - impugned order in this case is liable to be set aside - Decided in favour of assessee.

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• 2015 (6) TMI 744
  Denial of CENVAT Credit - whether the appellant is eligible for CENVAT credit of service tax paid on Outdoor Catering Service, Canteen Service and service tax paid on Printing and Stationery expenses - Held that:- appellant is eligible for the benefit of CENVAT credit. As regards Printing and Stationery, the learned consultant submits that the Printing and Stationery expenses relate to printing of job cards etc for use in the factory. I find that in respect of these services credit should be allowed. - Decision in the case of Resil Chemicals Pvt. Ltd. Vs. CCE, Bangalore-I [2013 (11) TMI 21 - CESTAT-Bang.] and Dr. Reddy’s Lab Ltd. Vs. CCE, Hyderabad [2009 (9) TMI 287 CESTAT, Bang.] followed - Decided in favour of assessee.

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• 2015 (6) TMI 737
  Waiver of pre dpeosit - Annual Capacity Production - compound levy scheme on re-rolling mills - Held that:- Decision in the case of [2015 (6) TMI 587 - CESTAT CHENNAI] followed - impugned order confirming the demand is set aside and the matter is remanded to the original authority with the direction to follow the directions ordered in Tribunal s Final order dated 24.02.2015 and decide on merits after determining the ACP. - Decided in favour of assessee.

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• 2015 (6) TMI 736
  Levy of Automobile Cess on tractors - Whether Cess would be applicable on the Tractors cleared by the appellant during the period of Jun 2001 to Dec 2001 - Held that:- Appellant are liable to pay @18% even though in the demand notice it was proposed to be recovered under Sr. No. 7 while tractors are more specifically covered under Sr. No. 10. We observe that even Sr. no. 7 is wide enough to cover the said goods. However, since tractors are specifically listed in Sr. No. 10, these will be covered by Sr. No. 10. However the rate of Cess is same viz. 1/8% and will not make any difference in the quantum of demand and accordingly we upheld the demand. - penalty has also been imposed under Rule 173Q of Central Excise Rules, 1944 on the appellant - Decided partly in favour of assessee.

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• 2015 (6) TMI 735
  Evasion of duty - clandestine removal of goods - Imposition of penalty - Held that:- Role of Shri V K Gupta as described in para 4.301 and 4.302 of the impugned order is not covered by the activities enumerated in rule 209A of Central Excise Rule 1944/ Rule 26 of the Central Excise Rule 2001/02 for which penalty is attracted and similarly the Role of Shri VK Gupta is also not covered by the activities enumerated in section 112(b) of the Customs Act 1962 which would attract penalty. Shri VK Gupta has not acquired possession of or has not dealt with any excisable goods which he knew or had reason to belief were liable for confiscation and similarly he has not acquired possession of or has sold or was involved in dealing with any imported goods which he knew or had reason to belief were liable for confiscation. In view of this we hold that the provisions of Rule 209A of Central Excise Rules 1944/ Rule 26 of the Central Excise Rule 2001/2002 are not attracted, and hence, penalty imposed on him is not sustainable. For the same reason, penalty imposed on him under section 112(b) of the Customs Act, 1962 is also not sustainable. Penalty on other appellants is also set aside - Decided in favour of assessee.

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• 2015 (6) TMI 734
  Denial of CENVAT credit - credit on ASTM, shapes and sections, joists, MSI beam, MS angle, channel, welding rods and black sheet as capital goods - items do not fall under the definition of Capital goods as per Rule 2A of the Cenvat Credit Rules, 2004 - Held that:- Cenvat credit on the items in question was availed by the appellant during the period 2006-2007 up to 15.2.09 and in their show cause notice, it has been recorded that appellant vide their letter dated 3.3.2010 contended that the Cenvat credit on the subject goods is admissible to them as input of capital goods under the category of input of capital goods have been used for supporting erection of plant and machinery. Further, I find that show cause notice has been issued on the basis of decision of Tribunal's decision in the case of Vandana Global (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)) to say that Cenvat credit on these items is not available. As during the impugned period availment of Cenvat credit on the items in question was in dispute as there were contrary decision of this Tribunal. Therefore, this Tribunal held in such a situation, extended period of limitation is not invokable in the case of Jindal Steel & Power (2010 (10) TMI 329 - CESTAT, NEW DELHI) and Lloyds Metal (2014 (8) TMI 913 - CESTAT MUMBAI) and Premier Iron and Metal Industries (2011 (6) TMI 685 - CESTAT MUMBAI). Extended period of limitation is not invokable . Further, I find that in this case, the appellant is located in Jammu and availing the exemption under notification No. 56/2002 wherein whatever duty paid by the appellant from PLA , he is entitled to refund of the same. If in this case appellant has not taken the Cenvat credit therefore, whatever duty they would have paid and they could claim the same as refund. Therefore, I hold that it is a case of revenue neutral situation and in that case also the allegation of suppression cannot be alleged against the appellants. - Decided in favour of assessee.

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• 2015 (6) TMI 733
  Valuation of goods - Exemption under notification No.5/06-CE dated 01/3/06/(Sl.No.5) - Whether the retail price was indelibly printed or embarks on the shoes - Held that:- Director of the appellant company had initially given the statement that the price was not being printed or embossed but he has subsequently retracted his statement. Other than this, there is no evidence that the appellant were not complying with this condition. - Even if in respect of a product being supplied to institutional buyers, there is no requirement to print the MRP in terms of Standards of Weights and Measures Act and the Rules made thereunder, but if for availing nil rate of duty or concessional rate of duty under some exemption notification, there is a condition that such retail price must be printed or embossed, the assessee would have to comply with that condition for availing the exemption even if this is not required for compliance with the provision of Standards of Weights and Measures Act and the Rules made thereunder. In this case the Department has not recovered any consignment of shoes supplied to Defence organisations on which there is no MRP printed and as such there is absolutely no evidence that the appellant were not complying with this condition of exemption notification. In view of this, just because the shoes were supplied to Defence organisation, which according to the Department are institutional buyers it cannot be presumed that no MRP had been printed or embossed on the footwear. - impugned orders denying the benefit of exemption Notification 5/06-CE dated 01/3/06 (SI. No. 5) are not sustainable. The same are set aside. - Decided in favour of assessee.

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• CST, VAT & Sales Tax

• 2015 (6) TMI 738
  Violation of Section 4-B(5) - Whether the learned Tribunal was legally justified in holding, as per facts and circumstances of the case, that there is no violation of Section 4-B(5) of Trade Tax Act - Held that:- A perusal of Section 4-B(2) of the Act would show that it contemplates grant of recognition certificate when a dealer requires any goods referred to in sub-section (1) for the purpose of either manufacturing goods or processing goods by him which are notified goods or in the packing of such notified goods. Then we come to Section 4-B(5) of the Act. It contemplates a situation where a dealer, who has a recognition certificate, purchases goods either on concessional rate or without paying any tax and if he uses goods for a purpose other than that for which recognition certificate is granted or has otherwise disposed of the goods then he would be liable to be proceeded under Section 4-B(5) of the Act. The authorities has invoked Section 4-B(5) and imposed penalty in the matter. Tribunal which is a final fact finding authority as only on a substantial question of law, a revision can be successfully premised under the Act. The fact finding authority has found that neither is there finding of the authority that the assessee was caught selling packing material or raw material in the same form and condition in which it was purchased. It is found that the State could not submit any proof which may lead to a conclusion that the assessee has actually sold packing material separately in the form and condition in which it was purchased under Form 3-B. - revisionist has a case in the revision memo that this finding was without any material, when we asked whether there is anything to show that the packing material was not used or the goods were sold without their packing material being used for the purpose of packing, the learned counsel for the revisionist was not able to show any material as such. What is material referred to is the fact that the packing material is returned back and it is separately accounted in the ledger. - Under the terms, the recognition certificate, the material purchased against Form 3-B was to be used for packing. There was nothing to show that it was not so used. In such circumstances, we see no reason to interfere with the order of the Tribunal. - Decided against Revenue.

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• Wealth tax

• 2015 (6) TMI 728
  Valuation - Addition in net wealth - Held that:- Revenue seeks to restore the Assessing Officer’s findings treating assessee’s industrial sheds in question as taxable under the provisions of wealth tax law. It has come on record that the assessee is utilizing the same in its business of plastic processing machineries and generates revenue therefrom. The lower appellate authority has exempted these sheds from being assessed by quoting section 2(ea)(5) of the Act. It also quotes case law of the tribunal (2006 (9) TMI 246 - ITAT PUNE-B ) holding only nature and purpose of the property’s usage as material irrespective of the user. The Revenue neither places on record any material rebutting the CIT(A) view holding the assessee’s sheds being utilized in its business nor does its quote any case law to the contrary - Decided against Revenue.

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