Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
June 8, 2012
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
Indian Laws
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Power of Jt. CIT to issue notice u/s. 148 - Only a Jt. CIT where authorized u/s. 120(4)(b) by the Chief Commissioner or Commissioner, would qualify to be a AO in respect of the person specified in the said authorization - AT
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Computation of deduction under Section 80IA – the service charges, labour charges and transportation charges incurred were for erection testing and commissioning of the units sold - deduction allowed. - HC
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Immunity - Settlement commission - Third person - The petitioner cannot challenge and question the order of the Settlement Commission being the beneficiary of the order. - HC
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Income u/s 2(24) - Whether the tax paid by the employer is a “perquisite” within the meaning of Section 17(2) and, therefore, in terms of Rule 3 of the Income Tax Rules, 1962 cannot be taken into consideration for computing value of the perquisite “rent free accommodation” - HC
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TDS u/s 194A on Interest - Disallowance of re-imbursement of interest u/s.40(a)(ia) - payment of interest through the parent company - no justification to invoke the provisions of sec.40(a)(ia) of the Act in making the disallowance. - AT
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Whether Tribunal was right in holding that the entire land introduced by the partners as their capital and later on withdrawn in the year 1986 was an agricultural land, treating it as individual property of the respective partners - HC
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Capital gains - Transfer of property - joint development agreement - capital gains on the assessee’s land correctly brought to tax by the AO - AT
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Payments of commission to relatives and sister concerns - excessive or unreasonable - so long as there is no intention to evade tax and so long as the commission is not shocking, the said commission has to be accepted, particularly in the light of the wordings of sec. 40A(2) of the Income-tax Act - AT
Customs
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Seeks to levy provisional anti-dumping duty on import of Digital Offset Printing Plates, originating in or exported from Peoples' Republic of China. - Notification
DGFT
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Safeguard Measures (Quantitative Restrictions) Rules, 2012. - Notification
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Amendments in the Reward/Incentive Schemes of Chapter 3 of Foreign Trade Policy 2009-14 - Appendix 37A, Appendix 37C and Appendix 37D of Handbook of Procedure (Vol. I). - Public Notice
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Introduction of electronic Bank Realization Certificate (e-BRC) system. - Public Notice
Indian Laws
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Highlights of Amendments in Service Tax (Determination of Value) Rules, 2006 - Article
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ASSESSEE MAKING PAYMENT WITHIN PERMISSIBLE TIME UPON RECEIVING NOTICE UNDER SECTION 156 PENALTY CANNOT BE IMPOSED. - Article
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CA - Professional misconduct - respondent, while holding position of auditor of a company, agreed to act as an arbitrator/mediator in transaction of shares - respondent was not at all guilty of any professional misconduct as charged - HC
Service Tax
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Entitlement for refund of service tax prior to registration with the service tax department - authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. - AT
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The leased line provided through iron wire which is capable of only data communication cannot be brought under the ambit of the entry for telephone service prior to 16.07.01. - AT
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Service Tax (Determination of Value) Second Amendment Rules, 2012. - Notification
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Service tax - reimbursement of expenses - what are costs for inputs services and inputs used in rendering services cannot be treated as reimbursable costs as there is no justification or legal authority to artificially split the cost towards providing services partly as cost of services and the rest as reimbursable expenses - AT
Central Excise
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Since the Settlement Commission has imposed a consolidated penalty in respect of the past clearances as well as the impugned consignment after taking note of the fact that the appellants have admitted their duty liability, a separate penalty cannot be sustained.- AT
Case Laws:
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Income Tax
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2012 (6) TMI 139
Deduction u/s 54EC - eligibility for deduction u/s 54EC on investment in REC Capital Gain Bonds on account of minors' income from Long Term Capital Gains (LTCG) separately, in case income is clubbed u/s 64(1A) - assessee together with his minor children earned LTCG on sale of shares and invested the same in specified bonds - Revenue clubbed LTCG earned by his minor children in assessee's hands but limited deduction u/s 54EC only to investment of Rs.50 lakhs in assessee's name - Held that:- From definition of 'person' u/s 2(31), it is clear that in case minor is an assessable entity even though his income is clubbed u/s 64(1) in the hands of his parents, he is to be considered separate than his parents. Further, income to be clubbed u/s 64 should be net taxable income, i.e. income computed after allowing permissible deductions. It may also be mentioned that there is difference between the word "assessee" and the word "person". Notification no. 380/2006 dated 22.12.2006 prescribing maximum limit of 50 lacs on the amount of investment in REC Bond, have not put on any embargo on the investments by an assessee but the embargo is on allotment of the bonds to a "person" and such embargo is on the allotting authority. Sec. 54EC stipulates investment limit and not deduction limit, hence deduction for investment by each minor child is thereby allowed - Decided in favor of assessee
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2012 (6) TMI 138
Transfer Pricing - ALP - rejection of addition of three new comparable by the assessee before the DRP - Held that:- This was rightly rejected by the DRP. Assessee itself had selected two comparable companies originally and such a selection was done based on a detailed analysis. In this situation, assessee cannot be allowed to bring in a new set of comparable, for if allowed, it will result in an unending exercise since endeavor of all assessee would be to bring the ALP within comparable range - Decided against the assessee. Correctness of method adopted by AO - Held that:- AO divided the total operating cost between material cost relatable to AEs and cost relatable to non-AEs, which included both material cost as well as other costs. Thus the ALP cost arrived at by TPO was not logical. He deducted from the operating cost, only the material cost relatable to purchases from AEs and not the operating cost attributable to such material cost. The resultant figure will not give ALP of the purchases made from AEs. Matter requires a re-visit by the AO insofar as it relates to determination of ALP of the purchases made from AEs - matter remanded back On contention of assessee that adjustment ought have been allowed on the margins with reference to M/s Halonix Ltd., for a reason that it had different functionality it is held that ALP analysis is made under TNM method. TNM method is generally preferred where functions are not strictly comparable, but when the tested and comparables were in the same lines of business.
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2012 (6) TMI 137
Treatment of prepaid expenses under FBT - Revenue contested that prepaid expenses to superannuation fund should be charged under FBT considering section 115WB(2) – Held that:- The assessee declared fringe benefit value of Rs. 32,76,478/- towards contribution to superannuation funds which was the actual amount debited to P&L Account - the CBDT in Circular No.8/2005 dated 29/8/2005 had made it clear that FBT would be payable in the year in which the expenditure is incurred and would not be payable on payment of advance towards expenses to be incurred in the future - though a contribution of Rs. 42,40,926/- was made during the previous year only a sum of Rs.33,13,584/- related to contribution related to previous year relevant to A.Y 2006-07 and the remaining sum was a pre-paid contribution to superannuation fund the CIT(A)'s Order cannot be considered at default – against revenue. Treatment of sales promotion expenses under FBT - Revenue contested that expenses on account of sales promotion to be charged under FBT as provided u/s. 115WB(2) – Held that:- The payment has been made for business promotion to another group company - the charge to FBT is dependent on enjoyment of benefit collectively by the employees as clarified by CBDT’s circular No.8 dated 29.08.2005 which is totally missing in the present case of brand equity payment and hence cannot be subjected to FBT – against revenue.
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2012 (6) TMI 136
Validity of reassessment reopened on basis of statement obtained in the course of survey - statements obtained in the course of survey made u/s 133A have been retracted by both the assessees - Held that:- Statements made by the assessees, later retracted, do not have any evidentiary value. A reason must be formed by the Assessing Officer to reopen an assessment on the basis of material or information recognized under law. Even if reassessments are held to be valid, still no additions could be made on the basis of those statements. Therefore, reopening of an assessment is not permissible in law on the basis of a statement obtained in the course of survey action u/s 133A, which has been later on retracted. Consequently, revision orders passed u/s 263 for AY 2000-01 and 2003-04 also do not survive - Decided in favor of assessee.
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2012 (6) TMI 135
Eligibility of sale proceeds of the exim scrips for the exemption under Section 10B – Held that:- The issue is covered against the assessee by reason of the Apex Court decision in M/s Liberty India Versus Commissioner of Income Tax [2009 (8) TMI 63 (SC)] - in favour of the Revenue Allowing the expenditure on gift articles as deduction as per rule 6B – revenue appeal against the Tribunal Order - Held that:- Considering the expenditure and that the presentation of a small gift on the occasion of festival season, it would not amount to advertisement - against revenue. Exclusion of the value of the customs duty from the closing stock – Revenue contested that the assessee while claiming modvat benefit against its actual liability for excise duty has valued its closing stock without including the duty component paid by it at the time of purchase of raw material - Held that:- Guided by the decision of the Apex Court CIT v. INDO NIPPON CHEMICALS CO. LTD[2003 (1) TMI 8 (SC)] the assessee was liable to pay excise duty on the goods manufactured by them and got MODAVT credit for the excise duty paid on the purchase of raw materials and the proportionate part of the modvat credit was set off against their excise duty liability on the sale of manufactured goods - the assessee being adopting the net method - on the sole ground that the modvat credit was an irreversible credit available to manufactures upon purchase of duty paid raw material, the same would not amount to income which was liable to be taxed under the Act - not permissible for the AO to adopt the gross method for valuation of raw materials at the time of purchase and the net method for valuation of stock on hand - the assessee had availed modvat credit in respect of the excise duty paid on the raw materials and on the final product on which excise duty was payable - in respect of customs duty paid on the determined value, the Revenue does not dispute the fact that the assessee had been consistently adopting the method of accounting on net valuation method on the closing stock – against revenue.
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2012 (6) TMI 134
Penalty levied u/s 271[1][c] on capital gains on renunciation of right shares – The Assessee took a stand that no part of the aforesaid receipt was taxable because the cost of acquisition of rights shares cannot be determined and therefore it was not possible to compute capital gain – Held that:- The return of income is the only document where the assessee can furnish his particulars of income, whereas the appellant company has not disclosed the receipt of premium received on renunciation of rights in its return of income nor in the computation of income accompanied with the return of income - the entire consideration received by the assessee company on renunciation of right shares was shown under the head “Reserves & Surplus” without mentioning the nature of its constituents and as to how the same was exempt – As nothing was revealed in this regard by way of even a note to computation of total income chargeable to capital gains there is concealment or furnishing of inaccurate particulars on part of the assessee company. To reduce the afore said penalty levied u/s 271[1][c]- Held that:- AO has levied penalty which is @ 200 % of the tax sought to be evaded but while disposing off the appeal the ld CIT[A] has concluded that to levy penalty u/s 271[1][c] @ 100 % of the tax sought to be evaded on capital gains on renunciation of right shares - As the penalty levied by the AO has already been brought down to 100%, which is the minimum penalty u/s 271[1][c] of the Act no point to reduce it further – against assessee.
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2012 (6) TMI 133
Actual Cost - Calculation of depreciation on the Gas Cylinders acquired from associate concern through MOU - AO has allowed the depreciation on the closing WDV of the said firm and not on the " cost" as recorded by the assessee-company - Held that:- Through MOU the assigner a Registered firm has transferred all its assets and liabilities to assignee, the assessee-company who has taken over all the liabilities as well and agreed to transfer a consideration, plus the shares in the name of the partners of the said erstwhile firm – as this is not the case of transfer of capital assets by holding company to its subsidiary company, or the case of capital asset being transferred by amalgamation, or transfer of capital asset by demerger, then the only recourse for the Revenue ought to be that the "actual cost" as defined u/s.43(l) should have been taken for the calculation of depreciation - since the assets and liabilities of the firm have been taken over by the assessee-company therefore the exception as prescribed u/s.47(xiii) that nothing contained in section 45 shall apply to any transfer of the capital asset or intangible asset by a firm to a company as a result of succession of the firm by a company in the business carried have its application and that could have been the reason that no action was ascribed in the hands of the erstwhile firm – against revenue. Direction to allow depreciation of Gas Cylinders being “put to use” – once the assessee has demonstrated that the cylinders were purchased and were dispatched for its destination and from that very day the assessee has started receiving the lease-rent the date is very relevant to decide whether the assets in question have actually been "put to use" for 180 days or more for the purpose of eligibility of full rate of depreciation - Held that:- Since the admitted fact is that one of the business of the assessee is hiring of gas cylinders thus the assets in question have actually been leased out with effect from 27.09.2003 and have been "put to use" for hiring business for more than 180 days – against revenue. Addition of sum being difference between receipts credited in profit and loss account and the actual receipt as per TDS certificates not affording the Assessing Officer an opportunity to rebut the evidence put before him – Held that:- The provisions of Rule 46A was infringed by CIT(A) by not confronting certain new evidences to the AO –as the reconciliation with supporting evidences was not in the knowledge of the AO it is advisable to restore this ground of the Revenue back to the stage of the AO to be decided after investigation and verification of the TDS certificates – in favour of revenue for statistical purposes. Deleting the addition of sum being diversion of profit under charging rent on cylinders leased to the associate concern – Held that:- For alleging the impugned diversion of profit the AO has overlooked the business model and the pattern of business activity of the assessee - though the business activity of the group concern is leasing out of LCH cylinders but the dealing with the GACL of the sister-concern who was not a loss making concern should have been taken into account before alleging the diversion of profit - the rate of tax as applicable in the case of the said sister-concern was identical with the rate of tax of the assessee with no mala fide motive for such diversion of income on the part of the assessee – against revenue. Treatment of vehicle expenses - C.I.T.(A)deleted the addition of Rs. 36,801 being vehicle expenses for personal use – Held that:- In the absence of any specific instance of user of vehicle for non-business purpose, we are of the view that there was no scope for such an ad hoc disallowance – against revenue. Claim of bad debt disallowed – Held that:- As decided in T.R.F. Ltd. v. CIT[2010 (2) TMI 211 (SC)] in order to obtain a deduction in relation to bad debts, it is not necessary for the assessee to establish that the debt, in fact has become irrecoverable. It is enough of the bad debt is written off as irrecoverable in the accounts of the assessee – against revenue.
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2012 (6) TMI 132
Treatment of interest income from FDRs under Tonnage Tax Scheme - the assessee had received interest income on FDs which he had not offered for taxation and had instead taken the sum as covered under Tonnage Scheme – assessee contested that he had borrowed funds from bank for shipping activities placing the FDRs with the bank as collateral securities and the interest income received was conclusively linked to the shipping activity - Held that:- Placing FDRs with bank cannot be considered as activity for operating ships or activity of shipping contract or shipping trades -it can be considered as an incidental activity but under the Tonnage Tax Scheme, the incidental activities have been separately defined in Rule- and which clearly does not contain the activity of placing FDRs - under the Tonnage Tax Scheme, only profit from core activities and profit from incidental activities are included and as regards the interest income, the source of such income is FDR and not the shipping activity either core or incidental – against assessee. Only the net interest income should be assessed as assessee had used borrowed funds for making the FDRs – Held that:- While computing interest income expenses incurred for earning interest income have to be excluded - restore the submission of the assessee regarding netting of income to the file of CIT(A) for deciding the same after necessary examination and after hearing the assessee – in favour of assessee. Assessment of other income consisting of sundry balance written back, excess provision written back and miscellaneous income - AO assessed such income as income from other sources in addition to income under Tonnage Scheme – Held that:- Since the CIT(A) had not adjudicated the issue the matter should be sent back to CIT(A) for fresh adjudication and after allowing opportunity of hearing to the assessee.
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2012 (6) TMI 131
Revision u/s 263 - Disallowance u/s 14A - expenditure towards interest paid/payable to ICICI Bank on the loan taken and utilised for the purpose of investment in shares in Andhra Pradesh Gas Power Co. Ltd. (APGPCL in short). - held that:- nce it established that there was nexus between the expenditure and the purpose of the business, the Revenue cannot justifiably claim to put itself in the armchair of the business man or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No business man can be compelled to maximise his profit. What is relevant is whether the amount was advanced as a measure of commercial expediency and not from the point of view of whether the amount was advanced for earning profit. The money which was borrowed by the assessee from ICICI Bank was utilised for the purpose of acquisition of shares of APGPCL for the purpose of business advantage and it cannot be considered as investment in relation to earning of income exempted from tax. The benefit derived by the assessee by this investment is more than interest incurred by the assessee towards loan from ICICI Bank. The investment in the shares by the assessee by borrowing money from ICICI Bank to be seen with saving of power cost. The assessee derived exorbitant benefit on the cost of power. Had the assessee not investment in the shares of APGPCL, the assessee should have incurred additional expenditure towards supply of power. - Decided in favor of the assessee
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2012 (6) TMI 130
Expenditure related to exempted income / dividend - held that:- - It is true that the power of the ld CIT(A) to set aside any matter was curtailed by making amendment to section 251(1)(a) w..e.f. 1.6.2001 - CIT(A) without referring the working given by the assessee set aside to the file of the Assessing Officer - Appeals are allowed by way of remand to the file of CIT(A) for passing a speaking order Regarding capital or revenue expenditure - It was contended by the Ld AR for the assessee that as such this amount was incurred towards annual subscription's and not towards outright purchase of software - The contention of the assessee should be adjudicated and if so required remand report may be obtained from the Assessing Officer before passing a fresh order - Appeals are allowed for statistical purpose
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2012 (6) TMI 115
Traveling expenses incurred on foreign travel - Revenue dis-allowed expenditure on ground that same was not incurred for business purpose - Held that:- If there is a foreign travel in connection with the business, merely because in the said foreign travel, no business could be transacted or the foreign travel did not result in bagging any contract is not the determinative factor. It is not also necessary that the expenditure could be claimed by the assessee only if person sent was a Director or an employee. Board's resolution produced indicate that travel had been undertaken solely for the purpose of the assessee‟s business - expenditure allowed - Decided in favor of assessee. Requirement of giving a notice of hearing before charging of the interest u/s 217 - Held that:- Issuance of show cause notice is not a condition precedent before charging interest u/s 217 as the requirement of notice was satisfied during the assessment proceedings itself.
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2012 (6) TMI 114
Validity of Revisionary order passed u/s 263 - order purported to bring into tax net capital gains earned on sale of house property in United Kingdom on 31.05.2005 by assessee who's residential status during the relevant previous year was 'resident but not ordinarily resident' - Held that:- The mere fact that assessee relocated to India on 29th May 2005 does not alter her residential status, so far Income Tax Act is concerned with effect from that date. In the cases of non-residents, as also in the cases of 'resident but not ordinarily resident', unless, at the time money is received in India, it is received as income from an outside source, such receipt will not be an income receipt. The income was received in United Kingdom and it is only subsequent remittance, which is wholly irrelevant for taxability purposes, which was received in India. Order of Commissioner thus stands vacated - Decided in favor of assessee.
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2012 (6) TMI 113
Commission paid to Directors - dis-allowance on ground that commission payment was unjustified since gross profit of the company declined, and directors were getting sufficient remuneration and there was no ground to pay commission - Held that:- Assessing Officer cannot decide what the assessee should do and pay. Disallowances can be made u/s 40A(2), when warranted and required and when the conditions of the said section are satisfied. Commission paid to the Managing Director /Director was in accordance with the provisions of the Companies Act, 1956 - Decided in favor of assessee.
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2012 (6) TMI 112
Exemption u/s 10A - denial on ground that assessee did not fulfill the conditions stipulated in clauses (a),(b)and(c) to Section 10A(2)(i) - Revenue contended that clause (c) applicable w.e.f. 1st April, 2001 had the effect of overriding clauses (a) and (b) - Held that:- clause (c) extends the benefit and does not withdraw the benefit extended and available to undertakings covered by clauses (a) and (b). The three clauses are mutually exclusive and operate in their own field. Facts on records reveal that STP registration was granted to the erstwhile partnership firm whose entire business was transferred to the assessee in 2005. The name of the assessee -company was substituted in the STP registration record, which is located in a STP and thus is accordingly covered by Section 10A(2)(i)(b) - Decided in favor of assessee
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2012 (6) TMI 111
Application of section 44D or section 44BB - revision u/s 263 - providing equipment and services in connection with prospecting and extraction or production of mineral oil. - Leasing of seismic vessel to to the CGG - CGG used the vessel for collecting seismic data for the ONGC Ltd. - held that:- In fact, nothing prevented the ld. Director of Income-tax to give a finding that the case did not fall u/s 44BB but fell u/s 44D as the relevant agreement was on record. Further, on the basis of ruling in the case of Wavefield Inseis ASA, In re (2009 (12) TMI 5 (AAR)), it can be said that two views are possible in the matter, as the view taken by the ld. AAR in similar circumstances is that the provisions contained in section 44BB are applicable. In such a situation also, the order cannot be said to be erroneous and prejudicial to the interest of revenue as following one permissible course of action rather than the other does not lead to an order which is erroneous and prejudicial to the interest of revenue. Accordingly, it is held that the ld. Director of Income-tax erred in setting aside the matter on this ground.
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2012 (6) TMI 110
Unsecured loans - Unexplained cash credit u/s 68 - held that:- there is no dispute that the unsecured loans in the account of Ms.Usha Menon and Deepa Travels are appearing in the earlier year’s balance-sheet of the assessee as on 31.3.2005. However, from the confirmation letters filed by the assessee, we observe that there is difference in the old balances and current years figures which the assessee could not reconcile even at this stage. - matter remanded back to AO. Adhoc addition of cash expenses u/s 40A(3) - held that:- The AO without pointing out any payment in cash by the assessee over Rs.20,000/- made disallowance u/s 40A(3) of the Act. - merely because the assessee before the Ld. CIT(A) has stated that, in alternative, the addition is on a very higher side and the same may be reduced, does not mean that the disallowance can be made u/s 40A(3) of the Act or on adhoc basis the same may be reduced to 10%. - Decided in favor of assessee. Non deduction of TDS u/s 194C - held that:- since the assessee paid the TDS amount of Rs.2,96,316/- on 8.6.2006 before the due date of filing return of income u/s 139(1) of the Act, therefore, the impugned disallowance u/s 40(a)(ia) made by the AO is deleted.
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2012 (6) TMI 109
Power of Jt. CIT to issue notice u/s. 148 and also recording the reason(s) for the same – assessee contested that Jt. CIT is not its Assessing Officer competent to record the reason/s and issue notice u/s. 148 – Revenue contested the Jt. CIT, Sri Ganganagar has jurisdiction over the assessee by virtue of Notification No.1 of 2001-02 issued by the CIT, Bikaner - Held that:- Only a Jt. CIT where authorized u/s. 120(4)(b) by the Chief Commissioner or Commissioner, would qualify to be a AO in respect of the person specified in the said authorization whereas the Revenue has not brought on record any order/ direction/ notification u/s. 120(4)(b) - the Notification No. 1/2001-02 issued by the CIT, Bikaner convey a general order passed in exercise of the powers u/ss. 120(1) and 120 (2) to perform functions in respect of the persons residing or having their principal place of business, registered office located within the district of Sri Ganganagar and the same does not confer on him the powers and functions of an AO, which could only be by an order passed by the Chief Commissioner in pursuance of the powers conferred on the said authority by the Board u/s. 120(4)(b) – the Revenue's claim of Jt. CIT holding concurrent jurisdiction with the ITO, Ward 1, Sri Ganganagar is, therefore, without substance as no scope for application of s. 292B of the Act - in favour of assessee.
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2012 (6) TMI 108
Re-opening of the concluded assessment - claim of deduction under Section 80IB(10)questioned - writ petition to issue a Writ of Certiorari – assessee contested that the re-opening of the assessment is a case of `change of opinion on a concluded scrutiny assessment - the petitioner is a domestic private limited company, engaged in the business of engineering works, building and developing of residential properties - Held that:- Notice for the re-opening of the assessment has not stated that the petitioner had failed to fully and truly disclose the material facts relevant for the passing of the original assessment order - the petitioner had placed all the relevant records including the construction agreement that he was operating only as a contractor and not as a builder in the light of the explanation to Section 80IB(10) introduced by the Finance Act, 2009 with retrospective effect, from 1.4.2001, it would not be open to the respondent to re-open the assessment before the passing of the original assessment order - thus it is not the case of the respondent that the petitioner had suppressed certain material facts due to which the original assessment order passed by the respondent is liable to be reassessed – in favour of assessee.
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2012 (6) TMI 107
Re-opening of the concluded assessment - whether the petitioner company is entitled to claim deduction under Section 80IB(10) - writ petition to issue a Writ of Certiorari – assessee contested that the re-opening of the assessment is a case of `change of opinion on a concluded scrutiny assessment - petitioner is a domestic private limited company, engaged in the business of construction of residential/commercial complexes - Held that:- Notice for the re-opening of the assessment has not stated that the petitioner had failed to fully and truly disclose the material facts relevant for the passing of the original assessment order - the petitioner had placed all the relevant records including the construction agreement that he was operating only as a contractor and not as a builder in the light of the explanation to Section 80IB(10) introduced by the Finance Act, 2009 with retrospective effect, from 1.4.2001, it would not be open to the respondent to re-open the assessment before the passing of the original assessment order - thus it is not the case of the respondent that the petitioner had suppressed certain material facts due to which the original assessment order passed by the respondent is liable to be reassessed – in favour of assessee.
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2012 (6) TMI 106
Rate of tax u/s 115A - royalty - Amended collaboration agreement entered in 1981 to be treated as an extension of the old agreement of 1973 - the assessee claimed relief of deduction of 20% towards expenses, further deduction of 20% towards training and exemption in respect of lumpsum royalty and royalty on export sales if new agreement entered is considered to be the extension of earlier agreement - Held that:- Once 1981 agreement is treated as part of 1973 agreement, then the consequences of treating the second agreement as part of the original agreement should have been considered for applying the relevant statutory provisions under the Income Tax Act and in consonance with the Double Taxation Avoidance Agreement - Assessing Officer is directed to consider the claim of the assessee on the relief under DTAA agreement in respect of expenses towards free training, exemption under Section 9(i)(vi) in respect of lumpsum royalty as well as the claim for deduction under Section 44D towards expenses – partly in favour of assessee.
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2012 (6) TMI 105
Computation of deduction under Section 80IA – revenue contested that service charges for maintenance, charges for transportation, erection and commission charges, labour charges, sale of scraps during manufacturing are not to be included as profits and gains of the industrial undertaking for computation of deduction – Held that:- As decided in M/s Liberty India Versus Commissioner of Income Tax [2009 (8) TMI 63 (SC)] deduction provided under Section 80IA being "profit linked incentive” there exists no flaw in the order of the Tribunal - the service charges, labour charges and transportation charges incurred were for erection testing and commissioning of the units sold and were part of the receipts of the industrial undertaking come within the meaning of the profits and gains derived by the undertaking or an enterprise from any business and scrap sales also qualify for consideration under Section 80IA of the Act – in favour of assessee.
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Customs
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2012 (6) TMI 129
Suspension of the CHA licence - appeal against order of suspension - Revenue praying for no interference to the suspension, placing gravity of depositions recorded from various persons and more incriminating evidence gathered in the course of investigation followed by search proceedings - Held that:- We do appreciate that appellant deserves to be provided opportunity of hearing to defend against charges. Granting 4 weeks time for defence to be lead by the appellant appropriate adjudication shall be done by learned Commissioner.
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2012 (6) TMI 104
Plea for waiver of pre-deposit of duty and penalty imposed on applicants on ground of their role in regard to smuggling of Red Sanders wood of Indian origin - absolute confiscation of goods - Held that:- From facts it is clear that when the container containing the Red Sanders was intercepted, both the Applicants(employees of Jain Logistics) left the Office after handing over the keys to an unknown person and after handing over the unaccounted cash on the next day of the seizure, as per the direction of Director of M/s. Jain Logistics. Therefore, their role cannot be ruled out in the abetment of smuggling of Red Sanders. Further, since they could not produce any documentary evidence in support of their claim for financial hardships, therefore, applicants are directed to predeposit 10% of penalty in each case within eight weeks.
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Corporate Laws
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2012 (6) TMI 128
Sanction of Scheme of Amalgamation - Held that:- Pendency of any proceedings if any by the Income Tax Department cannot be a ground not to sanction the scheme. The Court also finds that the issue and allotment of shares whether on premium or otherwise is in the sole domain of the Board of Directors of the Company. Furthermore, even the action of the Company in forfeiting the shares cannot be said to be against the provisions of Companies Act, 1956. In case of default in payment of call money, it is open for the Board of Directors of the Company to forfeit the shares of the concerned shareholder. In any case, such aspects would not affect Scheme of Amalgamation as proposed u/s 391-394 of the Companies Act, 1956. The Court finds that there is nothing in the report which adversely affects the interest of the Company and/or its shareholders, or creditors or public interest by virtue of the provisions of the Scheme of Amalgamation. Scheme of Amalgamation is hereby sanctioned.
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2012 (6) TMI 127
Winding up – Official Liquidator took out an application for misfeasance - at the time of determination of decretal dues the rent realized by the Official Liquidator have not been accounted for nor the said recovered amount was disclosed - It was further claimed that various payment which was shown as due in the balance sheet dated 31-3-1958 had already been paid and, therefore, those amounts specially amounts noted on liability side against Omprakash Mohta, Mohta Brothers, D.C. Dhiman should have been removed and the decretal dues should have been corrected – Held that:- rent collected by the Official Liquidator could be refunded only after the payments were made to the secure creditors. claim of the petitioner, on the basis of the balance sheet prepared in 1958 is also not acceptable to the Court in view of the fact that the order of winding up was passed on 7-9-1965 and, therefore, there is no scope today to consider the balance sheet of 1958, which was lost all its relevance. claim of making payments to the said O.P. Mohta and Mohta Brothers are also rejected. application is rejected
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2012 (6) TMI 116
Certification of shares - tainted shares - Claim of dividend – Custodian - Held that:- appellant under the facts and existing circumstances of the case where he ended up buying tainted shares for no fault on his part but had to seek its certification from the Custodian under compelling circumstance which was not his creation and also had no control, could not have been denied his due on the ground of delay in filing the application for certification specially when the appellant had sought certification of his shares only after two months of the cut off date for reasons beyond his control which cut off date has no statutory effect or legal force. The appellant on the one hand was saddled with the tainted shares for no fault on his part through respondent Nos. 4, 5 and 6 on which he had no control or any role to play and on the top of it, when he sought a remedy of certification for claiming dividends, he had to suffer an order by which his application was rejected on the ground that he had not moved an application within the cut off date which had no statutory force as the same had been fixed at the instance of the Custodian seeking approval from the Special Court. order of the Special Court set aside and allow this appeal as a result of which the respondent-Custodian shall entertain the application filed before the Special Court for certification of his shares and verify the claim of the appellant in regard to the shares.
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2012 (6) TMI 103
Winding up - misfeasance against the directors of the company-in-liquidation - liability of non executive director - Respondent No. 10 contended that he joined the company as a non-executive director and the purpose of his induction was to maintain 'liaison' between the company, State Bank of India and other financial institutions. - held that:- there is no evidence to suggest involvement of this respondent in any act of misappropriation or misapplication of the properties of the company. Therefore, the proceedings against him are dismissed. Loss to company - liability of directors – Held that:- when on the face of materials on record it can be shown that none except the directors and other officers in control of the company could be responsible for any act of misappropriation, then there is a presumption of guilt against the directors and these officers, which they have to rebut. Non-payment of sales tax - held that:- If the Government of Bihar deferred payment of sales tax there is a necessary implication that the amount collected as sales tax could be used for the purpose of the company and the tax paid later. Although such deferment was only up to September 30, 1994, still the official liquidator had the burden to prove that this sales tax amount had been misappropriated by the directors jointly or by some of them or one of them or by any other officer. Non-payment of Provident Fund, ESI and EDLI liabilities. - held that:- this amount was collected from the customers or employees and the company could not use these funds. - There is no such explanation for misappropriation of Provident Fund - higher penal interest imposed.
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2012 (6) TMI 102
Winding up - non-payment of outstanding dues – Held that:- respondent-company has miserably failed to prima facie establish its bona fide pleaded in defence in the reply to the winding up petition. despite persistent demands through repeated letters, besides legal notice sent through registered post, has neglected to pay outstanding dues, which prima facie establishes its inability to pay its debt. respondent-company is unable to pay its debts. winding up petition was to be ordered
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Service Tax
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2012 (6) TMI 143
Entitlement for refund of service tax prior to registration with the service tax department - Held that:- High Court held in case of of mPortal India Wireless Solutions (P) Ltd. Vs. CST (2011 (9) TMI 450 (HC)) that in the absence of a statutory provision which prescribed that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. By following the Karnataka judgement, Revenue s appeal is rejected.
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2012 (6) TMI 142
Demand of service tax in respect of telephone service provided through leased line - Held that:- In view of the fact that the leased lines provided through ACSR/copper wire provided voice communication, said leased circuits have been rightly held to be covered under the existing entry for telephone service even prior to the period 16.07.01. - To that extent the tax demand is justified. The leased line provided through iron wire which is capable of only data communication cannot be brought under the ambit of the entry for telephone service prior to 16.07.01. Matter remanded back to the original authority for verifying as to whether the service tax amount has been separately paid by service recipient and for allowing cum tax benefit in such of those cases where no service tax has been separately paid. He will also segregate the amounts relating to leased lines based on iron wire meant for only data circuit and if the demand has been made for such circuits, to reduce the demand to that extent.
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2012 (6) TMI 141
Stay – demand of service tax - Rent-a-cab service - cabs were let on hire on demand basis as and when made by users. Those were not provided by the appellant on fixed rental basis - Held that:- if a cab operator provides a cab with driver to his client on demand and charges on km. basis, control of the vehicle always remaining with the cab operator, in that case he shall be said to have provided transport service instead of renting-a-cab. - Decision in R.S. Travels v. CCE [2008 (7) TMI 27 (Tri)] followed. - Decided in favor of assessee.
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2012 (6) TMI 122
Eligibility of CENVAT Credit of the Service Tax paid to clearing house agents for export of the goods - Stay Petition for waiver of pre-deposit of CENVAT Credit with interest and equal amount of penalty - Held that:- As decided in COMMR. OF C. EX., MYSORE Versus CHAMUNDI TEXTILES (SILK MILLS) LTD.[2010 (4) TMI 450 (Tri)], Tata Steel Ltd. Vs. CCE Mumbai-IV[2010 (11) TMI 287 (Tri)]such credit needs to be allowed - in favour of assessee.
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2012 (6) TMI 121
Non-payment of service tax on account of ignorance and not on account of any suppression, fraud etc - payment of part tax before issue of SCN - Plea for waiver of penalty u/s 78 - waiver of penalty u/s 73(3) - benefit of cum-tax value - Held that:- Since assessee has promptly discharged tax liability together with interest even though they have separately not collected the tax amount from their customers and since there is no evidence of fraud, suppression etc., on their part, they can be given benefit u/s 73(3) to the extent the tax and interest has been paid by them prior to the issue of SCN, as the total amount paid by them towards tax and interest may be appropriated. Regarding payment made subsequent to the issue of SCN - Held that:- Since appellants were not given an option to pay 25% of penalty amount they may be allowed to pay 25% of the penalty amount within 30 days from the date of re-quantification of the tax amount. Order is set aside and the matter is remanded to the original authority for passing a fresh order for reworking the tax, interest and penal liability.
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2012 (6) TMI 120
Plea for waiver of pre-deposit of service tax of Rs 17.46 lacs and penalty of equal amount u/s 78 - dismissal of appeal by Commissioner(Appeals) for non-compliance with its order of making pre-deposit of Rs 10 lacs - assessee offered to make pre-deposit of Rs.2.00 lakhs - Held that:- Applicants are directed to deposit Rs 2 lacs and report compliance on stipulated date directly to Commissioner(Appeals). After waiving the requirement of pre-deposit of balance amount, it is held that since Commissioner(Appeals) has not decided the issues on merits. Therefore the case is remanded to Commissioner(Appeals) for deciding the issue on its merits without insisting for any further pre-deposit.
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2012 (6) TMI 119
Service tax demand on the entire bill value amount without allowing a deduction for the reimbursement expenses - Ld. Commissioner disallowed the claim as the appellants have not produced the supporting documents evidencing the claim whereas the contention of assessee is that now they are in a position to produce the requisite documents - Held that:- In light of the judgment of the case of Sri Bhagavathy Traders Vs. Commissioner of Central Excise, Cochin [2011 (8) TMI 430 (Tri)] wherein guidelines have been laid down how to compute the expenses defines that only when the service recipient has an obligation legal or contractual to pay certain amount to any third party and the said amount is paid by the service provider on behalf of the service recipient, the question of reimbursing the expenses incurred on behalf of the recipient shall arise - the claim for reimbursement towards rent for premises, telephone charges, stationery charges, etc. amounts to a claim by the service provider that they can render such services in vacuum - what are costs for inputs services and inputs used in rendering services cannot be treated as reimbursable costs as there is no justification or legal authority to artificially split the cost towards providing services partly as cost of services and the rest as reimbursable expenses - the aforesaid decision was not before the ld. Commissioner while passing the Order, the case is remanded to the Ld. Commissioner to decide afresh.
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2012 (6) TMI 118
Waiver of pre-deposit and stay of recovery - refund claim - refund claimed by the builder before the original authority is on the ground that they were not liable to pay Service Tax on the taxable value on which the sub-contractor (the present appellant) paid tax - main contention raised by the learned counsel is that the Department cannot recover Service Tax on a given taxable value from both the builder and the sub-contractor – Held that:- orders of the lower authorities set aside and allow this appeal by way of remand, application disposed of
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2012 (6) TMI 117
Extended period of limitation - demand of Service tax - photography services - whether the value of input materials used by them is required to be added in the value of services being provided by them so as to make the entire gross amount charged by them from their clients leviable to service tax - period involved in the present appeals is from October, 2004 to May, 2005 – Held that:- in the case of CCE v. Satyam Digital Photo Lab (2011 (9) TMI 199 (Tri)), notices issued beyond the period of limitation would not stand inasmuch during the relevant period, there was sufficient material for the assessee to entertain a bona fide belief that the value of raw material used would not form part of the value of services. demand beyond the period of limitation is time-barred and no penalty is required to be imposed. Matters are remanded for requantifying the duty demand falling within the period of limitation, if any. Appeals are disposed of
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Central Excise
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2012 (6) TMI 126
Condonation of delay - dismissal of appeal filed on 05.02.09 on ground of it being time barred by Commissioner (Appeals) without giving opportunity of being heard to appellant - assessee contended that delay was caused due to time-limit prescribed for filing the appeal being given as 'within three months from date of communication of order' in the impugned order dated 14.11.2008 - assessee also contended late receipt of order on 11.12.2008 - Held that:- Since Commissioner (Appeals) has not granted any opportunity of hearing to the Applicant, before dismissing the appeal, it is perplexing how the Applicant could show that they had received the OIO on 11.12.2008.. The case is, therefore, remanded to the Commissioner (Appeals) to examine all the aspects and decide.
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2012 (6) TMI 125
Condonation of delay - dismissal of appeal on ground of it being non-maintainable by Commissioner (Appeals) - assessee contended that delay was caused due to time-limit prescribed for filing the appeal being given as 'within 90 days from receipt of order' in the impugned order - assessee filed the appeal on the 79th day - Held that:- The impugned OIO was issued on 16.10.2007 and the appeal was filed on 07.02.2008 and if the time-period is reckoned from the date of dispatch, i.e.16.10.2007, there was a delay of 19 days in filing the appeal in terms of time-limit prescribed u/s 35. We find that the delay of thirty days beyond sixty days is condonable as per Section 35. Therefore, there was no delay in filing the appeal. In this situation, we remand the matter to the Commissioner (Appeals) to decide all aspects afresh.
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2012 (6) TMI 124
Condonation of delay - dismissal of appeal dated 01.06.09 on ground of it being non-maintainable by Commissioner (Appeals) - assessee contended that order dated 23.02.09 was received on 17.04.2009, hence there was no delay in filing the appeal - Held that:- It is found from the Range Superintendent's letter that the impugned OIO dated 23.02.09 was handed over to the authorized signatory of the Applicant on 17.04.2009, and the acknowledgement to that effect was also obtained. If the time-period is reckoned from the date of acknowledgement, i.e. 17.04.2009, the appeal was filed within the time-limit prescribed u/s 35 of the Act. Therefore, there was no delay in filing the appeal. In this situation, we remand the matter to the Commissioner (Appeals) to decide the appeal afresh.
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2012 (6) TMI 123
Demand of duty and equivalent penalty on it - Assessee contention that the demand is time-barred as SCN issued by invoking extended period of limitation - Held that:- The allegation of suppression with intent to evade payment of duty is not sustainable as the records clearly depicts that the appellants were filing necessary returns showing taking of credit and utilizing the same for payment of duty during the period in question - set aside the demand and the consequential penalty as time-barred - in favour of assessee.
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2012 (6) TMI 101
Separate penalty imposed on goods confiscated on which duty and penalty has already been deposited under another order passed by Settlement Commission - Held that:- It is strange that confiscation and penalty in respect of the impugned goods have been covered by a separate SCN and separate order, whereas the duty on the very same goods has been demanded under another SCN which covers clandestine clearances made earlier. Nevertheless, since the Settlement Commission has imposed a consolidated penalty in respect of the past clearances as well as the impugned consignment after taking note of the fact that the appellants have admitted their duty liability, a separate penalty cannot be sustained. Accordingly, while upholding the confiscation and imposition of redemption fine, penalty separately imposed under the impugned order is set aside.
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2012 (6) TMI 100
Clandestine removal of goods - search - demand imposed on basis of documents which came to the possession of Revenue from uninformed and undisclosed sources - Held that:- Fact of recovery of the documents is very important and the silence on the part of the Revenue to disclose the source of acquisition and possession of the same is fatal to the Revenue's case especially when the same do not stands corroborated in material particular. Charges of clandestine removal are quasi criminal and requires production of positive and tangible evidences. Even the examination of the said documents have led us to conclude that they are fabricated documents and which at the most can raise doubt against the appellants but cannot fasten duty liability on the same. We note that the investigation in the present case do not lead to the logical end and do not result in the alleged clandestine activities on the part of the appellants. Apart from the loading slips which we have already held as not carrying much evidentiary value, there is virtually no evidence on record to establish clandestine activities of the appellants. In fact, Commissioner has himself observed that the demand is being confirmed on the basis of circumstantial evidence. Therefore, said duty confirmation cannot be upheld - Decided in favor of assessee.
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2012 (6) TMI 99
Condonation of delay - dismissal of appeal on ground of it being time-barred by Commissioner (Appeals) without giving opportunity of being heard to appellant - assessee contended that delay was caused due to time-limit prescribed for filing the appeal being given as three months from communication of order in the impugned order dated 17.09.2008 - assessee also contended late receipt of order on 26.09.08 - Held that:- Since Commissioner (Appeals) has not granted any opportunity of hearing to the Applicant, before dismissing the appeal, which is in violation of the principles of natural justice. The case is, therefore, remanded to the Commissioner (Appeals) to examine all the aspects and decide.
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2012 (6) TMI 98
Availment of CENVAT Credit of service Tax paid on the GTA services - Held that:- Considering the law and the provisions regarding availment of CENVAT Credit and definition of input service as mentioned in CENVAT Credit Rules, 2004, it can be concluded that the judgment in the case of CCE Bangalore Vs. ABB Limited [2011 (3) TMI 248 (HC)]is correct and the appellant or the assessee could avail the CENVAT Credit of Service Tax paid on GTA services - against revenue.
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2012 (6) TMI 97
Duty on capital goods cleared as scrap - capital goods in respect of which Cenvat Credit had been availed - respondents in course of proceedings before the Asst. Commissioner had claimed that the capital goods were not cenvat credit availed goods but the Asstt. Commissioner did not accept this plea and held that the goods were cenvat credit availed. finding is without any reference to the records. Since whether or not the capital goods, in question, were cenvat credit availed is verifiable fact, the impugned order is set aside and the matter is remanded back to the original adjudicating authority for de novo adjudication. revenue's appeal is allowed by way of remand.
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Indian Laws
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2012 (6) TMI 140
Professional misconduct - respondent, while holding position of auditor of a company, agreed to act as an arbitrator/mediator in transaction of shares of said company - Held that:- In order to attract the aforesaid clause, the act or omission must be in connection with the duties cast upon a chartered accountant in such capacity which no person other than a chartered accountant can perform. breaches alleged did not come within the purview of the expression "professional misconduct". The council had found the respondent guilty only on the aforesaid charge and no other. respondent was not at all guilty of any professional misconduct as charged under clause 7 of part 1 of the Second Schedule and, consequently, no action was called for against the respondent.
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